STATE OF OHIO v. TERRENCE SIMMONS
No. 107144
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 7, 2019
[Cite as State v. Simmons, 2019-Ohio-459.]
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613120-A
BEFORE: E.A. Gallagher, J., Laster Mays, P.J., and Sheehan, J.
RELEASED AND JOURNALIZED: February 7, 2019
Myriam A. Miranda
P.O. Box 40222
Bay Village, Ohio 44140
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Jeffrey Schnatter
Shannon M. Raley
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{1} Defendant-appellant Terrance Simmons appeals after he pleaded guilty to several felonies, including two counts of attempted rape, two counts of abduction, attempted kidnapping, sexual battery, burglary and robbery. Simmons also pleaded guilty to several misdemeanors, including two counts of telecommunications harassment, two counts of menacing by stalking, criminal damaging, three counts of domestic violence and violating a protection order. The trial court imposed an aggregate sentence of 11 1/2 years in prison, which included consecutive sentences and concurrent 90-day jail sentences and further ordered restitution to two of the victims. On appeal, Simmons raises two assignments of error arguing that his sentence is contrary to law and that the court accepted his guilty plea in violation of
I. Knowing, Voluntary and Intelligent Plea
{3} Simmons argues that his decision to plead guilty was also based, in part, on his understanding that he would pay one of the victims $681 in restitution. He claims that since the court additionally ordered restitution for a second victim, he pleaded guilty without full knowledge of the potential consequences.
{4} With respect to the nonconstitutional notifications required by
{5} Here, during the plea colloquy, the trial court reviewed each count to which Simmons was going to plead guilty. As relevant here, the court stated that Count 6, attempted rape, was a second-degree felony and that Count 7, attempted kidnapping, was also a second-degree felony. Simmons confirmed that he understood. The court explained the potential penalties Simmons faced for each individual count. As relevant here, the court explained that Counts 6 and 7 were “each punishable by a potential term of incarceration in yearly increments of two, three, four, five, six, seven, or eight years in the state penitentiary * * *.” Tr. 42. Simmons again confirmed that he understood.
{6} Simmons’ complaint about merger misses the mark.
{8} Simmons cites no authority in support of the proposition that a guilty plea violates
II. Sentence Contrary to Law
{9} In his first assignment of error, Simmons argues that his sentence is contrary to law for three reasons: (1) the record does not support consecutive sentences, (2) the journal entry
1. Consecutive Sentences
{10} Simmons claims that the record does not support consecutive sentences. He argues that consecutive sentences are contrary to law because he disagrees with how the trial court applied
{11} Where the trial court made the requisite consecutive sentencing findings,
{12}
{13} This court has thus concluded that
2. Journal Entry and Sentencing Hearing
{14} Simmons next argues that his sentence is contrary to law because of ambiguities in the court‘s journal entry and discrepancies between it and what actually occurred at sentencing. He claims that the sentence which the court journalized was different from the sentence it imposed in open court. He claims that the court did not announce whether the sentence for Count 10 would be run consecutive or concurrent. And he claims that the journal entry lists him as both a tier I and a tier III sex offender.
{15} Review of the record reflects that at the sentencing hearing, the trial court sentenced Simmons as follows:
Count 1, the charge of attempted rape, that will be a three-year sentence. On Count 3, the charge of sexual battery, that will be a one-year sentence. On Count 6, the charge of attempted rape, it will be a three-year sentence. On Count 7, a charge of attempted kidnapping, it will be a three-year sentence. On Count 10, the charge of burglary, it will be an 18-month sentence. Count 14, charge of robbery, it will be an 18-month sentence. Count 15, the charge of abduction, it
will be an 18-month sentence. Count 20, charge of abduction, that will be an 18-month sentence
* * *
The sentences in Counts 6 and 7, each a three-year sentence, will be run concurrent with each other, but the sentences in Counts 1, 3, 6 and 7, 14, 15, and 20 will all run consecutive to each other.
Tr. 92-93. Simmons’ total term was thus 11 1/2 years in prison. However, as Simmons notes, the court misspoke at sentencing and stated his aggregate term was 12 1/2 years. Although counsel did not object to this misstatement, or otherwise address it on the record, the court did correct it in its journal entry. See
{16} Simmons next complains that the court failed to specify at sentencing whether it ordered consecutive or concurrent service for Count 10. As noted, the trial court imposed an 18-month sentence for each of Counts 10 and 14. At sentencing, the court stated “[t]he sentences in Counts 6 and 7 * * * will run concurrent with each other, but the sentences in Counts 1, 3, 6 and 7, 14, 15, and 20 will all run consecutive to each other.” However, the court‘s journal entry reflects that the court substituted Count 10 for Count 14 in the consecutive counts: “Counts 1,3, 6, 10, 15 and 20 run consecutive to each other for a total of 11+1/2 years. All other counts run concurrent for a sentence of 11+1/2 years.”
{17} Although the court‘s journal reflects that Count 10 was to be served consecutively, instead of Count 14, which it ordered to be served consecutively at sentencing, Simmons’ sentence nevertheless remained the same. As a general rule in Ohio, there is a presumption in favor of concurrent sentences unless the court makes the requisite
{18} Simmons next claims that the court‘s journal entry refers to two different sex offender classifications. He complains that the journal entry lists both tier I and tier III registration requirements where at sentencing, the court only imposed tier III requirements.
{19} Review of the record reflects that at sentencing, the trial court explained to Simmons that because he pleaded guilty to two counts of attempted rape and one count of sexual battery that he would be required to register as a tier III sex offender. The court then went through a form explaining that Simmons was a tier III sex offender and outlined his registration duties. The court confirmed that Simmons understood. The journal entry reflects that Simmons “is tier III sex offender/child victim offender registrant; lifetime in-person verification every 90 days.” However, the journal entry also contains the statement that “[t]ier I sex offender advised on record and in open court.” This is a simple typographical error and casts no doubt on Simmons’ status as a tier III sex offender. On remand we instruct the trial court to correct this error.
3. Restitution Amount
{20} Simmons, for the first time on appeal, complains that the court ordered the arbitrary amount of $1,500 in restitution for the victim T.J. He did not object when the court imposed it. The state concedes that the record only supports restitution for this victim in the amount of $1,450.
{21}
{22} Here, the presentence investigation report indicates that the victim A.M. claimed $1,450 in economic losses. It does not indicate that T.J. sought restitution. At sentencing, the court ordered Simmons pay $1,500 in restitution to T.J., the wrong amount to be paid to the wrong victim. While the journal entry does list the correct victim, it nevertheless indicates an amount of restitution not supported by the record.
{23} We affirm Simmons’ sentence. However, we reverse the trial court‘s restitution order for A.M and remand the case to the trial court to order restitution for her that does not exceed the amount of economic loss suffered and for the issuance of a nunc pro tunc journal entry that reflects: (1) the court imposed consecutive sentences, (2) consecutive service was ordered for Counts 1, 3, 6, 14, 15 and 20 and (3) a correction of the typographical error that refers to Simmons as a “tier I” sex offender.
{24} The judgment of the trial court is affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the 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 Cuyahoga County Court of Common Pleas 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 Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., and MICHELLE J. SHEEHAN, J., CONCUR