STATE OF OHIO, Plaintiff-Appellee, vs CONNOR A. SERVANTES, Defendant-Appellant.
CASE NOS. 2022-P-0031 2022-P-0032 2022-P-0033
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
Decided: June 20, 2023
[Cite as State v. Servantes, 2023-Ohio-2029.]
MARY JANE TRAPP, J.
Criminal Appeals from the Court of Common Pleas, Trial Court Nos. 2021 CR 00469, 2022 CR 00172, 2021 CR 00743. Judgment: Affirmed in part; reversed and vacated in part; and remanded.
Richard E. Hackerd, 55 Public Square, Suite 2100, Cleveland, OH 44113 (For Defendant-Appellant).
OPINION
MARY JANE TRAPP, J.
{1} Appellant, Connor A. Servantes (“Mr. Servantes“), appeals from the judgment of the Portage County Court of Common Pleas that sentenced him to a total seven-year term of imprisonment following his guilty pleas in three separate cases to 13 felonies and one misdemeanor. Mr. Servantes’ convictions stemmed from three separate instances of drug-fueled burglarizing and theft.
{3} After a careful review of the record and pertinent law, we find Mr. Servantes’ first assignment of error to be with merit. A review of the plea hearing transcript reveals the trial court neglected to inform Mr. Servantes of the mandatory, consecutive sentence for failure to comply, and it omitted fifth-degree felonies from its recitation of the maximum penalties for Mr. Servantes’ various offenses. When consecutive sentences are statutorily required, the consecutive sentence directly affects the length of the sentence, thus becoming a crucial component of what constitutes the “maximum” sentence. The failure to advise a defendant that a sentence must be served consecutively does not amount to compliance with
{4} A review of the sentencing hearing transcript reveals Mr. Servantes’ second assignment of error is without merit since he was afforded his right to allocution pursuant to
{5} Lastly, our review of the sentencing judgment entry reveals the statutory subsections of the offenses, which Mr. Servantes pleaded guilty to, are omitted. Thus, we instruct the trial court to issue a nunc pro tunc entry upon resentencing.
{6} The judgment of the Portage County Court of Common Pleas is affirmed in part and reversed, vacated, and remanded in part in accordance with this opinion.
Substantive and Procedural History
{7} In September 2019, March 2021, and April 2021, Mr. Servantes was indicted by a grand jury in three cases (case nos. 2021 CR 00469, 2021 CR 00743, and 2022 CR 00172) on 18 counts. His charges stemmed from a string of burglaries, breaking and entering, grand theft, receiving stolen property, identity fraud, and drug possession in and around the Kent State University campus.
{8} As a result of plea negotiations, Mr. Servantes pleaded guilty to 14 counts (several of which were amended at the plea hearing).
{10} In case no. 2021 CR 00743, Mr. Servantes pleaded guilty to five amended counts of burglary, third-degree felonies, in violation of
{11} In case no. 2022 CR 00172, Mr. Servantes pleaded guilty to grand theft, a fourth-degree felony, in violation of
The Plea Hearing
{12} At the plea hearing, the trial court reviewed the maximum penalties for each level of offense, omitting the maximum penalty for fifth-degree felonies. The trial court inquired: “Do you understand that the felonies of the third degree may bring with them up to 36 months in prison on each count, up to a $10,000 fine and court costs; the felonies of the fourth degree may bring with them up to 18 months in prison, up to a $5,000 fine
{13} Upon defense counsel‘s query, the trial court informed Mr. Servantes that the failure to comply charge carried a mandatory license suspension but neglected to advise that the maximum penalty included a mandatory, consecutive sentence.
{14} The trial court proceeded to ensure Mr. Servantes understood the rights he was waiving, he reviewed the written plea forms with his counsel, and he signed them voluntarily. The trial court accepted Mr. Servantes’ guilty pleas and deferred the matter for a sentencing hearing pending a presentence investigation.
The Sentencing Hearing
{15} At the sentencing hearing, after defense counsel spoke on Mr. Servantes’ behalf, the trial court allowed Mr. Servantes an opportunity to speak. Mr. Servantes spoke to his homeless condition and apologized for any “psychological effects” his crimes may have had on the victims. The court interrupted, “Are any of the victims here? Anyone that‘s a victim of this crime?” The court continued speaking with Mr. Servantes:
{16} “[The Court:] You know, I understand your mental health issues, but at some juncture you have to take responsibility. There are ways of handling that.
{17} “[Mr. Servantes:] Yeah. Absolutely.
{18} “[The Court:] And some of these charges were knocked down significantly, you understand that?
{19} “[Mr. Servantes:] Yes, I do. I absolutely do.
{20} “[The Court:] I mean, you‘re looking at many, many, many, many years in prison.
{22} The court proceeded to sentence Mr. Servantes to a seven-year total term of imprisonment (the following terms are to be served concurrently unless stated consecutively): 12 months each for the counts of aggravated possession of drugs and identity fraud, fifth-degree felonies; 36 months each for the five counts of burglary, third-degree felonies; 18 months for grand theft, a fourth-degree felony; 24 months for failure to comply, a third-degree felony, to be served consecutively to the previous sentences; 12 months each for the two counts of breaking and entering, fifth-degree felonies; 24 months for burglary, a third-degree felony, to be served consecutively to the previous sentences; 180 days in jail for receiving stolen property, a first-degree misdemeanor; and 18 months for receiving stolen property, a fourth-degree felony.
{23} Mr. Servantes raises two assignments of error for our review:
{24} “[1.] Servantes’ plea was not knowingly, intelligently, and voluntarily given.
{25} “[2.] Servantes was denied his right of allocution contrary to
Crim.R. 11
{26} This court reviews de novo whether the trial court accepted a plea in compliance with
{27} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{28}
{29} “In felony cases the court * * * shall not accept a plea of guilty * * * without first addressing the defendant personally * * * and doing all of the following:
{30} “(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.
{31} “(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.
{32} “(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.”
{33} In State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, the Supreme Court of Ohio explained that when a criminal defendant seeks to have his conviction reversed on appeal, the traditional rule is he must establish that an error occurred in the trial-court proceedings and he was prejudiced by that error. Id. at ¶ 13.
{35} On appellate review, the questions to be answered are “(1) has the trial court complied with the relevant provision of the rule? (2) if the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?” Id. at ¶ 17.
{36} In his first assignment of error, Mr. Servantes asserts his plea was not knowingly, intelligently, and voluntarily made because the trial court failed to inform him (1) the failure to comply charge carries a mandatory, consecutive sentence and (2) of the maximum penalty for a fifth-degree felony.
Mandatory Consecutive Sentence
{37} Mr. Servantes was charged with violating
{39} “A violation of [
{40} The statute further provides, “If an offender is sentenced pursuant to division * * * (C)(4) or (5) of this section for a violation of division (B) of this section, and if the offender is sentenced to a prison term for that violation, the offender shall serve the prison term consecutively to any other prison term or mandatory prison term imposed upon the offender.”
{41} When consecutive sentences are statutorily required, the consecutive sentence directly affects the length of the sentence, thus becoming a crucial component of what constitutes the “maximum” sentence. The failure to advise a defendant that a sentence must be served consecutively does not amount to compliance with
Maximum Penalty
{43} Similarly, as our review of the plea hearing transcript reveals, the trial court omitted any mention of the maximum penalty for a fifth-degree felony from its recitation of the maximum penalties. Mr. Servantes pleaded guilty to four fifth-degree felonies: aggravated possession of drugs, identity fraud, and two counts of breaking and entering.
{44} Because the trial court completely failed to inform Mr. Servantes of the maximum penalty associated with his guilty pleas to those counts, no showing of prejudice is required, and we vacate his guilty pleas. See Dangler at ¶ 15 (a trial court‘s complete failure to comply with a portion of
{45} Accordingly, we vacate Mr. Servantes’ guilty pleas to the charges of failure to comply, aggravated possession of drugs, identity fraud, and the two counts of breaking and entering. We note Mr. Servantes is only challenging his plea to these offenses and not the plea agreement itself. In State v. Tancak, 9th Dist. Lorain No. 21CA011725, 2022-Ohio-880,
{46} Mr. Servantes’ first assignment of error is with merit.
Right to Allocution
{47} In Mr. Servantes’ second assignment of error, he contends he was denied his right to allocution pursuant to
{48} Pursuant to
{49} A
{50} As our review of the sentencing hearing reveals, the trial court interrupted Mr. Servantes during his allocution to inquire whether there were any victims present. Simply because Mr. Servantes was interrupted, however, does not mean he was not afforded a full allocution, especially in this case where the court continued to speak with him after the interruption and where the record indicates he was finished speaking.
{51} For instance, in State v. Roach, 7th Dist. Belmont No. 15 BE 0031, 2016-Ohio-4656, the Seventh District determined that even if a court interrupts a defendant‘s allocution, his right is not violated if he is permitted to speak after the interruption. Id. at ¶ 16. In that case, the appellant was provided a further opportunity to speak after the court commented, “Everyone in this room wishes that, sir.” Id. This opportunity was indicated by the appellant‘s response, “I understand that.” The appellant, however, did not continue speaking, and there was no indication he had more to say. Id. In addition,
{52} Similarly, in this case, Mr. Servantes was provided with a further opportunity to speak, and there is no indication he had more to say besides his agreement with the court that he was looking at “many, many, many, many years in prison.” “A trial transcript is not like a script for a play and does not contain indicators of demeanor or measures of time between pauses.” State v. Turner, 7th Dist. Mahoning No. 17 MA 0155, 2019-Ohio-934, ¶ 34 (finding any interruption by the trial court to be harmless error where the appellant did not demonstrate prejudice).
{53} In addition, prior to his allocution, defense counsel spoke on Mr. Servantes’ behalf, reviewing his pre-sentence investigation report and the motions filed on his behalf. He advocated for Mr. Servantes to be placed in the CATS (Community Assessment and Treatment Services) Program in Wadsworth, Ohio. In mitigation, he noted Mr. Servantes was apologetic, he understood the severity of his crimes, and he was suffering from “issues” when the crimes occurred.
{55} Based on the facts presented, the record reflects the trial court complied with
{56} Mr. Servantes’ second assignment of error is without merit.
Clerical Errors in Sentencing Entry
{57} Lastly, our review of the record indicated that the sentencing judgment entry contains clerical errors insofar as the statutory subsections of the offenses, which Mr. Servantes pleaded guilty to were omitted.
{58}
{59} Accordingly, upon remand and resentencing, the trial court is ordered to issue a nunc pro tunc entry to include the correct statutes with their appropriate subsections.
{60} Based on the foregoing, we affirm in part and reverse in part. We affirm the judgment of the Portage County Court of Common Pleas in part since Mr. Servantes was afforded his right to allocution during the sentencing hearing. We reverse to the point of error, i.e., the change of plea hearing, vacate Mr. Servantes’ guilty pleas to the charges of failure to comply, aggravated possession of drugs, identity fraud, and the two counts of breaking and entering, and remand for further proceedings in accordance with this opinion.
MATT LYNCH, J.,
EUGENE A. LUCCI, J.,
concur.