State v. CollinsState v. Collins
Kimberly Kendall Corral
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: John Farley Hirschauer
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Appellant Tremele Collins appeals from his sentence and from the denial of his postsentence motion to withdraw his guilty pleas. Upon review, we affirm his conviction and sentence and the trial court‘s denial of his motion.
{¶2} Appеllant, who was 17 years old at the time of the charged offenses, was bound over to the court of common pleas. The indictment contained 13 counts, relating to three separate robbery incidents.
{¶3} On September 28, 2017, appellant appeared in court with defense counsel and the assistant prosecutor. The state plаced a plea offer on the record, pursuant to which appellant would plead guilty to the following three charges: Count 1, aggravated robbery, a felony of the first degree; Count 6, robbery, a felony of the second degree; and Count 11, robbery, a felony of the second degree, along with a criminal gang specification and a one-year firearm specification as to each of those three counts. The charges related to offenses occurring on separate dates and
{¶4} On October 16, 2017, appеllant entered a plea of guilty to each of the three charges pursuant to the plea agreement and the remaining charges and specifications were nolled. Prior to appellant entering his guilty pleas, the assistant prosecutor and defense counsel indicated an understanding that “[t]he state and defendant alsо agree that the minimum sentence in this case would be sufficient.”
{¶5} The record reflects that the trial court complied with
{¶7} The sentencing hearing resumed on November 13, 2017. The prior proceedings were incorporated, and the parties stipulated to a mitigаtion of penalty report. The assistant prosecutor indicated that the three incidents involved occurred over a period of about two and one-half weeks and that in each incident, appellant brandished a firearm, robbed the respective victim at gunpoint, and threatened the victim. In the aggravated robbery, appellant pistol-whipped the victim. It also was represented that appellant is a member of the Heartless Felons gang. Appellant had committed three prior robberies, with progressive sanctions. He showed little remorse during the proceedings and reportedly had “laughed and smirked” during the bindover proceedings. The court heard from defense counsel and appellant. Appellant apologized to the victims, but denied responsibility for the crimes.
{¶8} The trial court noted that appellant has a “bad juvenile record” and a “history of violence.” The court found he “clearly engaged in gang activity” and found that a “lengthy prison sentence is appropriate.” The court sentenced appellant to an aggregate term of imprisonment of 29 years. The trial court made the required findings for imposing consecutive sentences.
{¶9} Appellant timely appealed his sentence to this court. Thereafter, appellant filed a motion to withdraw his guilty plea in the trial court. This court remanded the matter to the trial
{¶10} Under his first assignment of error, appellant claims the trial court erred by denying his motion to withdraw his guilty pleas. He claims that his pleas were not knowing, voluntary, and intelligent because he did not know or understand that he would be subject to a term of 29 years. He argues that he relied upon the advice of counsel and was misled to believe that he faced a sentence around the recommended term of six years.
{¶11}
{¶12} Appellant claims that his plea was not knowing, intelligent, and voluntary because he relied upon misleading advice of counsel with regard to the sentencing recommendation. In support of his argument, appellant refers to the affidavit of defense counsel, which was attached to his motion to withdraw. Defense counsel avers in the affidavit that there was an agreement with the assistant prosecutor to a recommended sentence of six years, that he advised appellant of an anticipated sentence ranging between six and ten years, and that he explained to appellant that “the judge could sentence him to more than ten years.” Appellant also refers to his behavior during the initial sentencing proceeding and an outburst by his sister following the imposition of the 29-year aggregate prison term.
{¶14} Appellant does not assert any error as to the trial court‘s plea colloquy under
{¶15} Additionally, defense counsel‘s affidavit reflects that appellant rеceived competent advice from counsel. Although defense counsel expressed an anticipated term of six to ten
{¶16} The totality of the circumstances herein shows that appellant‘s guilty pleas were knowingly, intelligently, and voluntarily entered. We further find no merit to any claim of ineffective assistance of counsel because appellant has not shown that trial counsel‘s alleged errors precluded him from entering a knowing, voluntary plea. Because no manifest injustice occurred, the trial court did not abuse its discretion by denying appellant‘s postsentence
{¶17} Under his second assignment of error, appellant claims the trial court erred by sentencing him after the state did not adhere to its portion of the plea agreement. A plea agreement is generally contractual in nature, and a prosecutor‘s failure to comply with the terms thereof may, in some circumstances, render a defendant‘s plea involuntary. State v. Parham, 8th Dist. Cuyahoga No. 105983, 2018-Ohio-1631, ¶ 24. To determine whether a breach of a plea
{¶18} Appellant argues that he was induced to enter his plea by the agreement of the state and the state‘s representation on the record “that the minimum sentence in this case would be sufficient.” Our review of the record reflects that the specific tеrms of the plea agreement were placed on the record and that the parties’ recommendation was to a sentencing range, with “a minimum term of 6 years up to a maximum term of 39 years.” The record further reflects appellant was clearly advised of the sentencing possibilities by the trial court and he understood that no рarticular sentence was promised. The second assignment of error is overruled.
{¶19} Under his third assignment of error, appellant claims the trial court erred by imposing a sentence that is tantamount to a life sentence in violation of the Eighth Amendment.1 He argues that he was a juvenile when the crimes were committed and the 29-year aggregаte term of imprisonment affords him no meaningful opportunity to demonstrate rehabilitation. We are not convinced by his argument.
{¶20} The Supreme Court of Ohio has held that pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), “a term-of-years prison sentence that exceeds a defendant‘s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.” State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 1. Further, in such а case, a court may not impose a prison sentence that denies a juvenile some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Moore at ¶ 47, citing Graham. Unlike the defendant
{¶21} Appellant will be in his late forties upon release, if he serves the full term. It is understandable why this arguably seems excessive. If we still had the pre-Senate Bill 2 sentencing provisions, appellant may have been eligible for reformatory time and received a reduction in his base term and then been subjected to parole review. “Before passage of Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996 (‘S.B. 2‘), Ohio had a predominantly indeterminate felony-sentencing structure in which a sentence was expressed in the form of a minimum and maximum prison term with the release decision in the hands of a parole board.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 34, citing Ohio Criminal Sentencing Commission, The Impact of Ohio‘s Senate Bill 2 on Sentencing Disparities (Apr. 19, 2002) 4-5. “With the enactment of S.B. 2, the General Assembly adopted a comprehensive sentencing structure that recognized the importance of ‘truth in sentencing.‘” Id. Now “[t]he parole board no longer makes early-release decisions, and a sentence is subject to modification only by the judge.” Id. at ¶ 35. “While the opportunity for judicial release has been expanded since the original version of Senate Bill 2, it hardly creates the independent review of an offender‘s status that existed with the parole board under the prior law.” State v. Sykes, 8th Dist. Cuyahoga No. 106390, 2018-Ohio-4774, ¶ 34 (S. Gallagher, J., concurring). Nevertheless, appellant is subject to the current statutory scheme. He will be able to petition the court for judicial release after 14.5 years, at which time he will be nearly 32 years old. His sentence affords him a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Appellant‘s sentence is not the equivalent of a “life sentence.”
{¶23} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this аppeal.
It is ordered that a special mandate issue out of this court directing the common pleas court 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 coрy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and STEPHEN A. YARBROUGH, J.,* CONCUR
*(Sitting by assignment: Judge Stephen A. Yarbrough, Retired, of the Sixth District Court of Appeals.)