[Cite as State v. Hopkins, 2018-Ohio-1340.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

SANTINO TOMAS RAPHAEL-HOPKINS, 

 DEFENDANT-APPELLANT. 

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CASE NO. 17 BE 0017 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Belmont County, Ohio 

Case No. 16 CR 221 

JUDGMENT: Motion to Withdraw Granted. 

New Counsel to be appointed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney J. Flanagan 

Courthouse Annex 1 

147-A West Main Street 

St. Clairsville, Ohio 43950 

No Brief Filed. 

For Defendant-Appellant Attorney John M. Jurco 

P.O. Box 783 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: April 5, 2018 
[Cite as State v. Hopkins, 2018-Ohio-1340.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Santino Tomas Raphael-Hopkins, appeals from a 

Belmont County Common Pleas Court judgment convicting him of trafficking in drugs, 

attempted possession of drugs, and possession of drugs following his guilty plea. 

{¶2} On or about August 2, 2016, appellant was operating a motor vehicle in 

Belmont County, Ohio. Two deputies from the Belmont County Sheriff’s Department 

initiated a traffic stop of appellant for failing to use a turn signal. Upon approaching 

appellant’s vehicle, the deputies smelled what they believed was burning marijuana. 

The deputies requested appellant’s driver’s license, registration, and proof of 

insurance. Appellant could not produce his license or proof of insurance. Appellant 

claimed that the car he was operating was a rental car but he could not produce the 

rental agreement. 

{¶3} Appellant was then removed from the car and frisked for weapons. 

While the frisk revealed no weapons, the deputy who frisked appellant noticed a 

large object in one of appellant’s pockets which he believed to be a large amount of 

cash. The deputy also felt a hard object in another one of appellant’s pockets. After 

the frisk, appellant confessed that the hard object was something “bad.” When the 

deputy asked what something “bad” meant, appellant admitted that the hard object 

contained drugs. 

{¶4} The deputies then searched the car and appellant. The search yielded 

several bags of crack/cocaine or heroin in various amounts. The deputies also found 

that appellant had $2,445.00 in cash on him. Appellant was then arrested and 

indicted in the Belmont County Court of Common Pleas on several counts. Those 

counts were: 

Court 1 for trafficking in drugs in violation of R.C.2925.03(A)(1)(C)(4)(a), 

a felony of the fifth degree; 

Count 2 for trafficking in drugs in violation of R.C.2925.03(A)(1)(C)(6)(a), 

a felony of the fifth degree; 

Count 3 for trafficking in drugs in violation of R.C.2925.03(A)(1)(C)(1)(a), 

a felony of the fourth degree; 
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Count 4 for possession of drugs in violation of R.C.2925.11(A)(C)(6)(d), 

a felony of the second degree; 

Count 5 for trafficking in drugs in violation of R.C.2925.03(A)(2)(C)(6)(e), 

a felony of the second degree; 

Count 6 for possession of drugs in violation of R.C.2925.11(A)(C)(4)(c), 

a felony of the third degree; and 

Count 7 for trafficking in drugs in violation of R.C.2925.03(A)(2)(C)(4)(d), 

a felony of the third degree. 

{¶5} Appellant also faced a forfeiture specification on each count pursuant to 

R.C. 2941.1417 in the amount of $2,445.00. 

{¶6} Appellant filed a motion to suppress all evidence on the basis that there 

was insufficient reasonable suspicion to initiate the traffic stop. But on the date of the 

suppression hearing, appellant withdrew his motion to suppress and accepted a plea 

agreement from the plaintiff-appellee, the State of Ohio. Pursuant to the plea 

agreement, the state dismissed Counts 2, 3, 5, and 7. The state also amended Count 

4 to attempted possession of drugs, a felony of the third degree. Appellant entered a 

guilty plea to Count 1, amended Count 4, and Count 6. The trial court accepted the 

plea agreement, ordered a pre-sentence investigation, and scheduled a sentencing 

hearing. 

{¶7} At the sentencing hearing, the trial court sentenced appellant to ten 

months of incarceration on Count 1, thirty months of incarceration on Count 4, and 

thirty months of incarceration on Count 6. The trial court ordered that these 

sentences were to be served consecutively for a total of 70 months. The trial court 

also ordered appellant to be under post-release control for a period of three years 

after appellant’s release from prison. Finally, the trial court ordered that appellant 

would forfeit the $2,445.00. 

{¶8} Appellant’s sentence was memorialized in a judgment entry dated 

January 17, 2017. Appellant filed with this Court what was construed to be a motion 

for a delayed appeal on March 17, 2017. In a judgment entry dated April 4, 2017, this 
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Court granted appellant’s motion for a delayed appeal. 

{¶9} Appellant’s counsel has filed a no-merit brief pursuant to Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In this district, a nomerit brief is also referred to as a Toney brief. State v. Toney, 23 Ohio App.2d 203, 

262 N.E.2d 419 (7th Dist. 1970). 

{¶10} In Toney, this Court set out the procedure to be used when appointed 

counsel finds that an indigent criminal defendant’s appeal is frivolous. The procedure 

set out in Toney, at the syllabus, is as follows: 

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. 

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. 

Toney 23 Ohio App.2d 203 at syllabus. 
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{¶11} After appellant’s counsel filed a no-merit brief, this Court afforded 

appellant 30 days to file a pro se brief listing any potential claims of error in a 

judgment entry dated July 31, 2017. In a judgment entry dated September 8, 2017, 

this Court afforded appellant an additional 30 days to file his pro se brief or to find 

new counsel to prosecute this appeal. Appellant failed to take any action. 

{¶12} While appellant’s counsel did not assert any proposed or potential 

assignments of error, appellant’s counsel appears to address the validity of 

appellant’s sentence. (Brief of Appellant, 8-9). When an appellant pleads guilty, a 

Toney review is limited to the validity of the plea and the sentence. See State v. 

Talbott, 7th Dist. No. 07 MA 225, 2008-Ohio-6300, ¶ 16. 

{¶13} Analyzing appellant’s plea, pursuant to CrimR. 11(C)(2)(c), the court 

has the duty of: “Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the rights to a jury trial, to 

confront witnesses against him or her, to have compulsory process for obtaining 

witnesses in the defendant’s favor, and to require the state to prove the defendant’s 

guilt beyond a reasonable doubt at a trial at which the defendant cannot be 

compelled to testify against himself or herself.” These are constitutional rights and 

strict compliance is required. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 

953 N.E.2d 826, ¶ 15. Nevertheless, the failure to recite the exact language of the 

rule will not invalidate a plea agreement if the record demonstrates the court actually 

explained each constitutional right in a reasonably intelligible manner. Id. at ¶ 15, 20. 

{¶14} The trial court advised appellant that by pleading guilty, he was waiving 

his: right to a speedy and public trial, the right to confront witnesses against him, the 

right to compulsory service of witnesses in his favor, the right to have the state prove 

his guilt beyond a reasonable doubt, his right against self-incrimination, the right to 

appeal, and the right to his assistance of counsel. (Change of Plea Tr. 5-6). But the 

trial court did not inform appellant that he would be waiving his right to a jury trial. 

{¶15} While waiving the right to a jury trial was addressed in appellant’s 

written guilty plea dated December 6, 2016 and the trial court referenced the written 
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guilty plea during the change of plea hearing, (Change of Plea Tr. 6), this does not 

appear to be strict compliance. The trial court has the duty to impart knowledge of 

these rights. “[T]he court cannot simply rely on other sources to convey these rights 

to the defendant.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 

621, ¶ 29. The trial court cannot rely on written pleas to convey the Crim.R. 

11(C)(2)(c) rights being waived by pleading guilty. See State v. Strebler, 7th Dist. No. 

08 MA 108, 2009-Ohio-1200, ¶ 36-37. The trial court’s failure to inform a defendant of 

all five Crim.R. 11(C)(2)(c) rights being waived at the change of plea hearing is 

reversible error. See State v. Dosch, 7th Dist. No. 08 MA 63, 2009-Ohio-6534. 

{¶16} For the reasons stated above, counsel’s motion to withdraw is granted. 

New Counsel shall be appointed by this Court to file a brief in this matter. The State 

will then have 30 days in which to respond. 

Waite, J., concurs. 

Robb, P., J., concurs.