State v. Vitumukiza

[Cite as State v. Vitumukiza, 2022-Ohio-1170.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110633
v. :

DAVID VITUMUKIZA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: April 7, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-651784-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Mussman, Assistant Prosecuting
Attorney, for appellee.

Patituce & Associates, LLC, and Catherine Meehan, for
appellant.

ANITA LASTER MAYS, P.J.:

Defendant-appellant, David Vitumukiza (“Vitumukiza”) appeals his

guilty plea and sentence. We affirm the trial court’s judgment and remand the case
to the trial court for the sole purpose of issuing a nunc pro tunc entry incorporating

its findings for consecutive sentences.

I. Facts and History

On July 4, 2020, a 24-count indictment was issued against

Vitumukiza, his wife, and his friend for engaging in sexual conduct with an

unconscious female victim. The graphic encounter was videorecorded,

photographed, and shared on multiple social media platforms and with coworkers

and family members who shared them with the victim.

Twenty-four-year-old Vitumukiza, who moved to the United States

after completing the sixth grade in Uganda, utilized a Swahili interpreter for the

criminal proceedings. On March 30, 2021, pursuant to a plea agreement

Vitumukiza entered a guilty plea to

Rape in violation of R.C. 2907.02(A)(1)(c), a felony of the first degree;

Gross Sexual Imposition, R.C. 2907.05(A)(5), a felony of the fourth
degree;

Pandering Obscenity, R.C. 2907.32(A)(1), a felony of the fifth degree;

Felonious Assault with a sexual motivation specification,
R.C. 2903.11(A)(1), R.C. 2941.147, a felony of the second degree;

Kidnapping, R.C. 2905.01(A)(4), a felony of the first degree; and

Tampering with Evidence, R.C. 2921.12(A)(1), a felony of the third
degree.

The plea agreement included a no-contact order and provided that the offenses

were not allied offenses of similar import that allowed the trial court to impose
consecutive sentences at its discretion. The agreement also included a Tier III sexual

offender classification and immigration notification.

On June 30, 2021, Vitumukiza was sentenced to

Rape, 10 years minimum term, 15 years maximum term;

Gross Sexual Imposition, 18 months;

Pandering Obscenity, 12 months;

Felonious Assault with a sexual motivation specification, 8 years;

Kidnapping, 8 years; and

Tampering with Evidence, 36 months.

The trial court ordered that the sentences for rape and felonious

assault run consecutive to the remaining counts that run concurrent for an aggregate

sentence of 18 years. Vitumukiza was also informed of sexual offender classification,

postrelease control, fines, and costs.

II. Assignments of Error

Vitumukiza assigns three errors:

I. The trial court failed to substantially comply with Criminal
Rule 11 by failing to advise appellant on the effect of a guilty plea
prior to accepting the plea.

II. The trial court erred in imposing consecutive sentences.

III. The trial court erred in imposing an indefinite term as the
Reagan Tokes law violates appellant’s constitutional right to Due
Process under the Fourteenth Amendment to the United States
Constitution and Article I, Section Ten of the Ohio Constitution.
III. Discussion

A. Crim.R. 11

In the first assigned error, Vitumukiza argues that the trial court

failed to substantially comply with Crim.R. 11. Thus, Vitumukiza’s plea was not

entered knowingly, intelligently, and voluntarily.

Our standard of review is de novo for compliance with the

requirements set forth in Crim.R. 11(C). State v. Roberts, 8th Dist. Cuyahoga

No. 89453, 2010-Ohio-3302, ¶ 19, citing State v. Stewart, 51 Ohio St.2d 86, 364

N.E.2d 1163 (1977). “It requires an appellate court to review the totality of the

circumstances and determine whether the plea hearing was in compliance with

Crim.R. 11(C).” Id. “[A] trial court must determine whether the defendant fully

comprehends the consequences of the [defendant’s] guilty plea” to comply with

Crim.R. 11(C)(2). State v. Gatson, 8th Dist. Cuyahoga No. 94668, 2011-Ohio-460,

¶ 5.

Thus, “‘[a]dherence to the provisions of Crim.R. 11(C)(2) requires an

oral dialogue between the trial court and the defendant that enables the court to

determine fully the defendant’s understanding of the consequences of his plea.’” Id.,

quoting State v. Caudill, 48 Ohio St.2d 342, 358 N.E.2d 601 (1976), paragraph two

of the syllabus.

A challenge based on constitutional rights requires that the trial court

demonstrate strict compliance with Crim.R. 11. Nonconstitutional issues require

that the trial court substantially complied with the rule. State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990), citing Stewart. “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. at 108.

Also,

[i]n addition to showing noncompliance, “a defendant must show
prejudice before a plea will be vacated for a trial court’s error involving
Crim.R. 11(C) procedure when nonconstitutional aspects of the plea
colloquy are at issue.” State v. Owens, 8th Dist. Cuyahoga Nos. 100398
and 100399, 2014-Ohio-2275, ¶ 12, citing State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.

State v. Moore, 8th Dist. Cuyahoga No. 105240, 2017-Ohio-8483, ¶ 17. “To establish

prejudice, a defendant must show that, had the trial court substantially complied

with Crim.R. 11(C)’s requirements, he would not have entered into the plea.” Id. at

¶ 17, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,

¶ 32, citing Nero.

Specifically, Vitumukiza argues that the trial court failed to explain

the effect of entering a guilty plea. Vitumukiza offers that the language difference

posed an impediment to comprehension and that he has had no experience with the

criminal justice system. Vitumukiza also argues that the presentence-investigation

report substantiates his argument because he denied raping the victim.1 Thus,

1 According to the record, Vitumukiza stated that he did not have sex with the
victim. Rape under R.C. 2907.02(A)(1)(c) involves sexual conduct with an individual who
is substantially impaired and unable to resist. Sexual conduct “means vaginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion, however slight, of any part
of the body or any instrument, apparatus, or other object into the vaginal or anal opening
of another. Penetration, however slight, is sufficient to complete vaginal or anal
intercourse.” R.C. 2907.01(A).
Vitumukiza asserts that he suffered prejudice when he received 10-to-15-year

sentence for rape.

Vitumukiza’s counsel stated on the record that the case had been fully

pre-tried and discovery conducted. Also, “I have discussed with him all of the

potential penalties of the cases that he has. I have advised him of the registration

requirements, and the possibilities of the immigration issues with deportation.”

(Tr. 9-10.)

Vitumukiza responded “yes”, he understood the deportation and
naturalization impact. (Tr. 14.) Though the interpreter responded on
Vitumukiza’s behalf to most questions, when the trial court asked
whether he was on probation, parole, or post-release control? It
appears from the record that Vitumukiza responded directly, “What’s
probation? I don’t understand probation. I don’t. I’m good.”

(Tr. 14.)

The trial court also explained:

Court: Okay. You have the following rights which you are giving up.

You have the right to a jury trial. At your jury trial, you have
the right to confront and cross-examine the State’s witnesses
against you. And you do that through your lawyer.

You have the right to use this Court’s compulsory process
power to bring into court your own witnesses and have them
testify on your behalf.

You do not have to take the witness stand at your trial. If you
exercise your right to remain silent, it cannot be used against
you.

And lastly, the State has the burden of proof at trial. The State
must prove the charges against you to the legal standard of
beyond a reasonable doubt.
 Do you understand those rights?

Vitumukiza (Interpreter): Yes.

Tr. 15-16. Vitumukiza also stated he understood that none of the offenses were

allied offenses pursuant to the plea agreement.

Pertinent to the rape charge:

Court: Okay. Count 1 is a count of rape. It’s a first-degree felony. First
degree felonies are punishable by a prison term between three
and eleven years, and fines of up to $20,000.

Do you understand those penalties?

Vitumukiza (Interpreter): Yes.

(Tr. 16.)

Next the court explained the Reagan Tokes Law impact:

Court: Okay. To further complicate things, the Court will pick one
of these counts, either rape or kidnapping, and there will be
a minimum and a maximum term that will apply.

The minimum term will be the three to eleven year range, and
the maximum term will be 150 percent of the minimum term.
The Ohio Department of Rehabilitation and Corrections will
determine whether to impose the maximum term based upon
your behavior while in prison.

For example, if I impose the minimum term of ten years, the
maximum term will be fifteen years. Do you understand that?

Vitumukiza (Interpreter): So, if you say ten years it will be fifteen
years?

Court: Maybe. The decision to go above the maximum term is
entirely up to the Ohio Department of Rehabilitation and
Corrections and will be based upon your behavior while
incarcerated.
 It is also possible that they will reduce your sentence by up to
fifteen percent if you have good behavior. Do you understand
that?

Vitumukiza (Interpreter): Yes.

(Tr. 19-20.)

After advising Vitumukiza of postrelease control and the Tier III

sexual offender classification reporting requirements,2 the trial court inquired,

“Lastly, do you understand that the Court is not promising you any particular

sentence in exchange for your entering into this plea agreement. Do you understand

that.” Vitumukiza responded affirmatively. (Tr. 22.)

To the question of how Vitumukiza wished to plead to the rape count,

Vitumukiza responded through the interpreter, “Yes, I’m guilty.” (Tr. 23.) Defense

counsel stated the defense was satisfied that the trial court complied with Crim.R. 11.

Based on our review of the entire record, we do not find that

Vitumukiza’s plea was not knowingly, intelligently, and voluntarily made. The

record does not support that Vitumukiza did not understand the effect of his guilty

plea. Vitumukiza’s counsel testified that the terms of the plea agreement were fully

explained to Vitumukiza and confirmed on the record that the trial court fully

complied with Crim.R. 11.

The first assignment of error is overruled.

2 Vitumukiza asked the trial court for clarification regarding the sex offender
reporting requirement every 90 days for the rest of his life. At the conclusion of the
exchange, Vitumukiza indicated that he understood.
 B. Consecutive Sentences

“An appellate court must conduct a meaningful review of the trial

court’s sentencing decision.” State v. McHugh, 8th Dist. Cuyahoga No. 108372,

2020-Ohio-1024, ¶ 11.

R.C. 2953.08(G)(2) provides that appellate courts “may increase,
reduce, or otherwise modify a sentence * * * or may vacate the sentence
and remand the matter to the sentencing court for resentencing” if the
reviewing court “clearly and convincingly” finds that (a) “the record
does not support the sentencing court’s findings under [R.C.
2929.14(C)(4)],” or that (b) “the sentence is otherwise contrary to law.”

State v. Williams, 8th Dist. Cuyahoga No. 108904, 2020-Ohio-1622, ¶ 17.

Vitumukiza argues that his sentence is contrary to law due to the

trial court’s failure to make the necessary findings under R.C. 2929.14.

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 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 the offender.

R.C. 2929.14(C)(4).

“‘In Ohio, sentences are presumed to run concurrent to one another

unless the trial court makes the required findings under R.C. 2929.14(C)(4).’”

Williams at ¶ 39, quoting State v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-

Ohio-4070, ¶ 28. “The failure to make the above findings renders the imposition of

consecutive sentences contrary to law.” Id. at ¶ 40, citing Gohagan at ¶ 29.

R.C. 2929.14(C)(4). However, the trial court does not need to state the statutory

requirements verbatim. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, at ¶ 29. “[A]s 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.” Id.

Vitumukiza offers that the trial court failed to make all of the

requisite findings. A review of the record shows the victim testified to the effect the

incident has had on her life and her family’s lives and that Vitumukiza and his

codefendants offered to pay the victim and family to avoid the court proceedings and

also threatened them. The victim stated she moved away from family, friends, and

her therapist due to fear. Vitumukiza chose not to address the trial court at

sentencing. The trial court construed the refusal as a lack of apology.

The trial court also stated for the record the description of the video

contents contained in the presentence report that included Vitumukiza’s hand
touching the victim’s vagina. Vitumukiza said he disposed of the mattress where the

encounter took place three days after the incident.

The trial court was incensed:

This is about as ugly a case that I could remember handling in the 23
years in this seat. You took advantage of a defenseless neighbor. She
was drugged to the point of unconsciousness.

And then you, your wife, and your friend raped her. But you didn’t stop
there. The three of you disseminated her photos to her mother, to her
employer, and to everyone else with access to social media.

Not only is this despicable, once you filmed it and disseminated it, but
it’s just incredibly stupid. Congratulations on convicting yourself of
this crime.

(Tr. 39-40.)

The trial court continued:

I find consecutive sentences are necessary to punish this type of
behavior, and are not disproportionate to the harm and damage and
horror inflicted upon this poor woman. This harm was so great or
unusual that a single term does not adequately reflect the seriousness
of your conduct.

Involving your wife of a rape of a downstairs neighbor, using drugs to
incapacitate her, filming it and sending it, disseminating it across the
Internet, and aiming it particularly to those closer to her family and
work associates is despicable behavior where a ten- or eleven-year term
would not adequately address.

(Tr. 40-41.)

We recognize that the parties expressly agreed there would be no

merger of allied offenses and that the imposition of consecutive sentences was

within the trial court’s discretion. However, that agreement does not waive the

necessity of statutory compliance.
 A trial court is not required “to give a talismanic incantation of words

of the statute, provided that the necessary findings can be found in the record and

are incorporated into the sentencing entry.” Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, at ¶ 37. We find that the record clearly and convincingly contains

evidence sufficient to support the trial court’s consecutive sentence findings.

Bonnell at ¶ 29.

Vitumukiza argues and the state concedes that the trial court failed to

incorporate the R.C. 2929.14(C)(4) findings into the sentencing entry. Therefore,

we remand the matter for the sole purpose of the trial court issuing a nunc pro tunc

entry incorporating its findings for consecutive sentences. Bonnell at ¶ 30, citing

State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15.

The second assignment of error is overruled.

C. Reagan Tokes Law

Vitumukiza’s final argument is that the imposition of the sentence

under the Reagan Tokes Law violates the constitutional right to due process under

the Fourteenth Amendment to the United States Constitution and Article I, Section

Ten of the Ohio Constitution.

Since the filing of the state’s appeal, this court has issued the en banc

decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470.

Based on the authority established by the en banc holding, the challenges advanced

by the state in support of the constitutional validity of the Reagan Tokes Law have

been sustained. See id. at ¶ 17-54.
IV. Conclusion

The trial court’s judgment is affirmed. The case is remanded for the

sole purpose of issuing a nunc pro tunc entry incorporating its findings for

consecutive sentences.

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.

_________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
EMANUELLA D. GROVES, J., CONCUR

N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga
No. 109315, 2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in
part).

Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes
(dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in
part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.