[Cite as State v. King, 2014-Ohio-4189.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27069
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEFAN D. KING COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 13 01 0285
DECISION AND JOURNAL ENTRY
Dated: September 24, 2014
MOORE, Judge.
{¶1} Defendant-Appellant, Stefan D. King, appeals from the August 13, 2013
judgment entry of the Summit County Court of Common Pleas. We affirm, in part, reverse, in
part, and remand for further proceedings.
I.
{¶2} Mr. King was indicted for aggravated robbery, in violation of R.C. 2911.01(A)(1),
with a firearm specification pursuant to R.C. 2941.145, and having weapons while under
disability, in violation of R.C. 2923.13(A)(3). Originally, he pleaded not guilty to all counts and
the matter proceeded to jury trial. The jury found Mr. King guilty of having weapons while
under disability, but was unable to reach a decision on aggravated robbery with a firearm
specification. On the date of his retrial, Mr. King pleaded guilty to aggravated robbery, with an
amended firearm specification, by way of an Alford plea.
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{¶3} The trial court accepted Mr. King’s Alford plea and sentenced him to two years of
imprisonment for having weapons while under disability, to run consecutively with a mandatory
one year of imprisonment for the firearm specification, to run consecutively with three years of
imprisonment for aggravated robbery, for a total of six years of imprisonment. The State and
Mr. King jointly recommended a sentence of six years.
{¶4} Mr. King appealed, raising two assignments of error for our consideration.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
ACCEPTING AN ALFORD PLEA.
{¶5} In his first assignment of error, Mr. King contends that the trial court committed
plain error in accepting his Alford plea without first considering the State’s evidence.
Specifically, Mr. King argues that the trial court should not have relied upon the evidence it
heard during the first trial on this matter, which resulted in a hung jury on the count of
aggravated robbery with a firearm specification. Instead, Mr. King contends that the trial court
should have “inquired more of the State to determine if there was any additional or different
evidence that the State intended to present at trial to determine the likelihood of a conviction.”
{¶6} In order to establish plain error:
[f]irst, there must be an error, i.e., a deviation from the legal rule. * * * Second,
the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an
error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error
must have affected ‘substantial rights * * *’ [to the extent that it] * * * affected
the outcome of the trial.
State v. Hardges, 9th Dist. Summit No. 24175, 2008-Ohio-5567, ¶ 9, quoting State v. Barnes, 94
Ohio St.3d 21, 27 (2002). “Notice of plain error under Crim.R. 52(B) is to be taken with the
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utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶7} The United States Supreme Court validated the use of Alford pleas in North
Carolina v. Alford, 400 U.S. 25 (1970). “An Alford plea is ‘merely a species of guilty plea[,]’”
and “is predicated upon the defendant’s desire to obtain a lesser penalty rather than risk the
consequences of a jury trial.” State v. Carter, 124 Ohio App.3d 423, 429 (1997); State v. Krieg,
9th Dist. Lorain No. 04CA008442, 2004-Ohio-5174, ¶ 9. In Alford, the Supreme Court “held
that a plea of guilty may be accepted by the [trial] court despite the defendant’s protestations of
innocence.” Krieg at ¶ 8, citing State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 13. The
Alford Court found no constitutional error in accepting this type of plea if (1) the defendant
intelligently concludes that his interests require entry of a guilty plea, and (2) if the record before
the trial court contains strong evidence of guilt. See Id. at ¶ 14, quoting State v. Post, 32 Ohio
St.3d 380, 387 (1987). As such, “[a]n individual accused of a crime may voluntarily, knowingly,
and understandingly consent to the imposition of a prison sentence even if he is unwilling or
unable to admit his participation in the acts constituting the crime.” Id. at ¶ 8, quoting Alford,
400 U.S. at 37.
{¶8} Here, in accepting Mr. King’s Alford plea, the following exchange occurred with
the trial court:
THE COURT: Mr. King, we’re back in court. I’ve been told that you have made
a decision to accept the plea offer that has been described by the Prosecutor and
about which we’ve spent a considerable amount of time talking earlier.
Is that a decision that you have made?
[MR. KING]: Yes, sir.
THE COURT: What has changed between now and when we were on the record
earlier on this matter, other than your mind?
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[MR. KING]: I really just—I don’t want to risk my life anymore. I don’t want to
take the chance of losing a trial and risk getting more time than six years when I
could just take the six years.
THE COURT: Are you making a decision to plead guilty to this offense because
you committed the offense, as you understand how the law operates?
[MR. KING]: Actually, * * * I’m doing what is best for me right now.
THE COURT: So, you believe that there’s a possibility the jury would find you
guilty?
[MR. KING]: Yes. Yes, sir.
THE COURT: And whether you committed the offense or not, you’ve weighed
your options, considered the advice of your counsel, and you have come to the
conclusion that entering a plea of guilty is the best course for you?
[MR. KING]: Yes, sir.
THE COURT: But you continue to maintain that you did not commit the crime of
robbery?
[MR. KING]: Yes, sir.
THE COURT: Well, the Court could accept an Alford plea. An Alford plea
occurs where someone maintains their innocence but decides to plead guilty.
That can be done when the [c]ourt has enough facts upon which to make the
conclusion that there is a substantial basis for the finding of guilty beyond a
reasonable doubt.
Since this case was tried and the [c]ourt has received all those facts, the [c]ourt
would accept an Alford plea under these circumstances.
The [c]ourt believes that the State did submit enough evidence that could and
probably would result in a guilty verdict by a jury. So I would accept such a plea.
***
{¶9} As indicated above, the same judge who presided over the first trial also accepted
Mr. King’s Alford plea for aggravated robbery with a firearm specification. In his appellate
brief, Mr. King failed to cite any legal authority in support of his argument that the trial court
should have required the State to present additional or different evidence, other than that which
was offered during the first trial, to show Mr. King’s guilt. Further, although Mr. King’s
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assignment of error is premised upon plain error, he has failed to develop a plain error argument.
See App.R. 16(A)(7); see also State v. Benitez-Maranon, 9th Dist. Summit Nos. 26461, 26659,
2014-Ohio-3575, ¶ 7. Because Mr. King has not developed an argument to support his plain
error challenge, we decline to conduct a plain error analysis. See State v. Flowers, 9th Dist.
Lorain No. 12CA010295, 2014-Ohio-3087, ¶ 16, see also State v. Wilson, 9th Dist. Summit No.
25100, 2011-Ohio-4072, ¶ 21.
{¶10} Therefore, based upon our review of the record, we cannot say that the trial court
erred in accepting Mr. King’s Alford plea when it presided over an entire trial on the same issue,
and heard, first-hand, the State’s evidence regarding Mr. King’s involvement in the aggravated
robbery with a firearm. Logic dictates that this particular trial judge was in a very good position
to assess whether the record contained substantial or strong evidence of Mr. King’s guilt prior to
accepting his Alford plea. See Krieg, 2004-Ohio-5174, at ¶ 14. Additionally, prior to accepting
Mr. King’s Alford plea, the trial court indicated that “the State did submit enough evidence that
could and probably would result in a guilty verdict by a jury.”
{¶11} In his brief, Mr. King also suggests that, because the jury heard the same evidence
that the trial court heard, which was insufficient to find him guilty beyond a reasonable doubt of
aggravated robbery with a firearm specification during the first trial, the trial court should be
precluded from using that same evidence to accept his Alford plea. This argument must fail
because, at trial, the State must prove guilt beyond a reasonable doubt, the highest burden in our
system of criminal jurisprudence. See Jackson v. Virginia, 443 U.S. 307, 315 (1979), (“The
standard of proof beyond a reasonable doubt, said the Court, plays a vital role in the American
scheme of criminal procedure, because it operates to give concrete substance to the presumption
of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a
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criminal proceeding. At the same time by impressing upon the factfinder the need to reach a
subjective state of near certitude of the guilt of the accused, the standard symbolizes the
significance that our society attaches to the criminal sanction and thus to liberty itself.”)
(Emphasis added.) (Internal citations omitted.) Whereas, to properly accept an Alford plea, the
trial court adhered to a lesser burden of proof: that the record contain “strong evidence of guilt.”
Krieg at ¶ 14, quoting State v. Post, 32 Ohio St.3d 380, 387 (1987). See also State v. Casale, 34
Ohio App.3d 339, 340 (8th Dist.1986), (where the Court concluded that the trial court’s
acceptance of an Alford plea was improper because the record was “devoid of a basic factual
framework against which the trial court could weigh the appellant’s claims of innocence against
her willingness to waive trial.”) (Emphasis added.)
{¶12} As such, the evidence previously submitted to the jury in Mr. King’s first trial
could arguably be strong enough proof of Mr. King’s guilt for the purpose of accepting an Alford
plea, while still falling short of proof beyond a reasonable doubt.
{¶13} Accordingly, Mr. King’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
SENTENCING [MR.] KING TO CONSECUTIVE SENTENCES IN
VIOLATION OF R.C. 2929.14(C)(4).
{¶14} In his second assignment of error, Mr. King argues that the trial court erred in
ordering consecutive sentences without making the findings required by R.C. 2929.14(C)(4) at
the sentencing hearing. We agree.
{¶15} R.C. 2929.14(C)(4) states:
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 [1] the consecutive service is necessary to
protect the public from future crime or to punish the offender and [2] that
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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] 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 the offender.
{¶16} Recently, in State v. Bonnell, Slip Opinion 2014-Ohio-3177, syllabus, the
Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court is required to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.
(Emphasis added.)
{¶17} Here, at the sentencing hearing, the trial court did not find, pursuant to R.C.
2929.14(C)(4), that consecutive sentences were necessary to protect the public from future crime
or to punish Mr. King, or that consecutive sentences were not disproportionate to the seriousness
of Mr. King’s conduct and to the danger he posed to the public. Instead, the trial court voiced
the following concerns about Mr. King’s attitude and behavior:
***
I must indicate to you, Mr. King, that the conduct of yours that I heard about
during the prior trial, as argued by your attorney and acknowledged by you, that
you made your money selling drugs in this city and really did not seem to care
about the fact that that was completely illegal and destroyed people’s lives in the
process, made me feel as though you really did not care that you were breaking
the law.
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And it’s young people like that who the [c]ourt feels should serve prison
sentences in order to protect the community from the results of that kind of
conduct.
***
Further, we note that in its sentencing entry, the trial court did make the requisite R.C.
2929.14(C)(4) findings.
{¶18} However, based upon Bonnell at ¶ 29, the trial court was required to make these
findings both at the time of sentencing and in its sentencing entry:
When imposing consecutive sentences, a trial court must state the required
findings as part of the sentencing hearing, and by doing so it affords notice to the
offender and to defense counsel. And because a court speaks through its journal,
the court should also incorporate its statutory findings into the sentencing entry.
However, a word-for-word recitation of the language of the statue is not required,
and as long as the reviewing court can discern that the trial court engaged in the
correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld.
(Citations omitted.) (Emphasis added.)
{¶19} Upon our review, we conclude that, because the trial court did not make the
correct R.C. 2929.14(C)(4) findings at the time of sentencing, the imposition of consecutive
sentences, in this case, is contrary to law and the matter must be remanded for resentencing. See
Bonnell at ¶ 37.
{¶20} Accordingly, Mr. King’s second assignment of error is sustained.
III.
{¶21} In overruling Mr. King’s first assignment of error, and sustaining Mr. King’s
second assignment of error, the judgment of the Summit County Court of Common Pleas is
affirmed, in part, reversed, in part, and this matter is remanded to the trial court for further
proceedings consistent with this decision.
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Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
State v. King
Combined Opinion