[Cite as State v. Fleischer, 2017-Ohio-7762.]



                           STATE OF OHIO, JEFFERSON COUNTY
                                   IN THE COURT OF APPEALS
                                         SEVENTH DISTRICT

STATE OF OHIO                                     )
                                                  )
        PLAINTIFF-APPELLEE                        )
                                                  )            CASE NO. 16 JE 0011
VS.                                               )
                                                  )                  OPINION
CHANNE FLEISCHER                                  )
                                                  )
        DEFENDANT-APPELLANT                       )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the Court of
                                                  Common Pleas of Jefferson County,
                                                  Ohio
                                                  Case No. 15 CR 22

JUDGMENT:                                         Affirmed in part.
                                                  Reversed and remanded in part.
APPEARANCES:
For Plaintiff-Appellee                            Attorney Jane Hanlin
                                                  Jefferson County Prosecutor
                                                  16001 State Route 7
                                                  Steubenville, Ohio 43952

For Defendant-Appellant                           Attorney Rhys Cartwright-Jones
                                                  42 North Phelps Street
                                                  Youngstown, Ohio 44503-1130

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                  Dated: September 21, 2017
[Cite as State v. Fleischer, 2017-Ohio-7762.]
DeGENARO, J.

        {¶1}     Defendant–Appellant, Channe M. Fleischer, appeals the trial court
judgment convicting her of one count of aggravated murder and two counts of
endangering children and sentencing her accordingly. Appointed appellate counsel
for Fleischer has filed a no-merit brief and a request to withdraw as counsel 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 (1970).
        {¶2}     Although there are no appealable issues regarding the plea, there is
one appealable issue regarding sentencing, namely, the trial court should have
imposed a three-year mandatory term of post-release control, not a five-year term.
Thus, Fleischer's convictions and the imposition of the life without the possibility of
parole for 20 years sentence is affirmed. However, the portion of the sentence
regarding post-release control is reversed and the matter remanded to the trial court
for a limited resentencing regarding post-release control. See State v. Lewis, 7th Dist.
No. 12 MA 107, 2013-Ohio-892, ¶ 1 (applying this procedure in an Anders case with
a clear post-release control error; not requiring the issue to be briefed.)
                                  Facts and Procedural History
        {¶3}     The grand jury indicted Fleischer on one count of aggravated murder
R.C. 2903.01(C), an unclassified felony; one count of endangering children, R.C.
2919.22(B)(2) and (E)(3), a second-degree felony; and one count of endangering
children R.C. 2919.22(A) and (E)(1)(c), a third-degree felony. She was accused of
physically abusing her sixteen-month-old son over a period of several months and
killing him.
        {¶4}     Fleischer was arraigned, pled not guilty by reason of insanity and
counsel was appointed. Sanity and competency evaluations were ordered by the
trial court; Fleischer was found to be sane and competent and the parties stipulated
to those findings.
        {¶5}     Fleischer later entered into a Crim.R. 11 plea agreement with the State.
Therein, Fleischer agreed to plead guilty to the charges in the indictment. In
exchange, the State agreed to a jointly-recommended sentence of life without the
                                                                                -2-


possibility of parole for 20 years in prison.
       {¶6}   During the plea hearing, the trial court engaged in a colloquy with
Fleischer concerning the rights she would give up by pleading guilty, and accepted
Fleischer's plea as knowingly, voluntarily and intelligently made and then immediately
proceeded to sentencing. The State stood by its promise to recommend an
aggregate sentence of life without the possibility of parole for 20 years. The State
noted that the autopsy report indicated the cause of death to the child was blunt
impacts to the child's head, trunk and extremities, and that there were abrasions and
contusions all over the child's body. In addition, there were a number of burn injuries
to the child's feet, which were in various stages of healing; the State asserted that the
evidence at trial would have shown those injuries had been there for up to five
weeks. The State notes that the burn injuries formed the basis for the child
endangering charges in the indictment.
       {¶7}   Defense counsel also urged the trial court to accept the jointly-
recommended sentence, stating that Fleischer has taken responsibility for her
actions. The trial court asked Fleischer whether she had anything to say or any
evidence to present in mitigation of sentence and she declined to make a statement
or present evidence.
       {¶8}   After considering the record, statements made at sentencing, the
purposes and principles of sentencing under R.C. 2929.11 and the seriousness and
recidivism factors under R.C. 2929.12, the trial court sentenced Fleischer to the
jointly-recommended sentence of life without the possibility of parole for 20 years for
the aggravated murder count, 8 years on the felony-two endangering children count
and 36 months on the felony-three endangering children count, to all run
concurrently. The trial court imposed a $25,000.00 fine to be suspended during
Fleischer's incarceration. The trial court granted Fleischer jail-time credit for 245
days, in addition to any time accrued awaiting transportation to the penitentiary. The
trial court explained that Fleischer would not be eligible for parole or judicial release
until she served 20 years in prison. Finally, the trial court imposed five years of
                                                                                  -3-


mandatory post-release control.
       {¶9}   Fleischer filed a pro se motion for delayed appeal, which we granted
and appointed appellate counsel. Counsel filed a no-merit brief and we granted
Fleischer 30 days to file a pro-se brief which she failed to file.   The same day she
filed her motion for a delayed appeal, Fleischer also filed, with this court, a pro-se
motion to withdraw her guilty plea pursuant to Crim.R. 32.1, which this court
dismissed.
                                    Anders Review
       {¶10} An attorney appointed to represent an indigent criminal defendant may
seek permission to withdraw if the attorney can show that there is no merit to the
appeal. See generally Anders, 386 U.S. 738. 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. Toney, 23 Ohio App.2d at 207.
Counsel's motion must then be transmitted to the defendant in order to assert any
error pro se. Id. at syllabus. The reviewing court must then decide, after a full
examination of the proceedings and counsel's and the defendant's filings, whether
the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is
granted, new counsel is denied, and the trial court's judgment is affirmed. Id.
       {¶11} In the typical Anders case involving a guilty plea, the only issues that
can be reviewed relate to the plea or the sentence. See, e.g., State v. Verity, 7th Dist.
No. 12 MA 139, 2013–Ohio–1158, ¶ 11.
       {¶12} A guilty plea must be made knowingly, voluntarily and intelligently.
State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 7. If it is
not, it has been obtained in violation of due process and is void. State v. Martinez,
7th Dist. No. 03 MA 196, 2004–Ohio–6806, ¶ 11, citing Boykin v. Alabama, 395 U.S.
238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness
of a plea, this court must consider all of the relevant circumstances surrounding it.
State v. Johnson, 7th Dist. No. 07 MA 8, 2008–Ohio–1065, ¶ 8, citing Brady v. United
                                                                                   -4-


States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
       {¶13} The trial court must engage in a Crim.R. 11(C) colloquy with the
defendant in order to ensure that a felony defendant's plea is knowing, voluntary and
intelligent. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶
25–26. During the colloquy, the trial court is to provide specific information to the
defendant, including constitutional and nonconstitutional rights being waived. Crim.R.
11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.
       {¶14} The constitutional rights the defendant must be notified of are the right
against self-incrimination, to a jury trial, to confront one's accusers, to compel
witnesses to testify by compulsory process, and to have the state prove guilt beyond
a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008–
Ohio–5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these
requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115
(1981). "Strict compliance" does not require a rote recitation of the exact language of
the rule. Rather, a reviewing court should focus on whether the "record shows that
the judge explained these rights in a manner reasonably intelligible to the defendant."
Id. at paragraph two of the syllabus.
       {¶15} The nonconstitutional rights the defendant must be informed of are the
effect of his plea, the nature of the charges, and the maximum penalty, which
includes an advisement on post-release control if applicable. Further, a defendant
must be notified, if applicable, that she is not eligible for probation or the imposition of
community control sanctions. Finally, this encompasses notifying the defendant that
the court may proceed to judgment and sentence after accepting the guilty plea.
Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d 176 at ¶ 10–13; Sarkozy, 117 Ohio
St.3d 86, at ¶ 19–26. The trial court must substantially comply with these
requirements. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
"Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights she is
waiving." Id. at 108. In addition to demonstrating the trial court did not substantially
                                                                                   -5-


comply with Crim R. 11(C)(2)(a)(b) the defendant must also show a prejudicial effect,
meaning the plea would not have otherwise been made. Veney, 120 Ohio St.3d 176
at ¶ 15 citing Nero, 56 Ohio St.3d at 108.
       {¶16} The trial court's advisement of Fleischer's constitutional rights strictly
complied with Crim.R. 11(C)(2)(c), and she indicated she understood she was giving
up all of the above rights.
       {¶17} The trial court also substantially complied with Crim.R. 11(C) when
advising Fleischer of her nonconstitutional rights, with the exception of post-release
control. "When the trial judge does not substantially comply with Crim.R. 11 in regard
to a nonconstitutional right, reviewing courts must determine whether the trial court
partially complied or failed to comply with the rule. If the trial judge partially complied,
e.g., by mentioning mandatory postrelease control without explaining it, the plea may
be vacated only if the defendant demonstrates a prejudicial effect." State v. Clark,
119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32 (2008)
       {¶18} The trial court overstated the Fleischer's applicable post-release term;
erroneously stating that the aggravated murder carried a five-year mandatory term,
when post-release control does not apply to aggravated murder. State v. Threats, 78
N.E.3d 211, 2016-Ohio-8478, ¶ 18-19 (7th Dist.). The trial court should have told
Fleischer she would be subject to a three-year mandatory term of post-release
control, for the highest classified felony, the second-degree felony. R.C.
2967.28(B)(2).
       {¶19} Thus, the trial court partially complied; it explained post-release control,
but overstated the applicable term. However, there is no prejudice from the
misstatement in this instance. By pleading guilty, Fleischer received a very favorable
sentencing recommendation and was ultimately able to avoid life imprisonment
without parole. It is illogical to presume that had Fleischer known she was only
subject to three years of mandatory post-release control instead of five, as the trial
court advised her, that she would not have pled guilty. Accordingly, there is no
prejudice. See Threats at ¶ 15-46 (reviewing case law and concluding there was no
                                                                               -6-


prejudice by the trial court's overstatement of the applicable post-release control
term.) Accordingly, Fleischer's plea was knowingly, voluntarily, and intelligently
entered.
      {¶20} Turning to sentencing, appellate courts typically review a felony
sentence to determine whether the trial court's findings—or where findings are not
required, the sentence itself—are clearly and convincingly unsupported by the record,
or whether the sentence is otherwise contrary to law. R.C. 2953.08(G)(2); State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; ¶ 23.
      {¶21} However, in this case, the trial court imposed the sentence jointly-
recommended by the defendant and the prosecutor; thus, this court's review is even
more limited. "[I]f a jointly recommended sentence imposed by a court is 'authorized
by law,' then the sentence 'is not subject to review.' " State v. Sergent, 148 Ohio
St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 15, quoting R.C. 2953.08(D)(1). "To be
'authorized by law' under R.C. 2953.08(D)(1), a sentence must comport with all
applicable mandatory sentencing provisions." Sergent at ¶ 29.
      {¶22} Here, Fleischer was afforded her allocution rights pursuant to Crim.R.
32(A)(1). The trial court considered purposes and principles of sentencing under R.C.
2929.11 and the seriousness and recidivism factors under R.C. 2929.12. The life
without the possibility of parole for 20 years sentence Fleischer received is within the
range for the charges; in fact it was the minimum sentence she could have received.
See R.C. 2929.03(A)(1)(a)-(d); R.C. 2929.14(A)(2) and R.C. 2929.14(A)(3)(b).
      {¶23} With regard to the "issue of merger[,] [it] is not barred on appeal merely
because the sentence was jointly recommended." State v. Helms, 7th Dist. No. 14
MA 96, 2015-Ohio-1708, ¶ 50, citing State v. Underwood, 124 Ohio St.3d 365, 2010–
Ohio–1, 922 N.E.2d 923, ¶ 23–33 (concluding that the merger statute falls under “the
authorized by law” test in R.C. 2953.08(D)(1)). "Therefore, an appeal even after a
jointly recommended sentence is possible, and plain error can be applied to an allied
offense issue." Helms at ¶ 50.
      {¶24} There was some discussion of the possibility of merger during the
                                                                                                   -7-


change of plea portion of the hearing. Counts two and three are both endangering
children     convictions      under      different     statutory     subsections.       Compare        R.C.
2919.22(B)(2) with R.C. 2919.22(A).1 Defense counsel and the prosecutor mentioned
the possibility of those counts merging during the plea hearing, but no specific
arguments were made. Both sides noted that the sentencing recommendation would
be that the three sentences all run concurrently; no recommendation was made
regarding merger, which is a distinct issue.
        {¶25} During sentencing, no arguments relative to merger were made and the
trial court did not inquire as to whether the counts merged. To demonstrate plain
error in this context, "an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import committed with
the same conduct and without a separate animus[.]" State v. Rogers, 143 Ohio St.3d
385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. "[A]bsent that showing, the accused
cannot demonstrate that the trial court's failure to inquire whether the convictions
merge for purposes of sentencing was plain error." Id.
        {¶26} Pursuant to R.C. 2941.25(A), "Where the same conduct by defendant
can be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the defendant
may be convicted of only one." However, "[w]here the defendant's conduct
constitutes two or more offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain counts for all
such offenses, and the defendant may be convicted of all of them." R.C. 2941.25(B).
        {¶27} If a defendant's conduct supports multiple offenses, the defendant can
be convicted of all of the offenses if any one of the following is true: 1) the conduct

1R.C. 2919.22(B)(2) (count two) provides: "No person shall do any of the following to a child under
eighteen years of age * * *Torture or cruelly abuse the child[.]"

R.C. 2919.22(A) (count three) provides: " No person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a child under eighteen years of age * * * shall
create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or
support. * * *"
                                                                                -8-


constitutes offenses of dissimilar import, 2) the conduct shows the offenses were
committed separately, or 3) the conduct shows the offenses were committed with
separate animus. State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892,
paragraph three of the syllabus, citing R.C. 2941.25(B). Two or more offenses are of
dissimilar import within the meaning of R.C. 2941.25(B) "when the defendant's
conduct constitutes offenses involving separate victims or if the harm that results
from each offense is separate and identifiable." Id. at paragraph two of the syllabus.
      {¶28} Based upon the assertions made by the prosecutor at sentencing, there
was separate conduct for all three offenses. The prosecutor noted the autopsy report
indicated the cause of death to the child was blunt impacts to the child's head, trunk
and extremities, and that there were abrasions and contusions all over the child's
body. In addition, there were several, separate burn injuries to the child's feet, which
were in "various stages" of healing; the prosecutor asserted that the evidence at trial
would have shown those injuries had been there for up to five weeks. The State
notes that the burn injuries formed the basis for the child endangering charges in the
indictment. Further, according to the prosecutor, Fleischer admitted she never took
the child for any form of medical treatment for the burns. Thus, Fleischer cannot
demonstrate a reasonable probability that the convictions are for allied offenses of
similar import committed with the same conduct and without a separate animus.
There was no plain error in the failure to merge.
      {¶29} However, the trial court overstated the applicable term of post-release
control, imposing a five-year mandatory term. It has long been held that " 'the post-
release control statute applies only to felonies of the first, second, third, fourth and
fifth degree.' " State v. Williams, 7th Dist. No. 11–MA–24, 2012–Ohio–1475, ¶ 20,
quoting State v. Young, 7th Dist. No. 09–MA–100, 2011–Ohio–2646, ¶ 68. See R.C.
2967.28(B) and (C). Aggravated murder is an unclassified felony to which the post-
release control statute does not apply. Id. See also Threats, supra, at ¶ 18.
      {¶30} The highest classified felony to which Fleischer pled was a second-
degree felony, which carries a three-year mandatory term of post-release control.
                                                                                 -9-


R.C. 2967.28(B)(2). "If a person is convicted of both an unclassified felony and a
classified felony, the court still has obligations regarding post-release control as it
relates to the classified felony." Threats at ¶ 20. Accordingly, it appears a remand for
a resentencing limited to the imposition of post-release control is appropriate. Id. at ¶
51 (applying this remedy in a case where, as here, the trial court overstated the
applicable term of post-release control, in the entry and during the hearing.)
       {¶31} In sum, Fleischer's convictions and life without the possibility of parole
for 20 years sentence is upheld, but the post-release control portion of her sentence
is reversed and the matter remanded for a limited resentencing on the issue of post-
release control.

Donofrio, J., concurs.

Robb, P. J., concurs.
