[Cite as State v. Sheldon,
2024-Ohio-5130.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Andrew J. King, J.
-vs- :
:
KIMBERLY SHELDON : Case Nos. 2024 CA 0001
: 2024 CA 0002
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeals from the Court of Common
Pleas, Case Nos. 2022CR0065 and
2023CR0022
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 24, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS J. SMITH APRIL F. CAMPBELL
60 East High Street 545 Metro Place South
Mount Gilead, OH 43338 Suite 100
Dublin, OH 43017
Morrow County, Case Nos. 2024 CA 0001 & 2024 CA 0002 2
King, J.
{¶ 1} Defendant-Appellant, Kimberly Sheldon, appeals her December 27, 2023
convictions and sentences from the Court of Common Pleas of Morrow County, Ohio.
Appellee is the State of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 31, 2022, the Morrow County Grand Jury indicted Sheldon on one
count of possession of drugs in violation of R.C. 2925.11 (Case No. 2022CR0065).
{¶ 3} On March 10, 2023, the Morrow County Grand Jury indicated Sheldon on
one count of receiving stolen property in violation of R.C. 2913.51 (Case No.
2023CR0022).
{¶ 4} Sheldon attempted treatment services, but in both cases, she violated her
bond conditions on several occasions and arrest warrants were issued.
{¶ 5} On December 5, 2023, Sheldon pled guilty to each count pursuant to a plea
agreement. The parties agreed to a nine-month sentence in each case to be served
concurrently, and the state agreed not to prosecute Sheldon for felony failure to appear.
By judgment entry filed December 27, 2023, the trial court sentenced Sheldon to five
years of community control, but reserved the right to sentence Sheldon to twelve months
in prison on each case, to be served consecutively.
{¶ 6} Sheldon filed an appeal in each case and was appointed counsel.
Thereafter, Sheldon's attorney filed Anders briefs under Anders v. California, 386 U.S.
738 (1967). In Anders, the United States Supreme Court held that if, after a conscientious
examination of the record, the defendant's counsel concludes that the case is wholly
frivolous, then counsel should so advise the court and request permission to withdraw.
Morrow County, Case Nos. 2024 CA 0001 & 2024 CA 0002 3
Id. at 744. Counsel must accompany the request with a brief identifying anything in the
record that could arguably support the defendant's appeal.
Id. Counsel also must: (1)
furnish the defendant with a copy of the brief and request to withdraw; and (2) allow the
defendant sufficient time to raise any matters that the defendant chooses.
Id. Once the
defendant's counsel satisfies these requirements, the appellate court must fully examine
the proceedings below to determine if any arguably meritorious issues exist. If the
appellate court also determines that the appeal is frivolous, it may grant counsel's request
to withdraw and dismiss the appeal without violating constitutional requirements, or may
proceed to a decision on the merits if state law so requires.
Id.
{¶ 7} On June 20, 2024, Sheldon's counsel filed motions to withdraw and indicted
she sent Sheldon copies of the Anders briefs and the relevant transcripts. By judgment
entries filed June 28, 2024, this court noted counsel had filed Anders briefs and indicated
to the court that she had served Sheldon with the briefs. Accordingly, this court notified
Sheldon via certified U.S. Mail that she "may file a pro se brief in support of the appeal
within 60 days from the date of this entry." Sheldon did not do so.
{¶ 8} The matter is now before this court for consideration of counsel's Anders
briefs. Counsel urges this court to review the following identical issue in each brief:
I
{¶ 9} "THE TRIAL COURT ERRED IN ACCEPTING SHELDON'S GUILTY
PLEAS UNDER CRIM.R. 11, AND ERRED IN SENTENCING SHELDON."
I
Morrow County, Case Nos. 2024 CA 0001 & 2024 CA 0002 4
{¶ 10} In the sole proposed assignment of error, counsel suggests the trial court
erred in accepting Sheldon's guilty pleas under Crim.R. 11 and erred in sentencing her.
We disagree.
PLEAS
{¶ 11} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo
standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109 (1990); State v. Groves,
2019-Ohio-5025, ¶ 7 (5th Dist.).
{¶ 12} Crim.R. 11 requires guilty pleas to be made knowingly, intelligently, and
voluntarily. The Supreme Court of Ohio noted the "different tiers of compliance with the
rule" i.e., partially, substantially, strictly, literally, "have served only to unduly complicate
what should be a fairly straightforward inquiry." State v. Dangler, 2020-Ohio-2765, ¶ 17.
The Court stated: "Properly understood, the questions to be answered are simply: (1) has
the trial court complied with the relevant provision of the rule? (2) if the court has not
complied fully with the rule, is the purported failure of a type that excuses a defendant
from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required,
has the defendant met that burden?"
Id. But the Court reaffirmed the substantial
compliance rule when it stated: "the traditional rule continues to apply: a defendant is not
entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure
of the trial court to comply with the provisions of Crim.R. 11(C)." Id. at ¶ 16, citing State
v. Nero,
56 Ohio St.3d 106, 108 (1990). In Nero, the Supreme Court of Ohio stated:
"[l]iteral compliance with Crim.R. 11 is certainly the preferred practice, but the fact that
the trial judge did not do so does not require vacation of the defendant's guilty plea if the
Morrow County, Case Nos. 2024 CA 0001 & 2024 CA 0002 5
reviewing court determines that there was substantial compliance."
Nero at 108.
"Substantial compliance" means "under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights he is waiving."
Id.
{¶ 13} As to the constitutional notifications, before accepting a plea, a trial court
must inform a defendant that by entering a plea, the defendant waives important
constitutional rights, specifically: (1) the right to a jury trial; (2) the right to confront one's
accusers; (3) the privilege against compulsory self-incrimination; (4) the right to
compulsory process to obtain witnesses; and (5) the right to require the state to prove the
defendant's guilt beyond a reasonable doubt at trial. Crim.R. 11(C)(2)(c).
{¶ 14} As to the non-constitutional rights, a trial court must notify a defendant of:
(1) the nature of the charges; (2) the maximum penalty involved, which includes, if
applicable, an advisement on post-release control; (3) if applicable, that the defendant is
not eligible for probation or the imposition of community control sanctions; and (4) that
after entering a guilty plea or a no contest plea, the court may proceed directly to judgment
and sentencing. Crim.R. 11(C)(2)(a) and (b).
{¶ 15} We have reviewed the transcript of Sheldon's pleas and find the trial court
was very thorough in its explanations and met Dangler's requirement of compliance with
her constitutional and non-constitutional rights; Sheldon indicated she understood the
implications of her pleas and the rights she was waiving. December 5, 2023 T. at 6-57.
SENTENCES
{¶ 16} As for Sheldon's sentence, this court reviews felony sentences using the
standard of review set forth in R.C. 2953.08. State v. Marcum, 2016-Ohio-1002, ¶ 22;
Morrow County, Case Nos. 2024 CA 0001 & 2024 CA 0002 6
State v. Howell,
2015-Ohio-4049, ¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's
standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 17} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
Morrow County, Case Nos. 2024 CA 0001 & 2024 CA 0002 7
{¶ 18} "A sentence is not clearly and convincingly contrary to law where the trial
court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.'" State v. Morris, 2021-Ohio-2646, ¶ 90 (5th Dist.),
rev'd on other grounds, State v. Morris,
2022-Ohio-4609, quoting State v. Dinka, 2019-
Ohio-4209, ¶ 36 (12th Dist.).
{¶ 19} After a proper Crim.R. 11 colloquy, Sheldon pled guilty to two felonies of the
fifth degree. December 5, 2023 T. at 46-48. Under R.C. 2929.14(A)(5), felonies of the
fifth degree are punishable by "a definite term of six, seven, eight, nine, ten, eleven, or
twelve months." Instead of sentencing Sheldon to prison time, the trial court sentenced
her to five years of community control in compliance with R.C. 2929.13(B)(1) and
reserved the right to sentence her to twelve months in prison in each case, to be served
consecutively. If imposed, the sentences are within the statutory range for fifth-degree
felonies. The trial court made the requisite findings for consecutive sentencing under
R.C. 2929.14(C)(4). December 12, 2023 T. at 19; Judgment Entries filed December 27,
2023. The trial court notified Sheldon of postrelease control and her right to appeal.
December 12, 2023 T. at 25; Guilty Plea Agreements filed December 6, 2023. The trial
court noted its consideration of the appropriate sentencing factors on the record and in
its sentencing judgment entries. December 12, 2023 T. at 12.
{¶ 20} Upon review of the record, we find the trial court properly informed Sheldon
of the consequences of her pleas, properly considered the factors set forth in R.C.
2929.11 and R.C. 2929.12, imposed sentences within the permissible statutory range,
Morrow County, Case Nos. 2024 CA 0001 & 2024 CA 0002 8
explained the stated and indefinite sentences, and properly imposed postrelease control.
Sheldon's sentences are therefore not clearly and convincingly contrary to law.
{¶ 21} "Anders equated a frivolous appeal with one that presents issues lacking in
arguable merit. . . . An issue lacks arguable merit if, on the facts and law involved, no
responsible contention can be made that it offers a basis for reversal." State v. Pullen,
2002-Ohio-6788, ¶ 4 (2d Dist.).
{¶ 22} After independently reviewing the record, we agree with appellate counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal. We
find the appeals to be wholly frivolous under Anders, grant counsel's request to withdraw,
and affirm the judgments of the trial court.
{¶ 23} The judgments of the Court of Common Pleas of Morrow County, Ohio, are
hereby affirmed.
By King, J.
Hoffman, P.J. and
Wise, J. concur.
