[Cite as State v. Carter , 2022-Ohio-206.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO Plaintiff-Appellee

v. LARRY CARTER, JR. Defendant-Appellant : : : : : : : : : : Appellate Case No. 2021-CA-36 Trial Court Case No. 2021-CR-155 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of January, 2022.

. . . . . . . . . . . IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecutin g Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbi a Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee H. MICHELE THOMAS, Atty. Reg. No. 0082848, P.O. Box 695, Eaton, Ohio 45320 Attorney for Defendant-Appellant

. . . . . . . . . . . . . DONOVAN, J.-2- {¶ 1} Larry Carter Jr. pled guilty in the Clark County Court of Commo n Pleas to one count of improper handling of a firearm in a motor vehicle, a felony of the fourth degree, in violation of R.C. 2923.16(B). He appeals from his co nviction. Counsel for Carter has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no arguably merito rious arguments to raise on appeal. Carter was notified that he had the right to file a pro se brief, but he did not do so. For the following reasons, the trial court’s judgment wi ll be affirmed. {¶ 2} On March 6, 2021, Carter’s girlfriend, Diane Fick, contacted la w enforcement and reported that Carter had hit her with a chair and stolen he r motor vehicle. She also stated that she did not want to discuss the physical altercatio n but did want her car returned so that she could go to work in the morning. Fick sta ted that she and Carter had lived together for seven years and that Carter had just rec ently moved out. He was supposed to come over and gather some belongings when they deci ded to hang out longer. Carter was preparing to leave when he was unable to loc ate his keys. He became agitated and hit Fick with a chai r. He then took Fick’s keys an d ran out of the residence. {¶ 3} Law enforcement officers were standing in the driveway of Fick’ s home upon Carter’s return. Carter drove to another home and used that dri veway to turn around, but the officers initiated a traffic stop. Carter was removed from the vehicle and detained. While an officer was doing a pat-down, he discovered two 20-gau ge shell casings in Carter’s coat pocket. The officer asked Carter if he had a shot gun as well. Carter stated that he had driven to pick up the shotgun from a friend and tha t was why it was in the

motor vehicle. {¶ 4} The law enforcement officers placed Carter under arrest and in the backseat-3- of a patrol car. Officers then searched the vehicle and located the shotgun wrapped in a sweat pants leg in the backseat, lying half on the seat and hal f on the floorboard. The shotgun had two 20-gauge shells in the barrel. {¶ 5} The officers requested that Fick come down and collect her belo ngings from the vehicle. Fick said she did not want Carter to be charged wi th stealing the motor vehicle or the assault that had occurred earlier. However, while the of ficers were speaking with her, she stated that she was having trouble thinking due to bei ng hit in the head with a

chair. {¶ 6} Fick was advised that due to her injuries and her statements, C arter would be charged with domestic violence. Fick stated that she did not want to do anything due to a fear that Carter would kill her. An officer took photos of Fick’s injuries and one photo of Carter. Officers then transferred Carter to Springfield Poli ce Headquarters where he was charged with having weapons while under disability and impr oper handling of a firearm in a motor vehicle; the indictment also included a forf eiture specification related to the gun. {¶ 7} On May 17, 2021, Carter pled guilty to improper handling of a f irearm in a motor vehicle, in exchange for which the charge of having weapo ns while under disability was dismissed; Carter also agreed to the forfeiture of the weap on. During the plea hearing, the trial court asked if Carter understood the terms o f the agreement, and Carter stated that he did. The trial court then asked Carter if he wan ted to proceed with the plea agreement. Carter stated that he had “no choice” in accepting t he plea agreement, as reflected in the following exchange: THE COURT: Do you understand the terms of the agreement, Mr. Ca rter?-4- THE DEFENDANT: Yes, sir. THE COURT: Is that what you want to do this morning? THE DEFENDANT: I have no choice, Your Honor. THE COURT: Really? Because you have a choice to go to trial if you want a trial. THE DEFENDANT: No, I just don’t like – THE COURT: Will you take your mask off and speak up? THE DEFENDANT: Yes, sir. THE COURT: You have a choice. You can plead guilty or you can g o to trial. You have a trial scheduled for tomorrow. THE DEFENDANT: I plead guilty. THE COURT: So you do have a choice, right? THE DEFENDANT: Yes, sir. Plea Hearing Tr. p. 4-5. {¶ 8} The trial court then asked Carter if he was under the influence of drugs or alcohol. Carter replied that he had had a couple of beers the p revious day. The trial court asked if he was a United States citizen and if he understood th e nature of the case and the facts placed on the record by the prosecutor, to which Cart er replied affirmatively. The trial court asked if Carter was on probation, community con trol, post-release control, or parole, to which Carter replied that he was not. {¶ 9} The trial court also asked if Carter’s signature was on the wri tten plea document, if he had had an opportunity to review it with his la wyer, and if he understood it. Carter replied in the affirmative. The trial court asked if it was Carter’s understanding that, in exchange for his guilty plea to count two (improper ha ndling of a firearm), the-5- State had agreed to dismiss count one (having weapons while und er disability). Carter

stated that it was. {¶ 10} The trial court asked Carter if any other promises had been mad e to him or if he had been threatened, pressured, or coerced into pleading guilty. Carter stated that no other promises (other than the dismissal of count one) were made to him, and that he had not been threatened, pressured, or coerced into pleading gu ilty. The trial court asked if Carter was entering the guilty plea voluntarily, to which Ca rter replied affirmatively. The trial court asked if Carter understood that, upon his pleading guilty, the court would accept his plea, find him guilty, order a presentence investigation, a nd schedule sentencing for a later date. Carter stated that he understood. {¶ 11} The trial court reviewed the possible maximum prison term and f ine for the improper handling of a firearm in a motor vehicle offense. Cart er stated that he understood. The trial court also informed Carter that if he wer e placed on community control, the conditions could include time in the county jail, fines, and restitution. Carter replied that he understood. {¶ 12} The trial court informed Carter that if he were to be sentenced to prison, he could be placed on post-release control for up to three years. The trial court also reviewed the potential consequences of violating post-release control an d the consequences of being convicted of a felony offense while on post-release contr ol. Carter stated that he

understood. {¶ 13} The trial court also asked if Carter understood that he had the right to a jury trial, the right to require the State to prove beyond a reasona ble doubt every element of the offense, the right to confront witnesses, cross-examine wit nesses, and use the Court’s-6- subpoena power to compel the attendance of witnesses, the right to testify in his own defense (but could not be forced to do so), that he could only be convicted upon the unanimous verdict of the jury, and that by pleading guilty he w ould be waiving all of those rights. Carter replied in the affirmative. {¶ 14} Carter then pled guilty to improper handling of a firearm in a motor vehicle, and the trial court found that Carter had knowingly, voluntaril y, and intelligently waived his rights and entered into a plea of guilty. The trial court f ound Carter guilty upon his plea and ordered a presentence investigation. The trial court schedu led his sentencing for June 7, 2021. {¶ 15} On June 7, 2021, the trial court sentenced Carter to 18 months in prison. The trial court also stated that, upon his release, Carter coul d be placed on post-release control for up to three years and that he would receive credit for time spent in the Clark County Jail. The court did not impose a fine, and it ordered fo rfeiture of Carter’s firearm. {¶ 16} Carter appeals.

I. Anders Appeal Standard {¶ 17} Carter’s appellate counsel has filed a brief pursuant to Anders v. California 386 U.S. 738, 87 S.Ct. 1396 18 L.Ed.2d 493, indicating that she found no arguable issues for appeal. Counsel offers one potential assignment of error: w hether the trial court erred in imposing the maximum prison term of 18 months when Carter’s only prior felony was

in 1998. {¶ 18} When an Anders brief is filed, the appellate court must determine, “after a full examination of the proceedings,” whether the appeal is “wh olly frivolous.” Id. at 744; Penson v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not-7- frivolous merely because prosecution can be expected to present a strong argument in reply. State v. Pullen , 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that presents issues lacking arguable m erit, which means that "on the facts and law involved, no responsible contention can be ma de that it offers a basis for reversal." State v. Marbury , 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing Pullen at ¶ 4. If we find that any issue -- whether presented by appe llate counsel, presented by the defendant (if a pro se brief is filed), or fou nd through an independent analysis -- is not wholly frivolous, we must appoint different appellate counsel to represent the defendant. Id. at ¶17. {¶ 19} "An appellate court must determine whether the record affirmati vely demonstrates that a defendant's plea was knowing, intelligent, and voluntary[.]" State v.

Russell , 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a d efendant's plea is not knowing, intelligent, and voluntary, it "has been obtained in v iolation of due process and

is void." Id. {¶ 20} } "In order for a plea to be given knowingly and voluntarily, t he trial court must follow the mandates of Crim.R. 11(C)." State v. Brown , 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 13. The Supreme Court of Ohio ha s urged trial courts to comply literally with Crim.R. 11. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. However, in reviewing the plea colloquy, the focus should be on whether "the dialogue between the court and the defendant demon strates that the defendant understood the consequences of his plea." State v. Dangler , 164 Ohio St.3d 1; 2020-Ohio-2765, 164 N.E.3d 286, ¶ 12.-8- {¶ 21} Crim.R. 11(C)(2) requires a trial court to address the defendan t personally and (a) determine that the defendant is making the plea volunta rily, with an understanding of the nature of the charges and the maximum penalty, and, if a pplicable, that the defendant is not eligible for probation or for the imposition o f community control sanctions; (b) inform the defendant of and determine that the defendant un derstands the effect of the plea of guilty and that the court, upon acceptance of the p lea, may proceed with judgment and sentencing; and (c) inform the defendant and deter mine that he or she understands that, by entering the plea, the defendant is waivin g the rights to a jury trial, to confront witnesses against him or her, to have compulsory pr ocess for obtaining witnesses, and to require the State to prove guilt beyond a rea sonable doubt at a trial at which he or she cannot be compelled to testify against himself or herself. State v. Brown , 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3. {¶ 22} In general, a defendant is not entitled to have his or her plea vacated unless the defendant demonstrates he or she was prejudiced by a failur e of the trial court to comply with the provisions of Crim.R. 11(C). Dangler at ¶ 16, citing State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The test for prejudice i s "whether the plea would

have otherwise been made." Id. {¶ 23} This general rule is subject to two exceptions. Id. at ¶ 16. First, the trial court must comply strictly with Crim.R. 11(C)(2)(c) as it pertains to the waiver of federal constitutional rights. Id. at ¶ 14; Clark at ¶ 31. "When a trial court fails to explain the constitutional rights that a defendant waives by pleading guilt y or no contest, we presume that the plea was entered involuntarily and unknowingly, and no showing of prejudice is required." Dangler at ¶ 14.-9- {¶ 24} Second, "a trial court's complete failure to comply with a port ion of Crim.R. 11(C) eliminates the defendant's burden to show prejudice." Id. at ¶ 15, citing State v. Sarkozy , 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. See also State v. Bishop , 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 11 (a d efendant must show prejudice if the trial court partially complied with Crim. R. 11(C) in regard to a nonconstitutional right, but no showing of prejudice is required i f the trial court completely failed to comply). {¶ 25} We have reviewed the transcript of the plea hearing and find th at the trial court fully complied with the requirements of Crim.R. 11. The c ourt initially questioned Carter about his guilty plea. The court inquired if he was unde r the influence of alcohol or drugs. The court asked Carter if he had reviewed the plea agree ment with his attorney. All of Carter’s responses were appropriate. {¶ 26} The trial court reviewed the offense to which Carter was enteri ng a plea and the maximum prison sentence and fine for the offense. The court also reviewed what post-release control is and the potential consequences of viola ting post-release control. {¶ 27} The trial court reviewed the constitutional rights that he was waiving by entering a plea. Carter denied that his plea was the result of promises (other than the plea agreement) or threats. Carter pled guilty to one count of impro per handling of a firearm in a motor vehicle. The trial court found that Carter had entered his plea voluntarily and that Carter had signed the written plea form. {¶ 28} Upon review of the plea hearing transcript, we find no non-friv olous issues for appeal relating to Carter’s plea. {¶ 29} In addition, we find nothing in the record to suggest that anyt hing occurred-10- prior to the plea hearing that precluded Carter from entering a knowing, intelligent, and voluntary plea. A plea of guilty is a complete admission of guilt. E.g., State v. Faulkner , 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v. Wheeler , 2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; Crim.R. 11(B)(1). Co nsequently, a guilty plea generally waives all appealable errors that may have occur red in the trial court, unless such errors precluded the defendant from knowingly, inte lligently, and voluntarily entering his or her guilty plea. See, e.g., State v. Kelley , 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus; Wheeler at ¶ 3. We find no non-frivolous issues related to the events prior to Carter's guilty plea. {¶ 30} We now turn to Carter’s sentence. I n reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See State v. Marcum , 146 Ohio St.3d 516, 2016- Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an ap pellate court may increase, reduce, or modify a sentence, or it may vacate the se ntence and remand for resentencing, only if it "clearly and convincingly" finds eithe r (1) that the record does not support certain specified findings or (2) that the sentence imp osed is contrary to law. State

v. Huffman , 2d Dist. Miami No. 2016-CA-16, 2017-Ohio-4097, ¶ 6. {¶ 31} } "The trial court has full discretion to impose any sentence w ithin the authorized statutory range, and the court is not required to ma ke any findings or give its reasons for imposing maximum or more than minimum sentences." State v. King , 2013- Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercis ing its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard , 194 Ohio App.3d 500,-11- 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. {¶ 32} The presentence investigation report reflects that Carter was 4 1 years old at the time of the offense and disposition. Carter had both pri or juvenile and adult

convictions. {¶ 33} The maximum penalty for one count of improper handling of a fir earm in a motor vehicle, a felony of the fourth degree, was 18 months in prison and a $5,000 fine. The trial court’s sentencing of 18 months with no fine was not contrary to law. {¶ 34} We have examined the entire record and conducted our independen t review

in accordance with Penson , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We conclude that no non-frivolous issues exist for appeal in this case.

II. Conclusion {¶ 35} The trial court’s judgment is affirmed.

. . . . . . . . . . . . .

TUCKER, P.J. and WELBAUM, J., concur.

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Ian A. Richardson H. Michele Thomas Larry Carter, Jr. Hon. Douglas M. Rastatter