[Cite as State v. Reed, 2015-Ohio-3534.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
       Plaintiff-Appellee                      :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 14-COA-010
PHILLIP G. REED                                :
                                               :
       Defendant-Appellant                     :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland County
                                                   Court of Common Pleas, Case No.13-CRI-
                                                   112

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            August 28, 2015

APPEARANCES:



For Plaintiff-Appellee                             For Defendant-Appellant

PAUL T. LANGE                  MATTHEW J. MALONE
ASSISTANT PROSECUTING ATTORNEY 10 East Main Street
110 Cottage Street             Ashland, OH 44805
Ashland, OH 44805
Ashland County, Case No. 14-COA-010                                                   2

Gwin, P.J.

      {¶1}   Appellant, Phillip G. Reed, was indicted on a variety of offenses resulting

from his involvement in several burglaries. He negotiated a plea wherein he plead guilty

to one count of burglary which was a felony of the second degree, two counts of

burglary which were felonies of the third degree, one count of theft from an elderly

person, a felony of the fifth degree, and two counts of petty theft.     Appellant was

sentenced to a term of imprisonment of six years on the felony three burglary count

along with a $2,000.00 fine, a prison term of two years on the remaining two burglary

counts as well as a $1,000.00 fine, one year in prison for theft from the elderly with a

$500.00 fine, 180 days in jail and a $500.00 fine on each of the petty theft counts. The

two third degree felony burglaries were ordered served concurrently with one another

but consecutive to the theft from the elderly sentence.        The misdemeanors were

ordered served concurrently with the felony sentences. This resulted in an aggregate

prison sentence of nine years with fines totaling $5,500.00.

      {¶2}   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 has not raised any additional assignments of error pro

se.

      {¶3}   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
Ashland County, Case No. 14-COA-010                                                         3

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

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.

         {¶4}   Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738.

                             POTENTIAL ASSIGNMENTS OF ERROR

                                                  I.

         {¶5}   “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11

BEFORE ACCEPTING APPELLANT’S GUILTY PLEA.”

                                                  II.

         {¶6}   “WHETHER       THE     TRIAL    COURT’S      SENTENCE       IMPOSED       ON

APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR

AN ABUSE OF ITS DISCRETION.”

         {¶7}   We now will address the merits of Appellant’s potential Assignments of

Error.

                                                  I.

         {¶8}   In his first potential Assignment of Error, Appellant suggests the trial court

did not comply with Crim.R. 11 in accepting Appellant’s plea.
Ashland County, Case No. 14-COA-010                                                       4


       {¶9}   Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to

address the defendant personally, to convey certain information to such defendant, and

prohibits acceptance of 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–

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
Ashland County, Case No. 14-COA-010                                                        5

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 each 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.

       {¶13} Appellant’s first Assignment of Error is overruled.

                                                 II.

       {¶14} In his second potential assignment of error, Appellant challenges the

sentence imposed by the trial court.

       {¶15} The Ohio Supreme Court has established a two-step analysis for

reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The

first step is to “examine the sentencing court's compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's

decision to be reviewed under an abuse-of-discretion standard. Id.

       {¶16} We find the sentences imposed were not clearly and convincingly contrary

to law. The sentences in this case were imposed within the statutory range provided in

R.C. 2929.14.    We also find the trial court made the requisite statutory findings in
Ashland County, Case No. 14-COA-010                                                     6

support of imposing consecutive sentences as required by State v. Bonnell, 140 Ohio

St. 3d 209, 2014-Ohio-3177, 16 N.E. 3d 659, ¶ 37.

       {¶17} Having reviewed the sentence, sentencing factors found in R.C. 2929.12,

the facts surrounding the crimes, and Appellant’s extensive criminal history, we also find

the trial court did not abuse its discretion in imposing the sentence in this case.

       {¶18} Appellant’s second proposed assignment of error is overruled.

       {¶19} For these reasons, 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 Ashland County Court of

Common Pleas.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
