State v. DeebState v. Deeb
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Kеvin J. Baxter, Erie County Prosecuting Attorney, and Ashley L. Thomas, Assistant Prosecuting Attorney, for appellee.
Paul Mancino, Jr., for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, David M. Deeb, appeals the August 8, 2012 judgment of the Erie County Court of Common Pleas which, following guilty pleas to one count of rape and two counts of importuning, was sentenced to a total imprisonment term of ten years and found to be a Tier III and Tier I sexual offender requiring lifetime registration.
{¶ 2} The relevant facts are as follows. On July 15, 2011, a ten count indictment was filed charging appellant with five counts of rape of a minor, first degree felonies, and five counts of importuning, third degreе felonies. The charges related to the same minor victim and spanned from June 2010 through January 2011. On July 25, 2011, appellant entered not guilty pleas to the charges.
{¶ 3} Appellant raises seven assignments of error for our consideration:
- Defendant was denied due process of law when the court imposеd a consecutive sentence which was unauthorized by law.
- Defendant was denied due process of law when the court misadvised of the penalty for a first degree felony.
- Defendant was denied due process of law when the court accepted a plea from defendant without determining that he understood the nature of the offenses.
- Defendant was denied due process of law when the court did not fully and personally inform the defendant concerning the maximum penalty which included lifetime sexual registration.
- Defendant was denied due process of law when the court imposed more thаn a minimum sentence.
- Defendant was denied due process of law when the court imposed consecutive sentences without making appropriate statutory findings.
- Defendant was denied due process of law when the court arbitrarily determined that the offenses were not allied offenses of a similar nature.
{¶ 4} Appellant’s first assignment of error asserts that the consecutive sentences were contrary to law. Appellant’s sixth assignment of error argues that appellant was denied due process of law where the court imposed consecutive sentences without first making the necessary statutory findings. Because the alleged errors are related, they will be jointly addressed.
{¶ 5}
(4) If multiple prison terms are imposed on an offender for convictiоns of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great оr unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 6} “A trial court satisfies the statutory requirement of making the required findings when the record reflects that the court engaged in the required analysis and selected the appropriate statutory criteria.” State v. Smith, 12th Dist. Clermont No. CA2012-01-004, 2012-Ohio-4523, ¶ 26. “However, it is not required to recite any ‘magic’ or ‘talismanic’ words when imposing consecutive sentences provided it is ‘clear from the record that the trial court engaged in the appropriate analysis.’” State v. Bratton, 6th Dist. Lucas Nos. L-12-1219, L-12-1220, 2013-Ohio-3293, ¶ 17, quoting State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12.
{¶ 7} The state does not represent that the required findings were made; rather, the state contends that because appellant was sentenced pursuant to a negotiated plea agreement and the sentence was authorized by law, we are precluded from reviewing it
{¶ 8} In support of its argument, the state cites a Sixth Appellate District case wherein the defendant was sentenced pursuant to a negotiated plea agreement to an eight-year imprisonment term. State v. Bryant, 6th Dist. Lucas App. No. L-03-1359, 2005-Ohio-3352. In Bryant, the appellant agreed to enter an Alford plea to possession of crack cocaine, in exchange for a dismissal of an additional possession charge. Appellant specifically agreed to serve an eight-year prison sentence. Id. at ¶ 3. We determined that because the sеntence was jointly recommended and imposed by the sentencing judge it was not subject to review. Id. at ¶ 14.
{¶ 9} Reviewing the cases relied upon by the parties and our independent research of the issue, we find that Ohio courts have affirmed the negotiated sentence where, in addition to the term of imprisonment, the defendant agreed to consecutive sentences. See State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690; State v. Berryman, 2d Dist. Montgomery No. 20611, 2005-Ohio-2531; State v. Cremeens, 4th Dist. Vinton No. 06CA646, 2006-Ohio-7092.
{¶ 10} In the present case, the plea form states that “defendant agrees to a ten-year prison term with three years mandatory” While it is true that appellant was sentenced to the agreed-upon term, the record is silent аs to whether he agreed to be sentenced to
{¶ 11} Accordingly, because the court failed to make the necessary statutory findings under
{¶ 12} In appellаnt’s second assignment of error, he argues that he was denied due process of law when the trial court erroneously informed him that the maximum penalty for the rape charge was three to eleven years, instead of three to ten years. Appellant states that the error likely occurred due to the felony sentencing changes in H.B. 86, effective in September 2011. The offense occurred in 2010.
{¶ 13} We note that before accepting a guilty plea,
(2) In felony cases the court * * * shall not accept a plea оf guilty * * * without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, * * *
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty * * * and that thе court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtаining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶ 14} The rights contained within
{¶ 15} If a trial court fails to substantially comply with
{¶ 16} While the court did err in stating that appellant faced an 11 year prison term for rape and a total maximum of 17 years, aрpellant has failed to demonstrate a prejudicial effect of the misstatement; thus, his plea is not rendered invalid. In other words, appellant has presented no evidence demonstrating that, but for the misstatement, he would not have entered the plea. Appellant’s second assignment of error is not well-taken.
{¶ 17} In his third assignment of error, appellant contends that his plea was not knowing and voluntary because the court failed to determine whether he understood the nature of the offenses. The Supreme Court of Ohio has held that trial courts are not required to engage in a detailed recitation of the elements of a charge prior to accepting a plea. State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 57. The court explained:
[T]he Constitution does not require that a trial court explain the elements of the charge, at least where the record contains a representation
by defense counsel that the nature of the offense has been explained to the accused. See Henderson, 426 U.S. at 647, 96 S.Ct. 2253, 49 L.Ed.2d 108. See 5 LaFave, Israel & King, Criminal Procedure (2d Ed.1999) 164, Section 21.4(c). “Apart from the small class of rights that require specific advice from the court under Rule 11(c), it is the responsibility of defense counsel to inform a defendant of * * * the attendant statutory and constitutional rights that а guilty plea would forgo.” Libretti, 516 U.S. at 50-51, 116 S.Ct. 356, 133 L.Ed.2d 271. Id.
In determining whether a defendant understands the nature of the offenses, we consider the totality of the circumstances. State v. Sahr, 10th Dist. Franklin Nos. 05AP-503, 05AP-504, 2006-Ohio-3260, ¶ 13.
{¶ 18} At appellant’s plea hearing he was asked whether he had any questions about the indictment that he had received; he answered negatively. Additionally, a bill of particulars was filed by the state and detailed the facts leading to the indictment. The court, the prosecutor and defense counsel explained the charges and the potential penalties for each. Even assuming that the specific nature of the offenses was not fully explained to appellant, he has failed to demonstrate how he was prejudiced by any such failure. Appellant does not contend that he would not have entered guilty pleas if the court had directly questioned him about the nature or elements of the offenses. See State v. Lomax, 8th Dist. Cuyahoga No. 98125, 2012-Ohio-4167, ¶ 14. Thus, appellant’s third assignmеnt of error is not well-taken.
{¶ 19} In appellant’s fourth assignment of error, he argues that the trial court erred by failing to personally inform him, at the plea hearing, of the maximum penalty he faced which included lifetime sexual registration. As with our analysis in appellant’s prior assignments of error because thе requirements under
{¶ 20} Reviewing the totality of the circumstances and, particularly, the plea hearing we find that appellant was informed of and understood that by entering the pleas he would be subject to lifetime registration. The state indicated that “defendant would be classified as a Tier III sex offender, which means that he would have to report for life with the sheriff’s department in the county in which he would be living and the state in which he would be living.” Defense counsel then addressed the court stating that he “had advised [appellant] all of what the prоsecution has just recited * * *.” The court, ensuring that appellant’s plea was knowing and voluntary stated:
THE COURT: Okay. Now, because these are sexually related offenses, there’s also classifications, I’m sure your counsel has talked with you about them, but there’s a Tier III classification and a Tier I classification for the offenses. They, they provide reporting requirements and a duration, so many years, every year you got to report and how long that duration or reporting goes on. Did you counsel explain that to you?
MR. DEEB: Yes, Your Honor.
{¶ 21} Finally, the plea agreement, which appellant signed, lists that he was to be sentenced as a Tier III and Tier I sex offender. Accordingly, appellant’s fourth assignment of error is not well-taken.
{¶ 22} In appellant’s fifth assignment of error he argues that the trial court erred when it sentenced him to a non-minimum sentence. Although we concluded that appellant did not specifically agree tо consecutive sentences, he did, by entering into the plea agreement, agree to a non-minimum sentence. Accordingly, appellant has waived the argument. See State v. Tillman, 6th Dist. Huron No. H-04-040, 2005-Ohio-2347. Appellant’s fifth assignment of error is not well-taken.
{¶ 23} Appellant’s seventh and final assignment of error disputes the court’s “arbitrary” finding that the offenses at issue were not allied and, thus, not subjеct to merger at sentencing. Appellant asserts that because the indictment lists “on or about June 2010” as to the rape and importuning charges there needed to be an inquiry and determination as to whether they arose from the same conduct. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Conversely, the state contends that appellant has failed to meet his burden to show that the offenses were allied pursuant to
{¶ 24} Upon review, we agree with the state’s argument that the mere fact that the indictment alleged that both offenses occurred in June 2010, is not sufficient to establish that they were allied, or committed with the same conduct. See State v. Goshade, 1st Dist. Hamilton No. C-120586, 2013-Ohio-4457, ¶ 22; State v. Hudson, 2d Dist. Clark No. 2011 CA 100, 2013-Ohio-2351, ¶ 52; State v. Dunkle, 6th Dist. Williams No. WM-08-024, 2010-Ohio-938, ¶ 8. Thus, appellant’s seventh assignment of error is not well-taken.
{¶ 25} On consideration whereof, we find that appellant was prejudiced and we reverse the portion of the trial court’s judgment imposing consecutive sentences and we remand the matter to the trial court only to the extent necessary to consider whether consecutive sentences are appropriate under
Judgment affirmed, in part and reversed, in part.
A certified cоpy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, P. J.
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Stephen A. Yarbrough, J. JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.