[Cite as State v. Bennett, 2015-Ohio-173.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 101206
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LAWRENCE B. BENNETT
DEFENDANT-APPELLANT
JUDGMENT: SENTENCE REVERSED AND VACATED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-579690-A
BEFORE: Boyle, P.J., Keough, J., and McCormack, J.
RELEASED AND JOURNALIZED: January 22, 2015 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender BY: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Lakesha M. Johnson Anthony Thomas Miranda Assistant County Prosecutors Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Lawrence Bennett, appeals his convictions and sentence,
raising two assignments of error for our review:
1. The trial court committed error when it refused Mr. Bennett’s pre-sentence motion to withdraw his guilty plea.
2. The order of restitution included in the Journal Entry is void because it was not entered in open court as required by R.C. 2929.18(A)(1).
{¶2} We find no merit to his assignments of error, but reverse and vacate his sentence
and remand for resentencing because we find that the trial court committed plain error with
respect to allied offenses of similar import.
Procedural History and Factual Background
{¶3} In December 2013, Bennett was indicted on four counts: breaking and entering in
violation of R.C. 2911.13(A), theft in violation of R.C. 2913.02(A)(1), vandalism in violation of
R.C. 2909.05(B)(1)(b), and possessing criminal tools in violation of R.C. 2923.24(A). Each
count carried a forfeiture specification attached to it. The charges arose from allegations that
Bennett and an accomplice broke into Hamilton Marquette United Partnership and stole heavy
gauge copper wire out of electrical boxes.
Plea Hearing
{¶4} In January 2014, Bennett withdrew his former plea of not guilty and entered a
guilty plea to breaking and entering and theft. The remaining counts were nolled. The
following took place at the plea hearing.
{¶5} The state outlined the plea agreement, indicating that both offenses were
fifth-degree felonies subject to a potential prison sentence of six to twelve months. {¶6} Defense counsel agreed that Bennett would be withdrawing his previously entered
plea of not guilty and would be entering a guilty plea to the charges as outlined by the prosecutor.
Defense counsel then stated, “[m]y understanding is that those two counts would merge
together for purposes of sentencing.”
{¶7} The trial court asked, “[d]oes the state agree with that?” The state replied,
“[y]our honor, yes. Yes.” The state then stated, “[a]nd I just have to interject, there is
restitution in the amount of $9,912.44 that it’s our understanding both defendants will agree to
pay.”
{¶8} The trial court proceeded to question Bennett. Upon questioning, Bennett
informed the trial court that he was 46 years old, graduated from high school, was an American
citizen, that he was not on probation or postrelease control at the time of the offense, and that no
one had made any threats or promises to him “with regard to what sentence [he] would receive”
if he entered into the plea. The trial court also asked Bennett, “[t]oday as you stand before me,
are you under the influence of any alcohol, drugs, or medication that would impair your
judgment?” Bennett replied, “[n]o, I’m not on anything.”
{¶9} The trial court then reviewed Bennett’s constitutional rights with him, and made
sure that Bennett understood those rights and understood that he was giving those rights up by
entering into the plea.
{¶10} The trial court also reviewed the potential penalties of each offense with Bennett,
indicating that the offenses “would merge for purposes of sentencing” and because of that, he
would face a potential prison sentence of six to twelve months in prison. The trial court further
informed Bennett of postrelease control and of the consequences that he could face if he violated the terms of his postrelease control. The trial court then asked the state and defense counsel if it
had complied with Crim.R. 11, which both indicated that it had.
{¶11} At that point, the trial court asked Bennett, “[s]o how do you plead to count one,
count two, felonies of the fifth degree[?]” Bennett replied, “[g]uilty.” The following
exchange then took place:
MR. BENNETT: I really don’t have a choice.
THE COURT: You have a choice. Why do you have — why are you shaking your head?
MR. BENNETT: Well, would you care to explain it to him the way I explained it to you about what really happened. I’m just going to go with a leap of faith, sir, put myself in your hands.
[DEFENSE COUNSEL]: Your Honor —
THE COURT: As long as you’re saying that, I mean, your choice to enter this plea agreement is yours alone. Okay. If you are not guilty, don’t enter a plea agreement. If there is some mitigation circumstances that you want the court to consider, I’ll consider those at sentencing. But, I’m not going to — if you think that you can enter a plea of guilty, then show up here at sentencing and say, I’m really not guilty, meld some type of justice into this resolution, don’t enter a plea.
MR. BENNETT: Right.
THE COURT: But if there is — I’m not going to go into the facts of this case. You’ve been accused of breaking and entering, theft, vandalism, possession of criminal tools. Presumably at this point, your counsel has gone through the evidence that would be presented against you, you’ve had an opportunity to sit down and talk about what your chances of being convicted if you go to trial are on this. But, you — you know, it was brought up here, we’re in the middle of trial right now, we’ve gone through a lengthy colloquy just to make sure you’re doing this knowingly and voluntarily. You can’t shake your head, say — I don’t want to hear later on, I want to withdraw my plea. If you want to go to trial on this, we’re more than likely — we’re more than willing to provide you that trial date. Okay?
MR. BENNETT: Uh-huh. Uh-huh.
THE COURT: What do you want to do? MR. BENNETT: I want to go with what he said.
THE COURT: You want to —
MR. BENNETT: I’m going through with it.
THE COURT: You understand you are entering a contract with the state of Ohio by doing that, right?
MR. BENNETT: I do.
THE COURT: You’ll be subject to the punishments I just went over.
MR. BENNETT: Exactly.
THE COURT: You want to proceed?
MR. BENNETT: Yes.
THE COURT: How do you plead?
MR. BENNETT: Guilty.
THE COURT: The court accepts your guilty plea.
{¶12} At the close of the plea hearing, the trial court referred Bennett for a presentence
investigation report.
First Sentencing Hearing
{¶13} On February 19, 2014, Bennett’s defense counsel spoke extensively to the court
about why he believed Bennett should receive probation, despite his lengthy criminal record.
The prosecutor, who was not the same one who was at Bennett’s plea hearing, requested that
Bennett be sentenced to prison and pay restitution in the amount of $9,912.44.
{¶14} The court then asked if the two offenses were allied. The prosecutor replied that
she did not believe that the offenses were allied, but said, “I think it may have been said at the
plea by one of my colleagues that it may be allied.” The prosecutor then told the court that she
was advocating for consecutive sentences. At that point, Bennett said, “[t]hat wasn’t the agreement.” The court asked Bennett, “[w]ere you under the impression that there was an
agreement if you pled?” Bennett replied: “I was under the impression that there was a merger
for the theft that occurred with the B&E and it would be served like that[.]” Bennett’s defense
counsel said that he remembered “something along the lines of what [Bennett] said, that it was a
merger.” Defense counsel for Bennett’s codefendant stated that his notes from the plea hearing
indicated that the two offenses merged for purposes of sentencing. The trial court continued the
matter to explore what had occurred at the plea hearing with regard to allied offenses.
Second Sentencing Hearing
{¶15} On February 25, 2014, the sentencing hearing resumed. At the beginning of the
hearing, defense counsel again requested that the court give Bennett probation because he “wants
to change his life around.” Defense counsel then said, “I spoke to Mr. Bennett at length this
morning. He’s curious as to, I guess, what the sentence — the possible sentence the court is
willing to impose today?” The court replied, “[t]hat is the purpose of this hearing. That is
what we are here about.” Defense counsel then stated: “[Bennett] wishes to withdraw his plea.
After this issue is addressed, I’d also move to withdraw as counsel.”
{¶16} At that point, Bennett informed the court that he thought that when a person enters
into a plea agreement, the person should know what his or her sentence will be. The trial court
explained that it can be that way, but not always. The trial court then stated:
I don’t have the transcript before me, but the record should reflect I went through in the plea colloquy, Has anyone made any representations to you regarding what sentence you would receive if you enter this plea agreement? I wouldn’t have accepted it unless you either said, yes, and everybody agreed to that; or, you said no representing no such representation.
{¶17} Bennett replied, “[a]t the time, I just trusted [my defense counsel.]” Bennett then
stated, “I take Wellbutrin, and Vistaril, and Risperdal. At the time, I was not on it and not able to think real clearly.” The trial court replied, “[t]hat is another question that I would have asked
of you at the time, whether you were on medication.” Bennett responded, “I said, no, I wasn’t
on medication. But I was supposed to have medication.” Bennett then stated, “[t]he plea
agreement was, to me, way too open-ended.” Bennett argued to the trial court that the police
report was not correct on what had occurred at Hamilton Marquette United Partnership and that
is “one of the reasons why I wanted to retract my plea because this ain’t right.” At that point,
the trial court continued the sentencing hearing to hold a hearing on Bennett’s motion to
withdraw.
{¶18} At the close of the February 25, 2014 hearing, Bennett filed a written motion to
withdraw his plea. In his written motion, Bennett informed the court that on the day of the plea
hearing, he did not take his medication. Although that was the “strongest reason” for requesting
to withdraw his plea, Bennett further indicated that he “thought that he should know what his
sentence would likely be.”
Motion to Withdraw Hearing and Final Sentencing Hearing
{¶19} The trial court held a hearing on Bennett’s motion to withdraw on March 4, 2014.
The state argued that the trial court should deny Bennett’s motion to withdraw his plea. In
doing so, the state reviewed the plea deal, the transcript of the plea hearing, and the facts of the
case with the trial court.
{¶20} The court then read the portion of the transcript from the plea hearing where
Bennett had indicated that he was entering into the plea because he did not have a choice (set
forth earlier in this opinion). The court concluded by stating:
All right. So it’s clear from the transcript that what’s different from most normal plea agreements where you just have a bare plea colloquy, we had an actual discussion on the seriousness of entering this plea agreement with the court basically telling the defendant point blank if he is not guilty of this, what’s alleged, he should absolutely not enter a plea. The court expressed a willingness to provide this defendant with the trial date if in fact he was not guilty.
{¶21} The court then asked, “[n]ow, in the transcript did we address the issue of whether
these offenses were allied?” The prosecutor replied, “[y]es, that was addressed and the
prosecutor that was representing the state did say that she agreed that they would merge.” The
court replied, “So apparently that was — that point was brought up in the plea negotiations and
you did negotiate — it was not?” The prosecutor replied, “It was not brought in the plea
negotiations. The first time it was mentioned was standing here in court and I think — [.]”
The trial court interrupted the prosecutor and stated, “You got an agreement from the state that
they would merge?” The prosecutor replied, “Right. After the fact, yes.” The court then
stated: “But when — so the defendant inadvertently received a benefit here because as I hear the
facts, the state could argue that these two counts, breaking and entering and the theft, were both
separate offenses that could be sentenced consecutively.” The prosecutor replied, “Yes, your
honor. That’s correct.”
{¶22} Defense counsel then argued to the court that at the plea hearing, when the court
asked Bennett if he was under the influence of any medication or alcohol, and Bennett answered
“no.” Defense counsel pointed out that was exactly the problem; Bennett was not on any
medication, but was supposed to be. Defense counsel argued that because Bennett was not
taking his medication, he was not able to think clearly.
{¶23} The court disagreed, stating that there were not any issues relating to Bennett’s
competency at the plea hearing. The court explained that it recalled the plea hearing clearly.
The court stated that there was no confusion at all; “it was like a complete lucidity of what was
going on here,” including Bennett’s responses to the court and to his attorney. The court further stated, “[n]othing in your demeanor or your responses or anything reflected in this transcript
reflects to me someone that doesn’t understand what’s going on.”
{¶24} Bennett argued that he did not agree with the state’s version of the facts. Bennett
stated that this case should have been a “minor misdemeanor or whatever trespassing carries.”
Bennett further argued that “there was a discrepancy in the plea agreement to the concurrent
versus consecutive sentence and the amount of restitution that was supposed to be paid.”
{¶25} The court concluded:
All right. Thank you. I’ve taken everything that you’ve just stated under consideration. However, I want the record to reflect that from my vantage point I see no difference in demeanor or understanding than the same that I observed from the same individual, the defendant, at the plea hearing. I believe you were fully competent. There was no — we went through everything and this is an attempt, as reflected by the inquiry made through your counsel at the sentencing to find out what the sentence would be before proceeding. When you did not receive that, that’s where this request to withdraw the plea came from. I believe that’s insufficient.
{¶26} The court then stated:
One second. And the record will reflect that you’d be subjecting yourself to
further peril if the court were to let you withdraw your plea because you then
would be subject to, at a conviction, consecutive sentences, so I’m not using that
particular factor as a reason not to withdraw your plea, but taking into
consideration the totality of the circumstances surrounding this plea, this
resolution, the fact that the court emphasized your ability to contest these
accusations at trial, now hearing the evidence of a relatively straightforward case
of breaking and entering and theft.
{¶27} After denying Bennett’s motion to withdraw, the trial court proceeded to
sentencing. The trial court stated that it “could see no other alternative but to impose the maximum sentence * * *, which is a one-year prison sentenced followed by three years
post-release control.” In the sentencing entry, however, the trial court sentenced Bennett to one
year in prison on each count, to be served concurrently to one another. The trial court further
notified Bennett in the sentencing entry that he could be subject to three years of postrelease
control upon his release from prison. Additionally, the trial court ordered that Bennett pay
Hamilton Marquette Limited Partnership restitution in the amount of $9,912.44. It is from this
judgment that Bennett appeals.
Motion to Withdraw Plea
{¶28} In his first assignment of error, Bennett contends that the trial court erred when it
denied his presentence motion to withdraw his plea.
{¶29} A motion to withdraw a guilty plea is governed by the standards set forth in
Crim.R. 32.1, which provides that “[a] motion to withdraw a plea of guilty or no contest may be
made only before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶30} Generally, a presentence motion to withdraw a guilty plea should be freely and
liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). A defendant,
however, does not have an absolute right to withdraw a plea prior to sentencing, and it is within
the sound discretion of the trial court to determine what circumstances justify granting such a
motion. Id. In ruling on a presentence motion to withdraw a plea, the court must conduct a
hearing and decide whether there is a reasonable and legitimate basis for withdrawal of the plea.
Id. at 527. This court has held that a trial court does not abuse its discretion in overruling a
motion to withdraw a plea:
(1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.
State v. Tucker, 8th Dist. Cuyahoga No. 97981, 2012-Ohio-5067, ¶ 7, quoting State v. Peterseim,
68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980), paragraph three of the syllabus.
{¶31} We find no abuse of discretion in the trial court’s denial of Bennett’s plea
withdrawal request as the parameters set forth in Peterseim are met here: (1) Bennett was
represented by highly competent counsel, (2) he was afforded a full Crim.R. 11 hearing before he
entered into the plea, (3) he was given a full and impartial hearing on his motion to withdraw his
plea, and (4) the record reveals that the court gave full and fair consideration to Bennett’s plea
withdrawal request. The court also recalled the plea hearing and could remember Bennett’s
mental state during the hearing, namely, that he was fully competent and understood exactly what
was happening, even without his medication. Moreover, we agree with the court that Bennett
simply had a change of heart when he realized that the court would not tell him what his sentence
would be before he was sentenced.
{¶32} Thus, Bennett’s first assignment of error is without merit with respect to the trial
court’s denial of his presentence motion to withdraw his plea.
{¶33} We do note, however, that it is clear from the transcript of the plea hearing that
Bennett agreed to plead guilty to breaking and entering and theft with the understanding that the
two offenses were allied offenses of similar import and would merge for purposes of sentencing.
We further find that it is clear from the transcript that the trial court recognized that the merger
of the offenses was part of the plea and that defendant was entitled to that benefit at sentencing.
{¶34} But the trial court never merged the two offenses prior to sentencing Bennett, nor
did the state elect which of the allied offenses to pursue at sentencing. The trial court merely stated at the sentencing hearing that it was sentencing Bennett to the maximum sentence of one
year in prison. Although that appears as if the trial court intended to merge the two offenses at
the sentencing hearing, it did not do so in its sentencing entry, compounding the issue even more.
In the sentencing entry, the court sentenced Bennett to one year in prison on each count, and
ordered them to be served concurrently to one another. This was incorrect. It is plain error for
a trial court to sentence an offender on two allied offenses of similar import, even if it orders
them to be served concurrently. State v. Johnson, 8th Dist. Cuyahoga No. 99656,
2013-Ohio-5430, ¶ 29, citing State v. Walker, 8th Dist. Cuyahoga No. 94878, 2011-Ohio-1556.
{¶35} Accordingly, we vacate Bennett’s sentence and remand for resentencing where the
state can elect which allied offense on which Bennett will be sentenced.
Restitution
{¶36} In his second assignment of error, Bennett maintains that the trial court erred when
it ordered him to pay $9,912.44 in restitution to the victim when the trial court did not mention
restitution at the sentencing hearing.
{¶37} R.C. 2929.18 allows trial courts to impose various financial sanctions, including
restitution, on offenders. R.C. 2929.18(A) states that:
Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following:
(1) Restitution by the offender to the victim of the offender’s crime or any survivor of the victim, in an amount based on the victim’s economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designated by the court. If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. All restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender.
{¶38} Where a trial court fails to inform the defendant in open court that he or she is
required to pay restitution, appellate courts will reverse the restitution order and “‘remand for the
trial court to address the matter in open court as required by law.’” State v. Veto, 8th Dist.
Cuyahoga No. 98770, 2013-Ohio-1797, ¶ 18, quoting State v. Burrell, 8th Dist. Cuyahoga No.
96123, 2011-Ohio-5655, ¶ 32.
{¶39} After review, we find no error on the part of the trial court. Although the law
requires courts to discuss restitution on the record prior to sentencing, in this case, Bennett
agreed to pay the restitution as part of his plea deal. Moreover, the trial court did discuss the
amount of restitution in open court with Bennett at his first sentencing hearing, without objection
from Bennett. Although the sentencing hearing was ultimately continued to address Bennett’s
motion to withdraw his plea, restitution was still discussed, including the amount of restitution
that Bennett agreed to pay as part of his plea.
{¶40} Accordingly, Bennett’s second assignment of error is overruled.
{¶41} Judgment reversed; sentence vacated. This matter is remanded for resentencing.
It is ordered that appellant recover from appellee 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and TIM McCORMACK, J., CONCUR