State v. Smith ( 2023 )

[Cite as State v. Smith, 2023-Ohio-598.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT2022-0041
GAGE L. SMITH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2022-0030
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 1, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH CHRIS BRIGDON
PROSECUTING ATTORNEY 8138 Somerset Road
JOHN CONNOR DEVER Thornville, Ohio 43076
ASSISTANT PROSECUTOR
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0041 2
Wise, J.
{¶1} Defendant-Appellant Gage L. Smith appeals his conviction and sentence
entered in the Muskingum County Court of Common Pleas on one count of identity fraud
of an elderly or disabled person, one count of theft of an elderly or disabled person, and
one count of possession of drugs, following a guilty plea.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} In February 2022, the State of Ohio charged Appellant Gage L. Smith
through a bill of information with three felonies: Count One: Identity Fraud of an Elderly
or Disabled Person, in violation of R.C. §2913.49(B)(1), a felony of the second degree;
Count Two: Theft from an Elderly or Disabled Person, in violation of R.C. §2913.02(A)(1),
a felony of the second degree; and Count Three: Possession of Drugs,
(Methamphetamine), in violation of R.C. §2925.11(A), a felony of the fifth degree. (Pl. Tr.
P. 3, 6).
{¶5} The matter came before the court, after Appellant's father, a disabled
person, was contacted by Bank of America regarding charge accounts that had been
opened in his name from December, 2017, through June, 2021. (Plea T. at 15). Through
an investigation, several cards were discovered in Douglas Smith's name (the father) with
Appellant’s billing address. The total amount between the three accounts discovered was
$46,846.51. (Plea T. at 16).
{¶6} Appellant pled guilty to the Bill of Information. (Plea T. at 6). During the
change-of-plea hearing, the trial court advised Appellant that the maximum penalty for
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Counts One and Two was 2 to 8 years in prison and an indefinite period maximum of 4
years. (Plea T. at 4). Next, the trial court informed Appellant that the maximum fine for
Count One was $15,000. Id. Then as to Count Two, also an F-2, the court read from the
plea agreement that the maximum potential fine was $50,000.00. Id. The trial court went
on to describe the plea agreement as a joint recommendation of four (4) years and eleven
(11) months in prison, and a restitution amount of $46,846.51. (Plea T. at 5). The
Appellant waived presentment of the case to the grand jury and waived the 24-hour time
requirement upon which the Appellant would have the right to answer said Bill. (Plea T.
at 6). Later, the trial court reiterated the charges within the counts and stated the
maximum potential fine in Count Two as $50,000. (Plea T. at 8). Appellant then entered
a plea of guilty as to all three counts. (Plea T. at 14-15).
{¶7} On April 4, 2022, a sentencing hearing was held wherein the trial court
sentenced Appellant as follows: Count One: a stated minimum prison term of six (6) years;
an indefinite prison term of nine (9) years; Count Two: a stated prison term of six (6)
years; Count Three: a stated prison term of twelve (12) months. The trial court ordered
the terms of incarceration imposed to be served concurrently with one another for an
aggregate minimum prison sentence of six (6) years and an indefinite prison sentence of
nine (9) years. The court also ordered restitution in the amount of $46,846.51 . The trial
court did not impose a fine on any of the Counts. (See Judgment Entry, April 7, 2022).
{¶8} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶9} “I. DID THE TRIAL COURT ERROR [SIC] WHEN ACCEPTING THE
APPELLANT'S PLEA OF GUILTY AFTER INCORRECTLY STATING THE MAXIMUM
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PENALTY OF THE FINE IN CONTRADICTION OF R.C. §2929.18 AND THEREFORE IN
CONTRADICTION OF CRIM.R. 11(C)(2)(A) IN VIOLATION OF THE APPELLANT'S
RIGHT TO DUE PROCESS GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION?
{¶10} “II. DID THE TRIAL COURT ERROR [SIC] WHEN THE SENTENCE OF 6
YEARS (AND A RESERVE TERM OF INDEFINITE TIME) WAS DISPROPORTIONATE
TO THE CRIME COMMITTED WHEN CONSIDERING THE PRINCIPLES SET FORTH
IN R.C. §2929.11 AND THE FACTORS TO BE CONSIDERED IN R.C. §2929.12.”
I.
{¶11} In his first assignment of error, Appellant argues that the trial court erred in
accepting his guilty plea. We disagree.
{¶12} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶13} Crim.R. 11 governs rights upon plea. Subsection (C)(2) states the following:
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally either in-person or by
remote contemporaneous video in conformity with Crim.R. 43(A) and doing
all of the following:
Muskingum County, Case No. CT2022-0041 5
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(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 or her, 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 or herself.
{¶14} The standard for a trial court's Crim.R. 11 non-constitutional notifications
under (C)(2)(a) and (b) is substantial compliance; the standard for Crim.R. 11(C)(2)(c)
constitutional notifications is strict compliance. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621.
{¶15} 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. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with
these requirements, the defendant's plea is invalid. Id. at ¶ 31.
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{¶16} The non-constitutional 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 post-release 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 (post-release control is a non-constitutional
advisement).
{¶17} In State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), the
Supreme Court of Ohio explained the following:
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. Stewart [State v., 51 Ohio St.2d 86,
364 N.E.2d 1163 (1977)], supra; State v. Carter (1979), 60 Ohio St.2d 34,
38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445
U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789. Furthermore, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently,
and voluntarily made must show a prejudicial effect. Stewart, supra, 51 Ohio
St.2d at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is
whether the plea would have otherwise been made. Id.
{¶18} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo
standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d 474 (1990);
Muskingum County, Case No. CT2022-0041 7
State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶ 9; State v. Groves,
5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025, ¶ 7.
{¶19} The court can look to the totality of the record to determine whether that
defendant was meaningfully informed of the specific rights. State v. Ballard, 66 Ohio St.2d
473, 480-482, 423 N.E.2d 115 (1981).
{¶20} In the instant case, Appellant asserts the trial court failed to correctly advise
him of the maximum potential fine.
{¶21} Here at the plea hearing, the trial court initially advised Appellant the
maximum fine for Count Two was $15,000, but then when reviewing the plea form which
stated that the maximum fine was $50,000.
{¶22} Upon review, we find that R.C. §2913.02(B)(3) provides:
… If the victim of the offense is an elderly person, in addition to any other
penalty imposed for the offense, the offender shall be required to pay full restitution
to the victim and to pay a fine of up to fifty thousand dollars.
{¶23} Upon review, we conclude that in light of the foregoing analysis, the trial court
substantially complied with Crim.R. 11(C)(2)(a), and an additional analysis of prejudice is
unnecessary. Although clearly the prospect of a maximum fine of $15,000 as opposed to
$50,000 would be a factor weighing heavily in favor of a plea. Furthermore, no fine was
imposed by the trial court.
{¶24} Appellant’s first assignment of error is overruled.
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II.
{¶25} In his second assignment of error, Appellant argues that his sentence was
grossly disproportionate to his conduct and not in accordance with felony sentencing
guidelines. We disagree.
{¶26} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
Subsection (G)(2) sets forth this Court's standard of review as follows:
{¶27} (2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶28} The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The appellate court may take any
action authorized by this division if it clearly and convincingly finds either of the following:
{¶29} (a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶30} (b) That the sentence is otherwise contrary to law.
{¶31} “Clear and convincing evidence is that measure or degree of proof which
is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
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produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶32} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.’ ” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶33} Here, in addition to a fifth-degree drug possession charge, Appellant pled
guilty to R.C. §2913.49(B)(1) and R.C. §2913.02(A)(1), both second-degree felonies.
{¶34} Appellant herein does not argue his sentence is not within the permissible
statutory range. Rather, Appellant argues the trial court did not consider his lack of a prior
criminal history, his drug addiction problem, and the fact that he was remorseful. Appellant
also argues that the trial court did not follow the joint recommendation of 4 years and 11
months in prison.
{¶35} Initially, we note that the trial court advised Appellant at the plea hearing
that the “joint recommendation is not binding on this Court and, at sentencing, I do not
have to follow it.” (Plea T. at 13).
{¶36} A trial court is not bound by a jointly recommended sentence. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 28. A “recommended” sentence is just
as it sounds: “a nonbinding recommendation to the court, which the court is not required
to accept or comment on.” State v. Link, 5th Dist. Licking No. 21CA0059, 2022-Ohio-
Muskingum County, Case No. CT2022-0041 10
2067, 2022 WL 2188993, ¶ 54 quoting State v. Harvey, 8th Dist. Cuyahoga No. 107168,
2019-Ohio-715, 2019 WL 989892, ¶ 7. Trial courts may reject plea agreements and they
are not bound by a jointly-recommended sentence. State v. Link, 5th Dist. Licking No.
21CA0059, 2022-Ohio-2067, 2022 WL 2188993, ¶ 55 citing State v. Penrod, 5th Dist.
Licking No. 16-CA-83, 2017-Ohio-7732, ¶ 16, citing State ex rel. Duran v. Kelsey, 106
Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6. The decision to accept or reject a
plea bargain rests solely within the discretion of the trial court. State v. Jefferson, 5th Dist.
Delaware No. 11 CAA 04 0033, 2012-Ohio-148, ¶ 50, citing State v. Asberry, 173 Ohio
App.3d 443, 2007-Ohio-5436, 878 N.E.2d 1082. Hence, Appellant could not have relied
on any alleged recommended prison term by the prosecutor because a trial judge is not
required to follow such a recommendation.
{¶37} Here, the trial court stated in its sentencing entry that it “considered the
record, all statements, any victim impact statement, the plea recommendation in this
matter, as well as the principles and purposes of sentencing under Ohio Revised Code
§2929.11 and its balance of seriousness and recidivism factors under Ohio Revised Code
§2929.12.” (Sent. Entry at 1).
{¶38} A court imposing a felony sentence is required to consider the statutory
sentencing factors in R.C. §2929.11 and R.C. §2929.12, but “there is no requirement to
make specific findings or use specific language during the sentencing hearing.” State v.
Jackson, 11th Dist. Lake No. 2014-L-124, 2015-Ohio-2608, ¶ 21.
{¶39} Here the sentences imposed were within the statutory range, and there is
nothing in the record to suggest the trial court ignored the factors Appellant identifies on
appeal. “Simply because the trial court did not find the factors identified by Appellant to
Muskingum County, Case No. CT2022-0041 11
militate in favor of a less severe sentence does not imply the sentence is contrary to law.”
State v. Miller, 11th Dist. Lake No. 2018-L-133, 2019-Ohio-2290, ¶ 25.
{¶40} The court stated both at sentencing and in the sentencing entry that it
considered the R.C. §2929.12 factors, which is sufficient to demonstrate it did so.
Appellant's sentence was within the statutory range, and he does not point to anything in
the record showing the court ignored the sentencing factors.
{¶41} Upon review, we find Appellant has failed to show by clear and convincing
evidence that his sentence is not supported by the record, or that it is grossly
disproportionate to the crime such that it shocks the sense of justice in the community.
{¶42} Appellant’s second assignment of error is overruled.
{¶43} Accordingly, the judgment of the Muskingum County Court of Common
Pleas, Muskingum, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/kw 0224
Muskingum County, Case No. CT2022-0041 12