[Cite as State v. Bell, 2016-Ohio-1440.]
                            STATE OF OHIO, MAHONING COUNTY
                                IN THE COURT OF APPEALS
                                    SEVENTH DISTRICT


STATE OF OHIO                              )   CASE NO. 14 MA 0017
                                           )
        PLAINTIFF-APPELLEE                 )
                                           )
VS.                                        )   OPINION
                                           )
BRANDON BELL                               )
                                           )
        DEFENDANT-APPELLANT                )

CHARACTER OF PROCEEDINGS:                      Criminal Appeal from the Court of
                                               Common Pleas of Mahoning County,
                                               Ohio
                                               Case Nos. 2013 CR 631;
                                               2012 CR 927A; 2012 CR 1254

JUDGMENT:                                      Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                        Atty. Paul J. Gains
                                               Mahoning County Prosecutor
                                               Atty. Ralph M. Rivera
                                               Assistant Prosecuting Attorney
                                               21 West Boardman Street, 6th Floor
                                               Youngstown, Ohio 44503

For Defendant-Appellant:                       Atty. Rhys B. Cartwright-Jones
                                               42 N. Phelps Street
                                               Youngstown, Ohio 44503-1130

                                               Brandon Bell, Pro se, #A650848
                                               Marion Correctional Institution
                                               P. O. Box 57
                                               940 Marion-Williamsport Road
                                               Marion, Ohio 43302


JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                               Dated: March 30, 2016
[Cite as State v. Bell, 2016-Ohio-1440.]
WAITE, J.


        {¶1}     Appellant Brandon Bell appeals from his convictions and sentences

pursuant to a Crim.R. 11 plea agreement entered in the Mahoning County Common

Pleas Court for aggravated robbery, burglary and aggravated possession of drugs.

Appellant's counsel filed a no merit brief and requested leave to withdraw. A review

of the case file and brief reveals that there are no appealable issues. Accordingly,

appointed counsel's motion to withdraw is hereby granted and the convictions and

sentences are affirmed in all respects.

                                           Background

        {¶2}     On September 21, 2012, Appellant was indicted on aggravated robbery,

R.C. 2911.01(A)(1), (D), a first degree felony. On December 6, 2012, Appellant was

indicted on burglary, R.C. 2911.12(A)(2), (D), a second degree felony. On June 20,

2013, Appellant was indicted on aggravated possession of drugs, R.C. 2925.11(A),

(C)(1)(a), a fifth degree felony. These charges were litigated under three separate

case numbers in the Mahoning County Court of Common Pleas.

        {¶3}     On June 19, 2013, the court held a change of plea hearing for the first

two cases, and Appellant pleaded guilty to aggravated robbery and burglary. The

state agreed to recommend a term of incarceration, but would not request a specific

prison term.       The written plea agreement and the judgment entry accepting the

change of plea were filed on July 1, 2013.

        {¶4}     On August 30, 2013, the court held a change of plea hearing regarding

the third charge. Pursuant to a written plea agreement, Appellant pleaded guilty to

aggravated possession of drugs. The state agreed to recommend a sentence to run
                                                                                    -2-

concurrently with Appellant’s sentences for aggravated robbery and burglary. The

court held a combined sentencing hearing on all three pleas. The court sentenced

Appellant to six years in prison on aggravated robbery, four years for burglary, and

twelve months on aggravated possession of drugs, all to run concurrently. Appellant

has timely appealed.

                                       Analysis

       {¶5}    When appellate counsel seeks to withdraw from an appeal after finding

no meritorious arguments for appeal, the filing is known as a no merit brief or an

Anders brief, in reference to the case of Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.E.2d 493 (1967). In this appellate district, it has also been called a Toney

brief, in reference to our Opinion in State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d

419 (7th Dist.1970).

       {¶6}    In Toney, we set forth the procedure to be used when counsel of record

determines that an indigent's appeal is frivolous:

       3.     Where a 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
                                                                                      -3-

       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 withdraw as

       counsel of record should be allowed, and the judgment of the trial court

       should be affirmed.

Id. at syllabus.

       {¶7}    A no merit brief was filed by appellate counsel in this matter on July 28,

2014. On August 11, 2014, we informed Appellant that his counsel had filed a no

merit brief and granted him 30 days to file his own written pro se brief. Instead,

Appellant filed a letter on August 28, 2014 that we have treated as his written brief.

Accordingly, our analysis will proceed with an independent examination of the record

to determine if the appeal is frivolous. Specifically, we review to determine whether

the plea was entered knowingly, intelligently, and voluntarily and whether the

sentence complies with law.

                                          Plea
                                                                                      -4-

       {¶8}   Crim.R. 11(C) provides that a trial court must make certain advisements

prior to accepting a defendant's guilty plea to ensure that the plea is entered into

knowingly, intelligently, and voluntarily. These advisements are typically divided into

constitutional rights and nonconstitutional rights.

       {¶9}   The constitutional rights of which Appellant must be aware are: 1) his

right to jury trial; 2) confrontation of witnesses against him; 3) compulsory process for

obtaining witnesses in his favor; 4) the requirement that the state prove the

defendant's guilt beyond a reasonable doubt at trial; and 5) that Appellant cannot be

compelled to testify against himself. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶19-21. The trial court must strictly

comply with these requirements; if it fails to strictly comply, the defendant's plea is

invalid. Veney at ¶31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115

(1981).

       {¶10} The nonconstitutional rights that Appellant must be informed of are: 1)

the nature of the charges; 2) the maximum penalty involved, which includes, if

applicable, an advisement on postrelease control; 3) if applicable, that Appellant is

not eligible for probation or the imposition of community control sanctions; and 4)

Appellant must be told that after entering a guilty plea or a no contest plea, the court

may proceed directly to judgment and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at

¶10-13; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224. As

to the nonconstitutional rights, the trial court must only substantially comply with the

mandates of Crim.R. 11. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474
                                                                                        -5-

(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, quoting Nero at 108. Furthermore, a defendant who

challenges his guilty plea on the basis that the advisement on nonconstitutional rights

did not substantially comply with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial

effect, meaning that his plea would not have been entered but for the defect. Veney

at ¶15, citing Nero at 108.

         {¶11} After reviewing the record, it is apparent that the trial court's advisement

as to Appellant’s constitutional rights strictly complied with Crim.R. 11(C)(2)(c).

Appellant was informed in the written plea agreement, which he signed, and at the

plea hearing that he understood that by pleading guilty he was waiving his right to a

jury trial, his right to confront witnesses against him, his right to subpoena witnesses

in his favor, his right to have the state prove beyond a reasonable doubt every

element of the indicted offenses, and his right not to be compelled to testify against

himself. (6/19/13 Tr., p. 4; 8/30/13 Tr., p. 3.) There is no indication in the record that

Appellant was impaired in any way from understanding and answering the questions

presented to him in his plea hearing, and he voluntarily answered all the questions

presented by the trial judge.

         {¶12} As to his nonconstitutional rights, Appellant was advised that he was

charged with counts of aggravated robbery, burglary and aggravated possession of

drugs.    He was informed that the maximum penalty for aggravated robbery was

eleven years in prison; for burglary, eight years; and for aggravated possession of
                                                                                      -6-

drugs, twelve months. He was also informed of the possible fines associated with

each crime. He was informed that he was eligible for a community control sanction.

The trial court also explained to Appellant that following his release from prison he

would be subject to five years of mandatory postrelease control for the first two

charges, and optional postrelease control for the aggravated possession of drug

charge. He was told of the consequences should he violate postrelease control. The

trial court explained that it could proceed directly to sentencing after accepting the

plea. These advisements completely complied with the mandates of Crim.R. 11(C).

       {¶13} Appellant claims, pro se, that he was impaired due to his drug abuse

when he committed the robbery offense, that he did not know what he was doing,

and that this should invalidate his plea. Whether or not he was impaired when he

committed the crime, there is no indication that he was impaired when he entered his

plea, and that is the crucial issue for our review.           Furthermore, “[v]oluntary

intoxication may not be taken into consideration in determining the existence of a

mental state that is an element of a criminal offense. Voluntary intoxication does not

relieve a person of a duty to act if failure to act constitutes a criminal offense.” R.C.

2901.21(E). “Intoxication,” in this context, includes the use of both drugs and alcohol.

R.C. 2901.21(F)(4).

       {¶14} Consequently, for the above reasons, this record reflects that there are

no appealable issues concerning the plea. The record confirms that the plea was

intelligently, voluntarily, and knowingly entered.

                                       Sentencing
                                                                                        -7-

       {¶15} R.C. 2953.08(G) provides that appellate courts review felony sentences

to determine if they are contrary to law. State v. Marcum, Slip Opinion No. 2016-

Ohio-1002. “[A]n appellate court may vacate or modify any sentence that is not

clearly and convincingly contrary to law only if the appellate court finds by clear and

convincing evidence that the record does not support the sentence.” Id. at ¶23.

Pursuant to Marcum, we no longer review felony sentences for abuse of discretion.

Id. at ¶1 (“an appellate court need not apply the test set out by the plurality in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124”).

       {¶16} In determining the appropriate sentence, the trial court is directed to

consider the purposes and principles of sentencing as espoused in R.C. 2929.11, the

seriousness and recidivism factors enumerated in R.C. 2929.12, and the permissible

statutory ranges as set forth in R.C. 2929.14.

       {¶17} The trial court at the sentencing hearing and in its judgment entries

clearly indicated that it considered R.C. 2929.11 and R.C. 2929.12 in determining the

appropriate sentence.     The court followed the prosecutor's recommendations at

sentencing.    Furthermore, the sentences ordered were within the permissible

statutory ranges. Appellant was sentenced to six years in prison for aggravated

robbery, four years for burglary, and twelve months for aggravated possession of

drugs, all within the statutory ranges for those crimes. There are no issues raised

regarding consecutive sentences because consecutive sentences were not imposed.

       {¶18} Appellant claims that he was promised a four-year prison term and that

he should be permitted to withdraw his plea because he received six years in prison.
                                                                                  -8-

There is no discussion anywhere in the record that Appellant was told he would

receive a maximum of four years in prison on these charges. Appellant was given

the right of allocution at sentencing and did not mention any promise or discussion

about a four-year prison term, nor did he say anything regarding being impaired while

committing any of the crimes. Further, Appellant was informed very clearly as to the

maximum sentence he faced, and indicated that he understood that maximum

sentence. Hence, the record reflects no appealable issues regarding sentencing.

                                    Conclusion

      {¶19} For the reasons expressed above, there are no nonfrivolous appealable

issues. The convictions and sentences are hereby affirmed and counsel's motion to

withdraw is granted. Costs waived due to Appellant's indigence.


DeGenaro, J., concurs.

Robb, J., concurs.
