[Cite as State v. Shoemaker, 2016-Ohio-758.]



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

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )                 CASE NO. 15 BE 0015
V.                                              )
                                                )                      OPINION
JASON ALLEN SHOEMAKER,                          )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Belmont County, Ohio
                                                Case No. 14 CR 255

JUDGMENT:                                       Affirmed

APPEARANCES:
For Plaintiff-Appellee                          No brief filed.

For Defendant-Appellant                         Attorney Daniel M. Balgo
                                                Attorney Scot MM. McMahon
                                                52171 National Road, Suite 4
                                                St. Clairsville, Ohio 43950




JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                Dated: February 25, 2016
[Cite as State v. Shoemaker, 2016-Ohio-758.]
DONOFRIO, P.J.

        {¶1}    Defendant-appellant Jason             Allen   Shoemaker appeals from his
convictions and sentences entered in the Belmont County Common Pleas Court
following his guilty pleas to fourth-degree-felony driving while under the influence of
alcohol or drugs (OVI) and second-degree-felony aggravated vehicular assault.
Appointed appellate counsel has filed a no-merit brief and has requested to withdraw.
        {¶2}    In its fall term of 2014, the Belmont County Grand Jury indicted
Shoemaker on three felony counts.                Count I was fourth-degree-felony OVI with
specifications that he refused a chemical test and that, within 20 years of this offense,
had     been       convicted       of     five   or    more     equivalent   offenses.     R.C.
4511.19(A)(2)(a)(b)(G)(1)(d)(ii).          Counts II and III were second-degree-felony
aggravated vehicular assaults. R.C. 2903.08(A)(1)(a)(B)(1)(a).
        {¶3}    Pursuant to a Crim.R. 11 agreement, Shoemaker pleaded guilty on
February 17, 2015, to Count I (fourth-degree-felony OVI) and Count II (second-
degree-felony aggravated vehicular assault).              In exchange, the State moved to
dismiss Count III (second-degree-felony aggravated vehicular assault) and
recommend an aggregate sentence of 5 years in prison.
        {¶4}    The trial court conducted sentencing on March 16, 2015. The court
sentenced Shoemaker to an 18-month term of imprisonment on Count I to be served
concurrently with a 6-year term of imprisonment for Count II for an aggregate prison
sentence of 6 years.
        {¶5}    Shoemaker filed a timely notice of appeal. After reviewing the record,
appointed appellate counsel filed a no-merit brief asking to withdraw because there
are allegedly no appealable issues.
        {¶6}    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 (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).
        {¶7}    In Toney, this court recognized an indigent defendant’s constitutional
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right to court-appointed counsel for direct appeal of their conviction. Id., at paragraph
one of the syllabus. After a conscientious examination of the record, counsel should
present any assignments of error which could arguably support the appeal. Id., at
paragraph two of the syllabus. If instead counsel determines that the defendant’s
appeal is frivolous and that there is no assignment of error which could be arguably
supported on appeal, then counsel should inform the appellate court and the
defendant of that by brief and ask to withdraw as counsel of record. Id., at paragraph
three and four of the syllabus. The defendant is then given the opportunity to raise,
pro se, any assignments of error he chooses. Id., at paragraph four of the syllabus.
The appellate court then is duty bound to examine the record, counsel’s brief, and
any pro se arguments, and determine if the appeal is wholly frivolous. Id., paragraph
five of the syllabus. If after determining that the appeal is wholly frivolous, then the
appellate court should permit counsel to withdraw and affirm the judgment of
conviction and sentence. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th
Dist.1970).
       {¶8}   Appointed appellate counsel filed a no-merit brief on June 2, 2015. On
June 29, 2015, this court issued a judgment entry informing Shoemaker of counsel’s
no-merit brief and granting him thirty days to file his own written brief. Shoemaker
has not filed an appellate brief on his own behalf.
       {¶9}   Thus, we proceed with an independent examination of the record to
determine if the appeal is frivolous. In cases involving a guilty or no contest plea and
where there are no transcripts of pretrial hearings (if any were conducted), typically
the only potential issues for review concern whether the plea was entered knowingly,
intelligently, and voluntarily, and whether the sentence complies with the law.
                                        Plea Colloquy
       {¶10} The parameter of our review of Shoemaker’s guilty pleas is whether the
pleas were entered into voluntarily, knowingly and intelligently in accordance with
Crim.R. 11. Crim.R. 11(C) states that a trial court must make certain advisements
prior to accepting a defendant’s guilty plea to ensure that the plea is entered into
                                                                                -3-


knowingly, intelligently and voluntarily. State v. Wright, 7th Dist. No. 09 MA 1, 2009-
Ohio-4636, ¶ 13. These advisements are typically divided into constitutional rights
and nonconstitutional rights. Id.
       {¶11} The constitutional rights are: (1) a jury trial; (2) confrontation of
witnesses against him; (3) the compulsory process for obtaining witnesses in his
favor; (4) that the State must prove the defendant’s guilt beyond a reasonable doubt
at trial, and (5) that the defendant cannot be compelled to testify against himself. Id.,
citing Crim.R. 11(C)(2)(c).     If the trial court fails to strictly comply with these
requirements, the defendant’s plea is invalid. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 31.
       {¶12} The nonconstitutional rights are that: (1) the defendant must be
informed of the nature of the charges; (2) the defendant must be informed of the
maximum penalty involved, which includes an advisement on post-release control, if
it is applicable; (3) the defendant must be informed, if applicable, that he is not
eligible for probation or the imposition of community control sanctions, and (4) the
defendant must be informed that after entering a guilty plea or a no contest plea, the
court may proceed to judgment and sentence. Wright at ¶ 14, citing Crim.R.
11(C)(2)(a)(b); Veney at ¶¶ 10-13.
       {¶13} For the nonconstitutional rights, the trial court must substantially comply
with Crim.R. 11’s mandates. 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.” Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea
on the basis that the advisement for the nonconstitutional rights did not substantially
comply with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the
plea would not have been otherwise entered. Veney at ¶ 15.
       {¶14} In this case, the trial court strictly complied with Crim.R.11(C)(2)(c) in
advising Shoemaker of his constitutional rights. The court informed Shoemaker that
by pleading guilty he was giving up the right to a speedy and public trial, the right to
                                                                              -4-


confront witnesses against him, the right to compulsory service of witnesses in his
favor, the right to have the State prove his guilt beyond a reasonable doubt, and the
right not to be compelled to testify against himself. (Plea Tr. 5.)        Shoemaker
responded that he understood that he was giving up these rights by pleading guilty.
(Plea Tr. 5.)
       {¶15} Additionally, the trial court substantially complied with Crim.R. 11(C) in
its advisement on the nonconstitutional rights.     The trial court ascertained from
Shoemaker that he understood the charges against him and the maximum penalties
they carried. (Plea Tr. 4-5.) The court then told Shoemaker that after accepting the
plea they could immediately proceed with judgment and sentence. (Plea Tr. 6.)
Finally, the court informed Shoemaker about post release control. (Plea Tr. 6-7.) In
each instance, Shoemaker indicated that he understood the advisements the court
was giving him.
       {¶16} Additionally, the trial court asked Shoemaker whether he would be
signing the plea agreement voluntarily and he responded in the affirmative. (Plea Tr.
6.) Also, the court questioned whether Shoemaker was under the influence of drugs
or alcohol and he responded that he was not. (Plea Tr. 4.)
       {¶17} In sum, after reviewing the transcript, the plea colloquy complied with
Crim.R.11 (C). Thus, Shoemaker entered into his plea intelligently, voluntarily and
knowingly.
                                        Sentencing
       {¶18} Turning to sentencing, 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 (Vukovich, J., Donofrio, J., majority with DeGenaro, J., concurring in
judgment only with concurring in judgment only opinion); State v. Wellington, 7th Dist.
No. 14 MA 115, 2015-Ohio-1359 (Robb, J., DeGenaro, J., majority with Donofrio, J.
concurring in judgment only with concurring in judgment only opinion).
       {¶19} One approach, as applied in Hill, is to apply the test set out in the
plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
                                                                                  -5-


124, ¶ 26. Under the Kalish test, we must first examine the sentence to determine if
it is “clearly and convincingly contrary to law.” Id. (O’Connor, J., plurality opinion). In
examining “all applicable rules and statutes,” the sentencing court must consider R.C.
2929.11 and R.C. 2929.12. Id. at ¶ 13-14 (O’Connor, J., plurality opinion). If the
sentence is clearly and convincingly not contrary to law, the court’s discretion in
selecting a sentence within the permissible statutory range is subject to review for
abuse of discretion. Id. at ¶ 17 (O’Connor, J., plurality opinion). Thus, we also apply
an abuse of discretion standard to determine whether the sentence satisfies R.C.
2929.11 and R.C. 2929.12. Id. at ¶ 17 (O’Connor, J., plurality opinion).
       {¶20} The other approach, as applied in Wellington, is to strictly follow R.C.
2953.08(G), which provides that appellate courts are only to review felony sentences
to determine if they are contrary to law. R.C. 2953.08(G) does not employ an abuse
of discretion component.
       {¶21} The issue of which felony sentencing standard of review to apply is
currently pending before the Ohio Supreme Court.           The Court has accepted the
certified question: “[D]oes the test outlined by the [c]ourt in State v. Kalish apply in
reviewing felony sentences after the passage of R.C. 2953.08(G)?” State v. Marcum,
141 Ohio St.3d 1453, 2015-Ohio-239, 23 N.E.3d 1453.
       {¶22} Regardless of which test is applied here, Shoemaker’s sentence does
not call for reversal.   Shoemaker was convicted of fourth-degree-felony OVI and
second-degree-felony aggravated vehicular assault. In this instance, the possible
sentences for a fourth-degree-felony OVI conviction are 120 days local incarceration,
up to 1 year; or 60 days prison, with option of additional 6 to 30 months. R.C.
4511.19(G)(1)(d)(ii). The possible sentences for second-degree-felony aggravated
vehicular assault are 2, 3, 4, 5, 6, 7, or 8 years. R.C. 2929.14(A)(2). Here, the trial
court sentenced Shoemaker respectively to 18-month and 6-year terms to be served
concurrently. Since his sentences fell within the ranges, there is no error with them.
See State v. Koffel, 7th Dist. No. 06 CO 36, 2007-Ohio-3177, ¶ 31. The trial court did
sentence Shoemaker to more-than-minimum sentences.               But, while the General
                                                                                 -6-


Assembly has reenacted the judicial fact-finding requirement for consecutive
sentences, it has not revived the requirement for maximum and more than minimum
sentences. State v. Riley, 7th Dist. No. 13 MA 180, 2015-Ohio-94, ¶ 34.
       {¶23} Furthermore, at the sentencing hearing and in the judgment entry, the
trial court indicated that it considered both R.C. 2929.11, the purposes and principles
of sentencing, and R.C. 2929.12, the seriousness and recidivism factors, when
rendering the sentence. In analyzing the factors contained on R.C. 2929.12(B) and
(D), the court noted Shoemaker’s history of criminal convictions, including: domestic
violence; driving under suspension; intimidation of attorney, victim, or witness; OVIs;
operating a motor vehicle over specified limit; contempt of court; theft; credit misuse;
intimidation of a victim; drug abuse; no operator’s license; illegal u-turn; FRA
suspension; and permitting drug abuse. The court also observed that Shoemaker
had not responded to sanctions previously imposed, established a pattern of criminal
activity without “good faith” treatment and/or an effort to change his lifestyle, and that
the population of Belmont County was endangered by his conduct. Thus, the length
of the prison terms cannot be said to rise to the level of an abuse of discretion given
the record.
       {¶24} Considering all of the findings by the trial court, the sentence ordered is
not clearly and convincingly contrary to law and the trial court did not abuse its
discretion in ordering the sentence that it did.      There are no appealable issues
concerning the sentence imposed.
       {¶25} For all of the foregoing reasons, the judgment of the trial court is
affirmed and counsel’s motion to withdraw granted.

DeGenaro, J., concurs.

Robb, J., concurs.
