State v. Wilson

[Cite as State v. Wilson, 2012-Ohio-5980.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 12 MA 53
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
ROBERT WILSON, III, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 11CR1086.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney John Falgiani, Jr.
8872 East Market Street
Warren, Ohio 44484
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 14, 2012
[Cite as State v. Wilson, 2012-Ohio-5980.]
VUKOVICH, J.
{¶1} Defendant-appellant Robert Wilson III appeals from his conviction and
sentence entered in the Mahoning County Common Pleas Court for two counts of
receiving stolen property. Appointed appellate counsel filed a no merit brief and
requested leave to withdraw. A review of the case file and brief reveals that there are
no appealable issues. Thus, the judgment of the trial court is hereby affirmed and
counsel's motion to withdraw is granted.
STATEMENT OF CASE
{¶2} Wilson was indicted for two counts of receiving stolen property in
violation of R.C. 2913.51(A) and (C); the first count was a fourth-degree felony and
the second count was a fifth-degree felony. The first count alleged that on
September 28, 2011, Wilson retained or received Dennis Ray’s, Wilson’s
grandmother’s boyfriend, automobile, a 1999 Buick LeSabre. The second count
alleged that on that same date Wilson retained or received a license plate with the
number FBA 8606 that belonged to James Ferguson. 10/27/11 Indictment.
{¶3} Wilson originally pled not guilty to the offenses, but later entered a plea
agreement with the state and changed his plea to guilty. 11/08/11 Not Guilty Plea;
01/24/12 Guilty Plea. The state agreed to recommend community control. Following
a plea colloquy, the trial court accepted the guilty plea. 01/10/12 Plea Hearing.
{¶4} Sentencing occurred on March 1, 2012. The trial court disregarded the
state’s recommendation of community control, found that Wilson was not amenable
to community control and that prison was consistent with the purposes of R.C.
2929.11. 03/21/12 J.E. The trial court ordered Wilson to serve an aggregate
sentence of 12 months in the penitentiary. He received 12 months on each count
and those sentences were ordered to be served concurrent with each other. The trial
court informed Wilson that after completion of the prison term he could be subject to
up to three years of postrelease control. Sentencing Tr. 6; 03/21/12 J.E. Wilson
timely appealed. Counsel has filed a no merit brief asking to withdraw because there
are allegedly no appealable issues.
ANALYSIS
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{¶5} When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no merit or an Anders
brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In this district, it has
also been called a Toney brief. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419(7th Dist.1970).
{¶6} In Toney, this court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
3. Where court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is
frivolous and that there is no assignment of error which could be
arguably supported on appeal, he should so advise the appointing court
by brief and request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to withdraw
as counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
***
7. Where the Court of Appeals determines that an indigent's
appeal is wholly frivolous, the motion of court-appointed counsel to
withdraw as counsel of record should be allowed, and the judgment of
the trial court should be affirmed.
Id. at syllabus.
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{¶7} The no merit brief was filed by counsel on June 18, 2012. This court
informed Wilson that he had until July 26, 2012 to file “his own written brief listing any
claims of error he chooses.” 06/26/12 J.E. Wilson did not file a pro se brief. Thus,
the analysis will proceed with an independent examination of the record to determine
if the appeal is frivolous.
{¶8} The no merit brief reviews the plea and sentence. Counsel concludes
that there are no appealable issues and that the appeal is frivolous. This court's
independent review of the file reveals that there are potentially two possible
arguments that could be made in this appeal. Each will be reviewed in turn.
PLEA
{¶9} Crim.R. 11(C) provides that a trial court must make certain advisements
prior to accepting a defendant's guilty plea to ensure that the plea is entered into
knowingly, intelligently and voluntarily. These advisements are typically divided into
constitutional rights and nonconstitutional rights. The constitutional rights are: 1) a
jury trial; 2) confrontation of witnesses against him; 3) the compulsory process for
obtaining witnesses in his favor; 4) that the state must prove the defendant's guilt
beyond a reasonable doubt at trial, and 5) that the defendant cannot be compelled to
testify against himself. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176,
2008–Ohio–5200, 897 N.E.2d 621, ¶ 19–21. The trial court must strictly comply with
these requirements; if it fails to strictly comply, the defendant's plea is invalid. Veney
at ¶ 31.
{¶10} The nonconstitutional rights that the defendant must be informed of are:
1) the nature of the charges; 2) the maximum penalty involved, which includes, if
applicable, an advisement on postrelease control; 3) if applicable, that the defendant
is not eligible for probation or the imposition of community control sanctions, and 4)
that after entering a guilty plea or a no contest plea, the court may proceed directly to
judgment and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10–13; State v.
Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 19–26 (indicating
that postrelease control is a nonconstitutional advisement). For the nonconstitutional
rights, the trial court must substantially comply with Crim.R. 11's mandates. State v.
Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance
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means that under the totality of the circumstances the defendant subjectively
understands the implications of his plea and the rights he is waiving.” Veney at ¶ 15,
quoting Nero at 108. Furthermore, a defendant who challenges his guilty plea on the
basis that the advisement for the nonconstitutional rights did not substantially comply
with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea
would not have been otherwise entered. Veney at ¶ 15, citing Nero at 108.
{¶11} The trial court's advisement on the constitutional rights strictly complied
with Crim.R. 11(C)(2)(c). Wilson was informed that by pleading guilty he was waiving
his right to a jury trial, his right to have the state prove beyond a reasonable doubt
each element of the offenses, his right to confront witnesses that would be called to
testify against him, his right to compel witnesses to testify on his behalf and his right
to not have to testify. Plea Tr. 3-4. Following these advisements Wilson indicated
that he understood that by pleading guilty he was waiving these rights. Plea Tr. 4.
{¶12} Likewise, the advisements on the nonconstitutional rights, substantially
complied with Crim.R. 11(C). Wilson was properly advised of the charges against
him, two counts of receiving stolen property. Plea Tr. 3. He was correctly advised
that the maximum penalty for the fourth-degree felony receiving stolen property
charge is an 18 month prison sentence and a $5,000 fine. Plea Tr. 4; R.C.
2929.14(A)(4) (maximum prison term for a fourth-degree felony); R.C.
2929.18(A)(3)(d) (maximum fine for fourth-degree felony). He was also correctly
advised that the maximum penalty for the fifth-degree felony receiving stolen property
charge is a 12 month prison term and a $2,500 fine. Plea Tr. 4; R.C. 2929.14(A)(5)
(maximum prison term for a fifth-degree felony); R.C. 2929.18(A)(3)(e) (maximum
fine for fifth-degree felony). He was correctly advised that he could be subject to up
to three years of postrelease control. Plea Tr. 5; R.C. 2967.28(C). The court then
advised Wilson that it could proceed immediately to sentencing after accepting the
guilty plea. Plea Tr. 4. The trial court also advised him that he is eligible for a
community control sanction. Plea Tr. 5. The trial court was only required under
Crim.R. 11(C) to advise Wilson of his ineligibility for a community control sanction.
However, since the advisement that he was eligible for a community control sanction
was correct, there is no potential error. R.C. 2929.13(B). Following all of these
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advisements, Wilson indicated that he understood the information that was being
provided to him. Plea Tr. 4-6.
{¶13} Consequently, the above indicates that the plea colloquy complied with
Crim.R. 11(C) and, as such, the plea was intelligently, voluntarily, and knowingly
entered. There are no appealable issues concerning the plea.
SENTENCING
{¶14} We review felony sentences using both the clearly and convincingly
contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist.
No. 08MA101, 2009–Ohio–695, ¶ 8; State v. Gray, 7th Dist. No. 07MA156, 2008–
Ohio–6591, ¶ 17. Our initial inquiry is whether the sentence is clearly and
convincingly contrary to law; whether the sentencing court complied with all
applicable rules and statutes in imposing the sentence. Gratz at ¶ 8, citing State v.
Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, ¶ 13–14. If it is not
clearly and convincingly contrary to law, we must determine whether the sentencing
court abused its discretion in applying the factors in R.C. 2929.11, R.C. 2929.12 and
any other applicable statute. Gratz at ¶ 8, citing Kalish at ¶ 17.
{¶15} Here, Wilson pled guilty to the fourth-degree felony receiving stolen
property charge and the fifth-degree felony receiving stolen property charge. The
trial court sentenced Wilson to 12 months for each conviction and ordered the
sentences to run concurrent to each other. Sentencing Tr. 6; 03/21/12 J.E. Wilson
was also advised that following the prison terms he could be subject to postrelease
control for up to 3 years.
{¶16} The sentence ordered complies in all aspects with the sentencing
statutes. It is within the applicable sentencing range for the fourth and fifth-degree
felonies. R.C. 2929.14(A)(4) and (5) (fourth-degree felony range is 6 to 18 months
and fifth-degree felony range is 6 to 12 months). Likewise, the postrelease control
advisement as to its discretionary nature and the maximum length of it is correct.
R.C. 2967.28(C).
{¶17} Furthermore, at the sentencing hearing and in the judgment entry, the
trial court indicated that it considered both R.C. 2929.11 and R.C. 2929.12 when
rendering the sentence. In the Judgment Entry it stated:
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The Court has considered the record, the oral statements and
the pre-sentencing investigation report prepared, as well as the
principles and purpose of sentencing under R.C. 2929.11, and has
balanced the seriousness and recidivism factors under R.C. 2929.12.
***
The Court believes the Defendant is not amenable to community
control and that prison is consistent with the purposes of R.C. 2929.11.
03/21/12 J.E.
{¶18} The trial court made similar statements at the sentencing hearing. That
said, the trial court did not state what principles and purposes under R.C. 2929.11
and what seriousness and recidivism factors under R.C. 2929.12 were applicable.
However, R.C. 2929.11 and 2929.12 do not mandate judicial fact-finding. Rather,
“[t]he court is merely to ‘consider’ the statutory factors.” State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42. Thus, “in exercising its discretion, a
court is merely required to ‘consider’ the purposes of sentencing in R.C. 2929.11 and
the statutory * * * factors set forth in R.C. 2929.12.” State v. Sutton, 8th Dist. No.
97132, 2012–Ohio–1054, ¶ 11, citing State v. Lloyd, 11th Dist. No. 2006–L–185,
2007–Ohio–3013, ¶ 44. Therefore, since the court stated it considered R.C. 2929.11
and R.C. 2929.12 that was sufficient to comply with its duty.
{¶19} Regardless, the record does demonstrate evidence that supports not
only imposing a prison term, but also the length of the prison term ordered. For
instance, the presentence investigation report (PSI) reveals that Wilson has
committed prior criminal offenses. As a juvenile he was put on probation for
obstructing official business and disorderly conduct. As an adult he has prior
convictions for receiving stolen property, theft, disrupting public service, vandalism,
possession of dangerous drugs, and endangering children. Three of those offenses
were felonies. The PSI also shows that in 2008 Wilson was given community control.
However, within months of receiving community control, the Community Corrections
Association negatively terminated the community control. In addition to his criminal
record, the statement that Wilson made during sentencing does not demonstrate
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remorse, rather it demonstrates his belief that the insignificant task of taking friends
home justifies using, without permission, another person’s property:
Mr. Wilson: I’d like to say first of all to the court, and to you, that
I apologize for everything. I have been – I mean, it was my
grandfather’s, you know, car and I was taking a few friends home. So I
mean, I understand I shouldn’t have had the car, but nothing I could do
about it at the time, but he wasn’t mad. When I seen him, we talked
about it and everything, but he said I still shouldn’t have taken it. I was
taking some friends home. * * *
Plea Tr. 4.
{¶20} Consequently, considering his statements and the record, the court did
not abuse its discretion in finding that community control sanctions were not
warranted and for ordering an aggregate sentence of 12 months in prison.
Furthermore, since the sentence is within the applicable sentencing range and the
trial court considered the applicable statutes in determining the appropriate sentence,
we find that the sentence is not clearly and convincingly contrary to law. Therefore,
in regards to the sentence imposed, there are no appealable issues.
CONCLUSION
{¶21} For the foregoing reasons, Wilson’s conviction and sentence are hereby
affirmed. As there are no appealable issues, counsel's motion to withdraw is
granted.
Donofrio, J., concurs.
DeGenaro, J., concurs.