State v. CorbettState v. Corbett
{¶1} Appellant, Joseph E. Corbett, brings the instant appeal claiming the trial court еrred in finding him guilty of attempted failure to notify change of address after his guilty plea to that charge. Appellant also claims the trial court erred in imposing an 18-month prison sentence and that counsel was ineffective for failing to object to certain information discussed at sentencing. After a thorough review of the record and law, we affirm appellant‘s conviction, but remand for a limited resentencing regarding postrelease control.
I. Factual and Procedural History
{¶2} In 1999, appellant was found guilty of rape of a child under the age of 13. After his prison sentence was served, he was required to abide by certain registration requirements; one of which was to notify the Cuyahoga County Sheriff‘s Department of any change of address. Appеllant left the emergency mens shelter where he had been residing and took up residence on an unused portion of city of Cleveland property near an Animal Protective League facility. Appellant lived in a tent and took care of a few dogs. Appellant kept in contact with his supervising officer from the parole authority, but he failed tо report this change of address. On May 18, 2012, the change of address was discovered, and appellant was arrested and indicted on September 21, 2012.
{¶4} Appellant agreed to plead guilty to attempted failure to provide notice of change of address in violation of
{¶5} Appellant now appeals assigning three errors:
I. The trial court erred when it found there was a factual basis under Crim.R. 11 for the crime the appellant pleaded guilty.II. The appellant failed to receive duе process when trial counsel committed ineffective assistance of counsel.
III. The trial court erred when it sentenced appellant to the maximum sentence on a fifth-degree felony that is amenable to community control sanction.
II. Law and Analysis
A. Acceptance of Plea
{¶6} The United States Supreme Court has determined that guilty pleas made contemporaneously with protestаtions of innocence should not be accepted unless the trial court is satisfied that there is a factual basis for the plea. North Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), fn. 10. “When taking an Alford plea, the trial court cannot determine whether the accused was making an intelligent and voluntary guilty plea absent some basic facts surrounding the charge” demonstrating that the plea cannot seriously be questioned. State v. Jones, 8th Dist. Cuyahoga No. 97674, 2012-Ohio-2512, ¶ 5.
{¶7} Hеre, however, what appellant construes as claims of innocence came only after the court had accepted appellant‘s plea, moved on to set a date for sentencing, and was entertaining arguments going to bond issues. It was then, regarding bond, that appellant‘s attorney made statements about a car accident that caused appellant to be hospitalized for a significant period of time. Even if these statements did come at the plea hearing, they do not constitute a claim of innocence. Appellant acknowledged that
{¶8} Therefore, the trial court did not err in accepting appellant‘s guilty plea. Appellant‘s first assignment of error is overruled.
B. Ineffective Assistance of Counsel
{¶9} Appellant claims he was denied the constitutionally guaranteed assistance of counsel. To establish ineffective assistance of counsel, appellant must show that “(1) counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defense. To warrant reversal, the appellant must
{¶10} Appellant claims that trial counsel was ineffective for advising him to plead guilty when there was no indication that he acted recklessly in failing to provide notice of change of address. This argument is premised on the belief that it was the injury and hospital stay that resulted in appellant being unable to notify the sheriff about a change of address. As discussed above, there is no indication that appellant was prevented from complying with his statutory duties. Appellant admitted he failed to provide notice of change of address after he left the hospital and his prior registered аddress to take up residence on city property for some five months. Therefore, trial counsel was not ineffective for recommending appellant plead guilty to a fourth-degree felony charge of attempted failure to notify change of address rather than going to trial.
C. Imposition of a Prison Sentence
{¶11} Finally, appellant claims that the trial court erred when it imposed an 18-month prison sentence.
{¶12}
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.
{¶13} First this court must determine if the court‘s findings under
{¶14} At the time of sentencing, for a nonviolent fourth-degree felony, a trial court was required to impose community control when each provision of former
if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence, the court shall sentence the offender to a community сontrol sanction of at least one year‘s duration if all of the following apply:
(i) [t]he offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor
and that the offender committed within two years prior to the offense for which sentence is being imposed.
{¶15} Appellant was previously convicted of felony offenses (rape and gross sexual imposition) in 1999, for which he was classified as a sexual predator. Also, at the time of his failure to notify offense, he was under community control supervision for a felony conviction in 2010. Therefore, under previous
{¶16} Next, under former
(i) The offender committed the offense while having a firearm on or about the offender‘s person or under the offender‘s control.
(ii) The offender caused physical harm to another pеrson while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by the court.
(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact infоrmation for, and program details of any community control sanction of at least one year‘s duration that is available for persons sentenced by the court.
{¶17} Former
{¶19} Finally, this court must determine whether the sentence is otherwise contrary to law.
{¶20} There are no longer any specific findings or reasons a court must give in order to impose maximum sentences. State v. Calliens, 8th Dist. Cuyahoga No. 97034, 2012-Ohio-703, ¶ 28; State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 82 (“[T]he trial court is not required to make any findings рrior to
{¶21} Therefore, the court‘s only guide in this case is the purposes and principles of felony sentencing as set forth in
{¶22} Here, the trial court indicated it considered the purposes and principles of sentencing under these statutes. The court addressed appellant‘s significant violent criminal history, his negative behavior while in jail awaiting sentencing as reported by the jail authority, and previous sanctions that have not had the desired effect of rehabilitation. In mitigation, the court considered аppellant‘s regular contact with his supervising officer, the accident, and his mental illness.
{¶23} The only aspect of the court‘s colloquy that can be faulted is the court‘s consideration of criminal conduct for which appellant was charged but never convicted.3 The court stated,
[n]ow, there is also the charge that was brought that we can‘t ignore even though the cаse was dismissed. But here there were facts because of the victim not being able to produce, some type of violent act, whether justified or not, took place, which resulted in a felonious assault, an act in which this individual allegedly used a * * * sword to seriously injure someone, who didn‘t show up. Whether that act was defensible, I have no idea, but these are all factors I can‘t ignore in deciding what the court‘s proper course of action is * * *.”
{¶24} The consideration of criminal conduct for which no criminal conviction has resulted may constitute error on the part of the trial court in some instances. See State v. Longo, 4 Ohio App.3d 136, 141, 446 N.E.2d 1145 (8th Dist.1982). But see State v. Dari, 8th Dist. Cuyahoga No. 99367, 2013-Ohio-4189, ¶ 17 (discussion of the ability of the trial court to consider facts and dismissed charges in the indictment when imposing a sentence that resulted from a plea bargain). However, “Ohio law is clear that ‘[u]nindicted acts or not guilty verdicts can be considered in sentencing without resulting in error when they are not the sole basis for the sentence.‘” State v. Gray, 8th Dist. Cuyahoga No. 91806, 2009-Ohio-4200, ¶ 13, quoting State v. Williams, 8th Dist. Cuyahoga No. 79273, 2002-Ohio-503. See also State v. Cooper, 8th Dist. Cuyahoga No. 93308, 2010-Ohio-1983, ¶ 15 (“a defendant‘s uncharged yet undisputed conduct may be considered in sentencing without resulting in error when it is not the sole basis for the sentence“).
{¶26} However, one part of appellant‘s sentence is contrary to law. Although not raised by the parties, the trial court imposed five years of postrelease control sanctions when the appropriate period is discretionary, up to three years. For fourth-degree felony offenses not covered by
III. Conclusion
{¶27} The trial court was not required to inquire into the circumstances of appellant‘s guilty plea to a charge of attempted failurе to notify change of address where claims of innocence were not made contemporaneously with his plea. Trial counsel was
{¶28} Judgment affirmed in part, reversed in part, and remanded to the lower court for resentencing consistent with this opinion.
It is ordered that appellant and appellee share the 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 common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
PATRICIA A. BLACKMON, J., CONCUR