[Cite as State v. Davis, 2012-Ohio-4745.]




             IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :      C.A. CASE NO. 24927

vs.                                                :      T.C. CASE NO. 11-CR-592

DEMETRIUS DAVIS                                    :      (Criminal Appeal from the
                                                           Common Pleas Court)
        Defendant-Appellant                       :

                                              .........

                                            OPINION

                             Rendered on the 12th day of October, 2012.

                                              .........

Mathias H. Heck, Jr., Prosecuting Attorney, Johnna M. Shia, Assistant Prosecuting Attorney,
Atty. Reg. No. 0067685, 301 West Third Street, Suite 500, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

Carl Bryan, Atty. Reg. No. 0086838, 266 Xenia Avenue, Suite 225, Yellow Springs, Ohio 45387
       Attorney for Defendant-Appellant

                                              .........

GRADY, P.J.:

        {¶ 1}     In June 2011, Defendant Demetrius Davis pled guilty to one count of burglary, R.C.

2911.12(A)(2), a felony of the second degree.      In exchange for his plea, the State agreed to a

maximum sentence of six years. The trial court sentenced Defendant to five years in prison.

        {¶ 2}     Defendant filed a timely notice of appeal. His appellate counsel filed an Anders

brief, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he could

find no potentially meritorious issues for appellate review. We notified Defendant of his appellate
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counsel’s representations and afforded him ample time to file a pro se brief. None has been received.

This case is now before us for our independent review of the record. Penson v. Ohio, 488 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

        {¶ 3} Rather than identify possible issues for review, appellate counsel asks this Court to

determine whether the trial court “1) conducted a colloquy with Appellant substantially in compliance

with Crim.R. 11; and 2) whether the trial Court erred in accepting Appellant’s plea as knowing,

intelligent, and voluntary.”

        {¶ 4} An appellate court must determine whether the trial court record affirmatively

demonstrates that a defendant’s plea was knowing, intelligent, and voluntary; otherwise, the plea has

been obtained in violation of due process and is void. Boykin v. Alabama, 395 U.S. 238, 243, 89

S.Ct. 1709, 23 L.Ed.2d 274 (1969). A trial court’s compliance with Crim.R. 11(C)(2) in accepting a

defendant’s guilty or no contest plea portrays those qualities. State v. Fisher, 2d Dist. Montgomery

No. 23992, 2011-Ohio-629, ¶ 16.

        {¶ 5} Crim.R. 11(C)(2) provides:

        In felony cases the court may refuse to accept a plea of guilty or a plea of no contest,

        and shall not accept a plea of guilty or no contest without first addressing the

        defendant personally and doing all of the following:

        (a) Determining that the defendant is making the plea voluntarily with understanding

        of the nature of the charges and of the maximum penalty involved, and, if applicable,

        that the defendant is not eligible for probation or for the imposition of community

        control sanctions and the sentencing hearing.

        (b) Informing the defendant of and determining that the defendant understands the

        effect of the plea of guilty or no contest, and that the court, upon acceptance of the

        plea, may proceed with judgment and sentence.
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        (c) Informing the defendant and determining that the defendant understands that by

        the plea the defendant is waiving the rights to a jury trial, to confront witnesses against

        him or her, to have compulsory process for obtaining witnesses in the defendant’s

        favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt

        at a trial at which the defendant cannot be compelled to testify against himself or

        herself.

        {¶ 6}      The Ohio Supreme Court requires trial courts to strictly comply with Crim.R.

11(C)(2)(c), as it pertains to the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 31; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814

N.E.2d 51, ¶ 12. Trial courts need only substantially comply with Crim.R. 11(C)(2)(a) and (b), which

involve non-constitutional rights. State v. Nero, 56 Ohio St.3d 106, 109, 564 N.E.2d 474 (1990).

        {¶ 7} Substantial compliance means that, under the totality of the circumstances, the

defendant subjectively understands the both the implications of his plea and the rights that he waives

by entering that plea. State v. Miller, 2d Dist. Clark No. 08 CA 90, 2010-Ohio-4760, ¶ 8, citing State

v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15. Therefore, a defendant who

challenges his guilty plea on the ground that the trial court failed to substantially comply with Crim.R.

11(C)(2)(a) and (b) must show a prejudicial effect, which requires him to show that the plea would not

otherwise have been entered. Griggs, at ¶ 12.

        {¶ 8} At the outset of the plea hearing, the parties stated on the record that in exchange for

Defendant’s guilty plea, the State would agree to a maximum sentence of six years, rather than the

potential eight-year sentence that Defendant could have faced. The court advised Defendant that due

to his prior conviction R.C. 2929.13(F) required a mandatory sentence, which could not be reduced by

judicial release, earned credit or furlough. Defendant was not eligible for community control.
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         {¶ 9} The trial court cautioned Defendant that his plea could cause his parole on a prior

offense to be revoked. The court also advised Defendant that upon his release from prison, there

would be a mandatory three-year period of post-release control, and any violation of the terms of

post-release control could result in Defendant receiving an additional prison term of up to half of his

original sentence.

         {¶ 10} Defendant denied being under the influence of drugs or alcohol, and he stated that he

was able to read the plea form. The trial court confirmed that Defendant is an American citizen and

that he understood the rights he was waiving by pleading guilty. The State presented the facts upon

which the charge was based prior to Defendant entering his plea.

         {¶ 11} The record of the plea hearing in this case demonstrates that the trial court

meticulously complied with both Crim.R. 11(C)(2)(c) in advising Defendant of the constitutional

rights he would be giving up by entering a guilty plea, and with Crim.R. 11(C)(2)(a) and (b) in

advising Defendant about the non-constitutional matters including the nature of the charges, the effect

of Defendant’s guilty plea, and the maximum penalty involved.          Defendant’s plea was entered

knowingly, intelligently, and voluntarily. Therefore, Defendant’s assignments of error lack arguable

merit.

         {¶ 12} In addition to reviewing the possible issues for appeal raised by Defendant’s appellate

counsel, we have conducted an independent review of the trial court’s proceedings and find no error

having arguable merit. Accordingly, Defendant’s appeal is without merit, and the judgment of the

trial court will be affirmed.




Donovan, J., and Hall, J., concur.
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Copies mailed to:

Johnna M. Shia, Esq.
Carl Bryan, Esq.
Demetrius Davis
Hon. Barbara P. Gorman
