[Cite as State v. Dixon, 2015-Ohio-5487.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case Nos. 2015-CA-37 and
                                                  :                    2015-CA-38
 v.                                               :
                                                  :   Trial Court Case Nos. 2014-CR-762
 JASON DIXON                                      :   and
                                                  :                       2015-CR-57
         Defendant-Appellant                      :   (Criminal Appeal from
                                                  :   Common Pleas Court)


                                             ...........

                                            OPINION

                          Rendered on the 29th day of December, 2015.

                                       ...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting
Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West Second Street, Suite 2103,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............
                                                                                         -2-




WELBAUM, J.



       {¶ 1} In these consolidated cases, Defendant-Appellant, Jason Dixon, appeals

from his convictions and sentences on two counts of Breaking and Entering and one count

of Theft. Following his guilty plea, Dixon was sentenced to maximum and consecutive

sentences for these terms, for a total of three and a half years in prison. He was also

sentenced to one year for violating post-release control, to be served consecutive to the

other sentences. The total sentence, thus, was four and a half years in prison.

       {¶ 2} Dixon’s appellate counsel filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he could find no meritorious

issues to pursue on appeal. Counsel raised three potential assignments of error: (1)

that Dixon’s plea was not made knowingly, intelligently, and voluntarily; (2) that the trial

court erred in imposing a sentence that was contrary to law and was not commensurate

with the seriousness of the offenses; and (3) that the court erred by imposing consecutive

sentences. However, counsel did not find that these issues had merit.

       {¶ 3} In an entry filed on September 10, 2015, we informed Dixon that his attorney

had filed an Anders brief. We granted Dixon 60 days from that date to file a pro se brief,

but no pro se brief has been filed.

       {¶ 4} “We are charged by Anders to determine whether any of these issues are

‘wholly frivolous.’ ” State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788,

¶ 2, quoting Anders at 744. “If we find that any of them involve legal points that are

arguable on their merits, and therefore are not wholly frivolous, per Anders we must
                                                                                        -3-

appoint other counsel to argue the appeal.” Id.

       {¶ 5} “An issue does not lack arguable merit merely because the prosecution can

be expected to present a strong argument in reply, or because it is uncertain whether a

defendant will ultimately prevail on that issue on appeal. An issue lacks arguable merit

if, on the facts and law involved, no responsible contention can be made that it offers a

basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242,

¶ 8.

       {¶ 6} We have independently reviewed the record pursuant to Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we agree with appellate counsel

that there are no potentially meritorious issues for review. Accordingly, the judgment of

the trial court will be affirmed.



                                          I. Plea Hearing

       {¶ 7} Dixon’s First Proposed Assignment of Error is that:

               Did the Trial Court Err by Accepting Appellant’s Plea Which Was Not

       Made Knowingly, Voluntarily or in an Intelligent Manner?

       {¶ 8} With respect to this proposed assignment of error, Dixon’s appellate counsel

outlines plea requirements and suggests that the trial court failed to determine that Dixon

made his plea knowingly, intelligently, and voluntarily. Counsel does not point to any

specific deficiency, and indicates that he finds no merit to this claim of error.

       {¶ 9} Pleas are invalid unless they are “knowingly, intelligently, and voluntarily

made * * *.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25.

“To ensure that pleas conform to these high standards, the trial judge must engage the
                                                                                          -4-


defendant in a colloquy before accepting his or her plea,” and trial courts “are bound by

the requirements of Crim.R. 11(C)(2).” Id. at ¶ 26-27.

       {¶ 10} “Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges and the

maximum penalty, and, if applicable, that the defendant is not eligible for probation or for

the imposition of community control sanctions; (b) inform the defendant of and determine

that the defendant understands the effect of the plea of guilty and that the court, upon

acceptance of the plea, may proceed with judgment and sentencing; and (c) inform the

defendant and determine that he understands that, by entering the plea, the defendant is

waiving the rights to a jury trial, to confront witnesses against him, to have compulsory

process for obtaining witnesses, and to require the state to prove his guilt beyond a

reasonable doubt at a trial at which he cannot be compelled to testify against himself.”

State v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.

       {¶ 11} The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11 in order to avoid committing error. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462, ¶ 29. Where constitutional rights, like the right to a jury trial or

the right to compulsory process to obtain witnesses, are involved, trial courts must strictly

comply with Crim.R. 11(C)(2). State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621, syllabus. However, substantial compliance is sufficient regarding “the

nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and 11(C)(2)(b) * * *.” Id.

at ¶ 14. Accord State v. Earnest, 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶

26.

       {¶ 12} “ ‘Substantial compliance means that under the totality of the circumstances
                                                                                         -5-


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

waiving.’ ” Veney at ¶ 15, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d

474 (1990). “ ‘Furthermore, a defendant who challenges his guilty plea on the basis that

it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.’ *

* *. To demonstrate prejudice in this context, the defendant must show that the plea

would otherwise not have been entered.” Id., quoting Nero at 108.

       {¶ 13} We have reviewed the entire record, including the transcript of the plea

hearing, and agree with appellate counsel that any claim relating to Dixon’s plea has no

arguable merit, as the trial court fully complied with the requirements of Crim.R. 11.



                            II. Alleged Error in Imposing Sentence

       {¶ 14} Dixon’s Second Proposed Assignment of Error is that:

              Did the Trial Court Err by Imposing a Sentence That Is Contrary to

       Law and Would a Lesser Sentence Be Commensurate With and Not

       Demean the Seriousness of the Offense?

       {¶ 15} This potential assignment of error contends that the sentence was contrary

to law, and asks whether a lesser sentence would be commensurate with and not demean

the seriousness of the offenses. Again, Dixon’s counsel finds no merit to this assignment

of error. Dixon received the maximum sentences for each crime, and the sentences

were imposed consecutively.

       {¶ 16} When we review felony sentences, we no longer use an abuse-of-discretion

standard of review. State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.).

Instead, we apply the standard of review set forth in R.C. 2953.08(G)(2), which states
                                                                                                 -6-


that:

                 The appellate court may increase, reduce, or otherwise modify a

          sentence that is appealed under this section or may vacate the sentence

          and remand the matter to the sentencing court for resentencing.                  The

          appellate court's standard for review is not whether the sentencing court

          abused its discretion. The appellate court may take any action authorized

          by this division if it clearly and convincingly finds either of the following:

                 (a) That the record does not support the sentencing court’s findings

          under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

          section 2929.14, or division (I) of section 2929. 20 of the Revised Code,

          whichever, if any, is relevant;

                 (b) That the sentence is otherwise contrary to law.

          {¶ 17} We have reviewed the entirety of the record, including the transcript of the

sentencing hearing, and cannot find any issues of arguable merit. The trial court had

discretion to impose prison terms, since Dixon had previously served a prison term and

was on post-release control at the time of the crimes. See R.C. 2929.13(B)(1)(b)(x) and

(xi). The prison terms were also within the periods authorized by statute.

          {¶ 18} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences. * * * However, the trial

court must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C.

2929.12.” (Citations omitted.) State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d

Dist.).
                                                                                        -7-


         {¶ 19} After examining the record, we can find no reasonable contention that the

court’s imposition of maximum sentences offers a basis for reversal. Marbury, 2d Dist.

Montgomery No. 19226, 2003-Ohio-3242, at ¶ 8. The court complied with the statutory

requirements, and was authorized to impose the sentences. Accordingly, we agree with

Dixon’s counsel that this proposed assignment of error has no merit.



                                   III. Consecutive Sentences

         {¶ 20} The third proposed assignment of error states that:

               Did the Trial Court Err by Imposing Consecutive Sentences?

         {¶ 21} Again, our review of sentencing decisions is whether we can clearly and

convincingly find that the court’s findings are unsupported by the record, or that the

sentence is contrary to law.       Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 29.

Appellate counsel has not suggested any specific way in which the trial court erred, and

states that he can find no error in this assignment of error.

         {¶ 22} The trial court made appropriate findings under R.C. 2929.14(C)(4) for

imposing consecutive sentences, and the record supports the findings. As the court

noted, Dixon had fifteen prior theft-related convictions and had been in prison seven

times. The crimes were also committed while Dixon was on post-release control and

occurred only a few months after he had been released from prison. In this regard, the

court commented that it had a responsibility to protect the public from future crime by

Dixon. It is clear that the possibility of recidivism and commission of future offenses was

great.

         {¶ 23} Accordingly, we can find no reasonable contention that the court’s
                                                                                         -8-

imposition of consecutive sentences offers a basis for reversal.        Marbury, 2d Dist.

Montgomery No. 19226, 2003-Ohio-3242, at ¶ 8.



                                      IV. Anders Review

       {¶ 24} We have also performed our duty under Anders to conduct an independent

review of the record. We have thoroughly reviewed the docket, the various filings, the

written transcript of the plea hearing, and the sentencing disposition. We have found no

non-frivolous issues for review. Accordingly, the judgment of the trial court is affirmed.

                                     .............

HALL, J., concurs.



FROELICH, P.J., dissenting:
       {¶ 25} R.C. 2929.141(A)(1) provides that a trial court may:

              In addition to any prison term for the new felony, impose a prison

       term for the post-release control violation. The maximum prison term for

       the violation shall be the greater of twelve months or the period of post-

       release control for the earlier felony minus any time the person has spent

       under post-release control for the earlier felony. In all cases, any prison

       term imposed for the violation shall be reduced by any prison term that is

       administratively imposed by the parole board as a post-release control

       sanction.     A prison term imposed for the violation shall be served

       consecutively to any prison term imposed for the new felony.             The

       imposition of a prison term for the post-release control violation shall
                                                                                           -9-


       terminate the period of post-release control for the earlier felony.

       {¶ 26} The court here found that the Appellant had served all but two months of

his post-release control on the previous felony and sentenced him to an additional year,

since it was greater than the time remaining on that post-release control. With this

record, it cannot be determined how much time he had spent under post-release control

for that previous felony and whether it was appropriately subtracted from the prison term

imposed for the violation.

       {¶ 27} I realize we have precedent regarding calculation of a sentence for a post-

release control violation, but the issue is not frivolous, and I would reject the Anders brief

and appoint counsel.

                                        ..........

Copies mailed to:


Ryan A. Saunders
Michael T. Columbus
Jason Dixon
Hon. Douglas M. Rastatter
