[Cite as State v. Wheeler, 2013-Ohio-3387.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                         :
                                                       :        Appellate Case No. 25633
          Plaintiff-Appellee                           :
                                                       :        Trial Court Case No. 2012-CR-3650
 v.                                                    :
                                                       :
 ANDREW T. WHEELER                                     :        (Criminal Appeal from
                                                       :        (Common Pleas Court)
          Defendant-Appellant                 :
                                                       :
                                                  ...........

                                              OPINION

                             Rendered on the 2nd day of August, 2013.

                                                  ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

LUCAS WILDER, Atty. Reg. #0074057, 120 West Second Street, 400 Liberty Tower, Dayton,
Ohio 45402
       Attorney for Defendant-Appellant

                                                           .............

FAIN, P.J.

        {¶ 1}     Defendant-appellant Andrew Wheeler appeals from his conviction and
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sentence, following a guilty plea, for one count of Rape (impaired victim), in violation of R.C.

2907.02(A)(1)(c).         The mandatory three-year sentence imposed was agreed upon by the

parties.

           {¶ 2}      Wheeler’s assigned appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he could find

no potential assignments of error having arguable merit. By entry herein filed May 22, 2013,

we afforded Wheeler the opportunity to file his own, pro se brief. He has not done so.

           {¶ 3}      In his brief, Wheeler’s counsel states:

                   There were no pretrial motions or hearings.        This matter did not

           proceed to trial. The parties jointly agreed that Mr. Wheeler would plead

           guilty to rape and receive three years in prison (the minimum on a first degree

           felony).    The trial court abided by the parties’ agreement.    Therefore, his

           sentence is not reviewable under O.R.C. §2953.08(D)(1). The trial court orally

           notified Mr. Wheeler it would impose costs. Tr., p. 5; State v. Joseph, 125

           Ohio St.3d 76 [2010-Ohio-954, 926 N.E.2d 278].

                   Counsel has examined whether the trial court conducted a proper Rule

           11 plea. Counsel found no issue with the taking of the plea. With regard to

           sentencing, however, the trial court initially erred when it advised Mr. Wheeler

           he would be subject to post-release control for only three years. Tr., p. 11. A

           first degree felony rape carries a post-release control option of five years.

           O.R.C. §2967.28(B)(1).        Nonetheless, the trial court caught its error and

           corrected it before sentencing was completed. Mr. Wheeler was advised he
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               would be subject to the five years post release control. Tr., p. 14.

               Counsel also considered issues presented by Mr. Wheeler via letter. One of the issues

       brought to counsel’s attention was the possibility that Mr. Wheeler was intoxicated when he

       wrote an incriminating statement.      Unfortunately, counsel’s review on appeal is limited to

       matters in the record. No motion to suppress was filed to argue on this issue. Therefore, this

       issue is non-reviewable.

               A second issue raised was whether Mr. Wheeler was correctly explained “mandatory

       time.” Pursuant to O.R.C. §2929.13(F)(2), prison time for a rape (a first degree felony) is

       mandatory. At sentencing, the trial court did not give Mr. Wheeler a treatise on what mandatory

       time meant but did give him a CliffsNotes version. The trial court noted, “[A]nd it’s mandatory,

       so it’s not reduced by judicial release, earned credit or furlough.” Tr., p. 6. While brief, the

       explanation was sufficiently clear as to what mandatory time means.

       {¶ 4}    Based upon our review of the entire record, we find no flaws in appellate counsel’s factual or

legal conclusions. We have performed our duty, under Anders v. California, supra, to review the record,

including the transcript of the proceeding in which Wheeler pled guilty and was sentenced, independently. We

have found no potential assignments of error having arguable merit. The judgment of the trial court is

Affirmed.

                                                   .............

FROELICH and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck
Carley J. Ingram
       Lucas W. Wilder
       Andrew T. Wheeler
                         4


Hon. Barbara P. Gorman
