STATE OF OHIO v. MARK GATES
No. 110616
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 19, 2022
[Cite as State v. Gates, 2022-Ohio-1666.]
EMANUELLA D. GROVES, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652009-A
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: May 19, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Jamielle Lamson-Buscho, Assistant Prosecuting Attorney, for appellee.
The Law Office of Jaye M. Schlachet and Eric M. Levy, for appellant.
EMANUELLA D. GROVES, J.:
{1 1} Appellant, Mark Gates (“Gates“), appeals his convictions, assigning the following errors for review:
The trial court erred and abused its discretion when it only applied credit for jail time served to the misdemeanor conviction and not the concurrent felonies.
Assignment of Error No. 2
The trial court erred when it imposed a sentence upon appellant for count two, felonious assault, without accepting a plea of guilty.
Assignment of Error No. 3
Appellant‘s indefinite sentence imposed under the Regan [sic] Tokes sentencing scheme violates appellant rights under the United States constitution applied to the state of Ohio through the Fourteenth Amendment and the Ohio Constitution as it denies appellant due process of law; violates the Sixth Amendment right to a jury trial; violates the Separation of Powers Doctrine; does not provide fair warning of the dictates of the statute to ordinary citizens; and the statute conferred to [sic] much authority to the Ohio Department of Rehabilitation and Correction (“ODRC“).
Assignment of Error No. 4
Appellant‘s sentence is contrary to law where the trail [sic] court failed to comply with the required notices contained in
{1 2} For the reasons that follow, we affirm in part, reverse in part, and remand for a calculation of jail-time credit and for resentencing on Count 2 so that the court may give a proper advisement pursuant to
{1 3} Gates entered guilty pleas to resolve his criminal case so the factual basis for the convictions in the record is sparse.1 However, at a hearing evidenced in the transcript, Michelle Haas (“Haas“) testified that she dated Gates for about 15 months. (Tr. 12.) They were no longer seeing each other in early July 2020. On July 19, 2020, at approximately 1:30 a.m., an incident occurred at the residence of John Hilde (“Hilde“), a person with whom Haas shares a child. (Tr. 82.) The altercation resulted in the hospitalization of Hilde with significant injuries.
{1 4} On August 11, 2020, a three-count indictment was filed charging Gates with aggravated burglary, a first-degree felony violation of
{1 5} A sentencing hearing commenced on June 23, 2021. After hearing from the state, Hilde, Gates and Gates’ attorney, the court imposed an 18-month sentence on Count 1, a minimum sentence of 4 years on Count 2, and time served on Count 3. The court informed Gates that the indefinite sentence imposed on Count 2 had a maximum sentence of six years with a rebuttable presumption of release after four years. Gates objected to the imposition of an indefinite sentence. This timely appeal followed.
II. Law and Analysis
A. Jail-time Credit
{1 6} Gates argues, and the state concedes, that the trial court erred in applying credit for pretrial confinement to his misdemeanor conviction but not his felony convictions. Gates was sentenced to time served for his misdemeanor sentence. The transcript and journal entry of sentence are otherwise silent on the trial court‘s calculation of jail-time credit. At one point during the sentencing hearing, the trial court indicated that “Count 1 and Count 2 will run concurrent to one another.” (Tr. 89.) The journal entry of sentence states the same. However, this does not mean that Count 3 must be served consecutive to these counts. Gates‘s argument in his brief focuses on the assertion that the trial court‘s sentence on the misdemeanor constitutes a consecutive sentence. However, concurrent sentences are the default. State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, 21. Unless an exception applies, a failure to state that sentences are to be served consecutive to each other generally means that they are presumed concurrent. State v. Simmons, 8th Dist. Cuyahoga No. 107144, 2019-Ohio-459, 17.
{1 7} Gates has not pointed to anything in the record that supports the proposition that sentences were imposed consecutively or that the trial court misapplied jail-time credit. This is because nowhere in the record does the trial court actually calculate and apply jail-time credit.2 This alone constitutes error.
{1 8} Pursuant to
{1 9} Therefore, we remand this case to the trial court to calculate and apply jail-time credit, if appropriate, notify Gates of the result of that calculation, and issue a new sentencing entry setting forth the amount of credit, if any. This assignment of error is sustained.
B. Acceptance of Guilty Pleas
{1 10} Gates claims that the trial court failed to properly accept a guilty plea on Count 2, felonious assault. Gates continues to argue that any plea to this count must be construed as not guilty and the trial court erred in imposing a sentence on a count where a valid guilty plea or finding of guilty does not exist.
{1 11} The trial court started off the change-of-plea hearing listing the charges: “[t]he defendant has been indicted in a three-count indictment. Count 1, aggravated burglary, a felony of the first degree in violation of
THE COURT: All right. Based upon the statements of the prosecuting attorney and your lawyer, I believe it is your intention to plead guilty to an amended indictment. I believe it‘s your intention to plead guilty to amended Count 1, amending it to burglary in violation of
2911.12(B) , making it a felony of the fourth degree. Is that your understanding?THE DEFENDANT: Yes, Your Honor.
THE COURT: And that you will be pleading guilty to Count 2, felonious assault, a felony of the second degree which would be subject to Reagan Tokes, and do you understand that?
* * *
THE DEFENDANT: Yes, Your Honor, I do understand.
THE COURT: Okay. And Count 3, domestic violence, a misdemeanor of the first degree in violation of
2919.25(A) . Do you understand that?THE DEFENDANT: Yes, Your Honor.
(Tr. 50-51.)
{1 12} The court then went through the potential penalties Gates faced, the intricacies of a minimum and maximum sentence required by the Reagan Tokes Law, as well as postrelease control, restitution, and other penalties. The court then stated,
So, Mr. Gates, how do you plead to Count 1 as it‘s been amended. It‘s been amended to burglary, a felony of the fourth degree in violation of
2911.12(B) . How do you plead?THE DEFENDANT: Guilty.
THE COURT: I do accept your plea of guilty to Count 1 as it‘s been amended and I find you guilty thereon.
How do you plead to Count 2, Count 2 as indicted, felonious assault, a felony of the second degree in violation of
2903.11(A)(1) , how do you plead?THE DEFENDANT: Guilty.
THE COURT: And Count 3, domestic violence, a misdemeanor of the first degree in violation of
2919.25(A) , how do you plead?THE DEFENDANT: Guilty.
THE COURT: Okay. Thank you. I accept your plea of guilty to Count 3 as it‘s been charged and indicted and I find you guilty thereon.
(Tr. 58-59.) The plea colloquy quoted above demonstrates that Gates pled guilty to Count 2, felonious assault.
{1 13} Gates argues the court was required to affirmatively accept this plea as it did with his pleas to Counts 1 and 3.
{1 14}
{1 15} Here, the record demonstrates that the trial court implicitly accepted the plea. The first indication of this is that the trial court did not reject the plea. The journal entry memorializing Gates‘s pleas also indicates that Gates pled guilty to Count 2, and states that “court accepts defendant‘s guilty plea” after a recitation of
We are here today for a sentencing. On a previous day the defendant pled guilty to Count 1, as it was amended to burglary, in violation of
2911.12(B) , a felony of the fourth degree.The defendant, as you pled guilty to Count 2, felonious assault, in violation of
2903.11(A)(1) , a felony of the second degree.And the defendant pled guilty to Count 3, domestic violence, a misdemeanor of the first degree, in violation of
2919.25 .So we are here today for a sentencing.
(Tr. 62.)
{1 16} The trial court then asked if there was any reason why the court should not go forward with sentencing. Gates, through counsel, indicated there was not. Gates did not object or otherwise raise a claim that his plea was not accepted. All parties, including the trial judge, proceeded as though Gates‘s guilty plea to Count 2 was accepted.
{1 17} Based on the above evidence, we conclude that the trial court implicitly accepted Gates‘s guilty plea as to Count 2 of the indictment. There is no indication in the record to the contrary. In Head, a defendant filed a motion to withdraw guilty pleas entered in a case. At the time he entered his guilty pleas the trial judge stated, “If [the plea agreement] is vacated or rejected at the time of sentencing — as I go over this and think about it in the weeks ahead and decide that the agreement is not appropriate, that ten years isn‘t enough or whatever, then you
{1 18} In Battle, a trial judge provisionally accepted a guilty plea dependent on the receipt of a presentence investigation report. Battle, 499 F.3d at 317. The defendant sought to withdraw his plea, and the Fourth Circuit Court of Appeals found that the trial court did not err in denying the motion to withdraw because the plea, even with this provisional language, had been accepted. Id.
{1 19} As the Battle Court noted, an unambiguous statement such as “I accept your guilty plea,” is a best practice and can ensure that there is no confusion. Id. at 322. But in the case before this court, it is clear from the record that the trial court implicitly accepted Gates‘s guilty plea and sentenced him accordingly.
{1 20} There is no similar conditional statement to the statement in Head, or any statement for that matter, that would lead this court to believe that the trial judge did not accept Gates‘s guilty plea to Count 2.
{1 21} Gates claims the silence of the trial court amounts to violations of the state and federal constitutions. Even if we did not find that the trial court impliedly accepted Gates‘s guilty plea to Count 2, Gates never raised this issue with the trial court when it could have been corrected. “An argument is forfeited when it is not timely asserted.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, 21. “The purpose of the forfeiture rule is to encourage parties to call the
{1 22} Therefore, we overrule this assignment of error.
C. Reagan Tokes Sentence
{1 23} Gates also claims that his indefinite sentence under the Reagan Tokes Law is unconstitutional. Citing to our previous decisions in State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544 (8th Dist.), State v. Daniel, 2021-Ohio-1963, 173 N.E.3d 184 (8th Dist.), and State v. Sealey, 2021-Ohio-1949, 173 N.E.3d 894 (8th Dist.), Gates challenges his sentence based on violations of due process, the right to a jury trial, and violation of the separation of powers doctrine. However, these issues were resolved in the district‘s en banc holding in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, 17-54. The challenges Gates advanced against the constitutional validity of the Reagan Tokes Act have been overruled, Id. at 17-54. Therefore, we find that Gates‘s sentence pursuant to the Reagan Tokes Law was not a violation of his constitutional rights.
{1 24} Finally, Gates claims that the trial court failed to properly give all advisements found in
- That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender‘s presumptive earned early release date, as defined in section
2967.271 of the Revised Code, whichever is earlier; - That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section
2967.271 of the Revised Code, the department makes specified determinations regarding the offender‘s conduct while confined, the offender‘s rehabilitation, the offender‘s threat to society, the offender‘s restrictive housing, if any, while confined, and the offender‘s security classification; - That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender‘s incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section
2967.271 of the Revised Code; - That the department may make the specified determinations and maintain the offender‘s incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section
2967.271 of the Revised Code; - That if the offender has not been released prior to the expiration of the offender‘s maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term.
{1 26} When faced with a similar issue, the Twelfth District remanded so that the trial court could give the proper advisement. State v. Pope, 12th Dist. Butler No. CA2021-05-057, 2022-Ohio-426. The court limited the scope of the hearing, stating,
[the] sentence must be reversed, and this matter is remanded for the sole purpose of providing Pope with the required notifications as set forth in
R.C. 2929.19(B)(2)(c) . However, we emphasize that our reversal and remand are only for the purpose of complying with the foregoing statute and in no way affect the validity of the underlying conviction or any other aspect of the sentence imposed by the trial court. In other words, Pope is not entitled to be sentenced anew and the matter is remanded to the trial court for the sole and limited purpose of providing the mandatory notifications ofR.C. 2929.19(B)(2)(c) .
Id. at 23. See also State v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, 33 (case remanded “for the sole purpose of resentencing [the defendant] pursuant to
{1 27} We conclude that the prudent approach is the one taken by the Twelfth District in Pope. We, therefore, reverse the sentence on Count 2 and remand this case to the trial court for the sole purpose of providing Gates with the notifications required by
{1 28} Judgment affirmed in part, reversed in part, and remanded for a calculation of jail-time credit and for resentencing on Count 2 so that the court may give proper advisement pursuant to
It is ordered that appellant and appellee share costs herein taxed.
This court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
EMANUELLA D. GROVES, JUDGE
ANITA LASTER MAYS, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.
Judge Anita Laster Mays is constrained to apply Delvallie‘s en banc decision. For a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in part).