[Cite as State v. Reed, 2017-Ohio-7001.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 27215
                                                 :
 v.                                              :   Trial Court Case No. 16-CR-142
                                                 :
 JERRY REED, JR.                                 :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                              Rendered on the 28th day of July, 2017.

                                            ...........

MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

JENNIFER MARIETTA, Atty. Reg. No. 0089642, 74 North Orange Street, Suite 105,
Xenia, Ohio, 45385
       Attorney for Defendant-Appellant

JERRY REED, JR., #724-163, Allen Correctional Institution, P.O. Box 4501, Lima, Ohio
45802
      Defendant-Appellant

                                           .............
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HALL, P.J.

       {¶ 1} Jerry Reed, Jr. appeals from his conviction and sentence following a guilty

plea to one count of third-degree felony domestic violence.

       {¶ 2} Reed’s appointed appellate counsel has filed a brief under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of

any non-frivolous issues for review. Counsel has identified potential issues concerning

(1) the trial court’s compliance with Crim.R. 11 and (2) the length of Reed’s prison

sentence. Counsel has concluded, however, that neither issue possesses arguable merit.

Reed has filed a pro se brief raising one assignment of error. He contends the trial court

erred in accepting his guilty plea to domestic violence as a third-degree felony rather than

as a misdemeanor or a fourth-degree felony.

       {¶ 3} The record reflects that Reed was indicted on one count of domestic violence

in February 2016. The indictment charged the offense as a third-degree felony, and it

referenced two prior domestic-violence convictions. (Doc. #3). On March 16, 2016, Reed

pled guilty to the charge. The written plea form he signed stated that he was pleading

guilty to “Domestic Violence (knowingly) (2 priors), in violation of 2929.25(A); a Felony of

the Third Degree.” (Doc. #14). The form also referenced a negotiated agreement set forth

on the record. (Id.). That agreement was addressed during a plea hearing held the same

day. It involved the promise of a 24-month prison sentence. (Tr. at 4, 6). During the

hearing, the trial court engaged in a Crim.R. 11 colloquy with Reed. After assuring itself

that he had been properly advised and that he was entering his plea knowingly,

intelligently, and voluntarily, the trial court accepted the plea. Reed waived a PSI report,

and the case proceeded to sentencing on March 23, 2016. The trial court imposed the
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promised 24-month prison term. It also imposed court costs, as it had told Reed it would

do, but declined to impose any fine. Finally, the trial court advised Reed that he would be

on post-release control for three years and explained the potential consequences of a

violation. The trial court’s March 24, 2016 termination entry accurately reflects the

sentence imposed. (Doc. #17).

       {¶ 4} On appeal, Reed’s counsel first asks us to consider whether the prosecutor’s

recitation of Reed’s two prior domestic-violence convictions during the plea hearing,

combined with Reed’s oral agreement with that recitation and his signature on the plea

form, established that he understood the nature of the charge, particularly the enhanced

felony status due to the prior convictions. Counsel also asks us to consider whether

Reed’s 24-month prison sentence was proper. Upon review, we see no non-frivolous

issue with regard to either of the foregoing matters.

       {¶ 5} Under Crim.R. 11(C)(2)(a), the trial court was obligated to determine that

Reed understood the nature of the charge against him and the maximum penalty

involved. The record reflects that the trial court satisfied this requirement. During the plea

hearing, the prosecutor stated that Reed knowingly had caused or attempted to cause

physical harm to a named family or household member. The prosecutor stated that the

offense was a third-degree felony based on Reed’s two prior domestic-violence

convictions. (Tr. at 7). Reed indicated his understanding that this was “the nature of the

offense” to which he was pleading guilty. (Id.). The trial court proceeded to explain the

potential penalties for a third-degree felony, with the maximum penalty being 36 months

in prison and a $10,000 fine. The trial court also told Reed that it would impose a 24-

month term and would not impose a fine, but it would impose court costs. (Id. at 7-8).
                                                                                         -4-


Finally, the trial court explained Reed’s post-release control obligations and the potential

consequences of a violation. (Id. at 7-9). Again, Reed indicated his understanding of these

things. (Id.). Upon review, we agree with appellate counsel’s assessment that no non-

frivolous issue exists regarding Reed’s understanding of the nature of the charge against

him.

       {¶ 6} We also see no non-frivolous issue with regard to Reed’s sentence. His 24-

month prison term is within the authorized statutory range and is not contrary to law. Reed

also pled guilty in exchange for a promise of the sentence he received. (Plea Tr. at 4, 6).

Under these circumstances, there is no basis to challenge his sentence.

       {¶ 7} We turn next to Reed’s pro se brief. He argues that domestic violence under

R.C. 2919.25(A) is a misdemeanor or, with one prior violation, is a fourth-degree felony.

That being so, he contends the trial court erred in convicting and sentencing him for third-

degree felony domestic violence. We disagree. If an offender is convicted of domestic

violence and previously has been convicted of two such offenses, the offender is guilty of

third-degree felony domestic violence. R.C. 2919.25(D)(4). As set forth above, Reed’s

indictment charged him with third-degree felony domestic violence based on two prior

domestic-violence convictions, which the indictment identified by date and case number.

The prosecutor correctly stated during the plea hearing that the current offense was a

third-degree felony based on Reed’s conviction for two prior domestic-violence offenses,

and Reed acknowledged that this was the nature of his current offense. Reed’s plea form

also stated that he was pleading guilty to third-degree felony domestic violence based on

the existence of two prior offenses. Because domestic violence with two prior such

offenses is a third-degree felony, Reed’s argument is frivolous. His assignment of error is
                                                                                         -5-


overruled.

       {¶ 8} Finally, in compliance with our responsibility under Anders, we have

conducted an independent review of the record, including the transcript of Reed’s plea

and sentencing, and have found no non-frivolous issues for review. In particular, we note

that the trial court satisfied its responsibilities under Crim.R. 11(C)(2) during the plea

hearing. (Tr. at 5-11). The trial court fully complied with Crim.R. 11(C)(2)(c) with regard

to Reed’s constitutional rights. With regard to Crim.R. 11(C)(2)(a) and (b), which involve

non-constitutional rights, the only possible issue we have found involves the trial court’s

obligation to tell Reed that upon accepting his plea it could “proceed with judgment and

sentencing.” See Crim.R. 11(C)(2)(b). We have not found this specific advisement in the

hearing transcript prior to the acceptance of Reed’s plea. Its omission was non-prejudicial,

however, because the trial court stated, before accepting his plea, that it would postpone

sentencing for one week, which it did. (Tr. at 5). In addition, the plea form Reed signed

did advise him that upon acceptance of his plea, the trial court “may proceed with

judgment and sentence.” (Doc. #14). Because the trial court explicitly stated during the

hearing that it would postpone sentencing and the plea form contained the proper

advisement, we see no possible prejudice stemming from the trial court’s failure to tell

Reed that it could proceed immediately with sentencing. We find substantial compliance

with Crim.R. 11(C)(2)(b). Any argument that the trial court’s omission resulted in a

prejudicially-defective plea is frivolous.

       {¶ 9} For the foregoing reasons, the judgment of the Montgomery County Common

Pleas Court is affirmed.

                                       .............
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FROELICH, J. and WELBAUM, J., concur.



Copies mailed to:

Mathias H. Heck
Michael Scarpelli
Jennifer Marietta
Jerry Reed Jr.
Hon. Erik Blaine
