State v. Minite

[Cite as State v. Minite, 2011-Ohio-3585.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 95699

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

JOSEPH MINITE
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-531532 and CR-531739

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

RELEASED AND JOURNALIZED: July 21, 2011
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: John P. Colan
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ALSO LISTED

Joseph Minite
Inmate No. 581-245
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Joseph Minite, appeals the trial court’s judgment

sentencing him to a four-year prison term following his guilty plea to five counts of

receiving stolen property and one count of theft. For the reasons set forth below, we

affirm in part, reverse in part, and remand the case to the trial court for the limited

purpose of properly imposing postrelease control pursuant to R.C. 2929.191.
 {¶ 2} In December 2009, the Cuyahoga County Grand Jury charged appellant in

two separate indictments for various offenses occurring in the parking lots of the

Cleveland Metroparks Zoo and Bally’s Total Fitness. In both instances, appellant was

arrested after witnesses observed him suspiciously peering into parked cars. When

appellant was searched, the police found several stolen credit cards on his person. After

an investigation, the detectives were able to obtain video surveillance of appellant using

the stolen credit cards at various gas stations, department stores, and ATMs.

{¶ 3} In Case No. CR-531532, appellant was charged with five counts of

receiving stolen property and two counts of forging identification cards. In Case No.

CR-531739, he was charged with two counts of theft, one count of breaking and entering,

one count of criminal damaging, and one count of misuse of credit cards. All offenses

were fifth-degree felonies.

{¶ 4} On January 19, 2010 appellant entered into a plea agreement with the state.

Pursuant to the plea agreement, appellant pled guilty to five counts of receiving stolen

property in Case No. CR-531532 and to one count of theft in Case No. CR-531739. The

remaining counts were dismissed. At appellant’s sentencing hearing, the trial court

sentenced him to eight months on each of the six counts, and ordered them to be served

consecutively, for an aggregate four-year term of imprisonment. The only advisement

regarding postrelease control was the trial court’s statement at the end of the proceeding,

“you’ve got three years postrelease control when you come out.” However, appellant’s

sentencing journal entry stated, in pertinent part:
 {¶ 5} “Postrelease control is part of this prison sentence for up to 3 years for the

above felonies under R.C. 2967.28. Defendant advised that if postrelease control

supervision is imposed following his release from prison and if he violates that

supervision or condition of postrelease control under R.C. 2967.131(B), parole board may

impose a prison term as part of the sentence of up to one-half of the stated prison term

originally imposed upon the offender.”

{¶ 6} Appellant filed this timely appeal, raising two assignments of error through

counsel and three supplemental assignments of error pro se.

Law and Analysis

I

{¶ 7} Through counsel, appellant raises two assignments of error for review:

{¶ 8} I. “The trial court erred in improperly imposing postrelease controls, thus

resulting in a void sentence.”

{¶ 9} II. “The trial court erred in sentencing appellant to consecutive terms of

imprisonment without making the findings required under R.C. 2929.14(E)(4).”

Postrelease Control

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

improperly imposing postrelease controls, rendering his entire sentence void. Appellant

acknowledges that the sentencing entry correctly states the applicable term of postrelease

control. However, he argues that under Ohio law, where the trial court fails to properly
impose postrelease control at sentencing, the remedy is to remand the case to the trial

court for a sentencing hearing pursuant to R.C. 2929.191.

{¶ 11} If a court imposes a prison sentence that includes a term of postrelease

control, the court must notify the offender, both at the sentencing hearing and in its

journal entry, that the parole board could impose a prison term if the offender violates the

terms and conditions of postrelease control. R.C. 2929.191(B)(1).

{¶ 12} Upon our review of the record, we find that the trial court failed to notify

appellant at sentencing that if he violates a condition of postrelease control, the parole

board could impose a prison term as part of the sentence of up to one-half of the stated

prison term originally imposed upon the appellant. R.C. 2929.19(B)(3); State v.

Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶2.

{¶ 13} The General Assembly enacted R.C. 2929.191 in order to establish a

procedure to remedy a sentence that fails to properly impose a term of postrelease control.

The Ohio Supreme Court recently held that, “[f]or criminal sentences imposed on or after

July 11, 2006, in which a trial court failed to properly impose postrelease control, trial

courts shall apply the procedures set forth in R.C. 2929.191.” State v. Singleton, 124

Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus.

{¶ 14} The Singleton court stated: “Effective July 11, 2006, R.C. 2929.191

establishes a procedure to remedy a sentence that fails to properly impose a term of

postrelease control. It applies to offenders who have not yet been released from prison

and who fall into at least one of three categories: [1] those who did not receive notice at
the sentencing hearing that they would be subject to postrelease control, [2] those who did

not receive notice that the parole board could impose a prison term for a violation of

postrelease control, or [3] those who did not have both of these statutorily mandated

notices incorporated into their sentencing entries. R.C. 2929.191(A) and (B). For those

offenders, R.C. 2929.191 provides that trial courts may, after conducting a hearing with

notice to the offender, the prosecuting attorney, and the Department of Rehabilitation and

Correction, correct an original judgment of conviction by placing on the journal of the

court a nunc pro tunc entry that includes a statement that the offender will be supervised

under R.C. 2967.28 after the offender leaves prison and that the parole board may impose

a prison term of up to one-half of the stated prison term originally imposed if the offender

violates postrelease control.” (Emphasis added.) Id. at ¶23.

{¶ 15} The state contends that this is harmless error, arguing that appellant is not

prejudiced by the trial court’s error at sentencing because the trial court corrected its error

in the sentencing entry. We find this contention to be without merit.

{¶ 16} Appellant is entitled to a hearing where postrelease control can be properly

imposed. See Singleton; State v. Kelley, Cuyahoga App. Nos. 94487 and 94488,

2011-Ohio-88; State v. Nicholson, Cuyahoga App. No. 95327, 2011-Ohio-14. The trial

court had an affirmative obligation under R.C. 2929.19(B)(3)(e) to inform appellant that

he could face up to one-half of his originally stated prison term for violating his

postrelease control. The trial court’s failure to provide the required notice under R.C.
2929.19(B)(3)(e) cannot be corrected by the trial court’s inclusion of the language in its

sentencing journal entry.

{¶ 17} Appellant is entitled to notice that he is subject to a discretionary three-year

period of postrelease control and the consequences associated with any subsequent

violation of its terms. Accordingly, we reverse appellant’s sentence and remand to the

trial court for the limited purpose of the proper imposition of postrelease control pursuant

to R.C. 2929.191.

Consecutive Sentences

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

by imposing consecutive sentences without making the findings required by R.C.

2929.14(E)(4) and asserts that the holding in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, is no longer valid in light of Oregon v. Ice (2009), 555

U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517.

{¶ 19} The Ohio Supreme Court recently rejected this argument in State v. Hodge,

128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. The Court concluded that Ice did

not require it to depart from its holding in Foster “[b]ecause there is no constitutional

requirement that a judge make findings of fact before imposing consecutive sentences,”

and requiring resentencing to include findings of fact would “disrupt reasonable and

settled expectations of finality” and impose an “undue burden on our judicial system.”

Hodge at ¶30-32.

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

{¶ 21} Appellant raises three supplemental assignments of error pro se:

{¶ 22} I. “Defendant-Appellant was denied of his due process and fundamental

fairness when the trial judge exhibited deep-seated bias in violation of appellant’s right to

impartial tribunal under the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and Ohio Constitution.”

{¶ 23} II. “Defendant-Appellant’s right to due process was violated where the

indictments in case No. CR-531532 and CR-531739 are products of bootstrapping in

violation of the Fifth, and Fourteenth Amendments to the United States Constitution, and

Article 1 Section 16 of the Ohio Constitution.”

{¶ 24} III. “Appellant’s trial counsel’s performance fell below reasonable

professional assistance in violation of the Sixth and Fourteenth Amendments to the

United States Constitution.”

Judicial Bias

{¶ 25} In his first supplemental assignment of error, appellant argues that he was

denied due process of law and fundamental fairness when the trial judge exhibited a

deep-seated bias against him during the sentencing hearing. Appellant specifically

claims that this bias resulted in the trial court’s refusal to place him in a rehabilitation

program. Appellant submits that he is entitled to a discharge of his guilty plea based on

the trial judge’s personal bias.
 {¶ 26} This court lacks jurisdiction to consider appellant’s first supplemental

assignment of error. “The Chief Justice of the Ohio Supreme Court, or his designee, has

exclusive jurisdiction to determine a claim that a common pleas judge is biased or

prejudiced.” Section 5(C), Article IV, Ohio Constitution.

{¶ 27} R.C. 2701.03 provides the exclusive means by which a litigant may claim

that a common pleas court judge is biased and prejudiced. State ex rel. Pratt v.

Weygandt (1956), 164 Ohio St. 463, 132 N.E.2d 191, paragraph three of the syllabus;

Jones v. Billingham (1995), 105 Ohio App.3d 8, 663 N.E.2d 657. A litigant who

believes that the trial judge should be disqualified must file an affidavit of bias or

prejudice with the clerk of the supreme court pursuant to R.C. 2701.03. Id.

{¶ 28} Since only the Chief Justice or her designee may hear a disqualification

matter, a court of appeals is without authority to void the judgment of the trial court

because of bias or prejudice of the judge. Beer v. Griffith (1978), 54 Ohio St.2d 440,

441-442, 377 N.E.2d 775. See, also, State v. Bacon, Cuyahoga App. No. 85475,

2005-Ohio-6238, ¶66.

{¶ 29} If appellant believed that the trial judge should be removed from his case

due to bias or prejudice against him, his exclusive remedy was to file an affidavit of

disqualification pursuant to R.C. 2701.03. Since appellant failed to comply with the

procedures set forth in R.C. 2701.03, this court lacks jurisdiction to decide the merits of

his first supplemental assignment of error.

{¶ 30} Appellant’s first supplemental assignment of error is overruled.
 Indictment

{¶ 31} In his second supplemental assignment of error, appellant argues that the

charges filed against him did not constitute felony offenses and violated the double

jeopardy clause of the Fifth Amendment of the United States Constitution. Appellant

submits that, based on the defective and unconstitutional nature of the indictment, his

charges must be dismissed in the interest of justice. Despite appellant’s contentions, the

indictments and the information presented to the grand jury constituted felony offenses

under the statutory scheme.

{¶ 32} In the instant matter, appellant was arrested after the police received

numerous complaints from witnesses that he was peering into cars parked in the parking

lots at the Cleveland Metroparks Zoo and Bally’s Total Fitness. Upon his arrest, the

police discovered several stolen credit cards on appellant’s person that he had previously

stolen from the cars parked at the zoo and fitness center. Further, detectives obtained

video surveillance from surrounding businesses and ATMs that showed appellant using

the stolen credit cards. Based on the facts and circumstances surrounding appellant’s

arrest, he was indicted on various offenses, including theft in violation of R.C. 2913.02

and receiving stolen property in violation of R.C. 2913.51.

{¶ 33} R.C. 2913.71, entitled “Degree of Offense When Certain Property

Involved,” provides that “[r]egardless of the value of the property involved and regardless

of whether the offender previously has been convicted of a theft offense, a violation of

section 2913.02 or 2913.51 of the Revised Code is a felony of the fifth degree if the
property involved is * * * a credit card.” Therefore, appellant’s indictment correctly

indicated that the charges presented to the grand jury constituted felony offenses because

they involved the use of stolen credit cards.

{¶ 34} Appellant also argues that the indictment violated the double jeopardy

clause of the Fifth Amendment based on the inclusion of duplicate charges arising out of

the same set of circumstances. The guarantees against double jeopardy secured by the

Fifth Amendment to the United States Constitution and by Section 10, Article I, of the

Ohio Constitution protect criminal defendants from being placed in jeopardy twice for the

same offense, but not necessarily the same conduct. State v. White, Cuyahoga App. No.

92972, 2010-Ohio-2342.

{¶ 35} Here, appellant was indicted on various charges arising out of the same set

of circumstances because his conduct constituted numerous offenses and injured

numerous victims. The charges included in appellant’s indictment were not merely

duplicates of the same criminal offense, and therefore did not violate his Fifth

Amendment rights. Further, the indictments sufficiently informed appellant of the nature

of the criminal accusations and provided him with the information necessary to prepare

his defense.

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

Ineffective Assistance of Counsel

{¶ 37} In his third supplemental assignment of error, appellant argues that he was

denied the effective assistance of counsel based on his trial counsel’s failure to
investigate the claims and charges brought against him. Appellant contends that his trial

counsel improperly advised him to enter a plea agreement without adequately

investigating and challenging the state’s defective indictments. Appellant submits that

his denial of effective assistance of counsel renders his guilty plea involuntary and

invalid.

{¶ 38} It is well established that a guilty plea waives the defendant’s right to claim

he was prejudiced by the ineffective assistance of counsel, except to the extent that the

defects complained of caused the plea to be less than knowing and voluntary. State v.

King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 399, ¶47. Thus, to prove a

claim of ineffective assistance of counsel with a guilty plea, appellant must demonstrate

that there is a reasonable probability that, but for counsel’s errors, he would not have pled

guilty and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52,

106 S.Ct. 366, 88 L.Ed.2d 203.

{¶ 39} A review of the record does not support appellant’s contentions. As

discussed, appellant’s indictments were not defective, and his trial counsel did not err in

advising him to enter a guilty plea in compliance with the state’s proposed plea

agreement. Pursuant to the plea agreement, appellant pled guilty to only five of the 12

counts he was charged with and received a sentence that was below the maximum penalty

permitted by statute. Appellant provides no specific examples of his trial counsel’s

deficient performance and has failed to demonstrate that, but for counsel’s errors, he

would not have pled guilty.
 {¶ 40} Appellant’s third supplemental assignment of error is overruled.

Judgment affirmed in part, reversed in part, and remanded to the lower court for

further proceedings consistent with this opinion.

It is ordered that appellant and appellee share 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. 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., JUDGE

PATRICIA ANN BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR