State v. Crain , 2011 Ohio 1924 ( 2011 )

[Cite as State v. Crain, 2011-Ohio-1924.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95012, 95013, 95014, and 95015
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHRISTOPHER CRAIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-522284, CR-528311, CR-529763, and CR-532481,
BEFORE: Kilbane, A.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT
Timothy F. Sweeney
Law Office - Timothy Farrell Sweeney
The 820 Building, Suite 430
920 West Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Diane Russell
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} In this consolidated appeal, defendant-appellant, Christopher Crain (“Crain”),
appeals his guilty pleas and sentences in four criminal cases. Finding no merit to the appeal,
we affirm.
{¶ 2} In CR-522284, Crain was charged with two counts of drug
trafficking, which carried a schoolyard specification, drug possession, and
possessing criminal tools. In CR-528311, Crain was charged with theft;
aggravated theft. In CR-529763, Crain was charged with having a weapon
while under disability, carrying a concealed weapon, and improperly handling
a firearm in a motor vehicle.1 In CR-532481, Crain was charged with two
counts of robbery.
{¶ 3} In March 2010, Crain entered into a plea agreement on all four
cases. Pursuant to the agreement, in CR-522284 he pled guilty to one count of
drug trafficking, with the schoolyard specification attached. In CR-528311,
he pled guilty to aggravated theft. In CR-529763, he pled guilty to having a
weapon while under disability, with the forfeiture specification attached; and
in CR-532481, he pled guilty to one count of robbery. All remaining counts
were nolled in each case. The trial court sentenced him to two years in
prison in CR-522284, one year in prison in CR-528311, two years in prison in
CR-529763, and two years in prison in CR-532481. The court ordered that
these sentences be served consecutively for an aggregate of seven years in
prison.
{¶ 4} Crain now appeals, raising two assignments of error for review.
ASSIGNMENT OF ERROR ONE
“Crain’s guilty pleas in all four cases were not made
knowingly, voluntarily and intelligently, and, as a result,
the court’s acceptance of the pleas was in violation of
Crain’s constitutional rights and [Crim.R. 11].”
1Each count carried a forfeiture of a weapon specification.
{¶ 5} Crain argues that the trial court did not comply with Crim.R. 11
when it failed to adequately inform him that he was waiving his right to a
trial by jury. He further argues that the trial court failed to ensure that he
understood the nature of the charges against him and the extent of the
penalties he faced. As a result, Crain claims that his pleas were not
knowingly, voluntarily, and intelligently made.
{¶ 6} In order for a plea to be made knowingly and voluntarily, the trial
court must follow the mandates of Crim.R. 11, which provides that the court
must address the defendant personally and do all of the following:
“(a) [Determine] 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) [Inform] the defendant of and determin[e] that the
defendant understands the effect of the plea of guilty * * *,
and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
“(c) [Inform] the defendant and determin[e] that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for
obtaining witnesses in the defendant’s favor, and to
require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot
be compelled to testify against himself or herself.” Id. at
(C)(2).
{¶ 7} The duties of the trial court under Crim.R. 11 have been
distinguished as constitutional and nonconstitutional rights. State v. Parks,
Cuyahoga App. No. 86312, 2006-Ohio-1352, ¶6, citing State v. Higgs (1997),
123 Ohio App.3d 400, 704 N.E.2d 308.
{¶ 8} The trial court must strictly comply with those provisions of
Crim.R. 11(C) that relate to the waiver of constitutional rights. See State v.
Nero (1990), 56 Ohio St.3d 106, 107-108, 564 N.E.2d 474, citing Boykin v.
Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. Failure to
strictly comply with these constitutional requirements renders the plea
“constitutionally infirm.” State v. Ballard (1981), 66 Ohio St.2d 473, 479,
423 N.E.2d 115. See, also, State v. Stewart (1977), 51 Ohio St.2d 86, 88-89,
364 N.E.2d 1163. “Strict compliance” does not require a rote recitation of the
exact language of the rule. Rather, we focus on whether the “record shows
that the judge explained these rights in a manner reasonably intelligible to
the defendant.” Ballard at paragraph two of the syllabus.
{¶ 9} Under the broader standard for the nonconstitutional rights, the
reviewing court must consider whether the trial court substantially complied
with Crim.R. 11(C)(2)(a) and (b). Nero at 108. “Substantial compliance
means that under the totality of the circumstances the defendant subjectively
understands the implications of his plea and the rights he is waiving.” Id.,citing Stewart.
{¶ 10} In the instant case, a review of the record reveals that the trial
court complied with Crim.R. 11. The trial court first stated that it was
“required to ask [Crain] certain questions to make sure [he] understands the
Constitutional rights that [he] would in fact be giving up.” The court then
established that Crain was a citizen, he attended both high school and some
college, and he was not under the influence of alcohol, medication, or drugs.
{¶ 11} With respect to the right to a jury trial, the court advised that
“[t]he State * * * must prove beyond a reasonable doubt each and every
element of the crimes charged against you, and they have to do this by proof
beyond a reasonable doubt, and they have to do this unanimously to a jury of
12 or a judge if you waive a jury.” The court further advised Crain of the
charges and the minimum and maximum sentence for each charge in all four
cases. The court also asked Crain if he understood each right required under
Crim.R. 11. Each time, Crain responded “yes.”
{¶ 12} Based on the foregoing, we find that Crain’s pleas were
knowingly, intelligently, and voluntarily made.
{¶ 13} Accordingly, the first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
“Crain was denied due process of law when the trial court
failed to follow the statutory guidelines and otherwise
comply with applicable law in imposing
more-than-minimum and consecutive sentences.”
{¶ 14} The Ohio Supreme Court has set forth the applicable standard of
appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶4:
“In applying [State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes,
appellate courts must apply a two-step approach. First,
they must examine the sentencing court’s compliance with
all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and
convincingly contrary to law. If this first prong is
satisfied, the trial court’s decision shall be reviewed under
an abuse-of-discretion standard.”2
{¶ 15} Crain argues that the trial court’s imposition of more than the
minimum sentence on each count and the imposition of consecutive sentences
was contrary to law and violated his due process rights because the trial court
failed to make requisite findings required by R.C. 2929.14(E)(4) and
2929.41(A).
{¶ 16} However, Ohio courts have not been required to make these
statutory findings since they were severed from Ohio’s sentencing statutes in
Foster. 3 As the Kalish court noted, post-Foster, “trial courts ‘have full
discretion to impose a prison sentence within the statutory range and
are no longer required to make findings or give reasons for imposing
maximum, consecutive or more than the minimum sentences.’” (Emphasis in
2 We recognize Kalish is merely persuasive and not necessarily controlling
because it has no majority. The Supreme Court split over whether we review
sentences under an abuse-of-discretion standard in some instances.
3Crain relies on the United States Supreme Court’s decision in Oregon v. Ice
(2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, arguing that Ice demonstrates
that Ohio’s consecutive sentencing statutes do not violate the Sixth Amendment.
However, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the
Ohio Supreme Court recently addressed this argument and determined that Ice
does not revive these sentencing statutes and that “[t]rial court judges are not
obligated to engage in judicial fact-finding prior to imposing consecutive sentences
unless the General Assembly enacts new legislation requiring that findings be
made.” Id. at paragraphs two and three of the syllabus.
the original.) Id. at ¶11, citing Foster. In the instant case, Crain’s
seven-year sentence is within the permissible statutory range for his
convictions.
{¶ 17} Crain also argues that his sentence is inconsistent with sentences
imposed for similar crimes committed by similar offenders. He claims the
trial court demonstrated this when it compared him to another defendant at
his sentencing hearing, whose charges were more serious than his charges.
{¶ 18} At the hearing, Crain blamed his actions on his drug addiction.
The trial court noted Crain was the second person it sentenced that morning
who blamed his actions on drug abuse. The court further noted that this
defendant had a similar number of cases and similar charges. Although this
defendant’s case is not part of the record before us, both parties state that
this defendant received six years in prison on three cases.
{¶ 19} We note that “[c]onsistency in sentencing is achieved by weighing
the sentencing factors.” State v. Dowell, Cuyahoga App. No. 88864,
2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.
81934, 2003-Ohio-4341. As an appellate court, we are not required to decide
whether the lower court “‘imposed a sentence in lockstep with others, but
whether the sentence is so unusual as to be outside the mainstream of local
judicial practice. Although the offense[s] may be similar, distinguishing
factors may justify dissimilar treatment.’” State v. Rabel, Cuyahoga App.
No. 91280, 2009-Ohio-350, ¶15, quoting State v. Dawson, Cuyahoga App. No.
86417, 2006-Ohio-1083.
{¶ 20} In the instant case, there is nothing in the record to demonstrate
that Crain’s sentence is “outside the mainstream of local judicial practice.”
Their sentences are not vastly different and the court’s consistency is
apparent — this defendant received six years in prison on three cases and
Crain received seven years on four cases. Since Crain was sentenced within
the statutory range and has failed to demonstrate how his sentence violated
Ohio’s sentencing statutes, we do not find that it was contrary to law.
{¶ 21} Having satisfied step one, we next consider whether the trial
court abused its discretion. An abuse of discretion “‘implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v.
Adams (1980), 62 Ohio St.2d 151 404 N.E.2d 144.
{¶ 22} We find nothing in the record to suggest that the trial court’s
decision was unreasonable, arbitrary or unconscionable. The trial court
explained the reasons for the sentence it imposed, including a review of the
record, the statements made at the sentencing hearing, the presentence
report, and “the number of cases [Crain] had in [its] courtroom [.]” The trial
court also expressly stated that it had considered all the purposes and
principles of R.C. 2929.11, as well as the factors in R.C. 2929.12.
Furthermore, Crain faced a possible sentence of sixteen years in prison, but
was sentenced to seven, with credit for time served. Therefore, we do not
find that the trial court abused its discretion when it sentenced Crain to
seven years in prison.
{¶ 23} Accordingly, the second assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from 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
appeal 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, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR