[Cite as State v. Tusin, 2011-Ohio-2629.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )          CASE NO. 10-MA-29
                                                 )
MICHAEL TUSIN,                                   )               OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 08CR277

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph Rivera
                                                 Jennifer McLaughlin
                                                 Assistant Prosecutors
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Jay Blackstone
                                                 6600 Summit Drive
                                                 Canfield, Ohio 44406




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                 Dated: May 26, 2011
[Cite as State v. Tusin, 2011-Ohio-2629.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Michael Tusin, appeals from a Mahoning County
Common Pleas Court judgment convicting him of theft following a guilty plea.
        {¶2}     On August 1, 2008, appellant was charged by way of bill of information
with one count of theft of firearms, a third-degree felony in violation of R.C.
2913.02(A)(1)(B)(1)(4).
        {¶3}     Pursuant to a plea agreement with plaintiff-appellee, the State of Ohio,
appellant entered a guilty plea to the charge. In exchange, the state agreed to stand
silent at sentencing and to agree to a joint recommendation that appellant be
released on his own recognizance pending sentencing. Additionally, appellant had
agreed to inform the police where the stolen firearms were so that they could be
recovered and returned to their owner. The trial court accepted appellant’s plea, set
the matter for sentencing, and released appellant on his own recognizance.
        {¶4}     Appellant failed to appear at sentencing and the court issued a warrant
for his arrest. A year later, he was arrested in Illinois and brought back to Ohio for
sentencing.       Because appellant had failed to comply with his part of the plea
agreement by failing to cooperate with the police in recovering the stolen firearms
and failing to appear at his initial sentencing hearing, the state did not stand silent at
sentencing and instead recommended a prison term.
        {¶5}     The trial court sentenced appellant to four years in prison and ordered
him to make restitution.
        {¶6}     Appellant filed a timely notice of appeal on February 8, 2010. Due to
appellant’s indigency, this court appointed counsel to represent him.
        {¶7}     Appellant's counsel has filed a no merit brief and motion to withdraw as
counsel pursuant to State v. Toney (1970), 23 Ohio App.2d 203. In Toney, this court
set out the procedure to be used when appointed counsel finds that an indigent
criminal defendant's appeal is frivolous.
        {¶8}     The Toney procedure is as follows:
        {¶9}     “3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is frivolous and
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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.
       {¶10} “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.
       {¶11} “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.
       {¶12} “ * * *
       {¶13} “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.” Id.
at the syllabus.
       {¶14} This court informed appellant that his counsel filed a Toney brief.
Appellant did not file a pro se brief.
       {¶15} Despite the fact that he filed a no-merit brief, appellant’s counsel has
raised three issues, which he then concludes lack merit. These issues encompass
those that may be raised on appeal when a guilty plea is entered.
       {¶16} The first issue is whether appellant entered his plea knowingly,
voluntarily, and intelligently.
       {¶17} When determining the voluntariness of a plea, this court must consider
all of the relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-03-
65, 2005-Ohio-552, at ¶8, citing Brady v. United States (1970), 397 U.S. 742.
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 is entering and the rights he is voluntarily waiving. Crim.R.
11(C)(2). If the plea is not knowing and voluntary, it has been obtained in violation of
                                                                                  -3-


due process and is void. State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-
6806, at ¶11, citing Boykin v. Alabama (1969), 395 U.S. 238, 243.
       {¶18} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of federal constitutional rights. Martinez, 7th Dist. No. 03-MA-196, 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).
       {¶19} A trial court need only substantially comply with Crim.R. 11(C)(2)
pertaining to non-constitutional rights such as informing the defendant of “the nature
of the charges with an understanding of the law in relation to the facts, the maximum
penalty, and that after entering a guilty plea or a no contest plea, the court may
proceed to judgment and sentence.”           Martinez, supra, at ¶12, citing Crim.R.
11(C)(2)(a)(b).
       {¶20} The trial court strictly complied with Crim.R. 11(C)(2)(c) in advising
appellant of his constitutional rights. At the plea hearing, the court informed appellant
that he had the right to a jury trial, the right to require the state to prove his guilt
beyond a reasonable doubt, the right to cross examine all witnesses, the right to
subpoena witnesses to testify on his behalf, and the right against self-incrimination.
(Plea Tr. 5-7). Appellant stated that he understood all of these rights. (Plea Tr. 5-7).
       {¶21} Furthermore,      the   court    substantially   complied    with     Crim.R.
11(C)(2)(a)(b) in advising appellant of his non-constitutional rights.           The court
informed appellant that he was charged with one count of theft. (Plea Tr. 4-5). It also
advised him that after accepting his plea, it could immediately proceed to sentencing.
(Plea Tr. 7-8). And finally the court informed him that he faced a maximum prison
term of five years and a maximum fine of $10,000.             (Plea Tr. 7-8).    Appellant
acknowledged that he understood these matters. (Plea Tr. 5, 7-8).
       {¶22} Based on the court’s compliance with Crim.R. 11(C)(2), appellant
entered his plea knowingly, voluntarily, and intelligently.
                                                                              -4-


       {¶23} The second issue is whether appellant’s sentence is contrary to law or
whether the trial court abused its discretion in sentencing him.
       {¶24} Our review of felony sentences is now a limited, two-fold approach, as
outlined in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-
4912, at ¶26. First, we must examine the sentence to determine if it is “clearly and
convincingly contrary to law.” Id. (O'Conner, J., plurality opinion). In examining “all
applicable rules and statutes,” the sentencing court must consider R.C. 2929.11 and
R.C. 2929.12. Id. at ¶¶ 13-14 (O'Conner, J., plurality opinion). If the sentence is
clearly and convincingly not contrary to law, the court's discretion in selecting a
sentence within the permissible statutory range is subject to review for abuse of
discretion. Id. at ¶17 (O'Conner, J., plurality opinion). Thus, we apply an abuse of
discretion standard to determine whether the sentence satisfies R.C. 2929.11 and
R.C. 2929.12. Id. at ¶17 (O'Connor, J., plurality opinion).
       {¶25} Appellant was convicted of a third-degree felony.         The applicable
sentences for a third-degree felony are one, two, three, four, or five years. R.C.
2929.14(A)(3). The trial court sentenced him to four years. So appellant’s sentence
was within the statutory range.
       {¶26} Furthermore, the trial court stated in its sentencing judgment entry that
it “considered the record, oral statements, as well as the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11, and has balanced the
seriousness and recidivism factors [under] Ohio Revised Code Section 2929.12.”
       {¶27} Thus, appellant’s sentence is not contrary to law.
       {¶28} Likewise, the trial court did not abuse its discretion in sentencing
appellant. The trial court noted that the presentence investigation report made a
recommendation of a prison term before appellant failed to appear for sentencing.
(Sentencing Tr. 15).      The court also referenced appellant’s criminal history.
(Sentencing Tr. 16). And the court indicated that it did not believe in appellant’s
expressed remorse because he failed to appear for sentencing and had to be
brought back to court by means of extradition. (Tr. Sentencing Tr. 16). Finally, the
                                                                              -5-


court mentioned that if appellant helped the police recover the stolen weapons, it
might consider judicial release. (Sentencing Tr. 17-18).
      {¶29} Hence, the trial court considered various relevant factors in sentencing
appellant within the applicable range and did not abuse its discretion.
      {¶30} The third issue is whether appellant’s counsel was ineffective.
      {¶31} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio
St.3d 136, at paragraph two of the syllabus. Second, appellant must demonstrate
that he was prejudiced by counsel's performance. Id. To show that he has been
prejudiced by counsel's deficient performance, appellant must prove that, but for
counsel's errors, the result of the trial would have been different.       Bradley, at
paragraph three of the syllabus.
      {¶32} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun (1999), 86 Ohio St.3d 279, 289. In Ohio, a licensed
attorney is presumed competent. Id.
      {¶33} At the plea hearing, appellant told the court that he was completely
satisfied with his counsel’s representation. (Plea Tr. 4). Counsel negotiated a plea
deal with the state. And the trial court even agreed to counsel’s and the state’s
recommendation to release appellant on his own recognizance pending his
sentencing hearing. At sentencing, counsel apologized for appellant failing to appear
and offered an explanation to the court regarding appellant’s pregnant girlfriend who
lived in Chicago with their two children and appellant’s attempt to support them.
(Sentencing Tr. 10-12). Counsel also requested that the court sentence appellant to
a minimum sentence so that he could soon return to Chicago to provide support for
his children. (Sentencing Tr. 11-12).
      {¶34} Nothing in the record demonstrates ineffectiveness of counsel and no
errors on counsel’s part are apparent.
                                                                      -6-


      {¶35} In sum, no meritorious appealable issues exist.
      {¶36} For the reasons stated above, the trial court's judgment is hereby
affirmed and counsel's motion to withdraw is granted.


Waite, P.J., concurs.

DeGenaro, J., concurs.
