[Cite as State v. Dotson, 2016-Ohio-8411.]
                            STATE OF OHIO, BELMONT COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 15 BE 0051
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
GREGORY ALLEN DOTSON                          )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Belmont County,
                                                   Ohio
                                                   Case No. 15 CR 10

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Daniel P. Fry
                                                   Belmont County Prosecutor
                                                   147-A West Main Street
                                                   St. Clairsville, Ohio 43950
                                                   No Brief Filed

For Defendant-Appellant:                           Atty. Donna Jewell McCollum
                                                   3685 Stutz Drive, Suite 100
                                                   Canfield, Ohio 44406


JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                   Dated: December 27, 2016
[Cite as State v. Dotson, 2016-Ohio-8411.]
WAITE, J.


        {¶1}     Appellant Gregory Allen Dotson appeals from his conviction and

sentence pursuant to a Crim.R. 11 plea agreement entered in the Belmont 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,

Appellant’s convictions and sentence are affirmed and counsel’s motion to withdraw

is granted.

                                  Factual and Procedural History

        {¶2}     On May 7, 2015, Appellant was indicted on one count of failure to notify

of a change of address, a felony of the third degree, in violation of R.C. 2950.05(A).

On July 13, 2015, Appellant entered into a Crim.R. 11 plea agreement with the state

where Appellant agreed to plead guilty to the offense as charged. A sentence of one

year of incarceration was jointly recommended. On that same date, the trial court

held a plea hearing where the court entered into a colloquy with Appellant and

informed him of his constitutional and nonconstitutional rights. At the hearing, the

trial court accepted Appellant’s plea and scheduled a sentencing hearing for August

10, 2015.        On August 11, 2015, Appellant was sentenced to 24 months of

incarceration, with credit for 110 days served. He was also sentenced to three years

of postrelease control.

                                             No Merit Brief

        {¶3}     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.
                                                                                  -2-

1396, 18 L.E.2d 493 (1967). In this 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).

      {¶4}    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

      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
                                                                                        -3-

       counsel of record should be allowed, and the judgment of the trial court

       should be affirmed.

Id. at syllabus.

       {¶5}      On November 16, 2015, appellate counsel filed a no merit brief in this

matter. On December 7, 2015, 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

       {¶6}      Pursuant to Crim.R. 11(C), a trial court must advise a defendant of

certain rights before it can accept the defendant’s plea.        These are divided into

constitutional     and   nonconstitutional   rights.   Beginning    with   a   defendant’s

constitutional rights, a trial court must advise a defendant of the following: (1) right to

a jury trial; (2) right to confront witnesses against him; (3) right to compulsory process

to obtain witnesses in his favor; (4) the state’s burden to prove his guilt beyond a

reasonable doubt at a trial; and (5) that a defendant cannot be compelled to testify at

trial. State v. Bell, 7th Dist. No. 14 MA 0017, 2016-Ohio-1440, ¶ 9, citing Crim.R.

11(C)(2); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,

¶ 19-21. In order for the defendant’s plea to be valid, the trial court must strictly

comply with these requirements. Id. at ¶ 31.
                                                                                       -4-

       {¶7}   The trial court must also advise a defendant of his nonconstitutional

rights, which include: (1) the nature of the charges; (2) the maximum penalty the

defendant is subject to, including postrelease control, if applicable; (3) whether the

defendant is eligible for probation or community control sanctions; and (4) that a trial

court may immediately proceed to sentencing after the plea is accepted. Id. at ¶ 10-

13. Unlike the constitutional rights, a trial court need only substantially comply with

these requirements. “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.” Bell at ¶10, citing Veney at ¶ 15. If the advisement of a

defendant’s nonconstitutional rights is not substantially complied with, the defendant

must demonstrate prejudice. Bell at ¶ 10, citing Veney, at ¶ 15.

       {¶8}   Beginning with the constitutional rights, the trial court advised Appellant

that he had a right to a jury trial. (7/13/15 Plea Hrg. Tr., p. 3.) He was told that he

had a right to confront witnesses testifying against him. Id. at 8. The trial court

explained Appellant’s right to obtain witnesses through compulsory process. Id. at 9.

He was also informed of his right to require the state to prove each element of the

charged offense beyond a reasonable doubt. Id. at 8. Finally, the trial court advised

him that he could not be compelled to testify at trial. Id. at 9. Appellant indicated that

he understood each right and his willingness to give up each right as a result of his

plea. Accordingly, we find that the trial court strictly complied with this requirement.

       {¶9}   In regard to Appellant’s nonconstitutional rights, the trial court noted

that Appellant mistakenly referred to his charged offense as “failure to register” within
                                                                                      -5-

his written plea agreement. The court explained to him that he was charged with

failure to notify of his change of address, not failure to register, and asked for his

permission to correct the error within the document.       Appellant indicated that he

understood his error and gave the court permission to correct it. Thus, the trial court

adequately informed Appellant of the nature of the charges against him. The court

advised him that he was subject to a maximum penalty of 36 months of incarceration

and three years of postrelease control. The court further informed him that he was

eligible for community control sanctions. Finally, the court advised Appellant that it

could immediately proceed to sentencing after accepting his plea.

       {¶10} Appellant indicated that he understood each right and that he would

give them up as a result of his plea.       As the trial court explained each of the

nonconstitutional rights that Appellant would relinquish as a result of his plea, the

court at least substantially complied with this requirement. Because the trial court

strictly complied with a colloquy of Appellant’s constitutional rights and at least

substantially complied regarding his nonconstitutional rights, there are no appealable

issues surrounding the plea hearing.

                                       Sentencing

       {¶11} 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. 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
                                                                                      -6-

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

sentence.” Id. at ¶ 23.

       {¶12} 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. 2929.14, and the proper statutory ranges set forth

within R.C. 2929.14. Here, the trial court expressly stated at the sentencing hearing

that it had considered the purposes and principles of sentencing pursuant to R.C.

2929.11 and found that a lesser sentence would not adequately punish Appellant,

would not protect society, and would demean the seriousness of the offense. The

trial court made similar findings within its sentencing entry.

       {¶13} At the hearing, the trial court weighed the seriousness and recidivism

factors within R.C. 2929.12 and found that the factors supported a lengthier

sentence.    Within its sentencing entry, the court listed and provided a detailed

analysis of each R.C. 2929.12 factor. The trial court emphasized that Appellant had

previously been convicted of the same offense and had already served ten months of

incarceration.   Consequently, the court found that Appellant had not previously

responded to a lesser sentence.        The court noted that Appellant had a lengthy

criminal record going back seventeen years. The court also noted that Appellant

showed no remorse and attempted to minimize his guilt.

       {¶14} Finally, the trial court acknowledged that the maximum sentence was

thirty-six months of incarceration and a $10,000 fine.           Appellant’s sentence was

twenty-four months, thus was within the statutory range in accordance with R.C.
                                                                                  -7-

2929.14.    Appellant was also given his right of allocution and made a lengthy

statement on the record explaining his actions.        Appellant was not given a

consecutive sentence. As there is nothing within this record to demonstrate that

Appellant’s sentence is contrary to the law, there are no appealable issues regarding

his sentence.

                                       Conclusion

       {¶15} For the reasons provided, there are no potentially meritorious issues

within this appeal. Accordingly, counsel’s motion to withdraw is granted and the

judgment of the trial court is affirmed.


DeGenaro, J., concurs.

Robb, J., concurs.
