STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, - VS - LEXTER WILLIAMS, DEFENDANT-APPELLANT.
CASE NO. 11 MA 131
SEVENTH DISTRICT
December 26, 2012
[Cite as State v. Williams, 2012-Ohio-6277.]
Hon. Mary DeGenaro, Hon. Cheryl L. Waite, Hon. Gene Donofrio
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 09 CR 78. JUDGMENT: Conviction Affirmed. Sentence Vacated and Remanded for Resentencing.
For Plaintiff-Appellee: Attorney Paul J. Gains, Prosecuting Attorney, Attorney Ralph M. Rivera, Assistant Prosecuting Attorney, 21 W. Boardman St., 6th Floor, Youngstown, OH 44503
For Defendant-Appellant: Attorney Louis DeFabio, 4822 Market Street, Suite 220, Boardman, OH 44512
{1} Defendant-Appellant, Lexter Williams, appeals the decision of the Mahoning County Court of Common Pleas, denying his motion to withdraw his guilty plea and sentencing him accordingly. On appeal, he argues that the trial court abused its discretion in denying his pre-sentence motion to withdraw his plea and that the court failed to substantially comply with
{2} Upon review, Williams’ arguments are meritorious in part. The trial court did not abuse its discretion in denying his motion to withdraw his guilty plea. Further, the court did substantially comply with
Facts and Procedural History
{3} On January 29, 2009, the Mahoning County Grand Jury indicted Williams for multiple charges, including aggravated robbery, aggravated burglary, kidnapping, rape, having weapons under disability, and firearm specifications. On February 10, 2009, Williams was arraigned, pled not guilty, and was appointed counsel.
{4} At some point Williams filed a motion to dismiss the indictment and discharge the defendant based upon a speedy trial violation, but this motion does not appear on the trial court‘s docket. The State opposed this motion on July 9, 2009. On July 10, 2009, Williams waived his right to a speedy trial. Then on July 13, 2009, the trial court filed a judgment entry overruling Williams’ motion to dismiss.
{5} On October 22, 2009, the Mahoning County Grand Jury issued a
{6} On April 23, 2010 and June 17, 2010, Williams filed pro-se motions to revoke his speedy trial waiver.
{7} On October 28, 2010, Williams and the State entered into a
{8} The State further recommended that Williams’ bond be amended to a recognizance bond with the conditions of electronically monitored house arrest and that he report daily to the Community Corrections Association pending his sentencing. The guilty plea form indicated that the State‘s offer was expressly contingent on Williams abiding by the terms of EMHA and reporting to CCA. If he violated house arrest or committed any illegal activity, then the State‘s recommendation would be for the maximum sentence. At a plea hearing that same day, the court accepted Williams’ guilty
{9} On November 19, 2010, the trial court issued a judgment entry finding Williams was in violation of his bond based upon CCA‘s representations that Williams had failed to report on November 17 and 18, and according to his electronic monitoring equipment his current whereabouts were unknown. The trial court revoked his bond and issued a bench warrant for his arrest. Williams was later arrested in Philadelphia, Pennsylvania and brought back to Mahoning County.
{10} At the February 22, 2011 sentencing hearing the State recommended a maximum sentence because Williams violated the terms of his house arrest by absconding out of state. In response, the defense made an oral motion to withdraw Williams’ guilty plea, explaining Williams’ decision to plead guilty was due to family pressure and to get the matter resolved, but he now wanted the case to proceed to trial. After the State‘s response and parties finished their arguments, the trial court discussed the factors to be considered and then overruled Williams’ motion to withdraw his guilty plea.
{11} As to sentencing, defense counsel opposed the State‘s recommendation, arguing that Williams’ violation of his bond did not warrant the 13-year agreed-upon sentence to be increased to a maximum sentence. The court then allowed Williams to speak. Williams explained that part of the reason he wanted to withdraw his guilty plea was that he felt his speedy trial rights had been violated.
{12} The trial court then announced the following sentence at the hearing: eight years each on Counts One through Three, ten years each on Counts Four through Nine, 18 months on Count Ten, five years on Count Eleven, and the firearm specifications merged for a total of three years; all of the sentences were to run consecutive to each other and consecutive to the firearm specifications, for a total of 89.5 years. There was no discussion by counsel or the court relative to allied offenses and merger at the sentencing hearing. However, the trial court‘s August 8, 2011 judgment entry imposed
Guilty Plea
{13} For analysis purposes, Williams’ second of four assignments of error will be discussed first:
{14} “The trial court failed to substantially comply with
{15} Williams identifies two provisions the trial court failed to substantially comply with as required by
{16} The Due Process Clause in both the United States and Ohio Constitutions require that guilty or no contest pleas are knowing, intelligent, and voluntary. Parke v. Raley, 506 U.S. 20, 28-30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); State v. Buchanan, 43 Ohio App.2d 93, 96, 334 N.E.2d 503 (8th Dist.1974). When determining the voluntariness of a plea, courts must consider all of the relevant circumstances surrounding it. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Johnson, 7th Dist. No. 07-MA-8, 2008-Ohio-1065, 8. If the plea is not knowing, intelligent, and voluntary, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-6806, 11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
{17} In order for a trial court to ensure that a defendant‘s plea is knowing, voluntary and intelligent, it must engage the defendant in a colloquy pursuant to
{18} A trial court must strictly comply with
{19} Williams argues that the court failed to advise him of the maximum penalty because it incorrectly advised him of the cumulative total sentence he could serve. The Ohio Supreme Court has held that “[f]ailure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of
{20} The trial court informed Williams of the maximum penalty during the plea colloquy as follows:
Do you understand if I accept your plea, I can proceed immediately with judgment and sentence, and I could sentence you for three [to] ten years on each of the felony ones, for six [to] eighteen months on the felony four, and for one [to] five years on the felony three, consecutive to the three-year mandatory time for a total of 86 and a half years plus three years, I could fine you $145,000, that you‘re not eligible for community control as a result of this plea?
{22} Williams argues that the trial court incorrectly stated the total maximum sentence was 89.5 years, because the correct cumulative total sentence that Williams could receive was 99.5 years. Williams is correct that the trial court misstated the maximum cumulative potential sentence that could be imposed. The State argues that the trial court was considering the merger of Counts Four and Five in this calculation, which accounts for the differing totals, but the trial court did not discuss merger during the plea hearing; thus we cannot make that presumption. See discussion below starting at 57 and 71. However, the trial court correctly advised Williams of the sentence range he could receive for each charge. See
{23} Pursuant to Johnson, the trial court was required to explain the maximum sentence for each charge to which Williams was pleading, which the court did. Id., 40 Ohio St.3d 130, at 133-134. Thus, the trial court substantially complied with the requirement to explain the maximum penalty involved under
{24} Next, Williams contends that the trial court failed to explain the nature of the charges or the elements contained in the charges to him.
{25} In Johnson, this court held the trial court complied with
Motion to Withdraw Guilty Plea
{26} In his first assignment of error, Williams argues:
{27} “The trial court erred in overruling the appellant‘s pre-sentence motion to withdraw his plea of guilty.”
{28} Pursuant to
{29} This court has previously stated that “[s]ome of the factors that are weighed
{30} “The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.” Xie at paragraph two of the syllabus. The trial court abuses that discretion when its ruling is “unreasonable, arbitrary or unconscionable,” which is “more than an error of judgment.” Id. at 527.
{31} Upon consideration of the nine factors in Cuthbertson, the trial court‘s decision to deny Williams’ motion to withdraw his guilty plea was not an abuse of discretion. First, the State concedes that it did not argue or present evidence that it would be prejudiced by the withdrawal of Williams’ guilty plea. However, as the State notes, “although prejudice to the state has been called an important factor, it is not dispositive, and a lack of articulated prejudice does not require plea withdrawal.” State v. Scott, 7th Dist. No. 08 MA 12, 2008-Ohio-5043, 16.
{32} Second, Williams argues that he did not receive reasonable representation because his trial counsel failed to seek dismissal of the charges for speedy trial violations, although he did not go so far as to assign as error ineffective assistance of trial counsel on appeal. Williams initially signed a written waiver of his speedy trial rights but later filed pro-se motions to revoke his speedy trial waiver and demand a jury trial. “Following an express, written waiver of unlimited duration by an accused of his right to a speedy trial, the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state
{33} Because Williams’ July 10, 2009 speedy trial waiver did not contain a beginning or ending date, the waiver was unlimited in duration and effective from the date of arrest. State v. Skorvanek, 9th Dist. No. 08CA009399, 2009-Ohio-3924, 13. This waiver extended to the superceding indictment because it did not change the nature of the offenses or add any additional charges. State v. Clark, 7th Dist. No. 04 MA 246, 2006-Ohio-1155, 16-20. Williams then filed his first motion to revoke his speedy trial waiver on April 23, 2010 and he entered his guilty plea on October 28, 2010; thus, 188 days elapsed before the guilty plea. Before Williams executed his waiver, the trial court had set the trial for July 19, 2010 by agreement of the parties. Williams concedes in his brief that the July 19, 2010 trial date would have constituted a reasonable amount of time.
{34} On July 19, 2010, defense counsel filed a motion to continue, which the trial court subsequently granted and by agreement of the parties, reset the trial for September 7, 2010. Williams contends that it was unreasonable for his counsel to move for a continuance; however, the continuance was made for purposes of trial preparation because the co-defendant had since given a statement against Williams. Because this continuance was granted on the accused‘s motion, it would toll the speedy trial time. State v. Brown, 7th Dist. No. 03-MA-32, 2005-Ohio-2939, 41, citing
{35} On August 12, 2010, the trial court issued a judgment entry continuing the trial date because no jury had been summoned yet for the September 7 trial date. The court stated that upon agreement of the parties, the trial was reset to November 1, 2010, which was the first available date on the court‘s docket and on counsels’ calendars.
{36} Assuming arguendo that this continuance for failure to summon jurors was unreasonable, and there could be instances where it would be reasonable, 77 days would have expired on the speedy trial clock between August 12, 2010 and October 28, 2010 when Williams entered his guilty plea. Thus, we must next determine whether this was a reasonable amount of time by applying a balancing test with the following factors: the length of the delay, the reason for the delay, the defendant‘s assertion of his right, and prejudice to the defendant. O‘Brien at 10, citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Howard, 7th Dist. 06-MA-31, 2007-Ohio-3170, 25.
{37} “The initial consideration is that of the specific delay occasioned by the state. ‘Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.‘” O‘Brien at 10, quoting Barker at 530. “Courts have generally found that a delay approaching one year becomes ‘presumptively prejudicial.‘” State v. Madden, 10th Dist. No. 04AP-1228, 2005-Ohio-4281, 53, citing Doggett v. United States, 505 U.S. 647, 652, fn. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Here, 188 days, 77 of which were attributable to the State, elapsed between Williams’ revocation of his speedy trial waiver and his guilty plea entered shortly before the scheduled trial date. This delay was reasonable and not presumptively prejudicial. See Madden at 53 (five month delay was not presumptively prejudicial); State v. Webb, 4th Dist. No. 01CA32, 2002-Ohio-3552, 26 (186 day delay was not presumptively prejudicial). Because Williams’ speedy trial rights were not violated, defense counsel‘s failure to seek dismissal of the charges on these grounds was not unreasonable representation.
{38} Williams also alleges that defense counsel‘s representation was unreasonable because Williams claims that he was not informed that upon entering his
{39} “The court is not obligated to inform the defendant of anything beyond what is required by
{40} Third, Williams argues that the
{41} Fourth, Williams argues that the trial court did not conduct an extensive hearing on his motion to withdraw his guilty plea. He notes that the court did not allow a continuance for defense counsel to confer with Williams and prepare a motion to withdraw. During the sentencing hearing, defense counsel indicated that he was not prepared to proceed with the oral motion to withdraw because he felt that it should be written and supported by caselaw and an affidavit from Williams explaining his basis for withdrawing his plea. However, defense counsel then explained that Williams entered his guilty plea due to family pressure and that he now desired his case go to trial. The trial court indicated that it was familiar with the applicable caselaw and that it believed that the hearing was extensive enough to consider the oral motion. Williams also notes that the court did not question him until after it had already ruled on his motion to withdraw. While defense counsel did make an argument on Williams’ behalf during the hearing on the motion to withdraw, counsel did not explain that Williams was confused about his speedy trial rights and that he felt those rights had been violated. Thus, the hearing was not as extensive as it could have been had the trial court allowed Williams to testify, and this argument has some merit.
{42} Fifth, Williams argues that the trial court did not give full and fair consideration to his motion because he claims that the court made erroneous findings in assessing the factors, which he claims support withdrawal of the plea. To the contrary, the trial court gave full and fair consideration to the motion; it indicated that it was familiar with the caselaw and mentioned that it had at least eight factors to consider. The trial court also discussed many of the factors on the record and made appropriate findings.
{43} Sixth, as to the timing of Williams’ motion, he made his oral motion to withdraw his guilty plea during the sentencing hearing, approximately four months after he pled guilty. However, during the sentencing hearing, defense counsel noted that the
{44} Seventh, as to Williams’ reasons for seeking withdrawal of his plea, defense counsel indicated that Williams entered the plea due to family pressure to get the matter resolved and he wanted the matter to proceed to trial. However, these reasons amount to a change of heart, which this court has held does not constitute grounds to grant a motion to withdraw a plea. State v. Kramer, 7th Dist. No. 01-C.A.-107, 2002-Ohio-4176, 50.
{45} After the trial court had ruled on his motion to withdraw his guilty plea, Williams further indicated during the sentencing portion of the hearing that he was not advised that his guilty plea would waive speedy trial issues for appeal and that he believed his speedy trial rights had been violated. However, as discussed above, Williams signed a speedy trial waiver, which was effective until he filed a pro-se motion to revoke that waiver and demand a jury trial. Williams is not arguing that this waiver was not knowingly or voluntarily made. Further, Williams’ speedy trial rights were not violated in regards to the delay between the revocation of his waiver and his guilty plea.
{46} However, Williams was confused regarding the effect of his guilty plea and he did express this confusion during the sentencing hearing as a reason for plea withdrawal. He also notes that the trial court informed him at the sentencing hearing that he would still be able to appeal the trial court‘s ruling on his motion to dismiss for a speedy trial violation. However, as discussed above, Williams’ speedy trial waiver was effective from the date of his arrest, and thus, he would be precluded from appealing the trial court‘s denial of his motion to dismiss. Accordingly, while Williams’ speedy trial argument is meritless, his confusion over his appellate rights with regards to speedy trial may be a factor in favor of granting the motion to withdraw.
{47} Eighth, Williams entered his plea with an understanding of the nature of the
{48} Ninth, Williams did not profess innocence of his crimes. He stated during the sentencing hearing that he wanted to go to trial, but this does not equate with a claim of innocence. Nor was there any indication that Williams had a complete defense to his charge. To the contrary, the State explained during the sentencing hearing that three co-defendants had given proffers and had made an agreement to testify against Williams.
{49} Upon consideration of all of the facts and circumstances in this case, the trial court did not abuse its discretion in overruling Williams’ motion to withdraw his guilty plea. Certain factors weighed in his favor, such as the lack of prejudice to the State, the fact that the trial court found the timing of the motion was acceptable, the fact that the trial court did not question Williams until after it had already denied his motion, and Williams’ confusion over his ability to appeal a speedy trial violation. However, other factors weighed strongly against granting the motion. Importantly, Williams’ basis for the motion amounted to a change of heart and a meritless speedy trial argument. For these reasons, the trial court did not abuse its discretion, and Williams’ first assignment of error is meritless.
Inconsistent Sentences
{50} In his third assignment of error, Williams argues:
{51} “Given the differences in the sentence pronounced in open court and that imposed by the trial court in its sentencing entry, along with conflicting sentences imposed in said entry, the trial court‘s sentence violated
{52} Williams argues that the trial court violated
{53} ”
{54}
{55} During the sentencing hearing, the court announced that Williams’ sentence was eight years each on Counts One through Three, ten years each on Counts Four through Nine, 18 months on Count Ten, five years on Count Eleven, and the firearm specifications merged for a total of three years, with all sentences to run consecutively. The trial court did not announce the total sentence but adding up these terms, it appears that the trial court sentenced Williams to 93.5 years. However, in the sentencing entry, the trial court imposed ten years each on Counts One through Nine, 18 months on Count Ten, and five years on Count Eleven. The trial court next found that the sentences imposed on Counts Four and Five merged and that the firearm specifications merged for a total of three years. The trial court ordered that all of the sentences were to be served consecutively for a total sentence of 83.5 years. However, when adding up the specific terms in the sentencing entry, they total 89.5 years.
{56} We do not agree with the State that the trial court‘s inconsistent sentences for Counts One through Three are the result of a clerical error. The difference in imposing eight years on each count versus imposing ten years is a substantive change, not an error arising from oversight as contemplated by
{57} The trial court also merged Counts Four and Five in the sentencing entry but did not do so at the hearing. While the court may have intended to merge these counts originally, this action was omitted at the hearing. A nunc pro tunc order cannot be used to reflect what the trial court intended to decide. State v. Marks, 7th Dist. No. 868, 2002-Ohio-6267, 28. As the State notes, the merged sentences result in a reduced sentence and thus benefit Williams. Nonetheless, Williams has challenged this lower sentence on appeal. Other appellate districts have held that when a sentence imposed in the sentencing entry varies from the sentence announced at the hearing, this error is reversible even when the sentencing entry reduces or does not increase the sentence. See State v. Zelinko, 6th Dist. No. L-05-1345, 2006-Ohio-5106, 6-7; State v. Hill, 5th Dist. No. 98CA67, 2002-Ohio-227, *10.
{58} Thus, the trial court erred in modifying the sentence imposed at the hearing outside of Williams’ presence and the sentence is reversed and remanded for resentencing. Accordingly, the third assignment of error is meritorious.
Sentence Review
{59} Williams argues in his fourth assignment of error:
{60} “The trial court‘s sentence was contrary to law and/or constituted an abuse of discretion.”
{61} When reviewing a felony sentence, an appellate court first reviews the sentence to ensure that the sentencing court clearly and convincingly complied with the applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, 4. A trial court‘s sentence would be contrary to law if, for example, it were outside the statutory range, in contravention to a statute, or decided pursuant to an unconstitutional statute. Id. at 15. If this inquiry is satisfied, an appellate court then reviews the trial court‘s sentencing decision for abuse of discretion. Id. at 17, 19-20. An abuse of discretion means more than an error of law or judgment; but rather implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{62} At the outset, Williams requests that this court remand this matter for
{63} As to the first Kalish factor, the sentences Williams received were within the applicable statutory ranges.
{64} However, while neither party raised this issue, the trial court did not properly advise Williams regarding post-release control and this court raises that error sua sponte. See State v. Perkins, 3d Dist. Nos. 13-10-50, 13-10-51, 2011-Ohio-3129, 19.
{65}
{66} At the plea hearing, the trial court properly advised Williams that he would be subject to a mandatory period of five years of post-release control and of the consequences for violating the conditions of post-release control.
{67} This court recently explained that for defendants sentenced after July 11, 2006, when the trial court fails to correctly notify the defendant of post-release control at the sentencing hearing, the error cannot be corrected through only a nunc pro tunc entry and the proper remedy is resentencing under
{68} As to the second Kalish factor, Williams mainly argues that his sentence was an abuse of discretion because the trial court inappropriately relied on his failure to appear for his original sentencing hearing in determining his sentence. At the sentencing hearing, the trial court stated:
The court has read the record, the oral statements made, and the principles and purposes of sentencing under Ohio Revised Code 2929.11, and has balanced the seriousness and recidivism factors under Ohio Revised Code 2929.12. * * * Based on [Williams’ guilty plea], the defendant is not amenable to community control, and prison is consistent with the purposes of sentencing. Furthermore, to quote from the plea agreement that was read to the defendant, signed by the defendant, the state‘s offer of 13 years was expressly contingent on defendant abiding by the terms of the electronically monitored house arrest and day reporting to Community Corrections Association. If defendant violates house arrest or laws of the state of Ohio or engages in any illegal activity, the state‘s recommendation would be for the maximum sentence. Once again, that is just the state‘s recommendation.
{70} Williams further notes that the trial court did not use a presentence investigation report when sentencing him and no victims testified at the sentencing hearing. Williams waived a PSI at the plea hearing because of the agreed-upon sentence and he did not request the court order a PSI before the sentencing hearing.
{71} Williams also argues that the trial court failed to consider whether certain offenses were allied offenses of similar import that should merge for the purposes of sentencing. Although the trial court did merge Counts Four and Five in the sentencing entry, and after it had imposed a sentence for each count, it did not discuss any merger analysis on the record at either the sentencing hearing or in the entry. Because Williams did not raise this issue before the trial court, we will only review for plain error. “Plain error is one in which but for the error, the outcome of the trial would have been different.” State v. Hancock, 7th Dist. No. 09-JE-30, 2010-Ohio-4854, 55, citing State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). The Ohio Supreme Court has recognized that the “imposition of multiple sentences for allied offenses of similar import is plain error.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, 31.
{72} The question of whether the two convictions should merge is governed by
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{73} The Ohio Supreme Court recently addressed merger in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which contained a plurality
{74} Williams contends that Counts Six, Seven, and Eight (kidnapping) were allied offenses with Counts One, Two and Three (aggravated robbery). Further, he argues Count Nine (kidnapping) was an allied offense with Count Ten (gross sexual imposition). He notes that the indictment reveals that all of the charged crimes occurred on the same date and that two of the counts of kidnapping, Counts Eight and Nine, involve the same victim. Further, he notes that Count Nine states that Williams removed the victim from the place she was found, or restrained her liberty, with the purpose to engage in sexual activity against her will.
{75} The bill of particulars states in Counts One, Two and Three that Williams used a gun to gain entry to a residence and while pointing the gun, ordered the three occupants to the floor and demanded money. Williams took money and other items from the occupants. In Count Six, Williams ordered one victim to lay on the ground in the living room and held him at gunpoint. In Count Seven, Williams approached the second victim in the kitchen with a gun, dragged him into the living room and held him at gunpoint. In Count Eight, Williams held the third victim at gunpoint in the living room and then he took her into the basement and sexually assaulted her. Counts Nine and Ten state that Williams took the third victim at gunpoint into the basement and made her kiss him, attempted anal penetration, and vaginally penetrated her.
{76} Upon review, it appears that these offenses may be allied offenses as Williams contends, but the record is very limited, especially regarding evidence of animus, thereby inhibiting our ability to review for plain error as to whether or not any of these offenses do merge as a matter of law. The Second District held that when the record suggests that multiple offenses may be allied offenses but is inconclusive, the trial court commits plain error when it does not conduct the necessary inquiry into whether these
{77} Finally, Williams argues that the trial court abused its discretion because his sentence was disproportionate to that received by other similar offenders. He argues that the trial court violated
{78} Upon review of the totality of the circumstances, Williams’ sentence was reasonable. Although the court relied heavily on the fact that Williams violated his bond and failed to appear for sentencing, this was an appropriate factor for the court to consider and could indicate a high likelihood of recidivism. However, the trial court failed to properly consider whether any of the counts, aside from Counts Four and Five, were allied offenses and should merge for the purposes of sentencing. The trial court‘s failure to perform this inquiry at the sentencing hearing was plain error. Thus, this matter is remanded for resentencing under
Conclusion
{79} Williams’ arguments are meritorious in part. The trial court did not abuse its discretion in denying his pre-sentence motion to withdraw his guilty plea. Further, the court did substantially comply with
Waite, P.J., concurs.
Donofrio, J., concurs.