State v. Robinson , 2022 Ohio 1311 ( 2022 )

[Cite as State v. Robinson, 2022-Ohio-1311.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110467
v. :
DAVID E. ROBINSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: April 21, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-643101-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon Radigan, Assistant Prosecuting
Attorney, for appellee.
David E. Robinson, pro se.
FRANK DANIEL CELEBREZZE, III, J.:
Defendant-appellant David Robinson brings this appeal challenging his
convictions and sentence for endangering children and obstructing official business.
Appellant’s appointed counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking leave to withdraw as counsel.
Appellant filed a pro se brief arguing that he was denied his
constitutional right to effective assistance of counsel, his guilty plea was not
knowingly, intelligently, and voluntarily entered, he was prejudiced by the
prosecution’s improper remarks at sentencing and misrepresentation of the
evidence, his speedy trial rights were violated, the trial court erred in ordering him
to pay restitution without considering his ability to pay, and the trial court erred in
imposing a five-year prison sentence. After a thorough review of the record and law,
this court grants counsel’s motion to withdraw. Furthermore, this court affirms the
trial court’s judgment and remands the matter to the trial court for the limited
purpose of issuing a nunc pro tunc sentencing journal entry correcting the amount
of restitution.
I. Factual and Procedural History
On August 12, 2019, officers from the Bedford Police Department
responded to the home of appellant and his wife and codefendant, Cherie Terrell.
Appellant and his wife were concerned that the wife’s children, N.T.1 (female) and
J.P.2 (male), were missing. They reported that they were unable to locate the
children after searching for approximately four hours.
Several law enforcement agencies assisted with the search for the
children. The following day, authorities were contacted by the children’s uncle,
1 D.O.B. August 2, 2009.
2 D.O.B. January 23, 2006.
Earnest Mack, who advised authorities that the children walked to his house, which
was approximately three miles away, barefoot, the previous night.
During the ensuing investigation, officers determined that appellant
and his wife had not been truthful about the circumstances under which the children
left the house on August 12, 2019. When appellant and his wife reported that the
children were missing, they did not mention the fact that the children had been
“disciplined” earlier in the day and kicked out of the house for going to Giant Eagle
without permission.
Appellant was arrested on August 13, 2019. During the course of the
investigation, officers learned about two additional incidents involving appellant’s
wife’s children. First, on May 15, 2018, appellant shaved the pubic regions of both
children. Appellant’s wife was not home at the time. In a subsequent interview,
appellant acknowledged that his finger may have went into N.T.’s vagina as he was
shaving. N.T. was approximately eight years old at the time of this incident. The
Cuyahoga County Division of Children and Family Services initiated an
investigation into the allegation, but the allegation was determined to be
“unsubstantiated.”
Second, in February 2019, appellant used an electrical cord to
“discipline” J.P. Appellant’s wife was present at the time and watched as appellant
whipped J.P. J.P. sustained scarring on his legs that was still observable when
Bedford police officers took photographs of J.P.’s injuries in August 2019.
On September 11, 2019, appellant and his wife were charged in a seven-
count indictment for their involvement in the May 2018, February 2019, and August
2019 incidents. Appellant was charged with five counts of endangering children
(one second-degree felony count, two third-degree felony counts, and two first-
degree misdemeanor counts), one third-degree felony count of gross sexual
imposition, and one fifth-degree felony count of obstructing official business.
Appellant pled not guilty to the indictment during his arraignment on September 16,
2019.
The parties negotiated a package plea agreement during pretrial
proceedings. On August 4, 2020, appellant pled guilty to endangering children, a
second-degree felony in violation of R.C. 2919.22(B)(1), as charged in Count 1,
subject to a definite prison term between 2 and 8 years; endangering children, a
third-degree felony in violation of R.C. 2919.22(B)(3), as charged in Count 3, subject
to a definite prison term between 9 and 36 months; and obstructing official business,
a fifth-degree felony in violation of R.C. 2921.31(A), as charged in Count 7, subject
to a definite prison term between 6 and 12 months. The remaining counts were
nolled. The trial court accepted appellant’s guilty plea.
As part of the plea agreement, appellant and his codefendant wife
agreed to pay restitution, jointly and severally, in the amount of $1,205.68 to the
police departments that responded to the missing children report.3
3
Maple Heights Police Department, Solon Police Department, Oakwood Police
Department, Walton Hills Police Department, Garfield Heights Police Department, and
Bedford Police Department.
The trial court ordered a presentence-investigation report (“PSI”) and
set the matter for sentencing. Both the defense and the state filed sentencing
memorandums.
The trial court held a sentencing hearing on September 3, 2020. The
trial court sentenced appellant to five years in prison on the second-degree felony
endangering children offense on Count 1 and 18 months in prison on the third-
degree felony endangering children offense on Count 3. The trial court ordered
Counts 1 and 3 to run concurrently with one another. The trial court sentenced
appellant to 60 months (or five years) of community control on the fifth-degree
felony obstruction offense on Count 7. The trial court ordered the community
control sentence on Count 7 to run concurrently with the concurrent five-year prison
sentence on Counts 1 and 3. The trial court ordered appellant to pay $1,205.58 in
restitution and court costs. The trial court’s sentencing journal entry was filed on
September 10, 2020.
On April 28, 2021, appellant, acting pro se, filed a notice of appeal,
affidavit of indigency, a motion for appointment of counsel, a motion for preparation
of the transcript at the state’s expense, and a motion for leave to file a delayed appeal.
On May 17, 2021, this court granted appellant’s motions for leave to file a delayed
appeal, appointment of counsel, and preparation of transcript at the state’s expense.
This court appointed counsel to represent appellant.
On August 30, 2021, appointed counsel filed a motion to withdraw
from the representation and a brief pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493. Therein, counsel presented the following three potential errors to
raise on appeal: (1) whether appellant’s guilty plea was voluntarily, knowingly, and
intelligently entered, (2) whether the trial court ordered appellant to pay restitution
without considering appellant’s ability to pay, and (3) whether the trial court erred
in sentencing appellant to a total of five years of incarceration. Counsel believed,
however, that no prejudicial error occurred in the trial court and that an appeal
would be frivolous.
On September 9, 2021, this court advised appellant that he could file a
pro se appellate brief on or before October 18, 2021. This court granted appellant
an extension on October 5, 2021, ordering appellant to file his pro se brief on or
before November 10, 2021.
Appellant filed a pro se brief on November 18, 2021. Because
appellant filed a pro se brief, this court grants counsel’s motion to withdraw. See
State v. Williams, 8th Dist. Cuyahoga No. 108724, 2020-Ohio-3802, ¶ 4. We will
proceed to adjudicate appellant’s assignments of error on the merits.
Appellant assigns six errors for review:
I. Ineffective Assistance of Counsel.
II. The trial court erred in ordering [appellant] to pay restitution
without considering his ability to pay $1,205.58.
III. The trial court erred in allowing the [p]rosecution to coerce
[appellant’s] guilty plea by threatening to re-indict on charges of [r]ape
which carries a potential [sentence of] life imprisonment.
IV. The trial court erred in allowing the [p]rosecution to mislead
evidence in [an] unsubstantiated Social Services case from 2018.
V. The trial court erred when it failed to recognize the violations of the
Constitutionally protected rights to a speedy trial pursuant to [A]rticle
I [S]ection X of the Constitution of the State of Ohio, The [Sixth]
Amendment of the United States Constitution, and [R.C.] 2945.71-73.
VI. The trial court erred in sentencing [appellant] to a total of five years
of incarceration.
For ease of discussion, appellant’s assignments of error will be
addressed out of order.
II. Law and Analysis
A. Guilty Plea
In his third assignment of error, appellant appears to argue that his
guilty plea was not knowingly, intelligently, or voluntarily entered.
Due process requires that a defendant’s plea be knowingly,
intelligently, and voluntarily entered; if the plea is not knowingly, intelligently, and
voluntarily entered, it is invalid. State v. Medina, 8th Dist. Cuyahoga No. 109693,
2021-Ohio-1727, ¶ 6, citing State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124
N.E.3d 766, ¶ 10, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 25; see also State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450(1996) (“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.”).
The purpose of Crim.R. 11(C) is to provide the defendant with relevant
information so that he or she can make a voluntary and intelligent decision whether
to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 480, 423 N.E.2d 115 (1981).
Before accepting a defendant’s guilty plea in a felony case, the trial court must
comply with Crim.R. 11(C) and “conduct an oral dialogue with the defendant to
determine that the plea is voluntary, and the defendant understands the nature of
the charges and the maximum penalty involved, and to personally inform the
defendant of the constitutional guarantees he [or she] is waiving by entering a guilty
plea.” State v. Martin, 8th Dist. Cuyahoga Nos. 92600 and 92601, 2010-Ohio-244,
¶ 5.
In State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d
286, the Supreme Court of Ohio recently clarified the standard for reviewing a trial
court’s compliance with Crim.R. 11. The Supreme Court of Ohio explained that the
focus in reviewing pleas is not “on whether the trial judge has ‘[incanted] the precise
verbiage’ of the rule, * * * but on whether the dialogue between the court and the
defendant demonstrates that the defendant understood the consequences of his
plea.” Id. at ¶ 12, quoting State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163(1977).
The Dangler Court reiterated that “[w]hen a criminal defendant seeks
to have his [or her] conviction reversed on appeal, the traditional rule is that he [or
she] must establish that an error occurred in the trial court proceedings and that he
[or she] was prejudiced by that error.” Id. at ¶ 13, citing State v. Perry, 101 Ohio
St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14-15; Stewart at 93, Crim.R. 52.
Properly understood, the questions to be answered are simply: (1) has
the trial court complied with the relevant provision of the rule? (2) if
the court has not complied fully with the rule, is the purported failure
of a type that excuses a defendant from the burden of demonstrating
prejudice? and (3) if a showing of prejudice is required, has the
defendant met that burden?
Dangler at ¶ 17.
“The test for prejudice is ‘whether the plea would have otherwise been
made.’” Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 32,
quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
In the instant matter, appellant appears to argue that the state coerced
his guilty plea by threatening to charge appellant with rape if he did not plead guilty.
Appellant’s argument is misplaced and unsupported by the record.
As an initial matter, this court has recognized that a prosecutor is
permitted to use the possibility of reindictment on more serious charges as an
inducement in plea bargaining. State v. Tolliver, 8th Dist. Cuyahoga No. 108955,
2020-Ohio-3121, ¶ 29. “‘[A] threat of indictment on more serious charges is not a
violation of due process.’” Id., quoting State v. Staten, 7th Dist. Mahoning No. 03
MA 187, 2005-Ohio-1350, ¶ 47.
In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d
604 (1978), the United States Supreme Court explained,
While confronting a defendant with the risk of more severe punishment
clearly may have a “discouraging effect on the defendant’s assertion of
his trial rights, the imposition of these difficult choices [is] an
inevitable” — and permissible — “attribute of any legitimate system
which tolerates and encourages the negotiation of pleas.” By tolerating
and encouraging the negotiation of pleas, this Court has necessarily
accepted as constitutionally legitimate the simple reality that the
prosecutor’s interest at the bargaining table is to persuade the
defendant to forgo his right to plead not guilty.
Id. at 364, quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 36 L.Ed.2d
714 (1973).
In the instant matter, according to appellant, the alleged coercion
occurred in July 2020 when “the [p]rosecution threatened to reindict [appellant] on
charges of ‘Kiddie Rape’” if appellant did not plead guilty. (Emphasis sic.)
Appellant’s brief at 8. Appellant pled guilty on August 4, 2020. During the change-
of-plea hearing, appellant confirmed — on multiple occasions — that no threats or
promises had been made to him to induce him into pleading guilty. (Tr. 9, 19.)
Appellant did not file a motion to withdraw his guilty plea on the basis that it was
coerced by the state.
The record reflects that the trial court complied with Crim.R. 11.
Appellant does not argue, much less demonstrate, that the trial court failed to
properly advise him of the constitutional rights he would be waiving by pleading
guilty. Appellant does not argue, much less demonstrate, that the trial court failed
to properly advise him of the nature of the charges, the maximum penalties involved,
and the effect of his pleas. Accordingly, we answer the first question of the Dangler
analysis affirmatively.
Finally, appellant has failed to argue, much less demonstrate, that “he
was prejudiced by a failure of the trial court to comply with the provisions of
Crim.R. 11(C).” (Emphasis added.) Dangler, 62 Ohio St.3d 1, 2020-Ohio-2765, 164
N.E.3d 286, at ¶ 16, citing Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474. Here,
appellant does not address Crim.R. 11 or argue that he was prejudiced by the trial
court’s failure to comply with a provision of the rule. Accordingly, appellant has
failed to demonstrate prejudice based upon which he is entitled to have his guilty
plea vacated.
For all of the foregoing reasons, appellant’s third assignment of error
is overruled. The record reflects that the trial court fully complied with Crim.R. 11
and that appellant knowingly, intelligently, and voluntarily pled guilty.
B. Ineffective Assistance of Counsel
In his first assignment of error, appellant argues that he was denied
his constitutional right to effective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel, a
defendant must demonstrate (1) deficient performance by counsel, i.e., performance
falling below an objective standard of reasonable representation; and (2) counsel’s
errors prejudiced the defendant, i.e., a reasonable probability that but for counsel’s
errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of
the syllabus.
When a defendant enters a guilty plea, he [or she] generally waives all
appealable errors that may have occurred unless such errors are shown
to have precluded the defendant from entering a knowing and
voluntary plea. State v. Jabbaar, 8th Dist. Cuyahoga No. 98218, 2013-
Ohio-2897, ¶ 5; State v. Milczewski, 8th Dist. Cuyahoga No. 97138,
2012-Ohio-1743, ¶ 5; State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658(1991), paragraph two of the syllabus. Thus, a claim of ineffective
assistance of counsel is waived by a guilty plea, except to the extent that
the ineffective assistance of counsel caused the defendant’s plea to be
less than knowing and voluntary. [State v. Williams, 8th Dist.
Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11], citing State v. Spates, 64
Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), citing Tollett v.
Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 14.
In the instant matter, as noted above, appellant appears to argue that
his guilty plea was not knowingly, intelligently, and voluntarily entered. In support
of his ineffective assistance of counsel claim, appellant appears to argue that trial
counsel’s deficient performance caused his guilty plea to be less than knowing,
intelligent, and voluntary.
First, appellant argues that counsel’s performance was deficient
because “defense counsel failed to outline the penalties of the plea agreements and
explain [appellant’s] rights.” Appellant’s brief at 7. Specifically, appellant contends
that counsel failed to explain the penalties for pleading guilty to felonies of the
second, third, and fifth degree.
Initially, appellant’s argument is unsupported by the record. During
the change-of-plea hearing, the state outlined the terms of appellant’s plea
agreement on the record. Following the state’s recitation of the plea agreement,
appellant’s counsel stated,
Your Honor, I have discussed this matter at length with [appellant], as
a matter of fact, on several, several occasions. I’ve advised him of his
constitutional rights, which I know you will go over at this time.
Your Honor, it’s my understanding at this time [appellant] wishes to
withdraw his formerly entered plea of not guilty and enter a guilty plea
to the first count of the indictment. He understands that this is a felony
of the second degree, also a felony of the third degree, Your Honor, and
also the fifth degree felony.
It’s my understanding that [appellant is] doing this voluntarily, and I
know you inquire of him.
(Tr. 6-7.)
The trial court asked appellant whether he (1) understood what was
happening in his case and (2) was satisfied with the services provided by defense
counsel. Appellant answered both questions affirmatively. (Tr. 9.)
Furthermore, assuming, arguendo, that defense counsel failed to
explain the nature of the charges or the penalties involved, appellant’s ineffective
assistance claim fails under the second Strickland prong. The record from the
change-of-plea hearing reflects that the trial court complied with Crim.R. 11 by
clearly advising appellant of the constitutional rights he was waiving by pleading
guilty and the maximum penalties he faced for each of the offenses to which he was
pleading guilty. Following the trial court’s advisements, appellant entered the guilty
plea. Accordingly, appellant cannot demonstrate prejudice — or a reasonable
probability that but for counsel’s failure to advise him about his rights and the
penalties he faced, appellant would not have pled guilty.
Appellant further argues that counsel’s performance was deficient
because counsel “allowed [appellant] to plead guilty” after the prosecution
threatened to charge him with rape if he did not enter the proffered guilty plea.
Appellant’s brief at 8.
The decision whether to plead guilty belongs to appellant, as the
defendant, not to his attorney. See State v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-
3566, 179 N.E.3d 1216, ¶ 82, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct.
3308, 77 L.Ed.2d 987 (1983). The record reflects that appellant knowingly,
intelligently, and voluntarily pled guilty on August 4, 2020, one month after the state
purportedly threatened to charge him with rape if he did not enter a plea. Counsel’s
performance was not deficient for “allowing” appellant to make a choice that belongs
to him.
Furthermore, counsel’s recommendation that appellant plead guilty
rather than fighting the charges at trial is a strategical, tactical decision. “Trial
strategy or tactical decisions cannot form the basis for a claim of ineffective counsel.”
State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v.
Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
In his second assignment of error, appellant asserts, in part, that when
defense counsel outlined the proffered plea agreement to appellant in July 2020,
counsel did not inform him that restitution would be part of the plea agreement. To
the extent that appellant is asserting an ineffective assistance of counsel claim,
appellant’s claim is entirely unsupported by the record. Furthermore, appellant’s
ineffective assistance claim regarding restitution would fail under the second
Strickland prong.
The record from the change-of-plea hearing reflects that the state
confirmed that restitution in the amount of $1,205.68 was part of the plea
agreement. (Tr. 4, 6.) The trial court also advised appellant that if he pled guilty,
the trial court could “require the payment of any restitution[.]” (Tr. 18.) After
appellant formally tendered his guilty pleas, the trial court ordered appellant to pay
restitution in the amount agreed upon by the parties. Neither appellant nor defense
counsel objected, at any time, to the trial court’s advisement or attempted to
withdraw appellant’s guilty plea on the basis that appellant was not aware that
restitution would be imposed if he pled guilty. Accordingly, even if counsel failed to
advise appellant that restitution was part of the plea agreement, appellant cannot
demonstrate prejudice, or a reasonable probability that but for counsel’s alleged
deficient performance, he would not have pled guilty. Appellant’s second
assignment of error is overruled, in part, to the extent that appellant argues that
counsel’s performance was deficient because counsel failed to advise him that
restitution was part of the plea agreement.
Finally, we note that appellant failed to identify any evidence in the
record supporting his assertions that counsel failed to advise him of his rights, failed
to “offer advice on how to proceed after the [p]rosecution made its threat,” or failed
to advise him that restitution was part of the plea agreement. Appellant’s brief at 8.
These arguments would require evidence outside of the record, such as an affidavit
from appellant. As a result, the proper vehicle for raising these ineffective assistance
claims is a petition for postconviction relief rather than a direct appeal. See State v.
Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 53 (8th Dist.), citing State v. Madrigal, 87
Ohio St.3d 378, 391, 721 N.E.2d 52 (2000), and State v. Keith, 79 Ohio St.3d 514,
536, 684 N.E.2d 47 (1997).
For all of the foregoing reasons, appellant’s ineffective assistance of
counsel claim fails. Appellant was not denied his constitutional right to effective
assistance of counsel. Appellant’s first assignment of error is overruled.
C. Prosecutorial Misconduct
In his fourth assignment of error, appellant appears to assert a
prosecutorial misconduct claim, claiming that the state misrepresented evidence or
misled the trial court regarding the May 2018 incident. Appellant appears to argue
that the state misrepresented the evidence regarding the gross sexual imposition
offense charged in Count 6 that was nolled under the plea agreement and that the
state’s intent was to “influence and mislead the court into [imposing] a sentence of
incarceration, instead of following the recommendations [set forth in the PSI].”
Appellant’s brief at 11. Appellant maintains that the prosecutor’s misrepresentation
of the evidence was unfairly prejudicial.
The test regarding prosecutorial misconduct is whether the actions or
remarks were improper, and, if so, whether they prejudicially affected
the substantial rights of the defendant. State v. Smith (1984), 14 Ohio
St.3d 13, 470 N.E.2d 883. Moreover, this “must be considered in the
light of the whole case.” State v. Maurer (1984), 15 Ohio St.3d 239, 473
N.E.2d 768, cert. denied (1985), 472 U.S. 1012, 105 S. Ct. 2714, 86
L.Ed.2d 728. A prosecutor should pursue the office’s duties with
earnestness and vigor and use every legitimate means to obtain a just
conviction. A prosecutor may argue the record, highlight the
inconsistencies or inadequacies of the defense, and forcefully assert
reasonable inferences from the evidence. Bates v. Bell (C.A.6, 2004),
402 F.3d 635, 646. A prosecutor may strike hard blows, but he [or she]
may not strike foul ones. Berger v. United States (1935), 295 U.S. 78,
88, 55 S.Ct. 629, 79 L.Ed. 1314. Foul blows include personally vouching
for the credibility of a witness, launching ad hominem attacks against
the defendant or [defendant’s] lawyer, relying on improper evidence,
relying on evidence not in the record, critically commenting on the
defendant’s exercise of his [or her] rights such as the right to remain
silent or the right to a jury trial, and deliberately misleading the jury.
Any improper actions or comments by a prosecutor should be
examined by four factors: (1) the likelihood that the remarks tended to
mislead the jury or prejudice the defendant; (2) whether the remarks
were isolated or extensive; (3) whether the remarks were deliberately
or accidently made; and (4) the total strength of the evidence against
the defendant. Bates, 402 F.3d at 647.
State v. Hough, 8th Dist. Cuyahoga No. 91691, 2011-Ohio-2656, ¶ 7.
As an initial matter, the record reflects that defense counsel did not
object to any of the state’s purportedly improper statements at any time. When trial
counsel fails to object to alleged instances of prosecutorial misconduct, the alleged
improprieties are waived, absent plain error. State v. White, 82 Ohio St.3d 16, 22,
693 N.E.2d 772 (1998), citing State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d
916 (1992).
Pursuant to Crim.R. 52(B), “plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.” Notice of plain error, however, ““‘is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’”” State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 21 (8th Dist.), quoting
State v. Mallory, 8th Dist. Cuyahoga No. 106052, 2018-Ohio-1846, ¶ 17, quoting
State v. Long, 53 Ohio St.2d 91, 93, 372 N.E.2d 804 (1978), paragraph two of the
syllabus.
The record clearly reflects that the prosecutor’s remarks during the
sentencing hearing about the May 2018 incident were in response to the factual
account of the incident in the defense’s sentencing memorandum. By addressing
the incident in the sentencing memorandum, defense counsel arguably opened the
door for the state to dispute the defense’s factual recitation of the incident. Since
the defense raised the issue about the facts of the May 2018 incident, any error
regarding the state’s comments at sentencing was arguably invited. Under the
invited-error doctrine, a party is not entitled to take advantage of an error that he or
she invited or induced. State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178(2000).
Nevertheless, we find that appellant has failed to demonstrate the
extremely high burden of demonstrating plain error. Assuming, arguendo, that the
state’s remarks about the 2018 incident were improper, or that the state
misrepresented the facts about the incident, appellant’s PSI contained information
about the incident. Defense counsel addressed the incident, both in the defense’s
sentencing memorandum and in open court at sentencing. The trial court
independently considered this information.
There is no evidence in the record that the trial court relied on the
state’s purportedly misleading or improper remarks in imposing appellant’s
sentence. The PSI and the statements presented at sentencing support the trial
court’s decision. Appellant cannot demonstrate prejudice because the trial court (1)
imposed concurrent prison sentences on Counts 1 and 3, not consecutive sentences
as the state requested in its sentencing memorandum, and (2) imposed a
community-control sanction, not a consecutive prison term on Count 7 as the state
requested in its sentencing memorandum. See State v. Warwick, 12th Dist. Preble
No. CA2017-01-001, 2018-Ohio-139, ¶ 31-32. Appellant’s sentences were within the
permissible statutory ranges, the trial court did not impose maximum sentences,
and the trial court did not run appellant’s sentences consecutively. See State v.
Powers, 3d Dist. Hancock No. 5-19-01, 2019-Ohio-3321, ¶ 5-6.
“Any effect of an improper argument made by the State at sentencing
can by cured by the trial court’s independent assessment of the sentencing factors.”
Powers at ¶ 4, citing State v. Lundgren, 73 Ohio St.3d 474, 489, 653 N.E.2d 304(1995). The trial court’s September 10, 2020 sentencing journal entry provides, in
relevant part, “The court considered all required factors of the law. The court finds
that prison is consistent with the purpose of R.C. 2929.11.” “This court has held that
a trial court’s statement in its sentencing journal entry that it considered the
required statutory factors, without more, is sufficient to fulfill its obligations under
R.C. 2929.11 and 2929.12.” State v. Paulino, 8th Dist. Cuyahoga No. 104198, 2017-
Ohio-15, ¶ 37, citing State v. Gonzalez, 8th Dist. Cuyahoga No. 102579, 2015-Ohio-
4765, ¶ 6.
During the sentencing hearing, the trial court stated, in relevant part,
Prior to coming on the bench, I had the opportunity to view the entire
case file for each defendant, the presentence investigation report for
each defendant, Revised Code Section 2929.11 for the purposes and
principles of sentencing, Revised Code Section 2929.12 for the serious
and recidivism factors, Revised Code Section, 2929.13, and other
Revised Code sections for felony sentencing of the second, third and
fifth degrees for [appellant] and third and fifth degrees for [appellant’s
wife] and Revised Code Sections 2929.21 for the misdemeanor
sentencing for [appellant’s wife].
(Tr. 28-29.) Accordingly, we find that any effect of the state’s purportedly improper
remarks about the 2018 shaving incident was cured by the trial court’s independent
review of the record, the information presented at sentencing, and the applicable
sentencing factors.
“[T]his court will presume that the judge considered only the relevant,
material, and competent evidence in arriving at a judgment, unless the contrary
affirmatively appears from the record.” State v. Dennis, 79 Ohio St.3d 421, 433, 683
N.E.2d 1096 (1997), citing State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754(1987), and State v. Eubank, 60 Ohio St.2d 183, 187, 398 N.E.2d 567 (1979).
Appellant’s speculation regarding the effect of the prosecutor’s statements is
insufficient to overcome this presumption or to demonstrate plain error.
Finally, appellant appears to argue that he was unfairly prejudiced by
the prosecutor’s repeated attempts to introduce hearsay evidence. Appellant does
not further develop this hearsay argument with citation to the record or supporting
authority. See App.R. 16. Nevertheless, appellant was not convicted following a
trial. He pled guilty. To the extent that appellant’s hearsay argument pertains to the
prosecutor’s comments at sentencing, the rules of evidence do not apply at
sentencing hearings. See State v. Jackson, 6th Dist. Erie No. E-01-024, 2002-Ohio-
2359, ¶ 38; Evid.R. 101(C)(3).
For all of the foregoing reasons, appellant’s fourth assignment of error
is overruled.
D. Speedy Trial
In his fifth assignment of error, appellant appears to argue that his
constitutional and statutory speedy trial rights were violated.
“Generally, the failure to raise the violation of speedy trial rights in the
trial court constitutes a waiver of the defense on appeal.” State v. Mango, 8th Dist.
Cuyahoga No. 103146, 2016-Ohio-2935, ¶ 18. A defendant may, however, raise a
speedy trial claim in the context of a claim of ineffective assistance of counsel. Id.,citing Cleveland v. White, 8th Dist. Cuyahoga No. 99375, 2013-Ohio-5423, ¶ 7.
Appellant did not argue below that his speedy trial rights were
violated. Nor does appellant raise his speedy trial claim in the context of an
ineffective assistance of counsel claim. Accordingly, appellant has waived the issue
for purposes of appeal. See State v. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-
Ohio-1483, ¶ 43, citing Mango at ¶ 18.
Appellant’s fifth assignment of error is premised entirely on his
statutory speedy trial rights pursuant to R.C. 2945.71 and 2945.72. The record
reflects that appellant waived his right to challenge his convictions on statutory
speedy trial grounds. A guilty plea generally waives a defendant’s right to challenge
his or her conviction on statutory speedy trial grounds. Kelley, 57 Ohio St.3d 127,
566 N.E.2d 658, at paragraph one of the syllabus; State v. Yonkings, 8th Dist.
Cuyahoga No. 98632, 2013-Ohio-1890, ¶ 14-15.
This court has held, however, that a defendant does not waive his or
her constitutional right to a speedy trial by pleading guilty. See State v. Kutkut, 8th
Dist. Cuyahoga No. 98479, 2013-Ohio-1442, ¶ 9, citing State v. Carmon, 8th Dist.
Cuyahoga No. 75377, 1999 Ohio App. LEXIS 5458, 4 (Nov. 18, 1999), citing State v.
Branch, 9 Ohio App.3d 160, 162, 458 N.E.2d 1287 (8th Dist.1983). Accordingly, we
will review appellant’s constitutional speedy trial claim for plain error. See State v.
Scahel, 8th Dist. Cuyahoga No. 100705, 2014-Ohio-3042, ¶ 4, citing United States
v. Gearhart, 576 F.3d 459, 462-463 (7th Cir.2009), United States v. Oriedo, 498
F.3d 593, 597, fn. 2 (7th Cir.2007), and State v. King, 184 Ohio App.3d 226, 2009-
Ohio-4551, 920 N.E.2d 399, ¶ 10 (8th Dist.).
After reviewing the record, we find that appellant failed to
demonstrate plain error and that there was no violation of appellant’s constitutional
speedy trial rights.
Pursuant to the Sixth and Fourteenth Amendments of the United
States Constitution, and Section 10, Article I of the Ohio Constitution, a defendant
is guaranteed the constitutional right to a speedy trial. State v. Taylor, 98 Ohio
St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 32. This court balances the four factors
set forth in Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972), to determine whether there has been a violation of a defendant’s
constitutional speedy trial rights. State v. Long, 163 Ohio St.3d 179, 2020-Ohio-
5363, 168 N.E.3d 1163, ¶ 14. The Barker factors are “(1) the length of the delay;
(2) the reason for the delay; (3) the defendant’s assertion of his speedy trial right;
and (4) prejudice to the defendant.” State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-
4252, 852 N.E.2d 706, ¶ 22, citing Barker at 530.
The defendant must meet the “threshold requirement” of
demonstrating a “presumptively prejudicial” delay to trigger a Barker analysis.
State v. Duncan, 8th Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 8. The Ohio
Supreme Court explained,
No single [Barker] factor controls the analysis, but the length of the
delay is important. “Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors that
go into the balance.” Barker at 530. Generally, a delay that approaches
one year is presumptively prejudicial. Doggett v. United States, 505
U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1.
Long at ¶ 14.
In the instant matter, regarding the first Barker factor, appellant was
arrested on August 13, 2019. On September 16, 2019, appellant posted bond.
Appellant pled guilty on August 4, 2020. The length of the delay was approximately
one year between appellant’s arrest and guilty plea. Accordingly, we find that
appellant satisfied the threshold requirement of a presumptively prejudicial delay.
The second Barker factor is the reason for the delay. The record
reflects that more than ten pretrial hearings were continued at appellant’s request.
The record reflects that appellant failed to respond to the state’s demand for
discovery, filed on September 19, 2019. See State v. Palmer, 112 Ohio St.3d 457,
2007-Ohio-374, 860 N.E.2d 1011, paragraph one of the syllabus (“[t]he failure of a
criminal defendant to respond within a reasonable time to a prosecution request for
reciprocal discovery constitutes neglect that tolls the running of speedy-trial time
pursuant to R.C. 2945.72(D).”). Accordingly, the record reflects that appellant
caused most of the delay in this case.
The record reflects that at least two pretrial hearings (March 19, 2020,
and April 28, 2020) were rescheduled “due to national emergency COVID-19.” This
court has recognized that “speedy trial time was tolled from March 9, 2020, through
July 30, 2020, in response to the [COVID-19] pandemic.” State v. B.C., 8th Dist.
Cuyahoga No. 110070, 2022-Ohio-384, ¶ 11.
The General Assembly, as well as the Ohio Supreme Court, tolled the
speedy time limits imposed under R.C. 2945.71. See 2020
Am.Sub.H.B. No. 197, Sections 22(B) and (C), and In re Tolling of Time
Requirements Imposed by Rules Promulgated by the Supreme Court
and Use of Technology, 03/27/2020 Administrative Actions, [158
Ohio St.3d 1447,] 2020-Ohio-1166, 141 N.E.3d 974. See also Chapman
Ents., Inc. v. McClain, [165 Ohio St.3d 428, 2021-Ohio-2386, 179
N.E.3d 1201]; State v. McCorkle, 2d Dist. Greene No. 2020-CA-36,
2021-Ohio-2604; 2020 Ohio Atty. Gen. Ops. No. 2020-002, syllabus,
2020 OHIO AG LEXIS 12.
B.C. at ¶ 11.
Based on the foregoing analysis, the second Barker factor weights
against appellant.
The third Barker factor to consider is whether appellant asserted his
right to a speedy trial. As noted above, appellant failed to raise this issue in the trial
court. Accordingly, the third Barker factor weights against appellant.
The fourth Barker factor to consider is whether the defendant was
prejudiced by the delay. In Long, the Ohio Supreme Court explained that “[t]he
prejudice factor in the analysis ‘should be assessed in the light of the interests of
defendants[,] which the speedy trial right was designed to protect.’” Long, 163 Ohio
St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, at ¶ 22, quoting Barker, 407 U.S. at
532, 92 S.Ct. 2182, 33 L.Ed.2d 101. These three interests are: ‘“(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired.’” Id. The
third interest is the greatest concern because it “‘skews the fairness of the entire
system.’” Id.Appellant was incarcerated for approximately one month before
posting bond. Appellant does not argue, much less demonstrate, that he was
prejudiced by the one-month period of pretrial incarceration or the delay between
his arrest and guilty plea. Appellant does not argue, much less demonstrate, that
the delay hindered his ability to gather evidence, contact witnesses, or prepare for
his defense. See Barker at 533. It is not this court’s duty to construct an argument
on appellant’s behalf.
Appellant has failed to show any reasonable prejudice resulting from
the delay. Accordingly, the fourth Barker factor weights against appellant.
After reviewing the record and balancing the four Barker factors, we
find that appellant’s constitutional right to a speedy trial was not violated. Nor has
appellant met his burden of demonstrating plain error. For all of the foregoing
reasons, appellant’s fifth assignment of error is overruled.
E. Restitution
In his second assignment of error, appellant argues, in part, that the
trial court erred in ordering him to pay $1,205.58 in restitution because the trial
court did not consider appellant’s ability to pay restitution. Appellant does not
further develop his assertion that the trial court failed to consider his ability to pay
restitution. See App.R. 12, 16. Rather, as noted above, appellant appears to blame
defense counsel for failing to advise him that restitution was part of the plea
agreement.
R.C. 2929.18(A)(1) provides, in relevant part, that the trial court, in
imposing a felony sentence, may sentence the offender to any financial sanction,
including restitution. Pursuant to R.C. 2929.19(B)(5), a court is required to consider
a defendant’s ability to pay before imposing a financial sanction. See, e.g., State v.
Newton, 8th Dist. Cuyahoga No. 107195, 2019-Ohio-3566, ¶ 49.
Normally, this court reviews a trial court’s restitution order for an
abuse of discretion. State v. Pollard, 8th Dist. Cuyahoga No. 97166, 2012-Ohio-
1196, ¶ 7, citing State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th
Dist.1995). In this case, however, the record reflects that the amount of restitution
was agreed upon under the parties’ plea agreement. As a result, appellant failed to
object or contest the amount of restitution discussed during the plea hearing and
ordered at sentencing. Accordingly, appellant has waived all but plain error. State
v. Osborne, 8th Dist. Cuyahoga No. 110237, 2021-Ohio-3352, ¶ 16. A trial court
commits plain error in awarding restitution that is not supported by competent and
credible evidence. State v. Roberts, 8th Dist. Cuyahoga No. 99755, 2014-Ohio-115,
¶ 8.
In this appeal, appellant acknowledges that the trial court informed
him during the August 4, 2020 change-of-plea hearing that it would impose
restitution. (Tr. 23.) The defense’s sentencing memorandum provides, in relevant
part, “at the time of the change of plea, both [appellant] and [appellant’s wife] agreed
to restitution to the involved entities that were involved in the search for the two
children.”
The record reflects that as part of his plea agreement, appellant
expressly agreed to pay restitution in the amount of $1,205.68 to the investigating
law enforcement agencies that were called in to help with the missing children’s
report. (Tr. 4, 6, 23.)
When payment of restitution to the victim is part and parcel of a plea
agreement, there is no reversible error in imposing a financial sanction,
without first determining the defendant’s ability to pay. State v.
McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640, and 104641, 2017-
Ohio-1049; ¶ 53; State v. St. Martin, 8th Dist. Cuyahoga No. 96834,
2012-Ohio-1633, ¶ 8 (the stipulation and agreement to pay restitution
is sufficient to support the trial court’s order and precludes the
defendant from complaining about it on appeal).
State v. Carson, 8th Dist. Cuyahoga No. 109592, 2021-Ohio-209, ¶ 15.
The record clearly reflects that the trial court did, in fact, consider
appellant’s ability to pay the restitution order.
The court is not obligated to make any express findings, but rather is
required only to “consider” a defendant’s ability to pay a financial
sanction. State v. Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-
633, ¶ 55. Generally, a trial court complies with this requirement when
it considers a presentence investigation report that contains
information about the offender’s financial situation and his ability to
pay the financial sanction. See State v. Lewis, 8th Dist. Cuyahoga No.
90413, 2008-Ohio-4101, ¶ 13; State v. Bulstrom, 2013-Ohio-3582, 997
N.E.2d 162, ¶ 15 (4th Dist.).
State v. Simpson, 8th Dist. Cuyahoga No. 101088, 2014-Ohio-4580, ¶ 21.
In the instant matter, the trial court considered appellant’s
presentence-investigation report that contained information regarding appellant’s
financial situation and ability to pay the agreed-upon amount of restitution.
Accordingly, the trial court did not commit plain error in ordering appellant to pay
restitution.
Finally, we find, sua sponte, that the record contains a clerical error
regarding the total amount of restitution. As noted above, the state advised the trial
court during the change-of-plea hearing that the agreed-upon amount of restitution
was “$1,205.68.” (Emphasis added.) (Tr. 4, 6.) After appellant formally tendered
his guilty pleas, the trial court stated, “I’ll order restitution in the amount of — and
this is an agreed amount of $1,205.58[.]” (Emphasis added.) (Tr. 23.) Furthermore,
the trial court’s August 6, 2020 journal entry from the change-of-plea hearing, and
the trial court’s September 10, 2020 sentencing journal entry provide, in relevant
part, “Restitution ordered in the amount of $1,205.58[.]” (Emphasis added.)
The trial court’s sentencing entry ordered appellant to pay restitution
to the individual law enforcement agencies as follows: “Restitution ordered in the
amount of $1,205.58 to Maple Heights $200.00; Solon $162.75; Oakwood $326.25;
Walton Hills $184.63; Garfield $119.00; Bedford $213.05[.]” These individual
restitution orders total $1,205.68, not $1,205.58.
This clerical error can be corrected through a nunc pro tunc
sentencing entry.
A trial court retains continuing jurisdiction to correct clerical errors in
a judgment by nunc pro tunc entry to reflect that which actually was
decided. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-
Ohio-229, 943 N.E.2d 1010, ¶ 13, citing State ex rel. Cruzado v. Zaleski,
111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19, and
Crim.R. 36 (“[c]lerical mistakes in judgments, orders, or other parts of
the record, and errors in the record arising from oversight or omission,
may be corrected by the court at any time”).
State v. Roberts, 2017-Ohio-9014, 101 N.E.3d 1067, ¶ 6 (8th Dist.).
For all of the foregoing reasons, appellant’s second assignment of
error is overruled with respect to the trial court’s restitution order.
F. Sentence
In his sixth assignment of error, appellant argues that the trial court
erred in imposing a five-year prison sentence.
First, appellant appears to argue that he was denied due process of
law because the trial court was prejudiced or biased against him. In support of this
argument, appellant contends that the trial court was prejudiced against him based
on the information presented regarding the nolled gross sexual imposition charge.
“Judicial bias” has been defined as “‘a hostile feeling or spirit of ill will
or undue friendship or favoritism toward one of the litigants or his [or her] attorney,
with the formation of a fixed anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be governed by the law
and the facts.’” State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97,
¶ 48, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191(1956), paragraph four of the syllabus. Generally, “[a] court of appeals has ‘no
authority to determine a claim that a trial judge is biased or prejudiced against a
defendant and no authority to void a trial court’s judgment based on a claim that the
trial judge is biased or prejudiced.’” State v. Frazier, 2017-Ohio-8307, 98 N.E.3d
1291, ¶ 16 (8th Dist.), quoting State v. Williamson, 8th Dist. Cuyahoga No. 104294,
2016-Ohio-7053, ¶ 27.
Proceedings before a biased judge are fundamentally unfair, and they
deny a defendant due process of law. Dean at ¶ 48. As a result, a trial court’s
judgment may be reversed due to judicial bias if the bias or prejudice violated the
defendant’s right to due process and deprived the defendant of a fair proceeding. Id.In determining whether alleged judicial bias resulted in the imposition of an
unlawful sentence, this court presumes that the trial judge is unbiased and
unprejudiced in the matters over which he or she presides, and “‘the appearance of
bias or prejudice must be compelling in order to overcome the presumption.’”
(Emphasis added.) State v. Eaddie, 8th Dist. Cuyahoga No. 106019, 2018-Ohio-961,
¶ 18, quoting State v. Filous, 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312, ¶ 14.
In the instant matter, appellant has failed to overcome the
presumption that the trial judge was unbiased and unprejudiced. Nor is there
“compelling” evidence of bias or prejudice in the record before this court.
As noted above in the resolution of appellant’s fourth assignment of
error, appellant failed to demonstrate plain error with respect to the prosecutor’s
statements about the 2018 incident based upon which appellant was charged with
gross sexual imposition. Assuming, arguendo, that the trial court’s sentence was
based, in part, on the 2018 incident for which appellant was charged with gross
sexual imposition, this is a relevant and appropriate consideration for the court to
make in determining the appropriate sentence. See State v. Page, 8th Dist.
Cuyahoga No. 90485, 2008-Ohio-4244, ¶ 22, citing State v. Burton, 52 Ohio St.2d
21, 23, 368 N.E.2d 297 (1977) (in determining an appropriate sentence, the trial
court did not err in considering prior allegations of crimes, including a nolled
felonious assault charge, for which the defendant-appellant was never convicted).
Appellant further argues that the trial court abused its discretion in
imposing a sentence of five years in prison. He appears to argue that the trial court
failed to consider the sentencing factors set forth in R.C. 2929.11 and 2929.12, and
that “[t]he trial court refused to consider the recommendations [in the PSI.]”
Appellant’s brief at 15. Appellant’s argument is misplaced and unsupported by the
record.
As an initial matter, regarding the “recommendation” in the PSI,
appellant appears to be referring to the probation department’s determination that
appellant was a low risk for recidivism. (Tr. 41.) Defense counsel conveyed this
information to the trial court at sentencing. The trial court expressly indicated that
it considered appellant’s PSI.
This court does not review felony sentencing for an abuse of
discretion. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22, citing R.C. 2953.08(G)(2); State v. Bush, 8th Dist. Cuyahoga No. 106392,
2018-Ohio-4213, ¶ 24. Appellate review of felony sentences is governed by R.C.
2953.08(G)(2), which provides that “an appellate court may vacate or modify a
felony sentence on appeal only if it determines by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that
the sentence is otherwise contrary to law.” Marcum at ¶ 1, 21.
A sentence is not clearly and convincingly contrary to law “where the
trial court considers the purposes and principles of sentencing under
R.C. 2929.11 as well as the seriousness and recidivism factors listed in
R.C. 2929.12, properly applies post-release control, and sentences a
defendant within the permissible statutory range.”
State v. Thompson, 8th Dist. Cuyahoga No. 105785, 2018-Ohio-1393, ¶ 7, quoting
State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.
The record must indicate that the trial court considered all relevant
factors required by R.C. 2929.11 and 2929.12, but the trial court has no obligation to
state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, syllabus.
After reviewing the record, we find that the trial court’s sentence is not
clearly and convincingly contrary to law. The trial court’s sentences on appellant’s
endangering children convictions are within the permissible statutory ranges set
forth in R.C. 2929.14(A)(2)(b) and (A)(3)(b). The trial court’s 60-month (or five
years) community-control sanction on appellant’s obstructing official business
conviction did not exceed the maximum five-year limit set forth in R.C. 2929.15.
Because the fifth-degree felony obstruction offense was not the most serious charge
for which the trial court was sentencing appellant, the trial court was not statutorily
required to impose a community-control sanction. See R.C. 2929.13(B)(1)(a)(ii).
As noted above, the record reflects that the trial court considered the
sentencing factors set forth in R.C. 2929.11 and 2929.12 in imposing its sentence.
The trial court’s September 10, 2020 sentencing journal entry provides, in relevant
part, “The court considered all required factors of the law. The court finds that
prison is consistent with the purpose of R.C. 2929.11.” This statement alone is
sufficient to fulfill the trial court’s obligations under R.C. 2929.11 and 2929.12.
Paulino, 8th Dist. Cuyahoga No. 104198, 2017-Ohio-15, at ¶ 37, citing Gonzalez, 8th
Dist. Cuyahoga No. 102579, 2015-Ohio-4765, at ¶ 6. Furthermore, during the
sentencing hearing, the trial court expressly stated that it considered appellant’s
entire case file, appellant’s PSI, the purposes and principles of felony sentencing
under R.C. 2929.11, the serious and recidivism factors under R.C. 2929.12, and R.C.
2929.13 pertaining to community-control sanctions. (Tr. 28-29.)
For all of the foregoing reasons, appellant’s sixth assignment of error
is overruled. Appellant was not denied due process of law and the trial court’s
sentence is not clearly and convincingly contrary to law.
III. Conclusion
After thoroughly reviewing the record, we affirm the trial court’s
judgment. Appellant’s guilty plea was not coerced by the state; rather, appellant
knowingly, intelligently, and voluntarily pled guilty. Appellant was not denied his
constitutional right to effective assistance of counsel. Appellant failed to
demonstrate plain error with respect to the prosecutor’s remarks at sentencing.
Appellant was not denied his constitutional right to a speedy trial. The trial court
did not commit plain error in ordering appellant to pay restitution. The trial court’s
sentence is not contrary to law, and appellant was not denied due process of law or
a fair sentencing hearing based on judicial bias.
This matter is remanded to the trial court for the limited purpose of
issuing a nunc pro tunc sentencing entry to correct the total amount of restitution
appellant was ordered to pay.
Appointed counsel’s motion to withdraw is granted.
Judgment affirmed and case remanded for further proceedings
consistent with this opinion.
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 is terminated. Case remanded
to the trial court for execution of sentence and the issuance of a nunc pro tunc
sentencing entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
SEAN C. GALLAGHER, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR