[Cite as State v. Masciarelli, 2017-Ohio-170.]
                             STATE OF OHIO, BELMONT COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                    )   CASE NO. 15 BE 0016
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )   OPINION
                                                 )
MICHAEL A. MASCIARELLI                           )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from the Court of
                                                     Common Pleas of Belmont County,
                                                     Ohio
                                                     Case No. 14 CR 257

JUDGMENT:                                            Reversed and Remanded
                                                     Vacated.

APPEARANCES:

For Plaintiff-Appellee:                              Atty. Daniel P. Fry
                                                     Belmont County Prosecutor
                                                     147-A West Main Street
                                                     St. Clairsville, Ohio 43950
                                                     No Brief Filed.

For Defendant-Appellant:                             Atty. Brent A. Clyburn
                                                     White & Clyburn
                                                     604 Sixth Street
                                                     Moundsville, West Virginia 26041


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                     Dated: January 17, 2017
[Cite as State v. Masciarelli, 2017-Ohio-170.]
WAITE, J.


        {¶1}     Appellant Michael A. Masciarelli appeals a March 18, 2015 judgment

entry from the Belmont County Court of Common Pleas convicting him on one count

of receiving stolen property in violation of R.C. 2913.51(A), a felony of the fifth

degree; imposing a twelve-month sentence in the penitentiary which was suspended

to six months in the Belmont County Jail and six months in the Eastern Ohio

Correctional Center (“EOCC”); and ordering restitution and a civil judgment in the

amount of $21,153.00. A review of the record reveals plain error in the sentence

imposed. Therefore, we must reverse the judgment of the trial court as it is contrary

to law. Appellant’s sentence is hereby vacated and the matter remanded to the trial

court to determine which sentence is most appropriate, prison or community control

sanctions.

                                    Facts and Procedural History

        {¶2}     On November 6, 2014, the Belmont County Grand Jury indicted

Appellant on one count of receiving stolen property, in violation of R.C. 2913.51(A), a

felony of the fourth degree. R.C. 2913.51(A) states: “No person shall receive, retain,

or dispose of property of another knowing or having reasonable cause to believe that

the property has been obtained through commission of a theft offense.”            R.C.

2913.51(C) reads, in pertinent part, “[I]f the value of the property involved is seven

thousand five hundred dollars or more and is less than one hundred fifty thousand

dollars * * * receiving stolen property is a felony of the fourth degree.”

        {¶3}     On February 20, 2015, Appellant entered a guilty plea to an amended

charge of receiving stolen property, a felony of the fifth degree. The state explained
                                                                                        -2-

that the amendment of the degree of felony from the fourth to the fifth degree was

“based upon evidence that [the state] would be able to prove at trial, so [the state

was] comfortable with that amendment.” (2/20/15 Plea Hrg. Tr., p. 2.)

      {¶4}   R.C. 2913.51(C) reads, in part: “If the value of the property involved is

one thousand dollars or more and is less than seven thousand five hundred dollars, if

the property involved is any of the property listed in section 2913.71 of the Revised

Code, receiving stolen property is a felony of the fifth degree.”             R.C. 2913.71,

captioned: “Degree of offense when certain property is involved,” states as follows:

      Regardless of the value of the property involved and regardless of

      whether the offender previously has been convicted of a theft offense, a

      violation of section 2913.02 or 2913.51 of the Revised Code is a felony

      of the fifth degree if the property involved is any of the following:


      ***


      (B) A printed form for a check or other negotiable instrument, that on its

      face identifies the drawer or maker for whose use it is designed or

      identifies the account on which it is to be drawn, and that has not been

      executed by the drawer or maker or on which the amount is blank.

      {¶5}   At the plea hearing, Appellant’s father explained the manner in which

the crime in this case was committed:         “The problem is these gentlemen that

[Appellant] was living with, okay, he was like his step-son, all right. What [the step-

son] did, he worked for the [Belmont County] Park Commission. He was writing
                                                                                     -3-

checks, okay. He made checks out to [Appellant] to take down to cash and bring the

cash back to him.” (2/20/15 Plea Hrg. Tr., p. 13.)

         {¶6}   The state acknowledged at the plea hearing that the other individual

involved in the crime was the principal actor and that he died prior to indictment. Id.

at 12. The plea agreement indicated that the state was not opposed to a community

control sanction, if it was accompanied by an order for full restitution at $100 per

month, with a minimum of $3,600.00 paid within the first three years. (2/20/15 Plea

Agreement, p. 3.)

         {¶7}   At the plea hearing, the trial court judge informed the parties that,

although the judge had not yet determined the appropriate sentence, the amount of

money taken from the county park commission warranted jail time. (2/20/15 Plea

Hrg. Tr., p. 13.) The judge recommended that the following occur at the sentencing

hearing:    (1) defense counsel should call a representative of the county park

commission to demonstrate that the victim had no objection to a community control

sanction, and (2) Appellant should be employed to demonstrate his ability to comply

with an order for full restitution in the amount of roughly $28,469.00. Id. at 11.

         {¶8}   At the sentencing hearing on March 16, 2015, a board member of the

county park commission appeared and acquiesced to the imposition of the

community control sanction. The county park commission board member requested

an order of restitution in the amount of $21,153.00, which was reduced due to a

contribution from the deceased principal actor’s estate. (3/16/15 Sentencing Hrg. Tr.,

p. 3.)
                                                                                       -4-

        {¶9}   Appellant apologized for his role in the crime and explained that his

deceased co-actor was to have repaid the money. The judge responded, “[t]he issue

is not whether [the deceased] would have paid the money back or not; the issue is

whether the money should have been stolen to start with.* * * It’s not like I rob a

bank, I get caught, and therefore I [sic] since I don’t die, I pay the money back.” Id. at

4. The judge continued, “[h]ow does one steal $21,000 and think one’s not going to

jail?” Id. at 5.

        {¶10} Based on the colloquy, the trial judge imposed a period of confinement,

stating, “I know there was a request for a complete suspended sentence.              That

respectfully is not going to happen. I assess a judgment against [Appellant], a civil

judgment in the sum of $21,153.00. I sentence [Appellant] to the maximum of six

months in jail and six months in EOCC.” Id. at 7-8. The judgment entry reads, in

part:

        [T]he Court sentences [Appellant] to Twelve (12) Months in the

        penitentiary, suspended to Six (6) Months in the Belmont County Jail

        and Six (6) months in EOCC. It is further Ordered that [Appellant] shall

        pay reasonable Restitution in the amount of Twenty-One Thousand

        One Hundred Fifty-Three and No/100 Dollars ($21,153.00), to Belmont

        Park Commission, and a Civil Judgment is granted in that sum.

(3/18/15 J.E., p. 2.)

                                      Anders brief
                                                                                     -5-

      {¶11} Appointed appellate counsel filed a no merit brief 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 (7th Dist.1970), and requested leave to

withdraw from the case. 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. Id. at 207.

      {¶12} In Toney, we recognized an indigent defendant's constitutional 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 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 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. This Court will then examine the

record, counsel's brief and any pro se arguments, and determine if the appeal is

wholly frivolous. Id. at paragraph five of the syllabus. If we decide that the appeal is

wholly frivolous, we will permit counsel to withdraw and affirm the judgment of

conviction and sentence.
                                                                                     -6-

       {¶13} Appointed appellate counsel filed a no merit brief on September 28,

2015. On October 21, 2015, we issued a judgment entry informing Appellant that

counsel found no meritorious issues and granted him thirty days to file his own

written brief. No such brief was filed.

       {¶14} Although Appellant did not file a pro se pleading, we are nonetheless

required, pursuant to Anders, to thoroughly and independently review the record to

determine whether counsel made a diligent effort to find an appealable, nonfrivolous

issue. See also Toney, supra.

                                          Analysis

       {¶15} In this case, Appellant entered a guilty plea to an amended fifth-degree

felony theft offense.    We consider three aspects of Appellant's conviction and

sentence: his guilty plea, sentence, and the order of restitution, to determine whether

there exists any assignment of error that could arguably support an appeal.

       {¶16} A plea of guilty or no contest must be made knowingly, intelligently and

voluntarily for it to be valid and enforceable. State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. In order to ensure that a plea in a felony

case is knowing, intelligent and voluntary, Crim.R. 11(C)(2) requires the trial judge to

address the defendant personally to review the rights that are being waived and to

discuss the consequences of the plea.

       {¶17} Crim.R. 11(C)(2)(c) requires the court to review five constitutional rights

that are waived when entering a guilty or no contest plea in a felony case: the right

to a jury trial, the right to confront one's accusers, the privilege against compulsory
                                                                                    -7-

self-incrimination, the right to compulsory process to obtain witnesses, and the right

to require the state to prove guilt beyond a reasonable doubt. State v. Veney, 120

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

comply with Crim.R. 11(C)(2)(c) when advising the defendant of the constitutional

rights that are being waived in entering a felony plea. Id. at syllabus. Prejudice is

presumed if the court fails to inform the defendant of any of the constitutional rights

listed in Crim.R. 11(C)(2)(c). Id. at ¶ 29.

       {¶18} A defendant must also be informed of his nonconstitutional rights prior

to entering a guilty plea, which include 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.R. 11(C)(2)(a)(b). The nonconstitutional requirements of Crim.R. 11

are subject to review for substantial compliance rather than strict compliance. State

v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11-12. “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.”

State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Further, “failure to

comply with nonconstitutional rights will not invalidate a plea unless the defendant

thereby suffered prejudice.” Griggs, supra, at ¶ 12.

       {¶19} Appellant was afforded his allocution rights pursuant to Crim.R.

32(A)(1); the trial court asked him directly if he had anything to say before it

pronounced sentence. The trial court properly notified Appellant that at his release
                                                                                     -8-

he would be subject to a term of postrelease control, and notified him about the

consequences of violating postrelease control. R.C. 2967.28(C).

      {¶20} Appellant’s sentence falls within the statutory prison term range. R.C.

2929.14(A)(5). The trial court imposed the maximum sentence, twelve-months in the

penitentiary, but suspended this sentence, ordering instead that Appellant serve six

months in the Belmont County Jail and six months in EEOC.               The trial court

considered R.C. 2929.11, R.C. 2929.12 and R.C. 2929.13, and relied on the total

value of the stolen property, which exceeded the statutory amount codified for a fifth-

degree felony theft offense by more than $20,000.00.

      {¶21} Turning to the restitution order, the criminal statute at issue in this case

mandates the degree of the offense based on the value of the stolen property. Here,

Appellant entered a guilty plea and was convicted of a fifth-degree felony theft

offense: receiving stolen property valued at greater than $1,000.00 but less than

$7,500.00. We do note, however, that the trial court imposed an order of restitution

and a civil judgment in an amount greater than $21,000.00.

      {¶22} In 2013, the Ohio Supreme Court held that the amount of restitution is

not correlated to the degree of a theft offense. In State v. Lalain, 136 Ohio St.3d 248,

2013-Ohio-3093, the defendant was convicted of a fifth degree felony theft offense,

but was ordered to pay $63,121.00 in restitution to the victim. Lalain had pleaded

guilty to the theft of property valued at $500.00 or more but less than $5,000.00.

Based on his plea, he argued that any order of restitution could not exceed

$4,999.99.
                                                                                     -9-

       {¶23} R.C. 2929.18, captioned “Financial sanctions,” limits the amount of

restitution to the amount of the economic detriment suffered by the victim as a direct

and proximate result of the commission of the offense.        R.C. 2929.18(A)(1).     In

Lalain, the Ohio Supreme Court provided the following explanation in concluding that

the amount of an order of restitution need not correlate to the degree of the felony

theft offense:

       For example, R.C. 2913.02(B)(5) states, “If the property stolen is a

       motor vehicle, a violation of this section is grand theft of a motor

       vehicle, a felony of the fourth degree,” regardless of the value of the

       motor vehicle. A trial court choosing to order restitution in a case of

       grand theft of a motor vehicle is not restricted to the value

       corresponding to a fourth-degree felony and may instead award

       restitution pursuant to R.C. 2929.18(A)(1).

Id. at ¶24.

       {¶24} Accordingly, the trial court in this case did not abuse its discretion when

it awarded actual restitution in an amount greater than the degree of the felony theft

offense would seem to dictate.

       {¶25} While the length of Appellant’s sentence comports with law, the manner

in which the trial court ordered the sentence to be served does not. The trial court

sentenced Appellant to twelve months of imprisonment which was suspended to a

sentence of six months in the Belmont County Jail and six months in EOCC. “The

current felony sentencing statutes, contained primarily in R.C. 2929.11 to 2929.19,
                                                                                   -10-

require a judge either to impose a prison term or impose community-control

sanctions.” State v. Baker, 152 Ohio App.3d 138, 2002-Ohio-7295, 787 N.E.2d 17,

¶ 12 (7th Dist.). Thus, Ohio courts have held that the felony sentencing statute does

not allow a trial court to impose both a prison sentence and community control for the

same offense.     Id.   Instead the trial court must decide which sentence is most

appropriate, prison or community control sanctions, and impose one of those two

options, based on the record. State v. Vlad, 153 Ohio App.3d 74, 2003-Ohio-2930,

790 N.E.2d 1246, ¶ 16 (7th Dist.).

       {¶26} In addition to a civil judgment levied against Appellant and a restitution

order, Appellant was ordered to serve twelve months in prison which was suspended

to six months in jail and six months in EOCC. It is apparent, then, that the trial court

sentenced him to a prison term and community control sanctions on the felony

offense, which is not permitted by statute. “[T]he only sentence which a trial judge

may impose is that provided for by statute[.]” State v. Anderson, 143 Ohio St.3d 173,

2015-Ohio-2089, 35 N.E.3d 512, ¶ 12. The trial court’s sentence affected Appellant’s

substantial rights in that “[j]udges have no inherent power to create sentences * * *

[and lack] the authority to impose a sentence that is contrary to law.”        State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22-23. “[J]udges are

duty-bound to apply sentencing laws as they are written.” Id. at ¶ 22. As the trial

court imposed a sentence which is contrary to law, the sentencing error did affect

Appellant’s substantial rights.

                                      Conclusion
                                                                                 -11-

      {¶27} Pursuant to the filing of the Anders brief, appointed counsel is permitted

to withdraw. However, the trial court committed plain error by sentencing Appellant

to both a prison sentence and a community control for the same offense. We reverse

the judgment of trial court, vacate the sentence, and remand the case for

resentencing for the trial court to decide which sentence is most appropriate, prison

or community control sanctions, and impose whichever option is deemed to be

necessary.


Donofrio, J., concurs.

Robb, P.J., concurs.
