State v. Allen ( 2012 )

[Cite as State v. Allen, 2012-Ohio-1193.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96952
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LAWRENCE ALLEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-546418
BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: March 22, 2012
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, OH 44119
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Donna Blough Thomas
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Lawrence Allen appeals his conviction for criminal nonsupport
in violation of R.C. 2919.21(B), with a prior felony conviction for nonsupport, a felony
of the fourth degree. For the following reasons, we affirm.
{¶2} Allen pleaded guilty to the nonsupport violation. At Allen’s change of
plea hearing, the trial court advised him of the “bad time” provisions under which his
sentence could be extended for 30, 60, or 90 days based on violations committed while
incarcerated. The trial court detailed Allen’s previous probation violations and
conviction for nonsupport and noted that Allen has a history of noncompliance with court
orders. Allen served nine months in prison on his previous nonsupport violation. We
also note that there are undeveloped references in the record to Allen being coerced into
the plea in the hallway of the courthouse, prior to his plea hearing. The trial court
sentenced Allen to 18 months of incarceration, fined him $250, and ordered him to pay
restitution in the amount of $23,876.84 and court costs. Allen timely appealed his
conviction, raising three assignments of error. We will address each in turn.
{¶3} Allen’s first assignment of error provides as follows: “The appellant’s
plea was not knowingly, intelligently, and voluntarily given under Crim.R. 11 and the
Fourteenth Amendment of the federal constitution.” Allen’s first assignment of error is
without merit.
{¶4} We review de novo the trial court’s acceptance of a plea. State v. Sample,
8th Dist. No. 81357, 2003-Ohio-2469, ¶ 4. “When a defendant enters a plea in a
criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure
on any of those points renders enforcement of the plea unconstitutional under both the
United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d
525, 527, 1996-Ohio-179, 660 N.E.2d 450. We will not reverse such a determination if
the trial court substantially complied with the nonconstitutional requirements of Crim.R.
11. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 479 (1990), citing State v.
Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977). “A plea is in substantial
compliance * * * when it can be inferred from the totality of the circumstances that the
defendant understands the charges against him.” State v. Walker, 8th Dist. No. 65794,
1994 WL 530892, *2 (Sept. 29, 1994), citing State v. Rainey, 3 Ohio App.3d 441, 446
N.E.2d 188 (10th Dist.1982), paragraph one of the syllabus. Furthermore, a defendant
must show a prejudicial effect, or, in other words, whether the plea would have otherwise
been made. Id.{¶5} Allen argues that the trial court erred in advising him of the “bad time”
provisions because R.C. 2967.11 has been repealed, and in basing the restitution amount
on the amount of arrearage at the time of sentencing rather than the amount owed at the
time the plea was entered. Both arguments fail to address the prejudicial effect, if any,
on Allen.
{¶6} In order to demonstrate that he was prejudiced by the trial court’s
advisement, Allen must show that he would not have pleaded guilty had the error been
corrected. No such showing was made. In fact, the trial court’s erroneous reference to
the repealed statutory scheme did not affect the terms of the plea. Not being subject to
the repealed R.C. 2967.11 has no bearing on his plea or sentence, and Allen has not
otherwise shown prejudice by the erroneous notification.
{¶7} Finally, although Allen agreed to the lesser amount of restitution at his
change of plea hearing, Allen never objected to the trial court’s including the $1449.40 of
additional arrearage from the intervening months between the plea and the sentencing
hearing, and he does not argue the additional amount is not owed. Inasmuch as Allen
attempted to argue ineffective assistance of counsel for failing to address the restitution
amount, his entire argument on ineffective assistance of counsel provides: “To the extent
that counsel did not correct the judge or object to the misinformation, the error is plain
error under Crim.R. 52 and counsel was ineffective under the Sixth and Fourteenth
Amendments of the federal Constitution.” Here again, Allen does not dispute the
additional arrearage owed. We are unable to find counsel’s performance was deficient
or that any prejudice occurred in light of that omission. Allen’s first assignment of error
is overruled.
{¶8} Allen’s second assignment of error provides as follows: “The trial court erred
to the prejudice of the appellant when it failed to consider his present and future ability to
pay the financial sanctions of $23,876.84 in restitution, court costs of $554.00 and a
$250.00 fine under R.C. 2929.19(B)[(5)] and the Fourteenth Amendment of the federal
constitution.” At the plea hearing, Allen agreed to pay $22,427.44 in restitution,
representing the amount owed for past child support. Allen’s sole argument is that the
trial court failed to consider his present and future ability to pay financial sanctions. His
second assignment of error is without merit.
{¶9} We review the trial court’s imposition of fines and restitution under the abuse
of discretion standard. The term abuse of discretion means “an unreasonable, arbitrary, or
unconscionable action.” State ex rel. Doe v. Smith,
123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 15. Before imposing the
restitution as part of the financial sanction, authorized pursuant to R.C. 2929.18(A)(1), a
trial court must also consider the offender’s present and future ability to pay the amount
of the sanction or fine. R.C. 2929.19(B)(5). The failure to object to the amount of the
fine at a time when the trial court could correct that error constitutes a waiver of all but
plain error. State v. Barker, 8th Dist. No. 93574, 2010-Ohio-4480, ¶ 11. Further, if the
parties stipulate to the restitution amount, the defendant is precluded from raising the
court’s failure to determine his ability to pay as an assigned error. State v. Hody, 8th
Dist. No. 94328, 2010-Ohio-6020, ¶ 25.
{¶10} In this matter, Allen stipulated as to the amount of restitution during his plea
colloquy. Allen specifically agreed to pay $22,427.44 in restitution as part of his plea
deal. The court did not need to determine his ability to pay because Allen agreed to
pay restitution, and the trial court did not err when it failed to specifically adjudicate the
issue of ability to pay. The only difference between the amount Allen stipulated to at
the plea and sentencing was an additional $1,449.40 that reflected the intervening months
between hearings for which Allen failed to pay support. The court also required Allen
to pay $554.00 for court costs and a $250.00 fine. Allen’s failure to object to the
inclusion of the additional support owed waived all but plain error.
{¶11} “Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B). “Plain error exists
only if ‘but for the error, the outcome of the trial clearly would have been otherwise, and is
applied under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’” State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61,
quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). Allen did not
dispute that he owed the additional child support payments. Considering the facts of
this case, the additional months being included as restitution for the current case did not
promote a manifest miscarriage of justice. Further, the fact that Allen was willing to
pay more than $20,000 as restitution is an indication that the imposition of $774.00 for
court costs and a fine is not promoting a manifest miscarriage of justice. Allen’s second
assignment of error is overruled.
{¶12} Allen’s third assignment of error provides as follows: “The trial court’s
imposition of the maximum period of incarceration for a fourth degree non violent [sic]
felony is not clearly and convincingly supported by the record.” Allen argues that
because the state sought community control sanctions, because he is a nonviolent
offender, and because the state will spend more incarcerating him for the 18 months than
he owes for restitution, the trial court erred in imposing the maximum prison term for a
fourth degree felony. See R.C. 2929.14(A)(1). His third assignment of error is without
merit.
{¶13} “A trial court possesses broad discretion to impose a prison sentence within
the statutory range. In order to find an abuse of discretion, we must find that the trial
court’s attitude was unreasonable, arbitrary, or unconscionable.” (Internal citations
omitted.) State v. Broom, 8th Dist. No. 95965, 2011-Ohio-4952, ¶ 17, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “R.C. 2929.13(B) creates a
preference for (but not a presumption in favor of) community control (formerly
probation) for lower-level felonies [and also] allows, but does not mandate, findings
before imprisonment for felonies of the fourth or fifth degree * * *.” Id., citing State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 43. Trial courts have full
discretion to impose a prison sentence within the statutory range. Id. at ¶ 18.
{¶14} Contrary to Allen’s argument, we need not speculate as to the trial court’s
motivation in imposing the maximum prison sentence. The trial court summarized
Allen’s proclivity to ignoring his legal support obligations and terms of probation in other
cases. The trial court highlighted the fact that Allen previously spent nine months in jail
for violating probation on another nonsupport case. The trial court was motivated by
Allen’s likely recidivism. Further, the prison sentence was within the statutory range
and not contrary to law, and the court indicated it considered all factors required by law.
Having offered no other arguments to substantiate his claims, Allen’s third assignment of
error is overruled.
{¶15} The decision of the trial court is affirmed.
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 conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR