State v. Taylor, Ca2007-12-037 (3-2-2009)State v. Taylor, Ca2007-12-037 (3-2-2009)
{¶ 1} Defendant-appellant, Lee E. Taylor, appeals his conviction and sentence from the Madison County Court of Common Pleas for rape, aggravated burglary, and kidnapping. We affirm appellant‘s conviction and sentence.
{¶ 2} On March 16, 2007, the Madison County Grand Jury returned an indictment against appellant, charging him with rape, aggravated burglary, and kidnapping, each arising
{¶ 3} On November 16, 2007, following a pre-sentence investigation, the trial court sentenced appellant to an aggregate of 20 years in prison, ten years for the rape charge to be served consecutively with ten years for the aggravated burglary charge. The court also sentenced appellant to five years mandatory post-release control and classified him as a sexual predator. After the trial court denied appellant‘s motion to withdraw his guilty pleas appellant timely appealed, asserting eight assignments of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE THE APPELLANT RELIED ON THE REPRESENTATIONS OF THE TRIAL COURT AND THE STATE TO HIS DETRIMENT.”
{¶ 6} Assignment of Error No. 2:
{¶ 7} “THE TRIAL COURT ERRED IN DENYING APPELLANT A HEARING ON HIS POST-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEAS.”
{¶ 8} Assignment of Error No. 3:
{¶ 9} “THE TRIAL COURT ERRED IN DENYING THE APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEAS WHEN IT DECIDED THE APPELLANT‘S MOTION WITHOUT GIVING THE APPELLANT SUFFICIENT TIME TO RESPOND TO THE STATE‘S MEMORANDUM CONTRA APPELLANT‘S MOTION.”
{¶ 10} Appellant‘s first three assignments of error regarding the trial court‘s denial of his motion to withdraw his guilty pleas are interrelated and will be considered concurrently. On November 20, 2007, appellant filed a motion to withdraw his guilty pleas. The trial court denied his motion on December 26, 2007, without a hearing on the matter. Appellant claims
{¶ 11} A trial court has sound discretion in determining the good faith, credibility, and weight of a movant‘s assertions in support of a
{¶ 12}
{¶ 13} Appellant first argues the trial court committed a manifest injustice when it sentenced him to serve consecutive terms in prison. He asserts the trial court deviated from its presentencing representations, made off the record, that it would agree to imposing concurrent sentences as part of the plea bargain. Appellant claims he was induced to plead guilty and he would not have agreed to the plea had he known he would be sentenced to consecutive terms.
{¶ 14} The record, however, demonstrates otherwise. At the plea hearing, the
{¶ 15} “THE COURT: Mr. Taylor, you have tendered written guilty pleas to all three charges under the charges as I have read them to you this morning. Is that your plea?
{¶ 16} “APPELLANT: Yes, sir.
{¶ 17} “THE COURT: Counsel, there have been discussions apparently between you regarding these pleas and potential resolution on the State of Ohio.
{¶ 18} “PROSECUTOR: Thank you. Your Honor, as part of the plea negotiations in exchange for [appellant] entering guilty pleas to each of the three counts of the indictment, the state is recommending that the three counts run concurrently to each other. We are deferring to a pre-sentence investigation as to what that sentence should be. Mr. Miller and I had discussions regarding the possibility of [appellant] getting concurrent sentences with these cases to a [parole] violation he is currently serving. I indicated that would not be a part of the state‘s agreement. * * *”
{¶ 19} Later, the trial court explained to appellant the potential sentences he faced as a result of pleading guilty:
{¶ 20} “THE COURT: Mr. Taylor, the range of sentence on each offense is three to ten years with the minimum being three years and the maximum penalty of ten years on each count. You understand that a maximum sentence of ten years may be imposed. There is a $20,000 fine with respect to each count.
{¶ 21} “If the sentences run consecutively, again, you would be imposed with a $60,000 fine.
{¶ 22} “There is a mandatory post release control of five years. Then when you have served your sentence you will be under the supervision of the State of Ohio for five years.
{¶ 23} “If you violate the terms of release, you could receive one half of whatever sentence I impose and go back to the penitentiary.
{¶ 24} “Do you understand?
{¶ 25} “APPELLANT: Yes.”
{¶ 26} The trial court also explained to appellant that it was not bound by the prosecutor‘s recommendation:
{¶ 27} “THE COURT: Other than what has been said in the courtroom that the state is recommending concurrent sentencing, I must tell you I am not bound by the recommendations of these statements.
{¶ 28} “I will conduct a pre-sentence investigation, review that, and determine the appropriate sentence.
{¶ 29} “You understand that the recommendations the state is making, I am not bound by it?
{¶ 30} “APPELLANT: Yes, sir.
{¶ 31} “THE COURT: Other than what has been said and my explanation in that regard, have any offers, promises, threats, or representations been made to get you to enter pleas of guilty today?
{¶ 32} “APPELLANT: No.”
{¶ 33} Although appellant cites to case law involving a breach of a plea agreement and appropriate remedies, appellant has failed to point to any alleged breach of the plea agreement in the record. The state recommended concurrent sentences, as promised, and the court informed appellant of the possible sentences for each count and that it was not bound by the recommendations. A trial court does not err by imposing a sentence greater than that forming the inducement for appellant to plead guilty when the court forewarns appellant of the applicable penalties. State v. Walker, Butler App. No. CA2005-12-519, 2006-Ohio-5197, ¶ 9. Therefore, appellant has failed to establish a manifest injustice warranting the withdrawal of his guilty pleas.
{¶ 34} Appellant also argues the trial court erred in denying him a hearing on his post-sentence motion to withdraw his guilty pleas. A trial court, however, need not hold an evidentiary hearing on a post-sentence motion to withdraw a guilty plea where the record indicates the movant is not entitled to relief. State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, ¶ 6. See also State v. Booker, Montgomery App. No. 21496, 2007-Ohio-430, ¶ 27; State v. Ridenour, Madison App. No. CA2005-05-017, 2006-Ohio-500, ¶ 15-19. As discussed above, the facts, as alleged by appellant, are directly contradicted by the record. The record demonstrates appellant could not establish the trial court committed a manifest injustice warranting the withdrawal of his guilty pleas. Therefore, the trial court did not err in denying his motion without holding an evidentiary hearing.
{¶ 35} Finally, appellant argues the trial court erred in denying his motion to withdraw his guilty pleas prematurely, without giving appellant sufficient time to respond to the state‘s memorandum contra. Appellant insists that Loc. R. V, Section I, which provides that motions in civil cases shall be decided on the filings 14 days or more after the service on the opposing party, should be applied to his case pursuant to
{¶ 36} As appellant concedes, there is no local rule regarding a criminal defendant‘s right to respond to the state‘s memorandum contra to appellant‘s post-sentence motion to withdraw his guilty pleas. Even if this court were to construe the local civil rule to include criminal post-sentence motions to withdraw guilty pleas, the failure of the court to provide him with 14 days to respond would, at the most, constitute harmless error. See
{¶ 37} Assignment of Error No. 4:
{¶ 38} “THE TRIAL COURT ERRED IN FAILING TO NOTIFY APPELLANT OF THE MAXIMUM PENALTIES FOR EACH OF HIS OFFENSES WHEN THE TRIAL COURT ACCEPTED THE APPELLANT‘S GUILTY PLEAS AND THUS HIS PLEAS ARE VOID.”
{¶ 39} Assignment of Error No. 5:
{¶ 40} “THE TRIAL COURT ERRED IN FAILING TO NOTIFY THE APPELLANT OF POST-RELEASE CONTROL FOR EACH OF HIS OFFENSES.”
{¶ 41} Appellant‘s fourth and fifth assignments of error, regarding his pleas of guilty and the trial court‘s colloquy at the plea hearing, are related and will be considered concurrently. Appellant claims the court violated
{¶ 42}
{¶ 43} “In felony cases the court may refuse to accept a plea of guilty * * * and shall not accept a plea of guilty * * * without first addressing the defendant personally and doing all of the following:
{¶ 44} “(a) Determining that the defendant is making the plea voluntarily, with
{¶ 45} “(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.
{¶ 46} “(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 * * *, 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 * * *.”
{¶ 47} A trial court must strictly comply with the provisions of
{¶ 48} After thoroughly reviewing the entire record, we find the trial court complied with the requirements of
{¶ 49} “THE COURT: There is a mandatory post-release control of five years. Then when you have served your sentence you will be under the supervision of the State of Ohio for five years.
{¶ 50} “If you violate the terms of release, you could receive one half of whatever sentence I impose and go back to the penitentiary.
{¶ 51} “Do you understand?
{¶ 52} “APPELLANT: Yes.”
{¶ 53} The trial court later explained to appellant the consequences of pleading guilty to a sexually oriented offense:
{¶ 54} “THE COURT: Because of the nature of the offenses you could be classified as a sexually oriented offender. You could be classified as a sexual predator. That hearing has to be deferred until sentencing so evidence can be presented and I can make a determination.
{¶ 55} “In the meantime, there is what is called Adam Walsh, which comes into effect January 1st, and that changes the classification. But under any circumstance, there would be reporting requirements and registration requirements upon release from the institution under present law and under the law as it will change effective January 1st.”
{¶ 56} Following that explanation, the court informed appellant of his rights as provided in
{¶ 57} The record also contains a written waiver and plea signed by appellant and his attorney, which explains the offenses to which appellant pled guilty, states the court could
{¶ 58} Appellant cites no cases in support of his argument that the trial court failed to adequately notify him of the maximum penalties he faced and of the potential sexual predator registration and reporting requirements. Further, he fails to cite to any case or make any argument as to why the trial court‘s notice of the imposition a five-year mandatory post-release control was inadequate. Under the totality of the circumstances, we find the trial court did not err in determining appellant voluntarily and intelligently entered his guilty pleas. Appellant‘s responses in the plea hearing and his signature on the written waiver and plea prove that he had full knowledge of the consequences of his guilty pleas. See State v. Walker, Butler App. No. CA2005-12-519, 2006-Ohio-5197, ¶ 8-11; State v. Pakunlniewicz, Mahoning App. No. 05-MA-58, 2006-Ohio-5654, ¶ 17-18. Accordingly, appellant‘s fourth and fifth assignments of error are overruled.
{¶ 59} Assignment of Error No. 6:
{¶ 60} “THE TRIAL COURT ERRED IN FAILING TO MERGE THE AGGRAVATED BURGLARY AND RAPE CHARGES BECAUSE AGGRAVATED BURGLARY AND RAPE ARE ALLIED OFFENSES OF SIMILAR IMPORT WHEN THE SAME CONDUCT IS INVOLVED IN BOTH OFFENSES.”
{¶ 61} Appellant argues the trial court erred in sentencing him on both the aggravated burglary and rape charges because the offenses should have been merged, as each of the offenses occurred as a result of the same conduct.
{¶ 62} Appellant was charged with and pled guilty to rape, aggravated burglary, and kidnapping. As a result of the presentence investigation, the trial court merged the kidnapping
{¶ 63} As this court has previously held, aggravated burglary and rape are not allied offenses of similar import. State v. Lamberson (Mar. 19, 2001), Madison App. No. CA2000-04-012, 2001 WL 273806, *16. Aggravated burglary requires trespass in an occupied structure by force, stealth or deception where the offender inflicts or attempts to inflict physical harm. By contrast, rape requires sexual conduct brought about by force. Because each requires proof of an element the other does not, they are not allied offenses of similar import. Id. Furthermore, the crime of burglary is completed when a defendant enters the premises by force, stealth or deception, with the intent to commit a felony. State v. Frazier (1 979), 58 Ohio St.2d 253, 255. But where the intended felony is actually committed, a new crime arises for which a defendant may be convicted. Id. Because appellant can be convicted and sentenced for both aggravated burglary and rape, his sixth assignment of error is overruled.
{¶ 64} Assignment of Error No. 7:
{¶ 65} “THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT BASED UPON A FINDING OF FACTORS NOT FOUND BY A JURY OR ADMITTED BY THE APPELLANT IN VIOLATION OF THE APPELLANT‘S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO TRIAL BY JURY.”
{¶ 66} Appellant argues the list of statutory factors contained in
{¶ 67} In reviewing felony sentences, an appellate court must (1) examine the trial court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether it is clearly and convincingly contrary to law, and (2) review the term of imprisonment for abuse of discretion. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26.
{¶ 68} Although appellant argues
{¶ 69} In this case, the trial court selected a specific sentence within the statutory range, and such sentence was not contrary to law. The court was not required to make findings or give its reasons for imposing the maximum sentence for each crime appellant admitted to committing, and appellant is not entitled to a jury determination of the facts the court deemed relevant to each factor it considered. Furthermore, the court gave careful deliberation to the relevant statutory considerations and nothing in the record suggests the court abused its discretion in sentencing appellant accordingly. See Kalish at ¶ 20. Appellant‘s seventh assignment of error is without merit and is overruled.
{¶ 70} Assignment of Error No. 8:
{¶ 71} “THE TRIAL COURT ERRED AND VIOLATED APPELLANT‘S DUE PROCESS RIGHTS UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS WHEN IT
{¶ 72} Appellant argues the Ohio Supreme Court‘s severance remedy in Foster is unconstitutional. As an appellate court inferior to the Ohio Supreme Court, “we are required to follow its mandates; we lack the jurisdictional power to declare unconstitutional a mandate of the Supreme Court of Ohio.” State v. Jefferson, Montgomery App. No. 21671, 2007-Ohio-3583, ¶ 9; State v. Sells, Miami App. No. 2006 CA 27, 2007-Ohio-4213, ¶ 14. See, also, Section
{¶ 73} Judgment affirmed.
Walsh, P.J., and Powel