Opinion
No. 107386
04-18-2019
STATE OF OHIO, Plaintiff-Appellee, v. RAMSES CRESPO-NEGRON, Defendant-Appellant.
Appearances: Carmen Naso, Esq. and Byers Emerling and Jaclyn Cole, Certified Legal Interns, Milton A. Kramer Law Clinic, Case Western Reserve University, for appellant. Michael C. O'Malley, Cuyahoga County Prosecutor, Michael Lisk and Eben McNair, Assistant Prosecuting Attorneys, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED; REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-619542-A, CR-17-621395-A, CR-17-623589-A and CR-17-624214-A
Appearances:
Carmen Naso, Esq. and Byers Emerling and Jaclyn Cole, Certified Legal Interns, Milton A. Kramer Law Clinic, Case Western Reserve University, for appellant. Michael C. O'Malley, Cuyahoga County Prosecutor, Michael Lisk and Eben McNair, Assistant Prosecuting Attorneys, for appellee. EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant Ramses Crespo-Negron appeals his burglary conviction in Case No. CR-17-621395 ("CR-621395") and his vandalism conviction in CR-17-623589 ("CR-623589"). He contends that his guilty plea to the amended burglary count was not knowingly, intelligently and voluntarily made because the trial court failed to "correctly explain the nature of the charge," failed to explain the effect of his prior convictions on his potential maximum sentence and failed to "identify enough facts in the indictment" for Crespo-Negron to understand "the factual underpinnings of the charge." He contends that his guilty plea to the vandalism count was not made knowingly, intelligently and voluntarily because the trial court "read the wrong date for the charge" during the plea colloquy. He also contends his consecutive sentences in four cases — CR-17-619542 ("CR-619542"), CR-621395, CR-623589 and CR-17-624214 ("CR-624214") — should be vacated because the record does not support the trial court's findings that consecutive sentences are necessary to protect the public and punish Crespo-Negron and that they are not disproportionate to the seriousness of Crespo-Negron's conduct.
{¶ 2} For the reasons that follow, we affirm Crespo-Negron's convictions but remand for the trial court to correct a clerical error in its journal entries in CR-621395.
Procedural and Factual Background
{¶ 3} Crespo-Negron was indicted on 20 counts in four cases in connection with a series of "break ins" and thefts from a residence and several stores in Cleveland during May through November 2017. Crespo-Negron initially pled not guilty to the charges. The parties thereafter reached a "packaged plea" agreement. Pursuant to the plea agreement, Crespo-Negron agreed to plead guilty to the following counts:
• in Case No. CR-17-619542 — three counts of breaking and entering in violation of R.C. 2911.13, fifth-degree felonies; and one count of aggravated theft in violation of R.C. 2913.02(A)(1), a fifth-degree felony;In exchange for these guilty pleas, the remaining counts against Crespo-Negron were to be dismissed.
• in Case No. CR-17-621395 — an amended count of burglary in violation of R.C. 2911.12(A)(3), referencing two prior burglary convictions from 2008 and 2012 in "Hudson County, New York," a third-degree felony;
• in Case No. CR-17-623589 — one count of robbery in violation of R.C. 2911.02(A)(3), a third-degree felony; one count of vandalism in violation of R.C. 2909.05(B)(1)(B), a fifth-degree felony; and one count of menacing in violation of R.C. 2903.22, a fourth-degree misdemeanor, and
• in Case No. CR-17-624214 — one count of breaking and entering in violation of R.C. 2911.13, a fifth-degree felony; and one count of vandalism in violation of R.C. 2909.05(B)(1)(B), a fifth-degree felony.
{¶ 4} On March 6, 2018, the trial court held a change-of-plea hearing. The state set forth the terms of the plea agreement on the record. With respect to the amended burglary count in CR-621395, the state stated:
The amendment to Count 1 is to burglary, a felony of the third degree, under revised code section 2911.12(A)(3).
And, Judge, we've also agreed to amend the body of that indictment to include references to the defendant's two burglary convictions on August 28th, 2008 and March 29th, 2012 in the Superior Court of Hudson County in New York.
As amended, this would be a felony of the third degree, but a high-tier felony of the third degree. Carrying with it between one and five years['] incarceration as a possible sentence.
{¶ 5} After the state set forth the terms of the plea agreement on the record, the trial judge proceeded with the plea colloquy. In response to the trial judge's preliminary questions, Crespo-Negron indicated that he had previously pled guilty to a crime, that he was a citizen, was 33 years old, could read and write in English, was not under the influence of any illegal drugs or alcohol, had no physical or mental illnesses and that he believed he was thinking clearly that day. The trial judge asked Crespo-Negron to let him know if he said anything during the hearing that Crespo-Negron did not understand. Crespo-Negron agreed that he would do so. Crespo-Negron further indicated that he was satisfied with the services provided by his counsel.
{¶ 6} The trial court advised Crespo-Negron of his constitutional rights and confirmed that he understood the rights he would be waiving by entering his guilty pleas. The trial court identified each of the counts to which Crespo-Negron would be pleading guilty and confirmed that he understood the charges to which he would be pleading guilty. Specifically, with respect to the amended burglary count in CR-621395, the trial court engaged in the following exchange with Crespo-Negron regarding his understanding of the charges:
THE COURT: All right. Now, sir, in case number 621395, it's proposed that you'll plead guilty to burglary, in violation of revised code 2911.12(A)(3) as amended. * * *
THE STATE: That is a felony of the third-degree burglary.
THE COURT: By this charge then, Mr. Crespo-Negron, the prosecutor claims that on August 15, 2017, in this county, you did by force, stealth, or deception trespass in an unoccupied structure or in a separately secured or separately occupied portion of an occupied
structure with the purpose to commit in the structure any criminal offense.
And that at the time you did so, you had two prior convictions, namely 2008 and 2012 in Hudson County, New York. Do you understand that charge against you?
THE DEFENDANT: Yes, your Honor.
{¶ 7} Crespo-Negron further acknowledged that he understood that by pleading guilty, "the effect of your guilty plea is that you're admitting you did the crime."
{¶ 8} The trial judge then proceeded to identify the level of each offense and the "possible penalties" associated with each level of offense, confirming with Crespo-Negron that he understood the potential sentences he would face on each offense by pleading guilty:
THE COURT: All right. I want to make sure you know the possible punishments. What we're — let me tell you the level of each offense and then we'll talk about the possible penalties by level of offense. * * *
In the lowest case number, breaking and entering in Counts 1 and 4 are both felony fives. Theft and breaking and entering in Counts 6 and 7 are felony fives. So in that case, you have four felony fives.
In the next numbered case, burglary, Count 1, is a felony three, so called high-tier felony three.
In the next numbered case, the Convenient Food Mart, let's just call it, robbery is a felony three, but a so called low-tier felony three.
And then finally in the last case, Boost Mobile, breaking and entering is a felony five, and vandalism is a felony five. So what we're talking about here total are seven felony fives, one low-tier felony three, one high-tier felony three, and a fourth degree misdemeanor. That's the menacing from a Convenient Food Mart, Marcelino Davila.
First of all, do you understand all that?
THE DEFENDANT: Yes, your Honor.
THE COURT: All right. Now, I want you to know that for any single fifth degree felony, you may receive a period of incarceration in a State prison anywhere from 6 to 12 months inclusive in monthly increments. Do you understand?
THE DEFENDANT: Yes.
THE COURT: For the low-tier third degree felony, you may receive a period of incarceration in prison of a minimum of nine months, a maximum of 36 months or any one of these possible sentences in between: 12 months or 18 months or 24 months or 30 months. Do you understand?
THE DEFENDANT: Yes.
THE COURT: For the high-tier felony three, that's the burglary with the reference to your prior convictions, your minimum sentence is 12 months. * * * Your maximum sentence is 60 months, which is five years. And the other possible sentences in between are in six-month increments between 12 and 60. So in other words — I'm sorry. Yeah. 18, 24, 30, 36, 42, 48, or 54 months in prison. Do you understand?
THE DEFENDANT: Yes, your Honor.
* * *
THE COURT: And then finally, sir, for the fourth degree misdemeanor, you may be sentenced to up to 30 days in jail. Do you understand?
THE DEFENDANT: Yes, your Honor.
{¶ 9} The trial court also advised Crespo-Negron that the sentences on each count could be imposed consecutively, resulting in a possible maximum aggregate prison sentence of 15 years. Once again, Crespo-Negron confirmed that he understood. The trial court further advised Crespo-Negron that he was subject to three years of discretionary postrelease control, explained what that entailed and confirmed that Crespo-Negron understood. The trial court also identified the restitution that could be ordered and the potential fines and court costs that could be imposed and confirmed with Crespo-Negron that he understood.
{¶ 10} After the trial court concluded its advisements, Crespo-Negron pled guilty to each of the charges above, in accordance with the plea agreement. The trial court accepted Crespo-Negron's guilty pleas, found him guilty of the nine counts to which he had pled guilty and dismissed the remaining counts with which he had been charged in these four cases. The trial court referred the matter for a presentence investigation report and a sentencing hearing was scheduled for the following month.
{¶ 11} The sentencing hearing was held on April 11, 2018. After reviewing the presentence investigation report, hearing from Crespo-Negron, his counsel and the state and "tak[ing] into account the provisions of Chapter 2929 of Ohio Revised Code," the trial court sentenced Crespo-Negron as follows:
• in Case No. CR-17-619542 — ten months on one of the breaking and entering counts and nine months on the other two breaking and entering counts and nine months on the theft count, to be served concurrently;
• in Case No. CR-17-621395 — two years on the burglary count;
• in Case No. CR-17-623589 — two years on the robbery count, ten months on the vandalism count and 30 days on the menacing count, to be served concurrently, and
• in Case No. CR-17-624214 — ten months on the breaking and entering count and nine months on the vandalism count, to be served concurrently.
{¶ 12} The trial court also imposed three years' discretionary postrelease control in each case and ordered that the sentences in each case be served consecutively to one another, resulting in an aggregate prison term of five years and eight months.
{¶ 13} With respect to its decision to impose consecutive sentences, the trial court stated:
I'm ordering consecutive sentences in these cases because I find that consecutive sentences are necessary to protect the public from future crime. I see no reasonable prospect that it's going to stop. The reason I say that, you mentioned wanting to get treatment but these crimes were committed over a span of about half a year; that's approximate. At no time between the crimes am I aware of any efforts that you made to get treatment. I'm just aware of efforts to continue committing crimes. So, I don't, as I said, see any reasonable prospect that you will stop committing crimes in the near future at least.
I also find that it's necessary to have consecutive sentences so that you're adequately punished. Where a person month after month after month, sometimes day after day, commits many, many crimes, it seems to me inadequate to simply give one sentence for one of those crimes and let everything else fall under that sentence.
I do believe individual meaningful sentences are necessary to adequately punish you under the law, and I do find these consecutive sentences are not disproportionate to the seriousness of your conduct and to the danger that you posed to the public. As for the seriousness, you were invading the rights of people. These are not drug possession crimes, which are a different thing entirely. The drug possession argument that you are only harming yourself, oftentimes that is the case, but here, you were harming others and because of the repeated nature of the offenses, most of them, not all, but most of them within a pretty close geographic area, you were affecting the neighborhood. You know, you were affecting the ability of people to feel safe to carry on commerce in their daily social lives in a way that they should be able to, in any neighborhood, whether it's a rich one, a poor one, or anywhere in between.
I do want to let you know that I also find that you committed * * * the crimes in 623589 while you were under indictment in 619542. So that's a reason to justify consecutive sentences. And you were under indictment in 621395 when you committed crimes in 623589. Additionally, these two — well, at least two of these multiple offenses were committed as part of one or more courses of conduct, and the harm caused by the two or more multiple offenses was so great that no single prison term for any of the offenses adequately reflects the seriousness of your conduct.
Finally, I also find that your unremitting history of committing crimes against others does demonstrate that consecutive sentences are necessary to protect the public from future crimes that you may commit.
{¶ 14} The trial court incorporated these findings into its sentencing journal entries in each of the four cases as follows:
The court imposes prison terms consecutively finding that consecutive service is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant's conduct and to the danger defendant poses to the public; and that, the defendant committed one or more of the multiple offenses while the defendant was awaiting trial or sentencing or was under a community control [sic] or was under post-release control for a prior offense, or at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm caused by said multiple offenses 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 defendant's conduct, or defendant's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by defendant.
{¶ 15} This court granted Crespo-Negron leave to file a delayed appeal, in which he raised the following two assignments of error for review:
Assignment of Error No. 1:
Appellant's guilty plea was not knowing, intelligent and voluntary, in violation of the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution and Section 16, Article 1 of the Ohio Constitution.
Assignment of Error No. 2:
The sentencing court erred in imposing consecutive sentences which were not supported by the record.
Law and Analysis
Knowing, Intelligent and Voluntary Guilty Pleas
{¶ 16} Crespo-Negron's first assignment of error relates to his conviction for burglary in CR-621395 and his conviction for vandalism in CR-623589. He contends that his guilty pleas should be vacated due to a series of "cumulative errors" by the trial court during the plea colloquy that "prevented" Crespo-Negron from having "a full understanding of all of the charges" and entering "knowing, intelligent, and voluntary plea[s]." We disagree.
{¶ 17} "When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996); see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. In considering whether a criminal defendant knowingly, intelligently and voluntarily entered a guilty plea, we first review the record to determine whether the trial court complied with Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128-129, 566 N.E.2d 658 (1991); State v. Davner, 2017-Ohio-8862, 100 N.E.3d 1247, ¶ 41 (8th Dist.). Crim.R. 11(C) sets forth certain constitutional and procedural requirements with which a trial court must comply prior to accepting a guilty plea. Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in a felony case without personally addressing the defendant 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.
{¶ 18} The purpose of Crim.R. 11(C)(2) is '"to convey to the defendant certain information so that he [or she] can make a voluntary and intelligent decision whether to plead guilty.'" State v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-Ohio-294, ¶ 12, quoting State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). Whether the trial court accepted a plea in compliance with Crim.R. 11(C)(2) is subject to de novo review, based on the totality of the circumstances. See, e.g., State v. Jackson, 8th Dist. Cuyahoga No. 99985, 2014-Ohio-706, ¶ 6; see also State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13 (8th Dist.) ("In considering whether a plea was entered knowingly, intelligently and voluntarily, 'an appellate court examines the totality of the circumstances through a de novo review of the record.'"), quoting State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7.
{¶ 19} The trial court must strictly comply with those provisions of Crim.R. 11(C)(2) that relate to the waiver of constitutional rights. Veney at syllabus. As to the nonconstitutional aspects of Crim.R. 11(C)(2), which includes a defendant's right to have an understanding of the "the nature of the charges" and "the maximum penalty involved," substantial compliance is required. Veney at ¶ 14; State v. Moore, 8th Dist. Cuyahoga No. 105240, 2017-Ohio-8483, ¶ 18, 23. "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." State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If a trial court fails to substantially comply with one of the nonconstitutional aspects of Crim.R. 11(C)(2), a determination must be made as to whether the trial court partially complied or completely failed to comply the requirement at issue. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. If the trial court partially complied, the plea is properly vacated only if the defendant demonstrates prejudice, i.e., that the plea would not have otherwise been made. Id.; Nero at 108. If the trial court completely failed to comply, the plea must be vacated; a showing of prejudice is not required. Clark at ¶ 32.
{¶ 20} Here, there is no dispute that the trial court fully complied with Crim.R. 11(C)(2) with respect to Crespo-Negron's constitutional rights. At issue in this case is whether the trial court properly determined that Crespo-Negron had an "understanding of the nature of the charges" and the maximum penalty he could receive prior to accepting his guilty plea to the amended burglary count in CR-621395 and his guilty plea to vandalism in CR-623589. See Crim.R. 11(C)(2)(a).
{¶ 21} "[T]here is no easy or exact way" to determine a defendant's subjective understanding. State v. Cardona, 8th Dist. Cuyahoga No. 75556, 1999 Ohio App. LEXIS 6064, 12 (Dec. 16, 1999), citing State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979); see also Davner, 2017-Ohio-8862, 100 N.E.3d 1247, at ¶ 43. However, if a defendant '"receives the proper information, then we can ordinarily assume that he understands that information.'" Cardona at 12, quoting Carter at 38. A defendant "may learn of information not relayed to him by the trial court" from other sources, such as the prosecutor or the defendant's attorney. State v. Rogers, 8th Dist. Cuyahoga No. 103227, 2016-Ohio-1382, ¶ 18, citing State v. McCown, 8th Dist. Cuyahoga No. 69683, 1996 Ohio App. LEXIS 4801, 19 (Oct. 31, 1996).
Failure to Explain High-Tier Felony and Effect of Prior Convictions
{¶ 22} With respect to his guilty plea to the amended burglary count in CR-621395, Crespo-Negron first argues that the plea colloquy was deficient because the trial court did not explain the relationship between his prior burglary convictions, "the level of the felony" and "the elements of the conduct being charged."
{¶ 23} Pursuant to the parties' plea agreement, the burglary count in CR-621395 was amended from a charge of burglary in violation of R.C. 2911.12(A)(2), a second-degree felony, as originally indicted, to burglary in violation of R.C. 2911.12(A)(3) with two prior burglary convictions, a high-tier third-degree felony. Although Crespo-Negron asserts in his brief that the trial court "did not make mention of the high-tier status" of the burglary count prior to accepting his guilty plea, the record reflects otherwise.
{¶ 24} When the state set forth the terms of the plea agreement on the record at the outset of the plea hearing, it clearly indicated that the burglary count as amended — i.e., from a violation R.C. 2911.12(A)(2) to a violation of R.C. 2911.12(A)(3) with references to two prior convictions — "would be * * * a high-tier felony of the third degree." The trial court itself mentioned that the burglary count was a "high-tier felony three" (1) when going over each of the charges with Crespo-Negron and confirming that he understood them, (2) when identifying the potential sentences that could be imposed if Crespo-Negron pled guilty to the amended burglary charge and confirming that Crespo-Negron understood and (3) when asking Crespo-Negron how he pled to "amended Count 1, burglary, a high-tier felony of the third degree."
{¶ 25} Although the trial court did not specifically "explain the distinction between a high-tier felony and a regular felony" or the effect of his prior convictions to Crespo-Negron, there was no requirement that it do so. Cf. State v. Smith, 8th Dist. Cuyahoga No. 106482, 2018-Ohio-3410, ¶ 12-13 (trial court properly inquired as to whether offense was a "high-tier" or "low-tier" third-degree felony and then advised defendant as to the maximum penalty for the offenses to which defendant would be pleading guilty; "Crim.R. 11 does not require a trial court to advise a defendant of the different sentencing ranges applicable for offenses other than the particular offense to which the defendant is pleading guilty.").
{¶ 26} Crespo-Negron was represented by counsel. He informed the trial court that he was satisfied with the services provided by his counsel prior to entering his guilty pleas and there has been no claim on appeal that his trial counsel provided ineffective assistance. Crespo-Negron further agreed, at the outset of the plea hearing, to advise the trial court if there was anything he did not understand during the hearing so that the trial court could "repeat it, explain it, or otherwise clarify." Crespo-Negron did not indicate to the trial court that there was anything he did not understand.
{¶ 27} To the contrary, during the plea colloquy, Crespo-Negron expressly stated that he understood the amended burglary count to which he would be pleading guilty and the potential penalties he could face in pleading guilty to that charge. There is no dispute that the burglary charge to which Crespo-Negron pled guilty was, in fact, a high-tier third-degree felony. Likewise, there is no dispute that the trial court accurately stated the range of sentences and maximum penalty Crespo-Negron could receive if he pled guilty to that offense. This is not a case like State v. Corbin, 141 Ohio App.3d 381, 751 N.E.2d 505 (8th Dist.), upon which Crespo-Negron relies, where (1) the defendant was convicted of "an offense of a different nature," i.e., trafficking in crack cocaine, rather than the offense to which the trial court had indicated at the plea hearing the defendant would be entering a guilty plea, i.e., trafficking in cocaine with a schoolyard specification, and (2) no one at the plea hearing, including the trial court, correctly informed the defendant of the potential penalty for that offense. Id. at 386-387.
{¶ 28} Here, the trial court clearly and accurately identified the potential prison sentence Crespo-Negron would face if he pled guilty to the amended burglary count:
THE COURT: For the high-tier felony three, that's the burglary with the reference to your prior convictions, your minimum sentence is 12 months. * * * Your maximum sentence is 60 months, which is five years. And the other possible sentences in between are in six-month increments between 12 and 60. So in other words — I'm sorry. Yeah. 18, 24, 30, 36, 42, 48, or 54 months in prison. Do you understand?
THE DEFENDANT: Yes, your Honor.
Effect of Trial Court's Alleged Misstatements and Omissions During the Plea Colloquy
{¶ 29} Crespo-Negron also contends that the trial court's plea colloquy was deficient with respect to the amended burglary count in CR-621395 and that he could not have understood the nature of the charge because the trial court (1) incorrectly stated, during the plea colloquy, that Crespo-Negron's prior burglary convictions were in Hudson County, New York instead of Hudson County, New Jersey, (2) misstated, in part, one of the elements of the amended burglary count and (3) did not state "the bare minimum facts," such as "location or victim information," for Crespo-Negron to "knowingly identify and plead to the conduct of the charge." Considering the totality of the circumstances, we find that none of these alleged misstatements or omissions precluded Crespo-Negron's guilty plea to the amended burglary count from being knowing, intelligent and voluntary.
{¶ 30} "In determining whether a defendant is making a plea with an understanding of the nature of the charge, a trial court is not necessarily required to advise the defendant of the elements of the crime or to specifically ask the defendant if he understands the charge, provided the totality of the circumstances support the trial court's determination that the defendant understands the charge." State v. Parham, 8th Dist. Cuyahoga No. 105983, 2018-Ohio-1631, ¶ 16; see also State v. Johnson, 2018-Ohio-1387, 110 N.E.3d 863, ¶ 14 (8th Dist.) ("[N]either a detailed recitation of the elements of the charges nor an inquiry as to whether the defendant understands the elements of the charges is required unless the totality of the circumstances indicate that the defendant did not understand the charges."). The "nature of a charge" is "more general than the specific elements of the crime." State v. Davis, 4th Dist. Highland No. 06CA21, 2007-Ohio-3944, ¶ 28; State v. Philpott, 8th Dist. Cuyahoga No. 74392, 2000 Ohio App. LEXIS 5849, 4 (Dec. 14, 2000). "A familiarity with the facts alleged" is generally deemed sufficient to provide the defendant with an understanding of the nature of the charge. Davis at ¶ 28; Philpott at 3-5.
{¶ 31} Further, '"[i]n the absence of evidence to the contrary or anything in the record that indicates confusion,"' it may be '"presumed that the defendant actually understood the nature of the charges against him.'" State v. Young, 8th Dist. Cuyahoga No. 106843, 2018-Ohio-4892, ¶ 15, quoting State v. Vialva, 8th Dist. Cuyahoga No. 104199, 2017-Ohio-1279, ¶ 9; see also State v. Martin, 8th Dist. Cuyahoga Nos. 92600 and 92601, 2010-Ohio-244, ¶ 13 (When a defendant "'indicates that he understands the nature of the charge, in the absence of evidence to the contrary or anything in the record that indicates confusion, it is typically presumed that the defendant actually understood the nature of the charge against him.'"), quoting State v. Wangul, 8th Dist. Cuyahoga No. 84698, 2005-Ohio-1175, ¶ 10; Philpott at 8 (Where the defendant is represented by counsel, the court may presume that defense counsel informed the defendant of the nature of the charges, absent an indication to the contrary.).
{¶ 32} "'[A] trial court's misstatements regarding the nature of the charge during a plea hearing do not always invalidate a plea.'" Woodall, 2016-Ohio-294, at ¶ 13, quoting Davis at ¶ 29; see also Young, 2018-Ohio-4892, at ¶ 15 (trial court's misstatement, when explaining the potential penalties for third-degree felonies, stating they were penalties for fifth-degree felonies rather than third-degree felonies, did not preclude defendant's guilty pleas from being knowing, intelligent and voluntary, where, "viewing the transcript in its entirety," it could be "reasonably inferred that the trial court was referring to third-degree felonies"). "[R]eviewing courts have upheld pleas even though the trial court supplied the defendant with incorrect information, mischaracterizations, or misstatements when the erroneous statement occurred in isolation." Woodall at ¶ 13; see also State v. Abrams, 2d Dist. Montgomery No. 14864, 1995 Ohio App. LEXIS 3307, 7-9 (Aug. 2, 1995) ("When determining whether the court complied substantially with Crim.R. 11(C), the totality of the facts and circumstances before the court must be considered. Therefore, if the defendant's subjective understanding of the offense to which the plea is entered is affirmatively demonstrated by the record, the trial court's omission or misstatement of any of its elements is harmless error.").
{¶ 33} First, although the trial court may have misstated the state in which Crespo-Negron's prior burglary convictions occurred — stating that they occurred in New York instead of New Jersey — there is no dispute that Crespo-Negron was, in fact, at least twice previously convicted of burglary out-of-state in 2008 and 2012. The fact that Hudson County, New York does not exist does not change this analysis. There is no claim (or any indication in the record) that Crespo-Negron did not understand the prior convictions to which the trial court was referring during the plea colloquy or that Crespo-Negron was in anyway prejudiced by this error.
{¶ 34} Second, Crespo-Negron pled guilty to burglary in violation of R.C. 2911.12(A)(3). That provision states: "No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense." (Emphasis added.) During the plea colloquy, the trial court described the burglary charge, in relevant part, as: "that on August 15, 2017, in this county, you did by force, stealth, or deception trespass in an unoccupied structure or in a separately secured or separately occupied portion of an occupied structure with the purpose to commit in the structure any criminal offense." (Emphasis added.). Although the trial court misspoke in using the term "unoccupied" instead of "occupied," when describing one aspect of the burglary offense to which Crespo-Negron was pleading guilty, it is clear from the record that Crespo-Negron was aware of the offense to which he was pleading guilty. He has not claimed, much less demonstrated, any prejudice as a result of the error.
{¶ 35} Finally, Crespo-Negron contends that the trial court erred in accepting his guilty plea to the amended burglary count because it failed to state sufficient facts on the record, including "any location or victim information," to ensure that Crespo-Negron understood "the factual underpinnings of the charge" prior to pleading guilty. In support of his argument, Crespo-Negron cites State v. Cole, 8th Dist. Cuyahoga No. 90673, 2008-Ohio-5598. That case is distinguishable. In Cole, the defendant pled guilty to a count of felonious assault with a one-year firearm specification. Id. at ¶ 2. The defendant challenged the trial court's acceptance of his guilty plea, arguing that the trial court had failed to ensure that he understood the nature of the charge or the effect of his guilty plea "as an admission that he attempted to cause physical harm to another by means of a deadly weapon." Id. at ¶ 7. This court agreed, concluding that the totality of the circumstances did not demonstrate that the defendant understood the nature of the crime to which he had pled guilty. Id. at ¶ 9. In reaching this conclusion, the court noted that the indictment was never read to the defendant; the underlying facts were never stated on the record; there was no evidence that the elements of the offense were ever described or explained to appellant at any time and "the fact that he was pleading guilty to felonious assault was not even made clear on the record until the conclusion of the proceedings, and then did not include any explanation of what conduct that crime entailed." Id.
{¶ 36} In this case, by contrast, each of the specific charges to which Crespo-Negron would be pleading guilty, including the amended burglary count, was clearly identified by the state at the outset of the change-of-plea hearing. Each of the specific charges was then described in detail by the trial court and each specific charge was identified a third time when the trial court asked Crespo-Negron how he wished to plead to each offense. In describing the amended burglary count, although the trial court did not identify the victim by name or identify the specific address where the burglary occurred, the trial court identified the date of the offense — August 15, 2017 — indicated that it had occurred "in this county" and described elements of the offense. Crespo-Negron asked no questions and stated that he understood the amended burglary charge against him. There is nothing in the record to suggest that Crespo-Negron was confused at any point during the change-of-plea hearing or did not otherwise fully understand the nature of the amended burglary count or the consequences of his guilty plea to that offense. Rather, it is clear from the totality of the circumstances that he understood both at the time of his guilty plea.
{¶ 37} With respect to Crespo-Negron's guilty plea to the vandalism count in CR-623589, the record reflects that the trial court, in identifying the counts to which Crespo-Negron would be pleading guilty in that case, first properly identified the date of the offenses when describing the robbery count as November 21, 2017. It then misspoke and stated that the date of the vandalism count was the "same date" as the robbery count, "November 2nd." No one noticed or mentioned the error during the change-of-plea hearing. The trial court then proceeded to, once again, correctly identify the date of the offenses in CR-623589 when describing the menacing count:
THE COURT: Sir, in case number 623589, Count 2 alleges robbery. Here the prosecutor claims that on November 21, 2017 in this county, you did while attempting or committing a theft offense or in fleeing immediately after the attempt or offense upon the Convenient Food Mart did use or threaten the immediate use of force against another, namely Nadra Henen. Do you understand that charge against you?(Emphasis added.)
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Mr. Crespo-Negron, in the same case, Count 5 alleges vandalism. Here the prosecutor claims that on that same date, November 2nd, in this county, you knowingly caused physical harm to property owned or possessed by the Convenient Food Mart regardless of the value of the property or the amount of the damage done, and the property or its equivalent was necessary in order for its owner or possessor to engage in the owner's profession, business, trade, or occupation.
Do you understand Count 5?
[THE DEFENDANT]: Yes, your Honor.
THE COURT: Count 6 alleges menacing. Here the prosecutor claims that on November 21st, 2017, in this county, you did knowingly cause Marcelina Davile to believe that you would cause physical harm to him or his property. * * * Do you understand that charge, Mr. Crespo-Negron?
THE DEFENDANT: Yes, your Honor.
{¶ 38} Considering the totality of the circumstances, including the fact that the trial stated "that same date, November 2nd," clearly intending to refer back to the previously referenced date of November 21, 2017, we do not agree the trial court's misstatement precluded a finding that Crespo-Negron understood the nature of the vandalism charge to which he was pleading guilty in CR-623589. The trial court did not simply reference the offenses by date; it stated the elements of each of the offenses and identified the locations and victims of each of the offenses, i.e., the robbery of Convenient Food Mart on 5910 Detroit Road in Cleveland where Crespo-Negron used or threatened to use force against Nadra Heden, the vandalism against the Convenient Food Mart, and the act of menacing against Marcelina Davile. It is apparent from the record that Crespo-Negron was well aware of the nature of all the charges to which he pled guilty in CR-623589 and the consequences of his guilty pleas.
{¶ 39} Based on the record before us, considering the totality of the circumstances, we find that there was substantial compliance with the nonconstitutional aspects of Crim.R. 11(C)(2), i.e., that Crespo-Negron subjectively understood the implications of his guilty pleas and the rights he was waiving by pleading guilty. The record reflects that during the plea colloquy, the trial court identified the offenses to which Crespo-Negron would be pleading guilty and confirmed with Crespo-Negron that these were the offenses to which he was agreeing to plead guilty. The trial court identified the potential penalties associated with each offense and ensured that Crespo-Negron had an understanding of what those offenses entailed.
{¶ 40} We do not believe that any of the misstatements or omissions by the trial court — either in isolation or cumulatively — precluded the trial court from properly finding that Crespo-Negron understood the nature of the offenses to which he pled guilty, that he understood the maximum penalties associated with his guilty pleas and that his guilty pleas were knowingly, intelligently and voluntarily made. Further, even if there had not been substantial compliance, but only partial compliance, with the requirements of Crim.R. 11(C)(2)(a), there would still be no grounds for vacating Crespo-Negron's guilty pleas because there has been no showing that Crespo-Negron was prejudiced as a result of any of the misstatements or other alleged errors by the trial court during the plea colloquy. Crespo-Negron has not shown that he would not have pled guilty were it not for the trial court's misstatements or omissions. Accordingly, Crespo-Negron's first assignment of error is overruled.
Imposition of Consecutive Sentences
{¶ 41} In his second assignment of error, Crespo-Negron argues that the trial court erred in imposing consecutive sentences because certain of the trial court's findings in support of the imposition of consecutive sentences are not supported by the record. Once again, we disagree.
{¶ 42} As this court explained in State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, there are two ways a defendant can challenge consecutive sentences on appeal:
First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(b); State v. Nia, 2014-Ohio-2527, 15 N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record does not support the findings made under R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Nia.Id. at ¶ 7.
{¶ 43} Pursuant to R.C. 2953.08(G)(2)(a), an appellate court may "increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing" if it "clearly and convincingly" finds that "the record does not support the sentencing court's findings" under R.C. 2929.14(C)(4).
{¶ 44} In order to impose consecutive sentences, the trial court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) 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) at least one of the following applies:
(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.R.C. 2929.14(C)(4).
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 45} The trial court must make the required statutory findings at the sentencing hearing and incorporate those findings into its sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. To make the requisite "findings" under the statute, "'the [trial] court must note that it engaged in the analysis' and that it 'has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.'" Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999).
{¶ 46} Crespo-Negron does not dispute that the trial court made all of the requisite findings for the imposition of consecutive sentences at the sentencing hearing and incorporated those findings into its sentencing journal entry. Rather, he contends that the trial court's findings that consecutive sentences are necessary to protect the public and punish him and that consecutive sentences are not disproportionate to the seriousness of his conduct are not supported by the record.
{¶ 47} Following a thorough review of the record, we cannot say that the record clearly and convincingly does not support the trial court's findings. As this court explained in State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.), "[t]his is an extremely deferential standard of review":
It is also important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings. In other words, the restriction is on the appellate court, not the trial judge.Id. at ¶ 21.
{¶ 48} The offenses in this case involved a series of thefts, primarily of local businesses, over several months. Crespo-Negron threw bricks at store windows and caused other damage to store property as he stole from these businesses. He also broke into a woman's home and stole her flat screen television, tablet and DVD player. Several of these offenses occurred after Crespo-Negron had already been indicted for other offenses. In addition, the record reflects that Crespo-Negron has an extensive criminal record, dating back to 2004 0r 2005, that includes numerous prior convictions for similar theft-related offenses.
{¶ 49} At the sentencing hearing, Crespo-Negron's counsel acknowledged that Crespo-Negron had "an extensive record out of state," that he had damaged the businesses he stole from "a great deal" and "caused a lot of bad stuff in the neighborhood." Crespo-Negron also admitted that he had caused $2,100 in property damage to Boost Mobile alone.
{¶ 50} The trial court reasonably concluded that Crespo-Negron's conduct was particularly egregious because the type of offenses and "repeated nature" of the offenses committed by Crespo-Negron impacted not only the victims of the crimes but also the entire neighborhood, i.e., that Crespo-Negron's actions "affect[ed] the ability of people to feel safe to carry on commerce in their daily social lives in a way that they should be able to, in any neighborhood." Based on nature of Crespo-Negron's conduct in these four cases and Crespo-Negron's lengthy criminal history, this is not a case in which the record clearly and convincing does not support the trial court's findings that (1) "consecutive sentences are necessary to protect the public from future crime or to punish the offender" and (2) "consecutive sentences are not disproportionate to the seriousness of the offender's conduct." R.C. 2929.14(C)(4). Accordingly, we overrule Crespo-Negron's second assignment of error.
{¶ 51} Although we affirm Crespo-Negron's convictions, we note, sua sponte, that although, at the sentencing hearing, the indictment was amended and Crespo-Negron pled guilty to an amended count of burglary in violation of R.C. 2911.12(A)(3), a third-degree felony, both the trial court's March 7, 2018 journal entry and April 11, 2018 sentencing journal entry state that Crespo-Negron pled guilty to "Burglary 2911.12A(2) F2 as amended in Count(s) 1 of the indictment * * *" in CR-621395. Accordingly, we remand CR-621395 to the trial court for the limited purpose of issuing a nunc pro tunc order to correct this clerical error and reflect that Crespo-Negron pled guilty to and was convicted of burglary in violation of R.C. 2911.12(A)(3), a third-degree felony. See, e.g., Beachwood v. Pearl, 2018-Ohio-1635, 111 N.E.3d 620, ¶ 27-28 (8th Dist.) ("A trial court may correct clerical errors in its journal entries at any time in order to conform to the transcript of the proceedings. Trial courts retain continuing jurisdiction to correct clerical errors in judgments with a nunc pro tunc entry to reflect what the court actually decided."); Crim.R. 36.
The March 7, 2018 journal entry goes on to state that "[t]his is a 'high tier' third degree felony." --------
{¶ 52} Judgment affirmed; remanded.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga County Court of Common Pleas 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 execution of sentence and issuance of a nunc pro tunc order.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
EILEEN A. GALLAGHER, JUDGE MARY EILEEN KILBANE, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR