[Cite as State v. Marshall,
2019-Ohio-646.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28131
:
v. : Trial Court Case No. 2018-CR-1239/2
:
RODNEY J. MARSHALL, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 22nd day of February, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARL BRYAN, Atty. Reg. No. 0086838, 120 W. Second Street, Suite 603, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
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HALL, J.
{¶ 1} Rodney J. Marshall, Jr. appeals from his conviction and sentence following
a no-contest plea to one count of breaking and entering, a fifth-degree felony.
{¶ 2} Marshall’s appointed appellate counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), asserting the absence
of any non-frivolous issues for appellate review. We notified Marshall of the Anders filing
and gave him an opportunity to file a pro se brief. No pro se brief has been filed, and the
time for doing so has expired.
{¶ 3} In the Anders brief, appellate counsel has identified one potential issue for
review. It concerns the trial court’s imposition of a statutory maximum 12-month prison
sentence. In light of Marshall’s prior felony convictions and other information in the record,
however, counsel concludes that an assignment of error challenging the sentence as an
“abuse of discretion” would be frivolous.
{¶ 4} Upon review, we agree that no non-frivolous issue exists concerning
Marshall’s sentence. Contrary to the suggestion in appellate counsel’s brief, however, the
issue is not whether the sentence is an abuse of discretion. We “do not review a felony
sentence under an abuse of discretion standard. Instead, based upon the language of
R.C. 2953.08(G)(2), we may vacate or modify a felony sentence if we find by clear and
convincing evidence that the record does not support the sentence or the sentence is
otherwise contrary to law.” State v. Damiano, 2d Dist. Champaign No. 2017-CA-31, 2018-
Ohio-4761, ¶ 9 (citing cases).
{¶ 5} Marshall’s sentence is not contrary to law because it is within the authorized
statutory range and the trial court stated that it had considered the appropriate sentencing
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factors. See id. at ¶ 9. The only other issue is whether the record clearly and convincingly
fails to support a 12-month prison sentence. The trial court addressed Marshall at
sentencing and made the following remarks:
Sir, I’ve reviewed your presentence investigation, the attorney’s
statement, the sentencing memorandum, and all of the documents
provided, as well as your statement. You are not being sentenced based
upon your past, although that is a factor. Your prior criminal history is
certainly something that I have to consider. You were released on parole
for an F2 burglary, an F3—two F3 burglaries, a breaking and entering, a
grand theft of a motor vehicle, a receiving stolen property. So many other
ones. There is a laundry list of them, including an F1 engaging in a pattern
of corrupt activity.
You were released on parole, less than three months—actually,
three months to the day. No, no, no, three months prior to this breaking and
entering offense. You have minimized your conduct throughout the course
of this proceeding. This is your fifth felony conviction, although there, in
some of the cases—the last one in particular had so many counts. I can’t
count them.
(Transcript at 30-31).
{¶ 6} A PSI report reflects that 35-year-old Marshall’s present offense involved
breaking into a residential garage and attempting to steal tools while under the influence
of alcohol and marijuana. He has prior juvenile adjudications for having a weapon on
school property, disorderly conduct, theft, escape, and alcohol use. He also has prior DYS
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commitments. As an adult, he has a lengthy misdemeanor record for offenses that
included, among other things, multiple instances of theft, trespassing, and receiving
stolen property. His adult felony record includes four prior cases and, among other things,
multiple convictions for receiving stolen property, theft, and burglary. He also has served
prior prison terms and was on post-release control at the time of the current offense.
Particularly in light of Marshall’s extensive criminal history, any argument that his 12-
month prison sentence is clearly and convincingly unsupported by the record would be
frivolous.
{¶ 7} In accordance with our responsibilities under Anders, we independently have
reviewed the record in search of non-frivolous issues and have found none. The trial court
refused to accept Marshall’s no-contest plea when he appeared in court on July 9, 2018
and claimed to have heard voices earlier that day. Despite its suspicion that he was not
being truthful, the trial court ordered him to undergo a competency evaluation. The trial
court later accepted the no-contest plea on August 7, 2018, after a forensic psychiatrist
found Marshall competent and defense counsel stipulated to his competence. Before
accepting the plea, the trial court engaged in a hearing in compliance with Crim.R. 11(C)
and assured that Marshall’s plea was knowing, intelligent, and voluntary. The trial court
strictly complied with Crim.R. 11(C)(2)(c) with respect to the waiver of his constitutional
rights. As for Crim.R. 11(C)(2)(a) and (b), which involve non-constitutional rights, the only
possible issue we have found involves the trial court’s obligation to tell Marshall that upon
accepting his plea it could “proceed with judgment and sentence.” See Crim.R.
11(C)(2)(b). We have not found this specific advisement in the plea-hearing transcript.
But the omission unquestionably was non-prejudicial. The trial court specifically told
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Marshall that it was not going to sentence him immediately and that it was going to order
a PSI report first. The trial court then ordered the report and continued sentencing for two
weeks. In addition, the plea form Marshall signed did advise him that upon acceptance of
his plea, the trial court could proceed with sentencing. (Doc. # 69). Because the trial court
postponed sentencing and the plea form contained the proper advisement, we see no
possible prejudice stemming from the trial court’s failure to tell Marshall that it could
proceed immediately with sentencing. We find substantial compliance with Crim.R.
11(C)(2)(b). Any argument that the trial court’s omission resulted in a prejudicially-
defective plea is frivolous. Compare State v. Reed, 2d Dist. Montgomery No. 27215,
2017-Ohio-7001, ¶ 8 (finding no non-frivolous issue for appeal under similar
circumstances).
{¶ 8} Having found no non-frivolous issues for appellate review, we affirm the
judgment of the Montgomery County Common Pleas Court.
.............
FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck
Andrew T. French
Carl Bryan
Rodney J. Marshall, Jr.
Hon. Mary Katherine Huffman
