State v. Harris

[Cite as State v. Harris, 2014-Ohio-925.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99919

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

DEAARON HARRIS
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-12-563308-A, CR-12-568907-A,
CR-13-571411-A, and CR-13-571412-A

BEFORE: Celebrezze, P.J., Keough, J., and Blackmon, J.

RELEASED AND JOURNALIZED: March 13, 2014
ATTORNEYS FOR APPELLANT

Eric Dysert
Jordan & Sidoti, L.L.P.
50 Public Square
Suite 1900
Cleveland, Ohio 44113

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Defendant-appellant, Deaaron Harris, appeals from the sentence imposed by

the common pleas court following his guilty plea. After a careful review of the record,

we affirm appellant’s convictions and sentence. However, we remand the case to the

trial court to correct the sentencing journal entry in Cuyahoga C.P. No. CR-12-568907-A.

{¶2} On March 25, 2013, appellant pled guilty to four counts of burglary stemming

from four separate cases (Cuyahoga C.P. Nos. CR-12-563308-A, CR-12-568907-A,

CR-13-571411-A, and CR-13-571412-A), each felonies of the second degree.

Additionally, in CR-12-568907-A, appellant pled guilty to assault of a police officer, a

felony of the fourth degree, and resisting arrest, a misdemeanor of the second degree.

{¶3} On April 24, 2013, appellant was sentenced to a 16-year term of

imprisonment. The trial court ran the eight years imposed in CR-12-563308-A,

CR-13-571411-A, and CR-13-571412-A concurrently to each other, but consecutively to

the eight-year sentence imposed in CR-12-568907-A.

{¶4} Appellant now brings this timely appeal, raising three assignments of error

for review.
 I. Law and Analysis

A. Postrelease Control

{¶5} In his first assignment of error, appellant argues that the trial court erred in

failing to properly advise him of the terms and conditions of his postrelease control, in

violation of Crim.R. 11.

{¶6} Crim.R. 11(C)(2)(a) requires a trial court, at the time of a defendant’s plea, to

advise the defendant of any mandatory postrelease control period. State v. Perry, 8th

Dist. Cuyahoga No. 82085, 2003-Ohio-6344, ¶ 11. Specifically, Crim.R. 11(C)(2)(a)

requires the trial court to determine that the defendant understands “the maximum penalty

involved.” This court has previously explained:

“[P]ostrelease control constitutes a portion of the maximum penalty
involved in an offense for which a prison term will be imposed. Without an
adequate explanation of postrelease control from the trial court, appellant
could not fully understand the consequences of his plea as required by
Crim.R. 11(C).”

State v. Griffin, 8th Dist. Cuyahoga No. 83724, 2004-Ohio-4344, ¶ 13, quoting State v.

Jones, 8th Dist. Cuyahoga No. 77657, 2001 Ohio App. LEXIS 2330 (May 24, 2001).

{¶7} At appellant’s plea hearing, the trial court incorrectly informed him that, on

release from prison, he would be subject to a mandatory five-year term of postrelease

control. Appellant argues that because the trial court did not correctly advise him that he

would be subject to a mandatory three years of postrelease control, his plea was not

knowingly, intelligently, or voluntarily made.
 {¶8} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, the

Ohio Supreme Court addressed the effect of a trial court’s errors in informing a defendant

about postrelease control prior to accepting his plea. The court made a distinction

between a complete omission, as opposed to misinforming a defendant about the length of

postrelease control or whether it was discretionary or mandatory. Id. at ¶ 22. If the trial

court completely failed to advise the defendant at his plea hearing that postrelease control

would be part of his sentence, then the court failed to comply with Crim.R. 11 and the

plea must be vacated. Id. at ¶ 22, 25.

{¶9} On the other hand, if the trial court misinformed the defendant about the

nature of postrelease control, the defendant “may dispute the knowing, intelligent, and

voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct

appeal.” Id. at ¶ 25. In such an instance, the reviewing court will determine whether the

trial court substantially complied with the postrelease control advisement. Id. at ¶ 22.

{¶10} The Sarkozy court explained substantial compliance as follows:

[F]ailure to comply with nonconstitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. The test for prejudice is
“whether the plea would have otherwise been made.” Under the
substantial-compliance standard, we review the totality of circumstances
surrounding [the defendant’s] plea and determine whether he subjectively
understood [the effect of his plea].

Id. at ¶ 20.

{¶11} On review, we find that the trial court substantially complied with the

requirement that appellant be advised of postrelease control sanctions. Specifically, we

find that under the totality of the circumstances, appellant subjectively understood the
effect of his plea. Moreover, appellant has failed to demonstrate prejudice, i.e., that had

he been properly advised about postrelease control at his plea hearing, he would not have

entered the plea. On this record, appellant has failed to demonstrate that his plea was not

knowingly, intelligently, and voluntarily made.

{¶12} Appellant further argues that the trial court inadequately imposed

postrelease control at sentencing, thereby rendering his sentence void.

{¶13} A felony prison sentence must include a term of postrelease control. R.C.

2967.28 and 2929.14(F). The sentencing court must notify the offender at the sentencing

hearing concerning postrelease control and must incorporate a postrelease control

notification in the judgment of conviction. R.C. 2929.19(B)(3)(c) and (d); State v. Jordan,

104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus; see

also Woods v. Telb, 89 Ohio St.3d 504, 513, 2000-Ohio-171, 733 N.E.2d 1103 (holding

that incorporation of postrelease control notification in the judgment of conviction

empowers the Adult Parole Authority to exercise its discretion to impose postrelease

control).

{¶14} When a trial court does not impose postrelease control in accordance with

statutorily-mandated terms, that portion of the sentence is void. State v. Kalinowski, 8th

Dist. Cuyahoga No. 98922, 2013-Ohio-1453, ¶ 6. Language that “appears to allow the

parole board discretion to impose less than [the mandatory term] of postrelease control”

does not conform to the statutory mandates, rendering that portion of the sentence void.

State v. Gonzalez, 9th Dist. Lorain No. 09CA9528, 2009-Ohio-5759, ¶ 8-9 (wherein the
trial court imposed postrelease control for “up to a maximum of five years” when five

years was mandatory).

{¶15} In the case at hand, appellant’s burglary convictions were felonies of the

second degree. Therefore, the trial court was required to notify appellant that on his

release from prison, he would be subject to a mandatory three-year period of postrelease

control supervision. See R.C. 2911.12(A)(2) and 2967.28(B)(2). Additionally, the trial

court was required to notify appellant of the consequences of violating postrelease control

and of the length of confinement that could be imposed for a postrelease control violation.

R.C. 2929.19(B)(3)(e).

{¶16} At appellant’s sentencing hearing, the trial court advised him as follows:

THE COURT: Sir, upon your release from prison, the Ohio Parole Board
will impose a period of postrelease control, not to exceed three years. But
because there’s violence in that one, case, wouldn’t it be mandatory for * *
*

PROSECUTOR: Yes, I believe it will be mandatory three years of
postrelease control.

THE COURT: Okay. Postrelease control of three years, * * * Postrelease
control will be mandatory. They may impose conditions and sanctions. If
you decide to commit an act that causes you to be found in violation of your
postrelease control, you could be remanded to an Ohio penal institution for
an additional 50 percent of your original sentence.

{¶17} In light of the above statements, we find that the trial court properly advised

appellant at the April 24, 2013 sentencing hearing that he was subject to a mandatory

term of three years postrelease control. Furthermore, the trial court properly advised

appellant of the consequences associated with failing to abide by the terms and conditions
of postrelease control. Thus, we find that the trial court provided a proper notification of

postrelease control.

{¶18} However, the record reflects that in CR-12-568907-A, the trial court

incorrectly stated in the sentencing journal entry that postrelease control would be for a

period of “up to” three years. In State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111,

967 N.E.2d 718, the Ohio Supreme Court approved the use of a nunc pro tunc order to

correct a flawed sentencing entry that had omitted proper postrelease control notification

where the notification had been given at the sentencing hearing. Since the 2012 Qualls

decision, “this court has consistently applied Qualls to allow the use of a nunc pro tunc

entry to correct a defective sentencing entry.” State v. Falkenstein, 8th Dist. Cuyahoga

No. 99670, 2013-Ohio-5315, ¶ 16.

{¶19} Consequently, we must remand this matter to the trial court to correct the

sentencing journal entry in CR-12-568907-A by nunc pro tunc entry so that it reflects the

trial court’s proper imposition of postrelease control at sentencing.

{¶20} Appellant’s first assignment of error is overruled.

B. Consecutive Sentences

{¶21} In his second assignment of error, appellant argues that the trial court failed

to make the necessary findings to impose consecutive sentences pursuant to R.C.

2929.14(C). We disagree.

{¶22} Appellate courts review consecutive sentences using the standard set forth in

R.C. 2953.08. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 10 (8th Dist.). R.C.
2953.08(G)(2) provides two grounds for an appellate court to overturn the imposition of

consecutive sentences: (1) the appellate court, on its review, clearly and convincingly

finds that “the record does not support the sentencing court’s findings” under R.C.

2929.14(C)(4), or (2) the sentence is “otherwise contrary to law.” Id. at ¶ 11. The

appellate court’s standard for review is not whether the sentencing court abused its

discretion. R.C. 2953.08(G)(2).

{¶23} R.C. 2929.14(C)(4) requires a trial court to make three separate and distinct

findings before imposing consecutive sentences. The statute requires the court to find

(1) “that the consecutive service is 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 the offender poses to the

public,” and (3) that any of the following apply:

(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 postrelease 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} Compliance with this statute “requires separate and distinct findings in

addition to any findings relating to purposes and goals of criminal sentencing.” Venes at
¶ 17. A trial court’s failure to make these findings is “contrary to law.” Id. at ¶ 12,

citing State v. Jones, 93 Ohio St.3d 391, 399, 2001-Ohio-1341, 754 N.E.2d 1252.

{¶25} After a careful review of the record, it is clear that the trial court complied

with the requirements set forth under R.C. 2929.14(C)(4). Here, the court made the

following statements at sentencing:

This court does find that consecutive sentences are necessary to protect the
public from future crimes. * * *

This court finds that consecutive sentences are necessary to punish the
offender, that they’re not disproportionate to the seriousness of his
misconduct, and that consecutive sentences are not disproportionate to the
danger the offender poses to the public.

This court further finds, and strongly finds, that the offender’s history of
criminal conduct — and again, the court reiterates that [appellant] has nine
prior convictions for burglary — that consecutive sentences are necessary to
protect the public from future crime by the offender.

{¶26} Thus, despite appellant’s argument to the contrary, the trial court made all

the findings required under R.C. 2929.14(C) for the imposition of consecutive sentences.

{¶27} Appellant’s second assignment of error is overruled.

C. Ineffective Assistance of Counsel

{¶28} In his third assignment of error, appellant argues that he received ineffective

assistance of counsel during his plea negotiations.

{¶29} In order to prove a claim of ineffective assistance of counsel with a guilty

plea, an appellant must demonstrate there is a reasonable probability that, but for

counsel’s errors, he or she would not have pled guilty and would have insisted on going to
trial. State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12. As this

court has previously recognized:

[W]hen a defendant enters a guilty plea as part of a plea bargain, he waives
all appealable errors that may have occurred at trial, unless such errors are
shown to have precluded the defendant from entering a knowing and
voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991).
“A failure by counsel to provide advice [that impairs the knowing and
voluntary nature of the plea] may form the basis of a claim of ineffective
assistance of counsel, but absent such a claim it cannot serve as the
predicate for setting aside a valid plea.” United States v. Broce, 488 U.S.
563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Accordingly, a guilty plea
waives the right to claim that the accused was prejudiced by constitutionally
ineffective counsel, except to the extent the defects complained of caused
the plea to be less than knowing and voluntary. State v. Barnett, 73 Ohio
App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991).

State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5.

{¶30} Here, appellant claims that defense counsel rendered ineffective assistance

because counsel mislead him into believing that he would only receive a two-year

sentence if he pled guilty.

{¶31} On review, there is nothing in the record to substantiate appellant’s claim.

We find that Crim.R. 11, which governs the taking of pleas to ensure that they are made

knowingly, intelligently, and voluntarily, was complied with. Moreover, appellant

indicated that he was not threatened or promised anything to enter the guilty plea; that he

was satisfied with the representation provided by his attorney; and that he understood by

entering a plea of guilty, he would be admitting the charges.

{¶32} Based on our review of the record, trial counsel provided adequate

representation during the proceedings. Therefore, we are unable to find that defense
counsel’s performance was deficient or that it caused the plea to be less than knowing or

voluntary.

{¶33} Appellant’s third assignment of error is overruled.

{¶34} Judgment affirmed. However, the matter is remanded to the trial court for a

nunc pro tunc entry to correct the sentencing journal entry in CR-12-568907-A so that it

reflects the trial court’s proper imposition of a mandatory three-year period of postrelease

control during appellant’s sentencing hearing.

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 conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
PATRICIA A. BLACKMON, J., CONCUR