State v. Broyles
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[Cite as State v. Broyles, 2015-Ohio-4778.] IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsGURNEY WADE BROYLES, JR. Defendant-Appellant : : : : : : : : JUDGES: Hon. Sheila G. Farmer, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. : NUNC PRO TUNC CASE NO. 14-COA-037 OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 14-CRI-042 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 5, 2015 APPEARANCES: For Appellant: For Appellee: Matthew J. Moore (0085903) 11-1/2 East Second Street Ashland, Ohio 44805 Christopher R. Tunnell (0072036) Ashland County Prosecutor Joshua T. Aspin (0090168) Assistant Prosecuting Attorney 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 14-COA-037 2 Delaney, J. {¶1} Appellant, Gurney Wade Broyles, Jr., was indicted on three counts: burglary, a felony of the third degree, theft, a felony of the fifth degree, and complicity to burglary, a felony of the third degree. {¶2} Pursuant to a plea agreement, Appellant plead guilty to the burglary and complicity to burglary counts. As a result, Appellant received a sentence of 30 months in prison on each count to be served consecutive to one another. Appellant was also ordered to pay restitution and court costs. {¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, rehearing den. (1967), 388 U.S. 924 (1967), 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. {¶4} 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 could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies these requirements, the appellate court must fully examine the proceedings below to Ashland County, Case No. 14-COA-037 3 determine if any arguably meritorious issues exist. If the appellate court also determines that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id. {¶5} Counsel in this matter has followed the procedure in Anders v. California, 386 U.S. 738 (1967). POTENTIAL ASSIGNMENTS OF ERROR I. {¶6} “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11 BEFORE ACCEPTING APPELLANT’S GUILTY PLEA.” II. {¶7} “WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF ITS DISCRETION.” {¶8} We now will address the merits of Appellant’s potential Assignments of Error. I. {¶9} In his first potential Assignment of Error, Appellant suggests the trial court did not comply with Crim.R. 11 in accepting Appellant’s plea. {¶10} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to address the defendant personally, to convey certain information to such defendant, and prohibits acceptance of a guilty plea or no contest without Ashland County, Case No. 14-COA-037 performing these duties. 4 State v. Holmes, 5th Dist. Fairfield No. 09 CA 70, 2010–Ohio–428, ¶ 10. Crim.R. 11(C)(2)(a) states the trial court must determine, * * * 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. {¶11} “Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need only “substantially comply” with the rule when dealing with the non-constitutional elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio St.3d 85, 2004– Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the following test for determining substantial compliance with Crim.R. 11: {¶12} 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 otherwise been made.’ Id. Under the Ashland County, Case No. 14-COA-037 5 substantial-compliance standard, we review the totality of circumstances surrounding [the defendant's] plea and determine whether he subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 5th Dist. Stark No. No. 2012CA00115, 2012-Ohio-4843 appeal not allowed, 2013-Ohio902, 134 Ohio St. 3d 1485, 984 N.E.2d 29. {¶13} 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 Crim.R. 11, therefore, this potential assignment of error is found to be without merit. {¶14} Appellant’s first Assignment of Error is overruled. II. {¶15} In his second potential assignment of error, Appellant challenges the sentence imposed by the trial court. {¶16} 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, 896 N.E.2d 124. 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. Ashland County, Case No. 14-COA-037 6 {¶17} 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 R.C. 2929.14. We also find the trial court made the requisite statutory findings in support of imposing consecutive sentences as required by State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E. 3d 659, ¶ 37. {¶18} Having reviewed the sentence, sentencing factors found in R.C. 2929.12, the facts surrounding the crimes, and Appellant’s extensive criminal history, we also find the trial court did not abuse its discretion in imposing the sentence in this case. {¶19} Appellant’s second proposed assignment of error is overruled. {¶20} 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: Delaney, .J. Farmer, P.J. and Wise, J. concur [Cite as State v. Broyles, 2015-Ohio-4778.]
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