Opinion
No. 108803
01-02-2020
STATE OF OHIO, Plaintiff-Appellee, v. TOMARIO BENJAMIN, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Aqueelah A. Jordan, Assistant Prosecuting Attorney, for appellee. Thomas A. Rein, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: VACATED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-631029-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Aqueelah A. Jordan, Assistant Prosecuting Attorney, for appellee. Thomas A. Rein, for appellant. EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant Tomario Benjamin is before this court to appeal his convictions entered in the Cuyahoga County Court of Common Pleas.
{¶ 2} Benjamin was charged with multiple counts of rape, kidnapping, pandering sexually oriented material involving a minor, gross sexual imposition and assault. On June 18, 2019, with counsel, Benjamin pleaded guilty to a total of 19 counts with an agreed sentencing range of 18 to 25 years in prison. The matter was continued.
{¶ 3} On July 1, 2019, Benjamin appeared for sentencing with counsel. Prior to imposing sentence the trial court was advised by the state that "there's a new sentencing range," and that as a result "we need to put the plea on the record again, and he needs to enter a plea of guilty based on that new range."
{¶ 4} The trial court reviewed the charges, outlined the new sentencing range and reviewed Benjamin's Crim.R. 11 rights. Benjamin did not thereafter enter a plea, guilty or otherwise. The court nevertheless imposed an aggregate sentence of 27 years in prison, including consecutive sentences on seven counts.
{¶ 5} Benjamin has raised two assignments of error:
I. Appellant's convictions must be vacated as he did not himself plead guilty at the new plea hearing on July 1, 2019.
II. The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.
{¶ 6} The state has conceded the error.
{¶ 7} Review of the record indicates that after Benjamin pleaded guilty on June 18, 2019, he was exposed to a different range of potential penalties. At the July 1, 2019 hearing the court addressed Benjamin:
Mr. Benjamin, do you understand that we took the plea last week, and I know the sentencing range at that time was, I think 24 [sic] years to — 18 to 24 [sic] years, alright? Now, in speaking with your attorneys and the prosecutor's office, * * * the sentencing range has been changed from 13 to 30 years, do you understand that?
{¶ 8} Nevertheless, the trial court did not vacate Benjamin's June 18 guilty plea and it did not accept a new plea in contemplation of the amended charges against him and new range of potential penalties.
{¶ 9} Accordingly, we vacate Benjamin's sentence and convictions and remand the case to the trial court for further proceedings consistent with this opinion.
{¶ 10} Our resolution of the first assignment of error renders the second assignment of error moot. See App.R. 12(A)(1)(c).
{¶ 11} Judgment vacated and remanded.
It is ordered that appellant recover from appellee 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 out this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
EILEEN A. GALLAGHER, JUDGE MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR