[Cite as State v. Goad, 2018-Ohio-1338.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 17 MA 0051 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

RALPH GOAD ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 16 CR 631 

JUDGMENT: Convictions Affirmed. Sentence 

Vacated. Remanded for Resentencing. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. Shelli Ellen Freeze 

839 Southwestern Run Road 

Poland, Ohio 44514 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

Dated: March 29, 2018
[Cite as State v. Goad, 2018-Ohio-1338.]

WAITE, J. 

{¶1} Appellant Ralph Goad appeals his convictions and sentences entered 

pursuant to a Crim.R. 11 plea agreement in the Mahoning County Common Pleas 

Court. Appellant was convicted on multiple counts of burglary, multiple counts of 

breaking and entering, and one count of attempted burglary. Appellant’s counsel 

filed a no merit brief requesting leave to withdraw. A complete review of the record 

reveals the only appealable issue regards the imposition of consecutive sentences by 

the trial court. The trial court failed to make the statutorily mandated consecutive 

sentence findings at the sentencing hearing and in the judgment entry. Therefore, 

Appellant’s convictions are affirmed, but the trial court’s sentencing is vacated and 

the matter is remanded for resentencing. Appointed counsel’s motion to withdraw is 

granted. 

Factual and Procedural History 

{¶2} On June 9, 2016, Appellant was indicted. Counts one, two and three 

involved breaking and entering in violation of R.C. 2911.13(A), (C), felonies of the 

fifth degree. Counts four, five, six and seven charged burglary in violation of R.C. 

2912(A)(2), (D), felonies of the second degree; counts eight, nine and ten charged 

breaking and entering in violation of R.C. 2911.13(A), (C), felonies of the fifth degree. 

Count eleven was for attempted burglary in violation of R.C. 2911.12(A)(2), (D) and 

R.C. 2923.02, a felony of the third degree, and counts twelve and thirteen involved 

burglary in violation of R.C. 2911.12(A)(2), (D), felonies of the second degree. 

{¶3} Appellant entered into a Crim.R. 11 plea agreement with the state. 

Pursuant to plea negotiations, the state amended all of the burglary counts (counts 4-
-2-

7; 12, 13) from second degree felonies to third degree felonies. Appellant agreed to 

plead to the charges as amended. The state agreed to recommend a sentence of 

fifteen years of imprisonment and agreed that Appellant was free to argue for a lesser 

sentence. On January 5, 2017, the trial court held a plea hearing. After entering into 

a Crim.R. 11 colloquy with Appellant, the court accepted his guilty plea. The state 

recommended a sentence of a fifteen-year term of incarceration. Appellant did not 

object to this recommendation. 

{¶4} On March 1, 2017, the trial court held a sentencing hearing. The state 

reiterated its recommendation for a prison sentence of fifteen years. Appellant’s 

counsel argued for a term of five to seven years. The trial court accepted the state’s 

recommendation and sentenced Appellant to thirty months each on counts four, five, 

six, seven, twelve and thirteen, to be served consecutively to one another; a thirty 

month sentence on count eleven, to be served concurrently with count four; a 

sentence of twelve months each on counts one, two, three, eight, nine and ten to be 

served concurrently with count four. The total prison term to which Appellant was 

sentenced was fifteen years. The court also imposed a mandatory three-year term of 

postrelease control and credited Appellant with 280 days of jail time served. This 

timely appeal followed. 

No Merit Brief 

{¶5} Appellant’s counsel seeks to withdraw after finding no meritorious 

arguments for appeal. This filing is known as a no merit brief, or an Anders brief. 

See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). In this 
-3-

district, it is also referred to as a Toney brief. See State v. Toney, 23 Ohio App.2d 

203, 262 N.E.2d 419 (7th Dist.1970). 

{¶6} In Toney, this Court 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. 

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 
-4-

counsel of record should be allowed, and the judgment of the trial court 

should be affirmed. 

Id. at syllabus. 

{¶7} On June 28, 2017, appellate counsel filed a no merit brief in this matter. 

On July 19, 2017, we entered a judgment entry informing Appellant that his counsel 

had filed a no merit brief and gave him thirty days to file his own brief. Appellant 

failed to file a brief. Accordingly, this Court must independently examine the record 

to determine whether there are any potentially meritorious issues in this matter. 

Counsel contends that she has reviewed the plea colloquy and sentence. 

Plea Hearing 

{¶8} Per Crim.R. 11(C), the trial court must advise the defendant of certain 

rights prior to accepting a guilty plea. These rights are both constitutional and 

nonconstitutional in nature. 

{¶9} Regarding the defendant’s constitutional rights, a trial court must advise 

a defendant of: (1) a right to a jury trial; (2) a right to confront witnesses; (3) 

compulsory process to obtain favorable witnesses; (4) the state’s burden to prove 

defendant’s guilt beyond a reasonable doubt at trial; and (5) that defendant cannot be 

compelled to testify at his trial. State v. Bell, 7th Dist. No. 14 MA 0017, 2016-Ohio1440, ¶ 9, citing Crim.R. 11(C)(2); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio5200, 897 N.E.2d 621, ¶ 19-21. The trial court must strictly comply with these 

constitutional requirements in order for a defendant’s plea to be deemed valid. Id. at 

¶ 31. 
-5-

{¶10} The defendant must also be advised of his nonconstitutional rights 

which include: (1) the nature of the charges; (2) the maximum penalty to which the 

defendant is subject, including postrelease control, if it is applicable; (3) whether the 

defendant is eligible for probation or community control sanctions; and (4) that the 

trial court may immediately proceed to sentencing after the plea is accepted. Id. at 

¶ 10-13. Strict compliance is not required for these rights. The trial court need only 

substantially comply when advising on these nonconstitutional requirements. 

“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.” Bell, supra at ¶ 10, citing Veney at ¶ 15. If the trial court has not 

substantially complied when advising defendant of his or her nonconstitutional rights, 

the defendant must then demonstrate that there has been a prejudicial effect. Id.

{¶11} At the plea hearing in the instant matter, the trial court informed 

Appellant he had the right to a jury trial; that the state would be required to prove 

each element of the offenses beyond a reasonable doubt; he had the right to issue 

subpoenas to compel witnesses to testify; he had the right to confront witnesses 

against him; and that he could not be compelled to testify at trial. (1/5/17 Plea Hrg. 

Tr., pp. 4-6.) This record reveals that the trial court strictly complied when advising 

Appellant of his constitutional rights. 

{¶12} Regarding Appellant’s nonconstitutional rights, the trial court informed 

him of the charges that were brought against him, which included multiple counts of 

breaking and entering, multiple counts of burglary, and a single count of attempted 
-6-

burglary. (1/5/17 Plea Hrg. Tr., pp. 4-5.) The court also advised Appellant that he 

was subject to a maximum sentence of one year on each of the counts of breaking 

and entering and a maximum of 36 months on each of the burglary counts, the 

amended burglary counts and the attempted burglary charge. The court informed 

Appellant that if he received a term of incarceration he would be subject to a 

mandatory three-year term of postrelease control. (1/5/17 Plea Hrg. Tr., pp. 8-9.) 

The court informed Appellant that it could proceed immediately to sentencing after 

accepting his plea. (1/5/17 Plea Hrg. Tr., p. 7.) The record, then, also reveals the 

trial court substantially complied when advising Appellant of his nonconstitutional 

rights. 

{¶13} As the trial court strictly complied when advising Appellant of his 

constitutional rights and substantially complied when advising him of his 

nonconstitutional rights, there are no appealable issues regarding Appellant’s guilty 

plea and subsequent conviction. 

Sentencing 

{¶14} An appellate court may review a felony sentence to determine if it is 

clearly and convincingly contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 23. “[A]n 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.” Id.
-7-

{¶15} A sentencing court must consider the purposes and principles of 

sentencing in accordance with R.C. 2929.11; the seriousness and recidivism factors 

set forth in R.C. 2929.12; and the appropriate consecutive sentence requirements 

enumerated in R.C. 2929.14(C)(4). 

{¶16} In the instant matter, the trial court accepted the state’s 

recommendation and sentenced Appellant to thirty months each on counts four, five, 

six, seven, twelve and thirteen, to be served consecutively to one another; a 

sentence of thirty months on count eleven to be served concurrently with count four; 

a sentence of twelve months each on counts one, two, three, eight, nine and ten to 

be served concurrently with count four, for a total stated prison term of fifteen years. 

{¶17} When imposing consecutive sentences the trial court must make the 

required R.C. 2929.14(C)(4) findings at the sentencing hearing and must also 

incorporate those findings into the written sentencing entry. State v. Bonnell, 140 

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 654, ¶ 29. R.C. 2929.14(C)(4) reads: 

If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the 

offender and that consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger the offender 

poses to the public, and if the court also finds any of the following: 
-8-

(a) The offender committed one or more of the multiple offenses while 

the offender was awaiting trial or sentencing, was under a sanction 

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the 

Revised Code, or was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one 

or more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the 

courses of conduct adequately reflects the seriousness of the offender's 

conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

R.C. 2929.14(C)(4). 

{¶18} We recognize “a word-for-word recitation of the language of the statute 

is not required, and as long as the reviewing court can discern that the trial court 

engaged in the correct analysis and can determine that the record contains evidence 

to support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29. 

{¶19} In the case sub judice, the record reveals the trial court failed to make 

any of the findings at the sentencing hearing and also failed to make these findings in 

the written judgment entry. The trial court stated that it was imposing consecutive 
-9-

sentences but the record is devoid of any indication that it considered R.C. 

2929.14(C)(4) when it imposed those consecutive sentences. 

{¶20} Therefore, although there are no appealable issues regarding 

Appellant’s convictions, the trial court’s failure to properly consider the R.C. 

2929.14(C)(4) requirements when imposing consecutive sentences requires 

resentencing. We affirm Appellant’s convictions but vacate his sentence and remand 

the matter to the trial court for a new sentencing hearing. Appointed counsel’s 

motion to withdraw is granted. 

Donofrio, J., concurs. 

Robb, P.J., concurs.