State v. Sharpley , 2018 Ohio 4326 ( 2018 )

[Cite as State v. Sharpley, 2018-Ohio-4326.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106616
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TREG SHARPLEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-617452-A
BEFORE: Blackmon, J., McCormack, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: October 25, 2018
ATTORNEY FOR APPELLANT
Mary Catherine Corrigan
50 Public Square, Suite 1900
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brandon Piteo
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Defendant-appellant, Treg Sharpley (“Sharpley”), appeals from his guilty plea to
robbery. He assigns the following errors for our review:
I. The trial court erred in accepting [Sharpley’s] guilty plea as the guilty plea
was not knowingly entered.
II. The trial court’s sentence was contrary to law.
{¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial
court. The apposite facts follow.
{¶3} On May 26, 2017, Sharpley was indicted for two counts of aggravated robbery, four
counts of robbery, and two counts of kidnapping, all with one-year and three-year firearm
specifications, and one count of theft, in connection with the armed robbery of two 13-year-old
boys.
{¶4} On October 10, 2017, Sharpley entered into a plea agreement with the state whereby
he pled guilty to one count of second-degree felony robbery, in violation of R.C. 2911.02(A)(2),
that was amended by adding a second victim’s name. A one-year firearm specification and all
remaining charges were dismissed. The trial court subsequently sentenced Sharpley to a total of
three years of imprisonment.
Guilty Plea
{¶5} In his first assigned error, Sharpley argues that his guilty plea was induced by the
false promise that he would be sentenced to one year of imprisonment prior to the guilty plea,
that he relied upon this promise, and that his guilty plea was not voluntarily made.
{¶6} Generally, when a trial court promises a certain sentence, the promise becomes an
inducement to enter a plea, and unless that sentence is given, the plea is not voluntary. State v.
Kelly, 8th Dist. Cuyahoga Nos. 91875 and 91876, 2010-Ohio-432, ¶ 21; State v. Blackburn, 8th
Dist. Cuyahoga Nos. 97811 and 97812, 2012-Ohio-4590, ¶ 22, citing State v. Layman, 2d Dist.
Montgomery No. 22307, 2008-Ohio-759; State v. Triplett, 8th Dist. Cuyahoga No. 69237, 1997
Ohio App. LEXIS 493 (Feb. 13, 1997); State v. Bonnell, 12th Dist. Clermont No.
CA2001-12-094, 2002-Ohio-5882.
{¶7} In State v. Hudson, 8th Dist. Cuyahoga No. 96435, 2011-Ohio-6272, this court
addressed the issue of claimed sentencing promises. In that case, the trial court inquired of
Hudson if any promises or threats induced him to enter his plea, and he responded that “[t]hey
said that it would be 12 years.” The court replied that it did not discuss sentencing with either
side and does not do so as a matter of policy, then determined that no promises or inducements
had been made. This court noted that the trial court engaged in a meaningful colloquy and
addressed Hudson and informed him of his rights and the potential penalties. This court also
determined that the trial court had clarified on the record that “no promises concerning
sentencing would be enforced,” and that the totality of the circumstances demonstrated that
Hudson knowingly, intelligently, and voluntarily entered his guilty plea. Id. at ¶ 11-12.
{¶8} Likewise in State v. Halloman-Cross, 8th Dist. Cuyahoga No. 88159,
2007-Ohio-290, this court rejected the defendant’s challenge to his guilty plea where he
maintained that he had been promised a three-year sentence, but the trial court stated “it’s not a
promise of three years, it’s the possibility of three years,” and the defendant acknowledged that
he understood. Id. at ¶ 25.
{¶9} Similarly, in State v. Weakley, 8th Dist. Cuyahoga No. 93282, 2010-Ohio-2464, the
trial court asked the defendant if any promises were made in exchange for his plea, and the
defendant stated that he was promised that his sentence would not exceed 11 years. In response,
the judge explained that the court had not made any promises regarding
sentencing and that only the court can determine the sentence to be imposed, [and
also] advised that before [the defendant] pleaded guilty he needed to understand
that he could be sentenced to anywhere from the minimum to the maximum.
Id. at ¶ 16. This court found that the “record reflect[ed] that appellant’s pleas were knowingly,
intelligently, and voluntarily made.” Id. at ¶ 18. Accord State v. Gilmore, 8th Dist. Cuyahoga
Nos. 92106, 92107, 92108, and 92109, 2009-Ohio-4230, ¶ 12.
{¶10} Moreover, in State v. Durrette, 8th Dist. Cuyahoga No. 104050, 2017-Ohio-7314,
this court determined that the trial court engaged in a thorough Crim.R. 11 colloquy in explaining
the plea and the potential sentence, despite Durrette’s claim that his attorney mistakenly
predicted the sentence that would be imposed. Id. at ¶ 17-18.
{¶11} In this matter, prior to accepting the guilty plea, the trial court advised Sharpley
that there was a mandatory one-year term for the firearm specification that “has to be served prior
to and consecutive to the sentence that accompanies the robbery charge.” The court also stated
that the second-degree felony charge carried the presumption of imprisonment, so “there is a
presumption that you will be going to prison.” However, the court stated that it was possible
that Sharpley could receive community control for the offense. In explaining the possible
sentences, the court stated as follows:
THE COURT: A presumption means that in all probability you will be going to
prison; and it will be for a period of [a] minimum of two years, a maximum of
eight years and any year in between. That coupled with the one-year firearm
specification, which has to be served first, would put you at a minimum sentence
of three, if you go to prison, and a maximum of nine years counting the gun
specification. * * * Do you understand that?
THE DEFENDANT: Yes.
***
THE COURT: Have any promises been made to you to get
you to change your plea?
THE DEFENDANT: No, Your Honor.
THE COURT: Now, it’s time to take your plea. And that promises, that
includes any statements made by your counsel or anyone else as to what I might
do at sentencing.
THE DEFENDANT: Yes, Your Honor.
THE COURT: Well, my question is: Have any promises been made to you as to
what I might do at sentencing?
THE DEFENDANT: Only promise was that with that year, and you and my
counsel already told me about that, that as the only thing that was promised to me,
Your Honor.
THE COURT: Well, he’s not promising you that I’m going to order that. I think
he’s explaining to you that that is a possibility.
THE DEFENDANT: Possibility, yes.
THE COURT: There’s no promise on his part that that’s what I am going to
give you.
THE DEFENDANT: Right.
{¶12} At the conclusion of the hearing, Sharpley stated that he understood and had no
questions.
{¶13} In accordance with the foregoing, we conclude that the trial court engaged in a
meaningful colloquy that advised Sharpley of his rights and the potential penalties. The court
stated that Sharpley faced a mandatory one-year term for the one-year firearm specification, and
that the robbery offense carried the presumption of imprisonment but community control was
also possible. The court also clarified on the record that there had been “no promise” as to
“what [sentence] I’m going to give you.” Therefore, we conclude that the trial court
substantially complied with its duty to advise Sharpley, who was already on community control
at the time of the offense, of the potential penalties he faced. Sharpley stated that he understood
the potential penalties. Under the totality of the circumstances, we conclude that Sharpley
knowingly, intelligently, and voluntarily entered his guilty plea.
{¶14} The assigned error lacks merit.
Sentence
{¶15} Sharpley next argues that his sentence for robbery under R.C. 2911.02(A)(2) is
unlawful, and that under the correct application of R.C. 2929.11 and 2929.12, he would have
been sentenced to community control. Specifically, he claims that the trial court failed to
consider evidence offered in mitigation to show that he is a good father and that the state
obtained a “questionable” confession in this matter.
{¶16} Under R.C. 2929.14(A)(2), robbery is a felony of the second degree, which is
punishable by a prison term of two, three, four, five, six, seven, or eight years. R.C.
2929.13(D)(1) provides that for a second-degree felony, “it is presumed that a prison term is
necessary to comply with the purposes and principles of sentencing under [R.C.] 2929.11.”
Nonetheless, pursuant to R.C. 2929.13(D)(2), a trial court may impose a community control
sanction for a second-degree felony if it determines that a community control sanction: (1) would
adequately punish the offender and protect the public from future crime; and (2) would not
demean the seriousness of the offense, based upon findings there is a lesser likelihood of
recidivism and the offender’s conduct was less serious than conduct normally constituting the
offense pursuant to the recidivism and seriousness factors set forth in R.C. 2929.12.
{¶17} However, Sharpley also pled to a one-year firearm specification. The term for
the firearm specification is mandatory and must be served consecutive to the underlying term.
R.C. 2941.145; State v. Chandler, 8th Dist. 105246, 2017-Ohio-8573, 99 N.E.3d 1255, ¶ 10. In
light of the mandatory one-year term for the firearm specification, Sharpley was not eligible for
community control under R.C. 2929.13(F)(8).
{¶18} In light of the foregoing, the trial court did not err in refusing to sentence Sharpley
to community control. Moreover, the trial court stated in its sentencing entry that it considered
the required statutory factors, and this is sufficient to fulfill a sentencing court’s obligations
under R.C. 2929.11 and 2929.12. State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302,
2015-Ohio-4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶
9. The sentence is not contrary to law.
{¶19} The second assigned error is without merit.
{¶20} Judgment affirmed.
It is ordered that appellee recover of 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.
PATRICIA ANN BLACKMON, JUDGE
TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR