[Cite as State v. Rogers, 2012-Ohio-2496.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 97093 and 97094
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BILLY ROGERS
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART,
VACATED IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-543805 and CR-548840
BEFORE: Rocco, J., Stewart, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 7, 2012
-i-
ATTORNEY FOR APPELLANT
Nancy E. Schieman
9368 Sunrise Court
Mentor, Ohio 44060
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Scott Zarzycki
James Hofelich
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Billy Rogers appeals from his convictions and portions
of the sentences imposed after he entered guilty pleas to charges of attempted burglary,
breaking and entering, and theft in two cases that were consolidated in the trial court.
{¶2} Rogers presents seven assignments of error. He claims the trial court acted
improperly in accepting his pleas, because the court did not first ascertain whether he
understood that his pleas constituted a complete admission of guilt and whether they were
knowingly, intelligently, and voluntarily made. He claims the trial court erred in failing
to conduct a hearing on his “request to withdraw” his pleas. He claims his trial counsel
rendered ineffective assistance. He asserts that his offenses in one of his cases were
allied pursuant to R.C. 2941.25(A). He claims the trial court should have held a hearing
before ordering restitution. Finally, he asserts the trial court exceeded its authority in
forbidding him to have contact with the victims.
{¶3} Upon a review of the record, this court finds that the trial court committed no
error in either accepting Rogers’s guilty pleas, failing to conduct additional hearings,
imposing sentence on each count, or ordering restitution. Moreover, Rogers’s claim of
ineffective assistance of counsel is unsupported. The trial court, however, lacked
authority to impose a “no contact” order; therefore, that portion of Rogers’s sentence is
vacated. Otherwise, Rogers’s convictions and sentences are affirmed.
{¶4} Rogers originally was indicted in November 2010 in case number CR-543805
on two counts, viz., burglary and theft of property in an amount less than $500.00.
Rogers entered pleas of not guilty and received the services of assigned counsel. After
two months, however, Rogers filed a pro se motion complaining that his assigned counsel
was not representing him to his satisfaction. The trial court permitted Rogers’s original
counsel to withdraw from the case and appointed a new attorney. The court also referred
Rogers to the psychiatric clinic to determine his eligibility for transfer to the “mental
health” court docket. Rogers’s case was transferred the following month.
{¶5} In April 2011, Rogers was indicted with a codefendant in case number
CR-548840. Rogers was charged with two counts of breaking and entering and one
count of theft, with the value of the stolen property placed at between $5000.00 and
$100,000.00. After he pleaded not guilty to these new charges, the case was assigned to
the same trial court that was presiding over Rogers’s prior case. Consequently, Rogers’s
assigned counsel represented Rogers in the new case, as well.
{¶6} On May 23, 2011, the parties notified the trial court that a plea agreement had
been reached. As outlined by the prosecutor, in exchange for Rogers’s guilty plea to
Count 1 in CR-543805, the state would amend the charge to include the attempt statute
and would dismiss Count 2. In exchange for Rogers’s guilty pleas to Counts 2 and 3 in
CR-548840, the state would dismiss the first count. The plea agreement with respect to
CR-548840 included restitution; Rogers and his codefendant jointly would owe
$11,058.00 to the victim in that case. Rogers’s defense attorney concurred with the
prosecutor’s statements.
{¶7} The trial court proceeded to address Rogers. Rogers indicated that, although
he was taking “psych medication,” he responded “yes, ma’am, I am” when the court
asked if he were “thinking clearly today?” The trial court made sure that Rogers was
“medication compliant” and that the medications were “helping” Rogers before
continuing with the Crim.R. 11(C) colloquy.
{¶8} After a thorough explanation of the constitutional rights Rogers would be
waiving in entering his pleas and the potential penalties involved, the trial court accepted
Rogers’s guilty pleas to the amended indictments. The trial court referred Rogers for
both presentence and “mitigation of penalty” reports before concluding the hearing.
{¶9} Rogers’s cases were called for sentencing on June 28, 2011. At the outset of
the hearing, the trial court noted Rogers had been diagnosed with “schizoeffective [sic]
disorder, poly-substance dependence, borderline intellectual functioning,” and a “mental
illness marked by psychotic symptoms,” so he had been transferred to the mental health
court docket. The trial court then permitted the victim in case number CR-548840 to place
comments on the record. The prosecutor provided a recitation of the facts surrounding
case number CR-543805.
{¶10} After Rogers’s defense attorney spoke on his behalf, Rogers told the trial
court he was “sorry” for “doing what [he] did” to the victims and promised “to make
payments” to atone for his crimes. He asked the trial court to “give [him] help, some
kind of chance to get some kind of treatment” for his drug addiction.
{¶11} The trial court prefaced its decision with respect to Rogers’s sentences in
these cases by reciting his criminal history. The court also asked if the parties agreed
concerning the restitution amounts in both cases. The court then imposed a four-year
prison term in case number CR-543805, to be served consecutively with concurrent terms
of eighteen months and one year in case number CR-548840, ordered Rogers to pay
restitution in the agreed amounts, and further ordered Rogers to have “no contact, directly
or indirectly, with anyone [he] victimized.”
{¶12} Rogers appeals from his convictions and sentences with the following
assignments of error.
“I. The trial court erred by accepting Appellant’s plea of guilty without first
informing Appellant that a plea of guilty constituted an admission of guilt.
“II. The trial court erred by accepting Appellant’s guilty plea without first
ensuring the plea was knowingly, intelligently, and voluntarily made.
“III. The trial court abused its discretion by not holding a hearing on
Appellant’s request to withdraw his guilty plea made prior to the imposition of
sentence.
“IV. Appellant was deprived of his constitutional right to effective assistance
of counsel in the plea proceedings.
“V. The trial court erred by failing to determine that grand theft and
breaking and entering are allied offenses of similar import and by imposing separate
sentences for the offenses.
“VI. The trial court erred by not determining whether the amount of
restitution ordered was reasonable and supported by competent, credible evidence.
“VII. The trial court exceeded its authority by ordering Appellant to have
no contact with the victims.”
{¶13} Rogers’s first and second assignments of error present challenges to the
propriety of the trial court’s actions at his plea hearing; therefore, they will be addressed
together. Rogers argues that, prior to accepting his guilty pleas, the trial court did not
adequately either describe the effect his pleas would have, or ensure his mental state
allowed knowing, intelligent, and voluntary pleas.
{¶14} Crim.R. 11(C) states in pertinent part:
(2) 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.
{¶15} In determining whether the trial court has satisfied its duties under Crim.R.
11 in taking a plea, reviewing courts make a distinction between constitutional and
nonconstitutional rights. State v. Higgs, 123 Ohio App.3d 400, 704 N.E.2d 308 (11th
Dist. 1997); State v. Gibson, 34 Ohio App.3d 146, 517 N.E.2d 990 (8th Dist. 1986). The
trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to the
waiver of constitutional rights. State v. Stewart, 51 Ohio St.2d 86, 88-89, 364 N.E.2d
1163 (1977); State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115, paragraph one of the
syllabus (1981).
{¶16} For nonconstitutional rights, the trial court must “substantially comply” with
the rule’s requirements. Stewart. “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).
{¶17} Moreover, a defendant who challenges his guilty plea on the basis that it was
not knowingly, voluntarily, and intelligently entered must show a prejudicial effect.
State v. Moulton, 8th Dist. No. 93726, 2010-Ohio-4484. The test for prejudice is
whether the plea would have otherwise been made. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621.
{¶18} In this case, the record reflects the trial court complied literally with Crim.R.
11(C)(2) with respect to the constitutional requirements. The trial court also correctly
advised Rogers of the potential penalties involved.
{¶19} Although the trial court did not specifically tell Rogers that his guilty plea
constituted a complete admission of his guilt, this court does not find the omission
constituted error. Rogers had no questions for the court, made no protest that he was
innocent, and did not give any indication that he was unaware of this consequence;
certainly, the word “guilty” implies an acknowledgment of guilt. State v. Rodgers, 8th
Dist. No. 95560, 2011-Ohio-2535, ¶ 28, citing State v. Taylor, 8th Dist. No. 94569,
2010-Ohio-5607, ¶ 5; State v. Freed, 8th Dist. No. 90720, 2008-Ohio-5742.
{¶20} Similarly, although Rogers argues that the trial court should have more
thoroughly determined whether his mental state interfered with his understanding of the
plea proceeding, in view of the trial court’s careful compliance with Crim.R. 11(C)(2),
this court disagrees. The record reflects the trial court asked Rogers about his
medications and the clarity of his thinking before beginning the colloquy. State v.
Stokes, 8th Dist. No. 95488, 2011-Ohio-2531, citing State v. Mink, 101 Ohio St.3d 350,
2004-Ohio-1580, 805 N.E.2d 1064. Rogers’s assurances and the appropriateness of his
responses during the colloquy demonstrated that, under the totality of the circumstances,
he understood the implications of his pleas. Stokes.
{¶21} Rogers’s first and second assignments of error, accordingly, are overruled.
{¶22} In his third assignment of error, Rogers argues that the trial court should
have addressed his request to withdraw his pleas before proceeding with the sentencing
hearing. However, Rogers’s “request” was presented only in a letter addressed to the
trial court that Rogers dated “6/10/11.”
{¶23} At the June 28, 2011 sentencing hearing, Rogers neither made a formal
motion to withdraw his guilty pleas nor even mentioned his letter. Under these
circumstances, the trial court had no duty to conduct a hearing on his request. Rodgers,
8th Dist. No. 95560, 2011-Ohio-2535, ¶ 34.
{¶24} Rogers’s third assignment of error also is overruled.
{¶25} Rogers claims in his fourth assignment of error that his second assigned trial
counsel “induced” him to plead guilty to the charges by trickery. Regarding an argument
such as Rogers makes in this case, the court made the following observations in State v.
Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist. 1991):
In determining whether counsel was constitutionally ineffective, the
central issue in any case is whether an accused had a fair trial and
substantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71, 74
O.O.2d 156, 341 N.E.2d 304. An accused is denied his right to a fair trial
if his counsel fails to play the role necessary to ensure that the accused
enjoys the benefits of the adversarial process which the law affords him for
testing the charges brought by the state. Strickland v. Washington (1984),
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
* * * [D]etermination of th[e] issue [appellant presents] necessarily
depends on matters not in the record before us. We decline to accept
appellant’s statement of them, * * * as they concern appellant’s private
conversations with counsel and could not be a part of the trial record in this
case. They may be made in a proper motion for postconviction relief
pursuant to R.C. 2953.21.
{¶26} For the foregoing reason, Rogers’s fourth assignment of error also is
overruled. State v. Devine, 8th Dist. No. 92590, 2009-Ohio-5825.
{¶27} In his fifth assignment of error, Rogers argues that the two offenses to which
he pleaded guilty in case number CR-548840 were allied offenses pursuant to R.C.
2941.25(A).
{¶28} According to the holding in State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, 922 N.E.2d 923, a court of appeals should review, even in the context of a
plea agreement, whether multiple counts in the plea agreement constitute allied offenses,
or whether those offenses were committed with separate animus that may be punished
separately. However, this court recently stated in State v. Snuffer, 8th Dist. Nos.
96480-83, 2011-Ohio-6430, ¶ 9-11:
Snuffer did not object to his sentence, so we review for plain error.
See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 31. Plain error exists only when it is obvious on the record. See
State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Snuffer
pleaded guilty to the indictment, thus admitting the facts as charged in the
indictment and obviating the need for any factual basis for the plea. State
v. Kent (1980), 68 Ohio App.2d 151, 156, 428 N.E.2d 453. As he
concedes, he offered no other facts at sentencing, so the record on appeal is
such that we cannot say that plain error in failing to merge the sentences
was “obvious.”
We are aware that in State v. Masters, 8th Dist. No. 95120, 2011-Ohio-937, a
panel of this court cited to Underwood for the proposition that the “trial court should have
inquired into the facts when accepting Masters’s plea to all charges in order to determine
whether any of the offenses were allied.” Id. at ¶ 9. The holding that the court must
inquire into the facts during a plea hearing cannot be reconciled with Crim.R. 11(C),
which does not require a factual basis for a guilty plea. Implicit within Crim.R. 11(C), is
the idea that a guilty plea constitutes a full admission of factual guilt that obviates the
need for a fact-finding trial on the charges. State v. Wilson (1979), 58 Ohio St.2d 52,
388 N.E.2d 745, paragraph one of the syllabus. Moreover, Masters failed to grasp that
merger of offenses is a sentencing issue, not a plea issue, see Cleveland v. Scott (1983), 8
Ohio App.3d 358, 359, 457 N.E.2d 351, so even if a factual inquiry had to be made, it
could only occur during sentencing, not during the plea hearing. Masters assumed the
existence of plain error despite acknowledging that “there are insufficient facts in the
record for this court to [find whether offenses are allied] in the instant case.” Id. As
noted, plain error exists only when it is “obvious” in the record. Masters found the
opposite—that the absence of facts raised an issue of fact that the court needed to resolve
on remand—thus showing that the error could not have been “plain” on the face of the
record. Finally, unlike in Underwood, there was no direct concession from the state that
the offenses were allied—in Masters the state only conceded that “unless a separate
animus exists” the charged offenses would be allied. Id. The state did not concede that
Masters’s offenses were allied, only that the offenses might be allied had there been facts
showing that Masters committed them with a single animus.
For the foregoing reasons, we find that Snuffer failed to offer any evidence to
make an obvious case for plain error in the court’s failure to merge the theft and forgery
counts in CR-539285.
{¶29} See also State v. Lindsey, 8th Dist. No. 96601, 2012-Ohio-804, ¶ 13; compare, State v.
James, 2d Dist. No. 11 CAA 05 0045, 2012-Ohio-966 (burglary and theft merged based upon trial
evidence).
{¶30} At any event, with respect to R.C. 2941.25, the Ohio Supreme Court stated
in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at paragraph
one of the syllabus, that the following is the appropriate analysis:
When determining whether two offenses are allied offenses of
similar import subject to merger under R.C. 2941.25, the conduct of the
accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632,
710 N.E.2d 699, overruled.)
{¶31} In this case, as described by the victim during the sentencing hearing, the
circumstances indicated Rogers entered the victim’s garage, broke into her vehicle, and
remained inside the vehicle long enough to smoke a cigarette. Before leaving, he took
many pieces of the victim’s handmade jewelry from the vehicle.
{¶32} The circumstances surrounding the crimes, i.e., the length of time involved
between the breaking and entry into the vehicle and the theft of the particular property
therein, thus indicated Rogers had a separate animus for each crime. State v. Martin, 8th
Dist. No. 95281, 2011-Ohio-222. Consequently, the trial court properly sentenced
Rogers on both counts in case number CR-548840. His fifth assignment of error,
therefore, also is overruled.
{¶33} Rogers argues in his sixth assignment of error that the trial court should have
conducted a hearing prior to ordering a specific amount of restitution in each case.
However, because the record reflects Rogers agreed to the specific amount of restitution
to be paid to the victim in each case, he has waived this argument on appeal. State v.
Williams, 8th Dist. No. 93625, 2010-Ohio-3418.
{¶34} In his seventh assignment of error, Rogers complains that the trial court
lacked the authority to order, as part of his sentence, that he have no contact with the
victims. This court addressed the same argument in State v. Holly, 8th Dist. No. 95454,
2011-Ohio-2284, ¶ 21-22, as follows:
It is well settled that a trial court may only impose a sentence as
provided for by law. State v. Bruno, 8th Dist. No. 77202, 2001-Ohio-4227,
citing State v. Eberling (Apr. 9, 1992), 8th Dist. No. 58559. While a “no
contact” order may be properly imposed as a sanction pursuant to R.C.
2929.25 when a trial court places a defendant on community controlled
sanctions, we find no authority in Ohio sentencing law to allow for such a
penalty when imposing a prison term, nor does the state cite to any
authority. Once the trial court imposed a prison term and executed Holly’s
sentence, the authority to impose any “no contact” order following Holly’s
release from prison lies with the Adult Parole Board. Indeed, Holly faces a
mandatory term of three years of postrelease control following his release
from prison.
Contrary to Holly’s assertion, however, this unlawful part of his
sentence does not render his entire sentence void, entitling him to a new
sentencing hearing. See State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332. Instead, consistent with our authority
under R.C. 2953.08(G), we vacate this portion of Holly’s sentence that
includes an indefinite “no contact” order. The remainder of his sentence *
* * we affirm in its entirety.
{¶35} In accord with the foregoing, Rogers’s seventh assignment of error is
sustained.
{¶36} Rogers’s convictions are affirmed. His sentence is affirmed in part and
vacated only as to the portion that imposes a “no contact” order.
It is ordered that appellee and appellant 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. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
State v. Rogers
Combined Opinion