STATE OF OHIO v. DOMINIC BERLINGERI, JR.
No. 95458
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 26, 2011
2011-Ohio-2528
Case No. CR-527719
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Jeffrey R. Froude
P.O. Box 761
Wickliffe, OH 44092-0761
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Katherine Mullin
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{1} Defendant-appellant, Dominic Berlingeri, Jr., appeals his conviction and 15-year sentence after pleading guilty to 12 counts of aggravated robbery. For the reasons stated below, we affirm.
{2} On August 31, 2009, Berlingeri and six co-defendants were charged in a 26-count indictment with 12 counts of aggravated robbery, 12
{3} The trial court accepted Berlingeri‘s guilty pleas and imposed a sentence of six years on each of the aggravated robbery counts. The court ordered the six-year term for the first count of aggravated robbery to be served consecutively to the concurrent terms on the remaining 11 counts. With the mandatory three-year term for the merged firearm specifications, Berlingeri was sentenced to a total of 15 years in prison. It is from this conviction that Berlingeri appeals, raising three assignments of error.
{4} In his first assignment of error, Berlingeri challenges the validity of his guilty pleas, arguing that his pleas were not knowingly, intelligently, or voluntarily made because he was misinformed of the maximum penalty that could be imposed for the offenses to which he entered a plea. He argues that the trial court explained that the punishment for aggravated robbery of 12 victims is three to ten years in prison when, in fact, he faced a maximum
{5} In State v. Johnson (1988), 40 Ohio St.3d 130, 133, 532 N.E.2d 1295, the Ohio Supreme Court held that
{6} In the instant case, the trial court explained the “penalties” for the crime of aggravated robbery in Counts 1 through 12 were three to ten years for the “base crime,” a mandatory three-years for the firearm specification, and a mandatory five-year period of postrelease control. The court further explained that due to the notice of prior conviction, prison time was mandatory. We find the court‘s explanation sufficiently advised Berlingeri of the maximum penalty he faced for his plea.
{7} We are also not persuaded by Berlingeri‘s argument that the trial court needed more information regarding his mental health before accepting his pleas. There is nothing in the record to support Berlingeri‘s allegation
In his second assignment of error, Berlingeri claims that the trial court erred by sentencing him without considering a presentence investigation
{8} We first note that Berlingeri did not request a PSI prior to sentencing or object to the absence of one at sentencing. In fact, defense counsel acknowledged the absence of a PSI at sentencing and told the court, “We didn‘t even dream to ask. That would be an affront to everyone. He knows he is going to prison.” Accordingly, Berlingeri waived all but plain error on this issue.
{9} Under certain circumstances a trial court may exercise its discretion and sentence a felony offender to community control sanctions instead of prison.
{11} In his third assignment of error, Berlingeri argues that the trial court erred by imposing disparate sentences on similar offenders. He maintains that since there was only one crime committed, all of the co-defendants are identically guilty and should receive similar sentences. He argues that his 15-year sentence is disproportionate to that of the other co-defendants who received sentences ranging from community control to 12 years. He notes that he is the only one that received a consecutive sentence and that the “mastermind” of the robbery received a sentence of only eight years. He further argues that the trial court could not rely on “individualized factors” to justify giving him more time because the court did not order a PSI to provide those factors. We find these arguments lacking in merit.
{12}
{13} The record reveals that there were distinguishing factors to justify the dissimilar sentences. Berlingeri was one of the six defendants who accepted plea bargains with the state. Some of those defendants were allowed to plead to reduced charges based upon their level of participation in the armed robbery and their cooperation with the state. The record reflects that the trial court considered these factors in mitigation. The court also considered other factors relating to seriousness and recidivism. Of the six defendants that entered pleas, only Berlingeri‘s plea included a notice of prior conviction. The court considered Berlingeri‘s prior criminal record and noted that he had been out of prison for only two years before committing this crime.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR