State v. Coleman

[Cite as State v. Coleman, 2022-Ohio-4013.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 111332
v. :

BRIAN COLEMAN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-660631-A, CR-21-661531-A, CR-21-661538-A, CR-21-661539-A,
and CR-21-661739-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah J. Denney, Assistant Prosecuting
Attorney, for appellee.

Mary Catherine Corrigan, for appellant.

SEAN C. GALLAGHER, A.J.:

Brian Coleman appeals multiple convictions arising from a series of

unrelated felonies occurring over several months while Coleman was already serving

community-control sanctions in two earlier felony cases. Coleman’s conduct led to
five separate indictments including a total of 31 counts along with multiple

specifications attendant to those underlying counts. The maximum aggregate

potential sentence of imprisonment for all five cases ranged to over 125 years.

Accepting the terms of a negotiated plea deal between Coleman and the state, the

trial court imposed a 14-year aggregate term of imprisonment resolving all five

cases. For the following reasons, we affirm.

In the first case under review, Coleman burgled his former, live-in

girlfriend’s apartment and attacked her in the process. Coleman scaled a ladder to

access the second-story apartment, used a firearm to shoot through the bedroom

door, and then dragged the victim outside into the alley before she was able to

escape. In the second case, Coleman attacked another victim with a firearm and

stole her vehicle, a necklace, a cellphone, and a bank card. The victim identified

Coleman from a lineup. In the third case, Coleman stole a motor vehicle from a

family friend, totaled the vehicle, and then set it ablaze. The fourth case involved

police officers attempting to stop a suspected stolen vehicle that Coleman was

driving and that was procured through an aggravated robbery. Coleman fled after

striking an unmarked vehicle occupied by two police officers. A short pursuit was

called off, but officers found the vehicle after Coleman had driven it into a utility

pole. Police stopped two suspects fleeing the scene who admitted to being in the car

and identified Coleman as the driver. And finally, in the fifth case, officers attempted

to execute an arrest warrant on Coleman, who fled into a neighboring apartment
and briefly held those occupants hostage. Coleman fled to the basement where a

K-9 unit found him hiding under a stack of clothing.

Coleman and the state entered into a negotiated plea agreement,

limiting his aggregate sentencing exposure for all five cases to a 9- to 15-year term

of imprisonment in exchange for the state dismissing numerous counts. After

pleading guilty, Coleman became unsatisfied with his counsel of record. He filed a

motion to withdraw the guilty plea, but after new counsel entered an appearance on

his behalf, Coleman agreed to voluntarily withdraw that motion and to adhere to the

terms of the plea agreement. The sentencing proceeded with the trial court

imposing an aggregate sentence within the jointly recommended sentencing range:

a 14-year aggregate term of imprisonment to resolve all five cases. This appeal

followed.

In the first and third assignments of error, Coleman claims that his

guilty pleas were not knowingly, voluntarily, and intelligently entered because either

the trial court improperly coerced him into accepting the negotiated plea agreement

by candidly disclosing the maximum potential term of imprisonment Coleman faced

should he be convicted at trial of all counts, or the trial court failed to adequately

notify Coleman of the maximum term of imprisonment he faced in one case. Neither

claim has merit.

“A defendant's guilty plea ‘is constitutionally valid only if it is entered

knowingly, voluntarily, and intelligently.’” State v. Jacobs, 1st Dist. Hamilton No.

C-190154, 2020-Ohio-895, ¶ 2, quoting State v. Foster, 2018-Ohio-4006, 121
N.E.3d 76, ¶ 13 (1st Dist.), and State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d

450 (1996). “A plea without those hallmarks is constitutionally unenforceable under

both the United States Constitution and the Ohio Constitution.” Id., citing Engle at

id. A guilty plea is considered knowingly, voluntarily, and intelligently entered when

a trial court complies with the requirements of Crim.R. 11. Id. at ¶ 3. However, some

courts have noted that other factors must be considered under a totality of the

circumstances.

For example, offenders are permitted to challenge the trial court’s

purported involvement in the plea process without respect to the requirements of

Crim.R. 11. Id. at ¶ 4; see also State v. Heard, 2017-Ohio-8310, 87 N.E.3d 245, ¶ 16

(8th Dist.). A trial court’s participation in the plea-bargaining process is not

prohibited under Crim.R. 11 per se, but there are limitations. State v. White, 2017-

Ohio-287, 81 N.E.3d 958, ¶ 6 (8th Dist.). “[T]he Ohio Supreme Court has cautioned

that ‘the judge’s position in the criminal justice system presents a great potential for

coerced guilty pleas and can easily compromise the impartial position a trial judge

should assume.’” Id., quoting State v. Byrd, 63 Ohio St.2d 288, 292, 407 N.E.2d

1384 (1980). The “ultimate inquiry” with respect to judicial coercion is whether the

trial court’s conduct could have led the defendant to believe he could not get a fair

trial, or sentence after trial, and whether the judicial participation undermined the

voluntariness of the plea. Heard at ¶ 18, citing State v. Sawyer, 183 Ohio App.3d

65, 2009-Ohio-3097, 915 N.E.2d 715, ¶ 54 (1st Dist.).
 In memorializing the final plea deal negotiated by the state and

Coleman’s attorney of record, the trial court noted the potential for a term of

imprisonment to exceed 100 years should Coleman be found guilty of each and every

count and attendant specification at trial. It was during that time that the court

referred to that potential, a de facto life sentence, as a “boatload of time.” Coleman

claims that the trial court’s candid description of the potential maximum aggregate

sentence amounted to improper coercion into the guilty plea that included a jointly

recommended sentencing range of 9-15 years to resolve all five cases. Thus,

Coleman rests his entire appellate argument on the trial court’s frank assessment

articulating the gravity of the situation Coleman faced by rejecting his negotiated

plea deal. On this point, Coleman solely relies on the panel decision in Heard.

As other panels from this court have recognized, Heard involved a

unique, but narrow fact pattern. In Heard, the trial court

created and presented the plea offer; the prosecutor had no input
regarding the plea. The judge’s comments clearly indicated he had
determined Heard’s guilt before any evidence was presented. The
judge made reference to the potential sentencing not in terms of
possible minimum and maximum sentences if the case proceeded to
trial but based upon the sentence the judge would impose because he
had already determined what Heard deserved. The judge also failed to
provide Heard with sufficient time to consider the offered plea. This
court found the judge’s participation in the plea process could have led
Heard to believe he could not get a fair trial or fair sentence after trial.

State v. Jones, 8th Dist. Cuyahoga No. 107561, 2019-Ohio-2571, ¶ 18. Ultimately,

the Jones panel concluded that Heard does not apply in cases in which “the plea

offer was created and presented by the prosecutor; the judge identified the potential
minimum and maximum sentencing”; and a defendant has notice and a prior

opportunity to consider the offer. Id.

There is little similarity between the factual background of Heard,

2017-Ohio-8310, 87 N.E.3d 245, and this case. Coleman’s situation is more akin to

the situation presented in Jones in which the panel rejected the coercion argument.

Coleman does not dispute the fact that his defense counsel negotiated the plea offer

directly with the prosecutor or that the state communicated that offer to the court

on the record. The trial court did not present its own plea offer for Coleman’s

consideration, and like in Jones, Coleman had time to consider the negotiated plea

deal before trial.

Moreover, the trial court conducted a hearing to place Coleman’s

anticipated rejection of the offer on the record and memorialized the culmination of

the state and Coleman’s negotiations. It was in this context that the trial court

simply identified what all parties should have objectively understood: that the

jointly recommended sentencing range presented a favorable opportunity to avoid

facing the possibility of a de facto life sentence from the maximum potential term.

A trial court’s candid description of that potential penalty does not amount to

impermissible coercion, especially when the defendant and the state actively

negotiated the proposed plea deal. See, e.g., State v. Lane, 10th Dist. Franklin Nos.

18AP-88, 18AP-89, 18AP-90, and 18AP-91, 2018-Ohio-5250, ¶ 11 (trial court’s

description of the potential maximum term as being “substantially greater” than the
jointly recommended sentence did not amount to undue coercion). Coleman’s

limited argument as presented in the first assignment of error is overruled.

Coleman’s second argument with respect to the knowing, voluntary,

and intelligent nature of his guilty plea rests with his claim that the trial court

advised Coleman that the first-degree felonious assault in Cuyahoga C.P.

No. CR-21-661531, to which Coleman pleaded guilty, was subject to the second-

degree felony sentencing range, but in actuality, Coleman had agreed to plead guilty

to a first-degree felonious assault. At the change-of-plea colloquy, the trial court

notified Coleman that the offense carried a maximum penalty of eight years in

prison consistent with the belief that Coleman pleaded guilty to a second-degree

felony offense. The trial court imposed a five-year term of imprisonment in that

case, to be served concurrent with all other sentences imposed.

It is not clear from what error Coleman is seeking relief. According to

the sentencing entry for CR-21-661531, Coleman pleaded guilty to and was

sentenced for a violation of R.C. 2903.11(A)(2) as a second-degree felony offense.

Coleman concedes that the trial court advised him of the potential eight-year term

under R.C. 2929.14(A)(2) corresponding to that degree level of the offense.

Even if Coleman should have been convicted of a first-degree offense

according to the plea deal, Ohio’s black letter law stands in direct contrast to

Coleman’s argument. Pursuant to Crim.R. 11(C)(2)(a), before accepting a plea of

guilty in a felony case, the trial court must address the defendant personally and

determine “that the defendant is making the plea voluntarily, with understanding of
the nature of the charges and of the maximum penalty involved * * *.” Crim.R.

11(C)(2)(a) and (b) identify the nonconstitutional rights that must be addressed

before accepting a plea of guilty. Appellate review is based on whether the trial court

substantially complied with Crim.R. 11(C)(2)(a) and (b) when advising the

defendant of those rights. “A plea is in substantial compliance with Crim.R. 11 when

it can be inferred from the totality of the circumstances that the defendant

understands the charges against him.” State v. Walker, 8th Dist. Cuyahoga No.

65794, 1994 Ohio App. LEXIS 4450, 4 (Sept. 29, 1994). Most important as it

pertains to appealing the advisement of nonconstitutional rights, a defendant must

show a prejudicial effect; in other words, the “test is whether the plea would

otherwise have been made.” State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d

1163 (1977); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,

¶ 32; State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 56.

Coleman altogether failed to address the prejudice prong of this analysis.

App.R. 16(A)(7).

Nevertheless, although the trial court misadvised Coleman of the

maximum penalty related to that particular case by stating the felonious assault at

issue was subject to the sentencing range of a felony of the second degree, and not

one of the first degree as the plea offer anticipated (and the trial court explained

during the memorialization of the plea agreement between Coleman and the state),

the term of imprisonment actually imposed was still within the sentencing range
that the trial court inadvertently advised Coleman of during the plea colloquy and

within the degree level of the offense as actually imposed.

The trial court notified Coleman the maximum sentence would be

eight years but only imposed a five-year term of imprisonment for the first-degree

felony offense. Thus, nothing in this record demonstrates that Coleman would have

not pleaded guilty had he been apprised of the longer potential term or the more

severe offense during the plea colloquy. The sentence imposed was within the range

of potential penalties discussed in the advisement, and therefore, Coleman was not

prejudiced by the alleged mistake, although he did profit from it by receiving a

conviction for a less severe offense than to that which he had agreed. See State v.

Malenda, 8th Dist. Cuyahoga Nos. 104736 and 104829, 2017-Ohio-5574, ¶ 6 (the

incorrect advisement of the maximum term of imprisonment was not prejudicial

because the final sentence was still shorter than the erroneously provided

description at the change-of-plea colloquy); State v. Davis, 8th Dist. Cuyahoga No.

101338, 2015-Ohio-178, ¶ 11; State v. Haislip, 12th Dist. Clinton Nos. CA2021-06-

017, and CA2021-06-018, 2021-Ohio-4543, ¶ 14. The third assignment of error is

overruled.

In the second assignment of error, and the final argument advanced

in this appeal, Coleman claims that the trial court erred by imposing consecutive

sentences without engaging in the required analysis under R.C. 2929.14(C)(4) or by

failing to incorporate those findings into the final entry of conviction. The trial court

imposed a jointly recommended sentence as a product of Coleman and the state’s
plea negotiations that reduced Coleman’s overall sentencing exposure from over 100

years to the definite 9- to 15-year agreed sentencing range to resolve all five cases.

Tr. 7:8-12. Despite the fact that both parties recognized the jointly recommended

nature of the imposed sentence, neither has addressed R.C. 2953.08(D)(1), which

governs appellate review of felony sentences.

A defendant’s right to appeal a sentence is solely derived from R.C.

2953.08. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,

¶ 10. R.C. 2953.08(D)(1) is “a statutory limit on a court of appeals’ jurisdiction to

hear an appeal.” State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d

1095, ¶ 22; State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169,

¶ 9, fn. 1. Under R.C. 2953.08(D)(1), a “sentence imposed upon a defendant is not

subject to review under this section if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution in the case, and is

imposed by a sentencing judge.” Further, “‘[t]hat appellant agreed to a sentencing

range or sentencing cap, as opposed to a specific sentence, is immaterial.’” State v.

Andrews, 8th Dist. Cuyahoga No. 110047, 2021-Ohio-1719, ¶ 10, quoting State v.

Grant, 2018-Ohio-1759, 111 N.E.3d 791, ¶ 23 (8th Dist.).

The trial court’s imposition of an aggregate term of imprisonment

within a jointly recommended sentencing range precludes appellate review of the

imposed sentence. There is no dispute that the parties jointly recommended the

sentencing range that was accepted by the trial court, and there is no dispute that

the trial court did not make the consecutive sentence findings under
R.C. 2929.14(C)(4). Thus, the only question is whether the lack of consecutive

sentence findings renders the imposed sentence to be unauthorized by law as

contemplated under R.C. 2953.08(D)(1) for the purposes of enabling appellate

review.

The answer to that question is resoundingly in the negative. In the

context of a jointly recommended sentence that includes nonmandatory consecutive

sentences, a trial court is not required to make the consecutive sentence findings

under R.C. 2929.14(C)(4) or include those in the sentencing entry. State v. Sergent,

148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 43; accord State v. Singleton,

1st Dist. Hamilton No. C-200365, 2021-Ohio-4271, ¶ 38; State v. Campbell, 2d Dist.

Clark No. 2020-CA-11, 2021-Ohio-2053, ¶ 29; State v. Summit, 3d Dist. Hardin No.

6-21-06, 2021-Ohio-4562, ¶ 22; State v. Payton, 4th Dist. Scioto No. 17CA3793,

2018-Ohio-1376, ¶ 13; State v. Ramsey, 5th Dist. Licking No. 16-CA-91, 2017-Ohio-

4398, ¶ 15; State v. Thomas, 6th Dist. Williams No. WM-18-005, 2019-Ohio-2654,

¶ 17; State v. Barnhart, 7th Dist. Mahoning No. 20 MA 0119, 2022-Ohio-2338, ¶ 7;

Andrews at ¶ 14; State v. Long, 9th Dist. Summit No. 28214, 2017-Ohio-4421, ¶ 7;

State v. McBride, 10th Dist. Franklin No. 04AP-282, 2004-Ohio-6257, ¶ 7

(predating Sergent but reaching the same conclusion); State v. Mitchell, 11th Dist.

Trumbull No. 2017-T-0053, 2017-Ohio-9103, ¶ 14; State v. Sutton, 12th Dist.

Madison No. CA2019-08-024, 2020-Ohio-3604, ¶ 15. When a trial judge imposes

a jointly recommended sentence, which contemplated consecutive sentences,

without making the R.C. 2929.14(C)(4) findings, the sentence is nonetheless
considered to be “authorized by law” and is not reviewable on appeal pursuant to

R.C. 2953.08(D)(1).

Appellate review of the sentences imposed in the underlying cases is

expressly precluded under R.C. 2953.08(D)(1), and this includes the consecutive

sentence findings under R.C. 2929.14(C)(4). The second assignment of error is

overruled.

Coleman’s convictions are 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. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for further proceedings consistent with this opinion.

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

of the Rules of Appellate Procedure.

____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

CORNELIUS J. O’SULLIVAN, JR., J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE OPINION
KATHLEEN ANN KEOUGH, J., CONCURRING IN PART AND DISSENTING IN
PART WITH SEPARATE OPINION:

Respectfully, I concur in part and dissent in part. I concur with the

majority’s resolution of the first and third assignments of error.

I dissent, however, from the majority’s conclusion regarding the

second assignment of error that review of the trial court’s imposition of consecutive

sentences is precluded because appellant agreed to a jointly recommended

sentencing range. The majority finds that where a defendant agrees to a jointly

recommended sentencing range, the trial court is permitted to impose consecutive

sentences, even where the defendant did not agree to consecutive sentences, and any

review of the consecutive sentences is prohibited by R.C. 2953.08(D)(1).

My dissent in State v. Grant, 2018-Ohio-1759, 111 N.E.3d 791 (8th

Dist.), sets forth my reasons for disagreeing with this proposition of law. Grant at

¶ 49-52. I find that where a defendant agrees to a sentencing range but does not

expressly agree to the imposition of nonmandatory consecutive sentences, the

sentence is not an agreed-upon sentence and review of the sentence is not prohibited

by R.C. 2953.08(D)(1).

Appellant agreed to a sentencing range; there was no agreement to

consecutive sentences. Accordingly, I would review appellant’s second assignment

of error, which asserts that the trial court did not engage in the required analysis

under R.C. 2929.14(C) for imposing consecutive sentences and did not incorporate

the statutory findings into its sentencing entry.
 The record reflects that the trial court made the requisite findings for

imposing consecutive sentences. (Tr. 73.) Although appellant contends that the

court merely stated the R.C. 2929.14(C) requirements without engaging in any

“meaningful analysis” of the factors, I would find the court’s recitation at the

sentencing hearing of the R.C. 2929.14(C) factors regarding CR-21-660631-A and its

incorporation of those findings with respect to CR-21-661538-A and CR-21-

661539-A sufficient to impose consecutive sentences. “A trial court is not required

to give reasons supporting its decision to impose consecutive sentences.” State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27.

Nevertheless, I would remand for the court to enter nunc pro tunc

entries in those three cases because the trial court did not “incorporate its statutory

findings into the sentencing entries” as required by Bonnell. Id. at ¶ 29. Instead, in

each sentencing entry the court merely stated, “[c]ourt states reasons for

consecutive sentences ORC 2929.14.” Such a statement does not meet the

requirements of Bonnell that to impose consecutive sentences, the trial court must

both make the statutory findings under R.C. 2929.14(C) and incorporate those

findings into its sentencing entry.