STATE OF OHIO v. MICHAEL MANKINS
No. 99356
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 19, 2013
[Cite as State v. Mankins, 2013-Ohio-4039.]
BEFORE: Rocco, J., Stewart, A.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-554926, CR-562876, CR-562940, and CR-565884
RELEASED AND JOURNALIZED: September 19, 2013
Michael L. Wolpert
2539 Traymore Road
University Heights, Ohio 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James A. Gutierrez
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} After entering pleas of no contest in Cuyahoga C.P. No. CR-562940 to 1 count of grand theft, 54 counts of tampering with governmental records, 54 counts of forgery, 18 counts of tampering with odometers, and 18 counts of selling vehicles with altered odometers, and entering guilty pleas in Cuyahoga C.P. Nos. CR-554926, CR-565884, and CR-562876, rеspectively, to one count of grand theft, one count of theft, and one count of misdemeanor menacing, defendant-appellant Michael Mankins appeals from his convictions and the four and one-half year prison sentence the trial court imposed.
{¶2} Mankins presents two assignments of error. This court cannot decipher the argument he makes in his first, although it seеms to challenge his sentence. In his second, Mankins claims his trial counsel rendered ineffective assistance in securing his pleas.
{¶3} This court has reviewed the record of these cases and finds that plain error occurred in sentencing. The trial court neither followed the requirements of
{¶5} The record reflects Mankins was indicted in these cases in 2011 and 2012 as a result of his activities in operating a used car dealership. In CR-554926, he was charged with one count of pаssing bad checks and one count of grand theft. In CR-562876, he was charged with five counts of intimidation. In CR-565884, he was charged with one count of passing bad checks and one count of theft.
{¶6} In CR-562940, Mankins was charged tоgether with his wife. The counts that pertained to him charged him with 1 count of grand theft, 54 counts of tampering with records, 54 counts of forgery, 18 counts of tampering with odometers, and 18 counts of selling vehiclеs with altered odometers. Mankins entered pleas of not guilty at his arraignments and retained counsel to represent him and his wife.
{¶7} By October 2012, the parties notified the trial court that a pleа agreement had been reached. As outlined by the prosecutor, in the three less-serious cases, in exchange for a dismissal of the other counts and an agreed amount of restitution, Mаnkins would plead guilty as follows: (1) in CR-554926 to a single count of grand theft; (2) in CR-562876 to Count 1, amended to a charge of menacing; and (3) in CR-565884, to a single count of theft.
{¶9} The prosecutor stated that Mankins and his wife would enter plеas of no contest to all the charges in the remaining case. The prosecutor set forth the amount of restitution involved. Defense counsel indicated that Mankins had already made sоme restitution to one of the victims.
{¶10} The trial court proceeded with a second colloquy for each defendant in CR-562940. The court carefully described the constitutional rights the defendants were waiving in entering their pleas and set forth the maximum penalties involved. The trial court first accepted Mankins‘s wife‘s no contest pleas before conducting a separate cоlloquy with Mankins and accepting his pleas as well. The prosecutor then presented a factual basis for the charges. Thereafter, the trial court made findings of guilt on all the charges. The trial court concluded the hearing by referring Mankins and his wife to the probation department for presentence reports.
{¶11} When the trial court called the cases for sentencing, thе court indicated that it had reviewed the presentence reports. The court also heard statements from the prosecutor, one of the victims, defense counsel, and Mankins and his wife before ordering the hearing to be continued so that Mankins could close up his business and make further restitution.
{¶13} As to CR-562940, the transcript of the sentencing hearing demonstrates that the trial court sentenced Mankins as follows:
Count 1, to 5 years of “probation“;
the “tampering with records” counts, except for Count 143, to concurrent prison terms of three years;
the terms in this case were to be served conсurrently with each other but consecutively to the sentence in CR-565884;
Count 143, to 5 years of “probation“;
the “forgery counts,” except for Count 144, to prison terms of nine months;
Count 144, to 5 years of “probation“;
the “tampering with the odometer” counts, except for Count 145, to prison terms of nine months;
Count 145, five years of “probation;” and,
the “[s]ale of a vehicle with tampered odometer” counts, except for Count 146, to prison terms of one year;
Count 146, 5 years of “probation.”
{¶14} Despite the trial court‘s generalizations, as set forth above, the journal entry of sentence in CR-562940 specifically set forth each count. The journal entry also
{¶15} Mankins appeals from his convictions and the sentences imposed with two assignments of error:
- The trial court‘s imposition of consecutive prison sentences involving felоny four and five levels without adequate inquiry or separate animus was error.
- Failure to raise mitigation matters during the plea bargaining [with the] State constitutes ineffective assistance of cоunsel.
{¶16} Mankins challenges his sentence in his first assignment of error with an argument that makes no sense, and this court would be inclined to disregard it pursuant to
{¶17} First, with resрect to CR-562940, the transcript of the sentencing hearing does not contain any indication that the subject of “merger” was even discussed, much less that the state made any elections betweеn the numerous counts of the indictment in CR-562940. Thus, the sentence was “modified” in the journal entry, and, as stated in State v. Carpenter, 1st Dist. Hamilton No. C-950889, 1996 Ohio App. LEXIS 4434,
{¶18} Second, the journal entries in these cases do not reflect what was stated by the trial court at the sentencing hearing. Although the trial court declared at the conclusion of the hearing that the sentence imposed in CR-554926 would “run consecutive to the earlier сases,” the journal entry in that case indicates that the sentence was to run “concurrent to CR-562876; and consecutive to case CR-562940 and CR-565884.” State v. Quinones, 8th Dist. Cuyahoga No. 89221, 2007-Ohio-6077.
{¶19} Third, the trial court failed to state any consequenсe should Mankins fail to comply with the terms of the “probation” imposed on some of the counts, in direct contravention of
{¶20} Finally, the trial court made none of the findings necessary pursuant to
{¶21} For these reasons, this court is constrained to sustain Mankins‘s first assignment of error.
{¶22} The argument Mankins makes in support of his second assignment of error, consisting of two sentences, is as flawed as the one he presents in support of his first. He apparently asserts that his trial counsel rendered ineffective assistance by failing to advise
{¶23} In this instance, this court declines to address this argument due to Mankins‘s failure to comply with
{¶24} Mankins‘s second assignment of error is overruled.
{¶25} Mankins‘s convictions are affirmed. His sentences, however, are vacated, and these cases are remanded for resentencing.
{¶26} Affirmed in part, vacated in part, and remanded to the lower court for resentencing consistent with this оpinion.
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 sрecial 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.
KENNETH A. ROCCO, JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
MELODY J. STEWART, A.J., CONCURS IN JUDGMENT ONLY