[Cite as State v. Mayberry, 2011-Ohio-6325.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :        C.A. CASE NO.   24596

v.                                                    :        T.C. NO.   10CR3384

ROBERT W. MAYBERRY                                    :        (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                     :

                                                      :

                                               ..........

                                               OPINION

                         Rendered on the        9th   day of   December     , 2011.

                                               ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 3946 Kettering Blvd., Suite 202,
Kettering, Ohio 45439
       Attorney for Defendant-Appellant

ROBERT W. MAYBERRY, #648250, Madison Correctional Institute, P. O. Box 740,
London, Ohio 43140
      Defendant-Appellant
                           ..........

DONOVAN, J.

        {¶ 1} Appointed counsel for defendant-appellant Robert W. Mayberry submitted an
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appellate brief under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, alleging that

he found no meritorious issues for appeal. After a thorough review of the record, this Court

agrees that the trial court's proceedings were proper, and we affirm the trial court's judgment.

       {¶ 2} On March 21, 2011, Mayberry entered a guilty plea to Burglary in violation

of R.C. 2911.12(A)(4), a felony of the fourth degree. In exchange for his guilty plea, the

State agreed not to pursue charges of Rape and Gross Sexual Imposition, felonies of the first

and third degree. On April 4, 2011, Mayberry was sentenced to a prison term of seventeen

months.

       {¶ 3} Mayberry filed a timely notice of appeal with this Court on April 20, 2011.

On August 5, 2011, appointed counsel representing Mayberry submitted an Anders brief,

finding no meritorious issues for appeal. On August 10, 2011, this Court informed Mayberry

that his counsel filed an Anders brief and informed him of the significance of an Anders

brief. This Court advised Mayberry of his right to file a pro se brief assigning any errors for

review by this Court within sixty days of August 10, 2011. Mayberry has not filed anything

with this court.

       {¶ 4} Although arguing that there are no meritorious claims to raise on Mayberry's

behalf, his counsel found two potential assignments of error:

       {¶ 5} “THE APPELLANT DID NOT ENTER HIS PLEA KNOWINGLY,

INTELLIGENTLY, OR VOLUNTARILY”

       {¶ 6} “THE COURT’S IMPOSITION OF A SEVENTEEN MONTH SENTENCE

WAS EXCESSIVE”

       {¶ 7} Upon review, we agree with appellate counsel that these potential
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assignments of error have no arguable merit.

       {¶ 8} In this case, the trial court strictly adhered to the requirements of Crim. R.

11(C)(2) when accepting Mayberry's plea of guilty. The transcript of the plea hearing

demonstrates that Mayberry's plea was made voluntarily, and with an understanding of the

nature of the charges against him and the maximum penalty that could be imposed.

Mayberry was also informed of the effects of his plea of guilty and Mayberry demonstrated

that he understood these effects, and the fact that the court could have proceeded to

judgment and sentencing at that time. Mayberry also acknowledged an understanding that by

entering a plea of guilty he had given up certain constitutional rights such as the right to a

jury trial, the right to confront witnesses, and the right to require the state to prove his guilt

beyond a reasonable doubt. Because of the negotiated plea involved in this case, the court

also stated the underlying agreement upon which the plea was based on the record, as

required under Crim. R. 11(F).

       {¶ 9} Having determined that the court complied with all applicable rules and

statutes in accepting the guilty plea of Mayberry, we now turn to whether the trial court

abused its discretion in its sentence. In State v. Sexton, Champaign App. No. 2010 CA 19,

2011-Ohio-3867, ¶5, we stated that “[u]nder State v. Kalish, 120 Ohio St.3d 23,

2008–Ohio–4912, ‘trial courts “have full discretion to impose a prison sentence within the

statutory range and are no longer required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences.”’                   Id. at 25

(internal citations omitted). However, the appellate court must ensure that the trial court

correctly followed all applicable rules and statutes when imposing the sentence. Id. If the
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trial court has done so, then the review of the imposition of sentencing is subject only to an

abuse of discretion standard. Id . at 26. A determination that the trial court abused its

discretion is ‘more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable.’ Id. at 27 (internal citations omitted).” The   trial

court found Mayberry to have an extensive criminal history. This was Mayberry’s seventh

felony conviction as an adult, including three prior burglary convictions. The court also

considered the fact that Mayberry’s relationship with the victim had facilitated the offense.

Specifically, the court noted that Mayberry had victimized a low functioning, mentally

handicapped woman, despite being warned repeatedly by her family to stay away from her.

The trial court found that while a felony of the fourth degree carries a presumed probation or

community control sanction, it was not appropriate in Mayberry's case. The maximum

penalty available in this case was a prison term of up to eighteen months and a maximum

$5,000 fine. Because it was in the trial court's discretion to impose a sentence within the

statutory range, we find that the trial court's sentence of a seventeen month term was not an

abuse of discretion and therefore not excessive.

       {¶ 10} In the performance of our duty, under Anders v. California, having conducted

an independent review of the record, we find no potential assignments of error having

arguable merit. We conclude this appeal is wholly frivolous. The judgment of the trial court

is Affirmed.

                                             ..........

       GRADY, P.J., concurs.

       FAIN, J., concurs in the judgment.
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        FAIN, J., concurring:

        {¶ 11} I      write   separately   merely   to   renew   my    war    against   the

more-than-an-error-of-law formulation for abuse of discretion. See State v. Boles, 187 Ohio

App.3d 345, 2010-Ohio-278, ¶ 15-26. In all other respects, I concur in the opinion of this

court in this case.

                                           ..........

Copies mailed to:

Carley J. Ingram
William O. Cass, Jr.
Robert W. Mayberry
Hon. Timothy N. O’Connell
