State v. Spock

[Cite as State v. Spock, 2014-Ohio-606.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99950

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

TIMOTHY D. SPOCK
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-565398

BEFORE: Kilbane, J., Boyle, A.J., and Jones, J.

RELEASED AND JOURNALIZED: February 20, 2014
ATTORNEY FOR APPELLANT

Dale M. Hartman
2195 South Green Road
University Heights, Ohio 44121

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Andrew J. Santoli
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Timothy D. Spock, appeals from his guilty plea and

the sentence imposed in connection with his convictions for aggravated vehicular

homicide and other offenses. He assigns the following errors for our review:

I. The trial court erred in violation of Crim.R. 11(C) by failing to
explain the rights that defendant was waiving by pleading guilty.

II. The trial court’s failure to specifically inquire of defendant whether
he understood the nature of the constitutional rights enumerated in
Crim.R. 11(C) constitutes a violation of Due Process.

III. The trial court erred by failing to inform defendant he was ineligible
for probation thus destroying his ability to make a voluntary,
knowing and intelligent choice in violation of Crim.R. 11.

IV. The proceedings below were defective in that no inquiry was made
regarding whether defendant understood the nature of the crime and
consequently the court erred in accepting a plea which was neither
knowingly, willingly, nor intelligently made in violation of Crim.R.
11 and defendant’s constitutional rights.

V. The trial court erred by failing to state on the record its justification
for its failure to impose concurrent sentences for all counts.

VI. The court erred in failing to merge all or some of the charges.

VII. The sentence was disproportionate to the crimes.

{¶2} We have grouped the assignments of error together for analysis where it is

appropriate to do so. Having reviewed the record and the case law, we affirm.

{¶3} On July 29, 2012, defendant drove through barriers erected on Clifton

Boulevard and struck pedestrians attending a street festival. Two of the pedestrians,
Basil Bass and Mitchell Andelmo, died from their injuries. A third pedestrian,

Constance Pokorny, sustained head injuries.

{¶4} On August 14, 2012, defendant was indicted on two counts of

second-degree felony aggravated vehicular homicide, two counts of third-degree felony

aggravated vehicular homicide, one count of third-degree felony aggravated vehicular

assault, one count of fourth-degree aggravated vehicular assault, and one count of driving

while under the influence of alcohol and/or drugs.

{¶5} Defendant pled not guilty to the charges. He subsequently reached a plea

agreement with the state, and on November 1, 2012, he pled guilty to both counts of

second-degree felony aggravated vehicular homicide, one count of third-degree felony

charge of aggravated vehicular assault, and the count of driving while under the influence

of alcohol and/or drugs. The remaining charges were dismissed.

{¶6} On December 13, 2012, the trial court imposed its sentence. The court

sentenced defendant to consecutive six-year terms for the aggravated vehicular homicide

charges and a consecutive three-year term for the aggravated vehicular assault charge. A

three-year term of postrelese control was also ordered. The prison terms were ordered to

be served concurrently with a six-month jail term on the charge of driving while under the

influence of alcohol or drugs, and the court also imposed a fine, six driver’s license

points, and a three-year license suspension.

Crim.R. 11
 {¶7} In his first and second assignments of error, defendant asserts that the trial

court did not properly advise him of his constitutional rights before accepting the guilty

plea. In considering whether a guilty plea was entered knowingly, intelligently, and

voluntarily, an appellate court examines the totality of the circumstances through a de

novo review of the record. State v. Petitto, 8th Dist. Cuyahoga No. 95276,

2011-Ohio-2391, ¶ 4; State v. Siler, 11th Dist. Ashtabula No. 2010-A-0025,

2011-Ohio-2326, ¶ 12.

{¶8} Crim.R. 11(C)(2) governs guilty pleas and provides:

In felony cases, the court may refuse to accept a plea of guilty or a plea of
no contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and, if applicable, that the defendant is not eligible for probation
or for the imposition of community control sanctions at the sentencing
hearing.

(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant’s favor, and to require the state to

prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.
 {¶9} In order to determine whether a criminal defendant knowingly, intelligently,

and voluntarily entered a plea, we review the record to determine whether the trial court

adequately advised the defendant of his constitutional and nonconstitutional rights set

forth in Crim.R. 11(C). State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).

Constitutional Rights

{¶10} The trial court must strictly comply with those provisions of Crim.R. 11(C)

that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Ballard, 66 Ohio St.2d 473, 423

N.E.2d 115 (1981), at paragraph one of the syllabus; State v. Stewart, 51 Ohio St.2d 86,

88-89, 364 N.E.2d 1163 (1977). Strict compliance does not require an exact recitation of

the precise language of the rule but instead focuses on whether the trial court explained or

referred to the right in a manner reasonably intelligible to that defendant. Ballard.

{¶11} Also with regard to the trial court’s duty to explain the defendant’s

constitutional rights, the court must advise the defendant of the right to a jury trial, the

right to confront his or her accusers, the privilege against compulsory self-incrimination,

the right to compulsory process to obtain witnesses, and the right to require the state to

prove guilt beyond a reasonable doubt. Veney at ¶ 18. The court must determine that

the defendant understands that by the plea the defendant is waiving the rights to a jury

trial and to confront witnesses. Id. Nonetheless, “the trial court is not required to stop

after each right and ask the defendant whether he understands the right and knows that by
pleading guilty, he is effecting a waiver of it.” Ballard at 479-480; State v. Compton,

11th Dist. Lake No. 97-L-010, 1998 Ohio App. LEXIS 6361 (1998).

{¶12} In this matter, the trial court’s colloquy regarding the constitutional rights

was as follows:

THE COURT: By law you have a right to have this case tried to a jury.
You may give up that right and have a judge hear this case without a jury.
You also have a right to a lawyer. Do you understand?

THE DEFENDANT: Yes.

THE COURT: You do have the right to cross-examine all of the state’s
witnesses at trial. And by using the subpoena power, you have the right to
bring into court witnesses on your behalf. The State of Ohio must prove
your guilt with evidence beyond a reasonable doubt. And at trial you could
not be forced to testify against yourself. Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: Now, by entering into this plea, you’re giving up those
rights with an exception to your right to have a lawyer.

THE DEFENDANT: Yes.

{¶13} The record therefore demonstrates that the trial court tracked the language

of Crim.R. 11(C). The record additionally discloses that defendant had taken some

college courses and his counsel believed that the plea would be knowingly, voluntarily,

and intelligently made. We therefore conclude that the court’s colloquy was reasonably

intelligible to defendant. From the foregoing, we conclude that the trial court met its

duty of strict compliance as it properly explained defendant’s constitutional rights and

determined that defendant understood the rights that he was waiving.

{¶14} The first and second assignments of error are therefore without merit.
 Ineligibility for Probation

{¶15} Defendant’s third assignment of error addresses whether the trial court

properly informed him that he was ineligible for probation The right to be informed of

the ineligibility for probation is reviewed for substantial compliance. State v. Nero, 56

Ohio St.3d 106, 564 N.E.2d 474, syllabus; State v. Gurley, 8th Dist. Cuyahoga No. 70586,

1997 Ohio App. LEXIS 2414 (June 5, 1997). A trial court substantially complies with

this requirement when the court informs a defendant that a mandatory prison sentence

will be imposed and the defendant subjectively understands that his sentence must include

prison time. State v. Brown, 11th Dist. Geauga No. 2003-G-2504, 2004-Ohio-1843, ¶

13. The reasoning is that a defendant who understands that actual incarceration is

mandatory necessarily understands that he is ineligible for probation or community

control sanctions and, therefore, cannot demonstrate prejudice as a result of the court’s

failure to comply literally with the rule. Id.

{¶16} In this matter, we find that the totality of the circumstances indicate that the

defendant knew that he was ineligible for community control. Furthermore, the defendant

has not explained how the trial court’s failure to inform him of his ineligibility for

community control prejudiced him. See State v. Smith, 8th Dist. Cuyahoga No. 83395,

2004-Ohio-1796, ¶ 8-12.

{¶17} Because the record clearly indicates that the defendant understood the nature

of the charges and their required terms of imprisonment, and because the totality of the
circumstances demonstrate that defendant knew that the aggravated vehicular homicide

offenses did not provide for probation, the third assignment of error is without merit.

Nature of the Charges

{¶18} In the fourth assignment of error, defendant complains that the trial court

erred by failing to inform him that he was ineligible for probation. With regard to

notification of nonconstitutional rights, the trial court must substantially comply with its

notification duties. Veney at ¶ 14-17. “Substantial compliance means that under the

totality of the circumstances the defendant subjectively understands the implication of his

plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d

474 (1990). In addition, a defendant must show prejudice when nonconstitutional

aspects of the colloquy are at issue. Veney. The test for prejudice is whether the plea

would have otherwise been made. Id.; see also State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462.

{¶19} A defendant may acquire an understanding of the nature of the charges

against him, whether from the trial court itself, the prosecutor, or some other source, such

that the trial court can determine that appellant understands the charges to which he was

pleading guilty. State v. Blair, 128 Ohio App.3d 435, 438, 715 N.E.2d 233 (2d

Dist.1998). The trial court need not advise the defendant of the elements of the crimes;

rather, it is sufficient if the totality of the circumstances warrant the trial court in making

a determination that the defendant understands the charges. State v. Rainey, 3 Ohio

App.3d 441, 442, 446 N.E.2d 188 (10th Dist.1992) (although preferred, it is not always
necessary that the trial court advise the defendant of the elements of the crime or

specifically ask if he understands the charge, so long as the totality of the circumstances

are such that the trial court is warranted in making the determination that the defendant

understands the charge). Further, in State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d

757 (1979), the Ohio Supreme Court stated:

If the defendant receives the proper information, then we can ordinarily
assume that he understands that information. [In deciding whether
defendant had the required information,] we look at all the particular facts
and circumstances surrounding the case.

{¶20} Here, at the start of the plea proceedings, the prosecuting attorney explained

that the charges of aggravated vehicular homicide are “punishable by a prison term of 2 to

8 years,” that the charge of aggravated vehicular assault is “punishable by a term of

incarceration in monthly increments of 9 to 36 months,” and that defendant faced from 2

to 19 years in prison. Immediately thereafter, the trial court explained the nature of each

of the offenses, the degree of the offense, and the potential penalties. The court stated:

THE COURT: Counts 1 and 2 are both felonies of the second degree.
They are punishable by 2 up to 8 years in prison and a fine not to exceed
$15,000. There’s also 6 points for your driver’s license on both of those.

Count number 5, aggravated vehicular assault, felony of the third degree.
That is punishable by 9, 12, 18, 24, 30 or 36 months in prison and a
potential fine up to $10,000. There’s also a 6 point for your driver’s
license on that count.

Count number 7, driving under the influence, a misdemeanor of the first
degree. It’s punishable by up to 6 months of local incarceration. There’s
a class 1 driver’s license suspension, which is basically for life. There’s a
$1,300 minimum mandatory fine and 6 points will be assessed on your
driver’s license.
 Do you understand that?

THE DEFENDANT: Yes.

{¶21} The court also outlined the terms of postrelease control.

{¶22} From the foregoing, we conclude that the trial court fulfilled its duty to

explain the nature of the offenses to defendant and the record indicates that he understood

the nature of the offenses.

{¶23} The fourth assignment of error is therefore without merit.

Consecutive Sentences

{¶24} In his fifth assignment of error, defendant challenges the imposition of

consecutive sentences.

{¶25} R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he

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

discretion[;]” rather, the statute states that if we “clearly and convincingly” find that (1)

“the record does not support the sentencing court’s findings under [R.C. 2929.14(C)(4)],”

or that (2) “the sentence is otherwise contrary to law,” then we “may increase, reduce, or

otherwise modify a sentence * * * or [we] may vacate the sentence and remand the matter

to the sentencing court for re-sentencing.” See also State v. Goins, 8th Dist. Cuyahoga

No. 98256, 2013-Ohio-263, ¶ 6.

{¶26} Pursuant to R.C. 2929.14(C)(4), when imposing consecutive sentences, the

trial court must first find the sentence is “necessary to protect the public from future

crime or to punish the offender.” Next, the trial court must find that consecutive
sentences are “not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public.” Finally, the trial court must find the existence

of one of the three statutory factors set forth in R.C. 2929.14(C)(4)(a)-(c):

(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.

{¶27} Compliance with this statute “requires separate and distinct findings in

addition to any findings relating to purposes and goals of criminal sentencing.” State v.

Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 17 (8th Dist.), citing State v. Jones, 93 Ohio

St.3d 391, 399, 2001-Ohio-1341, 754 N.E.2d 1252. “By stating the findings on the

record, the reviewing court will not have to guess as to the trial court’s thought process or

impose its own. This helps the reviewing court to understand whether the trial court

made the appropriate analysis.” State v. Davis, 8th Dist. Cuyahoga Nos. 97689, 97691,

and 97692, 2012-Ohio-3951, ¶ 16 (Blackmon, J., concurring). The failure to make these

findings is contrary to law. Venes at ¶ 12.

{¶28} In this case, the court stated:
 I have reviewed the presentence report and I have read the letters. And I
was looking, quite honestly, at your history here, and in ‘98 you had a DUI,
then in 2006 you had a DUI. However, there’s another case in Lakewood
that was not DUI as such, but you were involved in outpatient treatment.
So that was as recent as three years ago. So the pattern was there. This is
just very, very telling about, I guess how some people get when they’ve
been drinking. What I’m going to do is as follows:

***

Now, oftentimes cases have great harm coming out of them. This is one of
those cases because, you know, we have two people who are dead, one
person who is severely injured. There’s another person who was injured
and released who was not mentioned in the pleadings, and there were all the
people that had to experience this when this happened. I find that this
harm is so great, or if you want to call it unusual, that no single prison term
would adequately reflect the seriousness of your conduct. Therefore, Counts
1, 3, and 5 will be run consecutive to each other. That’s 15 years. Count
number 7 will be concurrent with the other ones.

{¶29} The record, therefore, establishes that the court found that defendant’s

conduct involved great harm, because two people died; one person was the subject of the

aggravated vehicular assault; and a fourth person, who is not mentioned in the pleadings,

was also hurt. The court also stated in open court that the harm caused by two or more of

the multiple 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, and that defendant’s history of criminal conduct

demonstrates the need for consecutive sentences.

{¶30} In this case, the trial court’s record is sufficient to establish the requirements

of law, and we cannot say that the record fails to support those findings or that the

sentence is otherwise contrary to law.
 {¶31} The fifth assignment of error is without merit.

Allied Offenses

{¶32} In the sixth assignment of error, the defendant asserts that he was convicted

of allied offenses.

{¶33} Where a defendant commits the same offense against different victims

during the same course of conduct and the offense is defined in terms of conduct toward

another, then there is a dissimilar import for each person subjected to the harm or risk of

harm. State v. Phillips, 8th Dist. Cuyahoga No. 98487, 2013-Ohio-1443, ¶ 8-10; State v.

Dix, 8th Dist. Cuyahoga No. 94791, 2011-Ohio-472, ¶ 22; State v. Jordan, 8th Dist.

Cuyahoga No. 91869, 2009-Ohio-3078.

{¶34} In this matter, as explained by the prosecuting attorney, the offenses are “not

allied offenses as each count represents a single victim that occurred in this crime.” The

sixth assignment of error is therefore without merit.

Proportionality

{¶35} In the seventh assignment of error, the defendant asserts that his sentence is

disproportionate to that received by other offenders.

{¶36} R.C. 2929.11(B) states that a felony sentence must be “consistent with

sentences imposed for similar crimes committed by similar offenders.” The goal of

felony sentencing is to achieve consistency not uniformity, and there is no requirement
that codefendants receive identical sentences. See State v. Drobny, 8th Dist. Cuyahoga

No. 98404, 2013-Ohio-937, ¶ 7.

{¶37} This court has previously found that in order to support a contention that a

sentence is disproportionate to sentences imposed upon other offenders, the defendant

must raise this issue before the trial court and present some evidence, however minimal,

in order to provide a starting point for analysis and to preserve the issue for appeal. State

v. Lang, 8th Dist. Cuyahoga No. 92099, 2010-Ohio-433, discretionary appeal not

allowed, 126 Ohio St.3d 1547, 2010-Ohio-3855, 932 N.E.2d 340; State v. Cooper, 8th

Dist. Cuyahoga No. 93308, 2010-Ohio-1983; State v. Edwards, 8th Dist. Cuyahoga No.

89181, 2007-Ohio-6068. This issue was not raised below.

{¶38} Moreover, consistency in sentencing does not result from a case-by-case

comparison, but by the trial court’s proper application of the statutory sentencing

guidelines. Phillips at ¶ 15, quoting State v. Dahms, 6th Dist. Sandusky No. S-11-028,

2012-Ohio-3181, ¶ 22. See also State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228,

903 N.E.2d 676, ¶ 10 (10th Dist.).

{¶39} In this case, the trial court properly applied the statutory sentencing

guidelines, so its outcome resulted in a predictable and rational sentence, thus promoting

consistency.

{¶40} Defendant cites to State v. Moore, 8th Dist. Cuyahoga No. 85451,

2005-Ohio-4699, in support of his claim that a 15-year sentence was not proportionate to

similarly situated offenders. We find Moore to be inapposite to this matter, because the
defendant received a 20-year prison sentence for causing the death of two people, she had

no prior felony record, and had only misdemeanor traffic offenses. This court reversed

the defendant’s (pre-Foster) sentence because the trial court failed to make the

necessary findings before imposing consecutive sentences. Id. at ¶ 13. This court

further determined that the defendant’s sentence was contrary to law because it was

inconsistent with similarly situated offenders, based upon several cases cited by the

defendant where similarly situated defendants received a shorter sentence. Id. at ¶ 15.

Upon remand, however, we affirmed the trial court’s imposition of a 16-year sentence.

See State v. Moore, 8th Dist. Cuyahoga No. 89779, 2008-Ohio-2365.

{¶41} In addition, the defendant in Moore was a first offender, and in this matter,

defendant had two prior convictions for driving under the influence (a 1998 conviction

from Willoughby and a 2006 conviction from Wickliffe). The claim of

disproportionality is therefore without merit.

{¶42} The seventh assignment of error is without merit.

{¶43} Judgment affirmed.

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. A certified copy of this entry shall

constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR