[Cite as State v. Perry, 2017-Ohio-944.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO                                    )    CASE NO. 15 MA 0148
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )    OPINION
                                                 )
WAYNE PERRY                                      )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                             Criminal Appeal from the Court of
                                                      Common Pleas of Mahoning County,
                                                      Ohio
                                                      Case No. 14 CR 619

JUDGMENT:                                             Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                               Atty. Paul J. Gains
                                                      Mahoning County Prosecutor
                                                      Atty. Ralph M. Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 West Boardman Street, 6th Floor
                                                      Youngstown, Ohio 44503

For Defendant-Appellant:                              Atty. Ross T. Smith
                                                      Huntington Bank Building
                                                      26 Market Street
                                                      Suite 610
                                                      Youngstown, Ohio 44503


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                      Dated: March 15, 2017
[Cite as State v. Perry, 2017-Ohio-944.]
WAITE, J.


        {¶1}     Appellant Wayne Perry appeals from his convictions and sentence

following a Crim.R. 11 plea agreement he entered into in the Mahoning County

Common Pleas Court. Appellant's counsel filed a no merit brief requesting leave to

withdraw. A complete review of the case reveals no appealable issues. Accordingly,

appointed counsel's motion to withdraw is granted and Appellant's convictions and

sentence are affirmed.

                                   Factual and Procedural History

        {¶2}     Appellant was charged with one count of receiving stolen property, a

felony of the fifth degree in violation of R.C. 2913.51(A), and one count of misuse of a

credit card, a felony of the fifth degree in violation of R.C. 2913.21(A)(1). The state

later dismissed the misuse charge.

        {¶3}     On April 14, 2015, the trial court held a plea hearing where Appellant

pleaded guilty to the sole charge in the indictment. The state agreed to recommend

the following sentence: community control with local incarceration, restitution, and a

no contact order with the victims. The state also agreed to stand silent as to judicial

release.     On June 3, 2015, Appellant was arrested and charged with felonious

assault in Trumbull County.

        {¶4}     On August 3, 2015, the trial court held a sentencing hearing. Based on

Appellant’s pending criminal charge, the state changed its recommendation in this

matter to one year of incarceration and restitution.            The trial court noted that

Appellant had not yet been convicted of felonious assault, but agreed with the state’s

recommendation based on Appellant’s lengthy criminal record. The court sentenced
                                                                                     -2-

him to one year of incarceration and ordered him to pay restitution to the victims.

The court suspended the fines and costs. Appellant timely appeals.

                                    No Merit Brief

      {¶5}    Based on a review of this matter, appellate counsel seeks to withdraw

after finding no potentially meritorious arguments for appeal. This filing is known as a

no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.E.2d 493 (1967). In our district, it is referred to as a Toney brief. See

State v. Toney, 23 Ohio App.2d 203, 262 N.E. 2d 419 (7th Dist.1970).

      {¶6}    In Toney, we established the procedure to be used when appellate

counsel wishes to withdraw from a case deemed a frivolous appeal.

      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
                                                                                     -3-

       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.

Id. at syllabus.

       {¶7}    On February 22, 2016, appellate counsel filed the no merit brief in this

matter. On March 2, 2016, we filed a judgment entry informing Appellant that his

counsel had filed a no merit brief and giving him thirty days to file his own brief.

Appellant failed to file a brief in this matter. Accordingly, we must independently

examine the record to determine whether there are any potentially meritorious issues

in this matter.

                                         Plea Hearing

       {¶8}    A plea of guilty or no contest must be made knowingly, intelligently and

voluntarily for it to be valid and enforceable. State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. In order to ensure that a plea in a felony

case is knowing, intelligent and voluntary, Crim.R. 11(C)(2) requires the trial judge to

address the defendant personally to review the rights that are being waived and to

discuss the consequences of the plea.
                                                                                      -4-

       {¶9}   Crim.R. 11(C)(2)(c) requires the court to review five constitutional rights

that are waived when entering a guilty or no contest plea in a felony case: the right

to a jury trial, the right to confront one's accusers, the privilege against compulsory

self-incrimination, the right to compulsory process to obtain witnesses, and the right

to require the state to prove guilt beyond a reasonable doubt. State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. A trial court must strictly

comply with Crim.R. 11(C)(2)(c) when advising the defendant of the constitutional

rights that are being waived in entering a felony plea. Id. at syllabus. Prejudice is

presumed if the court fails to inform the defendant of any of the constitutional rights

listed in Crim.R. 11(C)(2)(c). Id. at ¶ 29.

       {¶10} A defendant must also be informed of his nonconstitutional rights prior

to entering a guilty plea, which include an understanding of the nature of the charges

with an explanation 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.      Crim.R. 11(C)(2)(a)(b).    The nonconstitutional requirements of

Crim.R. 11 are subject to review for substantial compliance rather than strict

compliance. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51,

¶ 11-12. “Substantial compliance means that under the totality of the circumstances,

the defendant subjectively understands the implications of his plea and the rights he

is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Further,

“failure to comply with nonconstitutional rights will not invalidate a plea unless the

defendant thereby suffered prejudice.” Griggs, supra, at ¶ 12.
                                                                                         -5-

       {¶11} Here, the record demonstrates that the trial court strictly complied when

advising Appellant of his constitutional rights. In his written plea agreement and at

the plea hearing, Appellant was advised that he would be giving up his right to appeal

the following rights: (1) the right to a jury trial; (2) the right to confront the witnesses

against him; (3) the right to obtain witnesses in his favor; (4) the state's burden to

prove the case against him beyond a reasonable doubt at trial; and (5) the right

against self-incrimination. (4/14/15 Plea Hrg. Tr., pp. 4-6.) Appellant indicated on the

record that he understood each of these rights and that he would waive these as a

result of his plea. The record is devoid of any evidence that Appellant was impaired

in any way from understanding the process.

       {¶12} The record similarly demonstrates that the trial court at least

substantially complied in advising Appellant of his nonconstitutional rights. He was

advised of the charges against him, which included one count of receiving stolen

property. He was informed that he would be subject to a maximum penalty of one

year in prison and a fine of $2,500. The trial court advised him that he was eligible

for community control sanctions. The court explained that, on release from prison, he

could be subject to a three-year period of postrelease control. The court further

explained the consequences of violating postrelease control.             Finally, he was

informed that the court could proceed directly to sentencing after accepting his plea.

Appellant acknowledged that he would be giving up these rights as a result of his

plea. Again, there is nothing within the record to suggest Appellant was unable to
                                                                                    -6-

understand any of this discussion.     Accordingly, there are no appealable issues

regarding Appellant’s guilty plea.

                                      Sentencing

       {¶13} An appellate court is permitted to review a felony sentence to determine

if it is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 23. Pursuant to Marcum, “an appellate court may vacate or modify

any sentence that is not clearly and convincingly contrary to law only if the appellate

court finds by clear and convincing evidence that the record does not support the

sentence.” Id.

       {¶14} When determining a sentence, a trial court must consider the purposes

and principles of sentencing in accordance with R.C. 2929.11, the seriousness and

recidivism factors within R.C. 2929.12, and the proper statutory ranges set forth

within R.C. 2929.14.

       {¶15} While the trial court expressly stated that it had considered the

principles of R.C. 2929.11 and the seriousness and recidivism factors of R.C.

2929.12 within its sentencing entry, it did not do so at the sentencing hearing.

However, such failure is not necessarily error.

       [R]eversal is not automatic where the sentencing court fails to provide

       reasons for its sentence or fails to state at sentencing or in a form

       judgment entry, “after considering R.C. 2929.11 and 2929.12”.        We

       return to the Adams rule that a silent record raises the rebuttable

       presumption that the sentencing court considered the proper factors.
                                                                                       -7-

       We hereby adopt the Second District's statement that where the trial

       court's sentence falls within the statutory limits, “it will be presumed that

       the trial court considered the relevant factors in the absence of an

       affirmative showing that it failed to do so” unless the sentence is

       “strikingly inconsistent” with the applicable factors. (Emphasis deleted.)

State v. Grillon, 7th Dist. No. 10 CO 30, 2012-Ohio-893, ¶ 131 citing State v. James,

7th Dist. No. 07-CO-47, 2009-Ohio-4392, ¶ 50.

       {¶16} Accordingly, we begin with a presumption that the trial court considered

R.C. 2929.11 and R.C. 2929.12, even in the absence of specific language. Although

there is no reference to either statute within the sentencing hearing transcripts, there

is nothing within the record to suggest that the court failed to consider these statutes.

At the sentencing hearing, the trial court stated: “quite frankly, looking at his juvenile

and adult convictions I don’t believe that [Appellant] is amenable to a community

control sanction.” (8/3/15 Sent. Hrg. Tr., p. 6.) It is evident from this statement that

the trial court considered the appropriate statutes.

       {¶17} As to the statutory guidelines, the maximum penalty for a felony of the

fifth degree is one year of incarceration. As Appellant was sentenced to one year of

incarceration, the trial court's sentence is within the permissible statutory range.

There is nothing within this record to provide clear and convincing evidence that the

record does not support the sentence. As such, there are no appealable issues

concerning Appellant's sentence.

                                       Conclusion
                                                                                   -8-

       {¶18} Appellate counsel seeks to withdraw as a review of the record did not

reveal any potentially meritorious arguments. For the reasons provided, this record

reveals there are no potentially meritorious arguments.         Accordingly, counsel’s

motion to withdraw is granted and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.
