[Cite as State v. Clark, 2013-Ohio-300.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
: Appellate Case No. 2011-CA-32
Plaintiff-Appellee :
: Trial Court Case Nos. 2008-CR-321
v. : Trial Court Case Nos. 2011-CR-223
:
JORDAN J. CLARK : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of February, 2013.
...........
KEVIN S. TALEBI, Atty. Reg. #0069198, Champaign County Prosecuting Attorney, 200
North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Jordan J. Clark appeals from his conviction and sentence
for Safecracking, Breaking and Entering, Burglary and Grand Theft (motor vehicle). Clark
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contends that the trial court erred in sentencing him to maximum and consecutive sentences.
He further contends that the trial court erred by accepting his guilty plea to the charge of
Safecracking and by failing to sua sponte vacate the plea. Finally, Clark contends that he was
denied the effective assistance of counsel.
{¶ 2} We conclude that the trial court did not err in imposing sentence. We further
conclude that the trial court did not err either in accepting the guilty plea, or in failing to
vacate the plea, with regard to the Safecracking charge. Finally, Clark’s claim of ineffective
assistance of trial counsel is not supported by the record. Accordingly, the judgment of the
trial court is Affirmed.
I. Facts
{¶ 3} On August 1, 2011, Clark and two accomplices, Lee and McGuffey, made
plans to break into the Urbana City Pool. Clark and McGuffey drove to the area and dropped
off Lee who proceeded to break into the building. Clark and McGuffey later returned to pick
up Lee, who had taken money and food.
{¶ 4} On August 4, 2011, Clark, McGuffey, Lee and a fourth man, Dunham, worked
together to break into a residence, owned by the Hensons, while its owners were on vacation.
Clark and Mcguffey monitored police activity while the other two broke into the home.
Afterwards, Clark and McGuffey drove back to pick up the two men who had taken items
from the home. Later, Clark, Lee and McGuffey decided to return to the same house and
steal a vehicle. Clark and Lee entered the house and took the keys to the vehicle. Then the
three men took turns driving the vehicle while damaging local mailboxes. Ultimately the car
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was wrecked, and the three men returned home.
{¶ 5} Clark was involved in opening a safe that Lee, Dunham and McGuffey had
stolen from a residence owned by Peggy Cauley on August 6. On August 7, he participated in
breaking into and entering the Mad River Farm Market and the Terre Haute Grocery.
II. The Course of Proceedings
{¶ 6} The Champaign County Grand Jury returned a twenty-count indictment
against Jordan Clark. The counts included: three counts of Breaking and Entering, in
violation of R.C. 2911.13, felonies of the fifth degree; three counts of Theft, in violation of
R.C. 2913.02, a misdemeanors of the first degree; two counts of Burglary, in violation of R.C.
2911.12(A)(3), felonies of the third degree; one count of Grand Theft, in violation of R.C.
2913.02, a felony of the fourth degree; one count of Grand Theft of a Motor Vehicle, in
violation of R.C. 2913.02, a felony of the fourth degree; six counts of Criminal Damaging, in
violation of R.C. 2909.06, misdemeanors of the second degree; three counts of Receiving
Stolen Property, in violation of R.C. 2913.51(A), misdemeanors of the first degree; and one
count of Safecracking, in violation of R.C. 2911.31(A), a felony of the fourth degree.
{¶ 7} Clark pled guilty to the three counts of Breaking and Entering, one count of
Burglary, one count of Grand Theft, one count of Grand Theft of a Motor Vehicle, six counts
of Criminal Damaging, and one count of Safecracking. The remaining seven counts of the
indictment were dismissed with prejudice. At his sentencing hearing, the trial court merged
the counts of Burglary and Grand Theft [Counts Three and Four], and then sentenced Clark to
a term of twelve months in prison on Count One, thirty-six months on Count Three, eighteen
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months on Count Six, eighteen months for Count Fifteen, twelve months for Count Sixteen,
and twelve months on Count Eighteen. The trial court also sentenced Clark to a term of 90
days in the Tri-County Regional Jail with regard to each of Counts Seven, Eight, Nine, Ten,
Eleven and Twenty. The trial court stated that “all counts are concurrent confinement with
each other except Counts One, Three, Six, Fifteen and Sixteen which are consecutive to each
other. TOTAL SENTENCE - Eight (8) years to the Ohio Department of Rehabilitation and
Corrections.”
{¶ 8} The trial court stated the following:
The Court finds that the consecutive service is necessary to protect the public
from future crime and to punish the Defendant and that consecutive sentences are not
disproportionate to the seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public and the Defendant committed one or more of the
multiple offenses while awaiting trial or under a community control sanction imposed
pursuant to Ohio Revised Code 2929.16, 2929.17 or 2929.18 and 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 was so great that no single prison
term for any of the offenses adequately reflects the seriousness of the Defendant’s
conduct and the Defendant’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the Defendant. Dkt.
18, p. 5.
{¶ 9} From his conviction and sentence Clark appeals.
[Cite as State v. Clark, 2013-Ohio-300.]
II. The Trial Court Did Not Abuse its Discretion in Imposing Maximum, Consecutive
Sentences on Certain Counts
{¶ 10} Clark’s First Assignment of Error states:
THE TRIAL COURT ERRED IN IMPOSING MAXIMUM CONSECUTIVE
SENTENCES ON COUNTS I, III, XV, AND XVI.
{¶ 11} Clark argues that the record does not support the imposition of maximum
sentences with regard to Counts One, Three, Six, Fifteen and Sixteen. Clark further contends
that “an eight year aggregate prison term” is “too long, and the sentence imposes an
unnecessary burden on state or local resources in violation of R.C. 2929.11(A).”
{¶ 12} “A trial court has broad discretion in sentencing a defendant and a reviewing
court will not interfere with the sentence unless the trial court abused its discretion.” State v.
Bray, 2d Dist. Clark No. 2010CA14, 2011–Ohio–4660, ¶ 28. The term “abuse of discretion”
has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Hufman v.
Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985).
{¶ 13} When reviewing a felony sentence, an appellate court must first determine
whether the sentencing court complied with all applicable rules and statutes in imposing the
sentence, including R.C. 2929.11 and 2929.12, in order to decide whether the sentence is
contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. If the
sentence is not clearly and convincingly contrary to law, the trial court's decision in imposing
the term of imprisonment must be reviewed under an abuse-of-discretion standard. Id.
{¶ 14} The General Assembly, through the enactment of 2011 Am. Sub. H.B. 86,
amended Ohio's sentencing statutes. Since H.B. 86 took effect on September 30, 2011 and
Clark was sentenced on November 16, 2011, the trial court was required to sentence him
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under the new statutes. Relevant to this appeal, the revisions under H.B. 86 now require a
trial court to make specific findings when imposing consecutive sentences. Specifically, R.C.
2929.14(C)(4) provides as follows:
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
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the offender.
{¶ 15} A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing which are “to protect the public from future crime by
the offender and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state or
local government resources.” R.C. 2929.11(A). A court imposing a sentence for a felony
“has discretion to determine the most effective way to comply with the purposes and
principles of sentencing set forth in section 2929.11 of the Revised Code.” R.C. 2929.12(A).
{¶ 16} Clark contends that because he did not enter the Urbana Pool, the Mad River
Farm Market or the Henson home, he should not have received the maximum sentences for
these offense. He also contends that he did not drive the Henson vehicle and he should not
have received the maximum sentence for that offense. Finally, he argues that he was not
involved in the Cauley offense, and thus, should not have received the maximum possible
sentence.
{¶ 17} In this case, prior to imposing sentence, the trial court reviewed the offenses,
the pre-sentence investigation report, and statements made by Clark and his attorney. The
court explained that it was imposing sentence after considering the purposes and principles of
sentencing, as well as the seriousness and recidivism factors. The trial court noted that Clark
had prior criminal convictions. He was, in fact, on community control at the time of the
offenses in the case before us. Additionally, the court considered the extent of the damages to
the victims.
{¶ 18} The record indicates that Clark was convicted of Breaking and Entering in
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2008 and was sentenced to community control. Later that year he was convicted of Underage
Consumption and Failure to Identify and was sentenced to serve one hundred and eighty days;
the sentence was suspended. In April 2009, Clark was convicted of Theft and was sentenced
to three years of community control. Thereafter, in August 2011, while on community
control, Clark was involved in the series of offenses in the case before us.
{¶ 19} While Clark did not enter the Mad River Farmers Market or the Terre Haute
Grocery, he was involved in the plans to break in, and was actively involved with transport
and lookout responsibilities. Furthermore, the record reflects that he did enter the Henson
home for the purpose of taking the keys to their vehicle. The record shows that he took turns
driving the vehicle after stealing it. Finally, Clark was involved with Safecracking with
regard to a safe stolen from the Cauley residence, although he was not involved in the initial
offense of Breaking and Entering.
{¶ 20} Clark’s sentence falls within the permissible statutory range. The trial court
considered the factors set forth in R.C. 2929.14(C)(4) when deciding to impose consecutive
sentences. Thus, the sentence is not clearly and convincingly contrary to law.
{¶ 21} In their briefs, both Clark and the State cite authority for the proposition that
an appellate court may vacate consecutive sentences only if it clearly and convincingly finds
that the record does not support the trial court’s findings, or that the sentence is otherwise
contrary to law. Because of Clark’s criminal history of two prior felonies, the fact that he was
under community control for another felony at the time of these offenses, and was actively
involved in multiple offenses over the course of approximately a week, we do not clearly and
convincingly find that the record does not support the trial court’s findings with respect to the
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imposition of consecutive sentences, or that the trial court abused its discretion by imposing
the maximum sentences allowed. Accordingly, the First Assignment of Error is overruled.
IV. The Trial Court Did Not Err in Accepting Clark’s Plea of Guilty to Safecracking
{¶ 22} Clark’s Second Assignment of Error states:
THE TRIAL COURT ERRED IN IMPOSING A SENTENCE ON COUNT
XV.
{¶ 23} Clark contends that he was not involved in the offense committed against
Peggy Cauley on August 6, 2011. Therefore, he claims that the trial court erred by failing to
permit him to enter a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162, with regard to that offense. In support, Clark makes references to several
portions of the transcript of the sentencing hearing that he claims establish that the prosecutor
stated that Clark was not involved in the Cauley offense. He also references the pre-sentence
investigation report, in which he indicated that Lee had told him that Lee broke into Cauley’s
safe following the burglary of the house.
{¶ 24} The prosecutor made the following statements during sentencing:
Fortunate for him, he was not involved in the Peggy Culley [sic]
burglary that his co-defendant was.
***
Of that $4,040.12, $1,858.66 goes to Peggy – I’m sorry. That would be
a mistake on the restitution figure. I think my Victim Advocate had indicated
the Defendant’s culpability for the Peggy Culley [sic] loss, and the Defendant
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was not involved in the Peggy Culley [sic].
***
The reason for my pause is that when the Court was reviewing the
sentence, it made me realize that when my Victim Advocate listed the Peggy
Culley [sic] property, Count Fifteen, which is the safecracking, it indicates that
contained within the safe was blank checks, a Lincoln Financial check, a life
insurance document, and two rings. So I needed to go back to the prosecution
report as well as comparing that to what Peggy Culley [sic] listed as her loss to
see if any of the information it contained in Peggy Culley’s [sic] victim impact
statement would fall within the provisions of what was set forth in Count
Fifteen.
And Peggy Culley [sic] claimed a loss for a PlayStation 3 and two Dell
laptops. But did not make specific mention in her victim impact statement of
the rings. So it was correct to list Peggy Culley [sic] as a victim. But as far
as restitution goes, based on what was claimed by the victim, I don’t believe
that Mr. Clark should be responsible for that loss.
{¶ 25} From our reading of the entire transcript, the prosecutor here was merely
indicating that Clark was not involved with the Cauley Burglary, was not charged with that
Burglary, and therefore could not be held liable for restitution regarding the loss from the
Burglary. However, as noted by the State, Clark was charged with Safecracking following
the Burglary. Since Ms. Cauley did not seek restitution for the loss of the items contained
within the safe, the prosecutor acknowledged no restitution could be awarded with regard to
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the Safecracking charge. We do not read the above-quoted colloquy as indicating that Clark
was not involved with the Safecracking offense.
{¶ 26} Also, the pre-sentence investigation report was generated, and the sentencing
hearing was held, after the plea hearing. Therefore, none of that information was available to
the trial court when it accepted Clark’s plea. At the plea hearing the following colloquy took
place with regard to that count:
THE COURT: Count 15, safe cracking, are you admitting you
committed that crime as a fourth degree misdemeanor because you did on or
about August 6, 2011, in Champaign County, Ohio, with purpose to commit an
offense knowingly force an entrance into or tamper with any vault, safe or
strong [sic] with was Peggy Cauley’s safe containing Peggy Cauley’s Security
Bank checks, Lincoln Financial check, life insurance documents and two rings?
DEFENDANT CLARK: Yes, sir.
{¶ 27} A guilty plea must be knowingly, intelligently, and voluntarily made In order
to satisfy the requirements of due process. Boykin v. Alabama, 395 U.S. 238, 242–243, 89
S.Ct. 1709, 23 L.Ed.2d 274 (1969). The plea must be made with a full understanding of its
consequences. State v. Bowen, 52 Ohio St.2d 27, 28, 368 N.E.2d 843 (1977). Before
accepting a guilty plea, a trial court must substantially comply with the requirements of
Crim.R. 11. 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.” Id.
{¶ 28} We conclude that the trial court did substantially comply with Crim.R. 11.
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A review of the entire plea hearing transcript demonstrates that the trial court informed Clark
of the facts underlying the charges against him, the maximum sentence that he faced, and the
constitutional rights that he waived by pleading guilty. Prior to accepting the plea, the trial
court asked Clark whether he understood what he was doing, whether he was acting of his
own free will and not as the result of any promises aside from those incorporated in the plea
agreement, and whether he wanted the court to accept the plea. Clark responded to these
questions in the affirmative. He acknowledged that he had discussed his case with his
attorney. The court asked Clark whether there was any reason that he should not be found
guilty, to which he responded negatively.
{¶ 29} At no time during the plea proceedings did Clark indicate that he was not
guilty of the offense of Safecracking, as charged in Count Fifteen of the indictment. The trial
court had no information before it to indicate otherwise, and nothing in the record up to that
point, including the plea colloquy, gives rise to an inference that Clark was not guilty of the
crime of Safecracking as charged. In determining the propriety of the trial court’s acceptance
of Clark’s plea, we cannot consider information that was not before the trial court at that time.
Therefore, we find no error in the trial court’s acceptance of the plea.
{¶ 30} Clark’s Second Assignment of Error is overruled.
IV. The Trial Court Did Not Err by Failing to Vacate the Plea
of Guilty with Regard to the Charge of Safecracking
{¶ 31} Clark’s Third Assignment of Error states:
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THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE JORDAN’S
PLEAS.
{¶ 32} Clark contends that the trial court should have vacated his guilty plea, sua
sponte, regarding to the Safecracking charge in Count Fifteen of the indictment. He again
relies upon the above-quoted statements of the prosecutor at the sentencing hearing and the
statement in the pre-sentence investigation report indicating that Lee broke into the Cauley
safe.
{¶ 33} The plea hearing transcript establishes that the trial court complied with
Crim.R. 11 in ascertaining that Clark was making his plea knowingly, voluntarily and
intelligently. Clark did not object, or move to vacate the plea at any time prior to appeal. Nor
did he make any protestations of innocence other than a comment in the pre-sentence
investigation report that Lee had told him that Lee had broken into the Cauley safe. We
presume that the trial court was aware of this statement at the time of sentencing, since the
trial court indicated that it had reviewed the pre-sentence investigation report.
{¶ 34} Thus, the question is whether the trial court, based upon the statement in the
pre-sentence investigation report, should have vacated Clark’s plea of guilty to the
Safecracking charge sua sponte, in the absence of a motion seeking to vacate. The Eighth
District Court of Appeals has addressed this issue in State v. Millhouse, 8th Dist. Cuyahoga
No. 79910, 2002-Ohio-2255, ¶ 27, stating:
Our review of the Rules of Criminal Procedure reveals no provisions
which would suggest that a trial court should sua sponte vacate a guilty plea
once it has been accepted; rather, it is Crim.R. 32.1 which provides for the
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withdrawal of guilty pleas upon proper motion. Here, because no such motion
had been presented to the trial court at the time of sentencing, we are unable to
find error in this regard. Further, had the court sua sponte vacated his pleas at
sentencing as [the defendant] now urges, he could have easily claimed that the
trial court denied him the benefit of his bargain and then challenged on appeal
that uninvited judicial action. See also, State v. Heslop, 7th Dist. Belmont No.
11-BE-19, 2012-Ohio-5118.
{¶ 35} We agree. In light of the lack of a motion to vacate, and the fact that Clark’s
plea was knowingly, voluntarily and intelligently made, and that at no time during the plea
hearing did Clark or his counsel protest innocence regarding this charge, we cannot say that
the trial court erred by failing to sua sponte vacate the plea of guilty to the charge of
Safecracking. Accordingly, Clark’s Third Assignment of Error is overruled.
V. The Record Fails to Establish Clark’s Claim
of Ineffective Assistance of Counsel
{¶ 36} Clark’s Fourth Assignment of Error states:
JORDAN CLARK WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.
{¶ 37} Clark contends that his counsel was ineffective because he permitted Clark to
enter a guilty plea to, and be sentenced on, the charge of Safecracking despite his claim that he
did not commit the offense.
{¶ 38} A claim of ineffective assistance of trial counsel requires both a showing that
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trial counsel's representation fell below an objective standard of reasonableness, and that the
defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at
689. The prejudice prong requires a finding that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different, with a
reasonable probability being “a probability sufficient to undermine confidence in the
outcome.” Id. at 694. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶ 39} In support of this argument, Clark again relies upon the statements made by
the prosecutor at the sentencing hearing, quoted in Part III, above, as well as a statement in the
pre-sentence investigation report. Again, the prosecutor merely commented that Clark did
not burglarize the Cauley home, and that he was charged only with Safecracking with regard
to Cauley. This is not inconsistent with Clark’s guilt on that charge.
{¶ 40} The pre-sentence investigation report does indicate that Clark informed the
author of the report that Lee had “told him that he broke into the safe.” However, without
more, we cannot say that trial counsel was ineffective. Clark and counsel may have discussed
the matter and decided that it was best to accept the plea agreement as offered. Or Clark may
have informed counsel that the statement in the report was inaccurate. There is no indication
in this record that counsel was not aware of the statement or that counsel failed to exercise
sound discretion regarding the plea to this charge. Therefore, we have no basis for finding
ineffective assistance of counsel.
{¶ 41} Clark’s Fourth Assignment of Error is overruled.
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VI. Conclusion
{¶ 42} All of Clark’s assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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DONOVAN and HALL, JJ., concur.
Copies mailed to:
Kevin S. Talebi
Robert Alan Brenner
Hon. Roger B. Wilson