STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, - VS - JERMAINE STROUGHTER, DEFENDANT-APPELLANT.
CASE NO. 11 MA 86
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 30, 2012
2012-Ohio-1504
Hоn. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 10CR1045. JUDGMENT: Affirmed.
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 Donna Jewell McCollum 201 East Commerce Street, Suite 346 Youngstown, Ohio 44503
{¶1} Defendant-appellant Jermaine Stroughter appeals from his сonviction and sentence entered in the Mahoning County Common Pleas Court for possession of heroin. 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} On October 7, 2010, Stroughter was indicted for possessiоn of heroin in violation of
ANALYSIS
{¶3} 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, 18 L.Ed.2d 493 (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).
{¶4} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent‘s appeal is frivolous:
{¶5} “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
{¶6} “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.
{¶7} “5. It is the duty of the Cоurt 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.
{¶8} “* * *
{¶9} “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 сourt should be affirmed.” Id. at syllabus.
{¶10} The no merit brief was filed by counsel on September 21, 2011. On September 27, 2011, we granted Stroughter thirty days to file “his own written brief, listing any claims of error he chooses.” Prior to that deadline, Stroughter, pro se, filed a request for an extension to file a pro se brief. On November 18, 2011, we informed Stroughter that he was granted an extension to file his brief by December 12, 2011. However, Stroughter has not filed a brief with this court. Thus, the analysis will proceed with an independent examination of the record to determine if the appeal is frivolous.
{¶11} 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 these two areas are the only possible arguments that could be made in this appeal. Each will be rеviewed in turn.
PLEA
{¶12}
{¶13} 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 contrоl; 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 prоceed directly to judgment and sentencing.
{¶14} The trial court‘s advisement on the constitutional rights strictly complied with
{¶16} Therefore, considering all the above, we find that the plea colloquy complied with
SENTENCING
{¶17} 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 sentencе 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
{¶18} Here, Stroughter pled guilty to possession of heroin. The trial court sentenced Stroughter to a five year term of incarceration. 04/27/11 Sentencing Tr. 6; 05/02/11 J.E. This sentence is within the applicable sentencing range for a third-
{¶19} Furthermore, at the sentencing hearing and in the judgment entry, the trial court indicated that it considered both
{¶20} “The Court has considered the record, the oral statements and the presentencing investigаtion report, as well as the principles and purpose of sentencing under
{¶21} “* * *
{¶22} “The Court believes the Defendant is not amenable to community control and that prison is consistent with the purposes of
{¶23} At the sentencing hearing, the trial court made the following statement:
{¶24} “The court has considered the record and the oral statements made and the recоmmendation contained within the presentence investigation report that was prepared. The court has also considered the principles and purposes of sentencing under
{¶25} “In looking at the recidivism factors the court finds that the defendant has been – has both a state prison record and a felony prison record – I mean a federal prison record. The court also notes that the defendant has been given judicial release and probation and both were revoked. The court has also looked at the juvenile record the defendant has. Therefore, the defendant‘s sentenced to five years in the Department of Rehabilitation and Correсtions with credit for 104 days served as of this date along with any future days in custody while he awaits transportation to the appropriate state institution.” 04/27/11 Sentencing Tr. 5-6.
{¶26} Thus, it is apparent that the trial court considered the purposes and principles of sentencing in
{¶27} 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 and that the trial court did not abuse its discretion by imposing the five year sentence.
CONCLUSION
{¶28} For the foregoing reasons, the judgment of the trial court is hereby affirmed. There are no appealable issues and, as such, counsel‘s motion to withdraw is granted.
Donofrio, J., concurs.
Waite, P.J., concurs.