{¶ 2} Trooper Stacey Arnold of the Ohio State Highway Patrol and her drug dog, Ringo, were patrolling the Ohio Turnpike on the morning of January 1, 2003. At *2 approximately 8:00 a.m., the trooper saw a motor vehicle traveling at an unusually slow rate of speed for the existing road conditions. Trooper Arnold also noted that appellant, who was the driver of the motor vehicle, "was very rigid, staring straight ahead, and was driving with both hands on the steering wheel." Id. at ¶ 2.
{¶ 3} Her suspicions aroused, the trooper followed the vehicle and watched it drift over the right edge line of the road and then drift back onto the dotted line. Deciding that these movements were a marked lane violation under R.C.
{¶ 4} Because of a number of things that she observed during the stop, the trooper suspected criminal activity and began questioning appellant and his passengers about their destination. She asked Nguyen, who would not look at her and was so nervous that his hands were trembling, for his driver's license and the vehicle's registration. Neither appellant nor his passengers were able to locate the vehicle's registration.
{¶ 5} As she was speaking with appellant, Trooper Arnold noticed "two large, full, hockey style bags with a blanket thrown over them in the rear of the cargo area" of the vehicle. Id. at ¶ 6. Relying on her experience and training, the trooper believed that the bags contained illegal drugs. She therefore called for a back up unit. When the unit arrived, Arnold walked Ringo around vehicle; "he immediately alerted at the left rear portion of the cargo area." Id. at ¶ 7. After ordering appellant and his passengers out of the vehicle, the trooper lifted "the back hatch, pulled out the duffel bags, and opened *3 them. The bags contained more than 100 pounds of B.C. (British Columbia) bud marijuana." Id.
{¶ 6} The trooper arrested appellant and his passengers. Subsequently, they were each charged "with one count of trafficking in marijuana, a violation of R.C.
{¶ 7} During the proceedings below, appellant filed several motions, including a motion to suppress any physical evidence, that is, the marijuana, seized. He asserted that the stop, detention, and search of the vehicle he was driving violated the
{¶ 8} Appellant then filed a motion asking the trial court to compel the state to produce the undisclosed real world reports. After holding a hearing, the trial court found that all of the drug dog's real world reports were discoverable pursuant to Crim.R. 16(B)(1)(c). The state filed a motion for leave to appeal, which was granted by this court. We reversed the judgment of the trial court, and remanded this cause for further proceedings. Id. at ¶ 64. *4
{¶ 9} Upon our remand, appellant filed a number of motions, including (1) a second motion to suppress any statements made by appellant that violated his rights under the
{¶ 10} On September 20, 2005, appellant withdrew his plea of not guilty and, pursuant to North Carolina v. Alford (1970),
{¶ 11} Thereafter, appellant filed a motion for leave to file a delayed criminal appeal pursuant to App.R. 5(A). On January 3, 2006, we granted appellant's motion and appointed counsel for the purpose of representing appellant in this appeal. Appointed counsel submitted a brief pursuant to Anders v. California (1967),
{¶ 12} Anders and State v. Duncan (1978),
{¶ 13} In the case before us, appointed counsel for appellant satisfied the requirements set forth in Anders.1 Appellate counsel did notify appellant, who filed his own supplementary brief, but later withdrew that brief. Counsel asserts that after thoroughly examining the record from the proceedings below and researching the applicable law, he could find no meritorious grounds for an appeal. However, counsel for appellant asserts, in compliance with the mandates of Anders, sets forth two arguable assignments of error: *6
{¶ 14} "Appellant was denied effective assistance of counsel and thus was deprived of his rights under the Constitutions of the United States and state of Ohio."
{¶ 15} "Appellant was sentenced pursuant to an unconstitutional statute and the judge's findings during sentencing deprived appellant to his rights to fundamental fairness with respect to prosecution and sentencing, thus violating his
{¶ 16} Accordingly, we shall proceed with an examination of the arguable assignments of error set forth by counsel for appellant and of the entire record below in order to determine whether this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 17} In his first potential assignment of error, appellant contends that his trial counsel was ineffective because the trial court denied his motion to suppress the evidence obtained from an illegal search and seizure in violation of the
{¶ 18} An Alford plea is procedurally indistinguishable from a guilty plea and waives all alleged errors, including the denial of a motion to suppress, committed at trial except those errors that may have affected the entry of a defendant's plea pursuant to Crim.R. 11. State v.Leasure, 6th Dist. No. L-05-1260,
{¶ 19} Here, appellant maintains that his trial counsel was ineffective due to the denial of his motion to suppress. Because he entered an Alford guilty plea, appellant waived his right to raise this issue on appeal. Leasure at ¶ 7. Nevertheless, pursuant toAnders, this court must conduct a full examination of the proceedings below to determine if this appeal is wholly frivolous. Therefore, we shall examine appellant's change of plea hearing for the purpose of a deciding whether appellant's trial counsel caused his guilty plea to be less than knowing and voluntary.
{¶ 20} In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of Crim.R. 11(C). If a defendant's guilty plea is not voluntary and knowing, it was obtained in violation of due process and is, therefore, void. Boykin v. Alabama (1969),
{¶ 21} A trial court must strictly comply with Crim. R. 11(C)(2)(c) as it pertains to the waiver of federal constitutional rights. State v.Nero (1990),
{¶ 22} In the case under consideration, appellant is Vietnamese; therefore, an interpreter who speaks Vietnamese was present at the change of plea hearing to aid appellant in entering a knowing and voluntary plea. The court inquired as to appellant's age and education and whether or not he was under the influence of alcohol or drugs. Appellant indicated that he was 38 years old and had an eighth grade education. He stated that he was not under the influence of alcohol or drugs at the time of the hearing.
{¶ 23} The judge then explained the nature of the charged offense and the maximum penalty appellant could receive. He further informed appellant of the following: (1) his motor vehicle operators license would be suspended for a period no less than six months nor more than five years; (2) appellant was required to serve the entire five years and could possibly be subject to three years of post-release control; (3) the court could impose a fine of up to $10,000; (4) that for any violation of the restrictions placed on appellant after his release from prison, he could be returned to prison for up to nine months for each violation or, if the violation was a felony, to greater than one year in prison or the time remaining on post release control; and (5) that appellant would be tried on the new felony. Finding that appellant was not a United States citizen, the court told him that the consequences of his conviction could lead to deportation or the denial of naturalization. After each above listed explanations, the trial judge asked appellant if he understood, and appellant replied, "Yes." Based on the *9 foregoing, we can only conclude that the trial court substantially complied with Crim.R. 11(C)(2)(a) and (b).
{¶ 24} With regard to the question of whether the common pleas court apprised appellant of the effect of a guilty plea on his constitutional rights, as mandated under Crim.R. 11(C)(2)(c), the court asked whether appellant realized that by pleading guilty he was waiving his right to a jury trial, to confront and cross-examine witnesses against him, and to use the power of the court to obtain witnesses to testify on appellant's behalf. Appellant replied "Yes" to each query. The court also asked appellant if he understood that by entering a guilty plea the state was no longer required to prove his guilt beyond a reason doubt at a trial wherein appellant could not be compelled to testify against himself. After each of these questions, appellant again indicated that he understood this waiver of his constitutional rights by answering "Yes." Thus, the trial court satisfied the duty imposed by Crim.R. 11(C)(2)(c).2
{¶ 25} Accordingly, a reading of the transcript of the change of plea hearing reveals that trial counsel did nothing to cause appellant's entry of an AIford guilty plea to be less than knowing and voluntary.State v. Leasure,
{¶ 26} In his second arguable assignment of error, appellant acknowledges the fact that he entered into an agreed upon sentence of five years pursuant to R.C.
{¶ 27} The Foster court determined that certain provisions of Ohio's sentencing statute that required a sentencing court to make findings and, in some instances, reasons for those findings, were unconstitutional. See, e.g., Id. at paragraph one of the syllabus (Finding R.C.
{¶ 28} R.C.
{¶ 29} "A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge."
{¶ 30} Thus, under this statute an appellate court has a limited ability to review agreed upon/jointly recommended sentences. State v.Spurling, 1st Dist. No. C-060087,
{¶ 31} As applied to the case before us, the five year sentence imposed upon appellant is within the statutory range for a felony of the third degree. See R.C.
{¶ 32} After engaging in further independent review of the record, we conclude that there are no other grounds for a meritorious appeal. Appellate counsel's motion to withdraw is found well-taken and is, hereby, granted. Judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
*12JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J., William J. Skow, J., Thomas J. Osowik, J., CONCUR.