State v. Delp

100 N.E.3d 1194, 2017 Ohio 8879
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedDecember 7, 2017
DocketNo. 105467
StatusPublished
Cited by1 cases

This text of 100 N.E.3d 1194 (State v. Delp) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Delp, 100 N.E.3d 1194, 2017 Ohio 8879 (Ohio Super. Ct. 2017).

Opinion

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Michael Delp ("appellant"), filed a notice of appeal from two criminal cases, Cuyahoga C.P. Nos. CR-15-599103-B and CR-15-595152-B. In CR-15-595152-B, because the trial court improperly imposed a single prison sentence for multiple convictions, we remand the case for de novo resentencing on each count. In CR-15-599103-B, after thoroughly reviewing the record and law, we affirm appellant's convictions and sentence for burglary and assault.

I. Factual and Procedural History

{¶ 2} In CR-15-595152-B, appellant pled guilty to two fifth-degree felony counts of drug possession in August 2015. The trial court sentenced appellant to a blanket prison sentence of nine months.

{¶ 3} In CR-15-599103-B, the Cuyahoga County Grand Jury returned a *1197three-count indictment in October 2015 charging appellant and his two codefendants, Chelsey Mounts and Julio Smith, with (1) aggravated burglary, a first-degree felony in violation of R.C. 2911.11(A)(1) ; (2) felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1) ; and (3) felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1). Counts 1 and 3 pertained to victim T.C. Count 2 pertained to victim C.F. Appellant was arraigned on November 3, 2015. He pled not guilty to the indictment.

{¶ 4} The parties reached a plea agreement. The state amended Count 1 to burglary, a third-degree felony in violation of R.C. 2911.12(A)(3). The state amended Count 2 to assault, a first-degree misdemeanor in violation of R.C. 2903.13. On February 8, 2016, appellant and his codefendants pled guilty to Counts 1 and 2 as amended. Count 3 was nolled. The trial court accepted appellant's guilty plea, referred appellant to the probation department for a presentence investigation report ("PSI"), and set the matter for sentencing.

{¶ 5} The trial court held a sentencing hearing on March 17, 2016. The trial court sentenced appellant to a prison term of three years on Count 1 and a prison term of six months on Count 2. The trial court ordered the counts to run concurrently to one another and concurrently to appellant's sentence in CR-15-595152-B.

{¶ 6} On February 15, 2017, appellant, acting pro se, filed the instant appeal challenging the trial court's judgment. He assigns two errors for review:

I. The trial court erred to the prejudice of the [a]ppellant in accepting a guilty plea, which was not voluntarily or knowingly [sic], in violation of [a]ppellant's due process rights under the [Fifth] Amendment of the United States Constitution, Article I, Section 16 of the Ohio Constitution, and Ohio Criminal Rule 11 when actual innocence was lodged by [a]ppellant at sentencing via joint agreement.
II. [The] [t]rial [c]ourt erred by imposing [a] maximum sentence on [appellant], via joint agreement.

II. Law and Analysis

{¶ 7} As an initial matter, as noted above, appellant listed both CR-15-599103-B and CR-15-595152-B in his notice of appeal. The trial court's sentencing entry in CR-15-595152-B provides, in relevant part, "the court imposes a prison sentence at the Lorain Correctional Institution of 9 month(s)." Although appellant pled guilty to two counts of drug possession, the trial court did not sentence appellant on both counts. Accordingly, the trial court's sentence in CR-15-595152-B is not a final appealable order. See State v. Dumas , 8th Dist. Cuyahoga No. 95760, 2011-Ohio-2926, 2011 WL 2436601, ¶ 15 (the trial court's order of sentence does not constitute a final appealable order because the trial court imposed a single sentence for both of the defendant-appellant's convictions). The remedy is to remand the matter to the trial court for a de novo resentencing on each count individually. See State v. Lynch , 8th Dist. Cuyahoga No. 104200, 2016-Ohio-7721, 2016 WL 6671810, ¶ 6, citing State v. Blair , 8th Dist. Cuyahoga No. 102548, 2015-Ohio-5416, 2015 WL 9438306, ¶ 13-14.

{¶ 8} We shall proceed to review appellant's arguments challenging his guilty plea and the trial court's sentence in CR-15-599103-B.

A. Guilty Plea

{¶ 9} In his first assignment of error, appellant argues that his guilty plea was not knowingly, intelligently, and voluntarily entered.

*1198{¶ 10} A defendant's guilty plea must be made knowingly, intelligently, and voluntarily, and "[f]ailure 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). In order to ensure that a plea is entered knowingly, intelligently, and voluntarily, Crim.R. 11(C) requires the trial judge to determine whether the criminal defendant is fully informed of his or her rights, both constitutional and nonconstitutional. The court must also confirm that the defendant understands the consequences of his plea before accepting a guilty plea. Id.

{¶ 11} Crim.R. 11(C) outlines the trial court's duties in accepting guilty pleas:

(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

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Cite This Page — Counsel Stack

Bluebook (online)
100 N.E.3d 1194, 2017 Ohio 8879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-delp-ohctapp8cuyahog-2017.