[Cite as State v. Kellish,
2016-Ohio-2925.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 14 MA 0162
V. )
) OPINION
LEO KELLISH, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 13 CR 1269
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St.
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Desirae Dipiero
7330 Market Street
Youngstown, Ohio 44512
Attorney Scott Essad
721 Boardman-Poland Rd., Suite 201
Youngstown, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: May 4, 2016
[Cite as State v. Kellish, 2016-Ohio-2925.]
DONOFRIO, P.J.
{¶1} Defendant-appellant, Leo Kellish, appeals from a Mahoning County
Common Pleas Court judgment convicting him of murder, following his guilty plea.
{¶2} On November 29, 2013, Dennis Simmons was found beaten to death.
On December 5, 2013, a Mahoning County Grand Jury indicted appellant on two
counts of murder, first-degree felonies in violation of R.C. 2903.02(A)(D) and R.C.
2903.02 (B)(D) both carrying the possibility of 15 years to life in prison; and one count
of felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1)(D).
Appellant entered a not guilty plea.
{¶3} On October 28, 2014, appellant entered into a plea agreement with
plaintiff-appellee, the State of Ohio. Pursuant to the agreement, the state dismissed
one murder count and the felonious assault count. In exchange, appellant entered a
guilty plea to the remaining murder count. Appellant acknowledged that he would still
have to serve 15 years to life on the murder count. The prosecution agreed,
however, that when appellant became eligible for parole after 15 years, it would
stand silent on the issue of his release. The trial court accepted appellant’s plea and
set the matter for sentencing.
{¶4} At the sentencing hearing, the trial court sentenced appellant to 15
years to life, which was a mandatory prison term. Appellant filed a timely notice of
appeal on November 21, 2014.
{¶5} Appellant's appointed counsel filed a no merit brief and request to
withdraw pursuant to State v. Toney, 23 Ohio App.2d 203,
262 N.E.2d 419 (7th Dist.
1970).
{¶6} This court granted counsel’s request to withdraw on March 24, 2015.
We then appointed substitute counsel. Additionally, on appellant’s request, we
granted him leave to file his own pro se brief by August 14, 2015. Neither appellant
nor his substitute counsel filed a brief. On September 30, 2015, we put on a
judgment entry notifying the parties that the briefs were past due and the matter
would be considered for submission to the court unless appellant filed a brief within
30 days of the entry. No brief was filed. Consequently, we are left only to conduct
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our own independent review pursuant to Toney.
{¶7} In Toney, this court set out the procedure to be used when appointed
counsel finds that an indigent criminal defendant's appeal is frivolous.
{¶8} 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.
{¶9} Because appellant entered a plea in this case, there are two issues to
examine. The first issue is whether appellant entered his plea knowingly, voluntarily,
and intelligently. The second issue is his sentence.
{¶10} When determining the validity of a plea, this court must consider all of
the relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-0365,
-3-
2005-Ohio-552, ¶ 8, citing Brady v. United States,
397 U.S. 742,
90 S.Ct. 1463
(1970). Pursuant to Crim.R. 11(C)(2), the trial court must follow a certain procedure
for accepting guilty pleas in felony cases. Before the court can accept a guilty plea to
a felony charge, it must conduct a colloquy with the defendant to determine that he
understands the plea he is entering and the rights he is voluntarily waiving. Crim.R.
11(C)(2). If the plea is not knowing, intelligent, and voluntary, it has been obtained in
violation of due process and is void. State v. Martinez, 7th Dist. No. 03-MA-196,
2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama,
395 U.S. 238, 243,
89 S.Ct. 1709
(1969).
{¶11} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of federal constitutional rights. Martinez, supra, ¶ 12. These rights include
the right against self-incrimination, the right to a jury trial, the right to confront one's
accusers, the right to compel witnesses to testify by compulsory process, and the
right to proof of guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c).
{¶12} In this case, the court strictly complied with Crim.R. 11(C)(2) in
informing appellant of the constitutional rights he was waiving by entering a guilty
plea. Before accepting appellant's plea, the trial court informed appellant that by
pleading guilty he was waiving his right to have the state prove its case beyond a
reasonable doubt, his right to a jury trial, his right to subpoena witnesses to assist
him, his right to cross-examine witnesses against him, and his right to remain silent at
trial. (Change of Plea Tr. 27-28). Appellant indicated that he understood that he was
giving up each of these rights and stated he had no questions regarding them.
(Change of Plea Tr. 29-30).
{¶13} A trial court need only substantially comply with Crim.R. 11(C)(2)
pertaining to non-constitutional rights such as informing the defendant of “the nature
of the charges with an understanding 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.” Martinez, supra, ¶ 12, citing Crim.R.
11(C)(2)(a)(b).
-4-
{¶14} Here the trial court substantially complied with Crim.R. 11(C)(2) in
informing appellant of his non-constitutional rights. The court informed appellant of
the nature of the charge against him. (Change of Plea Tr. 14-25). Appellant
indicated that he listened to the charge against him. (Change of Plea Tr. 25).
Appellant also indicated that he understood the maximum penalty and that he
understood that the prison term was mandatory. (Change of Plea Tr. 25-26). And
while the court did not actually inform appellant that it could proceed immediately to
sentencing, it asked the parties if they would like to proceed directly to sentencing or
to set the matter for a later sentencing date. (Change of Plea Tr. 30-31). At
appellant’s request, the court set the matter for sentencing two days later. (Change
of Plea Tr. 31, 32).
{¶15} Additionally, the trial court inquired as to whether appellant was
voluntarily entering his plea. The court asked appellant if anyone had made any
promises or threats to him to induce his plea. (Change of Plea Tr. 25). The court
also asked if anyone had coerced, intimidated, scared, or done anything else to
induce appellant into pleading guilty. (Change of Plea Tr. 25). Appellant indicated
that no one had promised, threatened, coerced, intimidated, or scared him into
pleading guilty. (Change of Plea Tr. 25).
{¶16} Thus, the trial court substantially complied with Crim.R. 11(C)(2) in
accepting appellant's plea.
{¶17} The next issue we have to review is appellant’s sentence.
{¶18} Appellant was convicted of one count of murder in violation of R.C.
2903.02(A). The trial court sentenced him to a mandatory sentence of 15 years to
life.
{¶19} Pursuant to R.C. 2929.02(B)(1), when imposing a sentence for murder
that does not contain one of the statutory aggravating circumstances, the trial court
must impose a prison term of 15 years to life. In this case, none of the listed
aggravating circumstances were present. Thus, the trial court was required to
impose a sentence of 15 years to life.
-5-
{¶20} Appellant’s sentence was mandatory. A sentence imposed for
aggravated murder or murder pursuant to R.C. 2929.02 to R.C. 2929.06 is not
subject to review. R.C. 2953.08(D)(3); State v. Terrell, 1st Dist. No. C-020194, 2003-
Ohio-3044, ¶ 28.
{¶21} In this case the trial court properly imposed the statutorily-mandated
sentence. Thus, there is nothing for us to review.
{¶22} In sum, upon review of the case file and appellate filings, there are no
appealable issues.
{¶23} For the reasons stated above, the trial court's judgment is hereby
affirmed.
Waite, J., concurs.
Robb, J., concurs.
