State v. Dissell ( 2012 )

[Cite as State v. Dissell, 2012-Ohio-354.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96634
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT DISSELL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-545107
BEFORE: Stewart, P.J., Jones, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: February 2, 2012
ATTORNEY FOR APPELLANT
Brooke Deines
Law Offices of Brooke Deines, LLC
P.O. Box 91426
Cleveland, Ohio 44101
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: John P. Colan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} Defendant-appellant, Robert Dissell, pleaded guilty to two counts of
robbery, one count of theft, and one count of drug possession and was sentenced to a
five-year term of incarceration. He appeals the conviction and sentence, arguing that his
guilty pleas were made in violation of Crim.R. 11 and that the court abused its discretion
when sentencing him. For the following reasons, we affirm.
{¶ 2} The underlying facts of this case are stated in summary form. On
December 7, 2010, appellant robbed a PNC bank. He handed the teller a note containing
“implied force wording.” Upon arrest, the police found a small amount of heroin (less
than one gram) on appellant and $364. Dissell did not use a weapon in committing the
offense, no one was harmed in the process, and the money he took was fully recovered.
{¶ 3} Dissell was indicted by a Cuyahoga County Grand Jury on two counts of
robbery in violation of R.C. 2911.02(A)(2) and 2911.02(A)(3), both felonies of the
second degree; one count of theft in violation of R.C. 2913.02(A)(4), a fifth degree
felony; and one count of drug possession in violation of R.C. 2925.11(A), also a fifth
degree felony, with a forfeiture specification. He was arraigned on January 5, 2011 and
pleaded not guilty to the charges. On February 24, 2011, Dissell appeared before the
court and withdrew his pleas of not guilty and entered guilty pleas to all counts.
I
{¶ 4} In his first assignment of error, Dissell asserts that his guilty pleas were
entered in violation of his rights pursuant to Crim.R. 11. He argues that his pleas were
not knowing and voluntary because the trial court’s statements during the plea lead him to
reasonably believe that he would receive a much lighter sentence than the one he was
given.
A
{¶ 5} Crim.R. 11(C) governs the process by which a trial court must inform a
defendant of certain constitutional and nonconstitutional rights before accepting a felony
plea of guilty or no contest. The underlying purpose of Crim.R. 11(C) is to convey
certain information to a defendant so that he can make a voluntary and intelligent decision
regarding whether to plead guilty. State v. Schmick, 8th Dist. No. 95210,
2011-Ohio-2263, 2011 WL 1797234.
{¶ 6} Crim.R. 11(C)(2) provides:
In felony cases, the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest without
first addressing the defendant personally and doing all of 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, and, if applicable, that the defendant is not eligible for
probation or for the imposition of community control sanctions at the
sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
{¶ 7} In resolving whether a criminal defendant knowingly, intelligently, and
voluntarily entered a plea, we review the record to determine whether the trial court
adequately advised the defendant of his constitutional and non-constitutional rights set
forth in Crim.R. 11(C). State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).
{¶ 8} The standard of review we use differs depending upon the rights appellant
raises on appeal. Strict compliance is required if the appellant raises a violation of a
constitutional right delineated in Crim.R. 11(C)(2)(c); alternatively, if the appellant raises
a violation of a nonconstitutional right found in Crim.R. 11(C)(2)(a) and (b), we look for
substantial compliance. State v. Joachim, 8th Dist. No. 90616, 2008-Ohio-4876, 2008
WL 4356474, quoting State v. Asberry, 173 Ohio App.3d 443, 2007-Ohio-5436, 878
N.E.2d 1082 (8th Dist.); State v. Moviel, 8th Dist. No. 86244, 2006-Ohio-697, 2006 WL
350205.
B
{¶ 9} Dissell alleges a violation of a non-constitutional right. He asserts that the
trial court misled him with regard to the penalties he faced and, as a result, he did not
enter his plea knowingly or voluntarily. We, therefore, review the trial court’s actions in
the plea colloquy for substantial compliance with Crim.R. 11.
{¶ 10} Dissell relies on the following exchange in support of his argument:
THE COURT: You face a—I would call it a theoretical minimum term of
six months; meaning, the minimum term on Counts 3 and 4 run concurrent
with probation or some other sanctions on Counts 1 and 2. But I call that
theoretical because if you’re sentenced to prison it is likely that you’d be
sentenced to prison on the robberies, where the minimum sentence is two
years. So as I mentioned, the theoretical minimum sentence is six months,
but the practical minimum sentence is probably two years. You should
consider that in deciding to plead guilty as proposed. And certainly the
practical and theoretical maximum is 18 years.
{¶ 11} The record indicates that the following questions were asked of appellant:
THE COURT: Are you able to read and write in English?
DEFENDANT: Yes.
THE COURT: Currently are you under the influence of any illegal drugs
or alcohol?
DEFENDANT: No, sir.
***
THE COURT: Does [the medication you are taking] affect your
cognition, your ability to think straight?
DEFENDANT: No, Your Honor.
THE COURT: Do you believe you’re thinking clearly here this morning?
DEFENDANT: Yes, Your Honor.
THE COURT: If I make a statement during this hearing that you don’t
understand, will you tell me that?
DEFENDANT: Yes, sir.
***
THE COURT: You have constitutional rights that may be exercised at a
trial. Of course, if you plead guilty to the indictment there’s going to be
no need to have a trial. So by pleading guilty you effectively waive or
give up your constitutional rights; do you understand?
DEFENDANT: Yes, sir.
***
THE COURT: The theft offense is a felony five, as is a drug possession
offense; the possible sentence for a single felony five is anywhere from 6 to
12 months inclusive in prison. Do you understand?
DEFENDANT: Yes.
THE COURT: Now you have four charges here, it is possible that all
sentences on each charge may be made to be served consecutively, meaning
one after the next after the next. Because of that you face a maximum
possible sentence of eighteen years in prison. Do you understand this?
DEFENDANT: Yes.
The court then instructed appellant about postrelease control. The defendant
acknowledged that he understood what postrelease control entailed.
{¶ 12} The court continued, stating:
THE COURT: * * * So just by way of example, if you were given what I
call the practical minimum of two years in prison and then you came out
and you violated PRC a number of times, you could receive as sanctions for
violating up to a total of one year in prison under that example. Do you
understand?
DEFENDANT: Yes, Your Honor.
The judge explained to Dissell that he was using a hypothetical example when discussing
appellant’s possible sentence for his guilty plea:
THE COURT: * * * And I shouldn’t have to say this, but out of an
abundance of caution I will. I mention the two years in that scenario only
as an example not an indication of what the sentence may be in this case.
* * * Do you understand this?
DEFENDANT: Yes.
***
THE COURT: All right. Well, I think you are aware of the consequences,
I also think you’re doing this of your own free will. So I’m going to ask
you, sir, how do you plead * * *?
Having asked these questions, the court was persuaded that Dissell understood the
charges against him and the maximum possible sentence he faced. His guilty pleas,
therefore, were knowingly, intelligently, and voluntarily made.
C
{¶ 13} Appellant relies also on our decision in Asberry, 173 Ohio App.3d 443,
2007-Ohio-5436, 878 N.E.2d 1082, to support his claim that we should vacate his guilty
pleas as not being knowingly and voluntarily made. We note that, just like in Asberry,
the judge who accepted Dissell’s guilty pleas was different from the judge who sentenced
him. However, the similarity between the two cases ends there.
{¶ 14} In Asberry, this court vacated the appellant’s guilty plea as not being
knowingly made because we found that the circumstances surrounding the entering of
appellant’s plea and his subsequent sentencing led Asberry to reasonably believe he
would not be incarcerated. Unlike in Asberry, Dissell was aware that he could receive a
prison sentence. The court used hypothetical examples to illustrate the length of
sentences Dissell could receive, and it stated that there was a theoretical minimum
sentence of six months in prison and a practical minimum of two years. However, the
record clearly demonstrates that the court acknowledged that the hypotheticals were
merely examples and were not indicative of the actual sentence appellant would receive.
Also, unlike the circumstances in Asberry, neither the state nor the trial court mentioned
or alluded to the possibility that prison time was unlikely for Dissell. We find
appellant’s comparison to Asberry not well taken. Appellant’s first assignment of error
is overruled.
II
{¶ 15} Dissell’s second assigned error asserts that the court abused its discretion by
failing to adhere to R.C. 2929.11 and 2929.12 when it sentenced him to five years in
prison. He argues that the trial court failed to properly consider the sentencing factors of
the statutes because the facts and circumstances of his case overcome the presumption of
prison. In support of this argument, Dissell notes in his brief that he was a first-time
offender,1 no weapon was used to commit the crime, he did not physically harm anyone,
and all of the stolen property was recovered. In light of these facts, he contends that the
trial court abused its discretion by sentencing him to a lengthy prison term.
{¶ 16} The Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, eliminated mandatory judicial fact-finding for upward
departures from minimum sentences, but left intact R.C. 2929.11 and 2929.12 for trial
courts to consider when imposing a sentence. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124. The plurality opinion in Kalish established a
two-step procedure for reviewing a felony sentence. The first step is to “examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the
sentence to determine whether the sentence is clearly and convincingly contrary to law.”
Id. at 4. If this first step “is satisfied,” the second step requires that the trial court’s
decision be “reviewed under an abuse-of-discretion standard.” State v. White, 5th Dist.
No. CA-00111, 2009-Ohio-6447, 2009 WL 4690243.
{¶ 17} R.C. 2929.11(A) states in pertinent part:
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 and to punish the offender. 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
Although Dissell’s brief states that he was a first offender, both the state and the trial court
1
acknowledged prior convictions, though none as serious as the offenses in this case.
offender and making restitution to the victim of the offense, the public, or
both.
R.C. 2929.12 gives the court discretion to determine the most effective way to comply
with the purposes and principles of sentencing set forth in R.C. 2929.11 when imposing a
sentence upon an offender. In exercising this discretion, the court shall consider the
factors relating to the seriousness of the conduct, the factors relating to the likelihood of
the offender’s recidivism, along with any other factors that are relevant to achieving the
purposes and principles of sentencing.
{¶ 18} In order for this court to find that the trial court abused its discretion, we
must find that the court’s decision “is unreasonable, arbitrary or unconscionable.”
Kalish at ¶ 19, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). We find that the five-year sentence was not an abuse of the trial court’s
discretion.
{¶ 19} Before sentencing Dissell, the court stated that it had reviewed the
presentence investigation report and would consider, for purposes and principles of felony
sentencing, R.C. 2929.11 and the seriousness and recidivism factors contained in R.C.
2929.12. The court was aware that Dissell had a history of substance abuse with heroin,
and that he was still struggling with this addiction. Additionally, he had refused to take
a drug test for the presentence investigation and, on another occasion, tested positive for
heroin. The court acknowledged that heroin is probably one of the most severe forms of
addiction that the court sees.
{¶ 20} The court noted further that Dissell had prior criminal convictions, showing
a certain familiarity with the criminal justice system, even though these prior convictions
were not for offenses as severe as the ones before the court. The court stated that,
“given the facts and circumstances, here, again those purposes and principles of
sentencing do call for rehabilitation of the offender, but that is after the punishment and
also that the sentence should not demean the seriousness of the offense, and that’s what
the [c]ourt certainly takes issue with here is that the offense is a bank robbery. ***
[I]t’s a serious offense and I think it does call for a serious penalty.”
{¶ 21} The court noted that appellant placed others at risk in that “everyone else in
the bank at the time could have been subject to any kind of an outburst with respect to a
reaction to the attempted offense. Even if you didn’t have a gun, * * * innocent people
could have been hurt or injured.” And before imposing sentence, the court stated further
that it “is going to find that a prison sentence is necessary in order to protect the public
and not demean the seriousness of this offense.”
{¶ 22} The court’s actions were not unreasonable, arbitrary, or unconscionable.
We find that the court went well beyond what was required when sentencing Dissell and,
therefore, did not abuse its discretion. Appellant’s second assigned error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE
LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J., CONCUR