Opinion
CASE NO. 14 MA 80
05-06-2015
STATE OF OHIO, PLAINTIFF-APPELLEE, v. MICHAEL ASHBY, DEFENDANT-APPELLANT.
APPEARANCES: For Plaintiff-Appellee Paul Gains Prosecutor Ralph Rivera Assistant Prosecutor 21 West Boardman St., 6th Floor Youngstown, Ohio 44503-1426 For Defendant-Appellant Attorney John P. Laczko 3865 Stutz Dr., Suite 100 Canfield, Ohio 44406
OPINION CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 11CR1022 JUDGMENT: Affirmed and Remanded APPEARANCES:
For Plaintiff-Appellee
Paul Gains
Prosecutor
Ralph Rivera
Assistant Prosecutor
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney John P. Laczko
3865 Stutz Dr., Suite 100
Canfield, Ohio 44406
JUDGES: Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
DONOFRIO, P.J.
{¶1} Defendant-appellant Michael Ashby appeals his nine-year sentence entered in the Mahoning County Common Pleas Court following his Alford pleas of guilty to seven counts of gross sexual imposition.
{¶2} On September 15, 2011, a Mahoning County grand jury indicted Ashby on five counts stemming from his rape and molestation of the minor victim less than thirteen years of age over a period of eight years from March 22, 2005, to July 22, 2011. Count one was for rape in violation of R.C. 2907.02(A)(1)(b)(B), a felony-life offense. Count two was for gross sexual imposition in violation of R.C. 2907.05(A)(4)(C), a third-degree felony. Counts three and four were for rape in violation of R.C. 2907.02(A)(2)(B), first-degree felonies. And count five was for gross sexual imposition in violation of R.C. 2907.05(A)(1)(C), a fourth-degree felony.
{¶3} Ashby pleaded not guilty and was appointed counsel. The matter proceeded to discovery and extensive pretrial matters spanning nearly two and one half years. On May 13, 2014, the parties reached a Crim.R. 11 plea agreement. The state agreed to amend the indictment to seven counts of gross sexual imposition in violation of R.C. 2907.05(A)(1)(C), fourth-degree felonies, and recommend a ten-year sentence. In exchange, Ashby entered Alford pleas of guilty to all seven counts.
{¶4} The trial court conducted Ashby's sentencing hearing on June 16, 2014. The court began by noting that it had reviewed the presentence investigation report. The assistant prosecutor emphasized to the court Ashby's relationship to the victim and then read a written statement from the victim. Ashby's trial counsel implied there was a lack of physical evidence and highlighted Ashby's lack of a criminal record, his military service, and his steady employment. Ashby himself spoke briefly maintaining his innocence and indicating that he assented to the plea agreement to avoid spending the rest of his life in prison. The court proceeded to sentence Ashby to eighteen months in prison on each of the seven counts and ordered that the sentences for the first six of those counts be served consecutively for an aggregate sentence of nine years in prison. The court also classified Ashby as a Tier I sex offender. This appeal followed.
{¶5} Ashby's sole assignment of error states:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE TERMS OF INCARCERATION FOR APPELLANT'S CHARGES PURSUANT TO ALFORD PLEAS OF GUILTY WITHOUT MAKING THE STATUTORILY REQUIRED FINDINGS.
{¶6} In cases involving a guilty plea, as is the case here, typically the only two issues there are for appellate review is whether the plea was entered knowingly, intelligently, and voluntarily, and whether the sentence complies with the law. Although Ashby's sole stated assignment of error is directed only at the trial court's imposition of consecutive sentences, his appellate counsel proceeds to review both potential issues under this assignment of error, acknowledging that the plea colloquy complied with Crim.R. 11 but maintaining that the court did not make the required findings for imposition of consecutive sentences. For its part, the state has not filed an appellate brief, but instead has filed a one-page confession of judgment acknowledging that the trial court failed to incorporate the requisite statutory findings for imposition of consecutive sentences into its judgment entry of sentencing.
Plea
{¶7} Crim.R. 11(C) states that a trial court must make certain advisements prior to accepting a defendant's guilty plea to ensure that the plea is entered into knowingly, intelligently and voluntarily. State v. Wright, 7th Dist. No. 09 MA 1, 2009-Ohio-4636, ¶ 13. These advisements are typically divided into constitutional rights and nonconstitutional rights. Id.
{¶8} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the state must prove the defendant's guilt beyond a reasonable doubt at trial, and (5) that the defendant cannot be compelled to testify against himself. Id., citing Crim.R. 11(C)(2)(c). If the trial court fails to strictly comply with these requirements, the defendant's plea is invalid. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31.
{¶9} The nonconstitutional rights that the defendant must be informed of are: 1) the nature of the charges; 2) the maximum penalty involved, which includes, if applicable, an advisement on postrelease control; 3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions, and 4) that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶¶ 10-13; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶¶ 19-26, (postrelease control is a nonconstitutional advisement).
{¶10} For the nonconstitutional rights, the trial court must substantially comply with Crim.R. 11's mandates. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). "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." Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the basis that the advisement for the nonconstitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have been otherwise entered. Veney at ¶ 15.
{¶11} In this case, the trial court strictly complied with Crim.R.11(C)(2)(c) in advising Ashby of his constitutional rights. The court informed Ashby that by pleading guilty he was waiving his right to a jury trial, to confront witness against him, to subpoena witnesses in his favor, and that the state had the burden of proving him guilty beyond a reasonable doubt. (Plea Tr. 6-7.) Further, the court informed Ashby if he went to trial he could not be compelled to testify against himself and that if he chose not to testify at trial no mention could be made of his failure to do so. (Plea Tr. 7.) Ashby responded in the affirmative after the trial court's explanation that he understood these questions. (Plea Tr. 6-7.)
{¶12} Additionally, the trial court substantially complied with Crim.R. 11(C) in its advisement on the nonconstitutional rights. The trial court informed Ashby of the charges against him and the maximum penalties they carried. (Plea Tr. 8-9.) The court informed Ashby about post-release control and the consequences for violating it. (Plea Tr. 9-10.) Because Ashby was eligible for community control sanctions, the court was not required to advise Ashby that he was not eligible for such.
{¶13} The trial court did not give Ashby the last nonconstitutional advisement that after entering his guilty pleas, the court could proceed directly to judgment and sentencing. However, the trial court's failure to advise Ashby that it could proceed directly to sentencing does not necessarily render the plea invalid. Although he maintained his innocence, Ashby and his counsel made it clear to the trial court that he was entering the guilty pleas after considering the risks of trial and the life sentence he would be facing if he were to be found guilty after a trial. (Plea Tr. 5.) Further, Ashby entered his pleas after what were presumably extensive plea negotiations given the two and a half year time span that preceded the plea agreement and with the knowledge that despite the ten-year sentencing recommendation from the state, sentencing was entirely within the discretion of the trial court. Thus, there was substantial compliance and no prejudicial effect in failing to advise Ashby that it could proceed directly to sentencing. See State v. Wood, 7th Dist. No. 11 CO 9, 2011-Ohio-6405, ¶ 32.
{¶14} Additionally, the trial court received confirmation from Ashby that he had gone through the written plea agreement and signed it voluntarily. (Plea Tr. 11.) Also, the court received confirmation from Ashby that he was not under the influence of drugs or alcohol. (Plea Tr. 6).
{¶15} In sum, considering all the above, the plea colloquy complied with Crim.R. 11(C) and, as such, the plea was intelligently, voluntarily, and knowingly entered.
Sentence
{¶16} This court's review of felony sentences is a limited, two-fold approach, as outlined in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 26. First, the reviewing court must examine the sentence to determine if it is "clearly and convincingly contrary to law." Id. (O'Conner, J., plurality opinion). In examining "all applicable rules and statutes," the sentencing court must consider R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 13-14 (O'Conner, J., plurality opinion). If the sentence is clearly and convincingly not contrary to law, the court's discretion in selecting a sentence within the permissible statutory range is subject to review for abuse of discretion. Id. at ¶ 17 (O'Conner, J., plurality opinion). Thus, the reviewing court applies an abuse of discretion standard to determine whether the sentence satisfies R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 17 (O'Connor, J., plurality opinion).
{¶17} In this case, Ashby was convicted of seven counts of gross sexual imposition in violation of R.C. 2907.05(A)(1)(C), fourth-degree felonies. The potential prison terms for a fourth-degree felony are six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. R.C. 2929.14(A)(4). The trial court sentenced Ashby to eighteen months in prison for each of the seven counts. Since Ashby's individual sentences fell within the range of sentences permissible for a fourth-degree felony, they were authorized by law and there is no error with them. See State v. Koffel, 7th Dist. No. 06 CO 36, 2007-Ohio-3177, ¶ 31.
{¶18} As for post-release control, the trial court correctly informed Ashby that following his release from prison he would be subject to an additional and mandatory three-year term of post-release control. (Sentencing Tr. 25.) R.C. 2967.28.
{¶19} At the sentencing hearing and in the judgment entry of sentencing, the trial court indicated that it considered all applicable statutes when determining the appropriate sentence. In the judgment entry of sentencing it stated:
The Court has considered the record, statements of counsel, the victim and the Defendant, the presentence report, as well as the purposes and principles of sentencing under O.R.C. 2929.11. The Court has balanced the seriousness and recidivism factors under O.R.C. 2929.12 and has followed the guidance by degree of felony in O.R.C. 2929.13.
* * *
The Court finds that Defendant is not amenable to community control and prison is consistent with the purposes and principles of O.R.C. 2929.11.
{¶20} Likewise, statements made during the sentencing hearing also indicate that the trial court considered R.C. 2929.11, 2929.12, and 2929.13 when imposing the nine-year sentence. (Sentencing Tr. 17-20.) In fashioning its sentences, the court noted the victim's age at the time of the offenses and that she had suffered serious physical, psychological, and emotional harm as a result of Ashby's conduct. The court also considered that Ashby's relationship with the victim facilitated the offenses, the great harm suffered by the victim, that the offenses were sex offenses, and that they occurred over a span of several years. In mitigation, the court acknowledged Ashby's military service, that he lacked any criminal record, and that the plea agreement spared the victim from having to testify at trial. Notably, the trial court sentenced Ashby to less prison time than the maximum permitted (ten and a half years) and less than that recommended by the state.
{¶21} Thus, the record discloses that the trial court did consider and comply with all applicable statutes in issuing the sentences. The sentences were not clearly and convincingly contrary to law.
{¶22} While Ashby's individual sentences were authorized by law, whether the trial court's imposition of consecutive sentences was authorized by law is a different matter. R.C. 2929.14(C)(4), enacted pursuant to 2011 H.B. 86 effective September 20, 2011, creates a statutory presumption in favor of concurrent sentences and requires sentencing courts to make enumerated findings prior to imposing consecutive sentences.
{¶23} R.C. 2929.14(C)(4) sets forth the findings required for imposition of consecutive sentences:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶24} Thus, the sentencing court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger they pose to the public, and (3) one of the findings described in subsections (a), (b) or (c) of R.C. 2929.14(C)(4). R.C. 2929.14(C)(4). See State v. Bellard, 7th Dist. No. 12 MA 97, 2013-Ohio-2956, ¶ 17. See also State v. Power, 7th Dist. No. 12 CO 14, 2013-Ohio-4254, ¶ 37. In analyzing whether a sentencing court complied with R.C. 2929.14(C)(4), this court had held that a trial court was not required to recite any magic or talismanic words when imposing consecutive sentences but that it must be clear from the record that the trial court had engaged in the appropriate analysis. Power at ¶ 40; Bellard at ¶ 17.
{¶25} Appellate case law had been in flux concerning the extent to which a sentencing court was required to make these findings, particularly as it regarded the extent to which the court needed to make those findings at the sentencing hearing and in the subsequent sentencing entry. Following Ashby's sentencing in this case, the Ohio Supreme Court in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, provided clarification holding that the findings required by R.C. 2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing entry. Id. at the syllabus. The Court confirmed that a sentencing court is not required to recite "a talismanic incantation of the words" of the consecutive sentences provision of the felony sentencing statute, so long as the required findings can be gleaned from the record. Id. at ¶¶ 36-37. Additionally, the Court also held that the sentencing court "has no obligation to state reasons to support its findings." Id.
{¶26} The Court stressed the importance of making the findings at the sentencing hearing, noting this gives notice to the offender and to defense counsel. Id. at ¶ 29. And while the trial court should also incorporate its statutory findings into the sentencing entry, the court's inadvertent failure to do so is merely a clerical mistake and does not render the sentence contrary to law. Id. at ¶ 30. This type of clerical mistake may be corrected by a nunc pro tunc entry. Id. But a "nunc pro tunc entry cannot cure the failure to make the required findings at the time of imposing sentence." Id.
{¶27} In this case, the trial court made all of the required findings at the sentencing hearing:
The Court then, as a result of these prior findings, finds both of the following apply:
That, first of all, consecutive sentences are necessary here to protect the public from future crimes and to punish the offender, and that the consecutive sentences are not disproportionate to the
seriousness of the conduct. The Court would indicate that it considers the conduct grave.(Sentencing Tr. 19.)
And the Court further finds that at least two of the multiple offenses were committed as a part of one or more courses of conduct that the Court has previously alluded to, and that the harm caused by these multiple offenses was so great that no single prison term for any of the offenses committed adequately reflects the seriousness of the offender's conduct. The Court finds that the Defendant's conduct also represents the worst form of the offense.
{¶28} Thus, and Ashby's appellate counsel concedes, the trial court here made all three of the required findings at the sentencing hearing for imposition of consecutive sentences. First, it found that consecutive sentences were necessary to protect the public from future crimes and to punish Ashby. Second, the court found that consecutive sentences were not disproportionate to the seriousness of the conduct. Although the court did not recite with talismanic precision that consecutive sentences were not disproportionate to the danger Ashby poses to the public, that finding can be gleaned from the record. Third, the trial court found the application of R.C. 2929.14(C)(4)(b); i.e., that at least two of the multiple offenses were committed as part of one or more courses of conduct, and that the harm caused by Ashby's multiple offenses was so great that no single prison term for any of the offenses committed adequately reflects the seriousness of Ashby's conduct.
{¶29} Turning to the trial court's judgment entry of sentencing filed June 17, 2014, however, it is obvious that the trial court did not incorporate the statutory findings that it had made at the sentencing hearing. But, as the Ohio Supreme Court made clear in Bonnell, the court's inadvertent failure to do so is merely a clerical mistake and does not render the sentence contrary to law. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 30. It is a clerical mistake which may be corrected by a nunc pro tunc entry. Id.
{¶30} The state acknowledges this clerical mistake and asks that this court remand the matter to the trial court with instructions to issue a nunc pro tunc judgment.
{¶31} Accordingly, Ashby's sole assignment of error is overruled.
{¶32} The judgment of the trial court is hereby affirmed and remanded with instructions to file a nunc pro tunc entry incorporating in its judgment entry of sentencing the statutory consecutive-sentence findings that it made at the June 16, 2014 sentencing hearing. Waite, J., concurs. DeGenaro, J., concurs in judgment only with concurring in judgment only opinion. DeGenaro, J., concurring in judgment only.
{¶33} While I concur with the majority's analysis regarding Ashby's plea, I concur in judgment only with respect to the majority's analysis of Ashby's sentencing assignment of error, to wit, applying the two-part standard of review from State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124 instead of the standard of review set forth in R.C. 2953.08(G)(2). As articulated by the minority opinion in State v. Hill, 7th Dist. No. 13 MA 1, 2014-Ohio-919 (DeGenaro, P.J., concurring in judgment only), not only is Kalish a plurality decision that has merely persuasive rather than precedential value, more importantly, Kalish has been supplanted by the General Assembly's enactment of HB. 86.
{¶34} As recently recognized by a panel of this Court in State v. Wellington, 7th Dist. No. 14MA115, 2015-Ohio-1359 (Mar. 31, 2015) (Donofrio, P.J., concurring in judgment only), we cannot continue to rely on Kalish post-H.B. 86 because the General Assembly specifically reenacted the standard of review with respect to alleged felony sentencing errors: clearly and convincingly contrary to law and not abuse of discretion. Wellington at ¶13; Hill at ¶41 (DeGenaro, P.J., concurring in judgment only). To continue to do otherwise raises separation of powers concerns, because courts "cannot apply a standard of review that is expressly prohibited by the legislature." Hill at ¶44 (DeGenaro, P.J., concurring in judgment only). Thus, the Wellington majority held that it was departing from Hill, and would apply the R.C. 2953.08(G)(2) standard of review. Wellington at ¶13.
{¶35} When Hill was decided just over a year ago, the First, Second, Third, Eighth and Twelfth Districts held that H.B. 86 supplanted Kalish. Since we decided Hill, the Fourth, Sixth and Tenth Districts have likewise applied the R.C. 2953.08(G)(2) standard of review, likely in no small part due to Kalish having "questionable precedential value inasmuch as it was a plurality opinion which failed to receive the requisite support of four justices of this court in order to constitute controlling law." Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). "Thus, there is no controlling case law to guide the courts of appeals in the application of the syllabus law." State v. Bickerstaff, 7th Dist. No. 09JE33, 2011-Ohio-1345, ¶ 75. Our sister districts and the majority in Wellington recognize that by enacting H.B. 86, the General Assembly legislatively overruled Kalish by reenacting the standard of review articulated in R.C. 2953.08(G)(2), which specifically precludes abuse of discretion review.
{¶36} In sum, I concur with the majority's regarding Ashby's plea, but concur in judgment only regarding his sentence. Applying the standard of review set forth in R.C. 2953.08(G)(2) rather than the Kalish two-part analysis, I come to the same judgment as the majority, that the case should be remanded for the trial court to file a nunc pro tunc entry to conform its sentencing entry to the consecutive sentence findings it made at Ashby's June 16, 2014 sentencing hearing.