State of Ohio, Plaintiff-Appellee, v. Somnath Ganguly, Defendant-Appellant.
No. 14AP-383 (C.P.C. No. 10CR-5615)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 10, 2015
[Cite as State v. Ganguly, 2015-Ohio-845.]
LUPER SCHUSTER, J.
(REGULAR CALENDAR)
Rendered on March 10, 2015
Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
Meeks & Thomas Co., LPA, and David H. Thomas, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Somnath Ganguly, appeals from a judgment entry of the Franklin County Court of Common Pleas finding Ganguly guilty, pursuant to guilty plea, of two counts of forgery and one count of tampering with records. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On September 22, 2010, the State of Ohio, plaintiff-appellee, issued a nine-count indictment charging Ganguly with one count of theft, in violation of
{¶ 3} At a plea hearing on April 2, 2013 at which Ganguly was represented by counsel, Ganguly entered a guilty plea to Counts 3 and 5, forgery, both felonies of the fifth degree, and to Count 7, tampering with records, a felony of the third degree. During the plea hearing, the prosecutor described the various ways Ganguly would take money from RIBA Properties: (1) he would write checks directly to himself or his wife; (2) he would write checks to third-parties and then forge the signature of the third party on the back of the check to endorse the checks over to his own company, RSS Properties, LLC (“RSS“); (3) he would take rent checks from tenants that were made payable to RIBA Properties and change them to be made payable to RSS; and (4) he would tell individual tenants to make their rent checks out directly to RSS. (April 2, 2013 Tr. 13-15.) As a result of Ganguly‘s guilty plea to three of the charges, the state dismissed the remainder of the charges against him, and the trial court ordered a presentence investigation.
{¶ 4} On April 4, 2013, before the trial court conducted a sentencing hearing, Ganguly filed a pro se “Defendant‘s Motion to Withdraw Plea Bargain Entered on April 2, 2013,” and he subsequently filed a motion for leave to withdraw his guilty plea on May 3, 2013. Ganguly alleged in his motions that he had taken many prescription medications on the day he entered his plea and that those medications impaired his ability to make a knowing, voluntary, and intelligent waiver of his right to forgo a trial.
{¶ 5} The trial court conducted a hearing on June 13 and 25, 2013 on Ganguly‘s motion to withdraw his guilty plea. During the hearing, Ganguly presented the testimony of Dr. Nicomeves Sansait, a psychiatrist who has treated Ganguly for depression since April 2012. Dr. Sansait testified that Ganguly came to see him right after his plea hearing and that Ganguly “was not really doing well” at that time. (June 13, 2013 Tr. 11.) Dr. Sansait helped draft a letter to the court asking to withdraw Ganguly‘s newly entered plea due to concerns over Ganguly‘s mental state. On cross-examination, Dr. Sansait described the various medications that had been prescribed to Ganguly and stated that it was “unlikely” that the prescribed dose would have affected Ganguly‘s ability to make a decision. (June 13, 2013 Tr. 13.)
{¶ 6} Ganguly then testified and said he felt pressured by his attorney to sign the plea agreement even though he was uncomfortable entering a guilty plea to a third-degree felony. Ganguly said his attorney became very upset with him, slammed his hands on the table, and yelled at and threatened Ganguly. Ganguly said this experience caused him to have a panic attack. When he was outside the presence of his attorneys and before he entered the courtroom for the hearing, Ganguly said he took five pills of Ativan, when he is only supposed to take one, and he took additional blood pressure medication to try to calm down. Ganguly first said he had no memory of going through the plea colloquy or of even being in the courtroom for the hearing. He then said, however, that he “remember[ed] everything happened in the courtroom at that time.” (June 13, 2013 Tr. 31.)
{¶ 7} The state then called Brandon Shroy, one of Ganguly‘s attorneys during the plea hearing. Shroy said that the details of the plea agreement, including that it contained a third-degree felony, were communicated to Ganguly prior to the April 2, 2013 hearing and that Ganguly “communicated to [his attorneys] that [the plea agreement] was acceptable.” (June 13, 2013 Tr. 55.) The trial court then called Mark Collins, Ganguly‘s other attorney from the plea hearing. Collins said Ganguly was primarily concerned with how the court would handle the restitution amount. Collins said Ganguly understood the plea agreement, and he denied threatening Ganguly prior to the plea hearing, although he did agree he slammed his hands down on the table and accused Ganguly of lying.
{¶ 8} At the close of the hearing, the trial court denied Ganguly‘s motion to withdraw his guilty plea. The trial court noted the matter resolved to a question of credibility and concluded the state successfully showed Ganguly‘s motion to withdraw his plea was “an attempt to manipulate the system” and that the only basis for the motion was an attempt to delay the proceedings. (June 25, 2013 Tr. 33.) The trial court journalized its denial of Ganguly‘s motion to withdraw his guilty plea in a June 28, 2013 entry.
{¶ 9} The matter then proceeded to the restitution phase, and the trial court conducted various restitution hearings beginning October 25, 2013 until March 7, 2014. Ganguly proceeded pro se for the restitution phase. At each of the five restitution hearings, Ganguly renewed his motion to withdraw his guilty plea, and the trial court denied his request each time.
{¶ 10} At an April 11, 2014 sentencing hearing, during which Ganguly was represented by counsel, the trial court imposed a term of imprisonment of one year for Count 3, forgery, a fifth-degree felony, followed by a five-year period of community control for Count 5, a fifth-degree felony forgery, and Count 7, a third-degree felony tampering with evidence. Additionally, the trial court ordered Ganguly to pay $430,965.71 in restitution to RIBA Properties. The trial court then imposed a recognizance appeal bond in the amount of $5,000.00 and determined the sentence would begin either at the expiration of the 30-day period for an appeal if Ganguly does not appeal or, if an appeal is filed, after the court of appeals reaches its decision. Ganguly timely appeals.
II. Assignments of Error
{¶ 11} Ganguly assigns the following errors for our review:
[1.] The trial court abused its discretion and erred in overruling Appellant‘s motion for withdrawal of a guilty plea prior to sentencing.
[2.] The trial court erred in ordering Appellant to pay restitution in the amount of $430,965.71, as this restitution order was not based on actual damage or loss caused by an offense, was not assessed for a proper “victim” of a crime, and was not authorized by
R.C. 2929.18 or any other provision of Ohio law.[3.] The trial court erred in sentencing Appellant to a term of imprisonment for a fifth-degree felony without making the proper findings under
R.C. 2929.13 .
III. First Assignment of Error – Withdrawal of Guilty Plea
{¶ 12} In his first assignment of error, Ganguly argues the trial court erred in overruling his motion to withdraw his guilty plea.
{¶ 13} A criminal defendant may file a presentence motion to withdraw his guilty plea pursuant to
{¶ 14} A trial court is not required to grant a presentence motion to withdraw a guilty plea. To determine whether a trial court abused its discretion in denying a presentence motion to withdraw a guilty plea, we look to a number of non-exhaustive factors, including: (1) any potential prejudice to the prosecution if the trial court vacated the plea; (2) whether highly competent counsel represented the defendant; (3) the extent of the
{¶ 15} Ganguly presented the trial court with two main reasons for wanting to withdraw his guilty plea: (1) that he felt pressured by his counsel to take the plea agreement, and (2) that his anti-anxiety medication had such an affect on him as to prevent his plea from being knowingly, intelligently, and voluntarily made. Here, the trial court conducted a full hearing on Ganguly‘s motion. At the conclusion of that hearing, the trial court denied Ganguly‘s motion, concluding Ganguly was merely attempting to delay the proceedings and did not have a reasonable and legitimate basis for the withdrawal of his plea. We must use the balancing test outlined above to determine whether the trial
{¶ 16} First, the record does not indicate any evidence of prejudice to the state “beyond the ordinary impact of any defendant‘s subsequent withdrawal of a guilty plea.” Harris at ¶ 26.
{¶ 17} The second factor, whether Ganguly was represented by highly competent counsel, requires closer examination. Though Ganguly does not expressly challenge the competency of his counsel, one of his stated reasons for wanting to withdraw his plea was that he felt “extreme pressure” from his counsel to take the plea agreement. (Ganguly‘s Brief, 12.) Certainly, this statement taken on its face would make the second factor weigh heavily in Ganguly‘s favor. However, the trial court was explicitly clear that “[t]his comes down to a question of credibility,” and it did not find Ganguly to be credible at his plea withdrawal hearing. (June 25, 2013 Tr. 33.) The trial court had the opportunity to observe Ganguly at the
{¶ 18} Ganguly emphasizes that his trial counsel admitted to slamming his hands down on the table, and that admission should support a finding that the trial court abused its discretion when it did not grant Ganguly‘s motion based on the pressure he felt from his attorney to take the plea. Indeed, the record indicates that Collins stated at the hearing that he slammed his hands down on the table when talking to Ganguly. The context of this incident, however, indicates that Collins said Ganguly was behaving in a difficult manor and was being “defiant.” (June 25, 2013 Tr. 23.) Collins explained that he and his co-counsel had gone over the plea agreement with Ganguly in great detail, and Collins became frustrated with Ganguly when it appeared Ganguly was lying to him about having received a better plea agreement from a previous attorney. Collins strenuously denied threatening Ganguly or pressuring him to take the plea agreement, and instead
{¶ 19} The third factor in the balancing test asks this court to look at the extent of the
{¶ 20} Similarly, as to the fourth and fifth factors, Ganguly received a full hearing on his motion to withdraw his plea and the trial court fully and fairly considered the motion. The court conducted the hearing over two days, heard from four witnesses, and concluded that the ultimate issue was one of credibility. More specifically, the trial court concluded that, despite Ganguly‘s testimony to the contrary, Ganguly understood the details of the plea agreement prior to his
{¶ 21} The sixth and seventh factors ask us to consider whether Ganguly made his motion within a reasonable time and whether he articulated specific reasons for the requested withdrawal. Ganguly filed his pro se motion to withdraw his plea two days after his
{¶ 22} The eighth consideration looks to whether Ganguly understood the nature of the charges against him and the possible penalties. Although Ganguly suggested he took too much medication to be able to fully comprehend the plea proceedings and that he was surprised by the arrangements of the plea agreement, the trial court expressly noted that, considering all the testimony at the withdrawal hearing, “there was no surprise the morning of the plea” and that “Ganguly knew what the plea offer was before” his
{¶ 23} Under the ninth and final consideration, we look to whether Ganguly had possible defenses to the charges against him. While Ganguly “strongly feels he is not guilty to the charges” against him, he does not assert any specific defenses to the charges. (Motion for Leave to Withdraw Guilty Plea.) Ganguly continues to assert his innocence on appeal, but again he does not articulate a specific basis suggesting he may not have
IV. Second Assignment of Error – Restitution
{¶ 24} In his second assignment of error, Ganguly argues the trial court erred in ordering him to pay restitution in the amount of $430,965.71. More specifically, Ganguly asserts the state did not prove by competent, credible evidence that RIBA Properties suffered economic losses equivalent to the amount of restitution ordered, and that the trial court erred in basing the amount of restitution on conduct for which Ganguly was not convicted.
{¶ 25}
{¶ 26} “The amount of restitution ordered by a trial court must bear a reasonable relationship to the loss suffered.” State v. Norman, 10th Dist. No. 12AP-505, 2013-Ohio-1908, ¶ 66, citing State v. Blay, 10th Dist. No. 10AP-247, 2010-Ohio-4749, ¶ 7. “An award of restitution is limited to the actual loss caused by the defendant‘s criminal conduct for which he [or she] was convicted, and there must be competent and credible evidence in the record from which the court may ascertain the amount of restitution to a reasonable degree of certainty.” Id., citing Blay at ¶ 7.
{¶ 27} We review a trial court‘s restitution order for an abuse of discretion. State v. Jones, 10th Dist. No. 14AP-80, 2014-Ohio-3740, ¶ 22, citing Norman at ¶ 67, citing
{¶ 28} Here, Counts 3 and 5 of the indictment were both forgery charges. Count 3 related to check number 1147 from the checking account of RIBA Properties made payable to Kamal Sadoun in the amount of $2,218 that Ganguly, through forgery, signed over to his RSS account. Count 5 related to check number 1199 from the checking account of RIBA Properties made payable to Josh Williams in the amount of $1,801 that Ganguly, through forgery, signed over to his RSS account. Though Ganguly disputes his actual guilt of these counts, presenting evidence at the restitution hearings that Williams and Sadoun gave him permission to sign checks over to RSS in exchange for cash payments, Ganguly nonetheless entered a guilty plea to these charges, thereby admitting culpability.
{¶ 29} Ganguly additionally argues that RIBA Properties was not the proper victim of Counts 3 and 5 because RIBA Properties owed money to Sadoun and Williams for work they had performed. Ganguly asserts he eventually paid Sadoun and Williams what they were owed, so RIBA Properties cannot demonstrate actual loss. Again, however, Ganguly entered a guilty plea to these two forgery charges, effectively admitting that he deprived RIBA Properties of this money through forgery. Thus, the trial court had before it competent, credible evidence that the amount of restitution owed for Counts 3 and 5 was $4,019, and that amount bears a reasonable relationship to the actual loss suffered.
{¶ 30} Ganguly also entered a guilty plea to Count 7 of the indictment, tampering with records. The indictment specified that “the value of the data involved in the offense of the loss to the victim is one hundred thousand dollars ($100,000.00) or more.” (Indictment, 4.) Again, Ganguly maintains his actual innocence of this charge, but he is
{¶ 31} As to the amount of restitution assessed for Count 7, Ganguly argues the trial court based this amount on all of the charges in the indictment instead of limiting the amount to the conduct contained specifically in Count 7. In general, a sentencing court cannot order an offender to pay restitution damages attributed to an offense for which the offender was charged but not convicted. State v. Strickland, 10th Dist. No. 08AP-164, 2008-Ohio-5968, ¶ 11, citing State v. Williams, 3d Dist. No. 8-03-25, 2004-Ohio-2801, ¶ 23; State v. Hooks, 135 Ohio App.3d 746, 749 (10th Dist.2000). Thus, “as a general rule, restitution is limited to the economic loss caused by the illegal conduct for which the defendant was convicted.” Strickland at ¶ 11, citing Hooks at 749.
{¶ 32} Though we agree with Ganguly generally that a trial court should not impose restitution for charges dismissed as a result of a plea agreement, a review of the record indicates that is not what happened here. The express language of Count 7 of the indictment indicates Ganguly admitted to causing at least $100,000.00 worth of loss to RIBA Properties. Ultimately, the trial court settled on a total restitution award of $430,965.71. Less the $4,019.00 attributed to Counts 3 and 5, the trial court assessed $426,946.71 in restitution for Count 7. To reach that figure, the trial court conducted five separate restitution hearings over the course of six months.
{¶ 33} In its effort to demonstrate the loss caused by Ganguly‘s conduct related to Count 7, the state presented the testimony of two witnesses: Sergeant Bond of the Economic Crimes Unit of the Columbus Police Department, and Swaraj Chakrabarti, a managing member of RIBA Properties. Sergeant Bond testified about his investigation into the matter and his determination that RIBA Properties had suffered an economic loss of $509,384.98. Sergeant Bond explained that he initially received copies of several checks from Chakrabarti and then used those checks to subpoena bank records from Chakrabarti‘s account, RIBA Properties’ accounts, and Ganguly‘s accounts. The state introduced into evidence a spreadsheet, state‘s exhibit No. 1, containing every instance of “questionable expenses, the forged checks, the rent checks that were taken directly by [Ganguly],” including the checks written to Ganguly himself, to his wife, to RSS, to vendors that could not be verified, forged checks deposited into the RSS account, and
{¶ 34} Chakrabarti testified regarding the general nature of Ganguly‘s conduct and how Chakrabarti came to discover it. Chakrabarti explained that he worked with Sergeant Bond to come up with the total amount of proposed restitution, and he also explained that he came up with his own figure of $524,000.00 in economic loss that differed slightly from Sergeant Bond‘s total figure because he included an additional transaction. Ultimately, Chakrabarti agreed that the $509,384.98 contained in state‘s exhibit No. 1, and the same number Sergeant Bond testified to, was the correct amount of restitution owed to RIBA Properties.
{¶ 35} Sergeant Bond and Chakrabarti testified at the first of the restitution hearings; Ganguly used the remaining four hearings to try to dispute the state‘s proposed restitution amount. Ganguly introduced hundreds of pages of exhibits, again maintained his actual innocence of the charges, and suggested both that he incurred actual expenses on behalf of RIBA Properties and that his work for the company during the relevant timeframe actually increased the overall value of RIBA Properties.
{¶ 36} Ultimately, the trial court considered the voluminous transcript and the many exhibits and determined that some exclusions were necessary from the state‘s proposed restitution amount of $509,384.98. The trial court excluded five transactions from state‘s exhibit No. 1, totaling $7,510.38, finding the testimony at the hearings indicated that there was not competent, credible evidence that Ganguly had misappropriated the full amount of the checks contained in those five instances. The trial court also subtracted from the figure in state‘s exhibit No. 1 a total of $70,908.89 concerning mortgage payments that were inappropriately included in the state‘s total amount. Based on all of the evidence at the five-part hearing, the trial court determined the total amount of restitution owed by Ganguly was $430,965.71. This amount includes the $4,019.00 from the checks in Counts 3 and 5.
{¶ 37} We conclude the trial court did not abuse its discretion in determining the amount of restitution. The trial court did not simply defer to the state‘s evidence, as Ganguly suggests, but, instead, considered each of the many transactions to determine which ones reflected Ganguly‘s criminal conduct and which ones were not appropriate to include in the final award. The trial court sorted through all of these figures and determined it had competent, credible evidence to impose a total restitution amount of $430,965.71. That amount bears a reasonable relationship to the actual loss suffered by RIBA Properties as it relates to Ganguly‘s convicted conduct in Counts 3, 5 and 7. Accordingly, we overrule Ganguly‘s second assignment of error.
V. Third Assignment of Error – Sentence
{¶ 38} In his third and final assignment of error, Ganguly argues the trial court erred when it sentenced him to a term of imprisonment for Count 3 without first making the proper findings under
{¶ 39} An appellate court will not reverse a trial court‘s sentencing decision unless the evidence is clear and convincing that either the record does not support the sentence or that the sentence is contrary to law. State v. Chandler, 10th Dist. No. 04AP-895, 2005-Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-5660, ¶ 27, citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 10. ” ‘In determining whether a sentence is contrary to law, an appellate court reviews the record to determine whether the trial court considered the appropriate factors, made the required findings, gave the necessary reasons for its findings, and properly applied the statutory guidelines.’ ” Id., quoting Maxwell at ¶ 27, citing State v. Altalla, 10th Dist. No. 03AP-1127, 2004-Ohio-4226, ¶ 7. “We are also cognizant of the two-step standard of review set forth by a plurality [opinion] of the Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, which asks (1) whether the trial court adhered to all applicable rules and statutes in imposing the sentence, and (2) whether a sentence within the permissible statutory range constitutes an abuse of discretion.” State v. Murphy, 10th Dist. No. 12AP-952, 2013-Ohio-5599, ¶ 12.
{¶ 40} As the state notes, Ganguly did not object to the imposition of a term of imprisonment at the sentencing hearing, so our review is limited to plain error.
{¶ 41} For an error to be a “plain error” under
{¶ 42} Ganguly bases his argument on
Except as provided in division (B)(1)(b) of this section, 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 or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction of at least one year‘s duration if all of the following apply:
* * *
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
{¶ 43} According to Ganguly, the trial court was required to sentence him to community control under
{¶ 44} Based on the plain language of the statute, because (B)(1) does not apply, “in determining whether to impose a prison term as a sanction for a felony of the fourth or fifth degree, the sentencing court shall comply with the purposes and principles of sentencing under [
{¶ 45} As
{¶ 46} Further, our independent review of the record indicates the trial court properly considered the statutory factors and guidelines in
{¶ 47} Additionally, to the extent Ganguly suggests his sentence is contrary to law for the trial court‘s failure to use “magic language” in considering the factors listed in
VI. Disposition
{¶ 48} Based on the forgoing reasons, the trial court did not abuse its discretion in denying Ganguly‘s motion to withdraw his guilty plea, did not err in determining the amount of restitution, and did not plainly err in imposing a term of imprisonment as part of Ganguly‘s sentence. Having overruled Ganguly‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., concurs.
BRUNNER, J., concurs separately.
BRUNNER, J., concurring separately.
{¶ 49} I concur with the decision of the majority on the first and second assignments of error with no further comment. As to the third assignment of error, concerning sentencing, I respectfully concur with the majority in judgment only, offering the following concurring decision on the felony sentencing issues raised on appeal.
{¶ 50} In his third and final assignment of error, Ganguly argues the trial court erred when it sentenced him to a term of imprisonment for Count 3 without first making the proper findings under
{¶ 51} An appellate court will not reverse a trial court‘s sentencing decision unless the evidence is clear and convincing that either the record does not support the sentence or that the sentence is contrary to law. State v. Chandler, 10th Dist. No. 04AP-895, 2005-Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-5660,
{¶ 52} As the state notes, Ganguly did not object to the imposition of a term of imprisonment at the sentencing hearing, so our review is limited to plain error.
{¶ 53} For an error to be a “plain error” under
{¶ 54} Ganguly bases his argument on
Except as provided in division (B)(1)(b) of this section, 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 or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction of at least one year‘s duration if all of the following apply:
* * *
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
{¶ 56} Ganguly also argues that the trial court should have discussed or made findings on the record concerning the factors set forth in
{¶ 57} Rather,
{¶ 58} Here, the trial court‘s judgment entry specifically indicates the trial court “has considered the purposes and principles of sentencing set forth in
{¶ 59} Our review of the record indicates the trial court throughout the various hearings, which included a civil trial for the same activities, considered a myriad of factors to determine a sentence that would address both the seriousness of the crimes and the harm to the victims, as well as the mitigating factors that weighed in Ganguly‘s favor. On this basis, I would find, as explained above, that the trial court‘s sentence complied with the purposes of felony sentencing set forth in
{¶ 60} The trial court appropriately sentenced Ganguly under
Notes
Applicable factors under
(viii) The offender held a public office or position of trust, and the offense related to that office or position; the offender‘s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender‘s professional reputation or position facilitated the offense or was likely to influence the future conduct of others.
(ix) The offender committed the offense for hire or as part of an organized criminal activity.