[Cite as State v. Berlingeri, 2011-Ohio-2528.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95458
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DOMINIC BERLINGERI, JR.
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-527719
BEFORE: Stewart, P.J., Sweeney, J., and Keough, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Jeffrey R. Froude P.O. Box 761 Wickliffe, OH 44092-0761
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Marc D. Bullard Katherine Mullin Assistant County Prosecutors The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} Defendant-appellant, Dominic Berlingeri, Jr., appeals his
conviction and 15-year sentence after pleading guilty to 12 counts of
aggravated robbery. For the reasons stated below, we affirm.
{¶ 2} On August 31, 2009, Berlingeri and six co-defendants were
charged in a 26-count indictment with 12 counts of aggravated robbery, 12 counts of kidnapping, and one count each of disrupting public service and
vandalism. These charges arose from their joint participation in the armed
robbery of 12 victims in a “high stakes” poker game. Each count against
Berlingeri included one and three-year firearm specifications, a notice of prior
conviction, and a repeat violent offender specification. Berlingeri entered
into a plea agreement under which he entered guilty pleas to 12 amended
counts of aggravated robbery, each with a notice of prior conviction and a
three-year firearm specification. The remaining charges were dismissed.
{¶ 3} The trial court accepted Berlingeri’s guilty pleas and imposed a
sentence of six years on each of the aggravated robbery counts. The court
ordered the six-year term for the first count of aggravated robbery to be
served consecutively to the concurrent terms on the remaining 11 counts.
With the mandatory three-year term for the merged firearm specifications,
Berlingeri was sentenced to a total of 15 years in prison. It is from this
conviction that Berlingeri appeals, raising three assignments of error.
{¶ 4} In his first assignment of error, Berlingeri challenges the validity
of his guilty pleas, arguing that his pleas were not knowingly, intelligently, or
voluntarily made because he was misinformed of the maximum penalty that
could be imposed for the offenses to which he entered a plea. He argues that
the trial court explained that the punishment for aggravated robbery of 12
victims is three to ten years in prison when, in fact, he faced a maximum penalty of 123 years incarceration. He also claims that because he was
taking a powerful antidepressant, the court needed more information about
his mental health before accepting his pleas so as to be certain he understood
the maximum period of incarceration he was facing.
{¶ 5} In State v. Johnson (1988), 40 Ohio St.3d 130, 133, 532 N.E.2d
1295, the Ohio Supreme Court held that Crim.R. 11(C) did not require that a
defendant be told the maximum total of the sentences he faces, or that the
sentence could be imposed consecutively in order for the plea to be voluntary.
The court noted that Crim.R. 11(C) “speaks in the singular,” and therefore
the phrase “maximum penalty” that is required to be explained in Crim.R.
11(C)(2)(a), refers to a single crime rather than the total of all sentences. Id.
{¶ 6} In the instant case, the trial court explained the “penalties” for
the crime of aggravated robbery in Counts 1 through 12 were three to ten
years for the “base crime,” a mandatory three-years for the firearm
specification, and a mandatory five-year period of postrelease control. The
court further explained that due to the notice of prior conviction, prison time
was mandatory. We find the court’s explanation sufficiently advised
Berlingeri of the maximum penalty he faced for his plea.
{¶ 7} We are also not persuaded by Berlingeri’s argument that the trial
court needed more information regarding his mental health before accepting
his pleas. There is nothing in the record to support Berlingeri’s allegation that he has limited mental capabilities or that he was unable to understand
the court’s maximum-penalty explanation because of medication he was
taking. The record reflects that prior to the plea hearing, Berlingeri
underwent a competency evaluation at Northcoast Behavioral Healthcare and
was found competent to stand trial. If a defendant is determined to be
competent to stand trial, he is also competent to plead guilty. State v. Bolin
(1998), 128 Ohio App.3d 58, 62, 713 N.E.2d 1092, citing Godinez v. Moran
(1993), 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321. Additionally, before
accepting Berlingeri’s guilty pleas, the trial court asked him about the
medication he was taking and whether he was able to think clearly at the
time. Berlingeri responded that he was. After explaining the penalties
Berlingeri was facing for a plea of guilty, the court stopped and asked
Berlingeri if he understood the explanation. Berlingeri said he did.
Berlingeri also told the court that he was satisfied with his counsel’s
representation and had no questions about the case or the plea hearing. On
this record, we find that the trial court substantially complied with the
requirements of Crim.R. 11(C) and that Berlingeri understood the maximum
penalty he faced for his plea. Accordingly, the trial court did not err when it
accepted Berlingeri’s pleas. The first assignment of error is overruled.
In his second assignment of error, Berlingeri claims that the trial court
erred by sentencing him without considering a presentence investigation report (“PSI”). He argues that postrelease control is a form of community
control and, therefore, the trial court was required under Crim.R. 32.2 and
R.C. 2951.03(A)(1) to consider a written PSI before imposing sentence.
{¶ 8} We first note that Berlingeri did not request a PSI prior to
sentencing or object to the absence of one at sentencing. In fact, defense
counsel acknowledged the absence of a PSI at sentencing and told the court,
“We didn’t even dream to ask. That would be an affront to everyone. He
knows he is going to prison.” Accordingly, Berlingeri waived all but plain
error on this issue.
{¶ 9} Under certain circumstances a trial court may exercise its
discretion and sentence a felony offender to community control sanctions
instead of prison. R.C. 2929.15. Before doing so, the court must first obtain a
PSI. R.C. 2951.03. A trial court is without authority to order a community
control sanction in felony cases without a PSI. State v. Peck, 8th Dist. No.
92374, 2009-Ohio-5845. However, a PSI is mandatory only if the trial court
sentences a felony offender to community control sanctions instead of prison.
State v. Leonard, 8th Dist. No. 88299, 2007-Ohio-3745, ¶15. The option of a
community control sentence is not available when the conviction carries a
mandatory prison term. R.C. 2929.15 (A)(1). Since Berlingeri faced
mandatory incarceration in this case, community control was not an option.
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[Cite as State v. Berlingeri, 2011-Ohio-2528.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95458
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DOMINIC BERLINGERI, JR.
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-527719
BEFORE: Stewart, P.J., Sweeney, J., and Keough, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Jeffrey R. Froude P.O. Box 761 Wickliffe, OH 44092-0761
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Marc D. Bullard Katherine Mullin Assistant County Prosecutors The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} Defendant-appellant, Dominic Berlingeri, Jr., appeals his
conviction and 15-year sentence after pleading guilty to 12 counts of
aggravated robbery. For the reasons stated below, we affirm.
{¶ 2} On August 31, 2009, Berlingeri and six co-defendants were
charged in a 26-count indictment with 12 counts of aggravated robbery, 12 counts of kidnapping, and one count each of disrupting public service and
vandalism. These charges arose from their joint participation in the armed
robbery of 12 victims in a “high stakes” poker game. Each count against
Berlingeri included one and three-year firearm specifications, a notice of prior
conviction, and a repeat violent offender specification. Berlingeri entered
into a plea agreement under which he entered guilty pleas to 12 amended
counts of aggravated robbery, each with a notice of prior conviction and a
three-year firearm specification. The remaining charges were dismissed.
{¶ 3} The trial court accepted Berlingeri’s guilty pleas and imposed a
sentence of six years on each of the aggravated robbery counts. The court
ordered the six-year term for the first count of aggravated robbery to be
served consecutively to the concurrent terms on the remaining 11 counts.
With the mandatory three-year term for the merged firearm specifications,
Berlingeri was sentenced to a total of 15 years in prison. It is from this
conviction that Berlingeri appeals, raising three assignments of error.
{¶ 4} In his first assignment of error, Berlingeri challenges the validity
of his guilty pleas, arguing that his pleas were not knowingly, intelligently, or
voluntarily made because he was misinformed of the maximum penalty that
could be imposed for the offenses to which he entered a plea. He argues that
the trial court explained that the punishment for aggravated robbery of 12
victims is three to ten years in prison when, in fact, he faced a maximum penalty of 123 years incarceration. He also claims that because he was
taking a powerful antidepressant, the court needed more information about
his mental health before accepting his pleas so as to be certain he understood
the maximum period of incarceration he was facing.
{¶ 5} In State v. Johnson (1988), 40 Ohio St.3d 130, 133, 532 N.E.2d
1295, the Ohio Supreme Court held that Crim.R. 11(C) did not require that a
defendant be told the maximum total of the sentences he faces, or that the
sentence could be imposed consecutively in order for the plea to be voluntary.
The court noted that Crim.R. 11(C) “speaks in the singular,” and therefore
the phrase “maximum penalty” that is required to be explained in Crim.R.
11(C)(2)(a), refers to a single crime rather than the total of all sentences. Id.
{¶ 6} In the instant case, the trial court explained the “penalties” for
the crime of aggravated robbery in Counts 1 through 12 were three to ten
years for the “base crime,” a mandatory three-years for the firearm
specification, and a mandatory five-year period of postrelease control. The
court further explained that due to the notice of prior conviction, prison time
was mandatory. We find the court’s explanation sufficiently advised
Berlingeri of the maximum penalty he faced for his plea.
{¶ 7} We are also not persuaded by Berlingeri’s argument that the trial
court needed more information regarding his mental health before accepting
his pleas. There is nothing in the record to support Berlingeri’s allegation that he has limited mental capabilities or that he was unable to understand
the court’s maximum-penalty explanation because of medication he was
taking. The record reflects that prior to the plea hearing, Berlingeri
underwent a competency evaluation at Northcoast Behavioral Healthcare and
was found competent to stand trial. If a defendant is determined to be
competent to stand trial, he is also competent to plead guilty. State v. Bolin
(1998), 128 Ohio App.3d 58, 62, 713 N.E.2d 1092, citing Godinez v. Moran
(1993), 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321. Additionally, before
accepting Berlingeri’s guilty pleas, the trial court asked him about the
medication he was taking and whether he was able to think clearly at the
time. Berlingeri responded that he was. After explaining the penalties
Berlingeri was facing for a plea of guilty, the court stopped and asked
Berlingeri if he understood the explanation. Berlingeri said he did.
Berlingeri also told the court that he was satisfied with his counsel’s
representation and had no questions about the case or the plea hearing. On
this record, we find that the trial court substantially complied with the
requirements of Crim.R. 11(C) and that Berlingeri understood the maximum
penalty he faced for his plea. Accordingly, the trial court did not err when it
accepted Berlingeri’s pleas. The first assignment of error is overruled.
In his second assignment of error, Berlingeri claims that the trial court
erred by sentencing him without considering a presentence investigation report (“PSI”). He argues that postrelease control is a form of community
control and, therefore, the trial court was required under Crim.R. 32.2 and
R.C. 2951.03(A)(1) to consider a written PSI before imposing sentence.
{¶ 8} We first note that Berlingeri did not request a PSI prior to
sentencing or object to the absence of one at sentencing. In fact, defense
counsel acknowledged the absence of a PSI at sentencing and told the court,
“We didn’t even dream to ask. That would be an affront to everyone. He
knows he is going to prison.” Accordingly, Berlingeri waived all but plain
error on this issue.
{¶ 9} Under certain circumstances a trial court may exercise its
discretion and sentence a felony offender to community control sanctions
instead of prison. R.C. 2929.15. Before doing so, the court must first obtain a
PSI. R.C. 2951.03. A trial court is without authority to order a community
control sanction in felony cases without a PSI. State v. Peck, 8th Dist. No.
92374, 2009-Ohio-5845. However, a PSI is mandatory only if the trial court
sentences a felony offender to community control sanctions instead of prison.
State v. Leonard, 8th Dist. No. 88299, 2007-Ohio-3745, ¶15. The option of a
community control sentence is not available when the conviction carries a
mandatory prison term. R.C. 2929.15 (A)(1). Since Berlingeri faced
mandatory incarceration in this case, community control was not an option.
Therefore, a presentence investigation and report were not required. {¶ 10} Berlingeri’s second assignment of error is overruled.
{¶ 11} In his third assignment of error, Berlingeri argues that the trial
court erred by imposing disparate sentences on similar offenders. He
maintains that since there was only one crime committed, all of the
co-defendants are identically guilty and should receive similar sentences. He
argues that his 15- year sentence is disproportionate to that of the other
co-defendants who received sentences ranging from community control to 12
years. He notes that he is the only one that received a consecutive sentence
and that the “mastermind” of the robbery received a sentence of only eight
years. He further argues that the trial court could not rely on
“individualized factors” to justify giving him more time because the court did
not order a PSI to provide those factors. We find these arguments lacking in
merit.
{¶ 12} R.C. 2929.11(B) requires the court impose a sentence that is
“reasonably calculated to achieve the two overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate with and
not demeaning to the seriousness of the offender’s conduct and its impact
upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” There is no requirement that co-defendants
receive equal sentences. State v. Wickham, 5th Dist. No. CT2006-0084,
2007-Ohio-1754, ¶29, citing State v. Lloyd, 11th Dist. No. 2002-L-069, 2003-Ohio-6417, ¶21 and United States v. Frye (C.A.6, 1987), 831 F.2d 664,
667. “Each defendant is different and nothing prohibits a trial court from
imposing two different sentences upon individuals convicted of similar
crimes.” Wickham at ¶29, citing State v. Aguirre, 4th Dist. No. 03CA5,
2003-Ohio-4909, at ¶50. When that happens, “the task of the appellate court
is to determine whether the sentence is so unusual as to be outside the
mainstream of local judicial practice. We bear in mind that although
offenses may be similar, there may be distinguishing factors that justify
dissimilar sentences.” State v. Beasley, 8th Dist. No. 82884, 2004-Ohio-988,
¶24 (internal citation omitted).
{¶ 13} The record reveals that there were distinguishing factors to
justify the dissimilar sentences. Berlingeri was one of the six defendants
who accepted plea bargains with the state. Some of those defendants were
allowed to plead to reduced charges based upon their level of participation in
the armed robbery and their cooperation with the state. The record reflects
that the trial court considered these factors in mitigation. The court also
considered other factors relating to seriousness and recidivism. Of the six
defendants that entered pleas, only Berlingeri’s plea included a notice of prior
conviction. The court considered Berlingeri’s prior criminal record and noted
that he had been out of prison for only two years before committing this
crime. {¶ 14} Upon consideration of the sentences imposed for all of the
defendants in this case, we cannot say that Berlingeri’s sentence is so
unusual as to be outside the mainstream of local judicial practice. The
record demonstrates that the court imposed a sentence that is within the
range of sentences for the offenses and that the trial court considered the
objectives of R.C. 2929.11(B) when sentencing Berlingeri. Accordingly, the
third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
JAMES J. SWEENEY, J., and KATHLEEN ANN KEOUGH, J., CONCUR