[Cite as State v. Hart, 2016-Ohio-1008.]



                             STATE OF OHIO, BELMONT COUNTY
                                   IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO                                       )
                                                    )
        PLAINTIFF-APPELLEE                          )
                                                    )            CASE NO. 14 BE 0025
VS.                                                 )
                                                    )                   OPINION
RICHARD JEFFREY HART                                )
                                                    )
        DEFENDANT-APPELLANT                         )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Belmont County, Ohio
                                                    Case No. 12 CR 209

JUDGMENT:                                           Motion sustained. Judgment Affirmed.

APPEARANCES:
For Plaintiff-Appellee                              Attorney Daniel P. Fry
                                                    Belmont County Prosecutor
                                                    Attorney Helen Yonak
                                                    Assistant Prosecutor
                                                    147 West Main Street
                                                    St. Clairsville, Ohio 43950

For Defendant-Appellant                             Attorney Desirae DePiero
                                                    7330 Market Street
                                                    Youngstown, Ohio 44512



JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                    Dated: March 14, 2016
[Cite as State v. Hart, 2016-Ohio-1008.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Richard Jeffrey Hart, appeals the judgment of the
Belmont County Court of Common Pleas convicting him of two counts of rape and
one count of sexual battery and sentencing him accordingly. Appointed appellate
counsel for Hart has filed a no-merit brief and a request to withdraw as counsel
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967),
and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970). For the following
reasons, this court sustains counsel's motion to withdraw and affirms the judgment of
the trial court.
        {¶2}     Hart was accused of raping his step-daughter over a period of years.
As a result, he was indicted on one count of rape of a victim under 13 years old, R.C.
2907.02(A)(1)(b), a felony-life offense, and nine counts of rape by force or threat of
force, R.C. 2907.02(A)(2), all first-degree felonies. At the time of his indictment, Hart
had debilitating medical conditions and resided in a rehabilitation facility; therefore,
he consented to an arraignment without his presence. He pled not guilty to the
charges and waived his speedy trial rights.
        {¶3}     Hart later entered into a Crim.R. 11 plea agreement with the State. The
State agreed to dismiss the rape of a victim under age 13 count and six counts of
rape by force or threat of force, and amended one count of rape by force or threat of
force to sexual battery, R.C. 2907.03(A)(5), a third-degree felony. In exchange, Hart
agreed to enter an Alford guilty plea to the remaining two counts of rape by force or
threat of force, R.C. 2907.02(A)(2), charged in Counts II and III and alleged to have
occurred on or about December 2009 through July 2010, and Count IV as amended
to sexual battery, alleged to have occurred on or about December 2009 through July
2010. See generally N. Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970). The plea agreement notes that the State would be recommending the
maximum sentence of 25 years in prison. During the plea hearing the trial court
engaged in a colloquy with Hart concerning the rights he would give up by pleading
guilty, and discussed the specifics of the Alford plea with Hart and accepted Hart's
plea as knowingly, voluntarily and intelligently made and proceeded immediately to
                                                                                  -2-


sentencing.
       {¶4}   During sentencing, the State recommended maximum consecutive
sentences. The trial court addressed Hart and gave him the opportunity to make a
statement in mitigation of punishment. Hart stated that he believed he was innocent
but had entered the guilty plea because he believed accepting the plea bargain was
in his best interests. The trial court confirmed Hart's understanding that it had found
him guilty of the charges.
       {¶5}   The trial court read part of the victim impact statement into the record:

              And I'm quoting. Quote: "I just wanted to thank you for ruining my
       childhood and most of my teenage years. Thank you for showing me
       how messed up and sick a so-called human being can be. Thank you
       for giving me such an awful and dreadful life, so now that I can truly
       understand what being a normal teenage girl is really like. And once
       again, thank you for keeping me away from my loving family, because
       now I have them, and I know what it is like to have a loving and
       supportive family that you never wanted me to have. I hope you get it
       through your sick twisted mind that I never loved you. It was all lie [sic]."

       {¶6}   After considering, among other things, the record, victim impact letters,
statements made at sentencing, the purposes and principles of sentencing under
R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, the
trial court sentenced Hart to 10 years on each of the two rape counts and 5 years on
the sexual battery count. After making the findings under R.C. 2929.14(C)(4), the
trial court imposed consecutive sentences for an aggregate sentence of 25 years in
prison. The trial court also imposed a 5 year mandatory term of post-release control,
explained the ramifications of violating post-release control, classified Hart as a Tier
III sex offender and explained the resulting duties. The trial court also ordered Hart to
pay court costs, extraordinary costs and fines.
       {¶7}   An attorney appointed to represent an indigent criminal defendant may
                                                                                  -3-


seek permission to withdraw if the attorney can show that there is no merit to the
appeal. See generally Anders, 386 U.S. 738. To support such a request, appellate
counsel is required to undertake a conscientious examination of the case and
accompany his or her request for withdrawal with a brief referring to anything in the
record that might arguably support an appeal. Toney, 23 Ohio App.2d at 207.
Counsel's motion must then be transmitted to the defendant in order to assert any
error pro se. Id. at syllabus. The reviewing court must then decide, after a full
examination of the proceedings and counsel's and the defendant's filings, whether
the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is
granted, new counsel is denied, and the trial court's judgment is affirmed. Id.
      {¶8}   Counsel filed a no-merit brief and we granted Hart 30 days to file a pro-
se brief, which to date, he has failed to file. In the typical Anders case involving a
guilty plea, the only issues that can be reviewed relate to the plea or the sentence.
See, e.g., State v. Verity, 7th Dist. No. 12 MA 139, 2013–Ohio–1158, ¶ 11.
      {¶9}   A guilty plea must be made knowingly, voluntarily and intelligently.
State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 7. If it is
not, it has been obtained in violation of due process and is void. State v. Martinez,
7th Dist. No. 03 MA 196, 2004–Ohio–6806, ¶ 11, citing Boykin v. Alabama, 395 U.S.
238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness
of a plea, this court must consider all of the relevant circumstances surrounding it.
State v. Johnson, 7th Dist. No. 07 MA 8, 2008–Ohio–1065, ¶ 8, citing Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
      {¶10} The trial court must engage in a Crim.R. 11(C) colloquy with the
defendant in order to ensure that a felony defendant's plea is knowing, voluntary and
intelligent. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶
25–26. During the colloquy, the trial court is to provide specific information to the
defendant, including constitutional and nonconstitutional rights being waived. Crim.R.
11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.
      {¶11} The constitutional rights the defendant must be notified of are the right
                                                                                  -4-


against self-incrimination, to a jury trial, to confront one's accusers, to compel
witnesses to testify by compulsory process, and to have the state prove guilt beyond
a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008–
Ohio–5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these
requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115
(1981). "Strict compliance" does not require a rote recitation of the exact language of
the rule. Rather, a reviewing court should focus on whether the "record shows that
the judge explained these rights in a manner reasonably intelligible to the defendant."
Id. at paragraph two of the syllabus.
       {¶12} The nonconstitutional rights the defendant must be informed of are the
effect of his plea, the nature of the charges, and the maximum penalty, which
includes an advisement on post-release control if applicable. Further, a defendant
must be notified, if applicable, that he is not eligible for probation or the imposition of
community control sanctions. Finally, this encompasses notifying the defendant that
the court may proceed to judgment and sentence after accepting the guilty plea.
Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d 176 at ¶ 10–13; Sarkozy, 117 Ohio
St.3d 86, at ¶ 19–26. The trial court must substantially comply with these
requirements. 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." Id. at 108. In addition to demonstrating the trial court did not substantially
comply with Crim.R. 11(C)(2)(a)(b) the defendant must also show a prejudicial effect,
meaning the plea would not have otherwise been made. Veney, 120 Ohio St.3d 176
at ¶ 15 citing Nero, 56 Ohio St.3d at 108.
       {¶13} The trial court's advisement of Hart's constitutional rights strictly
complied with Crim.R. 11(C)(2)(c) , and he indicated he understood he was giving up
all of the above rights. The trial court also substantially complied with Crim.R. 11(C)
when advising Hart of his nonconstitutional rights. As the trial court's colloquy with
Hart complied with Crim.R. 11(C), the plea was knowingly, voluntarily, and
                                                                                   -5-


intelligently entered.
       {¶14} The unique aspect of the plea hearing was that Hart entered a plea in
accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970), where the defendant asserts he did not commit the crime but pleads guilty.

              An Alford plea is "merely a species of guilty plea" and is
       "procedurally indistinguishable" from a guilty plea. State v. Carter, 124
       Ohio App.3d 423, 429, 706 N.E.2d 409 (2d Dist.1997); State v. Nguyen,
       6th Dist. No. L–05–1369, 2007–Ohio–2034, ¶ 18. "The defendant's
       purpose for entering an Alford plea is to avoid the risk of a longer
       sentence by agreeing to plead guilty to a lesser offense or for fear of
       the consequences of a jury trial, or both." State v. Bailey, 1st Dist. No.
       C–030916, 2004–Ohio–6427, ¶ 7. A trial court may accept a guilty plea
       containing a protestation of innocence when "a defendant intelligently
       concludes that his interests require entry of a guilty plea and the record
       before the judge contains strong evidence of actual guilt." Alford at 37.
              By entering an Alford plea the defendant waives review of all
       alleged errors, except those errors that may have affected the entry of
       the plea pursuant to Crim.R. 11. Nguyen, supra, at ¶ 18; State v. Lewis,
       7th Dist. No. 97–CA–161 (July 30, 1999).

State v. Baker, 7th Dist. No. 12 MA 32, 2013-Ohio-862, ¶ 8-9.
       {¶15} The colloquy here began with the trial court asking Hart if he was
making the plea because he believed the consequences of going to trial were too
great compared with the consequences of pleading. Hart acknowledged that these
were the reasons he was making the Alford plea and that he understood that by
entering the plea he would be treated as guilty in all respects. The prosecutor made a
brief factual explanation to substantiate the proof of guilt. Finally, the trial court made
findings on the record that the Alford plea was not a result of coercion, deception or
intimidation; that counsel was present at the time of the plea; that counsel's advice
                                                                                 -6-


was competent in light of the circumstances surrounding the amended indictment;
that the plea was made with the understanding of the nature of the charges; that
Hart's decision was motivated, either by a desire to seek a lesser penalty or the fear
of the consequences of the jury trial, or both; and that the Alford plea was in Hart's
best interests. This satisfies the requirements of Alford. Accordingly, there are no
appealable issues regarding Hart's plea.
       {¶16} This Court is currently split as to the standard of review to apply in
felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014–Ohio–919,
which applied the two-part test set forth in the plurality opinion in State v. Kalish, 120
Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, and State v. Wellington, 7th Dist.
No. 14 MA 115, 2015–Ohio–1359, which applied R.C. 2953.08(G) limiting appellate
review of felony sentences to determining whether they are clearly and convincingly
contrary to law. The issue is currently before the Ohio Supreme Court. State v.
Marcum, 141 Ohio St.3d 1453, 2015–Ohio–239, 23 N.E.3d 1453. Regardless of
which standard of review is applied here, the outcome is the same.
       {¶17} Hart was afforded his allocution rights pursuant to Crim.R. 32(A)(1).
The trial court properly notified Hart that upon his release from prison he would be
subject to a mandatory five-year period of post-release control and explained the
ramifications of violating post-release control. See R.C. 2967.28(B)(1). The trial court
properly classified Hart as a Tier III sex offender and notified Hart about his sex
offender registration and notification duties.
       {¶18} The 25 year prison sentence Hart received is within the 10 to 25 year
range for the charges. See former R.C. 2929.14(A)(1) and (3). The trial court
considered the principles and purposes of felony sentencing and the sentencing
factors. R.C. 2929.11 and R.C. 2929.12.
       {¶19} With regard to consecutive sentences, the provisions of H.B. 86,
codified as R.C. 2929.14(C)(4), apply to criminal defendants who were sentenced on
or after September 30, 2011, including those, like Hart, who committed the sentenced
offenses before that date. State v. Stout, 7th Dist. No. 13 MA 30, 2014-Ohio-1094, 6
                                                                              -7-


N.E.3d 1263, ¶ 17.
       {¶20} Based on R.C. 2929.14(C)(4), a trial court is required to make three
findings before imposing consecutive sentences: 1) consecutive sentences are
necessary to protect the public from future crime or to punish the defendant; 2)
consecutive sentences are not disproportionate to the seriousness of the defendant's
conduct and the danger the defendant poses to the public; and 3) one of three
alternative findings, set out in subsections, namely that: a) the defendant was under
post-release control, specified statutory community control, or awaiting trial or
sentencing; b) the offenses were committed during a course of conduct and the harm
was so great/unusual that a single term does not reflect the seriousness of the
defendant's conduct; or c) the defendant's criminal history demonstrates the need to
protect the public from future crime by the defendant. R.C. 2929.14(C)(4).
       {¶21} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16
N.E.3d 659, the Supreme Court of Ohio held that the findings supporting consecutive
sentences must be made both at the sentencing hearing and in the entry. Bonnell at
¶ 37. However, a trial court need not state reasons to support its findings nor is it
required to use any "magic" or "talismanic" words, so long as it is apparent that the
court conducted the proper analysis. State v. Jones, 7th Dist. No. 13 MA 101, 2014-
Ohio-2248, ¶ 6; see also Bonnell at ¶37. Post-Bonnell, we may liberally review the
entirety of the sentencing transcript to discern whether the trial court made the
requisite findings. Bonnell at ¶29. However, as demonstrated by the outcome in
Bonnell—the Supreme Court reversed and remanded Bonnell's sentence because
the trial court failed to make a proportionality finding—there are limits to that
deference. Bonnell at ¶ 33-34. After a reviewing court determines the findings have
been made, the court "must also determine whether the record contains evidence in
support of the trial court's findings." State v. Correa, 7th Dist. 13 MA 23, 2015-Ohio-
3955, ¶ 76, citing Bonnell at ¶29.
       {¶22} Here, the trial court made the following findings with regard to the
imposition of consecutive sentences during the hearing:
                                                                                   -8-


                 This Court has reviewed the statutes on this matter. And
       specifically, 2929.41(A) and 2929.14(C)(4).
                 This Court believes, pursuant to those statutes, that the harm is
       so great and unusual, that a single term does not reflect adequately the
       seriousness of the conduct. And two, the criminal - - the offender's
       criminal history shows that consecutive terms are needed to protect the
       public.
                 I accordingly order that those terms be served consecutively and
       not concurrently, for a total of 25 years.
                 Quite bluntly, if the law permitted it, I would be sentencing you to
       more than 25 years, but that is the maximum permitted under the law.

       {¶23} The sentencing entry reiterated the statutory findings.
       {¶24} The trial court made findings sufficient to support the imposition of
consecutive sentences pursuant to R.C. 2929.14(C)(4). Although the trial court did
not use the word disproportionate during the hearing, the court's statements that "a
single term does not reflect adequately the seriousness of the conduct," and "[q]uite
bluntly, if the law permitted it, I would be sentencing you to more than 25 years,"
satisfies the proportionality finding as contemplated by our deferential standard of
review articulated in Bonnell.
       {¶25} In sum, because the record contains no apparent errors, counsel is
permitted to withdraw and the judgment of the trial court is affirmed.
Waite, J., concurs.

Robb, J., concurs.
