State v. Beach , 2015 Ohio 3445 ( 2015 )

[Cite as State v. Beach, 2015-Ohio-3445.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 26021
27124
Appellee
v.
APPEAL FROM JUDGMENT
THOMAS D. BEACH ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE Nos. CR 10 09 2538 (A)
CR 11 01 0141
DECISION AND JOURNAL ENTRY
Dated: August 26, 2015
MOORE, Judge.
{¶1} Defendant, Thomas D. Beach, appeals from the judgments of the Summit County
Court of Common Pleas. This Court affirms in part, reverses in part, and remands this matter for
further proceedings consistent with this decision.
I.
{¶2} This appeal arises from two criminal cases against Mr. Beach. In the first case,
Mr. Beach was charged with two counts of forgery in violation of R.C. 2913.31(A)(3). These
charges resulted from Mr. Beach cashing two forged checks. The first check that he cashed at
Walmart was purportedly drawn on the account of the Akron Metropolitan Housing Authority
(“AMHA”), and the second that he cashed at Roush’s Market, was purportedly drawn on the
account of Oriana House. Mr. Beach pleaded not guilty to the charges and waived his right to a
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jury trial. The case proceeded to a bench trial, and the trial court found him guilty on both
forgery charges and deferred sentencing until after resolution of the second case.
{¶3} In the second case, Mr. Beach was charged with one count of obstructing justice
in violation of R.C. 2921.32(A)(5), and one count of having weapons while under disability in
violation of R.C. 2923.13(A)(2). Although the record does not contain many details about these
charges, they appear to have resulted from Mr. Beach having involved himself in the
investigation of the murder of a man named Garland Dean. Mr. Beach pleaded not guilty to the
charges. Thereafter, he withdrew his not guilty pleas and entered a plea of guilty to the charge of
obstructing justice, and the court dismissed the charge of having weapons while under disability
upon the motion of the State.
{¶4} The trial court then sentenced Mr. Beach on both cases. In separate sentencing
entries dated June 13, 2011, the trial court sentenced Mr. Beach to twelve months of
imprisonment on each forgery count, to be served concurrently with each other, but
consecutively to the obstruction of justice sentence, for which it imposed five years of
imprisonment. In both cases, the trial court further ordered that Mr. Beach pay court costs and
attorney fees.
{¶5} Mr. Beach appealed from the sentencing entry in the forgery case, but this Court
dismissed the appeal for the failure to file a brief. Thereafter, Mr. Beach filed a motion to reopen
his appeal, which we granted. This case is numbered Case No. 26021 on appeal.
{¶6} Mr. Beach also filed a motion for a delayed appeal from his obstruction of justice
conviction, which this Court granted. This case is numbered Case No. 27124 on appeal. We
consolidated the two cases for argument.
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{¶7} Mr. Beach now presents five assignments of error in Case No. 26021, and three
assignments of error in Case No. 27124, for our review. We have re-arranged and consolidated
certain assignments of error to facilitate our discussion.
II.
CASE NO. 26021 – ASSIGNMENT OF ERROR I
THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUPPORT A
CONVICTION FOR FORGERY[.]
CASE NO. 26021 – ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. BEACH BY
OVERRULING HIS MOTION FOR ACQUITTAL UNDER OHIO CRIMINAL
PROCEDURE RULE 29[.]
{¶8} In his first and third assignments of error in Case No. 26021, Mr. Beach argues
that the State presented insufficient evidence to support his forgery convictions. We disagree.
{¶9} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
assessing the sufficiency of the State’s evidence.” State v. Bulls, 9th Dist. Summit No. 27029,
2015-Ohio-276, ¶ 6, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶
33. The issue of whether a conviction is supported by sufficient evidence is a question of law,
which we review de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). When
considering a challenge to the sufficiency of the evidence, the court must determine whether the
prosecution has met its burden of production. Id. at 390 (Cook, J. concurring). In making this
determination, an appellate court must view the evidence in the light most favorable to the
prosecution:
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
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any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus. “In essence, sufficiency
is a test of adequacy.” Thompkins at 386.
{¶10} Here, Mr. Beach was convicted of forgery in violation of R.C. 2913.31(A)(3),
which provides that “[n]o person, with purpose to defraud, or knowing that the person is
facilitating a fraud, shall * * * [u]tter, or possess with purpose to utter, any writing that the
person knows to have been forged.” R.C. 2913.01(G) provides that “‘[f]orge’ means to fabricate
or create, in whole or in part and by any means, any spurious writing, or to make, execute, alter,
complete, reproduce, or otherwise purport to authenticate any writing, when the writing in fact is
not authenticated by that conduct.” R.C. 2913.01(H) provides that “‘[u]tter’ means to issue,
publish, transfer, use, put or send into circulation, deliver, or display.” The version of R.C.
2901.22(B) in effect at the relevant time here, provided that “[a] person acts knowingly,
regardless of [] purpose, when [the person] is aware that [the person’s] conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when [the person] is aware that such circumstances probably exist.”
{¶11} At trial, the State presented the testimony of Linda Benson, Zachary Smith,
Deputy Todd Buck of the Summit County Sheriff’s Office, and Secret Service Special Agent
Keith Verzi. Ms. Benson testified that she is employed as the accounting manager at AMHA,
and Mr. Smith testified that he works in the accounting department at Oriana House. Both
testified that their employers utilize the “Positive Pay” program through their respective banks.
Through this program, the account holder submits a list of checks written on their accounts to the
banks, and when a check drawn on their respective accounts is presented for payment, the bank
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compares the check to the list that the account holders have provided. If the check is not on the
list, then the bank notifies the account holder of the discrepancy.
{¶12} On August 10, 2010, Ms. Benson received notification from AMHA’s bank that a
check had been received that was made payable to Mr. Beach from the AMHA in the amount of
$175.98. Mr. Beach was not on the AMHA payroll, he was not a resident, a contractor, a
vendor, or a landlord in the AMHA system. The signature on the check was “Becky Stubb,” and
no one in the AMHA Finance Department or the executive level had that name. In addition, the
check had only one signature line, and AMHA checks have two signature lines. Accordingly,
Ms. Benson instructed the bank to deny the check.
{¶13} Mr. Smith received notification from Oriana House’s bank of a check dated
August 14, 2010, in the amount of $215.11, payable to Mr. Beach from Oriana House, had been
presented for payment. Mr. Smith identified the check as fraudulent after determining several
discrepancies existed between the check presented to the bank and the standard checks issued by
Oriana House. He contacted the bank, which informed him that the bank had automatically
rejected the check. Mr. Smith then looked into Oriana House’s records, and he determined that
Mr. Beach had been a client. In some situations, Oriana House does issue checks to their clients,
but there was no reason to do so in Mr. Beach’s case. The signature line on the check read
“Anthony Thomas,” but Oriana House did not recognize that name as an authorized signatory on
its accounts.
{¶14} Deputy Buck testified that he works for the Summit County Sheriff’s Office and
is assigned to the AMHA Fraud Investigations Department. On August 17, 2010, he received a
complaint from the AMHA that there was a fraudulent check issued to Mr. Beach that was
cashed approximately one week prior at a Walmart. Deputy Buck obtained a picture of Mr.
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Beach and went to Walmart, and there he obtained a still shot of the person who had cashed the
check, and it appeared to be Mr. Beach, wearing sunglasses and a hat. A copy of the picture was
admitted into evidence.
{¶15} Deputy Buck testified that, the next day, he received an AMHA complaint
pertaining to a check that was issued to someone other than Mr. Beach, which had been cashed at
Roush’s Market. After the deputy contacted Roush’s Market, the market sent its surveillance
film out to be developed. After receiving the developed images, the market sent to Deputy Buck
copies of checks that it had received which had not been honored when presented for payment,
together with still images of the individuals who had cashed those checks. When reviewing
those checks, Deputy Buck came across a check payable to Mr. Beach together with a still
photograph of Mr. Beach wearing sunglasses and a hat. Deputy Buck contacted Special Agent
Verzi from the Secret Service because of Special Agent Verzi’s experience in cases pertaining to
checks.
{¶16} Deputy Buck then arrested Mr. Beach, and Mr. Beach agreed to speak with him
and Special Agent Verzi. Deputy Buck maintained at trial that, during the interview, Mr. Beach
identified himself as the person in the surveillance pictures obtained from Walmart and Roush’s
Market. Mr. Beach identified the checks at issue, and he admitted to the deputy that he had
cashed those checks. Deputy Buck recalled that, at the beginning of the interview, Mr. Beach
stated that he thought that the checks were good checks. Mr. Beach informed him that he had
met a man named “Robin” when he was staying at Oriana House. Robin asked Mr. Beach if he
wanted to make some money cashing checks. Mr. Beach and Robin split the money received
from cashing the checks.
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{¶17} Special Agent Verzi testified that, when he interviewed Mr. Beach with Deputy
Buck, Mr. Beach initially maintained that he thought the checks were good. Deputy Buck
maintained that Mr. Beach informed the officers that, while he was staying at Oriana House, a
man named Robin learned Mr. Beach needed to make some money. After Robin approached Mr.
Beach about making money, Mr. Beach asked Robin how they would make money. Robin then
informed Mr. Beach that they would be cashing checks. Special Agent Verzi maintained that,
during the interview, Mr. Beach never mentioned doing any work for Robin, and their
arrangement was only that they would split the proceeds of the checks after Mr. Beach cashed
the checks. However, Mr. Beach did inform Deputy Buck and Special Agent Verzi that, after he
cashed the two checks at issue, Robin told him that he was forging the checks by copying checks
and using magnetic ink. The State played portions of the recorded interview during Special
Agent Verzi’s testimony, and the entire recording was admitted into evidence after the close of
the State’s case.1
{¶18} Mr. Beach argues that the evidence presented at trial did not prove that the
AMHA check was forged. In support, he points to Ms. Benson’s testimony, and he argues that
Ms. Benson acknowledged that a check for construction would have come through a different
department than hers, and she only compared the check to the list of payees from her department.
However, this is not how we read Ms. Benson’s testimony. The testimony cited by Mr. Beach
was elicited on cross-examination, and does not appear to pertain to whether Ms. Benson could
establish the legitimacy of the check. Instead, Ms. Benson indicated that she would not have
1
This Court cannot discern from the transcript the precise portions of the recorded
interview that were played during Special Agent Verzi’s testimony.
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knowledge of subcontractors performing work for AMHA, but the construction department
would have a list of subcontractors, because the State of Ohio’s procurement policies would
require AMHA to have labor records for the subcontractors. However, Ms. Benson’s lack of
knowledge of the list of subcontractors is not determinative of the issue of whether there was
sufficient evidence that the AMHA check was forged. On redirect examination, Ms. Benson
indicated that AMHA would not issue checks to employees of subcontractors or contractors.
However, there was no evidence that AMHA issued checks directly to subcontractors, or that
such checks would have been issued by a different department. Instead, Ms. Benson had
testified on direct examination that the construction department submits the paperwork for
vendors to Ms. Benson’s department, which issues the check. Therefore, there is no indication
that Mr. Beach may have been issued a check from a different department within the AMHA.
Further, the evidence of the discrepancies between the checks, and Ms. Beach’s statement that
AMHA did not owe any money to Mr. Beach, when viewed in a light most favorable to the
State, provides sufficient evidence establishing that the AMHA check was forged.
{¶19} In addition, Mr. Beach argues that the State “failed to present any evidence that
[he] knew that the checks were forged.” However, this Court has held that “[b]ecause a
defendant’s mental state is difficult to demonstrate with direct evidence, it may be inferred from
the surrounding circumstances in the case.” State v. Weese, 9th Dist. Summit No. 23897, 2008-
Ohio-3103, ¶ 13. “Circumstantial evidence and direct evidence inherently possess the same
probative value[.]” Jenks, 61 Ohio St.3d at paragraph one of the syllabus.
{¶20} The State’s evidence provided that Mr. Beach, while wearing sunglasses and a
hat, cashed these checks and split the proceeds with Robin. Mr. Beach did not indicate during
his interview that he was owed any money by Robin and did not indicate that he performed any
9
work from which he would be entitled to this money. Viewing the evidence in the light most
favorable to the State, the trial court could reasonably infer from the evidence that Mr. Beach had
knowledge that the checks were probably forged. See former R.C. 2901.22(B) (“A person has
knowledge of circumstances when [the person] is aware that such circumstances probably
exist.”).
{¶21} Mr. Beach further seems to argue that the trial court should have granted his
Crim.R. 29 motion at the close of the State’s evidence because the trial court had not yet listened
to Mr. Beach’s statement to the officers. However, both Deputy Buck and Special Agent Verzi
testified as to the content of Mr. Beach’s statements, wherein he discussed splitting one-half of
the proceeds of the checks with Robin, and unspecified portions of the statement were played
during Special Agent Verzi’s testimony. Accordingly, we cannot say that the trial court did not
have sufficient evidence before it, from which, when viewed in the light most favorable to the
State, it could reasonably infer that Mr. Beach had knowledge that the checks were forged.
{¶22} Therefore, Mr. Beach’s first and third assignments of error in Case No. 26021
are overruled.
CASE NO. 26021 – ASSIGNMENT OF ERROR II
MR. BEACH’S CONVICTIONS FOR FORGERY WERE AGAINST THE
WEIGHT OF THE EVIDENCE[.]
{¶23} In his third assignment of error in Case No. 26021, Mr. Beach argues that his
forgery convictions were against the manifest weight of the evidence. We disagree.
{¶24} First, we note that Mr. Beach combined his arguments pertaining to his first and
second assignments of error in his merit brief. See App.R. 12(A)(2) (“The court may disregard
an assignment of error presented for review if the party raising it * * * fails to argue the
assignment separately in the brief * * *.”) Mr. Beach’s second assignment of error challenges
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the weight of the evidence. When a defendant asserts that his conviction is against the manifest
weight of the evidence:
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986).
{¶25} Although Mr. Beach has set forth the legal standard pertaining to a challenge to
the weight of the evidence in his brief, it appears that his arguments pertaining to the weight of
the evidence rests solely upon the premise that, because the State failed to produce evidence that
the AMHA check was forged or that Mr. Beach was aware that the checks were forged, then the
State necessarily failed to meet its burden of persuasion.
{¶26} However, in our discussion of Mr. Beach’s first and third assignments of error, we
concluded that there was sufficient evidence from which the trial court could reasonably infer
that the AMHA check was forged and that Mr. Beach had knowledge that the checks were
forged. Mr. Beach does not challenge the credibility of witnesses, maintain that the trial court
lost its way in resolving conflicts in the evidence, or otherwise develop a manifest weight
argument, and we decline to construct one on his behalf. See App.R. 16(A)(7).
{¶27} Accordingly, Mr. Beach’s second assignment of error in Case No. 26021 is
overruled.
CASE NO. 27124 – ASSIGNMENT OF ERROR III
THE TRIAL COURT FAILED TO COMPLY WITH THE REQUIREMENTS
OF RULE 11 WHEN TAKING MR. BEACH’S PLEA[.]
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{¶28} In his third assignment of error in Case No. 27124, Mr. Beach argues that the trial
court erred in accepting his guilty plea to obstructing justice without first complying with the
requirements of Crim.R. 11. We disagree.
{¶29} To be valid, “a plea [must be] knowingly, intelligently, and voluntarily made[.]”
State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, ¶ 25. Crim.R. 11(C) applies to guilty pleas
entered in felony cases:
Under this rule, the trial judge may not accept a plea of guilty * * * without
addressing the defendant personally and (1) “[d]etermining 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,” (2) informing the defendant of the effect of the specific plea
and that the court may proceed with judgment and sentencing after accepting it,
and ensuring that the defendant understands these facts, and (3) informing the
defendant that entering a plea of guilty * * * waives the constitutional rights to a
jury trial, to confrontation, to compulsory process, and to the requirement of proof
of guilt beyond a reasonable doubt and determining that the defendant
understands that fact.
Clark at ¶ 27, quoting Crim.R. 11(C)(2)(a)-(c).
{¶30} “To satisfy the requirement of informing a defendant of the effect of a plea, a trial
court must inform the defendant of the appropriate language under Crim.R. 11(B).” State v.
Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093, paragraph two of the syllabus. Crim.R. 11(B)
provides, in relevant part that a “plea of guilty is a complete admission of the defendant’s guilt.”
Crim.R. 11(B)(1).
{¶31} Literal compliance with Crim.R. 11 is preferred, but not necessarily required.
Clark at ¶ 29. “If a trial court fails to literally comply with Crim.R. 11, reviewing courts must
engage in a multitiered analysis to determine whether the trial judge failed to explain the
defendant’s constitutional or nonconstitutional rights and, if there was a failure, to determine the
significance of the failure and the appropriate remedy.” Id. at ¶ 30. If a trial judge fails to
12
explain one of the constitutional rights set forth in Crim.R. 11(C)(2)(c), the defendant’s plea is
invalid. Clark at ¶ 31. Conversely, a trial court’s failure to explain a nonconstitutional right
triggers a substantial compliance analysis. Id. “Under this standard, a slight deviation from the
text of the rule is permissible; so long as the totality of the circumstances indicates that ‘the
defendant subjectively understands the implications of his plea and the rights he is waiving,’ the
plea may be upheld.” Id., quoting State v. Nero, 56 Ohio St. 3d 106, 108 (1990). If the court fails
to substantially comply with Crim.R. 11 in explaining a nonconstitutional right, “reviewing
courts must determine whether the trial court partially complied or failed to comply with the
rule.” (Emphasis omitted.) Clark at ¶ 32. Partial compliance will result in a vacation of the plea
only if the defendant demonstrates prejudice as a result of the partial compliance. Id. A
complete failure to comply with the rule will result in a vacation of the plea, regardless of
whether prejudice has been shown. Id.
{¶32} At the time that Mr. Beach changed his plea, the case had been scheduled for
bench trial. The State informed the trial court that Mr. Beach intended to change his plea to
guilty on the obstructing justice count, and the State moved to dismiss the having weapon under
disability count. The State further reminded the trial court that it had found Mr. Beach guilty on
the two forgery charges in the other case and that “sentencing was continued to today, pending
the outcome of this case.” Defense counsel then informed the court:
At this time, Mr. Beach is prepared to withdraw his former plea of not guilty and
enter a plea of guilty to the obstructing charge, understanding the other charge
would be dismissed.
We discussed all the constitutional rights, and he knows that he would be giving
them up by entering into a plea. And we’d ask to be heard before sentencing.
{¶33} The trial court then engaged in the following colloquy:
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THE COURT: Mr. Beach, you’re charged today now with one count of
obstructing justice. Because it was in a homicide investigation, that is a third
degree felony with the potential of one to five years and a $10,000 fine.
Do you understand the charge, sir?
[MR. BEACH]: I do.
THE COURT: How do you wish to plead?
[MR. BEACH]: Guilty.
THE COURT: Do you understand by entering a plea of guilty that you’re giving
up the right to a trial; that they are prepared to go forward. And I’m prepared to
hear the case at this time.
[MR. BEACH]: I do.
THE COURT: You would have the right to have them prove you guilty beyond a
reasonable doubt of each element of the crime, the right to subpoena witnesses to
testify for you, the right to have your lawyers cross-examine the witnesses called
by the State, and the right that you would have to testify in your own defense, but
no one could make you do that.
Do you understand those rights?
[MR. BEACH]: I do, ma’am.
***
THE COURT: Do you also understand that you’re giving up any right to an
appeal that you may have should your case go to trial?
[MR. BEACH]: I do.
THE COURT: And that if I would sentence you to prison, which is going to
happen, that you will be subject to a discretionary period of three years of Post
Release Control. And if you fail Post Release Control, up to 50 percent of your
sentence would be reimposed.
[MR. BEACH]: I do, ma’am.
THE COURT: You’re satisfied with [Defense Counsel’s] representation of you?
[MR. BEACH]: Absolutely.
THE COURT: And you are a United States citizen?
14
[MR. BEACH]: Yes, ma’am.
THE COURT: Okay. Then I will find the plea as knowingly, intelligently and
voluntarily given and find you guilty. * * *
(Emphasis added.)
{¶34} In addition, Mr. Beach signed a written guilty plea wherein he acknowledged that
he had “been informed by [his] attorney and by the Judge of the effect of [his] guilty plea and its
consequences, and [he] underst[ood] them; and, upon accepting [his] guilty plea, the Court may
immediately proceed with judgment and sentencing.” In the written plea, he further
acknowledged that “[b]y pleading guilty, [he] admit[ted] committing the offense[]” and that he
“kn[ew] the Judge may either sentence [him] today or refer [his] case for a pre-sentence report.”
See State v. Barker, 129 Ohio St. 3d 472, 2011-Ohio-4130, paragraph two of the syllabus (“An
alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to other
portions of the record, including the written plea.”)
{¶35} Mr. Beach maintains that the trial court erred by failing to comply with Crim.R.
11 because it completely failed to advise him of the effect of a guilty plea and that it could
proceed directly to sentencing. See Crim.R. 11(C)(2)(b). Mr. Beach concedes that his
arguments implicate non-constitutional issues subject only to substantial compliance with the
rule. See Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, at ¶ 31.
{¶36} In State v. Stoddard, 9th Dist. Summit No. 26663, 2013-Ohio-4896, this Court
reviewed a colloquy wherein the trial court notified the defendant that “there w[ould] be no
further proceedings in [his] case, and [he] would be giving up any appeal rights that arise from a
trial,” and the defendant responded that he understood, and the defendant acknowledged that he
spoke with his attorney about the evidence in the case, he spoke to his sons about his decision to
plead guilty and understood that by pleading guilty he was relieving the State of its obligation to
15
prove his guilt beyond a reasonable doubt. Id. at ¶ 11. On appeal, the defendant maintained, in
part, that the trial court did not comply with Crim.R. 11 because it failed to explain the effect of a
guilty plea. Id. at ¶ 9. After review of the circumstances in that case, we concluded that the
defendant’s plea was knowingly, intelligently, and voluntarily made. Id. at ¶ 12.
{¶37} Here, it appears that the trial court in this case provided essentially the same
information to Mr. Beach as the trial court did in Stoddard. Our review of the context and
substance of the colloquy indicates that Mr. Beach subjectively understood the effect of his
guilty plea and that the trial court was proceeding directly to sentencing. Accordingly, we
conclude that the trial court substantially complied with the rule. See Clark at ¶ 31. However
“even assuming that the trial court only partially complied with [the] rule, [Mr. Beach] has not
demonstrated prejudice. He has not made any argument on appeal that he would not otherwise
have entered his plea. Based on our review of the record, this Court concludes that [Mr. Beach]
entered his guilty plea in a knowing, voluntary, and intelligent manner.” State v. Lockhart, 9th
Dist. Summit No. 26799, 2015-Ohio-856, ¶ 15.
{¶38} Mr. Beach further argues that the trial court failed to ensure that he was making
the plea voluntarily. See Crim.R. 11(C)(2)(a)). Mr. Beach maintains that the trial court was
required to inquire of Mr. Beach as to whether any threats, promises, or inducements were made
prior to Mr. Beach entering his plea. Mr. Beach maintains that “[w]ithout an assessment as to
whether [he] was induced or if promises were made, the Court erred in determining that [he]
made his plea voluntarily and knowingly.” Although trial courts may routinely and appropriately
ask whether a plea was induced or promises were made in order to assist the trial courts in
assessing whether the plea was voluntary, we note that the plea agreement was discussed at the
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beginning of the change of plea hearing. Further, in the written guilty plea to the obstruction of
justice charge, signed by Mr. Beach, it provides:
I have been fully advised by my attorney of the Criminal Rule 11(F) plea
negotiations which have also been stated in open court and I accept those
negotiations as my own. I understand the nature of these charges and the possible
defenses I might have. I am satisfied with my attorney’s advice and competence.
I am not under the influence of drugs or alcohol. No threats have been made to
me. No promises have been made except as part of the plea agreement stated
entirely as follows: remaining count dismissed.
See Barker, 2011-Ohio-4130, at paragraph two of the syllabus. Lastly, Mr. Beach has made no
argument that he would not otherwise have entered his plea had the trial court specifically asked
him if his plea was based upon threats, promises, or inducements. See Lockhart, 2015-Ohio-856,
at ¶ 15
{¶39} Accordingly, Mr. Beach’s third assignment of error in Case No. 27124 is
overruled.
CASE NO. 26021 – ASSIGNMENT OF ERROR V
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED
MR. BEACH TO MAXIMUM TERMS FOR HIS FORGERY CONVICTIONS
AND WHEN IT RAN THOSE SENTENCES CONSECUTIVELY WITH MR.
BEACH’S OTHER CRIMINAL CASE[.]
CASE NO. 27124 – ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED
MR. BEACH TO A MAXIMUM TERM FOR HIS OBSTRUCTION OF
JUSTICE CONVICTION AND RAN IT CONSECUTIVELY WITH [HIS]
OTHER CRIMINAL CASE[.]
{¶40} In his fifth assignment of error in Case No. 26021, Mr. Beach argues that the trial
court abused its discretion in sentencing him to the maximum sentence for his forgery
convictions, to be served concurrently. In his second assignment of error in Case No. 27124, Mr.
Beach argues that the trial court abused its discretion in sentencing him to the maximum
sentence for his obstruction of justice conviction. In both of these assignments of error, Mr.
17
Beach argues that the trial court abused its discretion in ordering that the sentences from his two
cases be served consecutively to each other.
{¶41} “A plurality of the Supreme Court of Ohio held that appellate courts should
implement a two-step process when reviewing a felony sentence.” State v. Blackert, 9th Dist.
Summit Nos. 27314, 27315, 2015-Ohio-2248, ¶ 7, quoting State v. Bulls, 9th Dist. Summit No.
27029, 2015-Ohio-276, ¶ 26, quoting State v. Clayton, 9th Dist. Summit No. 26910, 2014-Ohio-
2165, ¶ 43, citing State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, ¶ 26. “The first step,
reviewed de novo, is to ensure that the trial court complied with applicable rules and statutes in
imposing the sentence.” Blackert at ¶ 7, quoting Bulls at ¶ 26, quoting Clayton at ¶ 43. “If the
first step is satisfied, the second [step] is to review the term of imprisonment for an abuse of
discretion.” Blackert at ¶ 7, quoting Bulls at ¶ 26, quoting Clayton at ¶ 43.
{¶42} At the time of Mr. Beach’s sentencing, former R.C. 2929.19(B)(2)(a) and (c)
provided:
The court shall impose a sentence and shall make a finding that gives its reasons
for selecting the sentence imposed in any of the following circumstances:
(a) * * * if it imposes a prison term for a felony of the fourth or fifth degree * * *
its reasons for imposing the prison term, based upon the overriding purposes and
principles of felony sentencing set forth in section 2929.11 of the Revised Code,
and any factors listed in divisions (B)(1)(a) to (i) of section 2929.13 of the
Revised Code that it found to apply relative to the offender.
(c) [i]f it imposes consecutive sentences under section 2929.14 of the Revised
Code, its reasons for imposing the consecutive sentences[.]
Former R.C. 2929.13 (B)(1)(a)-(i), effective at the time of Mr. Beach’s sentencing, required the
trial court to determine whether any of the following applied to the matter:
(a) In committing the offense, the offender caused physical harm to a person.
(b) In committing the offense, the offender attempted to cause or made an actual
threat of physical harm to a person with a deadly weapon.
18
(c) In committing the offense, the offender attempted to cause or made an actual
threat of physical harm to a person, and the offender previously was convicted of
an offense that caused physical harm to a person.
(d) The offender held a public office or position of trust and the offense related to
that office or position; the offender’s position obliged the offender to prevent the
offense or to bring those committing it to justice; or the offender’s professional
reputation or position facilitated the offense or was likely to influence the future
conduct of others.
(e) The offender committed the offense for hire or as part of an organized criminal
activity.
(f) The offense is a sex offense that is a fourth or fifth degree felony violation of
section 2907.03, 2907.04, 2907.05, 2907.22, 2907.31, 2907.321, 2907.322,
2907.323, or 2907.34 of the Revised Code.
(g) The offender at the time of the offense was serving, or the offender previously
had served, a prison term.
(h) The offender committed the offense while under a community control
sanction, while on probation, or while released from custody on a bond or
personal recognizance.
(i) The offender committed the offense while in possession of a firearm.
{¶43} Based upon these versions of the statutes, Mr. Beach argues that the trial court
erred by failing to make any statement at the sentencing hearing or in the sentencing entries as to
why it sentenced Mr. Beach to serve his forgery and obstruction of justice prison terms
consecutively or sentenced him to the maximum terms on his convictions.
{¶44} However, prior to Mr. Beach’s sentencing, the Ohio Supreme Court declared
certain statutory sections to be unconstitutional and thus ineffective, including R.C.
2929.19(B)(2) and R.C. 2929.14(B), which required the trial court to make findings. State v.
Foster, 109 Ohio St. 3d 1, 29, 2006-Ohio-856, ¶ 97. Thereafter, the United States Supreme Court
determined that “it was constitutionally permissible to require judicial fact-finding as a
prerequisite for the imposition of consecutive sentences.” State v. McGowan, 9th Dist. Summit
No. 27092, 2015-Ohio-1804, ¶ 17, fn. 4, citing Oregon v. Ice, 555 U.S. 160 (2009). However,
19
the Ohio legislature did not reenact any provision requiring these findings until enacting 2011
Am.Sub.H.B. No. 86, 2011 Ohio Laws 29, effective September 30, 2011, after Mr. Beach’s
sentencing. See R.C. 2929.19(B)(2)(a) and R.C. 2929.14(C)(4) (formerly R.C. 2929.14(E)(4));
McGowan at ¶ 17, fn. 4; see also State v. Kilmire, 9th Dist. Summit Nos. 27319, 27320, 2015-
Ohio-665, ¶ 16, quoting State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 29.
{¶45} Therefore, at the time of Mr. Beach’s sentencing, the trial court was not required
to make findings or provide its reasons for running Mr. Beach’s sentences consecutively or for
sentencing him to the maximum terms of imprisonment on each conviction. See State v. Hodge,
128 Ohio St. 3d 1, 2010-Ohio-6320, paragraph two of the syllabus (United States Supreme
Court’s decision in Ice did “not revive Ohio’s former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional” in Foster.).
Therefore, to the extent that Mr. Beach argues that the trial court erred by failing to make
findings or state its reasons for imposing the sentences, his assignments of error are overruled.
{¶46} Mr. Beach further argues that the trial court was unreasonable when it sentenced
him to the maximum terms of imprisonment on his convictions. “[W]here the trial court does
not put on the record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised
Code], it is presumed that the trial court gave proper consideration to those statutes.” State v.
Fernandez, 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8, quoting State v. Steidl,
9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting Kalish, 120 Ohio St. 3d 23,
2008-Ohio-4912, at ¶ 18, fn. 4.
{¶47} Here, Mr. Beach argues that the sentences were unreasonable because, with
respect to his obstruction of justice charge, he acted responsibly by pleading guilty once he was
able to view the video statement that he made pertaining to the charge. With respect to the
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forgery convictions, Mr. Beach argues that the trial court was unreasonable in sentencing him to
the maximum sentences. He argues that his offenses were not egregious, as he received less than
$200.00 for his involvement in each forgery offense, he never attempted to hide his identity,
cashing the checks in his own name, and he spoke to and cooperated with the police after his
arrest. Further, he maintains that he was never alleged to have been the “mastermind” behind the
check-cashing scheme.
{¶48} However, where the trial court did not put the factors on the record at the
sentencing hearing, we presume that it properly considered R.C. 2929.11 and 2929.12.
Fernandez at ¶ 8. After review of the record, we conclude that Mr. Beach has failed to
demonstrate that the trial court abused its discretion in sentencing him to twelve months of
imprisonment on each of the forgery convictions, running concurrently with each other, and to
five years of imprisonment on the obstruction of justice conviction, to be served consecutively to
the sentence on the forgery convictions. Therefore, his fifth assignment of error in Case No.
26021, and his second assignment of error in Case No. 26124 are overruled.
CASE NO. 26021 – ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN ASSESSING ATTORNEY FEES AND
COSTS AGAINST [MR. BEACH] WITHOUT INFORMING [HIM] AT HIS
SENTENCING OR MAKING AN “ABILITY-TO-PAY” FINDING AS
REQUIRED UNDER [R.C.] 2947.23 AND 2941.51(D)[.]
CASE NO. 27124 – ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ASSESSING ATTORNEY FEES AND
COSTS AGAINST [MR. BEACH] WITHOUT INFORMING [HIM] AT HIS
SENTENCING OR MAKING AN “ABILITY-TO-PAY” FINDING AS
REQUIRED UNDER [R.C.] 2947.23 AND 2941.51(D)[.]
{¶49} In his fourth assignment of error in Case No. 26021 and his first assignment of
error in Case No. 27124, Mr. Beach argues that the trial court erred in assessing him attorney
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fees and costs without notifying him of this at his sentencing or finding that he had the ability to
pay.
{¶50} Former R.C. 2947.23(A)(1), in effect at the time of Mr. Beach’s sentencing,
provided:
In all criminal cases, including violations of ordinances, the judge or magistrate
shall include in the sentence the costs of prosecution, including any costs under
section 2947.231 of the Revised Code, and render a judgment against the
defendant for such costs. At the time the judge or magistrate imposes sentence,
the judge or magistrate shall notify the defendant of both of the following:
(a) If the defendant fails to pay that judgment or fails to timely make payments
towards that judgment under a payment schedule approved by the court, the court
may order the defendant to perform community service in an amount of not more
than forty hours per month until the judgment is paid or until the court is satisfied
that the defendant is in compliance with the approved payment schedule.
(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit rate
per hour of community service performed, and each hour of community service
performed will reduce the judgment by that amount.
(Emphasis added.)
{¶51} This Court has recognized that “[f]ormer R.C. 2947.23(A)(1) required trial courts
to advise defendants of the foregoing community service notifications at their sentencing
hearings.” State v. Eader, 9th Dist. Summit No. 26762, 2013-Ohio-3709, ¶ 19, quoting State v.
Ibn-Ford, 9th Dist. Summit No. 26386, 2013-Ohio-2172, ¶ 77-78. “[A] trial court’s failure to
comply with the community service notifications of R.C. 2947.23(A)(1)(a) & (A)(1)(b)
constitutes reversible error.” Eader at ¶ 19, quoting State v. Ross, 9th Dist. Summit No. 25778,
2012-Ohio-1389, ¶ 28.
{¶52} In regard to attorney fees, R.C. 2941.51(D) provides that:
[F]ees and expenses approved by the court under [R.C. 2941.51] shall not be
taxed as part of the costs and shall be paid by the county. However, if the person
represented has, or reasonably may be expected to have, the means to meet some
22
part of the cost of the services rendered to the person, the person shall pay the
county an amount that the person reasonably can be expected to pay.
{¶53} “Thus, ‘R.C. 2941.51(D) allows a trial court to order a defendant to pay some or
all of his court-appointed attorney fees, but only after finding that the defendant is financially
capable of doing so.’” Eader at ¶ 23, quoting State v. El-Jones, 9th Dist. Summit No. 26136,
2012-Ohio-4134, ¶ 37. “[W]hen the trial court fails to determine that the defendant has the
ability to pay at either the sentencing hearings or in the sentencing entries but nonetheless orders
the defendant to pay attorney fees, the trial court fails to comply with R.C. 2941.51(D).” Eader
at ¶ 23, quoting State v. Clark, 9th Dist. Summit No. 26673, 2013-Ohio-2984, ¶ 21. “The
appropriate remedy for such an error ‘is a remand for “a determination of [the defendant’s]
financial ability to pay for his court-appointed counsel.”’” Eader at ¶ 23, quoting El-Jones at ¶
37, quoting State v. Warner, 9th Dist. Lorain No. 96CA006534, 2001 WL 1155698, *4 (Sept. 21,
2001)
{¶54} Here, there is no indication in the record that the trial court advised Mr. Beach of
his community service notifications as required by former R.C. 2947.23. See Eader at ¶ 19.
Further, there is no indication that the trial court assessed Mr. Beach’s ability to pay for attorney
fees prior to ordering him to pay those fees in the sentencing entry. See Eader at ¶ 23. The State
concedes that the trial court erred in these respects, and, based upon the language of the former
versions of these statutes, and our precedent discussed above, we agree. Accordingly, Mr.
Beach’s fourth assignment of error in Case No. 26021, and his first assignment of error in Case
No. 27124 are sustained, and this matter is remanded for the trial court to inquire into Mr.
Beach’s ability to pay attorney fees and to comply with the community service notification
requirements of former R.C. 2947.23(A)(1).
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III.
{¶55} Accordingly, Mr. Beach’s first, second, third, and fifth assignments of error in
Case No. 26021, and his second and third assignments of error in Case No. 27124, are overruled.
Mr. Beach’s fourth assignment of error in Case No. 26021, and his first assignment of error in
Case No. 27214, are sustained. The judgment of the trial court is affirmed in part, and reversed
in part, and this cause is remanded to the trial court for further proceedings consistent with this
decision.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
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HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
ANDREA L. WHITAKER and WILLIAM T. WHITAKER, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.