[Cite as State v. Calvert, 2011-Ohio-2183.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :   C.A. CASE NO. 24306

vs.                                                :    T.C. CASE NO. 10CR2337/2

THOMAS CALVERT                                      :   (Criminal Appeal from
                                                         Common Pleas Court)
        Defendant-Appellant                         :

                                        . . . . . . . . .

                                              O P I N I O N

                       Rendered on the 6th day of May, 2011.

                                        . . . . . . . . .

Carley J. Ingram, Asst. Pros. Attorney, Atty. Reg. No.0020084,
P.O. Box 972, Dayton, OH 45422
     Attorney for Plaintiff-Appellee

Jessica R. Moss, Atty. Reg. No.0085437, 2233 Miamisburg Centerville
Road, Dayton, OH 45459
     Attorney for Defendant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Thomas Calvert, pled guilty to one count of

burglary, R.C. 2911.12(A)(3), a felony of the third degree.                         As

part of the plea agreement, the parties stipulated that Defendant’s

sentence would not exceed three years.                        The trial court sentenced
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Defendant to a three year prison term.

     {¶ 2} Defendant   timely   appealed   to   this   court   from   his

conviction and sentence.   Defendant’s appellate counsel filed an

Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.

1396, 19 L.Ed.2d 493, stating that she could find no meritorious

issues for appellate review.         We notified Defendant of his

appellate counsel’s representations and afforded him ample time

to file a pro se brief.    None has been received.        This case is

now before us for our independent review of the record.          Penson

v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.

     {¶ 3} Defendant’s   appellate    counsel    has   identified     two

possible issues for appeal.

     FIRST ASSIGNMENT OF ERROR

     {¶ 4} “DID THE TRIAL COURT COMPLY WITH THE REQUIREMENTS OF

CRIMINAL RULE 11 IN ACCEPTING THE APPELLANT’S PLEA OF GUILTY TO

ONE (1) COUNT OF BURGLARY (OCCUPIED/CRIMINAL OFFENSE) IN VIOLATION

OF SECTION 2911.12(A)(3) OF THE OHIO REVISED CODE, A FELONY OF

THE THIRD DEGREE?”

     {¶ 5} Crim.R. 11(C)(2) governs the trial court’s acceptance

of guilty or no contest pleas in felony cases and provides:

     {¶ 6} “(2) In felony cases the court may refuse to accept a

plea of guilty or a plea of no contest, and shall not accept a

plea of guilty or no contest without first addressing the defendant
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personally and doing all of the following:

     {¶ 7} “(a) Determining that the defendant is making the plea

voluntarily, with 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.

     {¶ 8} “(b) Informing the defendant of and determining that

the defendant understands the effect of the plea of guilty or no

contest, and that the court, upon acceptance of the plea, may

proceed with judgment and sentence.

     {¶ 9} “(c) Informing the defendant and determining that the

defendant understands that by the plea the defendant is waiving

the rights to jury trial, to confront witnesses against him or

her, to have compulsory process for obtaining witnesses in the

defendant's favor, and to require the state to prove the defendant's

guilt beyond a reasonable doubt at a trial at which the defendant

cannot be compelled to testify against himself or herself.”

     {¶ 10} In order to be constitutionally valid and comport with

due process, a guilty plea must be entered knowingly, intelligently

and voluntarily.    Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274.         Compliance with Crim.R. 11(C)(2) in

accepting guilty or no contest pleas portrays those qualities.

     {¶ 11} In   State   v.   McGrady,   Greene   App.   No.   2009CA60,
                                                                                  4

2010-Ohio-3243, at ¶11-13, this court stated

       {¶ 12} “In   order   for     a    plea   to   be   given   knowingly     and

voluntarily, the trial court must follow the mandates of Crim.

R. 11(C). If a defendant's guilty plea is not voluntary and knowing,

it has been obtained in violation of due process and is void. Boykin

v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d

274.

       {¶ 13} “A defendant who challenges his guilty plea on the basis

that it was not knowingly, intelligently, and voluntarily made

must show a prejudicial effect. State v. Stewart (1977), 51 Ohio

St.2d 86, 93; Crim. R. 52(A). The test is whether the plea would

have been otherwise made. Id. at 108.

       {¶ 14} “A trial court must strictly comply with Crim. R. 11

as it pertains to the waiver of federal constitutional rights.

These    include     the    right       to   trial   by   jury,   the   right    of

confrontation, and the privilege against self-incrimination. Id.

at 243-44. However, substantial compliance with Crim. R. 11(C)

is sufficient when waiving non-constitutional rights. State v.

Nero (1990), 56 Ohio St.3d 106, 108. The non-constitutional rights

that a defendant must be informed of are the nature of the charges

with an understanding of the law in relation to the facts, the

maximum penalty, and that after entering a guilty plea or a no

contest plea, the court may proceed to judgment and sentence. Crim.
                                                                         5

R. 11(C)(2)(a)(b); State v. Philpott, Cuyahoga App. No. 74392,

citing McCarthy v. U.S. (1969), 394 U.S. 459, 466, 89 S.Ct. 1166,

22 L.Ed.2d 418. 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. Nero, 56 Ohio St.3d at 108.”

     {¶ 15} Our review of the plea hearing demonstrates that the

trial court scrupulously complied with all of the requirements

in Crim.R. 11(C)(2), and advised Defendant about all of the

constitutional rights he would give up by pleading guilty, as well

as all of the other non-constitutional matters.        This record amply

demonstrates that Defendant’s guilty plea was entered knowingly,

intelligently and voluntarily.         This assignment of error lacks

arguable merit.

     SECOND ASSIGNMENT OF ERROR

     {¶ 16} “DID THE TRIAL COURT ERR IN SENTENCING THE APPELLANT

TO THREE (3) YEARS IMPRISONMENT BASED ON HIS CONVICTION FOR

BURGLARY,   A    FELONY   OF   THE   THIRD   DEGREE,   IN   VIOLATION   OF

2911.12(A)(3) OF THE Ohio REVISED CODE.”

     {¶ 17} In State v. Jeffrey Barker, Montgomery App. No. 22779,

2009-Ohio-3511, at ¶36-37, we wrote:

     {¶ 18} “The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is
                                                                   6

not required to make any findings or give its reasons for imposing

maximum, consecutive, or more than minimum sentences.      State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph 7 of the

syllabus.    Nevertheless, in exercising its discretion the trial

court must consider the statutory policies that apply to every

felony offense, including those set out in R.C. 2929.11 and 2929.12.

 State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d

1, at ¶37.

     {¶ 19} “When reviewing felony sentences, an appellate court

must first determine whether the sentencing court complied with

all applicable rules and statutes in imposing the sentence,

including R.C. 2929.11 and 2929.12, in order to find whether the

sentence is contrary to law.    State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912.     If the sentence is not clearly and convincingly

contrary to law, the trial court’s decision in imposing the term

of imprisonment must be reviewed under an abuse of discretion

standard.    Id.”

     {¶ 20} There is nothing in this record which demonstrates that

in imposing its sentence the trial court failed to consider either

the purposes and principles of felony sentencing, R.C. 2929.11,

or the seriousness and recidivism factors, R.C. 2929.12.   The court

considered the oral statements of counsel and Defendant at

sentencing.    The three year sentence the court imposed on the
                                                                     7

burglary charge is not the maximum sentence, and is well within

the authorized range of available punishments for a felony of the

third degree, which is one to five years.      R.C. 2929.14(A)(3).

The court also informed Defendant about mandatory post release

control requirements and the consequences for violating post

release   control.   Defendant’s   sentence   is   not   clearly   and

convincingly contrary to law.      Kalish.    Neither is there any

demonstration that the trial court’s three year sentence, which

is a mid-range sentence for burglary, constitutes an abuse of

discretion.   This assignment of error lacks arguable merit.

     {¶ 21} In addition to reviewing the possible issues for appeal

raised by Defendant’s appellate counsel, we have conducted an

independent review of the trial court’s proceedings and have found

no error having arguable merit.    Accordingly, Defendant’s appeal

is without merit and the judgment of the trial court will be

affirmed.



DONOVAN, J. And HALL, J., concur.




Copies mailed to:

Carley J. Ingram, Esq.
Jessica R. Moss, Esq.
Thomas Calvert
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Hon. Gregory F. Singer
Hon. Mary Wiseman
