Opinion
No. 109138
09-03-2020
STATE OF OHIO, Plaintiff-Appellee, v. LINUS UNDIANDEYE, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Melissa Riley, Assistant Prosecuting Attorney, for appellee. Thomas Rein, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627145-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Melissa Riley, Assistant Prosecuting Attorney, for appellee. Thomas Rein, for appellant. KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Linus Undiandeye, appeals from the trial court's judgment finding him guilty of promoting prostitution, drug trafficking, and corrupting another with drugs, and sentencing him to ten years in prison. We find no merit to Undiandeye's contention that the trial court should have allowed him to withdraw his guilty plea and affirm his convictions. Nevertheless, we remand with instructions for the trial court to enter a nunc pro tunc entry that accurately reflects the statutory findings made by the trial court at sentencing regarding the imposition of consecutive sentences.
I. Background
{¶ 2} Undiandeye was indicted in a 12-count indictment as follows.
Counts 1 and 2, Trafficking in Persons in violation of R.C. 2905.32(A)(1);The charges arose after the police investigated the death of a woman who died of a drug overdose and learned that Undiandeye and his codefendants had been providing drugs and acting as pimps for the deceased woman and another victim.
Count 3, Involuntary Manslaughter in violation of R.C. 2903.04(A);
Counts 4 and 5, Promoting Prostitution in violation of R.C. 2907.22(A)(2);
Count 6, Trafficking in violation of R.C. 2925.03(A)(2), with schoolyard and one-year firearm specifications;
Count 7, Drug Possession in violation of R.C. 2925.11(A) with a one-year firearm specification;
Count 8, Corrupting Another With Drugs in violation of R.C. 2925.02(A)(3);
Count 9, Permitting Drug Abuse in violation of R.C. 2925.13;
Count 10, Having Weapons While Under Disability in violation of R.C. 2923.13(A)(3);
Count 11, Receiving Stolen Property in violation of R.C. 2913.51(A);
Count 12, Possessing Criminal Tools in violation of R.C. 2923.24(A) with forfeiture specifications.
{¶ 3} On September 16, 2019, the day of trial, Undiandeye pleaded guilty to Count 4, promoting prostitution; Count 6, drug trafficking with a one-year firearm specification; and Count 8, corrupting another with drugs. The remaining counts and specifications were nolled.
{¶ 4} On September 19, 2019, the trial court held a hearing to allow the second victim, who was now living out of state but had appeared for trial, to give her victim impact statement so as to avoid having to return to Ohio for Undiandeye's sentencing. Immediately prior to the hearing, Undiandeye's counsel informed the court that Undiandeye wanted to withdraw his guilty plea. After hearing argument, the trial court denied the motion.
{¶ 5} The court subsequently sentenced Undiandeye to 12 months incarceration on Count 4; 24 months on Count 6, consecutive to one year on the firearm specification; and 6 years on Count 8. The court ordered that the sentences were to be served consecutively, for an aggregate term of 10 years' incarceration, and labeled Undiandeye a Tier I sex offender. This appeal followed.
II. Law and Analysis
A. Guilty Plea
{¶ 6} In his first assignment of error, Undiandeye contends that the trial court erred in denying his presentence motion to withdraw his guilty plea.
{¶ 7} Under Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea."
{¶ 8} Generally, "a presentence motion to withdraw a guilty plea should be freely and liberally granted." State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). It is well-established, however, that "[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. Therefore, a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Id.
{¶ 9} The decision to grant or deny a presentence motion to withdraw is within the trial court's discretion, and absent an abuse of that discretion, the trial court's decision must be affirmed. Id. at 527. An abuse of discretion occurs when the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 10} A trial court does not abuse its discretion in denying a motion to withdraw a guilty plea where the defendant was (1) represented by competent counsel, (2) given a full Crim.R. 11 hearing before he entered the plea, (3) given a complete hearing on the motion to withdraw, and (4) the record reflects that the court gave full and fair consideration to the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 864 (8th Dist.1980). After considering these factors, we conclude that the trial court did not abuse its discretion in denying Undiandeye's motion to withdraw his guilty plea.
{¶ 11} The record reflects that Undiandeye was represented by competent counsel throughout the proceedings. Defense counsel successfully negotiated a plea agreement that resulted in the dismissal of many of the indicted charges and a significant reduction in a possible maximum sentence of 61 and ½ years on all the charges to a possible maximum sentence of 15 years on the offenses to which Undiandeye pleaded guilty.
{¶ 12} Undiandeye was also given a full Crim.R. 11 hearing before he entered his guilty plea. The record reflects that the prosecutor set forth the plea agreement, and the court then recessed so Undiandeye could consult privately with his attorney. After this consultation, Undiandeye informed the trial court that he would accept the plea offer. Undiandeye responded affirmatively when the court asked him if he wanted to hear the plea offer again, so the prosecutor again set forth the plea agreement. Undiandeye then again informed the court that he wanted to accept the plea offer. Thereafter, the court engaged in the requisite Crim.R. 11 colloquy. Undiandeye confirmed that he understood the offenses to which he was pleading guilty and the possible penalties, and told the court that he had no questions about his rights, the charges, the possible penalties, or "anything" done in court that day. (Tr. 67.) He then entered his guilty pleas. The trial court found that he had done so knowingly, intelligently, and voluntarily; accepted his pleas; and found him guilty. Id. at 68.
{¶ 13} The trial court also held a complete hearing on Undiandeye's oral motion to withdraw his plea and gave his motion full and fair consideration. After Undiandeye's attorney informed the court that Undiandeye wished to withdraw his plea, the court heard from Undiandeye, who told the court that he wanted to withdraw his plea because he thought "a trial is best to get the facts of the whole situation out there," and he was innocent of the charges. The judge asked Undiandeye what had changed in the three days since he had pleaded guilty, and why she should grant his motion to withdraw his plea. (Tr. 76-77.) Undiandeye again told the judge that he was innocent of the charges. (Tr. 78.)
{¶ 14} The court then heard arguments from the prosecutor as to why the motion should be denied. The prosecutor asserted that Undianeye had not presented anything to indicate why his plea had not been made knowingly, voluntarily, and intelligently, and that Undianeye had merely had a change of heart about his plea, as evidenced by a recorded jailhouse call made by Undiandeye after the plea. In the call, Undiandeye said he understood the sentencing possibilities but that he had had a change of heart about his plea. (Tr. 81.)
{¶ 15} Counsel for Undiandeye then argued that the motion to withdraw should be granted because Unandiandeye had "struggled" during the plea hearing about whether to accept the plea offer, and upon further reflection, had decided he wanted to withdraw his plea. (Tr. 82.) Undiandeye's counsel argued further that the motion was timely because Undiandeye had entered his plea only three days earlier. (Tr. at id.)
{¶ 16} The judge then asked Undiandeye if he had anything else to add as to why his motion to withdraw should be granted. (Tr. at id.) Undiandeye said that he had pleaded guilty even though he "really didn't want to." (Tr. 83.) The judge then told Undiandeye that a mere change of heart was not enough to grant his motion, and asked him, "Is there anything else you can give me?" (Tr. 84.) Undiandeye again insisted that his motion was not based on merely a change of heart, but he offered no other reason as to why the motion should be granted. (Tr. at id.)
{¶ 17} Undiandeye's counsel then told the court that one of the issues Undiandeye had struggled with in deciding whether to accept the plea was that the court-appointed investigator had not completed several tasks associated with the investigation as of the day of trial. (Tr. 85.) Counsel conceded that he had not asked for a continuance on this basis, however. (Tr. at id.) The trial court then denied Undiandeye's motion to withdraw his plea. (Tr. 87.)
{¶ 18} The trial court did not abuse its discretion in denying Undiandeye's motion because Undiandeye set forth no legitimate basis for the withdrawal of his plea. When faced with a claim of innocence, "the trial judge must determine whether the claim is anything more than the defendant's change of heart about the plea agreement." State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 2. A mere change of heart regarding a plea is insufficient justification for the withdrawal of a plea. State v. Maddox, 2017-Ohio-8061, 98 N.E.23d 1158, ¶ 18 (8th Dist.). Likewise, a defendant's protestations of innocence are not sufficient grounds for vacating a plea that was voluntarily, knowingly, and intelligently entered. Id., citing Minifee at ¶ 27.
{¶ 19} It is apparent that Undiandeye entered his guilty plea knowingly, voluntarily, and intelligently. As set forth above, the record reflects he was given a full hearing in compliance with Crim.R. 11 before he entered his plea. At the hearing, the court inquired of him whether he understood the charges against him and the maximum possible penalties; he confirmed that he understood and wanted to plead guilty. The court also advised him of the effect of his plea and the rights he was waiving by pleading guilty, and Undiandeye acknowledged that he understood those rights and wanted to plead guilty.
{¶ 20} Undiandeye's protestations of innocence, asserted after he entered a knowing, voluntary, and intelligent plea, are not a sufficient basis for withdrawal of the plea. Cleveland v. Brown, 8th Dist. Cuyahoga Nos. 107939 and 108145, 2019-Ohio-5254, ¶ 19. And in any event, his assertion of innocence is wholly unpersuasive given the fact that he offered no evidence or even argument to support this assertion.
{¶ 21} On appeal, Undiandeye contends that the trial court erred in denying his motion to withdraw because the court "summarily dismissed [his] concerns and denied his motion." (Appellant's Brief, p. 9.) In light of the extensive hearing on Undiandeye's motion, this argument is specious. Undiandeye also contends that the trial court had "an independent duty to ensure that this was a knowing, intelligent, and voluntary plea." Id. This argument is also wholly without merit, as demonstrated by the full Crim.R. 11 hearing held by the trial court before it accepted Undiandeye's plea. Finally, Undiandeye contends that he "should be permitted to withdraw his pleas to correct the manifest injustice" that occurred in his case. Id. But manifest injustice is the standard applied to postsentence motions to withdraw a plea, not presentence motions. See Crim.R. 32.1.
{¶ 22} On this record, we find that Undiandeye's request to withdraw his plea and go to trial was nothing more than a change of heart. This court has repeatedly held that a change of heart regarding a guilty plea and the possible sentence is insufficient justification for withdrawal of a guilty plea. State v. Norman, 8th Dist. Cuyahoga No. 105218, 2018-Ohio-2929, ¶ 20; State v. McKissick, 8th Dist. Cuyahoga No. 105607, 2018-Ohio-282, ¶ 22; State v. Bosby, 8th Dist. Cuyahoga No. 94466, 2011-Ohio-599, ¶ 11. Likewise, because Undiandeye's plea was made knowingly, voluntarily, and intelligently, his protestations of innocence are insufficient grounds for vacating his plea. Brown, 8th Dist. Cuyahoga Nos. 107939 and 108145, 2019-Ohio-5254 at ¶ 19.
{¶ 23} The trial court did not abuse its discretion in denying Undiandeye's motion to withdraw, and the first assignment of error is therefore overruled.
B. Consecutive Sentences
{¶ 24} In his second assignment of error, Undiandeye contends that the trial court did not make the requisite statutory findings to impose consecutive sentences.
{¶ 25} Consecutive sentences may be imposed only if the trial court makes the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive sentences may be imposed if the trial court finds they are (1) necessary to protect the public from future crime or to punish the offender, (2) not disproportionate to the seriousness of the offender's conduct and the danger he or she poses to the public, and any one of the following applies:
(a)The offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;
(b)At least two of the multiple offenses were committed as part of one or more courses of the conduct, and the harm caused by two or more of the offenses 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; or
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 26} In order to impose consecutive terms of imprisonment, a trial court must both make the statutory findings mandated for consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those findings into its sentencing entry. Bonnell at the syllabus.
{¶ 27} Here, in imposing consecutive sentences, the trial court found that consecutive sentences were necessary to punish Undiandeye and protect the public from future crime, and were not disproportionate to the seriousness of his conduct and the danger he poses to the public. (Tr. 136.) In addition, the court found that two or more of his offenses were part of one or more courses of conduct, and that the harm caused was so great that a single prison term would not adequately reflect the seriousness of his conduct. (Tr. 136-137.)
{¶ 28} The journal entry of sentencing varies slightly from what the trial court stated at sentencing, however. The sentencing entry states:
The court imposes prison terms consecutively finding that consecutive service of the prison terms is necessary to protect the public from future crime or to punish the defendant; that the consecutive sentences are not disproportionate to the seriousness of the defendant's conduct and to the danger defendant poses to the public, and that defendant's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.(Emphasis added.)
{¶ 29} Although the sentencing entry contains the first two statutory findings made at sentencing by the trial court, it incorrectly states the third finding. At sentencing, the trial court found that consecutive sentences were necessary because two or more of the offenses were part of one or more courses of conduct, and the harm caused was so great that a single prison term would not adequately reflect the seriousness of Undiandeye's conduct. R.C. 2929.14(C)(4)(b). The sentencing entry, however, states that the trial court found that Undiandeye's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime. R.C. 2929.14(C)(4)(c).
{¶ 30} Crim.R. 36 authorizes the trial court to correct "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission * * * at any time." "A trial court may use a nunc pro tunc entry to correct mistakes in judgments, order, and other parts of the record so the record speaks the truth." State v. Spears, 8th Dist. Cuyahoga No. 94089, 2010-Ohio-2229, ¶ 10. A nunc pro tunc entry is limited to memorializing what the trial court actually did at an earlier point in time, such as correcting an order that fails to reflect the trial court's true action. Id., citing State v. Greulich, 61 Ohio App.3d 22, 24, 572 N.E.2d 132 (9th Dist.1988).
{¶ 31} The trial court's sentencing entry in this case clearly contains a clerical error. The trial court made all of the statutorily required findings at sentencing to impose consecutive sentences, but the sentencing entry included a finding not made by the trial court and omitted the actual finding made by the court. Accordingly, the trial court is ordered to issue a nunc pro tunc entry to correct the sentencing entry to reflect the findings it actually made at sentencing: consecutive sentences are necessary to protect the public from future crime or to punish Undiandeye; consecutive sentences are not disproportionate to the seriousness of his conduct and the danger he poses to the public; and two or more of the offenses were part of one or more courses of conduct, and the harm caused by the offenses was so great that a single prison term would not adequately reflect the seriousness of his conduct.
{¶ 32} Undiandeye's presence is not required for entry of the nunc pro tunc order because the nunc pro tunc order does not modify the original sentence. State v. Sandidge, 8th Dist. Cuyahoga No. 109277, 2020-Ohio-1629, ¶ 8, citing State v. Hall, 8th Dist. Cuyahoga No. 96791, 2011-Ohio-6441, ¶ 22 (The defendant's right to be present at every stage of the criminal proceedings is not abridged when the trial court issues a nunc pro tunc entry to correct a clerical error so that the journal entry accurately reflects the original sentence imposed at the sentencing hearing and does not modify the sentence.).
{¶ 33} The second assignment of error is sustained in part and overruled in part.
{¶ 34} Judgment affirmed and remanded.
It is ordered that the parties share equally in 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. The defendant's convictions having been affirmed, any bail pending is terminated. Case remanded to the trial court for entry of nunc pro tunc sentencing entry and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE ANITA LASTER MAYS, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR