State v. Flowers

2021 Ohio 2966

• Court: Ohio Court of Appeals
• Decided: August 27, 2021
• Docket: WD-20-077
• Status: Published

Opinion

[Cite as State v. Flowers, 2021-Ohio-2966.]

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

State of Ohio Court of Appeals No. WD-20-077

Appellee Trial Court No. 2020CR0142

v.

Rekia D. Flowers DECISION AND JUDGMENT

Appellant Decided: August 27, 2021

*****

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

Jeffrey P. Nunnari, for appellant.

DUHART, J.

{¶ 1} This case is before the court on appeal by appellant, Rekia Flowers, from the

October 26, 2020 judgment of the Wood County Court of Common Pleas. For the

reasons that follow, we affirm. Assignments of Error

I. THE STATE OF OHIO BREACHED ITS PLEA AGREEMENT

WITH APPELLANT BY NOT RECOMMENDING A COMMUNITY

CONTROL SANCTION AT THE TIME OF SENTENCING.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT BY FINDING THAT SHE ENGAGED IN “ORGANIZED

CRIMINAL ACTIVITY” WHEN SENTENCING HER.

Background

{¶ 2} On or about June 11, 2020, appellant was charged by way of indictment with

eight counts of counterfeiting in violation of R.C. 2913.30(B)(3) and (C), each a felony of

the fourth degree. At her arraignment on June 26, 2020, appellant pled not guilty to the

charges.

{¶ 3} On September 4, 2020, a change of plea hearing was held. At the hearing,

appellant agreed to plead guilty to the first four counts of the indictment and to pay

restitution. Although not mentioned at the hearing, in the written plea agreement, the

state agreed to dismiss the remaining counts at sentencing and recommend a community

control sanction.

{¶ 4} At the hearing, the prosecutor stated, inter alia, that, if the matter had

proceeded to trial, the state would have shown that appellant and her co-defendant “went

to various locations in the 1100 block of South Main Street, *** in Bowling Green,

2. Wood County, Ohio, and went to the stores which are O’Reilly’s Automotive Parts,

Maurice’s, Petco, Home Depot, Sally’s Beauty, The Shoe Sensation, TJ Maxx, and

Dollar General store. There’s eight different stores they went to. [Appellant] went into

some of them, the co-defendant went into some of them.”

{¶ 5} The prosecutor further declared that when appellant and her co-defendant

went into the stores “they basically selected something, an item with a cost of less then

[sic] ten dollars and attempted to pay with a $100 bill. It was not a real sophisticated

counterfeit United States currency. But they did attempt to do that. And some locations

declined it, saying they didn’t have change for it. Other ones realized it was a counterfeit

bill. But they went to eight different locations.”

{¶ 6} The court then found appellant guilty of the first four counts of

counterfeiting, all felonies of the fourth degree.

{¶ 7} Appellant was sentenced on October 23, 2020. At the sentencing hearing,

the court first considered the factors set forth in R.C. 2929.11 and R.C. 2929.12. The

court then stated that there was a presumption of community control, but ultimately found

prison to be appropriate. In making this finding, the court remarked that “the court is to

look at certain requirements under 2929.13(B)(1), and that’s whether or not this was

committed, what was the purpose of this; was this committed for hire or part of an

organized activity. And I believe that that is the situation here, is that this was part of an

3. organized activity in regard to the counterfeiting. You were going to different places

presenting counterfeit one hundred dollar bills and doing it as a process.”

{¶ 8} The court additionally stated that “if this was a one-time offense we might

be looking at this differently. But you have a history of sixteen previous theft offenses,

plus as an adult you have a retail theft. And it appears, at least from the Court’s

consideration, that you have taken out at least a career of using thievery as a way of

obtaining what you need. And I think that that just shows a pattern that we don’t like.”

{¶ 9} The court then sentenced appellant to twelve month sentences each for

Counts One through Four, to be served concurrently. The court then dismissed Counts

Five through Eight, pursuant to a request by the state.

{¶ 10} Appellant timely appealed.

Assignment of Error I

{¶ 11} Appellant argues that the state breached its plea agreement by failing to

recommend a community control sanction at the time of sentencing.

{¶ 12} “[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971). If the prosecutor fails to fulfill the promise, the defendant is entitled

to either withdraw his or her plea, or specific performance of the plea agreement, which

requires resentencing by a different judge. Id. at 263. The court, however, is not

4. obligated to accept a sentence recommended as part of a plea agreement. State v. Harder,

6th Dist. Ottawa No. OT-14-005, 2015-Ohio-795, ¶ 7. A trial court can impose a

sentence greater than the recommended sentence “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 ex rel. Duran v. Kelsey, 106

Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6, quoting State v. Buchanan, 154

Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.).

{¶ 13} The state contends that it did comply with its agreement to recommend a

community control sanction when the prosecutor stated at sentencing that it “would

contend there should be some sanction for [appellant’s] misconduct because she’s shown

no remorse for that. We leave it to the sound discretion of the Court.” The state further

argues that appellant was advised that the court may not follow the recommendation and

that a prison sentence was a possibility.

{¶ 14} We find the state’s request for a “sanction” does not equate to a

recommendation for a community control sanction. The Ohio Revised Code defines

“sanction” to include “any penalty imposed upon an offender who is convicted of or

pleads guilty to an offense, as punishment for the offense,” including prison terms as well

as community control. R.C. 2929.01(DD). However, there was no objection made at

sentencing, and so we are limited to plain error review. Crim.R. 52(B) allows plain

errors or defects affecting substantial rights to be noticed although they were not brought

5. to the attention of the court. “Plain error does not exist unless, but for the error, the

outcome of the criminal proceedings would clearly have been different.” State v.

Ferreira, 6th Dist. Lucas No. L-06-1282, 2007-Ohio-4902, ¶ 11. A reviewing court

should only acknowledge plain error “if the error seriously affects the fairness, integrity

or public reputation of judicial proceedings.” State v. Ahlers, 6th Dist. Erie No. E-14-

005, 2015-Ohio-131, ¶ 15, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (2002). Plain error should be noticed “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus

{¶ 15} Here, we do not find that the outcome would have clearly been different.

Appellant contends that the prosecutor’s promise “created to a ‘significant degree’ ***

[appellant’s] inducement to plead guilty.” A similar argument was raised, and rejected,

in State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093. In Liles, the appellant

argued that the prosecutor had breached a promise in the plea agreement not to make a

sentencing recommendation and that this resulted in plain error as this promise induced

him to enter into the plea agreement. Although the trial court agreed there had been a

breach, the trial court did not find plain error. The trial court noted that the plea

agreement also called for the dismissal of eleven of the fifteen counts in the indictment,

which did occur, resulting in a substantial reduction in the sentence. The appellate court

found the dismissal of the eleven counts to be a significant part of the plea agreement.

6. Additionally, the Liles court found that the absence of an objection to the prosecutor’s

failure to fulfil his or her promise to make no sentencing recommendation undermined

the defendant’s argument that the promise was an integral part of his decision to plea.

{¶ 16} Similar to Liles, the plea agreement here included the dismissal of four

counts of counterfeiting brought against appellant. Also, appellant’s counsel did not

object to the prosecutor’s failure to recommend community control, which is not

consistent with appellant’s argument that the state’s promise to recommend community

control was a significant inducement to her plea of guilty. Therefore, we do not find

plain error on this basis.

{¶ 17} We also do not find that the sentence would have been different. It appears

from the transcript that the judge’s sentence was based on his own assessment of

appellant’s record. Even without the prosecutor’s recommendation, prior to imposing the

sentence, the trial judge commented that there was a presumption in favor of community

control1 and then, after considering appellant’s record and the particular facts of the case,

the judge decided that prison was appropriate nonetheless.

1 As appellant was convicted of four fourth degree felonies, this presumption would not actually apply. We have previously found this presumption only applicable when a defendant pleads guilty to a single nonviolent fourth or fifth degree felony, not when a defendant pleads guilty to multiple fourth or fifth degree felonies. State v. Boswell, 6th Dist. Erie No. E-18-053, 2019-Ohio-2949, ¶ 22. However, we find it relevant to our analysis that the trial court understood there to be a presumption.

7. {¶ 18} Having carefully considered the record and the parties’ arguments, we find

that appellant has not demonstrated plain error. Accordingly, we find appellant’s first

assignment of error not well-taken.

Assignment of Error II

{¶ 19} Appellant maintains that the trial court erred in finding that she engaged in

“organized criminal activity” during sentencing, “thereby undercutting one of the bases

the trial court relied on when sentencing [appellant] to prison for her non-violent fifth

[sic] degree felony offense.”

{¶ 20} We review felony sentences pursuant to R.C. 2953.08(G)(2). State v.

Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, ¶ 7. R.C. 2953.08(G)(2) allows

an appellate court to increase, reduce, or otherwise modify a sentence, or vacate the

sentence and remand for resentencing if the court finds by clear and convincing evidence

either that the record does not support the sentencing court’s findings under certain

enumerated statutory sections, including R.C. 2929.13(B) or (D), or that the sentence is

contrary to law.

{¶ 21} The state argues that State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,

169 N.E.3d 649 precludes appellant’s argument. The court in Jones found that R.C.

2953.08(G)(2) does not permit “an appellate court to independently weigh the evidence

in the record and substitute its judgment for that of the trial court concerning the sentence

that best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42. The court

8. reasoned that “R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a

sentence if it clearly and convincingly finds that ‘the record does not support the

sentencing court's findings under’ certain specified statutory provisions. But R.C.

2929.11 and 2929.12 are not among the statutory provisions listed in R.C.

2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and

2929.20(I) are specified.” Id. at ¶ 28.

{¶ 22} Appellant contends that Jones is inapplicable as her argument is based on

R.C. 2929.13 and that R.C. 2953.08(G)(2) permits appellate review to determine whether

a sentence complies with R.C. 2929.13.

{¶ 23} It appears from a review of the trial court’s judgment entry that the court’s

finding that appellant committed the offense as part of an organized criminal activity was

considered, in part, under R.C. 2929.12(B) to determine whether appellant’s conduct was

more serious than conduct which normally constitutes the offense. To the extent this

finding was considered under R.C 2929.12(B), pursuant to Jones, this court is precluded

from considering this argument.

{¶ 24} However, whether appellant’s conduct was part of an organized criminal

activity is also a relevant factor under R.C. 2929.13(B), and Jones does not preclude this

court from considering appellant’s argument in that context. At sentencing, it appears

from the judge’s comments that his finding that appellant’s conduct was part of an

9. organized activity was also pertinent to his analysis under R.C. 2929.13(B), so we

therefore consider appellant’s arguments as they relate to R.C. 2929.13.

{¶ 25} R.C. 2929.13(B)(1)(a) creates a presumption in favor of community control

for a felony of the fourth or fifth degree that meets certain criteria. This presumption can

be overcome, however, if factors enumerated in R.C. 2929.13(B)(1)(b) are found to

apply. Appellant has argued that the trial court sent her to prison in reliance on two

statutory factors found in R.C. 2929.13(B)(1)(b) - that she committed the offense as part

of an organized criminal activity and that she committed the offenses while on probation.

While she does not take issue with the court’s finding that she was on probation at the

time she committed the instant offenses, she maintains that her conduct did not qualify as

“organized criminal activity.”

{¶ 26} We first find that appellant was not entitled to the presumption of

community control under R.C. 2929.13(B)(1)(a), as R.C. 2929.13(B)(1)(a) is not

applicable to appellant’s case. We have previously found that R.C. 2929.13(B)(1)(a)

only applies to singular felony convictions. Boswell, 6th Dist. Erie No. E-18-053, 2019-

Ohio-2949, at ¶ 22. Here appellant was convicted of multiple fourth degree felonies and

therefore the presumption in favor of community control in R.C. 2929.13(B)(1)(a) does

not apply.

{¶ 27} As we have found that the presumption set forth in R.C. 2929.13(B)(1)(a)

does not apply, we need not consider the merits of the parties’ arguments regarding the

10. applicability of the exceptions set forth in R.C. 2929.13(B)(1)(b). See State v. Grace, 6th

Dist. Sandusky No. S-18-044, 2019-Ohio-3812, ¶ 15. Also see State v. Cotterman, 11th

Dist. Ashtabula No. 2018-A-0036, 2019-Ohio-1296, ¶ 13 (Appellant court found it

unnecessary for the trial court to consider whether any of the exceptions listed in R.C.

2929.13(B)(1)(b) applied when appellant was not entitled to the mandatory community

control sanction under R.C. 2929.13(B)(1)(a)).

{¶ 28} Assuming arguendo that appellant was entitled to the presumption of

community control in R.C. 2929.13(B)(1)(a), we also conclude that the trial court’s

finding that appellant’s conduct was organized criminal activity is supported by the

record.

{¶ 29} “The term ‘organized criminal activity’ is not defined in R.C. Chapter

2929, and therefore courts must decide whether an offense is part of an organized

criminal activity on a case-by-case basis. In examining this term, courts have ‘generally

considered the scope and length of the criminal activity, whether the offense was

committed spontaneously/impulsively or with extensive planning, the number of people

involved, and the nature of the charges * * *.’” (Citations omitted.) Boswell at ¶ 24.

{¶ 30} Appellant argues that her conduct does not meet the definition of

“organized criminal activity” because her and her codefendant’s methods were

“amateurish” and “unsophisticated,” which she argues makes her conduct more akin to

spontaneous or impulsive actions. She further points to State v. Roberson, 141 Ohio

11. App.3d 626, 752 N.E.2d 984 (6th Dist.2001), wherein we found that “[t]he mere fact that

[a defendant] may have had an accomplice is insufficient to constitute an ‘organized’

crime.”

{¶ 31} Here, not only did appellant have an accomplice, but there is evidence to

support a finding that planning had occurred prior to the crime. As the trial court pointed

out, appellant and her codefendant were “going to different places presenting counterfeit

one hundred dollar bills and doing it as a process.” They went into a store, selected a low

cost item, and attempted to purchase the item with a counterfeit $100 bill. Therefore, we

conclude the record supports the trial court’s finding of organized criminal activity.

{¶ 32} In addition to the above arguments, in her reply brief, appellant generally

argues that the trial court’s sentence is contrary to law “for the reasons stated.” We have

found that a sentence is not clearly and convincingly contrary to law where the trial court

(1) considered the purposes and principles of sentencing under R.C. 2929.11 and the

seriousness and recidivism factors under R.C. 2929.12, (2) properly applied postrelease

control, and (3) imposed a sentence that was within the statutory range. State v. Foster,

6th Dist. Lucas No. L-20-1087, 2021-Ohio-2063, ¶ 14, quoting State v. Parks, 6th Dist.

Lucas No. L-18-1138, 2019-Ohio-2366.

{¶ 33} Here, the trial court considered the purposes and principles of sentencing

under R.C. 2929.11 and the seriousness and recidivism factors pursuant to R.C. 2929.12.

The trial court also notified appellant that she would be subject to a discretionary period

12. of post-release control of three years, and appellant has not argued that that was

improperly applied. Lastly, appellant was sentenced to twelve months in prison for each

of four fourth degree felonies, 2 to be served concurrently. For a felony of the fourth

degree, R.C. 2929.14(A)(4) allows a trial court to impose a “definite term of six, seven,

eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen

months.” Appellant’s sentence falls within this range. Therefore we find appellant’s

sentence is not contrary to law.

{¶ 34} For these reasons, appellant’s second assignment of error is not well-taken.

Conclusion

{¶ 35} The judgment of the Wood County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.

Judgment affirmed.

2 Appellant has stated that she was convicted of a fifth degree felony and that her sentence was “the longest available prison sanction for a felony of the fifth degree.” However, appellant was convicted of four violations of R.C. 2913.30(B)(3), which, pursuant to R.C. 2913.30(C), are felonies of the fourth degree.

13. State of Ohio v. Rekia D. Flowers WD-20-077

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

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, 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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