State v. Phillips ( 2012 )

[Cite as State v. Phillips, 2012-Ohio-4823.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98047
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GERALD K. PHILLIPS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-555033 and CR-555596
BEFORE: Keough, J., Cooney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: October 18, 2012
ATTORNEY FOR APPELLANT
David V. Patton
P.O. Box 39192
Solon, OH 44139-0192
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Holly Welsh
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Gerald K. Phillips (“Phillips”), appeals his convictions
and sentence. For the reasons that follow, we affirm.
{¶2} In October 2011, Phillips was indicted in two separate cases. In Case No.
CR-555033, he was charged with two third degree felonies — theft, in violation of R.C.
2913.02(A)(1), and intimidation of a crime victim or witness, in violation of R.C.
2921.04(B); and three first degree misdemeanors — theft, in violation of R.C. 2913.02,
aggravated menacing, in violation of R.C. 2903.21(A), and telecommunications
harassment, in violation of R.C. 2917.21(B).
{¶3} In Case No. CR-555596, Phillips was charged with one count of theft, in
violation of R.C. 2913.02(A)(1), a fourth degree felony, which contained a furthermore
clause indicating that the “victim of the offense is an elderly person or disabled adult and
the value of the property or services stolen is $500 or more and less than $5,000.”
{¶4} In January 2012, Phillips entered into a plea agreement whereby he agreed to
plead guilty in Case No. CR-555033 to theft, in violation of R.C. 2913.02, a first degree
misdemeanor, and to the fourth degree felony theft charge as indicted in Case No.
CR-555596. All other counts under the indictment in Case No. CR-555033 were nolled.
The trial court imposed a sentence of six months in Case No. CR-555033 to run
concurrent with a sentence of 18 months in Case No. CR-555596.
{¶5} Phillips now appeals, contending in his sole assignment of error that the “trial
court committed reversible error in finding that the theft of the ring was a fourth-degree
felony because there was insufficient evidence of the ring’s value to satisfy the
fourth-degree [sic] requirement.”
{¶6} In support of his argument, he relies on State v. Webb, 173 Ohio App.3d 547,
2007-Ohio-5670, 879 N.E.2d 254 (2d Dist.) and State v. Reese, 165 Ohio App.3d 21,
2005-Ohio-7075, 844 N.E.2d 873 (7th Dist.). However, we find these cases clearly
distinguishable. In Webb, the issue before the trial court related to the trial court’s award
of restitution and whether the evidence presented was sufficient to support the amount of
restitution ordered. In the case before this court, Phillips is not challenging the amount
of restitution awarded; he is challenging the value of the property stolen and whether the
value as stated by the prosecutor was sufficient to support the level of felony with which
he was charged and to which he ultimately agreed to plead.
{¶7} In Reese, the matter proceeded to trial, where the State had to establish the
value of the stolen property. The Reese court found that the State did not provide
sufficient evidence to prove the stolen property had a value greater than $500 to warrant
the felony conviction; thus the court reduced the conviction to a misdemeanor. Reese at
¶ 35-36. In this case, however, Phillips entered into a knowing, intelligent, and voluntary
plea agreement to plead guilty to a fourth degree felony and made no objection to the
ring’s value at the time of the plea. Accordingly, the holdings in Webb and Reese do not
lend support to Phillips’s argument.
{¶8} A plea of guilty is a complete admission of the defendant’s guilt. Crim.R.
11(B)(1). A counseled guilty plea voluntarily and knowingly given removes the issue of
factual guilt from the case. State v. Siders, 78 Ohio App.3d 699, 701, 605 N.E.2d 1283(11th Dist.1992), citing Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d
195 (1975); see also State v. Saunders, 8th Dist. No. 96643, 2012-Ohio-104, ¶ 5. This
court recently reiterated the effect of a guilty plea and subsequent actions taken on appeal
in State v. Lababidi, 8th Dist. No. 96755, 2012-Ohio-267, ¶ 17:
By entering a plea of guilty, the accused is not simply stating that he did the
discrete acts described in the indictment; he is admitting guilt of a
substantive crime. Therefore, [a] criminal defendant who pleads guilty is
limited on appeal; he may only attack the voluntary, knowing, and
intelligent nature of the plea * * *. (Internal citations omitted.)
{¶9} In this case, Phillips has not raised any argument on appeal that his plea was
not made knowingly, intelligently, or voluntarily. He agreed to plead guilty to two theft
offenses — a first degree misdemeanor and a fourth degree felony. During the plea
colloquy, the trial court thoroughly explained Phillips’s Crim.R. 11 rights, the offenses he
was pleading guilty to, and the penalties associated with each offense. The trial court
clearly stated that “[a] felony of the fourth degree has a potential for [sic] term of
incarceration in the State prison of 6 to 18 months in one-month increments * * * .”
Moreover, after Phillips entered his plea of guilty to the fourth degree felony theft
offense, the trial court asked:
Is it also in fact true between September 26, 2011, and September 27, 2011,
that you did, with the purpose to deprive the owner, Andrew J. Baran, of a
gold ring, or services, knowingly obtain or exert control over either the
property or services without the consent of the owner, or person authorized
to give consent, and furthermore, the victim of the offense was an elderly
person or disabled adult, and the value of the property or services stolen is
$500 or more, and less than $5,000? Is that true?
Phillips responded, “Yes, your Honor.”
{¶10} Accordingly, the record is clear that Phillips understood at all times during
the plea hearing that he was pleading guilty to a fourth degree felony. The actual value
of the ring has no bearing to the arguments raised in this appeal. The assignment of error
is overruled.
{¶11} 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 convictions 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.
KATHLEEN ANN KEOUGH, JUDGE
COLLEEN CONWAY COONEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR