State v. Bembry , 2014 Ohio 5498 ( 2014 )


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  • [Cite as State v. Bembry, 2014-Ohio-5498.]
    STATE OF OHIO, COLUMBIANA COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    STATE OF OHIO,                               )
    )    CASE NO.     
    13 CO 33
            PLAINTIFF-APPELLEE,                  )
    )
    VS.                                          )    OPINION
    )
    ROBERT BEMBRY,                               )
    )
    DEFENDANT-APPELLANT.                 )
    CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
    Court, Case No. 12CR103.
    JUDGMENT:                                         Affirmed.
    APPEARANCES:
    For Plaintiff-Appellee:                           Attorney Robert Herron
    Prosecuting Attorney
    Attorney John Gamble
    Assistant Prosecuting Attorney
    105 South Market Street
    Lisbon, Ohio 44432
    For Defendant-Appellant:                          Attorney Richard Hura
    9 East Park Avenue
    Columbiana, Ohio 44408
    JUDGES:
    Hon. Joseph J. Vukovich
    Hon. Cheryl L. Waite
    Hon. Mary DeGenaro
    Dated: December 15, 2014
    [Cite as State v. Bembry, 2014-Ohio-5498.]
    VUKOVICH, J.
    {¶1}    Defendant-appellant Robert Bembry appeals from his convictions and
    sentences entered in the Columbiana County Common Pleas Court for two counts of
    burglary and one count of attempted safe cracking. Counsel for Bembry has filed a
    no-merit brief and has requested leave to withdraw. A review of the case file and brief
    reveals that there are no appealable issues. Accordingly, appointed counsel’s motion
    to withdraw is granted and the convictions and sentences are hereby affirmed in all
    respects.
    Statement of the Case
    {¶2}    On May 23, 2012, Bembry was indicted with two counts of burglary, each
    in violation of R.C. 2911.12(A)(1), second-degree felonies, and one count of attempted
    safe cracking in violation of R.C. 2911.31(A) and R.C. 2923.02(A), a fifth-degree
    felony. He pled not guilty by reason of insanity, but later withdrew his plea. 08/13/12
    Not Guilty by Reason of Insanity Plea; 08/20/12 J.E.
    {¶3}    Bembry and the state negotiated a plea agreement where the state
    would recommend an aggregate sentence of three years; it would recommend 3 years
    for each count of Burglary and 9 months for Attempted Safe Cracking, all to be served
    concurrently. 10/19/12 Felony Plea Agreement. The state also agreed to recommend
    that the court modify Bembry’s bond and that Bembry be released on his own
    recognizance with certain pretrial-release conditions. 10/18/12 Plea Tr. 4, 30. These
    pre-trial release conditions were the standard terms of probation and random drug
    testing. 10/18/12 Plea Tr. 30. This deal was also subject to a cooperation agreement
    under which Bembry would provide information on separate cases.
    {¶4}    Following a plea colloquy, the judge accepted Bembry’s guilty plea and
    modified bond.        10/18/12 Plea Tr. 28-32; 10/19/12 J.E.    Thereafter, Bembry was
    released on his own recognizance.
    {¶5}    However, within a day or two of his release, Bembry allegedly committed
    a nearly identical offense involving burglary and safe cracking. The state then moved
    to revoke his bond, which was granted. 11/15/12 J.E.
    -2-
    {¶6}   A sentencing hearing was held on June 27, 2013. At sentencing, the
    state argued that Bembry has “a prior criminal record that is not often seen”. The state
    urged that Bembry’s priors were serious offenses that are mostly comprised of
    burglary and theft crimes. The state alleged that the offenses were a product of a
    long-standing drug and alcohol addiction that Bembry has not addressed. The state
    pointed to the alleged crime Bembry committed after his release as evidence that he
    has shown no inclination to change his behavior.
    {¶7}   Due to the fact that Bembry violated the terms of his release, the state
    did not recommend the three year sentence from the plea agreement. Rather, based
    on Bembry’s criminal record, the state urged that the only appropriate punishment
    would be long-term imprisonment. It recommended 6 years on the first Burglary count,
    4 years on the second Burglary count, and 12 months on the Attempted Safe Cracking
    count. The state recommended that the two Burglary counts be served consecutively
    and the Attempted Safe Cracking be served concurrently to the Burglary sentences for
    an aggregate 10 years sentence.
    {¶8}   The defense asked the court to abide by the plea agreement and
    sentence Bembry to 3 years. The defense also urged that the instant offense was
    non-violent and no items were actually removed from the store he burglarized.
    {¶9}   Bembry spoke at sentencing and requested leniency from the judge.
    Bembry admitted that he had a long-standing drug and alcohol problem that fueled his
    criminal activities. He asked the court for drug treatment with his sentence.
    {¶10} The judge explained that even though he believed that Bembry’s
    remorse was genuine, he could not overlook his lengthy record. Accordingly, the
    judge sentenced Bembry to an aggregate sentence of 10 years. He received a 5 year
    sentence for each burglary conviction, which were ordered to be served consecutively
    to each other.    For attempted safe cracking, he was sentenced to a 12 month
    sentence, which was ordered to be served concurrent to the burglary sentences.
    {¶11} Bembry filed a timely motion to appeal.         After reviewing the record,
    appointed counsel filed a no merit brief asking to withdraw because there are allegedly
    no appealable issues.
    -3-
    Analysis
    {¶12} When appellate counsel seeks to withdraw and discloses that there are
    no meritorious arguments for appeal, the filing is known as a no merit brief or an
    Anders brief. Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    (1967). In this district,
    it has also been called a Toney brief. State v. Toney, 
    23 Ohio App. 2d 203
    , 
    262 N.E.2d 419
    (7th Dist.1970).
    {¶13} In Toney, this court set forth the procedure to be used when counsel of
    record determines that an indigent's appeal is frivolous:
    3. Where court-appointed counsel, with long and extensive experience in
    criminal practice, concludes that the indigent's appeal is frivolous and
    that there is no assignment of error which could be arguably supported
    on appeal, he should so advise the appointing court by brief and request
    that he be permitted to withdraw as counsel of record.
    4. Court-appointed counsel's conclusions and motion to withdraw as
    counsel of record should be transmitted forthwith to the indigent, and the
    indigent should be granted time to raise any points that he chooses, pro
    se.
    5. It is the duty of the Court of Appeals to fully examine the proceedings
    in the trial court, the brief of appointed counsel, the arguments pro se of
    the indigent, and then determine whether or not the appeal is wholly
    frivolous.
    ***
    7. Where the Court of Appeals determines that an indigent's appeal is
    wholly frivolous, the motion of court-appointed counsel to withdraw as
    counsel of record should be allowed, and the judgment of the trial court
    should be affirmed.
    
    Id. at syllabus.
           {¶14} The no merit brief was filed by counsel on February 24, 2014. On May 5,
    2014, this court informed Bembry of counsel's no merit brief and granted him 30 days
    to file his own written brief. Bembry did not file a brief. Thus, our analysis will proceed
    with an independent examination of the record to determine if the appeal is frivolous.
    -4-
    Our review will address whether the plea was entered knowingly, intelligently, and
    voluntarily, whether the state breached the plea agreement, and whether the sentence
    complies with the law.
    Plea
    {¶15} Crim.R. 11(C) provides that a trial court must make certain advisements
    prior to accepting a defendant's guilty plea to ensure that the plea is entered into
    knowingly, intelligently and voluntarily. These advisements are typically divided into
    constitutional rights and nonconstitutional rights.
    {¶16} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses
    against him; 3) the compulsory process for obtaining witnesses in his favor; 4) that the
    state must prove the defendant's guilt beyond a reasonable doubt at trial, and 5) that
    the defendant cannot be compelled to testify against himself. Crim.R. 11(C)(2)(c);
    State v. Veney, 
    120 Ohio St. 3d 176
    , 2008–Ohio–5200, 
    897 N.E.2d 621
    , ¶ 19–21. The
    trial court must strictly comply with these requirements; if it fails to strictly comply, the
    defendant's plea is invalid. Veney at ¶ 31; State v. Ballard, 
    66 Ohio St. 2d 473
    , 477,
    
    423 N.E.2d 115
    (1981).
    {¶17} The nonconstitutional rights that the defendant must be informed of are:
    1) the nature of the charges; 2) the maximum penalty involved, which includes, if
    applicable, an advisement on postrelease control; 3) if applicable, that the defendant is
    not eligible for probation or the imposition of community control sanctions, and 4) that
    after entering a guilty plea or a no contest plea, the court may proceed directly to
    judgment and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10–13; State v. Sarkozy,
    
    117 Ohio St. 3d 86
    , 2008–Ohio–509, 
    423 N.E.2d 1224
    , ¶ 19–26, (postrelease control is
    a nonconstitutional advisement). For the nonconstitutional rights, the trial court must
    substantially comply with Crim.R. 11's mandates. State v. Nero, 
    56 Ohio St. 3d 106
    ,
    108, 
    564 N.E.2d 474
    (1990). “Substantial compliance means that under the totality of
    the circumstances the defendant subjectively understands the implications of his plea
    and the rights he is waiving.” Veney at ¶ 15, quoting Nero at 108. Furthermore, a
    defendant who challenges his guilty plea on the basis that the advisement for the
    nonconstitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must
    -5-
    also show a prejudicial effect, meaning the plea would not have been otherwise
    entered. Veney at ¶ 15, citing Nero at 108.
    {¶18} The trial court's advisement on the constitutional rights strictly complied
    with Crim.R. 11(C)(2)(c). Bembry was informed and indicated that he understood that
    by pleading guilty he was waiving his right to a jury trial, his right to confront witnesses
    against him, his right to subpoena witnesses in his favor and his right to have the state
    prove beyond a reasonable doubt every element of the indicted offenses. 10/18/12
    Plea Tr. 22-25. He was also informed and stated he understood that if he went to trial
    he could not be compelled to testify against himself. 10/18/14 Plea Tr. 23.
    {¶19} As to the nonconstitutional rights, Bembry was advised that he was
    charged with burglary and attempted safe cracking and was informed of the elements
    of those offenses. 10/18/14 Plea Tr. 15-17, 26-28. He was informed of the minimum
    and maximum penalty involved for the offenses, including fines. 10/18/14 Plea Tr. 19.
    He was also advised of postrelease control. 10/18/14 Plea Tr. 21-22.
    {¶20} The only right for which there was arguably a defect was the trial court’s
    failure to advise Bembry that it could proceed immediately to sentencing. However,
    this oversight does not affect the validity of the plea. It is clear from the agreement
    with the state, and from the transcript, that the court would not immediately proceed to
    sentencing. The state agreed that the bond could be modified so that Bembry would
    be released on bond until sentencing and the trial court did in fact modify bond.
    Therefore, since the trial court did not proceed directly to sentencing there was no
    prejudicial effect from the trial court’s failure to advise Bembry that it could proceed
    directly to sentencing if the plea was accepted.
    {¶21} Consequently, for the above reasons, there are no appealable issues
    concerning the plea. The record confirms that the plea was intelligently, voluntarily,
    and knowingly entered.
    Compliance with the Plea Agreement
    {¶22} Here, the state did not abide by the terms of the plea agreement. It has
    been explained that when a defendant enters a guilty plea in exchange for the
    prosecutor’s promise to recommend a certain sentence, there is an implied condition
    that the circumstances surrounding the bargain will remain substantially the same; a
    -6-
    substantial change in the circumstances is sufficient to relieve the state of its
    obligation. State v. Hill, 10th Dist. No. 12AP-463, 2013-Ohio-674, ¶ 20 (probation
    recommendation), citing State v. Pascall, 
    49 Ohio App. 2d 18
    (9th Dist.1972); State v.
    Cox, 11th Dist. No. 92-T-4753 (Dec. 10. 1993); State v. Calderon, 2nd Dist. No. CA
    15250 (Nov. 29, 1995); State v. Grier, 3rd Dist. No. 3-10-09, 2011-Ohio-902. A breach
    of the plea agreement by the defendant will relieve the prosecution of any obligation
    under the agreement. State v. Payton, 6th Dist. No. E-09-070, E-09-071, 2010-Ohio-
    5178, ¶ 11.
    {¶23} The trial court has sole discretion in determining whether a plea
    agreement has been breached. State v. Willis, 6th Dist. No. E-05-026, 2005-Ohio-
    7002, ¶ 9, citing State v. McCartney, 12th Dist. No. CA2005-03-008, 2005-Ohio-5627,
    State v. Matthews, 
    9 Ohio App. 3d 145
    , 146 (10th Dist.1982). See also Payton, 6th
    Dist. No. E-09-070 (Need not advise defendant that failure to appear at sentencing
    results in a breach of the plea agreement.) The court must examine the nature of the
    state’s promise and the language used by the state in the plea agreement in order to
    determine whether the state actually breached the plea agreement. State v. Namack,
    7th Dist. No. 01BA46, 2002-Ohio-5187, ¶ 28, citing State v. Hess, 4th Dist. No. 515,
    (Dec. 24, 1991), at 9.
    {¶24} The record reveals that as part of the plea agreement, Bembry entered in
    a cooperation agreement with the state; the written plea agreement specifies that
    “[t]his agreement is subject to a separate agreement executed by the Defendant and
    the state of Ohio this same date.” The fact that he was arrested within a day or two of
    his release, he was not able to complete his end of the cooperation agreement. Thus,
    Bembry breached the agreement.
    {¶25} Moreover, in addition to breaching the cooperation agreement, the
    written plea agreement also contained bond conditions.           Specifically, the plea
    agreement stated that the defendant would cooperate with bond requirements. The
    condition listed within the recognizance form in relevant part provided that “[d]efendant
    shall report to the CCAPD [Columbiana County Adult Probation Department] as
    ordered by that department, obey all rules and regulations of the CCAPD.” (Emphasis
    added.)
    -7-
    {¶26} Appellant’s Notification of Hearing and Violations generally alleged that
    he committed the following bond violation: “[o]bey all laws, all Court orders, and be of
    general good behavior and shall be at all times a responsible law abiding citizen.” The
    notification specifically stated the following accusation: “Defendant was arrested and
    jailed in Columbiana County Jail for theft/burglary following a reported safe burglary on
    or about 10/23/2012 at the Guilford Grille.”
    {¶27} Thus, Bembry’s violation of the bond condition also relieved the state of
    its obligation to recommend 3 years under the plea agreement. Bembry agreed to
    cooperate with the conditions of his bail, which required him to “obey all rules and
    regulations of the CCAPD.”          Similar to the earlier analysis, the sentence
    recommendation and release on recognizance was conditioned on Bembry meeting
    specific conditions. Bembry admitted that he violated the conditions at the sentencing
    hearing.
    {¶28} Consequently, the state was relieved of its obligation under the plea
    agreement and there are no appealable issues concerning the plea agreement.
    Sentencing
    {¶29} We review felony sentences using both the clearly and convincingly
    contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist.
    No. 08MA101, 2009–Ohio–695, ¶ 8; State v. Gray, 7th Dist. No. 07MA156, 2008–
    Ohio–6591, ¶ 17. We first determine whether the sentencing court complied with all
    applicable rules and statutes in imposing the sentence to determine whether the
    sentence is clearly and convincingly contrary to law. Gratz at ¶ 8, citing State v.
    Kalish, 
    120 Ohio St. 3d 23
    , 2008–Ohio–4912, 
    896 N.E.2d 124
    , ¶ 13–14. Then, if it is
    not clearly and convincingly contrary to law, we must determine whether the
    sentencing court abused its discretion in applying the factors in R.C. 2929.11, R.C.
    2929.12 and any other applicable statute. Gratz at ¶ 8, citing Kalish at ¶ 17.
    {¶30} Bembry pled guilty to burglary, a second-degree felony, and attempted
    safe cracking, a fifth-degree felony. The trial court sentenced him to 5 years for each
    of the burglary convictions and 12 months for the attempted safe cracking convictions.
    These sentences are within the applicable range. R.C. 292914(A)(2), (5) (sentencing
    range for a second-degree felony is two, three, four, five, six, seven or eight years;
    -8-
    sentencing range for a fifth-degree felony is a six, seven, eight, nine, ten, eleven or
    twelve months) month.
    {¶31} Furthermore, at the sentencing hearing and in the judgment entry, the
    trial court indicated that it considered both R.C. 2929.11, the purposes and principles
    of sentencing, and R.C. 2929.12, the seriousness and recidivism factors, when
    rendering the sentence. 06/27/13 Sentencing Tr. 17; 06/28/13 J.E. The trial court
    found that Bembry was remorseful, which is a factor that may indicate that recidivism
    is less likely. 06/27/13 Sentencing Tr. 17; R.C. 2929.12(E)(5). However, the trial court
    found that his remorsefulness was outweighed by his lengthy criminal record, which is
    a factor making recidivism more likely. R.C. 2929.12(D)(2). Bembry’s criminal record
    went back 20 years and contained more than 20 prior offenses. Thus, the trial court
    concluded that a lengthy prison term was needed. That determination was not an
    abuse of discretion given the record.
    {¶32} In addition to considering the purposes and principles of sentencing and
    the recidivism and seriousness factors, the trial court was also required to make the
    consecutive sentencing findings since it ordered the burglary sentences to be served
    consecutive to each other. The Ohio Supreme Court has recently explained that, “a
    trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the
    sentencing hearing and incorporate its findings into its sentencing entry, but it has no
    obligation to state reasons to support its findings. Nor is it required to give a talismanic
    incantation of the words of the statute, provided that the necessary findings can be
    found in the record and are incorporated into the sentencing entry.” State v. Bonnell,
    
    140 Ohio St. 3d 209
    , 2014-Ohio-3177, 
    16 N.E.3d 659
    , ¶ 37
    {¶33} Under R.C. 2929.14(C)(4)(a), when multiple prison terms are imposed
    for multiple offenses, the offender may be sentenced to consecutive prison terms “if
    the court finds that the consecutive sentence is necessary to protect the public from
    future crime or to punish the offender and that consecutive sentences are not
    disproportionate to the seriousness of the offender’s conduct and to the danger the
    offender poses to the public.” The court must also find one of three additional factors
    to apply.   Here, the pertinent factor would be “[t]he offender’s history of criminal
    -9-
    conduct demonstrates that consecutive sentences are necessary to protect the public
    from future crime by the offender.” R.C. 2929.14(C)(4)(c).
    {¶34} In the instant case, the judge made several findings on record. First, the
    judge found “that the offender’s history of criminal conduct demonstrates that
    consecutive sentences are necessary to protect the public from future crime by the
    offender.”   06/27/13 Sentencing Tr. 18; 06/28/13 J.E.         Further, he found that
    “consecutive sentences are necessary to protect the public from future crime, to
    punish the offender.” 06/27/13 Sentencing Tr. 18; 06/28/13 J.E. Additionally, he found
    that “consecutive sentences are not disproportionate to the seriousness of the
    offender’s conduct and to the danger that he poses to the public.”              06/27/13
    Sentencing Tr. 18-19; 06/28/13 J.E. Therefore, the trial court considered all relevant
    sentencing statutes in sentencing appellant to consecutive prison terms.
    {¶35} Considering all of the findings by the trial court, the sentence order is not
    clearly and convincingly contrary to law and the trial court did not abuse its discretion
    in ordering the sentence that it did. There are no appealable issues concerning the
    sentence imposed.
    Conclusion
    {¶36} For the foregoing reasons the judgment of the trial court is hereby
    affirmed. Counsel’s motion to withdraw is granted.
    Waite, J., concurs.
    DeGenaro, P.J., concurs.
    

Document Info

Docket Number: 13 CO 33

Citation Numbers: 2014 Ohio 5498

Judges: Vukovich

Filed Date: 12/15/2014

Precedential Status: Precedential

Modified Date: 12/16/2014