[Cite as State v. Gheen, 2018-Ohio-1924.]



                            STATE OF OHIO, BELMONT COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )             CASE NO. 17 BE 0023
V.                                              )
                                                )                  OPINION
AUSTIN LEE GHEEN,                               )                   AND
                                                )              JUDGMENT ENTRY
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Belmont County, Ohio
                                                Case No. 17 CR 60.

JUDGMENT:                                       Motion to Withdraw Granted.
                                                New Counsel to be appointed.
APPEARANCES:

For Plaintiff-Appellee                          Attorney Daniel P. Fry
                                                Prosecutor
                                                Attorney Joseph Vavra
                                                Assistant Prosecutor
                                                147 A West Main Street
                                                St. Clairsville, Ohio 43950
                                                No Brief Filed.

For Defendant-Appellant                         Attorney John M. Jurco
                                                P.O. Box 783
                                                St. Clairsville, Ohio 43950

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                Dated: May 10, 2018
[Cite as State v. Gheen, 2018-Ohio-1924.]
PER CURIAM.

        {¶1}     Defendant-appellant, Austin Gheen, appeals from a Belmont County
Common Pleas Court judgment convicting him of burglary following his guilty plea.
        {¶2}     On March 2, 2017, a Belmont County Grand Jury indicted appellant on
one count of burglary, a second-degree felony in violation of R.C. 2911.12(A)(1); and
one count of theft, a third-degree felony in violation of R.C. 2913.02(A)(1). Appellant
initially entered a not guilty plea.
        {¶3}     Appellant subsequently entered into a plea agreement with plaintiff-
appellee, the State of Ohio. Pursuant to the terms of the plea agreement, the state
agreed to amend the indictment so that the burglary charge was reduced from a
second-degree felony to a third-degree felony in violation of R.C. 2911.12(A)(3). It
also agreed to dismiss the theft count. Appellant then entered a guilty plea to the
amended burglary charge.
        {¶4}     Next, the trial court held a sentencing hearing. It sentenced appellant to
36 months in prison for the burglary conviction. It also sentenced him to 12 months
for his violation of postrelease control in another case. The court ordered appellant
to serve the sentences consecutively for a total prison sentence of 48 months.
Additionally, the court ordered appellant to pay restitution to the victim.
        {¶5}     Appellant filed a timely notice of appeal on June 2, 2017.
        {¶6}     Appellant's appointed counsel has filed a no merit brief and request to
withdraw pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.
1970).1
        {¶7}     This court issued a judgment entry notifying the parties that appellant's
counsel had filed a Toney brief and advising appellant he had 30 days to file a pro se
brief. Appellant did not file a pro se brief. Consequently, we are left only to conduct
our own independent review pursuant to Toney.


1 On April 23, 2018, this court overruled State v. Toney, 23 Ohio App.2d 203, 262 N.Ed.2d 419 (1970)

in State v. Cruz-Ramos, 7th Dist. No. 17 MA 0077, 2018-Ohio-1583. We held that it is no longer an
acceptable practice in this court for counsel to file a Toney no-merit brief and motion to withdraw on
the ground that the appeal is frivolous. Id. at ¶ 16. But given that the Toney brief and motion to
withdraw in this case were filed before we released Cruz-Ramos, we will still apply the Toney
procedure in this case.
                                                                                -2-


       {¶8}   In Toney, this court set out the procedure to be used when appointed
counsel finds that an indigent criminal defendant's appeal is frivolous. The procedure
set out in Toney, at the syllabus, is as follows:
       3. Where a court-appointed counsel, with long and extensive
       experience in criminal practice, concludes that the indigent's appeal is
       frivolous and that there is no assignment of error which could be
       arguably supported on appeal, he should so advise the appointing court
       by brief and request that he be permitted to withdraw as counsel of
       record.
       4. Court-appointed counsel's conclusions and motion to withdraw as
       counsel of record should be transmitted forthwith to the indigent, and
       the indigent should be granted time to raise any points that he chooses,
       pro se.
       5. It is the duty of the Court of Appeals to fully examine the proceedings
       in the trial court, the brief of appointed counsel, the arguments pro se of
       the indigent, and then determine whether or not the appeal is wholly
       frivolous.
       ***
       7. Where the Court of Appeals determines that an indigent's appeal is
       wholly frivolous, the motion of court-appointed counsel to withdraw as
       counsel of record should be allowed, and the judgment of the trial court
       should be affirmed.

       {¶9}   Appellant entered a guilty plea in this case. When determining the
validity of a plea, this court must consider all of the relevant circumstances
surrounding it. State v. Trubee, 3d Dist. No. 9-0365, 2005-Ohio-552, ¶ 8, citing
Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 (1970). Pursuant to Crim.R.
11(C)(2), the trial court must follow a certain procedure for accepting guilty pleas in
felony cases. Before the court can accept a guilty plea to a felony charge, it must
conduct a colloquy with the defendant to determine that he understands the plea he
                                                                                   -3-


is entering and the rights he is voluntarily waiving. Crim.R. 11(C)(2). If the plea is
not knowing, intelligent, and voluntary, it has been obtained in violation of due
process and is void. State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-6806, ¶
11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709 (1969).
         {¶10} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of federal constitutional rights. Martinez, at ¶ 12. These rights include the
right against self-incrimination, the right to a jury trial, the right to confront one's
accusers, the right to compel witnesses to testify by compulsory process, and the
right to proof of guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c).
         {¶11} In this case, the trial court advised appellant of four of the constitutional
rights he was waiving by entering a guilty plea. Before accepting appellant's plea,
the trial court informed appellant that by pleading guilty he was waiving his right to
have the state prove his guilt beyond a reasonable doubt, his right to subpoena
witnesses, his right to cross examine witnesses, and his right to remain silent at trial.
(Plea Tr. 6). Appellant stated that he understood that he was giving up these rights
by pleading guilty. (Plea Tr. 6).
         {¶12} But the trial court failed to inform appellant that by pleading guilty he
was waiving his right to a jury trial. The trial court only advised appellant that he was
waiving his right to a “speedy and public trial.” (Plea Tr. 6).
         {¶13} The plea form does inform appellant that he is waiving his right to a jury
trial.   But this does not appear to constitute strict compliance with Crim.R.
11(C)(2)(c).    The trial court cannot rely on written pleas to convey the Crim.R.
11(C)(2)(c) rights being waived by pleading guilty. See State v. Strebler, 7th Dist. No.
08 MA 108, 2009-Ohio-1200, ¶ 36-37. The trial court’s failure to inform a defendant
of all five Crim.R. 11(C)(2)(c) rights being waived at the change of plea hearing is
reversible error. See State v. Dosch, 7th Dist. No. 08 MA 63, 2009-Ohio-6534.




         {¶14} For the reasons stated above, counsel’s motion to withdraw is granted.
                                                                             -4-


New counsel shall be appointed by this Court to conduct a complete review of this
case and file a brief in this matter. The State will then have 30 days within which to
respond.


Judge Gene Donofrio, concurs.
Judge Cheryl L. Waite, concurs.
Judge Carol Ann Robb, concurs.
