State v. Foster ( 2024 )

[Cite as State v. Foster, 2024-Ohio-2075.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112564
v. :
TERRY FOSTER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
AND REMANDED
RELEASED AND JOURNALIZED: May 30, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-670220-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carson Strang, Assistant Prosecuting
Attorney, for appellee.
The Law Office of Jaye M. Schlachet, Jaye M. Schlachet,
and Eric M. Levy, for appellant.
ON RECONSIDERATION1
ANITA LASTER MAYS, J.:
Plaintiff-appellant Terry Foster (“Foster”) moves this court, pursuant
to App.R. 26(A)(1), to reconsider our decision in the State v. Foster, 8th Dist.
Cuyahoga No. 112564, 2024-Ohio-1160, which we issued on March 28, 2024.
App.R. 26 does not provide specific guidelines to be used by an
appellate court when determining whether a decision should be reconsidered or
modified.
In determining whether to grant a motion for reconsideration filed
pursuant to App.R. 26(A)(1)(a), the test ‘“is whether the motion calls to
the attention of the court an obvious error in its decision or raises an
issue for our consideration that was either not considered at all or was
not fully considered by [the court] when it should have been.”’
State v. Beckwith, 8th Dist. Cuyahoga No. 102544, 2016-Ohio-3267, ¶ 2, quoting
State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, quoting Matthews
v. Matthews, 5 Ohio App. 3d 140, 143, 450 N.E.2d 278 (10th Dist.1982).
Foster’s motion calls to the attention of this court an error in its
decision. Accordingly, we grant the motion for reconsideration, vacate the earlier
opinion, and issue this opinion in its place. See App.R. 22(C); see also
S.Ct.Prac.R. 7.01. In this delayed appeal, defendant-appellant Terry Foster
1 The original decision in this appeal, State v. Foster, 8th Dist. Cuyahoga No.
112564, 2024-Ohio-1160, released March 28, 2024, is hereby vacated. This opinion,
issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R.
22(C); see also S.Ct.Prac.R. 7.01.
(“Foster”) appeals his guilty pleas and sentences. The trial court’s judgment is
affirmed in part, vacated in part, and remanded.
I. Background and Facts
Foster, and a codefendant whose case proceeded separately, were
each indicted on 26 counts arising from the murder of victim Napoleon Abrams
(“N.A.”), attempted murders of Jacqueline Jones (“J.J.”) and Joseph Armstrong
(“J.A.”) on November 16, 2021, and the murder of Latrice Burks (“L.B.”) on
November 22, 2021. Counts 1 through 5 carried one-year, three-year, or five-year
firearm specifications. Counts 6 through 19 carried one-year or three-year firearm
specifications. Counts 20 through 26 were drug related.
On February 1, 2023, represented by counsel, Foster pleaded guilty to
(1) Count 2, murder of L.B. under R.C. 2903.02(A), an unclassified felony, with a
three-year firearm specification under R.C. 2941.145(A); (2) an amended Count 8,
murder to the lesser included offense of involuntary manslaughter of N.A., a felony
of the first-degree under R.C. 2903.04, with all firearm specifications deleted; and
(3) Count 22, trafficking, a felony of the third-degree, in violation of R.C.
2925.03(A)(2), with cell phone and cash forfeitures.2
2 At the same hearing, Foster pleaded guilty in another pending case, Cuyahoga
C.P. No. CR-663675-A, which is not part of the instant appeal. The plea was made to
Count 1, felonious assault, a second-degree felony under R.C. 2903.11(A)(1). The
remaining counts and specifications were deleted. Foster was sentenced to an aggregate
minimum sentence of three years and a maximum sentence of four and one-half years
pursuant to the Reagan Tokes Law to run concurrently with the instant case. That case
has not been made a part of this appeal. In the event Foster intended to appeal Cuyahoga
C.P. No. CR-663675-A, he may seek to do so by way of a delayed appeal.
On February 24, 2023, Foster was sentenced to 21 years to life as
follows: (1) Count 2: 15 years to life for murder with a three-year gun specification
served prior and consecutive to the underlying sentence; (2) Count 8: three years
for involuntary manslaughter to be served consecutive to Count 2;3 and
(3) Count 22: 12 months for drug trafficking with cash and cell phone forfeitures to
be served concurrently with Count 2.
Foster appeals.
II. Assignments of Error
Foster assigns the following errors:
I. The trial court erred when it accepted appellant’s guilty plea which
was not entered knowingly, intelligently, and voluntarily where the
court did not advise about the potential of consecutive sentences and
did not determine that appellant was aware a prison sanction was
mandatory.
II. The trial court erred in imposing consecutive sentences upon Foster
without making any of the findings required by R.C. 2929.14(C)(4) at
the sentencing hearing or in the journal entry of sentence which
requires that this court vacate the consecutive sentences not supported
by the record.
III. Discussion
A. Crim.R. 11 compliance
1. Standard of review
This court conducts a de novo review to determine whether the trial
court accepted a guilty plea in compliance with Crim.R. 11(C). State v. Meadows,
3 The trial court properly advised Foster during the plea in this case that the
sentence was subject to the Reagan Tokes Law but did not impose sentence accordingly.
The issue is subject to remand as determined herein.
8th Dist. Cuyahoga No. 111489, 2022-Ohio-4513, ¶ 18, citing State v. Cardwell, 8th
Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26.
A defendant’s decision to enter a plea must be knowingly,
intelligently, and voluntarily made because a no contest or guilty plea involves a
waiver of constitutional rights. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765,
164 N.E.3d 286, ¶ 10, citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121
L.Ed.2d 391 (1992); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 25; see State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
Crim.R. 11 “outlines the procedures that trial courts are to follow
when accepting pleas” and ‘“ensures an adequate record on review by requiring the
trial court to personally inform the defendant of his rights and the consequences of
his plea and determine if the plea is understandingly and voluntarily made.’’’
Dangler at ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411(1975).
Crim.R. 11(C)(2)(a) and (b) require a trial court’s:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and, if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
Crim.R. 11(C)(2)(c) addresses constitutional rights.
In Dangler, the court recognized that “caselaw has muddled” the
Crim.R. 11 “analysis by suggesting different tiers of compliance with the rule.” Id. at
¶ 17. The Dangler Court determined that the former strict or substantial compliance
standard for a Crim.R. 11(C) analysis “unduly complicated what should be a fairly
straightforward inquiry.” Id. at ¶ 17. The court declared:
[T]he questions to be answered are simply:
(1) has the trial court complied with the relevant provision of the rule?
(2) if the court has not complied fully with the rule, is the purported
failure of a type that excuses a defendant from the burden of
demonstrating prejudice? and
(3) if a showing of prejudice is required, has the defendant met that
burden?
Id.
A defendant is not required to demonstrate prejudice where “(1) the
trial court failed to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c)
that the defendant waived by pleading guilty or (2) the trial court ‘completely
fail[ed]’ to ‘comply with a portion of Crim.R. 11(C).’” State v. Conner, 8th Dist.
Cuyahoga No. 111889, 2023-Ohio-1220, ¶ 18, quoting Dangler at ¶ 13-17, 23.
Where a defendant must establish prejudice, it must be “‘“on the face
of the record.””’ Dangler at ¶ 24, quoting Hayward v. Summa Health Sys./Akron
City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26, quoting
Wagner v. Roche Laboratories, 85 Ohio St.3d 457, 462, 709 N.E.2d 162 (1999). The
appellate court considers whether there is something in the record that indicates the
defendant would not have entered his plea if the defendant had been more
thoroughly informed.
2. Analysis
Foster argues he was not advised that a mandatory prison sentence
was required or of the mandatory consecutive nature of the firearm specification.
Foster concedes he was informed that the three-year firearm specification must be
served prior and consecutive to the 15-years-to-life term for murder, but not prior
and consecutive to the base sentences for the involuntary manslaughter and drug
trafficking convictions. Thus, Foster claims the trial court failed to comply with
Crim.R. 11 and he “is not required to show prejudice on appeal where there is a
failure to advise of mandatory consecutive sentences prior to accepting a guilty
plea.” Appellant’s Brief, p. 6.
Foster relies on State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132,
124 N.E.3d 766, to support his position. Bishop “addressed the narrow question of
whether a criminal defendant pleading guilty to a new felony” “committed while on
postrelease control must be notified by the court of the potential consequences of
the postrelease control violation before pleading guilty.” State v. Nelson, 8th Dist.
Cuyahoga Nos. 109072, 109073, and 109260, 2020-Ohio-6993, ¶ 45, citing Bishop
at ¶ 1, 14-17. Bishop held that a complete failure to notify had occurred, so a
demonstration of prejudice was not required. Id. at ¶ 20. Bishop is distinguishable
from the instant case as revealed below.
This court has determined that a ‘“firearm specification carries a
mandatory additional term of imprisonment * * * and constitutes a portion of the
maximum penalty involved in an offense for which a term will be imposed.” State
v. Brown, 8th Dist. Cuyahoga No. 107933, 2019-Ohio-3516, ¶ 27, quoting State v.
Douglas, 8th Dist. Cuyahoga No. 87952, 2007-Ohio-714, ¶ 10, citing State v. Higgs,
123 Ohio App.3d 400, 704 N.E.2d 308 (11th Dist.1997). ‘“Accordingly, a trial court’s
lack of notification regarding the additional mandatory time for a firearm
specification could be a basis to vacate a plea since the defendant has not been
informed of the maximum penalty for which he is pleading guilty.”’ (Emphasis
added.) Id., quoting id. That is not the case here.
During the colloquy, Foster confirmed his understanding that there
was no promise of a particular sentence. Foster was further informed:
Court: Now, the — in that particular charge as indicted to which you’re
pleading guilty to, the murder is [an] unclassified felony which carries
a 15-year sentence to life imprisonment and the difference between the
15 and life is determined by the parole board. Do you understand that?
Foster: Yes, your Honor.
Court: That sentence of 15 years to life will be served after you serve
the three-year firearm specification. Do you understand that?
Foster: Yes, your Honor.
Court: Okay. Great. So for just a layman’s position, the minimum
sentence is eight [sic] years. Do you understand?
Tr. 101-102.4 Thus, Foster was informed of the mandatory nature of the murder
sentence and mandatory consecutive service of the firearm specification.
The trial court’s postrelease control advisement also addressed the
mandatory nature of the imprisonment:
Sir, I’m going to just advise you of postrelease control. First, I want to
say, you’re going to be under the authority of the adult parole authority
on your murder sentence, that 15-years-to-life sentence. Do you
understand that?
Foster: Yes, your Honor.
Court: Okay. That is going to supercede [sic] postrelease control, for
lack of a better word. Do you understand that?
Foster: Yes, your Honor.
Court: Okay. But in the abundance of caution, I’m just giving you these
instructions right here about postrelease control, all right?
Foster: Yes, your Honor. * * *
Court: Probably going to be the last you’re going to hear about that
[postrelease control] after the sentencing because of the life sentence
that you’re receiving. Do you understand that?
Foster: Yes, your Honor.
Tr. 109.
The trial court further informed Foster as to Count 8:
Court: Count 8, involuntary manslaughter, in violation of 2903.04(A),
and Count 8 is for the date November the 16th, 2021, and the named
victim is [N.A.]. The involuntary manslaughter is a lesser included
offense of the murder and it’s under 2903.04(A), and that carries a
potential term of 3 to 11 years at the Lorain Correctional Institution and
it carries post-release control, mandatory minimum of two years to a
4 It is evident from the preceding discussion that the insertion of the number
“eight” instead of “eighteen” is a typographical error.
maximum of five years for post-release control. Do you understand
that?
Foster: Yes, your Honor. * * *
Court: Reagan Tokes sentencing is going to apply * * * in Count 8,
involuntary manslaughter. * * * So the minimum sentence you can
receive in that case is going to be the presumed release date, okay? That
means absent anything else, that should be the date you get out of
prison.
It’s going to run — under 2929.19(B)(2)(C), if the trial court determines
that a prison sentence there is necessary or required, the Court shall
advise the defendant at sentencing hearing all of the following: So this
is your plea hearing and I’m telling you that there is a — rebuttably
presumed that you will be released from the service of sentence at the
expiration of the minimum prison term imposed as part of the
sentence; that you could get bad time if you do bad acts while you’re in
prison. Do you understand that?
Tr. 103-104.
The trial court added regarding Count 8 that Foster “could get bad
time if you do bad acts while you’re in prison * * * and can get good acts [sic] for
good things you do in prison.” Tr. 106. Foster, who stated at sentencing that he had
previously been incarcerated, said he understood.
Court: Do you understand that those [bad and good time] don’t count
while you’re serving a three-year firearm specification?
Foster: Yes, your Honor.
Tr. 107. Thus, Foster was advised that the three-year gun specification would be
served prior to the sentence for the involuntary manslaughter count when the “good
and bad time clock” would begin to tick.
Foster was notified that Count 22, drug trafficking under R.C.
2925.03(A)(2), a third-degree felony, carried a sentence of 8, 12, 18, 24, 20, or 36
months and that “postrelease control would be up to two years discretionary with
the parole board.” Tr. 105. The gun specification advisement was not repeated here.
Based on a de novo review of the record and the totality of the
circumstances, this court finds that the trial court partially complied with Crim.R.
11. Due to the partial compliance, Foster is required to show prejudice unless “(1)
the trial court failed to explain the constitutional rights set forth in Crim.R.
11(C)(2)(c) that the defendant waived by pleading guilty or (2) the trial court
‘completely fail[ed]’ to ‘comply with a portion of Crim.R. 11(C).’” Conner, 8th Dist.
Cuyahoga No. 111889, 2023-Ohio-1220, ¶ 18, quoting Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765, 164 N.E.3d 286, ¶ 13-17, 23. The two exceptions do not apply in
this case.
Thus, Foster is required to demonstrate prejudice. In other words, we
look to see whether there is something in the record that indicates Foster would not
have entered his plea if he had been more thoroughly informed. We determine there
is not.
At the sentencing hearing, the defense opposed the state’s request for
consecutive sentences due to Foster’s age of 54 and the mandatory three-year gun
specification and 15-years-to-life sentence resulting in the possibility of parole after
a minimum of 18 years. Foster did not express surprise, objections, questions, or
concerns. In addition, prior to imposing sentence, the trial court reiterated that
Foster pleaded guilty to “a non-probationable offense. The Defendant has to go to
prison as a matter of law.” Tr. 119. Again, Foster expressed no surprise, objections,
questions, or concerns.
‘““In the absence of evidence to the contrary or anything in the record
that indicates confusion, it is typically presumed that the defendant actually
understood the nature of the charges against him.””’ State v. Stewart, 8th Dist.
Cuyahoga No. 112017, 2023-Ohio-1673, ¶ 18, quoting State v. Young, 8th Dist.
Cuyahoga No. 106843, 2018-Ohio-4892, ¶ 15, quoting State v. Vialva, 8th Dist.
Cuyahoga No. 104199, 2017-Ohio-1279, ¶ 9.
It is evident that Foster’s plea considerably reduced his criminal
exposure. Foster was indicted on 26 counts subject to multiple one-, three-, and
five-year firearm specifications. Foster understood that the three-year gun
specification was to be served prior and consecutive to a term of 15 years to life on
the murder charge and to the involuntary manslaughter count with a sentencing
range of 3 to 11 years under the Reagan Tokes Law. The trial court did not explicitly
state that the three-year firearm specification must be served before the drug
trafficking count that was subject to a term of 8 to 36 months. However, the 12-
month sentence he received was run concurrently with the murder sentence and did
not affect the length of imprisonment.5
5 Foster does not contest the trial court’s decision to run the sentence consecutive
to the murder count. Presumably, the defense is aware that the imposition was made at
the trial court’s discretion. ‘“Crim.R.11(C)(2)(a) does not require a trial court to advise a
defendant of the potential for discretionary consecutive sentencing.’” Berry, 8th Dist.
Cuyahoga No. 111453, 2023-Ohio-605, ¶ 16, quoting State v. Nave, 8th Dist. Cuyahoga
No. 107032, 2019-Ohio-1123, ¶ 10, citing State v. Vinson, 2016-Ohio-7604, 73 N.E.3d
1025, ¶ 24 (8th Dist.).
The record supports that Foster understood the nature of the charges
and penalties and that there was no promise of a particular sentence. Foster affirmed
his satisfaction with the services of defense counsel, and Foster’s defense counsel
confirmed the trial court’s compliance with Crim.R. 11. Foster has not demonstrated
prejudice or that but for the trial court’s alleged failure, he would not have entered
the plea.
The first assignment of error is overruled.
B. Consecutive Sentences and Reagan Tokes
In the second error assigned, Foster charges that the trial court erred
in imposing consecutive sentences without making any of the findings required by
R.C. 2929.14(C)(4) at the sentencing hearing or in the journal entry. The trial court
ordered that the involuntary manslaughter sentence be served consecutive to the
murder term.
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, ¶ 16.
R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences
where the court “clearly and convincingly” finds that (1) “the record
does not support the sentencing court’s findings under R.C.
2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.”
The sentence in Cuyahoga C.P. No. CR-663675-A that is not on appeal was also run
concurrently with the murder sentence.
State v. Henderson, 8th Dist. Cuyahoga Nos. 106340 and 107334, 2018-Ohio-3168,
¶ 15.
The state concedes that the proper findings were not made. “Where a
trial court has imposed consecutive sentences, but failed to make all of the requisite
statutory findings, the proper remedy is to vacate the consecutive sentences and
remand for resentencing.” State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-
Ohio-1529, ¶ 30.
The consecutive sentences are vacated and remanded for
resentencing.
The second assignment of error is sustained.
IV. Conclusion
Judgment is affirmed in part, vacated in part, and remanded for
further proceedings pursuant to this opinion.
It is ordered that appellee and appellant share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
LISA B. FORBES, J., CONCURS