[Cite as State v. Thompson, 2019-Ohio-5016.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2019-CA-13
                                                     :
 v.                                                  :   Trial Court Case No. 2018-CR-385
                                                     :
 TREMAINE THOMPSON                                   :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                          Rendered on the 6th day of December, 2019.

                                                ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
    Attorney for Defendant-Appellant

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




DONOVAN, J.
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       {¶ 1} Defendant-appellant Tremaine Thompson was charged with one count of

felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree. At

his arraignment on June 14, 2018, Thompson pled not guilty to the charged offense, and

the trial court released him on his own recognizance with electronic monitoring. On

January 10, 2019, Thompson pled guilty to an amended charge of aggravated assault, in

violation of R.C. 2903.12(A)(1), a felony of the fourth degree. The trial court accepted

Thompson’s guilty plea and ordered the probation department to prepare a presentence

investigation report (PSI). On January 30, 2019, the trial court sentenced Thompson to

18 months in prison. On February 25, 2019, Thompson filed a timely notice of appeal

with this Court.

       {¶ 2} Appointed counsel for Thompson filed an appellate brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), stating she can find

no meritorious issues for appellate review. We notified Thompson of appellate counsel’s

representation and afforded him time to file a pro se brief. None has been received.

This matter is now before us for our independent review of the record. Penson v. Ohio,

488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

       {¶ 3} Thompson’s appellate counsel has identified three potentially meritorious

issues for appeal: 1) whether Thompson’s plea was made in a knowing, intelligent, and

voluntary fashion; 2) whether the trial court followed the mandates of Crim.R. 11; and 3)

whether the trial court’s sentence was contrary to law or an abuse of discretion.

                                 Compliance with Crim.R. 11

       {¶ 4} “Crim.R. 11(C)(2)(a) provides that, before accepting a guilty plea, a court
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must ‘[d]etermin[e] that the defendant is making the plea voluntarily, with understanding

of the nature of the charges and of the maximum penalty involved * * *.’ ” State v. Jones,

2d Dist. Montgomery No. 24772, 2013-Ohio-119, ¶ 6. “The ‘maximum penalty’ includes

any mandatory post-release control sanction[.]” Id. at ¶ 7. “Thus if the defendant will be

subject to a period of post-release control, to comply with Crim.R. 11 the court must inform

the defendant of post-release control.” Id.

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

Crim.R. 11.” State v. Jennings, 2d Dist. Clark No. 2013 CA 60, 2014-Ohio-2307, ¶ 6, citing

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. “However,

because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need

only substantially comply with those requirements.” Id., citing State v. Nero, 56 Ohio St.3d

106, 108, 564 N.E.2d 474 (1990). “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.” (Citations omitted.) Nero at 108.

       {¶ 6} “Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect.” Jennings at ¶ 7, citing State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. “Prejudice in this

context means that the plea would otherwise not have been entered.” Id.

       {¶ 7} Upon review of the plea transcript, we conclude that the record reveals no

arguably meritorious issues regarding the trial court's compliance with Crim.R. 11 in

accepting Thompson's guilty plea. The record clearly establishes that prior to entering

his plea, Thompson was advised of the charge, the possible sentence, and the
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constitutional and non-constitutional rights he was waiving by pleading guilty. At no point

did Thompson express any confusion regarding any of the information provided by the

trial court in its Crim.R. 11 colloquy. Rather, Thompson affirmatively stated that he

understood the rights he was waiving. Furthermore, the agreement negotiated by the

parties benefitted Thompson by allowing him to plead guilty to the lesser offense of

aggravated assault, a felony of the fourth degree, when he had been charged with a felony

of the second degree. Therefore, we conclude that the trial court did not violate Crim.R.

11(C)(2)(c) in accepting Thompson's plea, and that he entered his plea knowingly,

intelligently, and voluntarily.

                                      Lawfulness of the Sentence

       {¶ 8} As this Court has previously noted:

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

       However, in exercising its discretion, a trial court must consider the statutory

       policies that apply to every felony offense, including those set out in R.C.

       2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-

       Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

       St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.

       {¶ 9} R.C. 2929.11 requires trial courts to be guided by the overriding principles of

felony sentencing. Those purposes are “to protect the public from future crime by the
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offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender's conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.”

       {¶ 10} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct

is more serious than conduct normally constituting the offense. These factors include

whether the physical or mental injury to the victim was exacerbated because of the

physical or mental condition of the victim; serious physical, psychological, or economic

harm suffered by the victim as a result of the offense; whether the offender's relationship

with the victim facilitated the offense; and whether the offender committed the offense for

hire or as a part of an organized criminal activity.

       {¶ 11} R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct

is less serious than conduct normally constituting the offense, including whether the victim

induced or facilitated the offense, whether the offender acted under strong provocation,

whether, in committing the offense, the offender did not cause or expect to cause physical

harm to any person or property, and the existence of substantial grounds to mitigate the

offender's conduct, although the grounds are not enough to constitute a defense. R.C.
                                                                                            -6-


2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the

offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the

sentencing court to consider the offender's military service record.

       {¶ 12} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

       {¶ 13} In the instant case, the trial court imposed a sentence within the permissible

statutory range. The record establishes that the trial court reviewed the PSI, Thompson's

statements, and the statements of counsel. The record further establishes that the trial

court considered the principles and purposes of sentencing under R.C. 2929.11, and that

it balanced the seriousness and recidivism factors set forth in R.C. 2929.12. Although

the trial court did not orally advise Thompson at the sentencing hearing of its findings

pursuant to R.C. 2929.11 and 2929.12, the judgment entry of conviction contains those

findings. “On a silent record, a trial court is presumed to have considered the statutory

purposes and principles of sentencing and the statutory seriousness and recidivism

factors.” State v. Goldblum, 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 50.

       {¶ 14} In light of the foregoing, we conclude that the record reveals no arguably

meritorious issues regarding the 18 month sentence imposed by the trial court. Notably,

Thompson had a lengthy criminal history and three prior prison commitments.

       {¶ 15} In addition to reviewing the possible issues for appeal raised by Thompson’s
                                                                                  -7-


appellate counsel, we have conducted an independent review of the trial court’s

proceedings and have found no error having arguable merit. Accordingly, the judgment

of the trial court is affirmed.

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



WELBAUM, P.J. and TUCKER, J., concur.



Copies sent to:

John M. Lintz
Johnna M. Shia
Tremaine Thompson
Hon. Richard J. O’Neill
