STATE OF OHIO, Plaintiff-Appellee -vs- PHILLIP G. REED, Defendant-Appellant
Case No. 14-COA-010
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 28, 2015
[Cite as State v. Reed, 2015-Ohio-3534.]
Hon. W. Scott Gwin, P.J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case No.13-CRI-112; JUDGMENT: Affirmed
For Plaintiff-Appellee
PAUL T. LANGE
ASSISTANT PROSECUTING ATTORNEY
110 Cottage Street
Ashland, OH 44805
For Defendant-Appellant
MATTHEW J. MALONE
10 East Main Street
Ashland, OH 44805
Gwin, P.J.
{¶1} Appellant, Phillip G. Reed, was indicted on a variety of offenses resulting from his involvement in several burglaries. He negotiated a plea wherein he plead guilty to one count of burglary which was a felony of the second degree, two counts of burglary which were felonies of the third degree, one count of theft from an elderly person, a felony of the fifth degree, and two counts of petty theft. Appellant was sentenced to a term of imprisonment of six years on the felony three burglary count along with a $2,000.00 fine, a prison term of two years on the remaining two burglary counts as well as a $1,000.00 fine, one year in prison for theft from the elderly with a $500.00 fine, 180 days in jail and a $500.00 fine on each of the petty theft counts. The two third degree felony burglaries were ordered served concurrently with one another but consecutive to the theft from the elderly sentence. The misdemeanors were ordered served concurrently with the felony sentences. This resulted in an aggregate prison sentence of nine years with fines totaling $5,500.00.
{¶2} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924, indicating that the within appeal was wholly frivolous and setting forth two proposed Assignments of Error. Appellant has not raised any additional assignments of error pro se.
{¶3} In Anders, the United States Supreme Court held if, after a conscientious examination of the record, a defendant‘s counsel concludes the case is wholly frivolous, then he should so advise the court and request permission to withdraw. Id. at 744. Counsel must accompany his request with a brief identifying anything in the record that
{¶4} Counsel in this matter has followed the procedure in Anders v. California (1967), 386 U.S. 738.
POTENTIAL ASSIGNMENTS OF ERROR
I.
{¶5} “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11 BEFORE ACCEPTING APPELLANT‘S GUILTY PLEA.”
II.
{¶6} “WHETHER THE TRIAL COURT‘S SENTENCE IMPOSED ON APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF ITS DISCRETION.”
{¶7} We now will address the merits of Appellant‘s potential Assignments of Error.
I.
{¶8} In his first potential Assignment of Error, Appellant suggests the trial court did not comply with
* * * that the defendant is making the plea voluntarily, with the understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
{¶10} ”
{¶11} Though failure to adequately inform a defendant of his constitutional rights would invalidate a guilty plea under a presumption that it was entered involuntarily and unknowingly, failure to comply with non constitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice. [ State v.. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
{¶12} A review of the plea hearing reveals the trial court advised Appellant of his constitutional rights, the potential penalties for each offense, and the possibility of post release control. Further, the trial court inquired as to the voluntariness of Appellant‘s plea of guilty. In short, the trial court complied with
{¶13} Appellant‘s first Assignment of Error is overruled.
II.
{¶14} In his second potential assignment of error, Appellant challenges the sentence imposed by the trial court.
{¶15} The Ohio Supreme Court has established a two-step analysis for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. The first step is to “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court‘s decision to be reviewed under an abuse-of-discretion standard. Id.
{¶16} We find the sentences imposed were not clearly and convincingly contrary to law. The sentences in this case were imposed within the statutory range provided in
{¶17} Having reviewed the sentence, sentencing factors found in
{¶18} Appellant‘s second proposed assignment of error is overruled.
{¶19} For these reasons, after independently reviewing the record, we agree with counsel‘s conclusion that no arguably meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel‘s request to withdraw, and affirm the judgment of the Ashland County Court of Common Pleas.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur