STATE OF OHIO v. SEAN K. RIEVES
No. 105386
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 15, 2018
[Cite as State v. Rieves, 2018-Ohio-955.]
BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION; PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT; JUDGMENT: AFFIRMED; Case No. CR-16-608473-A
RELEASED AND JOURNALIZED: March 15, 2018
Paul A. Mancino, Jr.
Mancino Mancino & Mancino
75 Public Square Building, Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Sean Rieves, appeals his convictions and sentence. He raises six assignments of error for our review:
- Defendant was denied due process of law when the court overruled his motion to suppress.
- Defendant was denied due process of law when the court imposed a sentence beyond the agreed sentence.
- Defendant was denied his constitutional rights when the court failed to advise defendant concerning self-incrimination when the court called upon defendant at sentencing to speak.
- Defendant was denied due process of law when the court would not allow defendant to withdraw his plea of no-contest when he did not receive an agreed sentence.
- Defendant was denied due process of law when the court failed to explain the effect of a no-contest plea.
- Defendant was denied his Sixth Amendment rights when the court based its sentence on facts not alleged in the indictment nor admitted at the plea.
{¶2} We find no merit to Rieves‘s arguments and affirm the judgment of the trial court.
I. Procedural History and Factual Background
{¶3} In August 2016, Rieves was indicted on nine counts: four counts of trafficking in violation of
{¶4} After pleading not guilty to all charges, Rieves moved to suppress the evidence against him. Before the suppression hearing, the state placed its plea offer on the record. As part of the deal, Rieves would plead guilty to an amended indictment of three counts of trafficking (fentanyl, heroin, and cocaine) with the one-year firearm specification and forfeiture specifications, but without the juvenile specification (which would make each offense a lesser-degree felony by one level), and the weapons disability count. The state‘s offer was “packaged with the plea offer” to Rieves‘s wife, where she would plead guilty to permitting drug abuse and possessing criminal tools, both fifth-degree felonies (which meant that probation was mandatory because she did not have any prior felony convictions). In exchange, the state would request the court to nolle the remaining charges against Rieves. The state indicated that if Rieves went forward with his suppression motion, however, the plea offer was “off the table.” Rieves rejected the state‘s plea deal and proceeded with his motion to suppress.
{¶5} At the close of the suppression hearing, the trial court denied Rieves‘s
{¶6} The trial court held a joint sentencing hearing on the present case and Rieves‘s community control violation for a previous trafficking case. Rieves stipulated to the community control violation. The trial court gave him credit for time served and terminated his community control sanctions in his previous trafficking case.
{¶7} In the present case, the trial court merged the trafficking and possession counts for fentanyl, heroin, and cocaine, and the state elected to proceed with the three trafficking counts. The trial court then sentenced Rieves to one year in prison for the firearm specifications attached to the trafficking heroin and trafficking fentanyl counts and ordered that they be served consecutive to each other but concurrent to the one-year terms for each of the remaining firearm specifications (for a total of two years for all of the firearm specifications). The trial court also sentenced Rieves to ten years for trafficking heroin, eight years for trafficking fentanyl, six years for trafficking cocaine, 18 months for trafficking marijuana, 36 months for having a weapon while under disability, and six months for possessing criminal tools and ordered that they be served concurrent to each other (for a total of ten years), for an aggregate sentence of 12 years in prison.
{¶8} The trial court further ordered that all of the items listed in the indictment be forfeited. It imposed five years of mandatory postrelease control for trafficking heroin, three years of mandatory postrelease control for trafficking fentanyl and cocaine, and up to three years of postrelease control for the remaining three counts. The trial
{¶9} We will address Rieves‘s assignments of error out of order for ease of discussion.
II. Motion to Suppress
{¶10} In his first assignment of error, Rieves contends that the trial court erred when it determined that police seized his property pursuant to a valid search warrant. Specifically, Rieves argues that Detective Witkiewicz‘s affidavit did not provide sufficient information to support a finding that there was probable cause to conduct a search of his home.
{¶11} The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
{¶12} “A neutral and detached judge or magistrate may issue a search warrant only upon a finding of probable cause.” State v. Ingold, 10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, ¶ 17;
{¶13} When determining whether probable cause exists for the issuance of a warrant, courts employ a “totality-of-the-circumstances” test, requiring issuing judges
to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [them], including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶14} Upon appellate review, the reviewing court should not substitute its judgment for that of the issuing judge by conducting a de novo review of whether the affidavit sufficiently provides probable cause for the warrant. George at 330, citing Gates. Instead, the duty of the reviewing court is simply to ensure that the issuing judge or magistrate had a substantial basis for concluding probable cause existed. George at paragraph two of the syllabus. Doubtful or marginal cases should be resolved in favor of upholding the warrant. George at 330; see also Gates at 237, fn. 10.
{¶15} Thus, the question presented in this case is whether, when looking at the totality of the circumstances, Detective Witkiewicz‘s affidavit provided a substantial basis for the issuing judge to conclude there was a fair probability that police would find
{¶16} In his affidavit, Detective Witkiewicz described the property to be searched and set forth his qualifications and experience in investigating drug trafficking and other drug offenses. He then made the following relevant averments:
8.) Affiant states that in late 2015, Detective Griffis of the Southeast Area Narcotics Task Force (SEALE) was advised by Parma Narcotics of a black male selling heroin throughout Cuyahoga County and possibly lived at an address in a SEALE community. The black male‘s name was Sean Rieves. Running Rieves through various law enforcement data bases provided addresses in Bedford Hts. and Maple Hts. as possible residences.
9.) Affiant states that in May 2016, SEALE Narcotics received a telephone call from an anonymous caller saying that Sean Rieves was selling narcotics, particularly heroin, and was residing at the house located at * * *, Maple Hts., Ohio, 44137 (said residence to be searched) with a female named Erica Rieves.
10.) Affiant states that on June 23, 2016, SEALE Detectives performed a trash pull from the residence located at * * *, Maple Hts., Ohio, 44137 (said residence to be searched) in order to look for signs of drug trafficking occurring at the residence. Affiant states that Detectives took 3 bags of garbage from the tree lawn of the residence. The garbage bags were taken to a secured location in order to examine for signs of drug trafficking.
11.) Affiant states that Detective Witkiewicz located eleven (11) sandwich baggies with corners ripped off inside the trash, two of which contained a white/tan powder residue consistent with heroin, and numerous used rubber gloves. Detectives also discovered a letter addressed to “Sean Rieves” with the address of * * *, Maple Hts., Ohio. Detectives also located a prescription receipt for “Erica Rieves.” Affiant states that in his training and experience these plastic baggy tear offs are indicative of individuals packaging drugs for resale.
12.) Affiant states that in his training and experience, heroin and other narcotics are placed into the smaller sandwich style bags, and the drug trafficker tears and keeps the corner from the baggy containing the narcotics, discarding the empty portion of the baggy into the trash. The smaller bags of heroin or narcotics are now packaged for resale.
13.) Affiant states that by utilizing Sean Rieves personal identifiers such as name, date of birth and social security number the affiant checked for any criminal history involving Rieves. Affiant states that Rieves has been charged with robbery, felony assault, domestic violence, disorderly conduct, menacing, theft, criminal trespass, aggravated burglary, possession of drugs, kidnapping, weapons under disability, and aggravated robbery.
{¶17} Initially, we note that it is well established that the “trash pull” itself did not implicate Fourth Amendment concerns. In California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court held that the
{¶18} Rieves argues, however, that the contents of the trash pull “added nothing to establish probable cause” in this case. Specifically, Rieves maintains that the affidavit did not provide probable cause because it was based on the trash-pull evidence and two anonymous, “stale” tips that did not contain any indicia of reliability. And because the anonymous tips were not reliable or otherwise corroborated, he maintains that the detective‘s affidavit was based only on the trash-pull evidence, which did not provide sufficient probable cause.
{¶19} Rieves cites to a Sixth Circuit case, United States v. Abernathy, 843 F.3d 243 (6th Cir.2016), in support of his argument that trash-pull evidence cannot establish probable cause to search a home. After reviewing Abernathy, however, we find that it
{¶20} In Abernathy, police obtained a search warrant based on a detective‘s averment that he “had received information that the occupants of [a particular home] have been and are currently engaging in illegal drug activity.” Id. at 247. The detective also conducted a trash pull. The detective found several marijuana roaches in the trash with marijuana residue inside, several plastic bags consistent with those used to package marijuana for resale with marijuana residue in the bags, and mail connecting the defendant to the address.
{¶21} The defendant in Abernathy moved to suppress the evidence and also moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), challenging the accuracy of certain representations by the detective in the affidavit. At the Franks hearing, the detective ultimately admitted that when he submitted the affidavit, he had no information that somebody was selling drugs out of the defendant‘s residence. The court found that the detective‘s statement in the affidavit that he “had received information that the occupants of [the home] have been and are currently engaging in illegal drug activity” violated Franks and struck it from the affidavit.
{¶22} Without the detective‘s statement that he had received information that the occupants of the home were engaging in illegal drug activity, the Sixth Circuit analyzed whether there was probable cause without it - which left only the evidence obtained
{¶23} But here, Rieves did not establish at the motion to suppress hearing that Detective Witkiewicz fabricated or misrepresented the facts in any part of his affidavit. Thus, the trash-pull evidence in this case was not “standing alone” as it was in Abernathy. There were two anonymous tips to police that Rieves was selling heroin. The first one stated that Rieves was selling heroin throughout Cuyahoga County and “possibly lived at an address in a SEALE community.” The first tip was received in late 2015, which was six or seven months before Detective Witkiewicz requested the search warrant. Detective Witkiewicz averred that he conducted a search of Rieves‘s name “through various law enforcement data bases” and found “addresses in Bedford Hts. and Maple Hts. as possible references.”
{¶24} The second anonymous tip, received by police in May 2016 (one month before the trash pull), stated that Rieves was selling narcotics, particularly heroin, and that he lived at a particular address, which was given, in Maple Heights. The anonymous tipster further stated that Rieves lived with a female named Erica Rieves.
{¶25} The “veracity, reliability and basis of knowledge [of an anonymous informant] are all highly relevant in determining probable cause.” State v. Pustelnik, 8th Dist. Cuyahoga No. 91779, 2009-Ohio-3458, ¶ 22, citing Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. “‘There must be some basis in the affidavit to indicate the
{¶26} But “a deficiency in one of these principles does not negate probable cause if there is a strong showing on another or if there is some other indicia of reliability.” Id., citing Gates. Even where there is an absence of evidence in an affidavit regarding a tipster‘s reliability, corroboration of the informant‘s statements by police investigation can provide “sufficient indicia of the reliability and veracity of the informant‘s statements.” Id. at ¶ 23. See also State v. Ross, 6th Dist. Lucas No. L-96-266, 1998 Ohio App. LEXIS 94 (Jan. 16, 1998) (“Even in cases involving anonymous informants, a tip is sufficient where certain important or key elements of the tip are corroborated by police observation or investigation.“); State v. Goddard, 4th Dist. Washington No. 97CA23, 1998 Ohio App. LEXIS 4832 (Oct. 2, 1998) (while affidavit was lacking in showing a basis for anonymous informant‘s knowledge and in establishing his veracity, the corroborating efforts by police officers made search constitutional).
{¶28} We find Abernathy to be distinguishable for another reason. The trash-pull evidence in Abernathy only consisted of several marijuana roaches with marijuana inside and several plastic bags that “were consistent with those used to package marijuana for resale,” which also had marijuana residue in them. In examining the trash-pull evidence, the Sixth Circuit determined that this evidence only suggested that “a small quantity of marijuana might have recently been in the defendant‘s residence.” Id. at 254. The court further explained:
[T]he connection between the small quantity of marijuana paraphernalia recovered from defendant‘s garbage and his residence is too logically
attenuated to create a fair probability that more drugs were in the residence. Although the trash pull evidence certainly suggested that someone in the residence had smoked marijuana recently, that fact alone does not create an inference that the residence contained additional drugs. Drugs by their very nature “are usually sold and consumed in a prompt fashion,” * * * and so the more probable inference upon finding drug refuse is that whatever drugs were previously in the residence had been consumed and discarded.
Id. at 255, citing United States v. Elliott, 576 F.Supp. 1579 (S.D.Ohio 1984).
{¶29} In the present case, however, the trash-pull evidence consisted of 11 plastic “tear offs.” Detective Witkiewicz averred that in his “training and experience,” drug traffickers place heroin and other narcotics into “smaller sandwich style bags” for resale and “tear off” the top corner of the bag, leaving the narcotics in the smaller bag and discarding the “empty portion of the baggy into the trash.” A person using or consuming drugs would never have possession of the “tear off” portion of the bag. Instead, the drug user would only have possession of the smaller bag that contained (or had contained) the drug. Thus, unlike the trash evidence in Abernathy, which only indicated that someone consumed marijuana, the trash evidence here indicated that someone was selling drugs because “tear offs” would only be present in a drug trafficker‘s trash. Even though drugs are sold in “prompt fashion,” it is likely drug traffickers would have more drugs in their home to sell.
{¶30} Rieves further argues that the first anonymous tip was “stale” because it was six or seven months old. And he maintains that the information obtained from the more recent anonymous tip “went stale” because police waited up to one month or more before searching the contents of his trash for contraband.
{¶32} Rieves also argues that two cases from this court, State v. Williams, 8th Dist. Cuyahoga No. 98100, 2013-Ohio-368, and State v. Weimer, 8th Dist. Cuyahoga No. 92094, 2009-Ohio-4983, support his argument that the trash-pull evidence was insufficient to establish probable cause. After reviewing these cases, we find them to be distinguishable from the instant case. See Williams at ¶ 18 (trash-pull evidence was not sufficient because there were upper and lower units in the home and there was nothing on the trash can identifying which unit it came from); Weimer at ¶ 33 (trash-pull evidence was not sufficient, standing alone, because defendant established that the detective
{¶33} After reviewing the affidavit in this case, we conclude that under the totality-of-the-circumstances test, Detective Witkiewicz‘s affidavit provided a substantial basis for the issuing judge to conclude that there was a fair probability that contraband or evidence of heroin trafficking would be found in the home, i.e., probable cause existed. The tips included information that Rieves was trafficking narcotics, particularly heroin, throughout Cuyahoga County. The second tipster also gave an address in Maple Heights where Rieves was residing with a female named Erica Rieves.
{¶34} The detective explained in the affidavit that he collected the trash from the curb of the residence. The trash-pull evidence included 11 “tear offs” indicative of trafficking smaller bags of drugs, two of which contained “white/tan powder residue” consistent with heroin. The detective also said that he found mail addressed to Rieves in the trash as well as a prescription receipt for Erica Rieves. The detective included Rieves‘s criminal history in the affidavit, which was extensive and also included a conviction for drug possession. Thus, the trash-pull evidence corroborated the anonymous tips — which indicated that Rieves lived at the address with Erica Rieves and sold heroin.
{¶35} Our holding in this case is consistent with many other courts holding that when an anonymous tip is received by police, drugs, and/or drug paraphernalia found in the person‘s trash is sufficient corroborating evidence to establish probable cause. See State v. Quinn, 12th Dist. Butler No. CA2011-06-116, 2012-Ohio-3123 (anonymous tip
{¶36} In light of these cases and the fact that we are obligated to accord great deference to the probable cause determination made by the magistrate or judge who issues the search warrant and resolve any doubtful or marginal case in favor of upholding the search warrant, we conclude that the judge in this case, which we acknowledge is a close call, “had a substantial basis for concluding that probable cause existed” for issuing the search warrant. George, 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph two of the syllabus, following Gates, 462 U.S. at 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527.
{¶37} Accordingly, Rieves‘s first assignment of error is overruled.
III. Effect of No Contest Plea
{¶39} The standard for reviewing whether the trial court accepted a plea in compliance with
{¶40} The underlying purpose of
{¶41} The effect of a no contest plea is set forth in
The plea of no contest is not an admission of defendant‘s guilt [unlike a guilty plea], but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.
{¶42} With respect to the nonconstitutional requirements of
{¶43} Furthermore, a defendant who challenges his or her plea on the basis that it was not knowingly, intelligently, and voluntarily entered into must show a prejudicial effect. Veney at ¶ 15. The test for prejudice is whether the plea would have otherwise been made. Id.
{¶44} In the present case, the record reveals that the trial court failed to substantially comply with
{¶45} Here, Rieves did not assert “actual innocence” during his plea proceeding. Additionally, Rieves does not offer any argument as to how he was prejudiced in any way by the trial court‘s failure to determine if he understood the effect of his no contest plea nor is any prejudice apparent from the record.
{¶46} Rieves cites to several cases from this court in support of his argument that because the trial court failed to inform him of the effect of his no contest plea, we should vacate his plea: N. Royalton v. Semenchuk, 8th Dist. Cuyahoga No. 95357, 2010-Ohio-6197; Parma v. Pratts, 8th Dist. Cuyahoga No. 94990, 2011-Ohio-728; and Cleveland v. Adams, 8th Dist. Cuyahoga No. 97523, 2012-Ohio-1063. Rieves further quotes Adams where this court stated “that when a trial court completely fails to comply with a rule in accepting a plea, a demonstration of prejudice is unnecessary.” Id. at ¶ 9.
{¶47} The cases cited by Rieves, however, are misdemeanor cases. We have explained that when it comes to felonies, “the Ohio Supreme Court has consistently held that the court‘s failure to tell the defendant the effect of a plea * * * does not invalidate the plea unless appellant shows that he was prejudiced by the court‘s failure to substantially comply with the rule.” State v. Simonoski, 8th Dist. Cuyahoga No. 98496, 2013-Ohio-1031, ¶ 11, citing Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d
51; Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677; and Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.{48} “Unlike in felony cases, misdemeanor cases only require the court to advise the defendant of the effect of the plea.” (Emphasis added.) Simonoski at ¶ 14. But in felony cases, the court is required to advise the defendant of the constitutional rights he or she is waiving by entering into the plea, as well as the nonconstitutional requirements pursuant to
{49} Rieves further argues that we should vacate his plea based on State v. Jones, 2d Dist. Montgomery No. 25688, 2014-Ohio-5574. In Jones, the Second District vacated the defendant‘s no contest plea in a felony case without a showing of prejudice where the trial court failed to inform the defendant of the effect of the plea. Id. at ¶ 15. This court, however, has already distinguished Jones when faced with the same argument. See Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166. We explained that in Jones:
[T]he state conceded that the trial court did not inform the defendant of the effect of his no contest plea but argued that the defendant subjectively understood the effect of his plea because the trial court had explained the maximum potential sentence the defendant could receive and the rights he was waiving upon entering his plea. Id. at ¶ 14. The court rejected the
state‘s argument, reasoning that the effect-of-plea requirement “cannot be met simply by the informing the defendant of the maximum sentence and the right to a jury trial” and concluding that “[u]nder the facts and circumstances” of that case, the defendant‘s plea was not knowingly, intelligently and voluntarily entered. Id. at ¶ 5, 14. The Jones opinion does not indicate specifically what advisements were made to the defendant at the plea hearing in that case and did not apply the presumption in Griggs. Id. at ¶ 19.
Therefore, just as we found in Musleh, Jones does not support Rieves‘s arguments here.
{50} Accordingly, after a review of the record in this case, we conclude that Rieves did not establish that he was prejudiced by the trial court‘s failure to explain the effect of his no contest plea to him. We further note that at no time did Rieves assert that he was actually innocent of the charges.
{51} Rieves‘s fifth assignment of error is overruled.
IV. Purported Agreed Sentence
{52} In his second assignment of error, Rieves contends that the trial court violated his due process rights when it imposed a sentence “beyond the agreed sentence” of eight years. In his fourth assignment of error, he argues that the trial court violated his due process rights when it would not allow him to withdraw his plea when it did not impose the “agreed sentence.” We will address these assignments of error together because they are related to the same facts that occurred at the plea and sentencing hearing.
{53} At the joint plea hearing, the trial court asked Rieves and his wife if anyone had threatened them with anything or promised them anything to get them to enter into the plea. Rieves‘s wife responded “no,” and then Rieves stated, “No, just not for her to go to jail.” The trial court apparently misunderstood Rieves, and replied, “Pardon? We did talk about a potential sentence of eight years.” Rieves‘s defense counsel explained the misunderstanding and told the court that Rieves was referring to his wife going to jail, not himself. The trial court reassured Rieves that he was “accurate” on that point; his wife would not go to jail. The trial court then asked Rieves: “[i]s there anything else that you‘ve been promised?” Rieves responded “no.”
{54} At the sentencing hearing, the state informed the court that prison was mandatory and that it believed “a substantial prison sentence [was] warranted.” The state informed the court that Rieves was on community control sanctions for drug trafficking when he was charged in this case. It further stated that Rieves‘s criminal history included felony domestic violence in 2009 (where he served one year in prison), attempted robbery in 2011 (where he served four years in prison), and the previous trafficking case for which he was still on community control sanctions and had violated the terms of those sanctions by committing the offenses in the present case. The state further noted that “there were three minor children in the home at the time the search warrant was executed.”
{55} Defense counsel told the court that Rieves had a serious drug addiction and
{56} The court then questioned defense counsel about his statements that Rieves was not trafficking drugs. Defense counsel clarified that Rieves was in fact selling drugs, he was just not selling drugs out of his house or in that area.
{57} The court turned to Rieves next and asked him if he had anything to say. Rieves responded, “[n]othing further from me Judge. I‘m sorry.” The trial court then stated: “Mr. Rieves, you have an opportunity to address the court before I announce sentence. Is there anything you would like to say?” The following exchange then took place:
THE DEFENDANT: I just want to say on my behalf and my family‘s behalf, you know, I just ask that you be more lenient on the sentencing. I wasn‘t selling drugs. I wasn‘t selling no drugs, whether it was out of the house or giving it to other people or people dying at the hands of me or anything that I did or anything of that nature. I know Fentanyl is a serious drug when you hear about it, but, in all honesty, I didn‘t know what Fentanyl was until after I was doing research for this case. I never knew nothing about it. I just had a daughter a month ago. Her mother is in the back of the courtroom. I would just like you to be more lenient on me. I know eight years is a lot of time.
THE COURT: I‘m not following you. You had a daughter?
THE DEFENDANT: Yes.
THE COURT: With someone other than [your wife]?
THE DEFENDANT: Yes.
THE COURT: Her mother is in the back of the courtroom here?
THE DEFENDANT: Yes.
THE COURT: And you didn‘t know what Fentanyl was?
THE DEFENDANT: No.
THE COURT: You weren‘t selling that to anybody?
THE DEFENDANT: I never gave nobody no Fentanyl. I never sold no Fentanyl to nobody. It was just like — actually, I got it, but I didn‘t even know the seriousness or whatever it was of Fentanyl. I never even heard of Fentanyl until I started sitting in here watching the news and hearing how serious it was, and then getting re-indicted and I‘m saying this is what I‘m being charged with. I knew it was brought to me as if it was heroin and not Fentanyl.
THE COURT: This was all a surprise to you?
THE DEFENDANT: I mean, no, it wasn‘t no surprise to me at all, no.
{58} At that point, the trial court informed Rieves that it was going to give him credit for time served in his previous trafficking case and terminate his community control sanctions. The trial court then stated:
The court did talk to your counsel and you about an agreed sentence here under certain terms, and you pled — after pleading no contest and preserving your appellate rights or entering into the plea agreement that was offered by the state of Ohio, you chose to enter the no contest option.
After we * * * took your no contest plea, the state put on the record the factual basis of that plea or of the charges. The court found you guilty of those charges.
And the assumption being that, you know, you were either going to be silent up here at sentencing or, you know, tell the truth and not come up here and manufacture a lie about 50 grams of Fentanyl being for personal use.
The court does not feel bound by its prior agreement given your behavior and lack of truthfulness up here.
{59} The trial court discussed the nine counts and imposed a sentence on each count, for a total of 12 years in prison. It then explained the following.
Mr. Rieves, it is clear from your behavior that you are not only a drug trafficker, you are a major drug trafficker. You had significant quantities of heroin, cocaine, and Fentanyl found in your residence along with quantities of marijuana.
I had you on probation for trafficking. I gave you a break, because I thought you were married and had three kids, despite the fact that you had just finished serving a four-year prison sentence. You have shown me no degree of remorse or responsibility. And, frankly, you deserve every minute of these 12 years to keep society safe from merchants of death that you are.
{60} After the trial court finished imposing the sentence, defense counsel then stated to the court, “[t]here was no discussion ever had that indicated that if he gave a dissertation that you were not satisfied with that the eight years that he agreed to plead to would be enhanced. The deal, as I understand it, I believe — [.]” The trial court interrupted defense counsel and stated: “[H]ere‘s how it works in a court of law. The court expects honesty. If he doesn‘t want to be honest, don‘t say anything; but to come up here and say that was for personal use is an affront to the intelligence of everyone in our criminal justice system.” Defense counsel then informed the court that Rieves wished to withdraw his plea. The trial court responded, “[i]t‘s too late for that. If you don‘t like the sentence, you don‘t get to withdraw the plea.”
{61} The Due Process Clause of the Fourteenth Amendment requires that any plea of guilty or no contest in a criminal case must be entered knowingly, intelligently, and voluntarily. State v. Engle, 74 Ohio St.3d 525, 1996-Ohio-179, 660 N.E.2d 450. When a trial court promises a certain sentence, the promise becomes an inducement to enter a plea, and unless that sentence is given, the plea is not voluntary. State v. Kelly, 8th Dist. Cuyahoga Nos. 91875 and 91876, 2010-Ohio-432, ¶ 21, citing State v. Allen, 6th Dist. Sandusky No. S-09-004, 2009-Ohio-3799. Accordingly, a trial court commits reversible error when it participates in plea negotiations but fails to impose the promised sentence. State v. Triplett, 8th Dist. Cuyahoga No. 69237, 1997 Ohio App. LEXIS 493, 5 (Feb. 13, 1997).
{62} We first note that the transcript establishes that the state was not involved in any purported “agreed sentence.” Neither the state nor defense counsel stated anything on the record indicating that the parties had agreed to a specific sentence. The state confirms this fact in its brief.1
{63} It is apparent then that any alleged agreement was between the trial court and the defense. But the trial court‘s comment at the plea hearing — that “[w]e did talk
{64} Moreover, Rieves stated at the plea hearing that the only thing that was promised to him in exchange for his plea was that his wife would not go to jail. When further asked by the trial court if there was anything else promised to him, Rieves replied that there was not.
{65} We also note that during the plea hearing, the trial court fully informed Rieves of the maximum sentence that he could receive for each offense and did not state anything about Rieves receiving a particular sentence. In fact, there was nothing said at the plea hearing about an agreed sentence — not from the trial court, defense counsel, or Rieves.
{66} We acknowledge that there were comments made at the sentencing hearing implying that the trial court had indicated it would impose a certain sentence if the defendant chose to plead no contest, but even defense counsel, when asking the court to consider a sentence “something less than the eight years,” referred to the purported “agreement” as “discussions.” Discussions, however, are not a promise.
{67}
{68} We also find that Rieves‘s sentence is not contrary to law and is supported by the record. The trial court sentenced him within the permissible statutory ranges and considered the principles and purposes of felony sentencing set forth in
{69} Accordingly, Rieves‘s second and fourth assignments of error are overruled.
V. Other Sentencing Issues
{70} In his remaining two assignments of error, Rieves raises issues relating to his sentence. In his third assignment of error, he argues that the trial court violated his constitutional right against self-incrimination when it failed to advise him at his sentencing hearing that “if he said something that the court disagreed with that the court
{71} In his sixth assignment of error, Rieves maintains that the trial court violated his Sixth Amendment rights when it based his sentence on facts not alleged in the indictment or admitted at the plea hearing. He argues that the following comments: “Mr. Rieves, it is clear from your behavior that you are not only a drug trafficker, you are a major drug trafficker. You had significant quantities of heroin, cocaine, and fentanyl found in your residence along with quantities of marijuana[,]” show that the trial court based its sentence “on matters that were improperly alleged.”
{72} Rieves cites to State v. Armetta, 8th Dist. Cuyahoga No. 84366, 2005-Ohio-3689, in support of his argument that a trial court cannot base its sentence “upon a crime neither charged nor proven.” In Armetta, however, the trial court based the defendant‘s sentence in part “on unsubstantiated allegations” made by the victim at the sentencing hearing that the defendant frequently engaged in drag racing and had recently been seen “buying and driving another race car.” Id. at ¶ 8, 17.
{73} Unlike Armetta, the trial court‘s comments in this case — that Rieves was a “major drug trafficker” — were based on the amount of drugs that were found in Rieves‘s home and that he admitted to by pleading no contest and not on any unproven allegations.
{74} Accordingly, Rieves‘s third and sixth assignments of error are overruled.
{75} Judgment affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR