[Cite as State v. Jones,

.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 BE 0051 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ANTONIO DONTA JONES ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 16 CR 3

JUDGMENT: Affirmed.

APPEARANCES: For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor 147-A West Main Street St. Clairsville, Ohio 43950 No Brief Filed

For Defendant-Appellant: Atty. Anthony J. Farris 860 Boardman-Canfield Rd. Suite 204 Youngstown, Ohio 44512

Antonio Donta Jones, Pro se #A729000 Noble Correctional Institution 15708 McConnelsville Road Caldwell, Ohio 43724

JUDGES: Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb -2-

Dated: December 15, 2017 [Cite as State v. Jones,

.] WAITE, J.

{¶1} Appellant Antonio Donta Jones appeals a September 22, 2016

Mahoning County Common Pleas Court decision finding him guilty of involuntary

manslaughter. Appellant's counsel filed a no merit brief requesting leave to withdraw.

A complete review of the case reveals no potentially meritorious issues. Accordingly,

appointed counsel's motion to withdraw is granted and the judgment of the trial court

is affirmed.

Factual and Procedural History

{¶2} This case stems from an incident that occurred on November 19, 2015.

Appellant and his codefendants entered an apartment in an attempt to locate the

victim in this case. However, the men entered the wrong apartment before realizing

their mistake. They eventually found the victim’s apartment and Appellant physically

confronted the victim. The encounter escalated, and one of Appellant’s

codefendants shot and killed the victim. Appellant fled separately from his

codefendants.

{¶3} On April 21, 2016, Appellant was indicted on one count of aggravated

murder in violation of R.C. 2903.01(A), one count of aggravated murder in violation of

R.C. 2903.01(B), and two counts of aggravated burglary, a felony of the first degree

in violation of R.C. 2911.11(A)(2). One of the burglary counts arose from the

entrance into the first apartment and the second from the entrance into the victim’s

apartment.

{¶4} On August 16, 2016, Appellant entered an Alford plea in accordance

with North Carolina v. Alford,

,

,

(1970). In -2-

accordance with the plea agreement, all four counts in the indictment were amended

into a sole charge of involuntary manslaughter, a felony of the first degree in violation

of R.C. 2903.04(A). The state agreed to stand silent at sentencing.

{¶5} On September 19, 2016, the trial court held a sentencing hearing where

the court sentenced Appellant to ten years of incarceration. The trial court also

imposed a mandatory postrelease control period of five years. This timely appeal

followed.

No Merit Brief

{¶6} Based on a review of this matter, appellate counsel seeks to withdraw

after finding no potentially meritorious arguments for appeal. This filing is known as a

no merit brief or an Anders brief. See Anders v. California,

,

,

(1967). In this district, it is referred to as a Toney brief. See

State v. Toney,

,

(7th Dist. 1970).

{¶7} In Toney, we established the procedure to be used when appellate

counsel wishes to withdraw from a case deemed a frivolous appeal.

3. Where a 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. -3-

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.

at syllabus.

{¶8} On March 24, 2017, appellate counsel filed the no merit brief in this

matter. On April 5, 2017, we filed a judgment entry informing Appellant that his

counsel had filed a no merit brief and giving him thirty days to file his own brief.

Appellant filed a pro se brief on April 24, 2017. Accordingly, we must independently

examine the record to determine whether there are any potentially meritorious issues

in this matter. Appellate counsel asserts that no potentially meritorious issues exist,

however, suggested that Appellant’s best arguments involved his Alford plea and his -4-

sentence. In Appellant’s brief, he asks to be resentenced on the basis that he

received ten years of incarceration compared to a codefendant, who received only six

months of incarceration.

Alford Plea

{¶9} A plea of guilty or no contest must be made knowingly, intelligently and

voluntarily for it to be valid and enforceable. State v. Clark,

,

,

. In order to ensure that a plea in a felony

case is knowing, intelligent and voluntary, Crim.R. 11(C)(2) requires the trial judge to

address the defendant personally to review the rights that are being waived and to

discuss the consequences of the plea.

{¶10} Crim.R. 11(C)(2)(c) requires the court to review five constitutional rights

that are waived when entering a guilty or no contest plea in a felony case: the right to

a jury trial, the right to confront one's accusers, the privilege against compulsory self-

incrimination, the right to compulsory process to obtain witnesses, and the right to

require the state to prove guilt beyond a reasonable doubt. State v. Veney,

,

,

. A trial court must strictly comply

with Crim.R. 11(C)(2)(c) when advising the defendant of the constitutional rights that

are being waived in entering a felony plea.

at syllabus. Prejudice is presumed if

the court fails to inform the defendant of any of the constitutional rights listed in

Crim.R. 11(C)(2)(c). Id. at ¶ 29.

{¶11} A defendant must also be informed of his nonconstitutional rights prior

to entering a guilty plea, which include an understanding of the nature of the charges -5-

with an explanation of the law in relation to the facts, the maximum penalty, and that

after entering a guilty plea or a no contest plea the court may proceed to judgment

and sentence. Crim.R. 11(C)(2)(a)(b). The nonconstitutional requirements of

Crim.R. 11 are subject to review for substantial compliance rather than strict

compliance. State v. Griggs,

,

,

,

¶ 11-12. “Substantial compliance means that under the totality of the circumstances

the defendant subjectively understands the implications of his plea and the rights he

is waiving.” State v. Nero,

,

(1990). Further,

“failure to comply with nonconstitutional rights will not invalidate a plea unless the

defendant thereby suffered prejudice.”

.

{¶12} Regarding Appellant’s constitutional rights, in his written plea

agreement and at the plea hearing he was advised that he would be giving up his

right to appeal the following: (1) the right to a jury trial where the state would hold the

burden of proving each element against him beyond a reasonable doubt, (2) the right

to confront witnesses against him, (3) the right to subpoena witnesses and compel

their attendance at trial, and (4) the right against self-incrimination. (8/16/16 Plea

Hrg. Tr., pp. 3, 6, 9-12.) As such, we find that the trial court strictly complied with

advising Appellant of his constitutional rights.

{¶13} As to Appellant’s nonconstitutional rights, the trial court advised him of

the nature of the charges against him, involuntary manslaughter, and the maximum

penalty, which was eleven years of incarceration, a fine of $20,000, and a five-year

postrelease control period. However, the court did not inform Appellant that it could -6-

immediately proceed to sentencing if it accepted his plea. The failure to notify a

defendant of a nonconstitutional right will only invalidate a plea when the defendant

has suffered prejudice.

. Here, Appellant does not argue that

he was prejudiced by the court’s failure to inform him that it could immediately

proceed to sentencing. Further, the court did not immediately proceed to sentencing

and instead ordered a PSI and an evaluation for the Eastern Ohio Corrections

Center. Thus, the record does not reflect that Appellant suffered prejudice. As such,

the trial court substantially complied with advising Appellant of his nonconstitutional

rights.

{¶14} An Alford plea occurs when “a defendant pleads guilty yet maintains

actual innocence of the charges.” Id. at ¶ 13. Under Ohio law, an Alford plea is

properly accepted where the record demonstrates that the: (1) defendant's plea was

not the result of coercion, deception or intimidation; (2) defendant's counsel was

present at the time the plea was entered; (3) defense counsel's representation was

competent in light of the circumstances of the indictment; (4) the plea was entered

with an understanding of the underlying charges; and (5) the defendant was

motivated by a desire for a lesser penalty, a fear of the consequences of a jury trial,

or both. State v. LaBooth, 7th Dist. No. 15 MA 0044,

, ¶ 23, citing

State v. Piacella,

,

(1971), syllabus.

{¶15} At the plea hearing, the trial court addressed Appellant’s Alford plea.

Appellant informed the court that he was entering his Alford plea voluntarily and

without coercion or intimidation. Appellant’s counsel was present at the time the plea -7-

was entered and answered several of Appellant’s questions during the proceedings.

Additionally, Appellant faced multiple aggravated murder and aggravated burglary

charges and pleaded guilty to a sole count of involuntary manslaughter. Thus, the

record demonstrates that counsel was competent. Appellant told the court that he

understood the underlying charges and explained that he wished to plead guilty to

avoid the potential of a life sentence where he would never see his children again.

Thus, it appears that he was motivated by a desire of a lesser penalty. As such,

there are no appealable issues concerning Appellant’s Alford plea.

Sentencing

{¶16} An appellate court is permitted to review a felony sentence to determine

if it is contrary to law. State v. Marcum,

,

,

, ¶ 23. Pursuant to Marcum, “an appellate court may vacate or modify

any sentence that is not clearly and convincingly contrary to law only if the appellate

court finds by clear and convincing evidence that the record does not support the

sentence.”

{¶17} When determining a sentence, a trial court must consider the purposes

and principles of sentencing in accordance with R.C. 2929.11, the seriousness and

recidivism factors within R.C. 2929.12, and the proper statutory ranges set forth

within R.C. 2929.14.

{¶18} At the sentencing hearing, the trial court expressly considered and

weighed the R.C. 2929.12 seriousness and recidivism factors. The court also stated

that it considered the purposes and principles of sentencing. Appellant’s sentence -8-

falls within the statutory range prescribed within R.C. 2929.14. Accordingly, it

appears that the trial court complied with the requisite sentencing statutes.

{¶19} Both Appellant and appellate counsel have raised sentencing as a

possible error. Appellate counsel does not specify in which manner the sentence

could be erroneous, however, Appellant contends that he should have received a

sentence more in line with what a codefendant received. Appellant argues that he

was less culpable than his codefendant yet was sentenced to ten years of

incarceration while the codefendant received judicial release after six months. We

note that the record contains no real information on this codefendant’s sentence.

Even so, it is apparent from the record that the trial court did take the fact that

Appellant was less culpable than his codefendant into consideration.

{¶20} When analyzing the recidivism factors, the court stated:

[A]ccording to the facts that I have seen and based upon the

amendment of the charge and the noninclusion of a gun specification

charge, you were slightly less culpable than your co-defendants, and in

particular, it does not appear that you had any involvement whatsoever

in procuring or acquiring the firearm.

(9/9/16 Sentencing Hrg. Tr., p. 7.) Regardless, “[a] defendant alleging

disproportionality in felony sentencing has the burden of producing evidence to

‘indicate that his sentence is directly disproportionate to sentence given to other

offenders with similar records who have committed these offenses.’ ” State v.

Williams, 7th Dist.,

,

, ¶ 52 citing State v. Wilson, 8th -9-

Dist. No. 99331,

. Appellant has not presented any information

pertaining to his codefendant’s sentence, criminal record, or whether the sentence

was pursuant to a plea agreement. As such, he has not shown that his sentence

was disproportionate to the sentences received by codefendants. There are no

appealable issues concerning Appellant’s sentence.

Postrelease Control

{¶21} A trial court must provide notification to a defendant regarding

postrelease control at the time of sentencing and within its sentencing entry. State v.

Qualls,

,

,

, ¶ 18-19. The

notification must include the details of the postrelease control and the consequences

of violating postrelease control.

{¶22} Here, the trial court properly advised Appellant of the length of his

postrelease control, the mandatory nature of his postrelease control, and the

consequences he would face if he violated postrelease control. These advisements

were incorporated into the trial court’s sentencing entry. There are no appealable

issues as to the trial court’s advisement of postrelease control.

Conclusion

{¶23} Appellant's counsel filed a no merit brief requesting leave to withdraw.

A complete review of the case reveals no potentially meritorious issues as to

Appellant’s convictions or sentence. As such, his convictions and sentence are

affirmed and counsel’s motion to withdraw is granted.

DeGenaro, J., concurs. -10-

Robb, P.J., concurs.