STATE OF OHIO v. ZORYANA ROMANKO
No. 104158
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 2, 2017
[Cite as State v. Romanko, 2017-Ohio-739.]
BEFORE: E.A. Gallagher, P.J., Stewart, J., and S. Gallagher, J.
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-583903-A
Zoryana Romanko, pro se Inmate No. W090252 Northeast Pre-Release Center 2675 E. 30th Street Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley Cuyahoga County Prosecutor By: Edward Brydle Assistant Prosecuting Attorney Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
{1} Defendant-appellant Zoryana Romanko appeals the trial court‘s imposition of consecutive sentences after the case was remanded for the trial court to consider whether consecutive sentences were appropriate under
Procedural and Factual Background
{2} Romanko used her position as a housekeeper to steal jewelry, antiques and treasured heirlooms from families for whom she worked then sell the items to local pawnbrokers. Over a twenty-two-month period, Romanko conducted 139 transactions with pawnbrokers selling, in exchange for payments totaling more than $69,000. As part of a plea agreement, Romanko pled guilty to two counts of burglary and one count of grand theft in Cuyahoga C.P. No. CR-14-583903 and one count of burglary in Cuyahoga C.P. No. CR-14-585536. Romanko also agreed to pay a total of $13,150 in restitution to three of her victims.
{3} In Case No. CR-14-583903, Romanko was sentenced to two-year concurrent prison terms on each of the burglary counts and 18 months on the grand theft count which was to be served consecutively to the sentences imposed on the burglary counts. In Case No. CR-14-585536, Romanko was sentened to two years in prison on the burglary count, to be served consecutively to the sentences imposed in Case No. CR-14-583903, resulting in an aggregate prison sentence of five-and-one-half years. The trial court also imposed three years of mandatory postrelease control and ordered the payment of $13,150 in
{4} Romanko appealed her convictions and sentences to this court, arguing, as her sole assignment of error, that the trial court had erred in imposing consecutive sentences without making the statutory findings required under
{5} At the resentencing hearing, the trial judge heard from defense counsel, Romanko and the state. She then announced that, based upon (1) her review of this court‘s opinion in Romanko I, the presentence investigation report and the transcript from the initial sentencing hearing and (2) her consideration of “what everyone has said here today” and “the purposes and principles of the Ohio Revised Code Sections regarding sentencing,” she had determined that “the original sentence was appropriate” under
{6} The trial court then proceeded to state the findings in support of its
THE COURT: Now, I make the following findings to support the sentences I just gave, the consecutive sentences.
I find that consecutive sentences are necessary to protect the public from future crime. * * *
[T]here is no reason for me to believe that had you not been caught, that you would not have continued on this crime spree.
The best indicator of your future behavior is your past behavior, and I think it‘s necessary to protect the public from future crime by you.
Now, this is an alternative, but I find this as well. I also find it‘s necessary to punish you, the offender, someone who violates the trust of people, who let you into their home, need to be severely punished.
People need to be confident in the security of their home.
I also note that it‘s not just the financial, which is truly a significant number, but also the emotional damage that you caused each and every one of these offenders, coin collections of a family, broaches, wedding rings, and, in the one instance, the [sic] one family was expecting to use the proceeds from these items to care for their elderly mother.
I also find it‘s not disproportionate to the seriousness of your conduct, and to the danger you pose to the public.
You got two years on each of the burglary counts. Each is a separate victim.
To get the minimum, it cannot be considered disproportionate.
And you also pose a danger to the public, a danger to their security, a danger to their possessions, and possessions that mean so very much to them.
And you did this over a significant period of time.
And, actually, I did count the numbers of the victims. It‘s nine. I see that in my notes, now, and I checked this several times.
And I also find that at least two of the multiple offenses were committed as part of one or more courses of conduct. This is a course of conduct of you accepting a job and being paid for it, and, in addition, to being paid for it, robbing these people.
It was a course of conduct for you to go from home to home and victim to victim, taking their belongings.
I also find that the harm caused by two or more of the multiple offenses you committed were so great, I‘m sorry, was so great or unusual that no single prison term for any of the offenses committed as matter of any of these courses of conduct adequately reflect the seriousness of the Defendant‘s conduct.
I must repeat. This is very serious conduct. You took advantage of these people. You went into their home. You tricked them. They thought of you as their family, as their friend.
And when you had them in that vulnerable position, you robbed them of things that were just the very most important things to them, short of the lives and well-being of their family.
But you took things that were so very important to them, and they‘re never going to get them back.
Forget that they‘re not being financially made whole, they are not emotionally, psychologically being made whole, and that‘s offered by the victims who came in and testified at the time of the original sentence.
The Prosecutor amended the burglary counts to include all victims. Each is a separate home, each is a separate trust relationship that you so seriously violated. And you must be held accountable for these.
So my sentence stands.
{7} The trial court incorporated its findings into its February 25, 2016 journal entry as follows:
FIND: CONSECUTIVE SENTENCE IS NECESSARY TO PROTECT
PUBLIC FROM FUTURE CRIME OR PUNISH OFFENDER AND NOT DISPROPORTIONATE TO THE SERIIOUSNESS [sic] OF OFFENDER‘S CONDUCT AND TO THE DANGER THE OFFENDER POSES TO THE PUBLIC. AT LEAST TWO (2) OF THE MULIPLE [sic] OFFENES [sic] COMMITTED AS PART OF ONE OR MORE COURSES OF CONDUCT AND THE HARM CAUSED BY TWO OR MORE OF THE MULITIPLE OFFENESE [sic] SO COMMITTED WAS SO GREAT OR UNUSUAL THAT NO SINGLE PRISON TERM FOR ANY OF THE OFFENSES COMMITETED [sic] AS PART OF ANY OF THE COURSES OF CONDUCT ADEQUATELY REFLECTS THE SERIOUSNESS OF THE OFFENDER‘S CONDUCT. THE HISTORY OF CRIMINAL CONDUCT DEMONSTRATES CONSECUTIVE SENTENCES ARE NECESSARY TO PROTECT THE PUBLIC FROM FUTURE CRIME BY THE OFFENDER.
{8} Once again, Romanko appealed the trial court‘s imposition of consecutive sentences.
{9} After filing the appeal, Romanko‘s appellate counsel submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1997) and moved for leave to withdraw as counsel pursuant to Loc.App.R. 16(C) and 44(B), indicating that “a thorough review of the record reveals that an appeal would be wholly frivolous.”
{10} Anders “sets forth a procedure for ensuring that an indigent defendant‘s right to counsel on appeal is honored when his attorney asserts that the appeal is without merit.” State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 6. If counsel thoroughly reviews the record and concludes, “after a conscientious examination of it,” that an appeal is “wholly frivolous,” counsel may advise the court of that fact and request permission to withdraw from the case. Anders at 744. Counsel‘s request to withdraw must “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. Counsel must also furnish a copy of the brief to his or her client in sufficient time to allow the client to file his or her own brief, pro se. Id. The appellate court “then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Id. If the appellate court determines that an appeal would be “wholly frivolous,” i.e., that there are no appealable issues of arguable merit, “it may grant counsel‘s request to withdraw and dismiss the appeal * * *.” Id.; see also Loc.App.R. 16(C). If, however, the court finds “any of the legal points arguable on their merits,” it must afford the appellant assistance of counsel to argue the appeal before deciding the merits. Anders at 744.
{11} In this case, counsel filed a motion to withdraw, detailing the basis for her belief that an appeal would be wholly frivolous in accordance with Anders. Appellate counsel identified the potential arguments that could be raised related to the resentencing as required by Anders and explained why she believed those arguments were not {12} Romanko filed a pro se brief in which she raised the following five assignments of error for review: Assignment of Error 1: The trial court erred because it did not make the findings required by Assignment of Error 2: The trial court erred because it failed to make consider [sic] the purposes and principles of felony sentencing under Assignment of Error 3: The defendant‘s Sixth Amendment right to the effective assistance of counsel under the United States Constitution was violated in that both trial counsel and appellate counsel rendered ineffective assistance of counsel. Assignment of Error 4: The trial court abused its discretion in ordering restitution by the defendant without considering her present and future ability to pay and contrary to the law under Assignment of Error 5: The trial court erred to the prejudice of the defendant in failing to merge her convictions for burglary with the associated theft offense. The charge of burglary should not have stood {13} We have examined and considered the potential arguments identified by appointed counsel and the arguments raised in Romanko‘s pro se brief. In addition, we have conducted an independent review of the record from the resentencing, including the transcript from the resentencing hearing, to determine if any arguably meritorious issues exist. Anders, 386 U.S. at 744, 87 S.Ct.1396, 18 L.Ed.2d 493. We find no arguably meritorious issue. {14} As an initial matter, we note that an appeal from a resentencing following a remand from a successful appeal is limited to those issues that arise from the resentencing. As this court previously stated in State v. Hicks, 8th Dist. Cuyahoga No. 104676, 2016-Ohio-8062, “[t]he Ohio Supreme Court has made this proposition clear“: The doctrine of res judicata establishes that “a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. The scope of an appeal from a new sentencing hearing is limited to issues that arise at the new sentencing hearing. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40. The doctrine of res judicata does not bar a defendant from objecting to issues that arise at the resentencing hearing or from the resulting sentence. {15} Only Romanko‘s first two assignments of error relate to her resentencing. In her first assignment of error, Romanko argues that the trial court‘s imposition of consecutive sentences is contrary to law because the trial court made the findings supporting its imposition of consecutive sentences after it announced it would be imposing consecutive sentences. She contends that under {16} As this court explained in State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, there are two ways a defendant can challenge consecutive sentences on appeal: First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by Johnson at ¶ 7. Pursuant to {17} Pursuant to {18} The trial court must both make the statutory findings required for consecutive sentences at the sentencing hearing and incorporate those findings into its sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. To make the requisite “findings” under the statute, “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.‘” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). A trial court need not give a “talismanic incantation of the words of the statute” when imposing consecutive sentences, “provided that the necessary findings can be found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37. {19} In this case, the record shows that the trial court made the requisite findings for imposing consecutive sentences under {20} The trial court‘s findings under {22} Here, the trial court found that Romanko‘s victims suffered both significant financial harm as well as psychological and emotional harm based on the nature of the possessions Romanko stole and pawned, i.e., prized family heirlooms “that were so very important to them [that] they‘re never going to get * * * back,” and the manner in which she stole from them, i.e., abusing a position of trust and stealing from them while in their homes. Based on these facts, there is no arguably meritorious claim that the record clearly and convincingly does not support the trial court‘s findings under {23} Contrary to Romanko‘s arguments, the trial court was not required “to make * * * statutory findings of seriousness and recidivism under {24} In her third assignment of error, Romanko argues that both her trial counsel and her appellate counsel in Romanko I failed to provide effective assistance. She asserts that trial counsel failed to give her “professionally competent advice” regarding the elements of burglary and whether they could be proven in her case and that, were it not for the deficient performance of counsel, she would not have pled guilty to the burglary counts. She also contends that trial counsel provided ineffective assistance by failing to file an affidavit of indigence on her behalf and by failing to request that the burglary and grand theft counts be merged for sentencing as allied offenses of similar import. With respect to appellate counsel, Romanko contends that her appellate counsel provided ineffective assistance by “failing to peruse the transcripts of the hearings and finding merit issues to raise upon appeal” in Romanko I. {26} In her fourth assignment of error, Romanko argues that the trial court abused its discretion in ordering her to pay $13,150 in restitution without considering her present and future ability to pay in accordance with {27} The restitution at issue was imposed by the trial court at Romanko‘s original sentencing hearing. If Romanko believed the trial court erred in not determining her present and future ability to pay, she should have raised that issue in her prior appeal. She did not. Accordingly, her restitution argument is barred by the doctrine of res judicata. See, e.g., State v. Downey, 12th Dist. Clermont No. CA2016-02-006, 2016-Ohio-5778, ¶ 19 (defendant‘s claim that trial court erred in its determination of his {28} Furthermore, in this case, the record reflects that Romanko expressly agreed to pay the restitution ordered by the trial court as part of her plea agreement. “When the agreement to pay restitution to the victim is part and parcel of a plea agreement, there is no reversible error in imposing a financial sanction, without first determining the defendant‘s ability to pay.” State v. McMullen, 1st Dist. Hamilton No. C-140562, 2015-Ohio-3741, ¶ 5, quoting State v. Coburn, 6th Dist. Sandusky No. S-09-006, 2010-Ohio-692, ¶ 22; State v. St. Martin, 8th Dist. Cuyahoga No. 96834, 2012-Ohio-1633, ¶ 8 (“when the [s]tate and the defense enter into a stipulation as to the amount of restitution, the stipulation is sufficient to support the trial court‘s order and precludes the defendant from complaining about it on appeal“); State v. Allen, 8th Dist. Cuyahoga No. 96952, 2012-Ohio-1193, ¶ 9-10 (where defendant specifically agreed to pay restitution as part of his plea deal, trial court did not need to determine his ability to pay; “if the parties stipulate to the restitution amount, the defendant is precluded from {29} In this case, the trial court specifically asked Romanko whether she understood that she was agreeing to pay restitution totaling $13,150 as part of her plea and she stated that she did. Neither she nor her counsel raised any objection to the payment of restitution or claimed that she would be unable to pay it. Accordingly, Romanko‘s fourth assignment of error is meritless. {30} In her fifth and final assignment of error, Romanko argues that the trial court improperly sentenced her to allied offenses of similar import. She contends that the trial court erred in failing to merge her convictions for burglary with her conviction for grand theft. {31} Romanko did not raise an allied offense issue at her original sentencing hearing. As such, the trial court made no finding regarding whether the burglary and grand theft counts were allied offenses of similar import. Nor did Romanko raise an allied offense issue in her prior appeal. {32} In State v. Williams, Slip Opinion No. 2016-Ohio-7658, the Ohio Supreme Court stated that where, as here, a trial court “fails to make any finding” regarding {33} Judgment affirmed. It is ordered that appellee recover from appellant the costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. EILEEN A. GALLAGHER, PRESIDING JUDGE MELODY J. STEWART, J. and SEAN C. GALLAGHER, J., CONCURScope of Appeal from a Resentencing Following Remand
Trial Court‘s Imposition of Consecutive Sentences
Effective Assistance of Trial and Appellate Counsel
Restitution
Allied Offenses