State v. D-Bey , 2021 Ohio 60 ( 2021 )

[Cite as State v. D-Bey, 2021-Ohio-60.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109000
v. :
DESEAN D-BEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED
IN PART; REMANDED
RELEASED AND JOURNALIZED: January 14, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-639743-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eben O. McNair, Assistant Prosecuting
Attorney, for appellee.
Eric M. Levy, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Desean D-Bey appeals his convictions and the
trial court’s denial of his postconviction motion to withdraw his guilty pleas after he
pled guilty to one count of having weapons while under disability and one count of
attempted domestic violence. D-Bey contends that his conviction for attempted
domestic violence should be vacated because it is a “nonexistent” offense. He
further contends that the trial court erred in failing to order a mental health
evaluation before accepting his guilty pleas and that his trial counsel was ineffective
for (1) failing to request a mental health evaluation or that the case be transferred to
the mental health docket, (2) failing to “explore” allegedly applicable defenses and
(3) failing to provide “mitigating mental health information” to the court for
consideration during sentencing. D-Bey also contends that the trial court erred in
denying his motion to withdraw his guilty pleas without an evidentiary hearing, that
his prison sentences are “excessive” given “the facts on record” and that the trial
court erred in ordering him to pay court costs that were not imposed at the
sentencing hearing.
For the reasons that follow, we reverse the trial court to the extent it
imposed court costs and remand the matter for the trial court to vacate its order
imposing court costs. We otherwise affirm the trial court.
Procedural History and Factual Background
On May 10, 2019, a Cuyahoga County Grand Jury indicted D-Bey on
four counts: one count of having weapons while under disability in violation of R.C.
2923.13(A)(2), a third-degree felony (Count 1); one count of having weapons while
under disability in violation of R.C. 2923.13(A)(3), a third-degree felony (Count 2);
one count of domestic violence in violation of R.C. 2919.25(A), a fourth-degree
felony (Count 3); and one count of domestic violence in violation of R.C. 2919.25(C),
a second-degree misdemeanor (Count 4). The charges arose out of a May 3, 2019
incident in which D-Bey allegedly struck his girlfriend’s nine-year-old son, then
obtained a firearm and threatened to shoot a male with whom he had had an
altercation a week earlier.
D-Bey’s girlfriend, R.S., called police after D-Bey, who was “very
intoxicated,” allegedly made numerous verbal threats towards her and her children,
including threatening to kill them and to burn down their house. As R.S. attempted
to get her older son (age 13) into the car after he got off the bus from school, D-Bey
allegedly grabbed him by his shirt and would not let him go. Once the older child
was released and got into the car, D-Bey then allegedly walked over to the passenger
side of the vehicle, where R.S.’s younger son was sitting, opened the door and struck
the child several times in the face before R.S. drove away with the children. Both of
the children allegedly had various mental disabilities.
After R.S. drove away, one of D-Bey’s cousins picked D-Bey up in her
vehicle. D-Bey allegedly removed a handgun from the glovebox of his cousin’s
vehicle, loaded it and asked his cousin to take him to a location so that he could shoot
a male who had assaulted him the week before. When she refused, D-Bey allegedly
told his cousin to keep driving or he would shoot her. Police eventually located and
pulled over the cousin’s vehicle. D-Bey was arrested and transported to the
Cuyahoga County Jail; however, because he was “heavily intoxicated,” he was
“medically declined” and transported to St. Vincent Charity Hospital for medical
treatment. Once he “sobered up,” he was transported back to the jail.
D-Bey initially pled not guilty to all charges. The parties later reached
a plea agreement. Pursuant to the plea agreement, D-Bey agreed to plead guilty to
Count 1 as indicted and an amended Count 3, i.e., attempted domestic violence in
violation of R.C. 2919.25(A) and 2923.02, a fifth-degree felony. In exchange for D-
Bey’s guilty pleas, the remaining counts would be nolled.
On August 5, 2019, the trial court held a change-of-plea hearing.
After the state and defense counsel set forth the terms of the plea agreement on the
record, defense counsel stated that he had “fully pre-tried Mr. D-Bey’s case” and
confirmed that there was “a factual basis” for D-Bey to plead guilty to the offenses
at issue. The trial court then proceeded with the plea colloquy.
In response to the trial court’s preliminary questions, D-Bey indicated
that he understood what had been stated on the record by the state and defense
counsel regarding the plea agreement, that he was a United States citizen, that he
had graduated from high school and had completed “some college” and that he was
not then under the influence of any drugs, alcohol or medication. D-Bey further
indicated that he was satisfied with the representation he had received from his trial
counsel and that no promises or threats had been made to induce him to change his
pleas.
The trial court advised D-Bey of his constitutional rights and
confirmed that he understood the rights he would be waiving by entering his guilty
pleas. The trial court then identified each of the counts to which D-Bey would be
pleading guilty and set forth the potential prison sentences and fines he would face
on each count by pleading guilty.
D-Bey pled guilty to each of the charges in accordance with the plea
agreement. The trial court found that D-Bey “had entered into this plea agreement
knowingly, voluntarily and intelligently,” accepted his guilty pleas and dismissed the
remaining counts with which he had been charged. The trial court then referred D-
Bey to the probation department for a presentence investigation and report (“PSI”)
and scheduled a sentencing hearing for the following month.
After the trial court scheduled the sentencing hearing, defense
counsel advised the trial court that “there is a mental health part to this.” He noted
that D-Bey was receiving mental health services from Recovery Resources and was
on new medications due to “post traumatic stress disorder that is tethered to his own
past.” Defense counsel requested that the trial court refer D-Bey to the court
psychiatric clinic for a mitigation evaluation prior to sentencing. The trial court
denied the request, noting that the court psychiatric clinic was “[u]ndermanned and
overstaffed” and that D-Bey was “already treating.” Defense counsel stated that he
understood and that he would “bring documentation to verify” D-Bey’s mental
health diagnoses and treatment.1
1
It is unclear from the record whether defense counsel, in fact, provided this
documentation to the trial court.
On September 4, 2019, the trial court held a sentencing hearing. The
state, R.S., defense counsel and D-Bey addressed the trial court at the sentencing
hearing.
R.S. requested leniency in sentencing. She stated that, at the time of
the incident, D-Bey was “heavily intoxicated” and “totally out of his mind.” She
indicated that D-Bey had been upset about an incident that occurred a week earlier
involving a family member, that it “wasn’t sitting well with him” and that, as a result,
he had begun drinking at approximately 10:00 a.m. on the day of the incident. R.S.
stated that she had been with D-Bey for a year-and-a-half, that he had helped her
with her children, that “overall” he had been “a good person” to her and that this
was the first time an incident like this had occurred. She stated that D-Bey had had
a difficult upbringing and that he had recently been sick and unable to work, which
had taken “a mental toll” on him. R.S. also claimed that D-Bey had been “newly
diagnosed” with PTSD and that he had been going to counseling and seeing a
psychiatrist to “address[] those issues.”
The transcript from the sentencing hearing reflects that defense
counsel provided a letter to the trial court regarding D-Bey’s participation in
vocational and employment programming. Defense counsel stated that D-Bey was
in “a terrible mental state” when he first met him and that “the first few times” he
interacted with D-Bey “it was difficult to get past the tears and the fact that he was
sobbing.” Defense counsel indicated that he had encouraged D-Bey to “put himself
into the mental health resources in the community,” take prescribed medications,
maintain sobriety and seek employment and stated that D-Bey “has done all of those
things.” Defense counsel described D-Bey’s volatile childhood and asserted that, at
the time of the incident, D-Bey “was in some spiral[ing] mental disorder, whether it
was occasioned by alcohol or mental health problems.” He stated that D-Bey now
had “a different demeanor and different outlook about this matter,” that D-Bey
acknowledged that he had put other people, including children, in danger and that
he was “ready to atone” for his actions in “any way” the trial court saw fit, including
by “being incarcerated.” Defense counsel requested that the trial court consider
imposing community control sanctions.
D-Bey also requested leniency in sentencing. He stated that after he
witnessed his father commit suicide, he became addicted to cocaine and was a drug
addict for 20 years from 1988 to 2008. He claimed that, since that time, he had been
“trying to get [his] life together.” He stated that on the date of the incident, he “just
lost it.” He denied threatening his cousin. He admitted grabbing her gun but
claimed to have put it up to his own head, contemplating suicide. He stated that
when he started thinking about what he had done to R.S., he “felt so horrible” he
wanted to kill himself, but that he then thought about how his mother would react
to his death and decided against committing suicide. He claimed that he was “not a
bad person” and that he had just “made a bad decision.” He stated that he had
“got[ten] in trouble a few years ago,” but that that incident involved a situation “out
of [his] control” and that he “had to defend” himself. D-Bey stated that he was now
taking his medication, was seeing a therapist and psychiatrist, had obtained a
certification as a tow operator and was now “doing everything I have to do.”
After reviewing and considering the PSI, “the seriousness and
recidivism factors and the purposes and principles of the sentencing statute” and
the information presented at the sentencing hearing, the trial court sentenced D-
Bey to a 36-month prison sentence on Count 1 and a 12-month sentence on Count
3, as amended, to be served concurrently. The trial court also sentenced D-Bey to
three years of discretionary postrelease control.
In its September 6, 2019 sentencing journal entry, the trial court
stated: “The court considered all required factors of the law. The court finds that
prison is consistent with the purpose of R.C. 2929.11.” Although the trial court
imposed concurrent sentences at the sentencing hearing, in its sentencing journal
entry, the trial court indicated that the sentences were to be served consecutively.
In addition, although the trial court had not imposed costs at the sentencing hearing,
costs were imposed in the trial court’s sentencing journal entry.
D-Bey appealed his convictions. On December 17, 2019, D-Bey filed
a motion for a limited remand for the trial court to correct clerical errors in its
sentencing journal entry. On December 31, 2019, this court remanded to the trial
court “for the sole purpose of entering a nunc pro tunc entry to reflect the sentence
that was imposed at the sentencing hearing.” The case was remanded to the trial
court until January 31, 2020.
On January 13, 2020, while the case was on remand, D-Bey filed, pro
se, a motion to withdraw his guilty pleas pursuant to Crim.R. 32.1. D-Bey contended
that his “trial counsel’s advice precluded [him] from entering a plea of guilt
knowingly, voluntarily and intelligently.” D-Bey claimed that he was denied the
effective assistance of trial counsel because trial counsel (1) failed to present
documentation of his mental health issues, including his diagnoses for major
depression disorder, generalized anxiety disorder and posttraumatic stress disorder,
to the trial court, (2) never requested that the trial court conduct a mental health
evaluation of D-Bey and (3) failed to object when the prosecutor “submitted
inadmissible evidence” of a dismissed kidnapping charge at his sentencing hearing.
D-Bey contended that he would not have entered his guilty pleas if he had known
“the prosecutor was using a police report from a dismissed charge which was read
during [his] sentencing.”
In support of his motion, D-Bey attached copies of what he described
as “Defendant[’]s p[s]ychological evaluation,” “mental health documents” from
Recovery Resources and the “police report” from the dismissed kidnapping charge.
The “psychological evaluation” was a report dated December 4, 2018 from Richard
G. Litwin, Ph.D., a licensed clinical psychologist (“Dr. Litwin’s report”). The report
indicates that D-Bey had been “referred for evaluation to help with vocational
planning” and addressed the extent to which D-Bey had the physical, intellectual
and emotional functionality to obtain a commercial driver’s license and become a
truck driver or to work as a crane operator. The “mental health documents” consist
of two, single-page letters from Recovery Resources dated August 1, 2019 and
August 23, 2019, identifying the services in which D-Bey had been participating and
setting forth his “current diagnosis and medication regimen.” The “police report”
was a copy of the complaint that was filed in the Cleveland Municipal Court relating
to the May 3, 2019 incident.
The state opposed the motion. The state argued that the trial court
lacked jurisdiction to rule on the motion while D-Bey’s direct appeal was pending
and that D-Bey had not demonstrated a manifest injustice warranting withdrawal of
his guilty pleas.
On January 28, 2020, D-Bey filed, pro se, a supplemental
memorandum in support of his motion to withdraw his guilty pleas, requesting that
the trial court “redress and state the conditions in which the sentence was modified”
and asserting that he was “misinformed by counsel and mislead to believe he was
receiving probation.” No evidence was submitted in support of this supplemental
memorandum.
This court extended the remand order until April 2, 2020 for the trial
court to issue a nunc pro tunc order as to the sentencing journal entry and rule on
D-Bey’s motion to withdraw his guilty pleas. On February 7, 2020, the trial court
issued a nunc pro tunc journal entry indicating that the sentences on Counts 1 and
3 were to be served concurrently. The trial court did not modify the imposition of
costs.
On February 24, 2020, D-Bey filed, pro se, an additional
supplemental memorandum in support of his motion to withdraw his guilty pleas.
He requested that the trial court permit him to “include the allegations” that his
guilty pleas were not knowing, intelligent and voluntary because trial counsel had
failed to “explore defenses related to [his] medical records, such as insanity,
blackout and otherwise” (and D-Bey was “unaware he might have otherwise been
able to defend against the charges”) and because attempted domestic violence was
“not a cognizable offen[s]e in Ohio.” He also claimed that trial counsel’s failure to
present his mental health records to the trial court “prevented the court from
making necessary referrals to services,” including a referral to the mental health
docket and “competency referral.” Finally, he asserted that he had “no idea” when
he was entering his guilty pleas that the state could refer to “the ‘Details of Arrest’
from a dismissed charge” during sentencing and argued that this was a “violat[ion]
[of] the laws that are in place to protect the defendant[’s] rights.” In support of his
claims, D-Bey attached a Cleveland Division of Police case information report
related to the incident.
On March 12, 2020, the trial court denied D-Bey’s motion to
withdraw his guilty pleas without a hearing. On March 26, 2020, D-Bey filed a
motion with this court seeking an order compelling the trial court to correct its
journal entry imposing court costs. This court denied the motion. The court stated
that the trial court’s inclusion of costs in its sentencing journal entry was “not
jurisdictional,” that “[t]he trial court[,] by imposing the costs again on remand[,]
may find the costs appropriate” and that D-Bey could address the issue in his
appellate brief. On May 12, 2020, with leave of court, D-Bey filed an amended notice
of appeal that included the trial court’s denial of his motion to withdraw his guilty
pleas.
D-Bey raises the following five assignments of error for review:
I. Appellant’s entire plea and sentence is unconstitutional and
must be vacated where appellant entered a guilty plea to
attempted domestic violence a non-cognizable offense in the
state of Ohio and appellant’s trial counsel was further ineffective
in counseling appellant to plead to a nonexistent crime.
II. The entry of judgment for costs of the prosecution must be
vacated where court costs were not ordered at the oral
sentencing hearing or at any time thereafter on the record.
III. The trial court erred when it failed to order a mental health
evaluation of appellant and trial counsel was ineffective and
caused appellant’s guilty pleas to be improperly entered without
evaluating appellant’s mental health, available programs and
possible defenses.
IV. The trial court erred when it denied appellant’s postconviction
motion to withdraw guilty plea and did so absent an evidentiary
hearing.
V. The sentence imposed upon appellant is excessive under the
facts on record and must be modified or vacated and remanded
and [trial] counsel was ineffective in failing to provide mitigating
mental health information to be considered by the trial court in
issuing sentence.
For ease of discussion, we address D-Bey’s assignments of error out
of order and together where appropriate.
Law and Analysis
Guilty Plea to “Nonexistent” Offense
In his first assignment of error, D-Bey contends that his guilty plea to
attempted domestic violence was “unconstitutional” and must be vacated because
attempted domestic violence is not a cognizable offense under Ohio law. He further
claims that he was denied the effective assistance of counsel based on trial counsel
“counseling [D-Bey] to plead to a nonexistent crime.” These arguments are
meritless.
Ineffective Assistance of Counsel
A criminal defendant has the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The Sixth Amendment to the United States Constitution guarantees a
defendant the effective assistance of counsel at all “‘“critical stages of a criminal
proceeding,” including when he or she enters a guilty plea.”” State v. Romero, 156
Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, ¶ 14, quoting Lee v. United States,
582 U.S. __, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017), quoting Lafler v. Cooper,
566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Hill v. Lockhart, 474 U.S.
52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). As a general matter, to establish
ineffective assistance of counsel, a defendant must demonstrate: (1) deficient
performance by counsel, i.e., that counsel’s performance fell below an objective
standard of reasonable representation, and (2) that counsel’s errors prejudiced the
defendant, i.e., a reasonable probability that but for counsel’s errors, the outcome
would have been different. Strickland at 687-688, 694; State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.
“Reasonable probability” is “probability sufficient to undermine confidence in the
outcome.” Strickland at 694.
A claim of ineffective assistance of counsel is waived by a guilty plea,
except to the extent that the ineffective assistance of counsel caused the defendant’s
plea to be less than knowing, intelligent and voluntary. State v. Williams, 8th Dist.
Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Spates, 64 Ohio St.3d
269, 272, 595 N.E.2d 351 (1992). Accordingly, where a defendant has entered a
guilty plea, the defendant can prevail on an ineffective assistance of counsel claim
only by demonstrating that there is a reasonable probability that, but for counsel’s
deficient performance, he would not have pled guilty to the offenses at issue and
would have instead insisted on going to trial. State v. Vinson, 2016-Ohio-7604, 73
N.E.3d 1025, ¶ 30 (8th Dist.); State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715(1992); Hill at 59.
In Ohio, every properly licensed attorney is presumed to be
competent. State v. Black, 8th Dist. Cuyahoga No. 108001, 2019-Ohio-4977, ¶ 35,
citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Thus, in
evaluating counsel’s performance on a claim of ineffective assistance of counsel, the
court must give great deference to counsel’s performance and “indulge a strong
presumption” that counsel’s performance “falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d
674; see also State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 (8th Dist.) (‘“A
reviewing court will strongly presume that counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.’”), quoting State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-
2175, ¶ 69.
To constitute ineffective assistance of counsel, the errors complained
of must amount to ‘“a substantial violation of * * * defense counsel’s essential duties
to his client.’” Bradley, 42 Ohio St.3d at 141-142, 538 N.E.2d 373, quoting State v.
Lytle, 48 Ohio St.2d 391, 396, 358 N.E.2d 623 (1976), vacated in part on other
grounds, 438 U.S. 910 (1978). Tactical or strategic decisions do not generally
constitute ineffective assistance of counsel. See, e.g., Black at ¶ 35; State v. Foster,
8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23. Reviewing courts “will
ordinarily refrain from second-guessing strategic decisions” by trial counsel — even
where trial counsel’s strategy was “questionable” or “debatable” or, in hindsight, it
looks like a better strategy was available or other counsel would have defended
against the charges differently. State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658,
780 N.E.2d 186, ¶ 152; State v. Ford, 8th Dist. Cuyahoga No. 105865, 2018-Ohio-
3563, ¶ 34; State v. Quinones, 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544,
¶ 25.
Invited Error
D-Bey pled guilty to attempted domestic violence in violation of R.C.
2923.02 and 2919.25(A). R.C. 2919.25(A) states: “No person shall knowingly cause
or attempt to cause physical harm to a family or household member.” D-Bey
contends that because “attempt” is included as an element of the offense of domestic
violence, it was “error to add the general attempt statute to the offense.” He further
contends that because this “result[ed] in a conviction for a crime that does not exist,”
his guilty plea and sentence must be vacated.
The record reflects that D-Bey accepted the state’s plea offer and
knowingly, intelligently and voluntarily pled guilty to the charges at issue. To now
challenge his guilty plea, after he received the benefit of the negotiated plea bargain,
on the basis that it involved a nonexistent offense, is invited error. See, e.g., State v.
Robinson, 8th Dist. Cuyahoga No. 107598, 2019-Ohio-2330, ¶ 9, 12; State v.
Brawley, 8th Dist. Cuyahoga No. 79705, 2002-Ohio-3115, ¶ 6, 20 (defendant’s claim
that it was “legally impossible” to be charged with offense to which he pled guilty did
not warrant withdrawal of his negotiated guilty plea because any error was invited
error); State v. Lester, 8th Dist. Cuyahoga No. 106850, 2018-Ohio-4893, ¶ 8-11
(although attempted involuntary manslaughter is a nonexistent crime in Ohio,
defendant could not seek to set aside his conviction based on a claim that counsel
was ineffective by allowing him to plead guilty to the nonexistent offense where
defendant negotiated his plea to it with the state); see also State v. Toms, 2d Dist.
Clark No. 2000 CA 64, 2001 Ohio App. LEXIS 3944, 3-6 (Sept. 7, 2001) (where
defendant negotiated guilty plea to attempted involuntary manslaughter, any error
by the trial court in accepting the plea was invited error and did not warrant reversal
of defendant’s conviction); State v. Wickham, 5th Dist. Muskingum No. CA 76-40,
1977 Ohio App. LEXIS 10210, 4-10 (Sept. 28, 1977) (defendant entering a negotiated
guilty plea to attempted involuntary manslaughter, even if a nonexistent offense,
was not reversible error); cf. State v. Robinson, 8th Dist. Cuyahoga No. 107598,
2020-Ohio-98, ¶ 12 (“[I]t must be noted that this court, as well as numerous other
courts, have affirmed convictions based on guilty pleas to offenses the state could
not prove where the defendant knowingly, intelligently, and voluntarily entered a
guilty plea as part of a ‘negotiated plea agreement.’”).
Under the invited error doctrine, ‘“a party will not be permitted to
take advantage of an error that he himself invited or induced the trial court to
make.’” State v. Franks, 8th Dist. Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 8,
quoting State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 471, 692 N.E.2d 198(1998). As this court explained in Lester, “the ‘negotiated guilty plea * * * has
consistently been given judicial approval as both a means of moving heavy criminal
dockets and hopefully as the first step toward the defendant’s rehabilitation.’”
Lester at ¶ 9, quoting Wickham at 5. “[B]ecause the ‘criminal justice system and the
defendant stand to gain by an enlightened use of the negotiated plea system,’” a
defendant who negotiated a guilty plea to a nonexistent offense “cannot now
complain that it should be set aside.” Lester at ¶ 10-11, quoting Wickham at 6.2
There is nothing in the record to support D-Bey’s claim that his trial
counsel failed to properly advise him regarding the offenses to which D-Bey pled
2 Because D-Bey invited any error the trial court may have made in accepting his
guilty plea to the offense, we do not address the issue of whether attempted domestic
violence is a “nonexistent offense.”
guilty. Further, D-Bey has not shown that he was prejudiced by counsel’s alleged
failure to advise him that he was pleading guilty to a “nonexistent” offense and that,
if he had known this, he would not have pled guilty to the offense and would have,
instead, insisted upon going to trial. With the inclusion of the attempt statute in
amended Count 3, that charge was reduced from a fourth-degree felony (as
originally indicted) to a fifth-degree felony. Further, as a result of his negotiated
guilty pleas, two additional counts were dismissed. D-Bey’s first assignment of error
is overruled.
Consideration of D-Bey’s Mental Health
In his third and fifth assignments of error, D-Bey asserts that he has
“a significant history of mental illness” that was not properly “brought to the
attention of the trial court” prior to sentencing. Specifically, D-Bey contends that
the trial court erred in failing to order a mental health evaluation before accepting
his guilty pleas and that his defense counsel was ineffective for (1) failing to
investigate D-Bey’s mental health and request a transfer to the mental health docket,
(2) failing to “explore defenses such as sanity and blackout” and (3) failing to provide
“mitigating mental health information” to the trial court for consideration during
sentencing. Once again, D-Bey’s arguments are meritless. Simply because D-Bey
may have suffered from mental health issues does not mean he was not competent
to enter a guilty plea, that he was not sane or otherwise not responsible for his
actions at the time he committed the offenses at issue or that his case should have
been transferred to the mental health docket.
Trial Court’s Failure to Order a Mental Health Evaluation
D-Bey does not specify what type of mental evaluation he contends
the trial court should have ordered in this case before accepting his guilty pleas. R.C.
2945.371(A) provides, in relevant part:
If the issue of a defendant’s competence to stand trial is raised or if a
defendant enters a plea of not guilty by reason of insanity, the court
may order one or more evaluations of the defendant’s present mental
condition or, in the case of a plea of not guilty by reason of insanity, of
the defendant’s mental condition at the time of the offense charged.
The conviction of a defendant who is not competent to enter a plea
violates due process of law. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391,
819 N.E.2d 215, ¶ 155, citing Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43
L.Ed.2d 103 (1975) (“It has long been accepted that a person whose mental condition
is such that he lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in preparing his
defense may not be subjected to a trial.”), and State v. Berry, 72 Ohio St.3d 354, 359,
650 N.E.2d 433 (1995) (“Fundamental principles of due process require that a
criminal defendant who is legally incompetent shall not be subjected to trial.”). The
competence required to enter a guilty plea is the same as the competence required
to stand trial. State v. Minifee, 8th Dist. Cuyahoga No. 108331, 2019-Ohio-4464,
¶ 12, citing State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064,
¶ 57; State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180,
¶ 56. The defendant must have “‘sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding’” and must have “‘a rational as
well as factual understanding of the proceedings against him.’” Montgomery at
¶ 56, quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d
824 (1960); Minifee at ¶ 12.
A defendant is presumed to be competent unless it is demonstrated
by a preponderance of the evidence that the defendant is incapable of understanding
the nature and objective of the proceedings against him or her or is incapable of
assisting in his or her defense. R.C. 2945.37(G); see also State v. Were, 118 Ohio
St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 45 (“A defendant is presumed to be
competent to stand trial, and the burden is on the defendant to prove by a
preponderance of the evidence that he is not competent.”); State v. Collins, 4th Dist.
Lawrence No. 18CA11, 2019-Ohio-3428, ¶ 8 (“‘[I]n the absence of evidence to the
contrary, a criminal defendant is rebuttably presumed competent to enter a guilty
plea.’”), quoting State v. Pigge, 4th Dist. Ross No. 09CA3136, 2010-Ohio-6541, ¶ 28.
A defendant is not incompetent to plead guilty solely because he
suffers from a mental illness. State v. McMillan, 2017-Ohio-8872, 100 N.E.3d 1222,
¶ 29 (8th Dist.), citing State v. Calabrese, 8th Dist. Cuyahoga No. 104151, 2017-
Ohio-7316, ¶ 16. A defendant suffering from a mental illness may still possess the
ability to understand the charges and proceedings against him or her and be able to
assist in his or her defense. Likewise, a defendant suffering from a mental illness
may enter a knowing, intelligent and voluntary guilty plea. See, e.g., State v. Vrabel,
99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 29 (“‘Incompetency must
not be equated with mere mental or emotional instability or even with outright
insanity. A defendant may be emotionally disturbed or even psychotic and still be
capable of understanding the charges against him and of assisting his counsel.’”),
quoting State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986); State v.
Hawkins, 8th Dist. Cuyahoga No. 108057, 2019-Ohio-4162, ¶ 17 (“‘[A] defendant’s
emotional or mental instability does not establish incompetence for the purpose of
negating a plea, which was otherwise voluntarily, knowingly, and intelligently
made.’”), quoting State v. Prettyman, 8th Dist. Cuyahoga No. 79291, 2002 Ohio
App. LEXIS 1112, 4-5 (Mar. 14, 2002); State v. Walker, 8th Dist. Cuyahoga No.
65794, 1994 Ohio App. LEXIS 4450, 5 (Sept. 29, 1994) (“A defendant may be
mentally unstable and still be capable of understanding the charges against him and
entering a plea in a knowing, intelligent, and voluntary manner.”); State v. Swift, 86
Ohio App.3d 407, 411, 621 N.E.2d 513 (11th Dist.1993) (defendant suffering from
depression was competent to enter guilty plea). The test for competency focuses
entirely on the defendant’s ability to understand the meaning of the proceedings
against him or her and the defendant’s ability to assist in his or her own defense,
which can be satisfied regardless of the defendant’s mental health. McMillan at
¶ 29.
Here, no issue was ever raised below as to D-Bey’s competency to
enter a guilty plea or as to his sanity at the time he committed the offenses at issue,
and there is nothing in the record to suggest that D-Bey exhibited any outward signs
of incompetency at any time relevant to this appeal. There is no indication in the
record that D-Bey was confused or that any mental condition D-Bey may have had
precluded him from understanding the nature and objective of the proceedings
against him, in assisting in his defense or in otherwise entering knowing, intelligent
and voluntary guilty pleas.
To the contrary, the record is replete with evidence that D-Bey was
competent to enter and, in fact, entered knowing, intelligent and voluntary guilty
pleas. Our review of the transcript from the change-of-plea hearing shows that D-
Bey had an understanding of the criminal proceedings against him and was assisting
in his defense. The record shows that D-Bey was able to clearly and effectively
communicate with the trial court and his counsel. Throughout the proceedings, D-
Bey provided reasonable, informed responses to inquiries by the trial court that
exhibited D-Bey’s understanding of the legal process, the charges against him and
the consequences of his guilty pleas.
Accordingly, we find no reversible error in the trial court’s failure to
order a mental evaluation before accepting D-Bey’s guilty pleas. Cf. State v. Taylor,
2d Dist. Montgomery No. 28463, 2020-Ohio-3481, ¶ 58 (trial court did not err in
finding defendant competent to stand trial without ordering a psychological
evaluation where there was no evidence that defendant did not understand the
nature of the proceedings or that he could not assist defense counsel, the transcript
of the competency hearing established that defendant was articulate and
knowledgeable of the charges he faced and he had preexisting knowledge and
exposure to the criminal legal system).
Trial Counsel’s Alleged Failure to Raise D-Bey’s Mental
Health Issues and Provide Mental Health Information to the
Trial Court
With respect to his claims of ineffective assistance of counsel, D-Bey
asserts that defense counsel “was aware from the time he began representing [D-
Bey] that there was a mental health aspect” to D-Bey’s commission of the offenses
at issue, pointing to statements made by defense counsel at the sentencing hearing
that when he first interacted with D-Bey, D-Bey was in “a terrible mental state” and
“sobbing.”
D-Bey contends that his “significant mental health issues” warranted
“far more investigation” than a request for a mitigation of penalty report after he
entered his guilty pleas. He contends that, “at a minimum,” trial counsel should
have requested that his case be transferred to the “mental health court” and that by
“[w]aiting until after [his] plea to bring up his mental health issues” and failing to
provide his “mental health records and reports” to the trial court, defense counsel
“fell below a reasonable level or representation,” resulting in prejudice to D-Bey,
“who could have asserted meritorious defenses or been adjudicated by the proper
mental health court.” D-Bey further contends that if trial counsel had presented his
“mental health reports” to the trial court before sentencing, those reports “coupled
with the victim’s statements regarding his good character,” “would have resulted in
a sentence aimed to treat [D-Bey] rather than simply impose prison.”
In support of his contentions, D-Bey refers to Dr. Litwin’s
“psychological evaluation.” He contends that this report shows that D-Bey’s actions
were “not under his control” and that “his sanity at the time of the offense should be
questioned.” He further contends the report “raises the issue of the blackout defense
caused by PTSD” and shows that D-Bey should have been “transferred to and treated
by the mental health court.” As stated above, however, Dr. Litwin’s report resulted
from a “refer[al] for evaluation to help with vocational planning.” In his report, Dr.
Litwin offers his opinions regarding the extent to which D-Bey had the physical,
intellectual and emotional functionality to obtain a commercial driver’s license and
become a truck driver or to work as a crane operator. Dr. Litwin’s report does not
reflect a full, general psychological or psychiatric evaluation. Further, Dr. Litwin’s
report was dated December 4, 2018 — six months prior to the incident at issue. It,
therefore, could not have addressed D-Bey’s mental state at the time of the May 3,
2019 incident or at the time he entered his guilty pleas on August 5, 2019.
There is nothing in the record to suggest that this case was eligible for
transfer to the mental health docket. Loc.R. 30.1 of the Court of Common Pleas of
Cuyahoga County, General Division (“Loc.R. 30.1”) governs assignment of criminal
cases to the court’s mental health and developmental disabilities docket. Under
Loc.R. 30.1(A), cases involving defendants with “a confirmed severe mental illness
with a psychotic feature or developmental disabilities, as determined by the Court’s
guidelines” are eligible for assignment or transfer to the court’s mental health and
developmental disabilities (“MHDD”) docket. Loc.R. 30.1(C)(2)(a) further
provides, in relevant part: “In cases where it is determined after assignment to a
non-MHDD judge that the defendant qualifies for the MHDD docket, the assigned
judge may apply to the Administrative Judge for transfer of the case to the MHDD
docket.”
Because there is nothing in the record to suggest that D-Bey
“qualifie[d] for the MHDD docket,” defense counsel was not deficient for failing to
request that the case be transferred to the MHDD.
Likewise, there is nothing in the record to support D-Bey’s claims
that he had a potential “blackout” or insanity defense, that defense counsel failed to
properly investigate his mental health or any available defenses or that he would not
have entered his guilty pleas had defense counsel properly investigated such
defenses. The fact that D-Bey was distraught and remorseful when he first
interacted with defense counsel does not mean that he was not sane at the time he
committed the offenses at issue or that he lacked the capacity to assist in his defense
and enter knowing, intelligent and voluntary guilty pleas at the change-of-plea
hearing.
Although D-Bey was admittedly “heavily intoxicated” at the time of
the incident, there is nothing in the record to support his claim that he was insane
or that he had experienced a “blackout * * * caused by PTSD” during the incident.
At the sentencing hearing, D-Bey discussed the events of May 3, 2019 at length —
including his actions in obtaining a gun from his cousin’s vehicle — and disputing
the version of events set forth in the police report.
Based on the record before us, it is unclear whether defense counsel
provided copies of D-Bey’s mental health records to the trial court prior to
sentencing. As stated above, at the change-of-plea hearing, defense counsel stated
that he would “bring documentation to verify” D-Bey’s mental health diagnoses and
treatment. There was no discussion of the issue on the record at the sentencing
hearing. However, even if defense counsel had failed to provide that documentation
to the trial court, it is clear that the trial court was aware of D-Bey’s mental health
issues at the time of sentencing. The PSI included specific information regarding D-
Bey’s history of treatment for mental illness, diagnoses and medications. In
addition, the trial court heard from D-Bey, R.S. and defense counsel at the
sentencing hearing regarding D-Bey’s mental health issues and treatment. D-Bey
has not shown that he was prejudiced by defense counsel’s alleged failure to
provided additional or different information to the trial court regarding his mental
health issues prior to sentencing. As discussed in greater detail below, the trial court
made it clear at the sentencing hearing that its decision to impose the prison
sentences in this case was based primarily on D-Bey’s significant criminal history.
D-Bey’s third assignment of error is overruled.
Motion to Withdraw Guilty Plea
In his fourth assignment of error, D-Bey contends that the trial court
abused its discretion in denying his motion to vacate his guilty pleas without an
evidentiary hearing.
A motion to withdraw a guilty plea is governed by Crim.R. 32.1.
Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty * * * may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his
or her plea.” The defendant bears the burden of establishing the existence of
“manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),
paragraph one of the syllabus. Manifest injustice is “a clear or openly unjust act,”
State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998),
“that is evidenced by ‘an extraordinary and fundamental flaw in the plea
proceeding,’” State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640 and
104641, 2017-Ohio-1049, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga No.
90141, 2008-Ohio-455, ¶ 8; see also Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, at
¶ 41; State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-Ohio-2661, ¶ 17
(‘“Manifest injustice relates to some fundamental flaw in the proceedings which
result[s] in a miscarriage of justice or is inconsistent with the demands of due
process.’”), quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-
Ohio-6123, ¶ 5. As such, the postsentence withdrawal of a guilty plea is warranted
“only in extraordinary cases.” State v. Rodriguez, 8th Dist. Cuyahoga No. 103640,
2016-Ohio-5239, ¶ 22, citing Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.
The requisite showing of manifest injustice must be based on specific
facts in the record or supplied through affidavits submitted with the motion. See,
e.g., State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699,
¶ 10.
A trial court is not required to hold a hearing on every postsentence
motion to withdraw a guilty plea. See, e.g., State v. Norman, 8th Dist. Cuyahoga
No. 105218, 2018-Ohio-2929, ¶ 16; State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,
2017-Ohio-5818, ¶ 11. However, “‘[a] hearing is required * * * if the facts alleged by
the defendant, accepted as true, would require that the defendant be allowed to
withdraw the plea.’” Norman at ¶ 16, quoting Vihtelic at ¶ 11; see also State v.
Tringelof, 12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016, 2017-
Ohio-7657, ¶ 11 (“‘A defendant must establish a reasonable likelihood that a
withdrawal of his plea is necessary to correct a manifest injustice before a court must
hold an evidentiary hearing on his motion.’”), quoting State v. Williams, 12th Dist.
Warren No. CA2009-03-032, 2009-Ohio-6240, ¶ 14.
We review a trial court’s decision to deny a defendant’s postsentence
motion to withdraw a guilty plea under an abuse of discretion standard. See, e.g.,
Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, at ¶ 42, citing Smith, 49 Ohio St.2d 261,
361 N.E.2d 1324, at paragraph two of the syllabus. Likewise, we review a trial court’s
decision whether to hold a hearing on a postsentence motion to withdraw a guilty
plea for an abuse of discretion. See, e.g., State v. Grant, 8th Dist. Cuyahoga No.
107499, 2019-Ohio-796, ¶ 13.
D-Bey argues that withdrawal of his guilty pleas was necessary to
correct manifest injustice based on trial counsel’s (1) failure to investigate his mental
health issues and possible defenses and (2) failure to present information regarding
his mental health, including Dr. Litwin’s report, to the trial court before D-Bey
entered his guilty pleas. D-Bey contends that that he was “unaware * * * what
evaluations and programs might have been available to him prior to entering his
guilty plea[s]” and suggests that defense counsel misled him regarding the extent to
which the trial court would consider his mental health issues during sentencing. D-
Bey asserts that if his defense counsel had investigated his mental health, “properly
advised him” regarding available defenses, “petitioned the court” for a mental health
evaluation or transfer to the mental health docket and made Dr. Litwin’s report
available to the trial court, he “would not have been likely to consider entering a
guilty plea absent further investigation” and that his guilty pleas are, therefore,
“unjust” and “must be withdrawn.”
Under certain circumstances, ineffective assistance of counsel can
constitute a manifest injustice warranting a withdrawal of a guilty plea. See, e.g.,
State v. Montgomery, 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4. D-Bey,
however, has not shown any reasonable likelihood that this is such a case.
D-Bey submitted no affidavits or any other relevant evidentiary
materials with his motion to withdraw his guilty pleas and did not point to any
specific facts in the record that could otherwise support his claim of manifest
injustice. D-Bey’s motion to withdraw his guilty pleas (and his appellate brief)
consist of little more than conclusory, self-serving allegations for which there is little
or no support in the record. As detailed above, D-Bey has not shown that there was
any basis in the record for trial counsel to request a mental health evaluation of D-
Bey, that D-Bey qualified for transfer to the MHDD docket or that any potential
defenses applied that would have negated D-Bey’s culpability for the offenses at
issue. Further, there is no evidence in the record relating to any discussions D-Bey
allegedly had with defense counsel regarding his mental health, the impact of his
mental health on his culpability or the extent to which the trial court would consider
D-Bey’s mental health in determining an appropriate sentence. In short, there is
nothing in the record that suggests that D-Bey’s mental condition impacted his
guilty pleas or that defense counsel provided constitutionally ineffective assistance
in counseling him to enter those guilty pleas. Conclusory allegations and
unsubstantiated assertions are not sufficient to demonstrate a manifest injustice or
to warrant a hearing on a motion to withdraw a guilty plea. See, e.g., State v. Britton,
8th Dist. Cuyahoga No. 98158, 2013-Ohio-99, ¶ 19, 21; State v. Johnson, 12th Dist.
Butler Nos. CA2010-12-327 and CA2011-02-019, 2011-Ohio-3015, ¶ 13. The
allegedly harsh nature of the sentence D-Bey ultimately received “does not
constitute grounds for withdrawing the plea that preceded it.” State v. Rollins, 2d
Dist. Champaign No. 2015-CA-7, 2016-Ohio-141, ¶ 7.
Based on the record before us, we cannot say that the trial court
abused its discretion in denying D-Bey’s motion to withdraw his guilty pleas without
an evidentiary hearing. The record is devoid of the type of extraordinary
circumstances that would necessitate allowing D-Bey to withdraw his guilty pleas.
D-Bey’s fourth assignment of error is overruled.
D-Bey’s Sentences
In his fifth assignment of error, D-Bey challenges his sentences. He
contends that the record “does not support the sentencing court’s findings” and that
a “maximum prison sentence was not warranted under the applicable sentencing
considerations and facts at issue.” He requests that this court modify his sentences
or that his sentences be vacated and the case remanded to the trial court for
resentencing.
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1, 21. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the
appellate court “shall review the record, including the findings underlying the
sentence * * * given by the sentencing court” and that it “may increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter
to the sentencing court for resentencing” only if it “clearly and convincingly finds”
that (1) “the record does not support the sentencing court’s findings” under
particular statutory provisions that do not apply here or (2) “the sentence is
otherwise contrary to law.”
A sentence is “contrary to law” if it falls outside 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 when sentencing a defendant for a felony offense. See, e.g., State v.
Clay, 8th Dist. Cuyahoga No. 108500, 2020-Ohio-1499, ¶ 26, citing State v. Pawlak,
8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. A sentence is not “otherwise
contrary to law” simply because the record does not support the sentence. State v.
Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 32 (“[A]n appellate court’s
determination that the record does not support a sentence does not equate to a
determination that the sentence is ‘otherwise contrary to law’ as that term is used in
R.C. 2953.08(G)(2)(b).”).
Pursuant to R.C. 2929.11, a sentence imposed for a felony shall be
“reasonably calculated” to achieve “three overriding purposes of felony sentencing”
— (1) to protect the public from future crime by the offender and others, (2) to
punish the offender and (3) to promote the effective rehabilitation of the offender —
“using the minimum sanctions that the court determines accomplish those purposes
without imposing an unnecessary burden on state or local government resources.”
R.C. 2929.11(A), (B). In addition, the sentence imposed “shall be 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.” R.C. 2929.11(B).
Unless otherwise required by R.C. 2929.13 or 2929.14, a sentencing
court imposing a felony sentence “has discretion to determine the most effective way
to comply” with these purposes and principles of sentencing. R.C. 2929.12(A). R.C.
2929.12 sets forth a nonexhaustive list of factors the trial court must consider when
imposing a sentence. R.C. 2929.12(A) provides that a court imposing a sentence on
a felony offender “shall consider” the factors set forth in R.C. 2929.12(B) and (C)
“relating to the seriousness of the conduct,” the factors provided in R.C. 2929.12(D)
and (E) “relating to the likelihood of the offender’s recidivism” and the factors set
forth in R.C. 2929.12(F) pertaining to the offender’s military service. “[I]n addition,”
the trial court “may consider any other factors that are relevant to achieving those
purposes and principles of sentencing.” R.C. 2929.12(A).
D-Bey does not dispute that his prison sentences were within the
statutory range. Rather, he contends that the trial court “failed to give any
consideration to [D-Bey’s] mental health when sentencing him” and that his
sentences were “excessive” given his claim that his actions were “caused by * * * an
episode of mental illness.” In support of his contention, D-Bey notes that the trial
court “appeared to make no reference” to his mental health, to R.S.’s statement that
“he was a benefit to her family” and to the progress D-Bey had made since receiving
mental health services when sentencing him — focusing instead on his prior
criminal history.
Although the trial court must consider the purposes and principles of
sentencing set forth in R.C. 2929.11 and the relevant sentencing factors listed in R.C.
2929.12 when sentencing a defendant on a felony, R.C. 2929.11 and 2929.12 are not
“fact-finding statutes.” See, e.g., State v. Black, 8th Dist. Cuyahoga No. 108551,
2020-Ohio-3117, ¶ 13; State v. White, 8th Dist. Cuyahoga No. 106580, 2018-Ohio-
3414, ¶ 9. The trial court is not required to use particular language, make any
specific findings on the record regarding its consideration of R.C. 2929.11 and
2929.12 or give specific reasons for imposing more than the minimum sentence.
State v. Herron, 8th Dist. Cuyahoga No. 108775, 2020-Ohio-1620, ¶ 12; Black at
¶ 13; State v. Gaines, 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11.
A trial court’s statement in its sentencing journal entry that it
considered the required sentencing purposes, principles and factors, without more,
is sufficient to fulfill a trial court’s obligations under R.C. 2929.11 and 2929.12. See,
e.g., Herron at ¶ 13; White at ¶ 9; State v. Kronenberg, 8th Dist. Cuyahoga No.
101403, 2015-Ohio-1020, ¶ 27 (“[T]his court has consistently recognized that a trial
court’s statement in the journal entry that it considered the required statutory
factors, without more, is sufficient to fulfill its obligations under the sentencing
statutes.”).
Further, “‘[c]onsideration of the factors is presumed unless the
defendant affirmatively shows otherwise.’” State v. Cooke, 8th Dist. Cuyahoga No.
108824, 2020-Ohio-2725, ¶ 64, quoting State v. Seith, 8th Dist. Cuyahoga No.
104510, 2016-Ohio-8302, ¶ 12; see also State v. Dawson, 11th Dist. Lake No. 2015-
L-109, 2016-Ohio-2800, ¶ 15 (“Absent evidence to the contrary, a reviewing court
will presume the trial court considered all appropriate sentencing factors, even if the
record is silent.”).
In this case, the trial court expressly stated in its sentencing journal
entry that it had “considered all required factors of the law” and “finds that prison is
consistent with the purpose of R.C. 2929.11.” See, e.g., State v. Williams, 8th Dist.
Cuyahoga No. 100042, 2014-Ohio-1618, ¶ 17 (observing that “[t]his court has
refused to find that a sentence is contrary to law when the sentence is in the
permissible range, and the court’s journal entry states that it ‘considered all required
factors of the law’ and ‘finds that prison is consistent with the purposes of R.C.
2929.11’”). The trial judge also expressly stated, at the outset of the sentencing
hearing, that he had received and reviewed the PSI, which included information
regarding D-Bey’s mental health treatment, diagnoses and medications, prior to the
hearing.
Although it was not required to do so, at the sentencing hearing, the
trial court explained its rationale for the sentences it imposed as follows:
Mr. D-Bey, your criminal history is significant for a variety of pretty bad
times. Extortion is not something we see every day. Menacing is a
particularly troubling crime. In this case, you committed harm to a
child with developmental disabilities. You’re 52 years of age. I don’t
see you changing your ways. I considered the seriousness and
recidivism factors and the purposes and principles per our sentencing
statutes.
D-Bey has not demonstrated that the trial court failed to consider the
purposes and principles of sentencing under R.C. 2929.11 or the sentencing factors
under R.C. 2929.12 when sentencing him. The trial court was not required to
demonstrate how its sentence served each of the purposes and principles of
sentencing or to identify or explain its evaluation of each relevant sentencing factor
in order to comply with R.C. 2929.11 and 2929.12.
With respect to D-Bey’s claims that his prison sentences were
“excessive” and not supported by the record, in Jones, the Ohio Supreme Court
recently held that R.C. 2953.08(G)(2) does not authorize an appellate court to
review “whether the record supports the sentence as a whole under R.C 2929.11 and
2929.12.” (Emphasis deleted.) Slip Opinion No. 2020-Ohio-6729, at ¶ 30. The
court reasoned that R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an
appellate court to modify or vacate a sentence if it concludes that the record does
not support the sentence under R.C. 2929.11 and 2929.12 because * * * R.C. 2929.11
and 2929.12 are not among the statutes listed in the provision” and 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” because a sentence is not “otherwise contrary to law”
within the meaning of R.C. 2953.08(G)(2)(b) if it is not supported by the record. Id.
at ¶ 31-32, 39. The court further indicated that “[n]othing in R.C. 2953.08(G)(2)
permits an appellate court to independently weigh the evidence in the record and
substitute its judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42. Accordingly, this
court cannot review D-Bey’s sentences to determine whether they are “excessive” or
otherwise not “supported by the record under R.C. 2929.11 and 2929.12.” Id. at ¶ 39.
Even if D-Bey’s sentences were subject to such a review, we would
find no reversible error. Although D-Bey’s mental health was one factor for the trial
court to consider in determining an appropriate sentence, there were other factors
for the trial court to consider as well, including the relationship between D-Bey and
the victim, the victim’s age and mental condition and D-Bey’s significant history of
criminal offenses.3 See R.C. 2929.12. It was based on these factors that the trial
3 At the time of his sentencing, D-Bey was 52. According to the PSI, D-Bey’s
criminal history included: delinquency adjudications as a juvenile; convictions for drug
abuse and drug trafficking in 1990 and 1991; a conviction for attempted extortion in 1996;
convictions for burglary, theft, tampering with evidence, falsification, forgery, possession
of criminal tools and passing bad checks in multiple cases in 1997; a conviction for
court determined that prison sentences were warranted. The record reflects that the
trial court considered the purposes and principles of sentencing under R.C. 2929.11,
the relevant sentencing factors under R.C. 2929.12, the PSI and all of the other
relevant information presented at (or prior to) the sentencing hearing when
imposing a 36-month prison sentence on Count 1 and a concurrent 12-month prison
sentence on Count 3, as amended. The trial court complied with its obligations
under R.C. 2929.11 and 2929.12, and D-Bey’s sentences were not contrary to law.
Accordingly, we overrule D-Bey’s fifth assignment of error.
Court Costs
In his second assignment of error, D-Bey contends that the trial court
erred by ordering him to pay court costs in the sentencing journal entry when it did
not impose such costs in open court at the sentencing hearing. The state concedes
the error. D-Bey’s second assignment of error is sustained. Accordingly, we reverse
the trial court to the extent it imposed court costs and remand the matter for the
trial court to vacate its imposition of court costs.4
Judgment affirmed in part; reversed in part; remanded.
attempted theft in 2004; convictions for breaking and entering, theft and falsification in
2005; a conviction for theft in 2007; a conviction for battery (domestic violence) in 2011;
a conviction for menacing in 2013 and a conviction for aggravated assault in 2014. The
PSI indicates that D-Bey has a “high” risk for recidivism.
4 We are aware of the Ohio Supreme Court’s decision in State v. Beasley, 153 Ohio
St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028. However, due to the particular facts and
circumstances in this case, including D-Bey’s prior motion to the trial court related to the
costs issue and the fact the state concedes the error in this assignment of error, we do not
believe D-Bey should be required to file yet another motion in the trial court in order to
obtain a waiver of court costs.
It is ordered that appellant and appellee share the costs herein taxed.
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 is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR