STATE OF OHIO v. JEFFREY D. REMBERT, JR.
No. 99707
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 30, 2014
2014-Ohio-300
McCormack, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-567712
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Thomas A. Rein
Leader Building, Suite 940
526 Superior Ave.
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Jeffrey D. Rembert, Jr., appeals from a judgment of the Cuyahoga County Court of Common Pleas that convicted him of aggravated murder and aggravated robbery after he pleaded guilty to these offenses. He claims his guilty plea was not knowing, intelligent, or voluntary. He also alleges various errors made by the trial court at his sentencing hearing. After a careful review of the record and apрlicable law, we affirm his conviction and sentence. For the limited purpose of determining the court costs and calculating jail-time credit, we remand the case to the trial court.
Substantive Facts and Procedural History
{¶2} On July 14, 2012, Jacqueline Gavorski, age 65, returned home after a late-night grocery shopping trip. When she was unloading her car in her driveway, she was approached by Rembert, a 16-year-old who lived in the neighborhood. Rembert struck her six times with a large landscaping rock. Gavorski died on the scene from her head injuries; her pants had been pulled down to her knees. There were injuries to her arms, suggesting she was trying to defend herself during the attack.
{¶3} Rembert took Gavorski‘s purse and left the scene. He was later seen going through the purse with two friends. When questioned by the South Euclid police, Gavorski blamed the incident on one of the two friends. However, within the same day, the police retrieved some clothing, stained with the victim‘s blood, from a washing machine in the house Rembert was living in at the time. Also, a surveillance video showed Rembert walk into a nearby McDonald‘s in that clothing the night before the
{¶4} Rembert was bound over from the juvenile court and subsequently indicted on six counts: two counts of aggravated murder, in violation of
{¶5} Rembert pleaded guilty to aggravated murder, in violation of
{¶6} Rembert now appeals, raising eight assignments of error for our review. We address them in the order presented. The first four assignments of error concern his guilty plea.
Guilty Plea
{¶7}
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest 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 or no contest, 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.
{¶8} To ensure that pleas conform to
{¶9}
{¶10} On the other hand, regаrding a defendant‘s nonconstitutional rights delineated in
{¶11} The first four assignments of error Rembеrt raises on appeal regarding his guilty plea concern his nonconstitutional rights, therefore, we review them under a substantial-compliance standard.
Maximum Penalty
{¶12} Under the first assignment of error, Rembert contends he did not enter his guilty plea knowingly, intelligently, or voluntarily, because the trial court failed to properly inform him of the maximum penalties as required by
{¶13}
(a) Life imprisonment without parole;
(b) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty years of imprisonment;
(c) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment; (d) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment[.]
{¶14} The word “full” is significant in that it determines whether a prisoner‘s term can be reduced for good behavior or earned credit. When a defendant is sentenced to 25 full years or 30 full years of imprisonment, the prison term cannot be diminished for good behavior or by credit earned.
{¶15} Before addressing Rembert‘s claim, a clarification is in order regarding the court‘s sentence of life imprisonment in this case. The trial court, both at sentencing and in its judgment entry, stated that the defendant was sentenced to life imprisonment with parole eligibility after 30 years, without qualifying it with the word “full.” Neither the state or appellant raises the issue on appeal. Therefore, we simply note that pursuant to the aggravated murder sentencing statute, when a defendant is sentenced to life imprisonment with parole eligibility after either 25 or 30 years, the years are necessarily “full” years, because “full” years are the only available punishment authorized by the statute when a defendant is ordered to serve 25 or 30 years before becoming eligible for parole.
{¶16} Having clarified that, we now turn to Rembert‘s claim that the trial court failed to properly advise him of his “maximum” penalty, in that the court did not explain to him that his sentence could not be reduced for good time or earned credit.
{¶18} Rembert claims that, in not explaining his lack of eligibility for reduction of sentence based on good time or earned credit, the trial court failed to fully advise him of the “maximum” penalty for his offenses. Rembert cites no authority for his claim that the maximum penalty advisement portion of the
Maximum Fines
{¶19} Under the second assignment of error, Rembert claims his plea was not knowing because the trial court failed to correctly inform him of the maximum fines that
{¶20} However, as the advisement of maximum penalty does not pertain to a constitutional right, Rembert must show a prejudicial effect. The test is whether the plea would have been made otherwise. In other words, Rembert must show that, although he pleaded guilty knowing he could receive life imprisonment without any parole eligibility, had he known the maximum fine was $25,000 instead of $15,000, he would not have pleaded guilty. He does not even attempt to make such a demonstration on appeal. Therefore, the second assignment of error is without merit.
Lack of Eligibility for Community Control Sanctions (Probation)
{¶21} Under the third аssignments of error, Rembert claims his plea was not valid because the trial court failed to advise him that he would not be eligible for community control sanctions (formerly known as probation). Pursuant to
{¶22} Under Ohio‘s sentencing schemе, there is a preference for community control in lieu of prison time for lower-level felonies. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 43, citing
{¶23} Indeed, such a claim has long been refuted by the courts. In Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163, the defendant was indicted for aggravated murder. The trial court accepted a plea to murder, but did not advise the defendant that he was not eligible for community control. The Supreme Court of Ohio‘s review of the case shows that the defendant was properly advised of the consequences of his plea — that he was facing imminent prison time — although the trial judge did not recite the precise verbiage of
Advisement Regarding Parole and Postrelease Control
{¶24} Under the fourth assignment of error, Rembert claims his plea is invalid because the trial court failed to properly advise him about parole and postrelease control.
Defendants convicted of certain classified felonies (not including aggravated murder) are subject to a mandatory period of postrelease control. See
R.C. 2967.28(B) . Postrelease control is a period of supervision that occurs after a prisoner has served his or her prison sentence and is released from incarceration, during which the individual is subject to specific sanctions with which he or she must comply.R.C. 2967.01(N) . Violation of these sanctions may result in additional punishment, such as a longer period of control, more restrictions during the control period, or a prison term of up to nine months per violation, subject to a cumulative maximum of one-half of the original stated prison term. SeeR.C. 2967.28(F)(1) through(3) . When a sentence includes mandatory postrelease control, the trial judge must inform the defendant of that fact in the plea colloquy or the plea will be vacated. See [State v.] Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, paragraph two of the syllabus.However, an individual sentenced for aggravated murder suсh as [defendant] is not subject to postrelease control, because that crime is an unclassified felony to which the postrelease-control statute does not apply.
R.C. 2967.28 . Instead, such a person is either ineligible for parole or becomes eligible for parole after serving a period of 20, 25, or 30 years in prison. SeeR.C. 2929.03(A)(1) ;2967.13(A) . Parole is also a form of supervised release, but it is not merely an addition to an individual‘s sentence. When a person is paroled, he or she is released from confinemеnt before the end of his or her sentence and remains in the custody of the state until the sentence expires or the Adult Parole Authority grants final release.R.C. 2967.02(C) ;2967.13(E) ;2967.15(A) ;2967.16(C)(1) . If a paroled person violates the various conditions associated with the parole, he or she may be required to serve the remainder of the original sentence; that period could be more than nine months. Ohio Adm.Code 5120:1-1-19(C).Even after a prisoner has met the minimum eligibility requirements, parole is not guaranteed; the Adult Parole Authority “has wide-ranging discretion in pаrole matters” and may refuse to grant release to an eligible offender. * * * Because parole is not certain to occur, trial courts are not required to explain it as part of the maximum possible penalty in a
Crim.R. 11 colloquy.
The trial judge was not required to discuss postrelease control or parole in [the defendant‘s] plea colloquy under
Crim.R. 11(C)(2) , as [the defendant] was not eligible for postrelease control, given his plea to an unclassified felony. SeeR.C. 2967.28(B) and(C) .
Id. at ¶ 35-38.
{¶26} In Clark, the defendant pleaded guilty to aggravated murdеr and received a sentence of life imprisonment with parole eligibility after 25 years. He claimed his plea was not knowing because the trial court incorrectly stated he would be subject to five years of postrelease control after completing his sentence of life imprisonment, when in fact he faced a lifetime of postrelease monitoring. The Supreme Court of Ohio concluded that the trial court‘s incorrect recitation of law did not meet the substantial-compliance standard fоr
{¶27} Here, Rembert was charged with aggravated murder and aggravated robbery. Regarding the aggravated murder offense, because parole is not certain to occur, the trial court would not be required to explain it in the plea colloquy. Clark at ¶ 37; State v. Miles, 8th Dist. Cuyahoga Nos. 98980 and 99003, 2013-Ohio-3235, ¶ 13. Furthermore, because the aggravated murder offense is an unclassified felony, Rembert is not subject to postrelease control defined in
{¶29} With this in mind, we now turn to the pertinent portion of the transcript of the plea hearing, which reflects the following advisement by the trial court:
The charge you will plead guilty to is the first and the sixth counts of this indictment. The first count is aggravated murder, and that‘s an indeterminatе penalty on this, which means that you may be sentenced to life in prison without any possibility of parole, or you may be sentenced to life in prison with the possibility of parole after 20, 25, or 30 years. Do you understand that?
* * *
And then upon your release from prison, if that happens at all, you would be on parole for the rest of your life. Do you understand that? If that ever happens, it‘s called post-release control.
* * *
Also, you are going to plead guilty to aggravated robbery, a felony of the first degree. That‘s the sixth count of the indictment. And that carries with it a possible period of incarceration of anywhere between three and 11 years. Any one of those yearly periods can be picked out, 3, 4, 5, 6, 7, 8, 9, 10 or 11 years. That‘s at a state penal institution. That can be run consecutive. Also, I have to tell you that the sentence, that would be imposed on the first count of the indictment. Do you understand that?
* * *
Which means you could soon conceivably get up to 41 years in prison. Do you understand that?
* * *
And if for some reason in the future you are released from prison, you would be subject to what we call post-release control, which is like parole, for a period of up to five years * * *. If you violate that, they can take you back for an additional nine months without even trial.
{¶30} Pursuant to Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, the trial court in this case need not address parole at all, but only need to inform Rembert of the five years of postrelease control for his offense of aggravated robbery. The trial court did that.
{¶31} Rembert, however, takes issue with the trial court‘s statement that “[a]nd then upon your rеlease from prison, if that happens at all, you would be on parole for the rest of your life. Do you understand that? If that ever happens, it‘s called post-release control.” We recognize that this statement could have been more precise. However, even if this portion of the advisement fell short of the requirement of
{¶32} The next four assignments of error concern Rembert‘s sentence.
Court Costs
{¶34} The Supreme Court of Ohio has held that although
Jail-Time Credit
{¶35} Under the sixth assignment of error, Rembert claims the trial court erred in failing to give him crеdit for jail time served. Under
{¶36} Under the seventh assignment of error, Rembert claims the trial court fails to make appropriate findings before imposing consecutive sentences for his two offenses.
{¶37} When reviewing consecutive sentences, this court has adopted the standard set forth in State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 8-10 (8th Dist.). In that case, we explained that
{¶38} Regarding the first prong, we noted that H.B. 86, effective on September 30, 2011, revived the requirement that trial courts make certain findings before imposing consecutive sentences. Under the current
Whether Aggravated Murder and Aggravated Robbery are Allied Offenses
{¶40} Under the eighth assignment of error, Rembert argues the trial court failed to make a proper determination as to whether aggravated murder and aggravated robbery are allied offenses.
{¶41} Ohio courts have long used a two-prong test to determine whether multiple offenses should be considered allied offenses and merged. “The first prong looks to the import of the offenses and requires a comparison of their elements.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 13. “If the elements ‘correspond to such a degree that the commission of one offense will result in the commission of the other,’ the offenses share a similar import.” Id., citing State v. Mitchell, 6 Ohio St.3d 416, 418, 453 N.E.2d 593 (1983). “The second prong looks to the defendant‘s conduct and requires a determination whether the offenses were committed separately or with a separate animus.” Washington at ¶ 13.
{¶42} Over the years, confusion arose as to whether, under the first prong, the elements should be viewed in the abstract or in light of the particular facts of each case. In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Supreme
{¶43} Although Johnson abandoned the abstract component of the first prong, it did not change the second prong, which has always required courts to determine whether the offenses “were committed separately or with a separate animus.” Washington at ¶ 12.
{¶44} Regarding aggravated murder and aggravated robbery, before Johnson, the Supreme Court of Ohio has repeatedly rejected the double-jeoрardy claim and held that aggravated murder is not an allied offense of similar import to an underlying aggravated robbery. State v. Coley, 93 Ohio St.3d 253, 264-265, 754 N.E.2d 1129 (2001), citing State v. Reynolds, 80 Ohio St.3d 670, 681, 687 N.E.2d 1358 (1998); State v. Smith, 80 Ohio St.3d 89, 117, 684 N.E.2d 668 (1997).
{¶45} Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which instructed the court to look to the defendant‘s conduct in the particular case under the first prong, does not change the analysis. Rembert bludgeoned his victim to death and took her purse. Applying the first prong and considering his conduct, the two offenses do not correspond to such a degree that the commission of one offense will result in the commission of the other. Under the second prong, the two offenses were committed separately and with a separate animus. Therefore, the two offenses are not allied offenses subject to merger.
{¶46} We note that, at the sentencing hearing, the trial court did not consider whether the two offenses were allied offenses subject to merger, and the defense counsel
{¶47} This case does not require a remand pursuant to Rogers. As Rogers itself noted, not every case involving multiple convictions with a silent record will require an allied-offenses determination by the trial court. Id. at ¶ 26. Rogers required a remand because a facial question of allied offenses existed, yet there was insufficient facts of the defendant‘s actual conduct placed on the record for an appellate review. In contrast, here, the record plainly shows that Rembert‘s two offenses are not allied offenses and, therefore, a remand is not warranted. For these reasons, the eighth assignment of error is overruled.
{¶48} Rembert‘s conviction is affirmed. The case is remanded for a proper determination of court costs and jail-time credit.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR