State v. T.B.State v. T.B.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 24, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Chadwick Cleveland and Jennifer Driscoll, Assistant Prosecuting Attorneys, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for appellant.
{¶ 1} Defendant-appellant, T.B.,1 appeals his sentence and claims the following three errors:
R.C. 2953.08(D)(1) violates the due process clauses of the Ohio and United States Constitutions.- The trial court‘s consecutive sentencing order is clearly and convincingly not supported by the record.
- The trial court committed plain error by failing to merge the defendant‘s convictions prior to sentencing.
{¶ 2} We find no merit to the appeal and affirm the trial court‘s judgment.
I. Facts and Procedural History
{¶ 3} T.B. was charged with multiple counts of rape, kidnapping, pandering sexually oriented material involving a minor, gross sexual imposition, and assault. He later pleaded guilty to a total of 19 counts with an agreed sentencing range of 18 to 25 years in prison. Prior to sentencing, the state advised the court that “there‘s a new sentencing range,” and that as a result “we need to put the plea on the record again, and he needs to enter a plea of guilty based on that new range.”
{¶ 4} Thereafter, the trial court reviewed the charges, outlined the new sentencing range, and reviewed T.B.‘s
{¶ 5} On remand, T.B. pleaded guilty to five counts of rape in violation of
{¶ 6} The court made the factual findings required by
II. Law and Analysis
A. Due Process
{¶ 7} In the first assignment of error, T.B. argues
{¶ 8}
{¶ 9} The United States Constitution does not require states to grant appeals as of right to criminal defendants seeking review of alleged trial court errors. Moffitt v. Ross, 417 U.S. 600, 610-611 (1974); McKane v. Durston, 153 U.S. 684, 687 (1894). Nor does the
{¶ 10} A criminal defendant is not guaranteed the right to appeal because “‘the right of appeal is not essential to due process, provided that due process has already been accorded in the tribunal of first instance.‘” State v. Smith, 80 Ohio St.3d at 97, quoting State ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 80 (1930).
{¶ 11} In Ross v. Moffitt, 417 U.S. at 610-611, the court explained:
The defendant needs an attorney on appeal not as a shield to protect him against being “haled into court” by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant‘s consent, it is clear that the State need not provide any appeal at all.
{¶ 12}
{¶ 13} T.B. provides no authority to support his argument that
{¶ 14} “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
{¶ 15} T.B. was represented by counsel when he knowingly, intelligently, and voluntarily reached a plea agreement with the state that included an agreed sentencing range during both the initial case (prior to the vacated pleas) and the second plea hearing. T.B. was advised multiple times of his right to have his case heard and decided by a jury of his peers, but he chose instead to enter a guilty plea with an agreed sentencing range. As previously stated, “the right of appeal is not essential to due process, provided that due process has already been accorded in the tribunal of first instance.” Smith, 80 Ohio St.3d at 97, quoting State ex rel. Bryant, 281 U.S. at 80. There is nothing in the record to suggest that T.B.‘s right to due process was violated in the trial court when he knowingly, intelligently, and voluntarily waived his right to challenge his sentence on appeal. We, therefore, find no constitutional deprivation here.
{¶ 16} The first assignment of error is overruled.
B. Consecutive Sentences
{¶ 17} In the second assignment of error, T.B. argues the trial court‘s consecutive-sentencing order is not supported by the record. T.B. does not contend that the trial court failed to make the necessary findings under
{¶ 18} However, T.B. agreed to a jointly recommended sentencing range when he entered his guilty pleas. And, as previously stated in the first assignment of error,
A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.
{¶ 19} A jointly recommended sentencing range is a “jointly recommended sentence” for purposes of
{¶ 20} T.B. does not argue that the trial court failed to make necessary findings or otherwise failed to comply with any “mandatory sentencing provisions.” He argues his consecutive sentences should be vacated because the record clearly and convincingly did not support the trial court‘s findings in support of the imposition of consecutive sentences under
{¶ 21} The trial court imposed an aggregate 25-year prison term, which is within the agreed sentencing range and is authorized by law. Therefore, the sentence is not reviewable pursuant to
{¶ 22} The second assignment of error is overruled.
C. Allied Offenses
{¶ 23} In the third assignment of error, T.B. argues the trial court committed plain error by failing to merge his convictions for sentencing. He cites State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, to support this argument.
{¶ 24} In Underwood, the Ohio Supreme Court held that “[w]hen a sentence is imposed for multiple convictions on offenses that are allied offenses of similar import in violation of
{¶ 25} However, in Underwood, the state and the defendant agreed on a sentence, but their agreement was silent on the issue of allied offenses. The Underwood Court explained that “[w]hen the plea agreement is silent on the issue of allied offenses of similar import * * *, the trial court is obligated under
[W]e note that nothing in this decision precludes the state and a defendant from stipulating in the plea agreement that the offenses were committed with separate animus, thus subjecting the defendant to more than one conviction and sentence. When the plea agreement is silent on the issue of allied offenses of similar import, however, the trial court is obligated under
R.C. 2941.25 to determine whether the offenses are allied, and if they are, to convict the defendant of only one offense.
Id. at ¶ 29.
{¶ 26} The parties in this case agreed that none of the offenses to which he pleaded guilty were allied offenses of similar import. (Tr. 134, 136, 168.) T.B., therefore, waived the issue of allied offenses.
{¶ 27} The third assignment of error is overruled.
{¶ 28} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN PART, AND CONCURS IN JUDGMENT ONLY IN PART, WITH SEPARATE ATTACHED OPINION
KATHLEEN ANN KEOUGH, J., CONCURRING IN PART, AND CONCURRING IN JUDGMENT ONLY IN PART:
{¶ 29} I respectfully concur in judgment only with the majority opinion insofar as it concludes that T.B.‘s second assignment of error challenging the consecutive-sentence portion of his sentence is not reviewable because the sentence falls within the agreed sentencing range. In support, the majority relies on State v. Grant, 8th Dist. Cuyahoga No. 104918, 2018-Ohio-1759. I dissented from the majority opinion in Grant on this issue, opining that unless the defendant agrees to the imposition of nonmandatory consecutive sentences when agreeing to a sentencing range, the sentence is still reviewable under
{¶ 30} In this case, T.B. did not expressly agree to the imposition of nonmandatory consecutive sentences. The record demonstrates that on multiple occasions during the plea colloquy, T.B. agreed to a sentence range of 13-25 years. See tr. 134-135, 146, and 151. During each of these discussions, T.B. was also advised that the offenses would not be deemed allied and the sentences for each offense could be imposed consecutively. During one colloquy, the trial court explained to
{¶ 31} Therefore, unlike in Grant, where the record only reflected an agreed sentencing range without any additional facts regarding what the defendant knew or agreed to regarding consecutive sentences, the record in this case indicates that T.B. understood that consecutive sentences could be imposed so long as the total sentence fell within the agreed sentencing range.
{¶ 32} Accordingly, I find that Grant is distinguishable, but I would agree that under the circumstances in this case, the sentence is unreviewable pursuant to