[Cite as State v. Jones, 2016-Ohio-2924.]



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

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )           CASE NO. 14 MA 0125
V.                                               )
                                                 )                    OPINION
ARTHUR JONES,                                    )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 2008CR01446

JUDGMENT:                                        Affirmed
                                                 Motion to Withdraw Granted
APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 West Boardman Street, 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney John B. Juhasz
                                                 7081 West Boulevard , Suite No. 4
                                                 Youngstown, Ohio 44512-4362



JUDGES:

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


                                                 Dated: May 4, 2016
[Cite as State v. Jones, 2016-Ohio-2924.]
DONOFRIO, P.J.

        {¶1}     Defendant-Appellant, Arthur D. Jones, appeals his convictions and
sentences entered in the Mahoning County Common Pleas Court following his guilty
pleas to three counts of knowingly selling or offering to sell crack cocaine.
        {¶2}     On December 4, 2008, a Mahoning County grand jury indicted Jones
on three counts: count one, knowingly selling or offering to sell crack cocaine in an
amount equal to or greater than twenty-five grams in violation of R.C.
2925.03(A)(1)(C)(4)(f); and counts two and three, knowingly selling or offering to sell
crack cocaine in an amount equal to or greater than ten grams but less than twenty-
five grams, committed in the vicinity of a school or within 1,000 feet of the boundaries
of any school premises, in violation of R.C. 2925.03(A)(1)(C)(4)(e). All three are
felonies of the first degree.
        {¶3}     On December 16, 2008, pursuant to a Crim.R.11 agreement, Jones
pleaded guilty to the three counts in the indictment. The State agreed to recommend,
at sentencing, a term of ten years. The State also moved that the plea be taken
under seal. The trial court granted the motion. In return for possible assistance in
further investigations, the State, if it was satisfied with what Jones provided, would
then recommend at sentencing that the three counts be amended to make them third
degree felonies which would make Jones eligible for probation, should the trial court
be inclined to grant probation. As is explained in appointed appellate counsel’s brief,
during the plea hearing the trial court spent much time explaining to Jones that there
was a possibility of much disagreement as to the extent of Jones’s potential
cooperation and that it would be entirely up to the trial court to decide what sentence
to impose. Neither appointed appellate counsel nor Jones raises the perceived extent
of Jones’s cooperation as an issue here.
        {¶4}     Jones’s sentencing took place on February 25, 2009. At that time, the
State recommended a ten year sentence. The trial court sentenced Jones to ten
years on each of the three counts, to be served concurrently. We granted Jones’s
motion to file a delayed appeal on November 3, 2014.
        {¶5}     On November 12, 2014, Jones filed a motion for appointment of
                                                                              -2-


counsel which was granted on December 2, 2014. Subsequently, it became clear that
the plea agreement, plea transcript, presentence investigation, and sentencing
transcript were all sealed. Appointed appellate counsel and this court have now had
an opportunity to review the sealed items.
      {¶6}   On July 31, 2015, appointed appellate counsel filed a motion to
withdraw as counsel and a brief pursuant to State v. Toney, 23 Ohio App.2d 203, 262
N.E. 419 (7th Dist. 1970) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967). 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.

State v. Messner, 7th Dist. No. 12 MA 127, 2013-Ohio-4166, ¶ 7.
                                                                              -3-


       {¶7}   Pursuant to Toney, on August 19, 2015, this court filed a judgment
entry informing Jones that appointed appellate counsel filed a motion to withdraw and
a no merit brief and affording Jones thirty days in which to file his own written brief
raising any claims of error Jones wished to raise.
       {¶8}   On September 1, 2015, Jones filed a motion to file appellant’s brief and
memorandum in support, attaching to it his appellant’s brief. We now address the two
issues presented by appointed appellate counsel as well as the alleged errors
identified by Jones in his pro se brief.
       {¶9}   Appellant’s appointed counsel identifies two potential issues for appeal:
1) whether Jones’s guilty plea was entered into pursuant to Boykin v. Alabama, 395
U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and Johnson v. Zerbst 304 U.S.
458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and 2) whether Jones received
effective assistance of trial counsel.
       {¶10} Jones, in his pro se brief, argues that he never signed a plea
agreement which is, according to Jones, required by Crim.R.11 (C)(2), and, although
he was informed of the mandatory prison time during his plea hearing he never
signed a “plea form” reflecting the same.
       {¶11} The first potential issue identified by appointed appellate counsel is
whether Jones’s guilty plea was made pursuant to Boykin and Zerbst. In other words,
since entering a guilty plea involves the relinquishment of both constitutional and
non-constitutional rights, we must determine if his plea of guilty was made knowingly,
voluntarily, and intelligently. State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-
6806, ¶ 11, citing Boykin at 243. The United States Supreme Court has explained
“that in order for a reviewing court to determine whether a guilty plea was voluntary,
the United States Constitution requires the record to show that the defendant
voluntarily and knowingly waived his constitutional rights.” State v. Nero, 56 Ohio
St.3d 106, 107, 564 N.E.2d 474 (1990) citing Boykin at 242-243.
       {¶12} Crim.R.11(C) “was adopted in order to facilitate a more accurate
determination of the voluntariness of a defendant’s plea by ensuring an adequate
                                                                                   -4-


record for review.” Nero at 107.
       {¶13} Crim.R.11(C)(2)(c) considers the constitutional rights a defendant
waives by entering a guilty plea.        With regard to those rights, this Court has
explained:

       A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally
       advise a defendant before accepting a felony plea that the plea waives
       (1) the right to a jury trial, (2) the right to confront one's accusers, (3)
       the right to compulsory process to obtain witnesses, (4) the right to
       require the state to prove guilt beyond a reasonable doubt, and (5) the
       privilege against compulsory self-incrimination. When a trial court fails
       to strictly comply with this duty, the defendant's plea is invalid. (Crim.R.
       11(C)(2)(c), applied.)

State v. Elmore, 7th Dist. No. 08-JE-36, 2009-Ohio-6400, ¶ 9 quoting State v. Veney,
120 Ohio. St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus.
       {¶14} Here, with regard to Jones’s constitutional rights, the trial court
specifically explained to Jones that he had the right to a jury trial (Plea Tr. 7), he had
the right to confront his accusers (Plea Tr. 8-9), he had the right to compulsory
process to obtain witnesses (Plea Tr. 9), that he had the right to require the State to
prove his guilt beyond a reasonable doubt with regard to each and every element of
the three counts (Plea Tr. 7, 8), and he had a privilege against compulsory self-
incrimination (Plea Tr. 9). Thus, it appears that the trial court strictly complied with all
requirements regarding Jones’s constitutional rights and the provisions of
Crim.R.11(C)(2)(c).
       {¶15} The non-constitutional rights of a defendant are considered in
Crim.R.11(C)(2)(a)(b). Those rights are that 1) the defendant must be informed of the
nature of the charges, 2) the defendant must be informed of the maximum penalty
involved, which includes advisement on post-release control, if it is applicable, 3) the
defendant must be informed, if applicable, that he is not eligible for probation or the
                                                                                  -5-


imposition of community control sanctions, and 4) the defendant must be informed
that after entering a guilty plea or a no contest plea, the court may proceed to
judgment and sentence. State v. Freeman, 7th Dist. No. 14 MA 25, 2014-Ohio-5725,
¶ 19. See also State v. Wright, 7th Dist. No. 09 MA 1, 2009-Ohio-4636, ¶ 13, and
Veney at ¶ 10-13. With regard to what is required when addressing the non-
constitutional rights under Crim.R.11, the Ohio Supreme Court has explained:

      Literal compliance with Crim.R.11 is certainly the preferred practice, but
      the fact that the trial judge did not do so does not require vacation of the
      defendant’s guilty plea if the reviewing court determines that there was
      substantial compliance.

Nero at 108. The High Court continued:
      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.

Nero at 108.
      {¶16} With regard to Jones’s non-constitutional rights, the trial court explained
to Jones that the three counts against him involved trafficking in cocaine, felonies of
the first degree (Plea Tr. 7-8); he could go to prison for up to 10 years on each count,
for a total of 30 years; that there is a mandatory minimum sentence on each count of
three years, to which Jones responded that he understood (Plea Tr. 10; 12-13); if the
trial court accepted the guilty plea it could proceed to judgment and sentencing (Plea
Tr. 9); that if Jones was found guilty at trial he would have the right to appeal and if
he could not afford an attorney for his appeal one would be appointed for him (Plea
Tr. 9); that his plea of guilty was a complete admission of the three charges against
him (Plea Tr. 10); that there was a fine that could go up to $20,000.00 with a
minimum of $10,000.00 on each count; that if Jones went to prison on the first
degree felonies there would be a mandatory period of post-release control that could
                                                                                   -6-


last up to five years (Plea Tr. 14); and Jones told the trial court that he was satisfied
with his legal representation and advice from counsel and that counsel had done all
that Jones had asked him to do in his defense (Plea Tr. 6-7). It seems that the trial
court substantially complied in advising Jones of all of his non-constitutional rights
and the provisions of Crim.R.11(C)(2)(a)(b). Based on the above, we conclude that
Jones entered his plea knowingly, voluntarily, and intelligently.
       {¶17} The second potential issue identified by appointed appellate counsel is
whether or not there was ineffectiveness of counsel. In order to establish that counsel
was ineffective, Jones must show not only that counsel’s performance was deficient,
but that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Absent a showing that
any deficient performance by counsel resulted in prejudice to the defendant, a
conviction will not be reversed. In State v. Dickinson, 7th Dist. No. 03 CO 52, 2004-
Ohio-6373, ¶ 13, this Court observed:

       Furthermore, even if counsel's performance at the sentencing hearing
       was deficient, the conviction cannot be reversed absent a determination
       that Appellant was prejudiced. State v. Bradley (1989), 42 Ohio St.3d
       136, 142, 538 N.E.2d 373. “The defendant must thus show that there is
       reasonable probability that but for the serious error, the result of the trial
       would have been different.” State v. Baker, 7th Dist. No. 03 CO 24,
       2003-Ohio-7008, ¶ 13; (citation omitted).

There is a presumption that a licensed attorney is competent. Dickinson, ¶ 11. The
appellant bears the burden of proving ineffectiveness of counsel. Dickinson, ¶ 9.
       {¶18} Here, Jones was indicted on December 4, 2008. He pled guilty on
December 16, 2008. Despite this timeline, there is nothing to suggest that trial
counsel’s performance was defective. The reasons for the plea agreement were
stated at length when Jones pled guilty (See Plea Tr. 2-6; 11-15). If Jones was
                                                                             -7-


helpful in an ongoing investigation, there was the possibility that the charges would
be reduced. In light of these and other factors, the plea agreement was sealed. At the
plea hearing, the following exchange took place:

      THE COURT: All right. My first question, I assume you are completely
      satisfied with the representation and the advice that you have received
      from Attorney Laczko?
      THE DEFENDANT: Yes, sir.
      THE COURT: And he’s done everything you’ve asked him to do in your
      defense?
      THE DEFENDANT: Yes, sir.

(Plea Tr. 6-7). The exchange continues:

      THE COURT: Okay. Attorney Laczko’s in a difficult situation, because
      as he indicated to me, this case was just presented a week ago. He
      gets a phone call from the court to come over here last week and meet
      with you and the officer, and certainly you know more about this case
      than he does. He’s in a situation normally where he’s going to ask for
      some time from me to evaluate the case to effectively represent you. By
      virtue of this plea today, you’re also saying I’m satisfied with what
      Attorney Laczko has done, and I’m ready to proceed and give up any
      rights, knowing what the sentences can be. Do you understand all of
      that?
      THE DEFENDANT: Yes, sir.

(Plea Tr. 13-14). At the sentencing hearing the observation was made that Jones was
fortunate to have escaped prosecution by the United States in this matter and that,
based on Jones’s criminal history, this arrangement probably saved him from an
additional ten years imprisonment. (Sent. Tr. pp. 5-7).
      {¶19} In addition to the above, Jones filed his own brief after receiving
                                                                                 -8-


notification from the court that appointed appellate counsel could find no assignment
of error. In his own pro se brief, Jones makes no reference to any possibility that
counsel was ineffective in any way. Thus, any claim of ineffective assistance of
counsel is wholly frivolous.
       {¶20} The next issue this court must address is Jones’s sentence.
       {¶21} R.C. 2953.08(G) provides that appellate courts review felony sentences
to determine if they are contrary to law. State v. Marcum, Slip Opinion No. 2016-
Ohio-1002. “[A]n 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. at ¶ 23.
Pursuant to Marcum, we no longer review felony sentences for abuse of discretion.
Id. at ¶ 1 (“an appellate court need not apply the test set out by the plurality in State
v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124”).
       {¶22} In determining the appropriate sentence, the trial court is directed to
consider the purposes and principles of sentencing as espoused in R.C. 2929.11, the
seriousness and recidivism factors enumerated in R.C. 2929.12, and the permissible
statutory ranges as set forth in R.C. 2929.14.
       {¶23} Jones was convicted of three first-degree felonies. The possible
sentences for first-degree felonies at the time were three, four, five, six, seven, eight,
nine, or ten years. Former R.C. 2929.14(A)(1). The trial court sentenced Jones to ten
years on each count to be served concurrently. Thus, Jones’s sentence was within
the applicable range.
       {¶24} In its sentencing entry, the trial court stated that it “considered the
record, oral statements, any victim impact statements and Presentence Investigation
prepared, as well as the principles and purposes of sentencing under R.C. 2929.11,
and has balanced the seriousness and recidivism factors under R.C. 2929.12.”
       {¶25} The record of the sentencing hearing reflects the same. At the
sentencing hearing, the trial court explained that it had read the pre-sentence
investigation, that it understood that sometimes people resort to dealing to support a
                                                                                  -9-


habit, that the record reflected some addiction and treatment in the past which may
have impacted the events of this case, but that the offenses here related to more
than personal use. The trial court reflected on Jones’s involvement with the
Department of Youth Services, prior prison and county jail time, prior incarceration for
possession and preparation for sale, parole violation, and the fact that despite all of
this, no federal charges were ever filed which probably saved Jones ten years
imprisonment. (Sent. Tr. 5-7). The trial court stated that “considering the factors
contained in Section 2929 of the Revised Code, I will find that a nonprison sanction
would demean the seriousness of the offense, that it would not adequately protect
the public or punish you.” (Sent. Tr. 7). The trial court told Jones that Jones posed
the “greatest likelihood of committing future crimes.” (Sent. Tr. 7). The trial court
finished by imposing the sentence recommended by the State and explaining post-
release control. (Sent. Tr. 7-9).
       {¶26} The sentences were within the range of possible sentences, the trial
court considered R.C. 2929.11 and R.C. 2929.12, and the sentences are not clearly
and convincingly contrary to law.
       {¶27} Lastly, this court must consider the pro se brief filed by Jones after he
was notified that appointed appellate counsel filed a no-merit brief and moved to
withdraw as counsel. Jones first complains that he never signed a “plea sheet” or
“plea form” which, according to Jones, is required by Crim.R.11. In fact, the record
reflects that on December 16, 2008, Jones signed a “Plea of Guilty Pursuant to
Crim.R.11(F).” The plea agreement, which is under seal as noted above, was also
signed by his trial attorney and an assistant county prosecutor. The written plea
agreement reflected, inter alia, Jones’s representations that he understood the nature
of the charges, was satisfied with counsel, that he waived certain constitutional and
statutory rights including the right to a jury trial, to confront witnesses against him, to
have compulsory process to obtain witnesses in his favor, to require the State to
prove all the elements of the offenses charged beyond a reasonable doubt, that he
could not be compelled to testify against himself, that he would have a right to appeal
                                                                                 - 10 -


and that a lawyer would be appointed to represent him. Most importantly, perhaps,
the agreement has a page titled “MAXIMUM PENALTY” which reflects a three year
minimum mandatory sentence with regard to each of the three counts in addition to
the maximum possible time of incarceration. The written agreement reflects that the
State agreed to recommend ten years in prison “or as agreed to”, which apparently
reflects the possible amendments per the sealed plea agreement. The agreement
further reflects that Jones understood that he was not eligible for probation or
community control, and that the court was required to impose a prison sanction, as
well as other items not now at issue.
       {¶28} Jones also complains that at the sentencing hearing, the trial judge did
not indicate that his ten year sentence was mandatory. As illustrated above, the ten
year sentence was not mandatory. The mandatory minimum sentence was three
years. Ten years was the maximum possible sentence. As also illustrated above, the
mandatory sentence was explained during the plea hearing and is included in the
written Crim.R.11 plea agreement signed by Jones.
       {¶29} Thus, after conducting an independent review of the proceedings in the
trial court, as well as the issues raised by Jones in his pro se brief, we find that there
are no meritorious issues for review.
       {¶30} On consideration of appointed appellate counsel’s no merit brief,
Appellant’s pro se brief, and our review of the record, we find that there is no merit in
any assignment of error and that an appeal would be wholly frivolous. Accordingly,
the trial court’s judgment is affirmed and appointed appellate counsel’s motion to
withdraw is granted.

Waite, J., concurs.

Robb, J., concurs.
