State v. JohnsonState v. Johnson
Michael J. Manuszak
2905 Paxton Road
Shaker Heights, Ohio 44120
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Andell Johnson, appeals from his conviction and sentence following a guilty plea to two counts of burglary and one count of aggravated theft. After a careful review of the record and relevant case law, we affirm in part, reverse in part, and remand this case to the trial court for resentencing consistent with this opinion.
I. Factual and Procedural History
{¶2} On September 6, 2012, appellant was indicted in Cuyahoga C.P. No. CR-566485 on two counts of burglary in violation of
{¶3} On September 25, 2012, appellant was indicted in Cuyahoga C.P. No. CR-566901 on one count of aggravated burglary in violation of
{¶4} On January 10, 2013, appellant entered a plea in both cases. In CR-566485, he pled guilty to burglary and aggravated theft as charged in the indictment, and the remaining counts were dismissed. In CR-566901, he pled to an amended count of burglary, and the remaining counts and specification were dismissed.
{¶5} Appellant‘s sentencing hearing was held on February 11, 2013. In CR-566485, the trial court sentenced him to four years on the burglary count and 36
{¶6} Appellant now brings this timely appeal, raising four assignments of error for review.
II. Law and Analysis
A. Crim.R. 11
{¶7} In his first assignment of error, appellant argues that the trial court committed plain error by allowing him to waive his rights at the
{¶8} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the pleа unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶9} To ensure that a plea to a felony charge is knowingly, intelligently, and voluntarily entered, a trial court must follow the dictates of
{¶10} In the case at hand, appellant contends that, despite the trial court‘s best efforts to comply with the requirements of
THE COURT: Mr. Johnson, you intend to plead guilty to three counts between the two cases. One is burglary, a felony of the second degree, as indicted. One is aggravated theft, a felony of the third degree, as indicted. And in case 566901, Count 1, as amended, is now burglary, a felony of the second degree, with the deletion of the firearm specification.
Now burglaries of the second degree are punishable by up to two to eight years in prison and a fine of up to $15,000.
Aggravated theft, a felony of the third degree, is punishable by 9, 12, 18, 24, 30, or 36 months in prison, and a fine оf up to $10,000.
* * *
Do you understand that, Mr. Johnson?
APPELLANT: Yes.
* * *
THE COURT: Mr. Johnson, how do you plead under case 566458? How do you plead to the first count? That‘s the burglary charge, a felony of the second degree, guilty or not guilty?
APPELLANT: Guilty.
THE COURT: How do you plead to count number 5, aggravated theft, a felony of thе third degree, guilty or not guilty?
APPELLANT: Guilty.
THE COURT: And under case 566901, how do you plead to amended Count 1, which includes the removal of the firearm specification, the reduction of the charge from a felony one to a felony two charge of burglary? How do you plead to that, guilty or not guilty?
APPELLANT: Not Guilty.
THE COURT: Mr. Mancino?
APPELLANT: Oh, guilty.
THE COURT: Okay. Are you giving me these three pleas of your own free will?
APPELLANT: Yes.
{¶11} With respect to the foregoing statements, appellant maintains that his “not guilty” response to the burglary count in CR-566901 “was no mere knee-jerk reaction” and demonstrates that he “did not have an adequate grasp and did not fully understand the full import of what was happening with respect to plea negotiations, the
{¶12} Here, the trial court went to great lengths to ensure that appellant understood the constitutional and nonconstitutional rights he was waiving before entering his plea. Moreover, the trial court advised apрellant of the nature of the charges he intended to plead to and the maximum penalties the court could impose. Throughout the proceedings, appellant continuously and affirmatively expressed that he understoоd the
{¶13} Furthermore, there is nothing in the recоrd to support appellant‘s position that defense counsel was ineffective for allowing him to waive his rights and go forward with his guilty plea. The record reflects that the trial court specifically inquired into whether appellant was satisfied with the work of his attorney and whether defense counsel had answered every question appellant may have had. To each inquiry, appellant affirmatively responded, “yes.” As stated, appellant confirmed that he was entering the pleas of his own free will and also indicated that there had been no promises, threats, or other inducements that caused him to enter his plea. Accordingly, there is nothing in the record to support apрellant‘s claim of ineffective assistance of counsel during the
{¶14} Appellant‘s first assignment of error is overruled.
B. Ineffective Assistance of Counsel
{¶16} During the February 11, 2013 sentencing hearing, appellant requested a moment to speak before the court, at which time he proclaimed his innocence with respect to the burglary chаrge in CR-566901. Appellant stated that he had no involvement in the burglary and that he wished to face his accusers and prove his innocence. However, the trial court denied appellant‘s request and indicated that he had waived that right when he entered a guilty plea.
{¶17} In light of his statements to the court, appellant argues that defense counsel was ineffective for failing to move to withdraw his guilty plea prior to sentencing, pursuant to
{¶18} To demonstrate ineffeсtive assistance of counsel, defendants must satisfy both parts of a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendants must first show that their trial counsel‘s performance was so deficient that the attorney was not functioning as the counsel guaranteed by the Sixth Amendment to the United States Constitution. Id. Second, defendants must establish that counsel‘s “deficient performance prejudiced the defense.” Id. The failure to prove either prong of the Strickland test is fatal to a claim of ineffective assistance. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland, supra.
{¶20} Appellant‘s second assignment of error is overruled.
C. Consecutive Sentences
{¶21} In his third and fourth assignments of error, appellаnt collectively argues that the trial court‘s imposition of consecutive sentences was contrary to law.
{¶22} We review this claim using the standard set forth in
{¶23} Am.Sub.H.B. No. 86, effective September 30, 2011, revived the requirement that trial courts make certain findings before imposing consecutive sentences. Under current
{¶24} Our review of the record shows the trial court did not make the statutory findings for consecutive sentences required by
Mr. Andell Johnson, you stand before the court having pled guilty to two felonies of the second degree and a felony of the third degree. With regard to those counts, four years on the felony of the secоnd degree, and that‘s felony three low if I‘m not mistaken, so that would be 36 months concurrent with Count 1. So that‘s Count 1 and Count 5, four years concurrent with each other.
With regard to 566901, four years. The counts in 566485 are concurrent with each other but consеcutive to 566901. * * *
In both cases this court finds that the nature of several burglaries happening in short order does constitute the worst type of the offense and looked like planned conduct that was going to continue for a while.
{¶25} Such colloquy was insufficient to comply with the finding requirements of
{¶26} Appellant‘s third and fourth assignments of error are sustained.
{¶27} Convictions affirmed; cause reversed in part and remandеd to the trial 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 orderеd that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and
TIM McCORMACK, J., CONCUR