[Cite as State v. Utley, 2017-Ohio-6920.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals Nos. L-16-1024
                                                                       L-16-1025
        Appellee                                                       L-16-1026

v.                                               Trial Court Nos. CR0201501399
                                                                  CR0201502311
Darian Lamont Utley                                               CR0201502154

        Appellant                                DECISION AND JUDGMENT

                                                 Decided: July 21, 2017

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

        Joanna M. Orth, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} This is a consolidated Anders appeal. Appellant, Darian Lamont Utley,

appeals the judgments of the Lucas County Court of Common Pleas convicting him

pursuant to a plea agreement of: one count of burglary in violation of R.C.
2911.12(A)(2) and (D), a felony of the second degree, in case No. CR0201501399; two

counts of burglary in violation of R.C. 2911.12(A)(3) and (D), felonies of the third

degree, in case No. CR0201502154; and one count of burglary in violation of R.C.

2911.12(A)(2) and (D), a felony of the second degree, in case No. CR0201502311. The

trial court sentenced appellant to the agreed-upon cumulative sentence of ten years in

prison. For the reasons that follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} Appellant was indicted by the Lucas County Grand Jury in four separate

cases on a total of four counts of burglary, felonies of the second degree, one count of

receiving stolen property, a felony of the fifth degree, and 21 counts of receiving stolen

property, misdemeanors of the first degree. On December 7, 2015, appellant withdrew

his initial pleas of not guilty, and entered a plea pursuant to North Carolina v. Alford to

two counts of burglary in violation of R.C. 2911.12(A)(2) and (D), felonies of the second

degree, and two amended counts of burglary in violation of R.C. 2911.12(A)(3) and (D),

felonies of the third degree. As part of the plea agreement, the remaining charges were

dismissed. In addition, the parties agreed that appellant would receive a total prison

sentence of ten years.

       {¶ 3} The trial court accepted appellant’s plea and found him guilty. The matter

was continued for a sentencing hearing on December 21, 2015. At the sentencing

hearing, the trial court imposed eight-year prison sentences on each of the second-degree

felony burglaries, and ordered that they run concurrent with one another. The trial court




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also imposed 24-month prison sentences on each of the third-degree felony burglaries,

also to run concurrent with one another, but consecutive to the eight-year prison

sentences for the total agreed upon prison term of ten years. In ordering the sentences to

be served consecutively, the trial court made the appropriate findings under R.C.

2929.14(C)(4).

                                II. Anders Requirements

       {¶ 4} Appellant timely appealed his conviction. Subsequently, appointed counsel

for appellant filed a brief and requested leave to withdraw pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under Anders, if

counsel, after a conscientious examination of the case, determines it to be wholly

frivolous, counsel should so advise the court and request permission to withdraw. Id. at

744. This request, however, must be accompanied by a brief identifying anything in the

record that could arguably support the appeal. Id. Counsel must also furnish the client

with a copy of the brief and request to withdraw and allow the client sufficient time to

raise additional matters. Id. Once these requirements have been satisfied, the appellate

court must then conduct a full examination of the proceedings held below to determine if

the appeal is indeed frivolous. If the appellate court determines that the appeal is

frivolous, it may grant counsel’s request to withdraw and dismiss the appeal without

violating constitutional requirements, or it may proceed to a decision on the merits if state

law so requires. Id.




3.
                           III. Potential Assignments of Error

       {¶ 5} In her Anders brief, counsel has assigned the following potential errors for

our review:

              1. Defendant/Appellant’s plea should be set aside insofar as it was

       not made knowingly, voluntarily and intelligently.

              2. Defendant/Appellant’s sentence should be vacated as it is

       excessive, unreasonable and contrary to law.

       {¶ 6} Appellant has not filed a pro se brief or otherwise raised any additional

matters.

                                       IV. Analysis

       {¶ 7} Regarding counsel’s first proposed assignment of error, Crim.R. 11(C) sets

forth the procedure that the trial court must follow in accepting a plea of guilty or no

contest. The rule provides:

              (2) In felony cases the court may refuse to accept a plea of guilty or

       a plea of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the

       following:

              (a) Determining that the defendant is making the plea voluntarily,

       with understanding of the nature of the charges and of the maximum

       penalty involved, and if applicable, that the defendant is not eligible for




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       probation or for the imposition of community control sanctions at the

       sentencing hearing.

              (b) Informing the defendant of and determining that the defendant

       understands the effect of the plea of guilty or no contest, and that the court,

       upon acceptance of the plea, may proceed with judgment and sentence.

              (C) Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to jury trial,

       to confront witnesses against him or her, to have compulsory process for

       obtaining witnesses in the defendant’s favor, and to require the state to

       prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

       defendant cannot be compelled to testify against himself or herself.

       Crim.R. 11(C).

       {¶ 8} The underlying purpose of Crim.R. 11(C)(2) is to ensure that the defendant

has the information needed to make a voluntary and intelligent decision regarding

whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115

(1981). With respect to the constitutional rights enunciated in Crim.R. 11(C)(2)(c), a trial

court must strictly comply with the dictates of that rule. State v. Colbert, 71 Ohio App.3d

734, 737, 595 N.E.2d 401 (11th Dist.1991). A trial court, however, need not use the

exact language found in that rule when informing a defendant of his constitutional rights.

Ballard at paragraph two of the syllabus. Rather, a trial court must explain those rights in

a manner reasonably intelligible to the defendant. Id.




5.
         {¶ 9} For non-constitutional rights, strict adherence to Crim.R. 11(C) is not

required. Rather, the trial court must substantially comply with the notice provisions.

State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977). “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.” State v. Nero, 56 Ohio St.3d

106, 108, 564 N.E.2d 474 (1990).

         {¶ 10} Appellate counsel observes, and we agree, that the trial court fully

complied with Crim.R. 11(C) when it accepted appellant’s guilty plea. Appellant was

informed of his right to trial by jury, right to confront and cross-examine witnesses, right

to compulsory process, the right to proof beyond a reasonable doubt, the right to remain

silent, and his right to a limited appeal.

         {¶ 11} Appellant was also informed of the nature of the charges to which he was

admitting, the maximum penalties involved, and postrelease control requirements. The

court further confirmed that no promises or threats were made to get appellant to enter his

plea, that he was satisfied with counsel’s advice and representation, and that appellant

believed that entering the plea was in his best interest.

         {¶ 12} Accordingly, we find the first potential assignment of error to be without

merit.

         {¶ 13} Appellant’s counsel’s second potential assignment of error argues that his

sentence is unreasonably long and contrary to law.




6.
         {¶ 14} A defendant’s right to appeal a sentence is based on specific grounds in

R.C. 2953.08. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,

¶ 10. However, R.C. 2953.08(D)(1) provides an exception to a defendant’s ability to

appeal. Underwood at ¶ 14. That section provides, “A sentence imposed upon a

defendant is not subject to review under this section if the sentence is authorized by law,

has been recommended jointly by the defendant and the prosecution in the case, and is

imposed by a sentencing judge.” R.C. 2953.08(D)(1). “[A] sentence is ‘authorized by

law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports

with all mandatory sentencing provisions.” Underwood at ¶ 20. Upon our review of the

record and the sentencing entries, we find that the trial court complied with the

mandatory sentencing provisions when it imposed the jointly recommended sentence.

Therefore, appellant is precluded from challenging his agreed-upon sentence on appeal.

         {¶ 15} Accordingly, we find the second potential assignment of error to be without

merit.

                                       V. Conclusion

         {¶ 16} We have conducted an independent review of the record, as required by

Anders, and find no issue of arguable merit for appeal. Therefore, counsel’s motion to

withdraw is hereby granted.




7.
       {¶ 17} For the foregoing reasons, the judgments of the Lucas County Court of

Common Pleas are affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

       {¶ 18} The clerk is ordered to serve all parties with notice of this decision.


                                                                        Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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