2009 Ohio 2264 | Ohio Ct. App. | 2009
{¶ 2} Between July 2006 and December 2006, Reed was indicted in four separate cases.1 The indictments included five counts of theft, four counts of receiving stolen property, four counts of misuse of credit cards, two counts of forgery, two counts of burglary, attempted burglary, breaking and entering, and passing bad checks.
{¶ 3} In March 2007, Reed entered into a plea agreement on all four cases. In total, he pled guilty to four counts of theft, four counts of receiving stolen property, two counts of burglary, attempted burglary, and forgery.
{¶ 4} In April 2007, the trial court sentenced Reed on these cases as well as Case No. CR-459410, involving a probation violation. The trial court imposed a total sentence of seven and one-half years in prison.
{¶ 5} Reed now appeals, raising three assignments of error for our review.
{¶ 7} First, we note that Reed did not include Case No. CR-459410 in his notice of appeal. It is axiomatic that the notice of appeal must specify the judgment being appealed. See App. R. 3(D); State v.Pond, Cuyahoga App. No. 91061,
{¶ 8} Accordingly, we consider Reed's sentences on the cases that he properly appealed. These include three consecutive two-year sentences.
{¶ 9} We review felony sentences as the Ohio Supreme Court declared inState v. Kalish,
{¶ 10} Appellate courts must first "examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether *5 the sentence is clearly and convincingly contrary to law." Id. at ¶ 4, 14, 18. If this first prong is satisfied, then we review the trial court's decision under an abuse-of-discretion standard. Id. at ¶ 4, 19.
{¶ 11} In the first step of our analysis, we review whether the sentence is contrary to law as Reed maintains.
{¶ 12} Crim. R. 13 is inapplicable to the instant case. The rule deals solely with the court's ordering two or more indictments to be tried together. Reed pled guilty and waived his right to a trial in the instant case. He never objected to the court's consolidating his four criminal cases for purposes of his plea. Therefore, his argument that Crim. R. 13 required the trial court to impose concurrent sentences is without merit.
{¶ 13} As the Kalish court noted, post-Foster, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings and give reasons for imposing maximum, consecutive or more than the minimum sentence." Id. at ¶ 11;Foster, paragraph seven of the syllabus; State v. Mathis,
{¶ 14} R.C.
{¶ 15} "[A] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing[,] *** to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both."
{¶ 16} R.C.
{¶ 17} The Kalish court also noted that R.C.
{¶ 18} In the instant case, the trial court expressly stated that it considered the purposes of R.C.
{¶ 19} Having satisfied step one, we next consider whether the trial court abused its discretion. Kalish, at ¶ 4, 19. An abuse of discretion is "more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Id. at ¶ 19, citing Blakemore v. Blakemore (1983),
{¶ 20} A review of the record reveals that the trial court did not abuse its discretion. The trial court considered the statutory factors under R.C.
{¶ 21} The trial court then outlined Reed's extensive criminal record and noted that Reed had violated his parole in another case. The court found that Reed was likely to reoffend based upon the repeating pattern of his crimes. The court indicated that Reed could have secured gainful employment and had no valid excuse for his crimes. We find nothing in the record to suggest that the trial court's decision was unreasonable, arbitrary, or unconscionable. Accordingly, the trial court did not *8 abuse its discretion in imposing consecutive sentences in separate cases. We, therefore, overrule Reed's first assignment of error.
{¶ 23} A guilty plea will be considered knowing, intelligent, and voluntary if the trial court, at the very least, substantially complied with the procedures set forth in Crim. R. 11 regarding nonconstitutional rights. State v. Nero (1990),
{¶ 24} Crim. R. 11(C)(2) describes the procedure courts must follow when accepting felony guilty pleas. It provides,
*9"In felony cases the court *** shall not accept a plea of 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, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty *** and that the 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 obtaining 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." Id.
{¶ 25} In the instant case, the trial court complied with the requirements set forth in Crim. R. 11, so Reed's guilty pleas were knowing, intelligent, and voluntary. Crim. R. 11 does not require a court to notify a defendant that it may impose consecutive sentences when the defendant pleads guilty to multiple offenses. State v. Kerin, Cuyahoga App. No. 85153,
{¶ 26} During the proceedings, the trial court encouraged Reed to interrupt at any point to ask questions about the plea process. The court advised Reed of the maximum sentence for each of the charges to which he pled guilty. Given that the trial court complied with Crim. R. 11, Reed's claim that he did not understand the plea agreement cannot be grounds to reverse his convictions.
{¶ 27} We find no merit to Reed's claim that the plea agreement was invalid. The "sentencing package" doctrine is "a federal doctrine that requires [federal courts] to consider the sanctions imposed on multiple offenses as the components of a single, comprehensive sentencing plan."State v. Saxon,
{¶ 28} In Saxon, the Ohio Supreme Court held that Ohio does not apply sentencing packages. Id. at ¶ 10. Instead, Ohio's felony sentencing scheme requires the judge to determine a sentence for each offense separately, then to decide whether the sentences should run concurrently or consecutively. Id. at ¶ 8-9.
{¶ 29} In the instant case, the trial court separately addressed each offense to which Reed pled guilty. Once the court imposed a sentence for each offense, it determined whether the sentences would run concurrently or consecutively. Thus, the trial court did not apply a sentencing package or enforce an invalid plea agreement. Accordingly, we overrule Reed's second assignment of error.
{¶ 31} "A defendant has the burden of proving ineffective assistance of counsel and there is a strong presumption that a properly licensed trial counsel rendered adequate assistance." State v. Page, Cuyahoga App. No. 90485,
{¶ 32} As a result, where a defendant complains of ineffective assistance of counsel in relation to a guilty plea, the defendant must prove the two parts of the *11 Strickland test. State v. Xie (1992),
{¶ 33} The record in the instant case contains no evidence that Reed's counsel misinformed him about possible sentences. A claim of ineffective assistance of counsel that raises matters not appearing in the record may not properly be raised in a direct appeal but can only be considered in a postconviction relief proceeding. State v. Gibson (1980),
{¶ 34} Further, once the trial court imposed the sentence, Reed could have objected on the record. He could have informed the trial court that his counsel had failed to advise him that his sentence could be seven and one-half years. His failure *12 to object undermines his claim that his counsel misinformed him about possible sentences. Finally, when he entered his guilty plea, he testified that he was satisfied with his counsel's performance. Based on the foregoing, Reed has not met his burden to show that his counsel's performance was deficient.
{¶ 35} Reed cannot meet the second part of the Strickland test either. He has not proven that he would have proceeded to trial without his counsel's allegedly deficient advice. Before he pled guilty to each offense, the trial court informed him of the maximum penalties for each charge. Once he was informed of the possible maximum sentences, he could have asked to go to trial instead. He did not. Because he cannot meet either part of the Strickland test, Reed cannot maintain his claim of ineffective assistance of counsel. Consequently, we overrule the third assignment of error.
{¶ 36} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. *13
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, J., AND LARRY A. JONES, J., CONCUR.