[Cite as State v. Kaufman, 2014-Ohio-1575.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :     JUDGES:
                                              :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :     Hon. Sheila G. Farmer, J.
                                              :     Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
KRISTOPHER KAUFMAN                            :     Case No. 13-COA-026
                                              :
        Defendant-Appellant                   :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from The Court of Common
                                                    Pleas, Case No. 13-CRI-031



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   April 11, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOSHUA T. ASPIN                                     MATTHEW J. MALONE
Assistant Prosecuting Attorney                      11 ½ East 2nd Street
110 Cottage Street, 3rd Floor                       Ashland, OH 44808
Ashland, OH 44805
Ashland County, Case No.13-COA-026                                                          2


Farmer, J.

       {¶1}    Appellant, Kristopher Kaufman, was charged with one count of

Aggravated Arson in violation of R.C. 2909.02(A)(2), a felony of the second degree by

way of a bill of information.    Appellant entered a guilty plea to the charge and was

sentenced to a prison term of seven years and ordered to pay restitution.

       {¶2}    The charge arose from Appellant setting his apartment on fire. There was

a second apartment in the same building as Appellant. No one was harmed in the fire

because the tenants in the second apartment were able to escape.             This was not

Appellant’s first arson conviction. Appellant stated he set the fire because he wanted to

kill himself after a fight with his girlfriend.   Appellant admitted to police he has a

fascination with fire.

       {¶3}    Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth two proposed

Assignments of Error.     Appellant did not file a pro se brief alleging any additional

Assignments of Error.

       {¶4}    Counsel for Appellant raises the following potential assignments of error:

                                                  I.

       {¶5}    “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11

BEFORE ACCEPTING DEFENDANT-APPELLANT’S GUILTY PLEA.”
Ashland County, Case No.13-COA-026                                                       3


                                                 II

       {¶6}   “WHETHER        THE    TRIAL     COURT’S    SENTENCE        IMPOSED      ON

DEFENDANT-APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO

LAW AND/OR AN ABUSE OF DISCRETION.”

       {¶7}   In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.


                                                 I.

       {¶8}   In his first assignment of error, Appellant suggests the trial court did not

comply with Crim.R. 11 in accepting Appellant’s plea.

       {¶9}   Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to

address the defendant personally and to convey certain information to such defendant,

and makes clear that the trial court shall not accept a guilty plea or no contest without
Ashland County, Case No.13-COA-026                                                        4


performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶

10. Crim.R. 11(C)(2)(a) states the trial court must determine,

       {¶10} * * * that the defendant is making the plea voluntarily, with the

understanding of the nature of the charges and of the maximum penalty involved, and if

applicable, that the defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.

       {¶11} “Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only “substantially comply” with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–

2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio

St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the

following test for determining substantial compliance with Crim.R. 11:

       {¶12} Though failure to adequately inform a defendant of his constitutional rights

would invalidate a guilty plea under a presumption that it was entered involuntarily and

unknowingly, failure to comply with non constitutional rights will not invalidate a plea

unless the defendant thereby suffered prejudice. [ State v.. Nero (1990), 56 Ohio St.3d

106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have

otherwise been made.’ Id. Under the substantial-compliance standard, we review the

totality of circumstances surrounding [the defendant's] plea and determine whether he

subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d
Ashland County, Case No.13-COA-026                                                         5


86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 2012-Ohio-4843

appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.

       {¶13} A review of the plea hearing reveals the trial court advised Appellant of his

constitutional rights, the potential penalties for the offense, and the possibility of post

release control. Further, the trial court inquired as to the voluntariness of Appellant’s

plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential

assignment of error is found to be without merit.

                                                     II.

       {¶14} In his second assignment of error, Appellant challenges the sentence

imposed by the trial court.

       {¶15} The Ohio Supreme Court has established a two-step analysis for

reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The

first step is to “examine the sentencing court's compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's

decision to be reviewed under an abuse-of-discretion standard. Id.

       {¶16} We find the sentence was not clearly and convincingly contrary to law.

The sentence in this case was imposed within the statutory range provided in R.C.

2929.14. Having reviewed the sentence, sentencing factors found in R.C. 2929.12, the

facts surrounding the crime, and Appellant’s criminal history, we also find the trial court

did not abuse its discretion in imposing the sentence in this case.

       {¶17} The second potential assignment of error is overruled.
Ashland County, Case No.13-COA-026                                                  6


      {¶18} After independently reviewing the record, we agree with counsel's

conclusion that no arguably meritorious claims exist upon which to base an appeal.

Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request

to withdraw, and affirm the judgment of the Ashland County Court of Common Pleas.



By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




SGF/as 328
