State v. Bridges

2019 Ohio 2051

Opinion

[Cite as State v. Bridges, 2019-Ohio-2051.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-18-009

Appellee Trial Court No. 2016CR0649

v.

Roshana Bridges DECISION AND JUDGMENT

Appellant Decided: May 24, 2019

*****

Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold and James A. Hoppenjans, Assistant Prosecuting Attorneys, for appellee.

Frank J. Simmons, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Roshana Bridges, appeals the judgment of the Wood County

Court of Common Pleas, convicting her pursuant to a plea of guilty of one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1) and (B)(1), a

felony of the second degree. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} On January 19, 2017, the Wood County Grand Jury indicted appellant and

two co-defendants on five charges, including one count of engaging in a pattern of

corrupt activity in violation of R.C. 2923.32, a felony of the first degree; one count of

theft in violation of R.C. 2913.02, a felony of the fourth degree; one count of forgery in

violation of R.C. 2913.31, a felony of the fourth degree; one count of possession of

criminal tools in violation of R.C. 2923.24, a felony of the fifth degree; and one count of

money laundering in violation of R.C. 1315.55, a felony of the third degree. The charges

all arose from appellant’s participation in a scheme to deceive and confuse Walmart

cashiers into issuing prepaid credit cards without actual payment.

{¶ 3} Appellant entered an initial plea of not guilty to the charges, and the matter

proceeded to a jury trial beginning on September 25, 2017. On the third day of the trial,

the state offered to allow appellant to plead guilty to the count of engaging in a pattern of

corrupt activity, reduced to a felony of the second degree. In exchange, the state would

agree to drop the remaining charges and to recommend community control sanctions.

Appellant indicated her agreement to the plea offer.

{¶ 4} Prior to dismissing the jury, the court preliminarily confirmed that appellant

was waiving her right to a jury trial. The court then addressed appellant about the nature

of the community control recommendation:

2. THE COURT: I also want to advise you, just so you understand,

that there is a recommendation, the Court has expressed to counsel that it

will give strong consideration to the recommendation of community control

with no prison time and that all the prison time would be reserved. I want

you to fully understand that is merely a recommendation. Do you

understand that?

[APPELLANT]: Yes.

THE COURT: Do you understand that if the Court doesn’t follow it

that it is not a violation of anything and that it doesn’t cause this to be

reversed in any way?

{¶ 5} After the jury was dismissed, the trial court engaged in a Crim.R. 11

colloquy with appellant. As part of the colloquy, the trial court informed appellant that

she was pleading guilty to a felony of the second degree, and that the maximum penalties

for a felony of the second degree were eight years in prison and a $15,000 fine. Further,

the court informed appellant that there was no mandatory prison term, but that a prison

term was presumed. The trial court then went over the sentencing recommendation

again:

THE COURT: You also understand -- and we went over this a little

bit before -- you understand the State is making a recommendation in this

case of probation or what we call community control.

3. THE COURT: Do you understand that?

THE COURT: You understand that is merely a recommendation

and that the Court does not have to follow that recommendation?

Thereafter, the trial court accepted appellant’s guilty plea and continued the matter for

sentencing on November 17, 2017.

{¶ 6} At the sentencing hearing, appellant indicated her desire to further consider

whether she wished to move to withdraw her guilty plea. Thus, the trial court continued

the sentencing hearing until 2:00 p.m. that afternoon. At 2:00 p.m., appellant failed to

appear, and a warrant was issued for her arrest. Appellant was subsequently

apprehended, and a second sentencing hearing was held on January 12, 2018.

{¶ 7} At the second sentencing hearing, appellant acknowledged that she fled the

jurisdiction on November 17, 2017, after one of her co-defendants received a four-year

prison sentence. She stated that she was scared, and wanted to be with her four children

for the holidays. The state, for its part, recognized that appellant fled before sentencing,

that appellant’s conduct was part of a scheme that defrauded Walmart of over one million

dollars, and that appellant was facing additional charges from other jurisdictions.

Nonetheless, the state recommended that appellant receive community control as

discussed in the plea agreement.

{¶ 8} Upon receiving the parties’ arguments, the trial court commented on

appellant’s lengthy history of theft offenses. The court noted that prior instances of

4. probation or court involvement have not been successful, and that theft appears to be a

way for appellant to support herself. Thus, the trial court found that community control

was not appropriate, and sentenced appellant to serve five years in prison.

II. Assignment of Error

{¶ 9} Appellant has timely appealed the January 17, 2018 judgment memorializing

her conviction, and now presents one assignment of error for our review:

1. The trial court abused its discretion by failing to follow the

recommendation of the state of Ohio as part of the negotiated plea

agreement to sentence the defendant to community control. The defendant

agreed to be placed upon community control in the Rule 11 plea agreement

and the record does not justify the imposition of a 5 year prison sentence

which renders the defendant-appellant’s plea as involuntary.

III. Analysis

{¶ 10} In support of her assignment of error, appellant presents two arguments.

{¶ 11} First, appellant argues that her plea was not knowing and voluntary because

she was not put on notice of the possibility of a prison sentence before she entered her

guilty plea.

{¶ 12} “[U]nless a plea is knowingly, intelligently, and voluntarily made, it is

invalid.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. To

ensure that the plea is knowingly, intelligently, and voluntarily made, the trial court must

engage in a colloquy as prescribed in Crim.R. 11. Id. at ¶ 26. Relevant here, Crim.R.

11(C)(2)(a) and (b) provide,

5. (2) In felony cases the court * * * 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.

{¶ 13} “[I]f the trial judge imperfectly explained nonconstitutional rights such as

the right to be informed of the maximum possible penalty and the effect of the plea, a

substantial-compliance rule applies.” Clark at ¶ 31. “Under this standard, a slight

deviation from the text of the rule is permissible; so long as the totality of the

circumstances indicates that ‘the defendant subjectively understands the implications of

his plea and the rights he is waiving,’ the plea may be upheld.” Id., quoting State v. Nero,

56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶ 14} Here, the record belies appellant’s assertion that she was not notified of the

possibility of a prison sentence. In fact, the trial court expressly informed appellant that

the maximum prison sentence for a felony of the second degree was eight years.

Furthermore, appellant affirmed on more than one occasion that she understood that the

6. state’s recommendation of community control was merely a recommendation, and that

the court was not bound by it. Therefore, we hold that under the totality of the

circumstances appellant subjectively understood the implications of her plea and the

rights she was waiving, and thus her plea was knowingly, voluntarily, and intelligently

made.

{¶ 15} Second, appellant argues that the trial court abused its discretion when it

did not give its reasons for deviating from the state’s recommendation, and did not

specifically state the purposes and factors set forth in R.C. 2929.11 and 2929.12.

{¶ 16} We review felony sentences under the approach set forth in R.C.

2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶

11. R.C. 2953.08(G)(2) provides that an appellate court “may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * * if it

clearly and convincingly finds: * * * (b) That the sentence is otherwise contrary to law.”

{¶ 17} In Tammerine, we recognized that State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, still can provide guidance for determining whether a

sentence is clearly and convincingly contrary to law. Tammerine at ¶ 15. The Ohio

Supreme Court in Kalish, held that where the trial court expressly stated that it

considered the purposes and principles of R.C. 2929.11, as well as the factors listed in

R.C. 2929.12, properly applied postrelease control, and sentenced the defendant within

the statutorily permissible range, the sentence was not clearly and convincingly contrary

to law. Kalish at ¶ 18.

7. {¶ 18} As to appellant’s argument that the trial court did not give its reasons for

deviating from the state’s recommendation, we note that “[a] trial court does not err by

imposing a sentence greater than ‘that forming the inducement for the defendant to plead

guilty when the trial court forewarns the defendant of the applicable penalties, including

the possibility of imposing a greater sentence than that recommended by the prosecutor.’”

State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th

Dist.), quoting State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014, 2002 Ohio App.

LEXIS 1891 (Apr. 22, 2002). Here, as discussed above, the trial court notified appellant

of the maximum possible penalties, and notified her, prior to accepting the guilty plea,

that the court could deviate from the state’s recommendation of community control.

Moreover, in this case the trial court also informed appellant at sentencing why it was

deviating from the state’s recommendation, citing appellant’s extensive history of theft

offenses.

{¶ 19} As to appellant’s argument that the trial court did not specifically give its

reasons under R.C. 2929.11 and 2929.12, it is well-established that the trial court “is not

required to state the specific statutory factors in R.C. 2929.11 and 2929.12 on which it

relied.” State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 14.

Nonetheless, in the trial court’s sentencing entry, not only did it expressly state that it

considered R.C. 2929.11 and R.C. 2929.12, but it also stated that a prison sentence was

warranted because: “The victim of the offense suffered serious economical harm as a

result of the offense; The offender acted for hire or as part of organized criminal activity;

8. The offender has a history of criminal convictions or juvenile delinquency adjudications;

[and] The offender shows no genuine remorse.”

{¶ 20} Therefore, appellant’s arguments that the trial court abused its discretion in

sentencing her to prison are without merit, and we hold that her sentence was not clearly

and convincingly contrary to law.

{¶ 21} Accordingly, appellant’s assignment of error is not well-taken.

IV. Conclusion

{¶ 22} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Wood County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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