State v. Lorraine ( 2024 )

[Cite as State v. Lorraine, 2024-Ohio-1343.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0040
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
PAMELA J. LORRAINE,
Trial Court No. 2022 CR 00251
Defendant-Appellant.
OPINION
Decided: April 9, 2024
Judgment: Affirmed in part, remanded
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
James R. Eskridge, Megargel, Eskridge, & Mullins, LLP, 231 South Chestnut Street,
Ravenna, OH 44266 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Appellant, Pamela J. Lorraine (“Lorraine”), appeals her conviction for
robbery, a felony of the third degree, from the Trumbull County Court of Common Pleas.
{¶2} On March 5, 2022, Lorraine and her son, Steven Lorraine, entered Menards
in Bazetta Township in Trumbull County. During the visit, the two were observed by loss
prevention officers through the store’s video security system. The officers watched
Lorraine place a video camera in her purse and then watched her son place a phone
charger in his pants. Lorraine placed several other items in a shopping cart, and the pair
exited the store without paying for the items.
{¶3} Upon leaving, the loss prevention officers approached Lorraine and her son.
One of the officers asked Lorraine, who exited first, to look in her purse. When the officer
attempted to retrieve the camera from Lorraine’s purse, she pushed him away. According
to transcripts, not knowing who the loss prevention officer was, Lorraine’s son then “took
swings” at the officer, knocking his glasses off.
{¶4} Lorraine was indicted on April 26, 2022, on one count of robbery, a felony
of the second degree. On February 27, 2023, Lorraine entered a guilty plea to an
amended indictment of robbery, a felony of the third degree. A sentencing hearing was
held on May 24, 2023, where Lorraine was sentenced to a prison term of 30 months plus
fines and costs. Lorraine now timely appeals her conviction.
{¶5} In her initial brief, appellant raised the following assignments of error:
[1.] “Appellant’s plea was not made knowingly, intelligently, and voluntarily due to
ineffective assistance from her trial counsel, who allowed her to enter a plea of
guilty despite there being no factual basis to support a finding of guilty.”
[2]. “The trial court erred by sentencing appellant to a near-maximum term of
imprisonment.”
{¶6} Appellant subsequently sought leave to file a supplemental brief and raised
the following additional assignment of error: “The portion of sentence imposed by the trial
court that prohibits Ms. Lorraine’s participation in any program designed to shorten her
sentence was contrary to law.”
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{¶7} Lorraine’s first assignment of error contends that she did not give her guilty
plea knowingly, intelligently, and voluntarily due to the ineffectiveness of her trial counsel,
because there was no factual basis to support a finding of guilt.
{¶8} Lorraine asserts the reason she did not enter her plea of guilty knowingly,
intelligently, or voluntarily is because her trial counsel did not advise her that the State
did not have enough facts to support a finding of guilty.
{¶9} Lorraine’s first assignment of error is framed as a knowingly, voluntarily,
intelligently accepted guilty plea error. However, the analysis of the issues raised under
Lorraine’s first assignment of error asks this Court to review the sufficiency of the
evidence and the effectiveness of Lorraine’s trial counsel.
‘A guilty plea “is a complete admission of the defendant’s
guilt.” State v. Bradley, 11th Dist. Ashtabula No. 2017-A-0070,
2018-Ohio-1671, ¶ 6, quoting Crim.R. 11(B)(1). Therefore, a
guilty plea “precludes a defendant from appealing the merits
of the conviction, such that a defendant cannot claim that the
facts do not support the conviction.” Id., citing State v. Siders,
78 Ohio App.3d 699, 701, 605 N.E. 2d 1283 (11th Dist. 1992).’
By knowingly, intelligently, and voluntarily entering his guilty
plea, appellant waived the right to require the State to prove
each and every element of the offense * * * beyond a
reasonable doubt. See Crim.R. 11(C)(2). As this was a guilty
plea, the trial court was not required to determine whether a
factual basis existed to support the plea prior to entering
judgment. See Bradley at ¶ 7. This is because appellant’s plea
of guilty to each and every element of the offense “provides
the necessary proof of the elements of the crime and sufficient
evidence to support the conviction.” Id., quoting State v.
Isabell, 12th Dist. Butler No. CA2003-06-152, 2004-Ohio-
2300, ¶ 16.
State v. Crew, 11th Dist. Portage No. 2021-P-0028, 2021-P-0029, 2021-P-
0030, 2022-Ohio-752, ¶ 17.
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{¶10} Lorraine does not deny that she committed a theft offense. “The element of
force (or harm) differentiates robbery from theft.” State v. Muncy, 11th Dist. Ashtabula No.
2011-A-0066, 2012-Ohio-2830, ¶ 19. Lorraine contends that her theft did not rise to the
level of a robbery. In Lorraine’s brief, counsel asserts, “[t]he state’s factual basis did not
allege that Ms. Lorraine used or threatened the use of force against another in committing
a theft offense as is required by R.C. 2911.02(A)(3).” However, Lorraine waived her ability
to appeal sufficiency when she entered her guilty plea, and the trial court was under no
obligation to determine if a factual basis existed to support the plea. Crew, supra at ¶ 17.
{¶11} A guilty plea also precludes an appeal for ineffective assistance of counsel,
with an exception to where a plea was not given knowingly, voluntarily, and intelligently.
State v. Cleavenger, 11th Dist. Portage No. 2019-P-0036, 2020-Ohio-73, ¶ 18.
‘As a general proposition, the Supreme Court of Ohio has
stated that “a guilty plea represents a break in the chain of
events which has preceded it in the criminal process.” Id.,quoting State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d
351, 1992-Ohio-130 (citation omitted). “Consequently, if a
criminal defendant admits his guilt in open court, he waives
the right to challenge the propriety of any action taken by the
court or counsel prior to that point in the proceeding unless it
affected the knowing and voluntary character of the plea. This
also includes a waiver of any action which may have resulted
in a ‘deprivation’ of a constitutional right that did not affect the
knowing and voluntary character of the plea.” Id. (Citation
omitted).
‘The mere fact that, if not for the alleged ineffective assistance
of counsel, the defendant would not have entered a guilty plea
is not sufficient to establish the requisite connection between
guilty plea and the ineffective assistance. * * * Rather,
ineffective assistance of trial counsel is found to have affected
the validity of a guilty plea when it precluded a defendant from
entering his plea knowingly and voluntarily.’ State v. Bean,
11th Dist. No. 2008-G-2839, 2009-Ohio-682, at ¶ 11, citing
State v. Madeline, 2002-Ohio-1332, 2002 Ohio App. LEXIS
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1348, at *10 (citations omitted); State v. Smith, 11th Dist. No.
2007-T-0076, 2008-Ohio-1501, at ¶ 27 (citation omitted).
State v. Davies, 11th Dist. Lake No. 2008-L-121, 2009-Ohio-2793, ¶ 8-9.
{¶12} Lorriane’s contention that she would not have entered a guilty plea if not for
the ineffective assistance of counsel is not enough to establish that her plea was not given
knowingly and voluntarily. Id.{¶13} “T]his [C]ourt reviews de novo whether the trial court accepted a plea in
compliance with Crim.R. 11. State v. Dundics, 2016-Ohio-1368, 62 N.E.3d 1013, ¶ 10
(11th Dist.).” State v. Willard, 2021-Ohio-2552, 175 N.E.3d 989, ¶ 51 (11th Dist.).
{¶14} Crim.R. 11(C)(2)(a) provides in relevant part:
(2) In felony cases the court * * * shall not accept a plea of
guilty * * * without first addressing the defendant personally *
* * and doing the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved * * *.
{¶15} During the February 27, 2023 plea hearing, the following exchange
occurred as the trial court explained to Lorraine what the State was required to prove:
THE COURT: I have before me a Finding of a Guilty Plea to
an Amended Indictment charging you with Robbery, a felony
of the third degree. Is that your signature?
THE DEFENDANT: Yes.
THE COURT: Anyone make promises to get you to plead
guilty here today?
THE DEFENDANT: No, Your Honor.
THE COURT: * * * If this case were to proceed to trial, the
State would have to prove what you did, in attempting or
committing a theft offense, or in fleeing immediately after the
attempt or offense, did use or threaten the immediate use of
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force against another, here in Trumbull County, Ohio. The
penalty for this offense is 9, 12, 18, 24, 30, or 36 months and
up to a $10,000.00 fine. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
{¶16} During the sentencing hearing held on May 24, 2023, this additional
exchange occurred when Lorraine began to deny that she stole anything from Menards
on May 5, 2022:
THE DEFENDANT: * * * I did not steal. They got no
merchandise off me. I was not looking – like, if you see the
video, I had a party light –”
THE COURT: Well, ma’am, that is irrelevant at this point in
time because you have pled guilty to Robbery, a felony of the
third degree. * * *
THE DEFENDANT: Okay.
THE COURT: Are you contesting it? Do you not want to plead
guilty?
THE DEFENDANT: No.
{¶17} The record shows that the trial court accepted Lorraine’s guilty plea in
compliance with Crim.R. 11. Lorraine’s plea was given knowingly, intelligently, and
voluntarily. Therefore, Lorraine’s first assignment of error is without merit.
{¶18} Lorraine’s second assignment of error asserts that the trial court erred when
it sentenced Lorraine to the “near-maximum term of imprisonment.”
{¶19} This Court noted recently in State v. Lamb, 11th Dist. Portage No. 2022-P-
0084, 2023-Ohio-2834, ¶ 9-10:
R.C. 2953.08(G) governs our review of felony sentences, and
provides, in relevant part, that after an appellate court’s review
of the record, it ‘may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate
the sentence and remand * * * if it clearly and convincingly
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finds * * * [t]hat the sentence is * * * contrary to law.’ R.C.
2953.08(G)(2)(b); State v. Meeks, 11th Dist. Ashtabula No.
2022-A-0060, 2023-Ohio-988, ¶ 11.
A sentence is contrary to law when it is ‘in violation of statute
or legal regulations’ * * *.” Meeks at ¶ 11, quoting State v.
Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
¶ 34. Thus, ‘“[a] sentence is contrary to law when it does not
fall within the statutory range for the offense or if the trial court
fails to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing
factors set forth in R.C. 2929.12.”’ State v. Shannon, 11th Dist.
Trumbull No. 2020-T-0020, 2021-Ohio-789, ¶ 11, quoting
State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705,
2012-Ohio-199, ¶ 74; see also State v. Wilson, 11th Dist. Lake
No. 2017-L-028, 2017-Ohio-7127, ¶ 18.
{¶20} Lorraine contends in her brief that her son received “only three years of
probation for the same conviction arising from the same event.”
{¶21} The appellate court is precluded from reweighing the evidence in the record
and supplanting its judgment for that of the trial court:
[T]he Ohio Supreme Court recently held that * * * ‘R.C.
2953.08(G)(2)(b) * * * “does not provide a basis for an
appellate court to modify or vacate a sentence based on its
view that the sentence is not supported by the record under
R.C. 2929.11 and 2929.12.”’
State v. Stanley, 11th Dist. Trumbull No. 2020-T-0039, 2021-Ohio-549, ¶ 10, citing State
v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39.
{¶22} R.C. 2929.11 and R.C. 2929.12 lay out the overriding principles and
purposes factors for felony sentencing.
{¶23} R.C. 2929.11 provides in relevant part:
(A) A court that sentences an offender for a felony 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, to punish
the offender, and to promote the effective rehabilitation of the
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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 future crime, rehabilitating the
offender, and making restitution to the victim of the offense,
the public, or both.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony
sentencing set forth in division (A) of this section,
commensurate with and not demeaning to the seriousness of
the offender's conduct and its impact upon the victim, and
consistent with sentences imposed for
similar crimes committed by similar offenders. * * *
{¶24} During the sentencing hearing, the trial court explained:
The Court has considered the overriding principles and
purposes of felony sentencing and has further considered all
relevant seriousness and recidivism factors contained in
2929.11 and 2929.12. The Court finds that the Defendant has
prior felony convictions and a lengthy misdemeanor record.
The Defendant has been on community control and probation
on multiple occasions for the past 20 years. The Defendant
was placed in Drug Court for her last felony conviction in 2018.
Defendant was negatively terminated and sentenced to prison
on that offense. The Defendant has served a prior prison term.
The offender is a high risk to re-offend. A prison term is
proportional to the Defendant’s conduct. A prison term is
consistent with similarly situated offenders.
{¶25} The trial court further explained “[t]he Court has reviewed the presentence
investigation prepared by the Adult Probation Department and the record.”
{¶26} R.C. 2929.11 and R.C. 2929.12 require the trial court to consider factors
relevant to the offender, the offender’s conduct, the offender’s likelihood to reoffend, and
other factors as applied to the offender being sentenced. Lorraine’s assertion would have
the appellate court consider the required statutory factors as applied to her son in
comparison to hers, based on the single offense at hand. Not only is Lorraine’s assertion
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outside of the scope of what the law permits, she is essentially asking this Court to go
outside the record and reweigh the factors supplanting this Court’s judgment for the
judgment of the trial court. We are precluded from doing so by App. R. 12(A)(1)(b) of the
rules of appellate procedure and Jones, supra ¶ 42. Lorraine’s presentence investigation
report indicates that she has a lengthy criminal history, and the sentence given is well
within the statutory range for the offense. Nothing in the record indicates that the trial
court’s sentence is contrary to law. Therefore, Lorraine’s second assignment of error is
without merit.
{¶27} In appellant’s supplemental assignment of error, she alleges a portion of
her sentence, which prohibits her participation in any program designed to shorten her
sentence, is contrary to law.
{¶28} Specifically, appellant asserts that she has been prohibited from
participating in the programs wherein she could earn credit toward her sentence in
accordance with R.C. 2967.193 (A)(2). Appellant concedes that she is not eligible to earn
credit under R.C. 2967.193(A)(3) due to her conviction.
{¶29} R.C. 2967.193 (A)(2) provides in relevant part:
[A] person confined in a state correctional institution or placed
in the substance use disorder treatment program may
provisionally earn one day or five days of credit, * * * toward
satisfaction of the person's stated prison term, * * * for each
completed month during which the person, if confined in a
state correctional institution, productively participates in an
education program, vocational training, employment in prison
industries, treatment for substance abuse, or any other
constructive program developed by the department of
rehabilitation and correction with specific standards for
performance by prisoners or during which the person, if
placed in the substance use disorder treatment program,
productively participates in the program.
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{¶30} R.C. 2967.193 authorizes the department of rehabilitation and correction to
determine a prisoner’s eligibility to earn credit, to calculate the amount of credit earned,
to award that credit to the prisoner, as well as to reduce credits previously earned upon
a violation of prison rules. State v. Livingston, 2014-Ohio-1637, 9 N.E.3d 1117, ¶ 7 (1st
Dist.). See State v. Caputo, 11th Dist. Lake No. 2014-L-010, 2015-Ohio-4829, ¶ 10. R.C.
2967.193 does not provide the judiciary with a role in determining eligibility. Id. However,
a sentencing court does have the authority to determine a defendant’s eligibility to be
placed in an intensive prison program under R.C. 5120.032(B)(1)(a). A trial court can also
disapprove a defendant’s transfer into a transitional control program. Livingston at ¶ 7–9.
{¶31} The sentencing provision at issue is as follows:
“The Defendant is not permitted to participate in any
Department of Rehabilitation and Corrections early release,
transitional control, alternative housing placement, or any
other program currently run by the Department of
Rehabilitation and Correction or developed in the future
designed to shorten the sentence imposed by this Court.”
{¶32} Appellant asserts that she has been prohibited from participating in the
programs pursuant to R.C. 2967.193(A)(2) based on this language. In the instant case,
the trial court prohibits appellant’s participation in any program “designed to shorten the
sentence imposed.” This language would necessarily include the earned credit program.
While appellant is not guaranteed to be declared eligible for earned credit, the trial court
is without the authority to prohibit participation.
{¶33} However, a review of the transcripts from the sentencing hearing
establishes that while the trial court stated, “[t]he Defendant shall not be placed on any
programming to be eligible for any early release,” the trial court also advised appellant at
sentencing:
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“You may be eligible one or five days of credit for each
completed month for which you productively participate in an
education program, vocational training, employment in prison
industry, treatment for substance abuse and any other
constructive program developed by the Ohio Department of
Corrections. However, these credits are not automatically
awarded but must be earned.”
{¶34} This language mirrors the language contained in R.C. 2967.193(A)(3).
However, this advisement was not included in the sentencing entry.
{¶35} “It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth. State ex rel. Fogle v. Steiner (1995),
74 Ohio St.3d 158, 163–164, 656 N.E.2d 1288; Crim.R. 36.” State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18. A trial court may use nunc pro tunc
entries “to make the record reflect what the court actually decided and not what the court
might or should have decided or what the court intended to decide.” Id. citing State v.
Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15; Crim.R. 36.
{¶36} Because the trial court did advise appellant of the possibility of the earned
credit program at sentencing, we conclude that her sentence is not contrary to law.
However, upon review of the record, the trial court’s sentencing entry does not reflect
what the trial court decided and announced at appellant’s sentencing hearing regarding
the potential for earned credit. Therefore, this matter is remanded for the trial court to
include in its entry the language pursuant to R.C. 2967.193(A)(3) which was announced
at sentencing.
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{¶37} For the foregoing reasons, we affirm the judgment of the Trumbull County
Court of Common Pleas, but remand for correction of the sentencing entry consistent with
this opinion.
EUGENE A. LUCCI, P.J.,
JOHN E. EKLUND, J.,
concur.
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