[Cite as State v. Powell, 2014-Ohio-1653.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. CT2013-0045
TYRONE POWELL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2013-0128


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        April 16, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


D. MICHAEL HADDOX                              JOHN D. WEAVER
Muskingum County Prosecutor                    542 S. Drexel Ave.
27 N. Fifth St.                                Bexley, Ohio 43209
P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2013-0045                                                    2

Hoffman, P.J.


      {¶1}   Appellant, Tyrone Powell, was charged with one count of Receiving Stolen

Property in violation of R.C. 2913.51(A), a felony of the fourth degree.         Appellant

entered a guilty plea to the charge and was sentenced to a prison term of ten months.

      {¶2}   The charge arose from Appellant being in possession of a stolen vehicle.

      {¶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}   “DID    THE     TRIAL   COURT      COMMIT      REVERSIBLE       ERROR      AT

APPELLANT’S GUILTY PLEA?”

                                                II.

      {¶6}   “DID    THE     TRIAL   COURT      COMMIT      REVERSIBLE       ERROR      AT

APPELLANT’S SENTENCING?”

      {¶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
Muskingum County, Case No. CT2013-0045                                                    3

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

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,

              * * * 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.

       {¶10} “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–
Muskingum County, Case No. CT2013-0045                                                     4

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:

       {¶11} 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

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.

       {¶12} 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.

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

imposed by the trial court. Specifically, Appellant questions whether the trial court erred
Muskingum County, Case No. CT2013-0045                                                 5


in refusing to abide by the sentence recommended by the State as part of the plea

agreement.

      {¶14} “Trial courts are vested with discretion when implementing plea

agreements. State v. Buchanan, 154 Ohio App.3d 250, 253, 3002-Ohio-4772, citing

Akron v. Ragsdale (1978), 61 Ohio App.2d 107, 399 N.E.2d 119. “A trial court does not

err by imposing a sentence greater than ‘that forming the inducement for the defendant

to plead guilty when the trial court forewarns the defendant of the applicable penalties,

including the possibility of imposing a greater sentence than that recommended by the

prosecutor.” ’ Buchanan, 154 Ohio App.3d at 253, 796 N.E.2d 1003, citing State v.

Darmour (1987), 38 Ohio App.3d 160, 529 N.E.2d 208. See, also, State v. Mayle, 11th

Dist. No.2002-A-0110, 2004-Ohio-2203 (stating courts are not bound to accept the

state's recommended sentence as part of a negotiated plea agreement); State v. Tucci,

7th Dist. No. 01CA234, 2002-Ohio-6903 (stating before the court even sentences the

defendant, it must ascertain that the defendant understands that it can impose a higher

sentence than that recommended by the prosecution and that no one promised him

anything less than the maximum sentence).” State v. Martinez, 7th Dist. Mahoning No.

03 MA 196, 2004-Ohio-6806.

      {¶15} Prior to accepting Appellant’s plea, the trial court in this case clearly

expressed to Appellant the possible sentencing range and further informed Appellant

the trial court was not bound to follow the state’s sentencing recommendation. For this

reason, we find no error in the sentence imposed by the trial court as it was within the

range proscribed by statute, and the Appellant was made aware of the possible

imposition of a sentence different than the recommended sentence.
Muskingum County, Case No. CT2013-0045                                                  6


      {¶16} For these reasons, the second potential assignment of error is overruled.

      {¶17} 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 Muskingum County Court of Common Pleas.

By: Hoffman, P.J.

Gwin, J. and

Baldwin, J. concur
