State v. Tyree

[Cite as State v. Tyree, 2014-Ohio-2978.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100377 and 100378
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CORTEZ TYREE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-573022 and CR-13-573669
BEFORE: Kilbane, J., Rocco, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Oscar E. Albores
James M. Rice
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} In this consolidated appeal, defendant-appellant, Cortez Tyree (“Tyree”),
appeals from his guilty pleas in two separate cases. For the reasons that follow, we
affirm.
{¶2} In Case No. CR-13-573022, Tyree was charged with aggravated robbery,
which carried one- and three-year firearm and two weapon forfeiture specifications, and
having a weapon while under disability, which carried two weapon forfeiture
specifications for robbing a victim at gunpoint. In Case No. CR-13-573669, Tyree was
charged with having a weapon while under disability.
{¶3} Pursuant to a plea agreement, in Case No. CR-13-573022, Tyree pled guilty
to an amended charge of attempted aggravated robbery with a one-year firearm
specification and two weapon forfeiture specifications. The three-year firearm
specification was deleted, and the charge of having a weapon while under disability was
nolled. In Case No. CR-13-573669, Tyree pled guilty to an amended count of attempted
having a weapon while under disability.
{¶4} In Case No. CR-13-573022, the trial court sentenced Tyree to one year in
prison on the firearm specification, to be served prior to three years on the attempted
aggravated robbery charge, for a total of four years in prison. The trial court ordered that
Tyree pay $319 as restitution. In Case No. CR-13-573669, the trial court sentenced him
to twelve months in prison on the attempted having a weapon while under disability
charge. The trial court ordered that the sentence in this case be served concurrent to the
sentence in Case No. CR-13-573022, for an aggregate sentence of four years in prison.
The court found Tyree indigent and ordered that the costs and fees be waived.
{¶5} Tyree now appeals, raising the following single assignment of error for
review.
ASSIGNMENT OF ERROR
The trial court failed to advise [Tyree] of the potential fine attendant to his
plea of guilty to attempted [aggravated] robbery, thus rendering his plea
unconstitutional.
{¶6} In the sole assignment of error, Tyree argues that his guilty plea must be
vacated because the trial court did not advise him that the aggravated robbery charge
carried a potential fine of $15,000. In support of his argument, he relies on this court’s
decision in State v. Johnson, 8th Dist. Cuyahoga No. 91884, 2009-Ohio-2268.
{¶7} In Johnson, this court interpreted the oral dialogue implied in Crim.R. 11 to
include the mention of any particular fines and costs associated with a guilty plea, so that
a defendant may properly be advised of the maximum penalty involved in pleading guilty.
Id. at ¶ 10. We vacated Johnson’s guilty plea on the grounds that the trial court did not
substantially comply with Crim.R. 11 because it failed to mention the fine associated with
pleading guilty to a single charge of rape. However, we find Johnson distinguishable
from the instant case.
{¶8} First, in Johnson, the state conceded the trial court’s error, so we were
constrained to vacate Johnson’s plea. Second, in the instant case, the state informed the
court at the plea colloquy of the potential fine, and no objection was made by Tyree.
Furthermore, at the time of sentencing, the trial court stated that the potential fine for the
aggravated robbery was $15,000. Lastly, the trial court in the instant case never imposed
a fine at sentencing. Rather, the trial court found Tyree indigent and waived all costs and
fines.
{¶9} Moreover, this court has addressed Tyree’s argument in State v. Simmons,
8th Dist. Cuyahoga Nos. 99513 and 100552, 2013-Ohio-5026, and held as follows:
With respect to the trial court’s omission to notify Simmons of the possible
fines and court costs, because the trial court never actually imposed the
fines or court costs, Simmons cannot show that he would not have entered
the plea. Simmons received the incarceration penalty within the range of
what the trial court informed him was possible at sentencing, including the
mandatory three-year term of postrelease control on the felonious assault
count. Further, this court has consistently held that a trial court’s failure to
inform the defendant of the maximum penalty aside from the fines and costs
satisfies the court’s obligation pursuant to Crim.R. 11(C)(2) when the court
does not impose any monetary punishments. [State v.] Flagg, 8th Dist.
Cuyahoga Nos. 93248 and 93279, 2010-Ohio-4247, ¶ 33; State v. Smith, 8th
Dist. Cuyahoga No. 36588, 1977 Ohio App. LEXIS 8585 (Dec. 8, 1977).
Id. at ¶ 7.
{¶10} Likewise, in the instant case, the trial court never actually imposed fines or
court costs. Rather, the trial court found Tyree to be indigent and waived costs and fines.
Additionally, the state informed the court at the plea colloquy of the potential fine, and no
objection was made by Tyree. At the time of sentencing, the trial court stated that the
potential fine for the aggravated robbery was $15,000. Based on the foregoing, Tyree
cannot demonstrate that he was prejudiced by the trial court’s omission regarding the fine,
nor can he demonstrate that he would not have entered the plea had he been advised of
the potential fine.
{¶11} Accordingly, the sole assignment of error is overruled.
{¶12} Judgment is affirmed.
Costs waived.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN T. GALLAGHER, J., CONCUR