State v. Fletcher , 2015 Ohio 4059 ( 2015 )

[Cite as State v. Fletcher, 2015-Ohio-4059.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-14-033
Appellee Trial Court No. 14 CR 040
v.
Alex F. Fletcher DECISION AND JUDGMENT
Appellant Decided: September 30, 2015
*****
Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
*****
JENSEN, J.
{¶ 1} Defendant-appellant, Alex F. Fletcher, appeals the judgment of the Ottawa
County Court of Common Pleas sentencing him to eight years and eighteen months in
prison and three years of mandatory post-release control.
{¶ 2} On April 17, 2014, the Ottawa County grand jury indicted Fletcher on one
count of inducing panic, in violation of R.C. 2917.31(A)(1), a felony of the second
degree, one count of disrupting public services, in violation of R.C. 2909.04(A)(3), a
felony of the fourth degree, and one count of aggravated robbery in violation of R.C.
2911.01(A)(1), a felony of the first degree.
{¶ 3} After initially entering a plea of not guilty, Fletcher entered into a plea
agreement in which he agreed to tender guilty pleas to the disrupting public services and
robbery charges. He also agreed to pay restitution in the amount of $530.99. In turn, the
state agreed to dismiss the inducing panic charge.
{¶ 4} At the June 11, 2014 plea change hearing, the trial court advised Fletcher of
the constitutional rights he was waiving by entering the guilty pleas. It also advised
Fletcher of the potential penalties relating to the offenses to which he was pleading
guilty, in relevant part, as follows:
[Court]: When it comes to sentencing, I have two options. One is to
send you to prison. The other is to place you on probation.
I am going to talk about prison first. Much of what I will talk about
prison is how you might be able to get out early.
First, you could be sent with what is called a risk reduction sentence.
A risk reduction sentence means that when you go to the institution, they
would do an evaluation of you to determine what it is they could best do to
keep you from ever coming back to prison again. It could be some sort of
2.
classes, treatment, programming. Whatever it is, if you were successful in
doing that and if you were well behaved, your prison sentence could be
reduced by as much as 20 percent. Do you understand that?
[Fletcher]: Yes, sir.
[Court]: If you are not sent with a risk reduction sentence, but you
are still well behaved, that is called earning good time. Good time can
reduce your sentence by as much as 8 percent. Do you understand that?
[Fletcher]: Yes, sir.
[Court]: You could be eligible for intensive prison program or
transitional control. Those are two programs that are available in the prison
system.
They can significantly reduce the amount of time that you spend in
the institution. Now you would need to apply to be in those programs.
You would need to be accepted by the prison in those programs and the
Court would need to agree that those programs were appropriate for you.
As I said, if you were able to get into those programs, successfully
complete them, they could significantly reduce the amount of time that you
spend in prison. Do you understand that?
[Fletcher]: Yes, sir.
3.
[Court]: You could be eligible for Judicial Release as soon as 30
days after you reach the State Institution. The final decision about Judicial
Release though remains with the Court. Do you understand that?
[Fletcher]: Yes, sir.
[Court]: If you are released from prison early under any
circumstances, you would be under someone’s supervision, probably the
supervision of this Court. If you violated the terms of your supervision for
early release, you could just be returned to prison for any amount of
remaining prison time, do you understand that?
[Fletcher]: Yes, sir.
[Court]: Now you may be required to serve a three-year term of Post
Release Control, what we used to call parole, following your release from
prison.
If you violate the terms of Post Release Control, you can be returned
to prison for up to one-half of your prison sentence * * * do you understand
that?
[Fletcher]: Yes, sir.
[Court]: If you are not sent to prison, you could be placed on
probation. Probation could last for as long as five years. Probation can and
almost always does include some jail time * * * do you understand that?
[Fletcher]: Yes sir.
4.
***
[Court]: All right. So we have covered a lot of ground. Having
talked about all those things, is it still your intention to enter a guilty plea?
[Fletcher]: Yes, sir.
[Court]: Let’s talk about Count 2, disrupting public services. That
says that on the 1st day of April, 2014, you did something that brings you
here today. What was that?
[Fletcher]: It all started the night before. I was using drugs and
hanging out with a couple guys from out of town. I was really bad on
heroin, and I had been getting high pretty much the whole day before, and it
was like four o’clock in the morning, and we were riding around. And one
of the guys suggested that we rob a gas station.
At first, I didn’t want to do it. Honestly, I didn’t want to look weak
in front of them, to be honest, and I started making excuses. Well, what if
the cops come? And some time went on * * *.
He suggested I rob a pharmacy, and we sat outside the pharmacy for
a while, and he said, “Oh, if you rob that, you can get the pills and you will
never be [pill] sick and we can get money.”
To me, at the time, you know, “Oh, that sounds good, I will have
pills, I won’t be sick.”
5.
I told him I was still worried about the cops and I didn’t want to rob
a pharmacy, so he got on to Route 2 * * * back toward Erie Gardens, and I
was sort of nodding out from heroin.
He said that we wouldn’t have to worry about the cops. He made a
phone call, which I later found out was a bomb threat [to Port Clinton High
School], and when he told me that I didn’t have to worry about the cops, I
didn’t really question him. We drove into town and he said there is no one
there at that Smoke Shop, maybe we should try that, and he parked at the
car wash by the Smoke Shop. I had a baseball bat and I just had it tucked
into my arm. * * * I walked in with the bag. And as soon as I walked in, I
dropped the bag and I was – I just said, “Give me the money.” And the
lady took the bag and she put the money in it.
Then I ran out and ran back to the car, and the guy took me back to
Cleveland where he was from, and I got more heroin.
{¶ 5} After Fletcher’s statement, an off-the-record discussion was held and the
court took a brief recess. Back on the record, the following dialogue occurred:
[Court]: Two changes since we left, Mr. Fletcher. One is they
changed the robbery section from 2911.02(a)(2) to 2911.02(A)(1). Do you
understand that?
[Fletcher]: Yes, sir.
6.
[Court]: It is my understanding that it doesn’t make any difference
in the penalty, but it is as you have described the offense.
[Fletcher]: Yes, sir.
[Court]: The other change is that after prison release, if you are sent
to prison, you will have a mandatory three years of Post-Release Control.
It is not maybe or up to, but it is a mandatory three-year term of Post
Release Control. Do you understand that?
[Fletcher]: Yes, sir.
[Court]: Does any of that change your willingness to make an
admission today?
[Fletcher]: No, sir.
***
[Court]: All right. Mr. Fletcher, are you satisfied after all these
changes?
[Fletcher]: Yes, sir.
[Court]: Is it still your intention to make an admission of those two
offenses?
[Fletcher]: Yes, sir.
{¶ 6} A sentencing hearing was held August 6, 2014. Both Fletcher and his
counsel made statements to the court. Fletcher expressed his shame and regret and then
thanked his family and friends for support. Fletcher’s counsel acknowledged that
7.
Fletcher had “been involved in the system since he was 14, 15 years old.” Counsel
indicated that Fletcher was “very realistic about the possibility that he is going to be
punished in terms of incarceration,” but asked the court to consider a sentence that would
include treatment for his “very, very bad” substance abuse issues.
{¶ 7} After indicating that it had considered the in-court statements, the pre-
sentence report, and a written victim impact statement, the trial court found appellant
guilty of robbery, in violation of R.C. 2911.02(A)(1), a felony of the second degree, and
complicity to disrupting public services in violation of R.C. 2923.03(A)(2) and
2929.04(A)(3), a felony of the second degree. The trial court then sentenced Fletcher to
eight years in prison and three years of mandatory post-release control for the robbery
offense and eighteen months in prison for the complicity to disrupting public services
offense. The sentences were ordered to be served consecutive to one another for a total
of eight years and eighteen months in prison. Fletcher was ordered to pay restitution in
the amount of $530.99. It is from this judgment that Fletcher appeals, assigning the
following errors:
1. Appellant’s guilty plea was involuntary and unknowing when the
trial court misinformed him about judicial release and post-release control.
2. The maximum and consecutive sentence is not supported by clear
and convincing evidence.
8.
FIRST ASSIGNMENT OF ERROR
{¶ 8} In his first argument under this assignment of error, Fletcher asserts that his
guilty pleas were not knowingly and intelligently made because the trial court
misrepresented the time frame in which he would become eligible for judicial release.
{¶ 9} “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.” (Citations omitted.) State v. Engle, 74 Ohio St. 3d 525, 527, 660
N.E.2d 450 (1996). See also Crim.R. 11(C).
{¶ 10} Crim.R. 11(C)(2) details the trial court’s duty in a felony plea hearing to
address the defendant personally and to convey certain information to the defendant. “If
a trial judge chooses to offer an expanded explanation of the law in a Crim.R. 11 plea
colloquy, the information conveyed must be accurate.” State v. Clarke, 119 Ohio St. 3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 16. “[W]hen a defendant’s guilty plea is
induced by erroneous representations as to the applicable law, including eligibility for
judicial release, the plea has not been entered knowingly and intelligently.” (Citations
omitted.) State v. Loyd, 6th Dist. Erie Nos. E-10-055, E-10-056, 2011-Ohio-2964, ¶ 18.
“In order to establish the necessary inducement to vacate a guilty plea, the defendant
must make a two part showing. First, the defendant must show that he or she was
misinformed as to the applicable law.” Id. at ¶ 19. “Second, the defendant must
demonstrate that he or she was prejudiced by the misinformation.” Id. at ¶ 20.
9.
{¶ 11} Here, the trial court’s statement that Fletcher “could be eligible for Judicial
Release as soon as 30 days after” he is transported to prison did not “misinform” Fletcher
of his potential for judicial release. If the trial court had elected to send Fletcher to prison
only on the fourth-degree felony charge, Fletcher would have been eligible for judicial
release after 30 days of incarceration at the state institution. Under a second potential
sentencing scenario, Fletcher would have been eligible for judicial release after five years
in prison. Under a third potential sentencing scenario, Fletcher would have received only
probation instead of prison.
{¶ 12} Assuming, arguendo, that the trial court’s statements could be construed as
a misrepresentation of applicable law, Fletcher nonetheless fails to demonstrate prejudice.
There is no indication that Fletcher was led to believe he would, in every potential
sentencing scenario, be eligible for judicial release after 30 days and that such belief
induced his guilty pleas as required by Lloyd. Id. at ¶ 29. Accordingly, Fletcher’s first
argument under his first assignment of error is not well-taken.
{¶ 13} In his second argument under this assignment of error, Fletcher asserts that
the trial court failed to comply with Crim.R. 11(C) when it gave him incorrect
information about post-release control, “effectively accepted” his statement of the case,
and then gave him the correct information about the mandatory nature of the post-release
control.
{¶ 14} In response, the state asserts that Crim.R. 11(C) only requires a trial court
to properly inform a defendant about the terms of post-release control before accepting
10.
the defendant’s guilty plea. The state asserts that after the trial court gave Fletcher the
correct post-release control information, it specifically asked Fletcher if it was still his
intention to make an admission to the two offenses. In response to the trial court’s
inquiry, Fletcher indicated that it was still his intention to make such an admission.
Under these circumstances, we find that the trial court did substantially comply with the
requirement to notify Fletcher of the mandatory nature of post-release control prior to
accepting his guilty pleas. Accordingly, Fletcher’s second argument under his first
assignment of error is not well-taken.
SECOND ASSIGNMENT OF ERROR
{¶ 15} In his second assignment of error, Fletcher argues that maximum
consecutive sentences are not supported by clear and convincing evidence.
{¶ 16} Recently, in State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-
1000, ¶ 11-12, we explained:
R.C. 2929.14(C)(4) now requires that a trial court engage in a three-
step analysis in order to impose consecutive sentences. First, the trial court
must find the sentence is necessary to protect the public from future crime
or to punish the offender. Second, the trial court must find that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. Third, the trial
court must find that at least one of the following applies: (a) the offender
committed one or more of the multiple offenses while the offender was
11.
awaiting trial or sentencing, while under a sanction imposed pursuant to
R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a
prior offense; (b) at least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflect the seriousness of the offender’s
conduct; or (c) the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
However, the trial court is not required to recite any “magic” or
“talismanic” words when imposing consecutive sentences provided it is
“clear from the record that the trial court engaged in the appropriate
analysis.” State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-
3962, ¶ 12.
{¶ 17} Then, in State v. Payne, 6th Dist. Lucas Nos. L-13-1024, L-13-1025, 2014-
Ohio-1147, we referenced the long standing premise that a trial court speaks through its
judgment entries and found that while a court might fully explain its reasons for ordering
consecutive sentences and make the statutory mandated findings required under R.C.
2929.14(C)(4) at the sentencing hearing, those findings must be reflected in its judgment
entry. Id. at ¶ 13-16.
12.
{¶ 18} Upon review of the August 7, 2014 sentencing judgment entries and the
transcript of the August 6, 2014 sentencing hearing, we find that the trial court did
engage in the first step of the consecutive sentence analysis – that the sentence is
necessary to protect the public from future crime or to punish the offender – when, during
the sentencing hearing, it held that consecutive sentences were “necessary to protect the
public from future crime,” and to “punish the offender.” We further find that the trial
court’s findings were sufficiently reflected in its judgment entry when it declared nearly
identical findings.
{¶ 19} The record reflects that the trial court did engage in the second step of the
consecutive sentence analysis – that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public –
when, during the sentencing hearing, it stated:
When it comes to sentencing, the Court is told to look to 2929.11 of
the Ohio Revised Code. That says, “The Court shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the
offender and others and to punish the offender using the minimum
sanctions that the Court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources.
“To achieve those purposes, the sentencing court shall consider the
need for incapacitating the offender, deterring the offender and others from
13.
future crime, rehabilitating the offender, and making restitution to the
victim of the offense, the public or both.
“A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth in
division A of this section and be commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the victim,
and be consistent with sentences imposed for similar crimes committed by
similar offenders.
***
2929.12 tells me that this is not a case that requires a mandatory
prison sentence. I have considered the sentencing factors set forth in
2929.12. The more likely recidivism factors outweigh the less likely
factors. The more serious factors outweigh the less serious factors.
The trial court’s findings were sufficiently reflected in its judgment entry when it asserted
that “consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.”
{¶ 20} The record reflects that the trial court engaged in the third step of the
consecutive sentence analysis – that at least one of the three conditions set forth in R.C.
2929.14(C)(4) applies – when it stated:
The Court * * * finds that at least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm caused
14.
by two or more of the multiple offenses so committed was so great or so
unusual that no single prison term for these offenses committed as part of
the courses of conduct adequately reflects the seriousness of your conduct.
The trial court’s findings were sufficiently reflected in its judgment entry when it asserted
that “the harm caused by two or more of the multiple offenses so committed was so great
and unusual that no single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the offender’s conduct.”
{¶ 21} Recently, the Second District Court of Appeals explained that “[i]n felony
sentencing, the trial court is required to weigh all relevant factors invoked by the facts of
the case, and the act of balancing different factors and deciding which factors outweigh
others necessarily involves the exercise of judicial discretion.” State v. Mansley, 2d Dist.
Montgomery No. 26417, 2015-Ohio-2785, ¶ 8. It is important to note, however, that a
“trial court is not required to state reasons to support findings in support of imposition of
consecutive sentences.” State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16
N.E.3d 659, paragraph one of syllabus. Rather, the findings made in the sentencing entry
“must be supported by the record from the sentencing hearing.” State v. Jude, 6th Dist.
No. WD-13-055, 2014-Ohio-2437, ¶ 10. We agree. Here, it is clear that trial court
exercised its judicial discretion when weighing all relevant factors invoked by the facts of
the case and the findings made are supported by the record. Appellant’s second
assignment of error is not well-taken.
15.
CONCLUSION
{¶ 22} For the reasons set forth above, the judgment of the Ottawa County Court
of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
16.