[Cite as State v. Durkin, 2014-Ohio-2247.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )
                                              )    CASE NO.    13 MA 36
        PLAINTIFF-APPELLEE,                   )
                                              )
VS.                                           )    OPINION
                                              )
JAMES DURKIN,                                 )
                                              )
        DEFENDANT-APPELLANT.                  )



CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Youngstown
                                                   Municipal Court, Case No. 11CRB2052.


JUDGMENT:                                          Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Dana Lantz
                                                   Prosecuting Attorney
                                                   26 South Phelps Street
                                                   Youngstown, Ohio 44503


For Defendant-Appellant:                           Attorney Donna Jewell McCollum
                                                   201 East Commerce Street, Suite 346
                                                   Youngstown, Ohio 44503


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                   Dated: May 22, 2014
[Cite as State v. Durkin, 2014-Ohio-2247.]
VUKOVICH, J.


        {¶1}     Defendant-appellant James Durkin appeals from his convictions and
sentences in the Youngstown Municipal Court for four charges of theft in violation of
R.C. 2913.02(A)(1), first-degree misdemeanors.             Counsel filed a no-merit brief.
Durkin then filed his own brief. Durkin raises two arguments – ineffective assistance
of counsel and maximum sentence. Pursuant to our decision in Toney, in addition to
examining those arguments, we will also do an independent review of the case.
State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
        {¶2}     For the reasons expressed below, there are no appealable issues and
the issues raised by Durkin are meritless. Thus, the convictions and sentences are
hereby affirmed and appellate counsel’s motion to withdraw is granted.
                                   Statement of Case and Facts
        {¶3}     On October 5, 2011, four complaints were filed against Durkin. All four
complaints indicated that Durkin committed theft offenses in violation of R.C.
2913.02(A)(1) against four separate victims. In the first complaint, it was alleged that
he stole $900 from Eric Gaffney.             11CRBY2051.    The second complaint named
Lachrysha Carn as the victim and it was alleged that Durkin stole $480 from her.
11CRBY2052. Faydra Hill was named as the victim in the third complaint and it was
alleged that Durkin stole $750 from her. 11CRBY2053. The fourth complaint named
Mia Brown as the victim and in that complaint it was alleged that Durkin stole $4,000
from her. 11CRBY2054.
        {¶4}     On March 3, 2012, Durkin entered a no contest plea to each of the
charges and the court found him guilty.            For case numbers 11CRBY2051 and
11CRBY2053, he received 5 years of intensive probation. For the other two cases,
11CRBY2052 and 11CRBY2054, he received a 180 day jail sentence for each case
and was ordered to pay the victims of those cases restitution. Those sentences were
ordered to be served consecutive to each other.
        {¶5}     On March 12, 2013, Durkin filed a motion to withdraw his no contest
pleas in case numbers 11CRBY2052 and 11CRBY2054. The trial court denied those
motions the following day. 03/13/13 J.E.
                                                                                    -2-

      {¶6}   On March 28, 2013, Durkin filed a notice of appeal from the March 3,
2012 judgments (conviction and sentencing judgment entry), not from the March 13,
2013 judgment (denial of motion to withdraw plea judgment entry). Following his
notice of appeal, he filed a motion to allow the appeal as a delayed appeal, which this
court granted. 07/10/13 J.E. in 13MA36.
                                        Analysis
      {¶7}   When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no merit brief or an
Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). In this district it has also been called a Toney brief. State v. Toney, 23 Ohio
App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
      {¶8}   In Toney, this court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
             3. Where court-appointed counsel, with long and extensive
      experience in criminal practice, concludes that the indigent's appeal is
      frivolous and that there is no assignment of error which could be
      arguably supported on appeal, he should so advise the appointing court
      by brief and request that he be permitted to withdraw as counsel of
      record.
             4. Court-appointed counsel's conclusions and motion to withdraw
      as counsel of record should be transmitted forthwith to the indigent, and
      the indigent should be granted time to raise any points that he chooses,
      pro se.
             5. It is the duty of the Court of Appeals to fully examine the
      proceedings in the trial court, the brief of appointed counsel, the
      arguments pro se of the indigent, and then determine whether or not
      the appeal is wholly frivolous.
             ***
             7. Where the Court of Appeals determines that an indigent's
      appeal is wholly frivolous, the motion of court-appointed counsel to
                                                                                     -3-

       withdraw as counsel of record should be allowed, and the judgment of
       the trial court should be affirmed.
Id. at syllabus.
       {¶9}    The no merit brief was filed by counsel on November 15, 2013.
Thereafter, this court informed Durkin of counsel's no merit brief and granted him 30
days to file his own written brief. Durkin has filed a timely brief arguing that trial
counsel was ineffective and that he should not have received the maximum sentence
allowable by law. Therefore, in addition to our own independent review of the record,
we will also address the two arguments presented by Durkin.
                                             1. Plea
       {¶10} Crim.R. 11 governs the advisements that must be made at plea hearing
prior to accepting a no contest, guilty or not guilty plea.       Misdemeanor cases
involving “serious offenses” are governed by Crim.R. 11(D), while misdemeanor
cases involving “petty offenses” are governed by Crim.R. 11(E). A “serious offense”
includes any misdemeanor for which the penalty includes confinement for more than
six months. Crim.R. 2(C). A “petty offense” is a misdemeanor other than serious
offense. Crim.R. 2(D).
       {¶11} Durkin was charged with and pled to theft in violation of R.C.
2913.02(A)(1), which is a first degree misdemeanor. R.C. 2929.24(A)(1) provides
that the maximum sentence for a first-degree misdemeanor is 180 days, which is six
months. Thus, the advisements in this case are governed by Crim.R. 11(E), which
provides:
       (E) Misdemeanor cases involving petty offenses
               In misdemeanor cases involving petty offenses the court may
       refuse to accept a plea of guilty or no contest, and shall not accept such
       pleas without first informing the defendant of the effect of the plea of
       guilty, no contest, and not guilty.
Crim.R. 11.
       {¶12} Pursuant to that rule, the trial court was required to advise Durkin of the
effect of the no contest plea, which is defined by Crim.R. 11(B). State v. Jones, 116
                                                                                      -4-

Ohio St.3d 211, 2007–Ohio–6093, 877 N.E.2d 677, ¶ 20 (trial courts only are
required to advise of the effect of specific plea being entered). Crim.R. 11(B)
provides:
       (B) Effect of guilty or no contest pleas
              With reference to the offense or offenses to which the plea is
       entered:
              ***
              (2) The plea of no contest is not an admission of defendant's
       guilt, but is an admission of the truth of the facts alleged in the
       indictment, information, or complaint, and the plea or admission shall
       not be used against the defendant in any subsequent civil or criminal
       proceeding.
              (3) When a plea of guilty or no contest is accepted pursuant to
       this rule, the court, except as provided in divisions (C)(3) and (4) of this
       rule, shall proceed with sentencing under Crim. R. 32.
Crim.R. 11.
       {¶13} We have previously explained that there are three points of information
in Crim.R. 11(B)(2) that must be conveyed about the effect of a no contest plea.
State v. Dosch, 7th Dist. No. 08MA63, 2009–Ohio–6534, ¶ 12. First, that it is not an
admission of guilt. Id. Second, that it is an admission of the truth of the facts alleged
in the indictment, information, or complaint. Id. And, third, that the plea cannot be
used against the defendant in any subsequent civil or criminal proceedings. Id.
       {¶14} The test used to determine whether an advisement on the effect of the
plea being entered was adequate is a substantial compliance standard. State v.
Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12.               Under this
standard, a slight deviation from the text of the rule is permissible as long as the
totality of the circumstances indicates that “the defendant subjectively understands
the implications of his plea and the rights he is waiving,” the plea may be upheld.
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
                                                                                    -5-

      {¶15} When the trial court does not substantially comply in regard to a
nonconstitutional right, such as the effect of a no contest plea, reviewing courts must
determine whether the trial court partially complied or failed to comply with the
dictates of the rule in question. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–
3748, 893 N.E.2d 462, ¶ 32.      If there is partial compliance, such as mentioning
mandatory post-release control without explaining it, the plea is only to be vacated if
the defendant demonstrates a prejudicial effect.      Id.   The test for prejudice is
“whether the plea would have otherwise been made.” Id. quoting Nero at 108, 564
N.E.2d 474. However, if the trial court completely fails to comply with the rule, the
plea must be vacated; a showing of prejudice is not needed to be demonstrated in
that instance. Id. An example of complete failure to comply with the rule is failing to
mention post-release control at all during the plea colloquy even though it is
applicable to the defendant. State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509,
881 N.E.2d, 1224, ¶ 22. See also State v. Clark, 119 Ohio St.3d 239, 2008–Ohio
3748, 893 N.E.2d 462.
      {¶16} We now apply this test to the facts of this case. Here, the trial court
gave the following advisement concerning the effect of the no contest plea:
             THE COURT: Well, if you’re pleading no contest, you are saying
      that you are not contesting these charges. You are allowing me to find
      that you’re guilty of all four theft charges without going through a trial
      and being proven guilty.     So for each of these four charges you’re
      giving up your right to have a trial, you’re giving up your right to be
      proven guilty by proof beyond a reasonable doubt, you’re giving up your
      right to confront all of the evidence that the Prosecutor would have to
      present against you, you’re giving up your right to cross examine all of
      the witnesses who would be called to testify against you, you’re giving
      up your right to require any witnesses that you may have to come in
      here and testify on your behalf, you’re giving up your right to continued
      representation by counsel through whatever trial proceeds there would
                                                                                       -6-

       be and you’re giving up your right not testify at your trial if you didn’t
       want to.
Tr. 4-5.
       {¶17} This advisement does not substantially comply with Crim.R. 11(B)(2)
and (E) because it is not a slight deviation from the text of the rule. Specifically, this
advisement does not inform the defendant that the no contest plea is not an
admission of guilt or that the plea cannot be used against the defendant in any
subsequent civil or criminal proceedings, the first or third points of information
discussed in Dosch.
       {¶18} However, this advisement is not a complete failure to comply with the
rule, but rather is only a partial failure because the court did attempt to advise him of
the effect of the no contest plea. The advisement given indicates that Durkin is
permitting the trial court to find him guilty without the opportunity to present a
defense. State v. Lazazzera, 7th Dist. No. 12MA170, 2013-Ohio-2547, ¶ 20. This
expresses not only the second point of information discussed in Dosch, but also the
essence of a no contest plea; “‘The essence of the “no contest” plea, is that the
accused cannot be heard in defense.’” State ex rel. Stern v. Mascio, 75 Ohio St.3d
422, 424, 662 N.E.2d 370 (1996).
       {¶19} Therefore, in order for the plea to be vacated, we must find prejudice.
Clark, 2008–Ohio–3748 at ¶ 32.
       {¶20} For the same reasons espoused in our decision in Lazazzera, we
likewise cannot find that the deficient advisement prejudiced Durkin. It is difficult to
find prejudice considering the trial court's advisement. The primary goal in giving the
plea advisement is to ensure that the offender is aware of all potential adverse effects
of the plea. Lazazzera at ¶ 24. As is shown above, Durkin was advised of the
negative effect of his no contest plea—that he could be found guilty without going
through a trial and without presenting a defense. “The deficiency in the advisement is
the failure to advise Durkin of the beneficial effect of the plea—that it could not be
used against him in any subsequent civil or criminal proceeding. If a person is not
                                                                                        -7-

advised of a potential beneficial effect of the plea, it is difficult to imagine a scenario
where such a defendant in a traffic case sustains any prejudice for such a failure.” Id.
       {¶21} Furthermore, given the information that was provided to Durkin during
the plea colloquy and his statements during the plea colloquy, it is also difficult to
conclude that the plea would not have otherwise been entered. For instance, the trial
court asked whether Durkin discussed the no contest plea with his attorney, to which
he responded that he had. Tr. 4. Likewise, when asked if he understood the rights
he was giving up, Durkin responded that he did. Tr. 5. Then when asked if he had
any questions about “that,” Durkin non-responsively answered, “I am guilty, yes.” Tr.
5. Thus, he was admitting his guilt to the charges. Therefore, considering all the
above, there are no appealable issues regarding the plea.
                                     2. Sentencing
       {¶22} We have previously stated that:
              “[Misdemeanor] [s]entencing is within the discretion of the trial
       court and ordinarily will not be disturbed absent an abuse of discretion.
       State v. Wagner (1992), 80 Ohio App.3d 88, 95, 608 N .E.2d 852, citing
       Columbus v. Jones (1987), 39 Ohio App.3d 87, 529 N.E.2d 947. An
       abuse of discretion connotes more than an error of law or judgment; it
       implies that the trial court acted unreasonably, arbitrarily, or
       unconscionably. State v. Joseph (1996), 109 Ohio App.3d 880, 882,
       673 N.E.2d 241, citing State v. Adams (1980), 62 Ohio St.2d 151, 157,
       404 N.E.2d 144. When reviewing a sentence, an appellate court should
       be guided by the presumption that the trial court's findings were correct.
       In the Matter Of: Michael L. Slusser (2000), 140 Ohio App.3d 480, 487,
       748 N.E.2d 105.
State v. Robles, 7th Dist. No. 06-MA-112, 2007-Ohio-5241, ¶70.
       {¶23} In determining the appropriate sentence, R.C. 2929.21 and R.C.
2929.22 should be considered. R.C. 2929.21 provides the purposes and principles
of misdemeanor sentencing as protecting the public from future crime by the offender
and others and punishing the offender. R.C. 2929.22 lists factors to consider:
                                                                                      -8-

             (B)(1)   In   determining    the   appropriate   sentence      for   a
      misdemeanor, the court shall consider all of the following factors:
             (a) The nature and circumstances of the offense or offenses;
             (b) Whether the circumstances regarding the offender and the
      offense or offenses indicate that the offender has a history of persistent
      criminal activity and that the offender's character and condition reveal a
      substantial risk that the offender will commit another offense;
             (c) Whether the circumstances regarding the offender and the
      offense or offenses indicate that the offender's history, character, and
      condition reveal a substantial risk that the offender will be a danger to
      others and that the offender's conduct has been characterized by a
      pattern of repetitive, compulsive, or aggressive behavior with heedless
      indifference to the consequences;
             (d) Whether the victim's youth, age, disability, or other factor
      made the victim particularly vulnerable to the offense or made the
      impact of the offense more serious;
             (e) Whether the offender is likely to commit future crimes in
      general, in addition to the circumstances described in divisions (B)(1)(b)
      and (c) of this section;
             (f) Whether the offender has an emotional, mental, or physical
      condition that is traceable to the offender's service in the armed forces
      of the United States and that was a contributing factor in the offender's
      commission of the offense or offenses;
             (g) The offender's military service record.
R.C. 2929.22(B).
      {¶24} A review of the record reveals that the trial court did consider these
factors. At the plea hearing, the crimes were discussed. It appears Durkin was
attempting to sell houses that he claimed to own, but when the time came for closing
he would not be able to transfer the deed to the property to the buyers. When the
buyers demanded their money back he was unable to give it to them because he had
                                                                                      -9-

used it to buy drugs. There was an allegation that he did not own the houses he was
purporting to sell. The record also indicates that Durkin has done this type of scam
throughout the State of Ohio and that there is an outstanding debt of close to
$300,000 for these types of crimes. Tr. 3. Durkin also admitted to being an addict
and he claimed that his addiction was the reason why he committed these crimes.
       {¶25} Given the facts, the trial court obviously was concerned about
recidivism and deemed that the maximum penalty for two of the offenses should be
imposed. For the other two offenses, the trial court ordered intensive probation. The
most likely reason for intensive probation was an attempt to ensure that Durkin would
stay drug free. By his own admission, his addiction is what caused these crimes.
Thus, if he is able to stay drug free, potentially he might not commit these types of
theft offenses.
       {¶26} Therefore, given the record, the maximum sentence was not an abuse
of discretion. There are no appealable issues concerning sentencing.
                                Counsel's Performance
       {¶27} The last issue to discuss is Durkin’s argument that trial counsel’s
performance was ineffective.     To prove an allegation of ineffective assistance of
counsel, the two-prong Strickland test must be met. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052 (1984).        First, it must be established that counsel's
performance fell below an objective standard of reasonable representation. Id. at
687; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of
the syllabus. Second, it must be shown that defendant was prejudiced by counsel's
deficient performance. Strickland at 687. Or, in other words, it must be shown that
but for counsel's errors, the result of the trial would have been different. Bradley, at
paragraph three of the syllabus. If this court finds that either prong fails, there is no
need to analyze the remaining prong because in order for ineffective assistance of
counsel to be shown, both prongs must be established by appellant.              State v.
Herring, 7th Dist. No. 06JE8, 2007–Ohio–3174, ¶ 43.
       {¶28} On the record there is nothing to suggest that counsel’s performance
was deficient.    As discussed above, Durkin indicated that he had discussed the
                                                                                     -10-

matter with his attorney. Tr. 4-5. The record is devoid of any indication that Durkin
was not satisfied with the representation. Furthermore, nothing in the record reveals
deficient performance.
       {¶29} Durkin argues that his counsel “tricked” him into believing that pleading
was the best solution.      He now claims his innocence.          That allegation directly
contradicts his statements at the plea hearing where he stated he “is guilty” and
stated “whatever you give me I deserve.” Tr. 5, 13. Therefore, even if we could find
deficient performance, it is difficult to find that Durkin was prejudiced.
       {¶30} Simply put, this record contains no indication that trial counsel was
ineffective. There are no appealable issues concerning the ineffective assistance of
counsel claim.
                                       Conclusion
       {¶31} For the foregoing reasons, Durkin’s conviction and sentence are hereby
affirmed.   Furthermore, as there are no appealable issues, appellate counsel’s
motion to withdraw is granted.



Donofrio, J., concurs.
Waite, J., concurs.
