State v. Mayberry ( 2011 )

[Cite as State v. Mayberry, 2011-Ohio-6325.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24596
v. : T.C. NO. 10CR3384
ROBERT W. MAYBERRY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of December , 2011.
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CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 3946 Kettering Blvd., Suite 202,
Kettering, Ohio 45439
Attorney for Defendant-Appellant
ROBERT W. MAYBERRY, #648250, Madison Correctional Institute, P. O. Box 740,
London, Ohio 43140
Defendant-Appellant
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DONOVAN, J.
{¶ 1} Appointed counsel for defendant-appellant Robert W. Mayberry submitted an
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appellate brief under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, alleging that
he found no meritorious issues for appeal. After a thorough review of the record, this Court
agrees that the trial court's proceedings were proper, and we affirm the trial court's judgment.
{¶ 2} On March 21, 2011, Mayberry entered a guilty plea to Burglary in violation
of R.C. 2911.12(A)(4), a felony of the fourth degree. In exchange for his guilty plea, the
State agreed not to pursue charges of Rape and Gross Sexual Imposition, felonies of the first
and third degree. On April 4, 2011, Mayberry was sentenced to a prison term of seventeen
months.
{¶ 3} Mayberry filed a timely notice of appeal with this Court on April 20, 2011.
On August 5, 2011, appointed counsel representing Mayberry submitted an Anders brief,
finding no meritorious issues for appeal. On August 10, 2011, this Court informed Mayberry
that his counsel filed an Anders brief and informed him of the significance of an Anders
brief. This Court advised Mayberry of his right to file a pro se brief assigning any errors for
review by this Court within sixty days of August 10, 2011. Mayberry has not filed anything
with this court.
{¶ 4} Although arguing that there are no meritorious claims to raise on Mayberry's
behalf, his counsel found two potential assignments of error:
{¶ 5} “THE APPELLANT DID NOT ENTER HIS PLEA KNOWINGLY,
INTELLIGENTLY, OR VOLUNTARILY”
{¶ 6} “THE COURT’S IMPOSITION OF A SEVENTEEN MONTH SENTENCE
WAS EXCESSIVE”
{¶ 7} Upon review, we agree with appellate counsel that these potential
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assignments of error have no arguable merit.
{¶ 8} In this case, the trial court strictly adhered to the requirements of Crim. R.
11(C)(2) when accepting Mayberry's plea of guilty. The transcript of the plea hearing
demonstrates that Mayberry's plea was made voluntarily, and with an understanding of the
nature of the charges against him and the maximum penalty that could be imposed.
Mayberry was also informed of the effects of his plea of guilty and Mayberry demonstrated
that he understood these effects, and the fact that the court could have proceeded to
judgment and sentencing at that time. Mayberry also acknowledged an understanding that by
entering a plea of guilty he had given up certain constitutional rights such as the right to a
jury trial, the right to confront witnesses, and the right to require the state to prove his guilt
beyond a reasonable doubt. Because of the negotiated plea involved in this case, the court
also stated the underlying agreement upon which the plea was based on the record, as
required under Crim. R. 11(F).
{¶ 9} Having determined that the court complied with all applicable rules and
statutes in accepting the guilty plea of Mayberry, we now turn to whether the trial court
abused its discretion in its sentence. In State v. Sexton, Champaign App. No. 2010 CA 19,
2011-Ohio-3867, ¶5, we stated that “[u]nder State v. Kalish, 120 Ohio St.3d 23,
2008–Ohio–4912, ‘trial courts “have full discretion to impose a prison sentence within the
statutory range and are no longer required to make findings or give their reasons for
imposing maximum, consecutive, or more than the minimum sentences.”’ Id. at 25
(internal citations omitted). However, the appellate court must ensure that the trial court
correctly followed all applicable rules and statutes when imposing the sentence. Id. If the
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trial court has done so, then the review of the imposition of sentencing is subject only to an
abuse of discretion standard. Id . at 26. A determination that the trial court abused its
discretion is ‘more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable.’ Id. at 27 (internal citations omitted).” The trial
court found Mayberry to have an extensive criminal history. This was Mayberry’s seventh
felony conviction as an adult, including three prior burglary convictions. The court also
considered the fact that Mayberry’s relationship with the victim had facilitated the offense.
Specifically, the court noted that Mayberry had victimized a low functioning, mentally
handicapped woman, despite being warned repeatedly by her family to stay away from her.
The trial court found that while a felony of the fourth degree carries a presumed probation or
community control sanction, it was not appropriate in Mayberry's case. The maximum
penalty available in this case was a prison term of up to eighteen months and a maximum
$5,000 fine. Because it was in the trial court's discretion to impose a sentence within the
statutory range, we find that the trial court's sentence of a seventeen month term was not an
abuse of discretion and therefore not excessive.
{¶ 10} In the performance of our duty, under Anders v. California, having conducted
an independent review of the record, we find no potential assignments of error having
arguable merit. We conclude this appeal is wholly frivolous. The judgment of the trial court
is Affirmed.
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GRADY, P.J., concurs.
FAIN, J., concurs in the judgment.
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FAIN, J., concurring:
{¶ 11} I write separately merely to renew my war against the
more-than-an-error-of-law formulation for abuse of discretion. See State v. Boles, 187 Ohio
App.3d 345, 2010-Ohio-278, ¶ 15-26. In all other respects, I concur in the opinion of this
court in this case.
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Copies mailed to:
Carley J. Ingram
William O. Cass, Jr.
Robert W. Mayberry
Hon. Timothy N. O’Connell