[Cite as State v. Russell, 2019-Ohio-704.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 107215
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
THEODORE RUSSELL
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-616171-A
BEFORE: S. Gallagher, P.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: February 28, 2019 ATTORNEY FOR APPELLANT
Edward M. Heindel 2200 Terminal Tower 50 Public Square Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Kelly N. Mason Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Theodore Russell appeals his conviction for a second-degree felony drug
trafficking offense and claims the trial court failed to consider the principles and purposes of
sentencing under R.C. 2929.11 or the sentencing factors under R.C. 2929.12. In the alternative,
Russell claims his guilty plea was not knowing and voluntary because the court “should have
done more to fully explain the rights” he was waiving. Neither argument has merit, but both
will be addressed in the order presented.
{¶2} In support of appellate review of his sentence, Russell cites R.C. 2953.08(G)(2) and
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. Russell concedes
that the trial court was required to impose a minimum two-year sentence, but he claims the
four-year sentence imposed was not supported by the record. The trial court was authorized to
impose a prison term of up to eight years. Russell has not demonstrated error under Marcum. {¶3} Marcum authorizes a felony sentencing review of sentences that is not expressly
provided under R.C. 2953.08. Marcum at ¶ 23. That statutory section sets forth the boundaries
of appellate review over felony sentences and establishes a deferential standard of review of the
findings necessary to impose certain sentences. As the Ohio Supreme Court noted, however,
“some sentences do not require the findings that R.C. 2953.08(G) specifically addresses.” Id.
Nevertheless, “it is fully consistent for appellate courts to review those sentences that are
imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
that is equally deferential to the sentencing court.” Id. Marcum provides the only avenue for
appellate review of Russell’s mid-range sentence. None of the express provisions under R.C.
2953.08(A), which statutorily authorize appellate review of certain felony sentences, apply.
State v. Jones, 2018-Ohio-498, 105 N.E.3d 702, ¶ 40-41 (8th Dist.) (S. Gallagher, J., dissenting)
(Marcum reviewed an otherwise unreviewable sentence under R.C. 2953.08(A), and as a result,
the review set forth in Marcum stands apart from the statutory review).
{¶4} “When sentencing a defendant, the court must consider the purpose and principles of
felony sentencing set forth in R.C. 2929.11 and the serious and recidivism factors in R.C.
2929.12.” State v. White, 8th Dist. Cuyahoga No. 106580, 2018-Ohio-3414, ¶ 7, citing State v.
Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. Consideration of the factors is
presumed unless proven otherwise by the defendant. Id. at ¶ 9, citing State v. Seith, 8th Dist.
Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12, and State v. Keith, 8th Dist. Cuyahoga Nos.
103413 and 103414, 2016-Ohio-5234. Thus, it is the trial court that possesses discretion to
sentence offenders and appellate courts must defer to the trial court’s sentencing decision. State
v. Roberts, 2017-Ohio-9014, 101 N.E.3d 1067, ¶ 20 (8th Dist.), quoting State v. Rahab, 150 Ohio
St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10; State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 16; Marcum. As a result, and even under R.C. 2953.08(G)
as interpreted through Marcum, we can reverse an individual felony sentence imposed solely
after consideration of R.C. 2929.11 and 2929.12 only if we clearly and convincingly find that the
record does not support the sentence. Marcum at ¶ 23.
{¶5} In this case, the trial court reviewed the presentence investigation report and the
state asked for greater emphasis to be given to Russell’s criminal history. In addition, the trial
court expressly considered Russell’s remorse and addictive tendencies, his inability to maintain
employment, and his noted lack of a felony conviction after 2000. Defense counsel asked the
trial court to additionally consider Russell’s age, the fact that Russell had minor children to
support, and to place greater weight on Russell’s lack of a recent felony conviction. Thus, the
trial court considered the relevant purposes and principles of sentencing and the sentencing
factors even if the court did not expressly cite the statutory sections during the sentencing
hearing. Importantly, and even under the Marcum analysis, Russell has failed to demonstrate
that his four-year sentence is clearly and convincingly not supported by the record.
{¶6} Finally, Russell claims his guilty plea was not knowing and voluntary because the
trial court “should have done more to fully explain the rights” Russell was waiving and failed to
mention that it could proceed to sentencing immediately after the guilty plea was accepted.
{¶7} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527,
1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea was
knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for nonconstitutional
issues is substantial compliance and strict compliance for constitutional issues. State v. Nero, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977). “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea and the rights
he is waiving.” Nero. In addition, when challenging his guilty plea based on the trial court’s
lack of substantial compliance, a defendant must also show a prejudicial effect — that the plea
would not have been otherwise entered but for the error. State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero at 108.
{¶8} Russell has not demonstrated prejudice, let alone has he argued that the trial court’s
plea colloquy was not in compliance with the criminal rule. His sole argument is that the trial
court should have done more than was required. Although it is always possible to provide more
information to a defendant during the plea colloquy, the failure to do so is not a basis for reversal
if the trial court otherwise complies with Crim.R. 11. On this point, Russell has not suggested,
let alone demonstrated, that the trial court erred.
{¶9} In the alternative, Russell claims that the trial court failed to inform him that he
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[Cite as State v. Russell, 2019-Ohio-704.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 107215
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
THEODORE RUSSELL
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-616171-A
BEFORE: S. Gallagher, P.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: February 28, 2019 ATTORNEY FOR APPELLANT
Edward M. Heindel 2200 Terminal Tower 50 Public Square Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Kelly N. Mason Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Theodore Russell appeals his conviction for a second-degree felony drug
trafficking offense and claims the trial court failed to consider the principles and purposes of
sentencing under R.C. 2929.11 or the sentencing factors under R.C. 2929.12. In the alternative,
Russell claims his guilty plea was not knowing and voluntary because the court “should have
done more to fully explain the rights” he was waiving. Neither argument has merit, but both
will be addressed in the order presented.
{¶2} In support of appellate review of his sentence, Russell cites R.C. 2953.08(G)(2) and
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. Russell concedes
that the trial court was required to impose a minimum two-year sentence, but he claims the
four-year sentence imposed was not supported by the record. The trial court was authorized to
impose a prison term of up to eight years. Russell has not demonstrated error under Marcum. {¶3} Marcum authorizes a felony sentencing review of sentences that is not expressly
provided under R.C. 2953.08. Marcum at ¶ 23. That statutory section sets forth the boundaries
of appellate review over felony sentences and establishes a deferential standard of review of the
findings necessary to impose certain sentences. As the Ohio Supreme Court noted, however,
“some sentences do not require the findings that R.C. 2953.08(G) specifically addresses.” Id.
Nevertheless, “it is fully consistent for appellate courts to review those sentences that are
imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
that is equally deferential to the sentencing court.” Id. Marcum provides the only avenue for
appellate review of Russell’s mid-range sentence. None of the express provisions under R.C.
2953.08(A), which statutorily authorize appellate review of certain felony sentences, apply.
State v. Jones, 2018-Ohio-498, 105 N.E.3d 702, ¶ 40-41 (8th Dist.) (S. Gallagher, J., dissenting)
(Marcum reviewed an otherwise unreviewable sentence under R.C. 2953.08(A), and as a result,
the review set forth in Marcum stands apart from the statutory review).
{¶4} “When sentencing a defendant, the court must consider the purpose and principles of
felony sentencing set forth in R.C. 2929.11 and the serious and recidivism factors in R.C.
2929.12.” State v. White, 8th Dist. Cuyahoga No. 106580, 2018-Ohio-3414, ¶ 7, citing State v.
Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. Consideration of the factors is
presumed unless proven otherwise by the defendant. Id. at ¶ 9, citing State v. Seith, 8th Dist.
Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12, and State v. Keith, 8th Dist. Cuyahoga Nos.
103413 and 103414, 2016-Ohio-5234. Thus, it is the trial court that possesses discretion to
sentence offenders and appellate courts must defer to the trial court’s sentencing decision. State
v. Roberts, 2017-Ohio-9014, 101 N.E.3d 1067, ¶ 20 (8th Dist.), quoting State v. Rahab, 150 Ohio
St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10; State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 16; Marcum. As a result, and even under R.C. 2953.08(G)
as interpreted through Marcum, we can reverse an individual felony sentence imposed solely
after consideration of R.C. 2929.11 and 2929.12 only if we clearly and convincingly find that the
record does not support the sentence. Marcum at ¶ 23.
{¶5} In this case, the trial court reviewed the presentence investigation report and the
state asked for greater emphasis to be given to Russell’s criminal history. In addition, the trial
court expressly considered Russell’s remorse and addictive tendencies, his inability to maintain
employment, and his noted lack of a felony conviction after 2000. Defense counsel asked the
trial court to additionally consider Russell’s age, the fact that Russell had minor children to
support, and to place greater weight on Russell’s lack of a recent felony conviction. Thus, the
trial court considered the relevant purposes and principles of sentencing and the sentencing
factors even if the court did not expressly cite the statutory sections during the sentencing
hearing. Importantly, and even under the Marcum analysis, Russell has failed to demonstrate
that his four-year sentence is clearly and convincingly not supported by the record.
{¶6} Finally, Russell claims his guilty plea was not knowing and voluntary because the
trial court “should have done more to fully explain the rights” Russell was waiving and failed to
mention that it could proceed to sentencing immediately after the guilty plea was accepted.
{¶7} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527,
1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea was
knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for nonconstitutional
issues is substantial compliance and strict compliance for constitutional issues. State v. Nero, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977). “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea and the rights
he is waiving.” Nero. In addition, when challenging his guilty plea based on the trial court’s
lack of substantial compliance, a defendant must also show a prejudicial effect — that the plea
would not have been otherwise entered but for the error. State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero at 108.
{¶8} Russell has not demonstrated prejudice, let alone has he argued that the trial court’s
plea colloquy was not in compliance with the criminal rule. His sole argument is that the trial
court should have done more than was required. Although it is always possible to provide more
information to a defendant during the plea colloquy, the failure to do so is not a basis for reversal
if the trial court otherwise complies with Crim.R. 11. On this point, Russell has not suggested,
let alone demonstrated, that the trial court erred.
{¶9} In the alternative, Russell claims that the trial court failed to inform him that he
could be immediately sentenced as a result of the guilty plea and that such a failure invalidated
the plea. Russell is mistaken, notwithstanding the fact that the trial court postponed sentencing
for the purpose of conducting a presentence investigation. According to the record, the trial
court notified Russell during the plea colloquy that upon accepting the guilty plea, the court was
required to impose a prison sentence of at least two years. This satisfied any Crim.R. 11
concerns. The second, and final, assignment of error is overruled.
{¶10} The conviction is affirmed.
It is ordered that appellee recover of appellant 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. 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
LARRY A. JONES, SR., J., and KATHLEEN ANN KEOUGH, J., CONCUR