[Cite as State v. Reed, 2015-Ohio-3534.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsPHILLIP G. REED 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Patricia A. Delaney, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 14-COA-010 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County 

Court of Common Pleas, Case No.13-CRI112 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 28, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

PAUL T. LANGE MATTHEW J. MALONE 

ASSISTANT PROSECUTING ATTORNEY 10 East Main Street 

110 Cottage Street Ashland, OH 44805 

Ashland, OH 44805 
Ashland County, Case No. 14-COA-010 2 

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 
Ashland County, Case No. 14-COA-010 3 

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 

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. 

{¶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 Crim.R. 11 in accepting Appellant’s plea. 
Ashland County, Case No. 14-COA-010 4 

{¶9} 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 performing these duties. 

State v. Holmes, 5th Dist. 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. 

{¶10} “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: 

{¶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 
Ashland County, Case No. 14-COA-010 5 

otherwise been made.’ Id. Under the 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, 2012-Ohio-4843 

appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29. 

{¶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 Crim.R. 11, therefore, this potential 

assignment of error is found to be without merit. 

{¶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 

R.C. 2929.14. We also find the trial court made the requisite statutory findings in 
Ashland County, Case No. 14-COA-010 6 

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. 

{¶17} 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. 

{¶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