State v. Bembry
2014 Ohio 5498
Ohio Ct. App.2014Background
- Bembry was indicted in 2012 on two counts of burglary (second degree felonies) and one count of attempted safe cracking (fifth degree).
- He pled not guilty by reason of insanity, later withdrew that plea.
- The State and Bembry negotiated a plea agreement under which the State would recommend a three-year aggregate sentence and modify bond to release on own recognizance with conditions, plus a cooperation agreement.
- Bembry was released on recognizance but shortly after allegedly committed a nearly identical offense; the bond was revoked.
- At sentencing in June 2013, the State urged a 10-year aggregate sentence due to Bembry’s extensive criminal history, while the defense urged compliance with the plea agreement for a 3-year sentence.
- The trial court imposed a 10-year aggregate sentence (5 years for each burglary, 12 months for attempted safe cracking, with burglary counts consecutive and the safe cracking count concurrent).
- A no-merit brief (Anders) was filed; the court independently reviewed the record and affirmed the convictions and sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the plea entered knowingly, intelligently, and voluntarily? | Plea complied with Crim.R.11 and was voluntary. | Not raised; any deficiency would render plea invalid. | Plea valid; knowingly, intelligently, and voluntarily entered. |
| Did the State breach the plea agreement by not recommending the negotiated sentence, given Bembry's bond and cooperation requirements? | State owed the plea obligation absent change in circumstances. | Bembry breached bond/cooperation, excusing State obligation. | State was relieved of its obligation due to Bembry's breach; no appealable issues on the plea. |
| Was the sentencing within legal bounds and properly justified for consecutive terms? | Consecutive sentences warranted by criminal history and conduct. | Discretion misapplied; sentence excessive. | Not clearly and convincingly contrary to law; the court did not abuse discretion; consecutive terms supported by findings. |
| Did the court properly apply sentencing statutes and find requisite factors for consecutive terms? | Court properly considered R.C. 2929.11, 2929.12, and 2929.14(C)(4). | Findings insufficient or improper. | Findings on record; Bonnell-compliant; sentence upheld. |
Key Cases Cited
- State v. Veney, 120 Ohio St.3d 176 (2008–Ohio–5200) (mandatory Crim.R.11 compliance and prejudicial effect considerations for nonconstitutional advisements)
- State v. Nero, 56 Ohio St.3d 106 (1990) (substantial compliance standard for nonconstitutional Crim.R.11 advisements)
- State v. Sarkozy, 117 Ohio St.3d 86 (2008–Ohio–509) (nonconstitutional advisements must be substantially complied with; prejudice analysis required)
- State v. Bonnell, 140 Ohio St.3d 209 (2014–Ohio–3177) (consecutive sentencing findings may be on the record; not every word of statute words required)
- State v. Payton, 2010-Ohio-5178 (6th Dist. E-09-070) (plea agreement breach considerations when outcome changes with breach)