[Cite as State v. St. Valle, 2024-Ohio-1167.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 113191 v. :
VEGIL ST. VALLE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 28, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-678108-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Lindsay Patton, Assistant Prosecuting Attorneys, for appellee.
Robey & Robey and Gregory Scott Robey, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant, Otis Edward Williams, indicted in this matter
under an alias, Vegil St. Valle, appeals the ten-year prison sentence and a $10,000
fine imposed by the trial court after he pleaded guilty to drug trafficking and
possession of criminal tools. For the reasons that follow, we affirm. I. Factual Background and Procedural History
Williams reported that he is a citizen of Jamaica who is present in the
United States without legal immigration status.
On March 1, 2023, a Cuyahoga County Grand Jury indicted
Williams — under his St. Valle alias1 — on charges of drug trafficking, drug
possession and possession of criminal tools. The drug charges carried major drug
offender specifications and all the charges carried forfeiture specifications targeting
cell phones and $414 in cash.
On August 23, 2023, the state amended the indictment pursuant to a
plea agreement and Williams pleaded guilty to trafficking in violation of
R.C. 2925.03(A)(2) (a first-degree felony) and possessing criminal tools in violation
of R.C. 2923.24(A) (a fifth-degree felony). Both counts carried forfeiture
specifications. The state dismissed the remaining count and the major drug offender
specifications through a nolle prosequi. The state and Williams agreed to
1 At the change-of-plea hearing, the parties stipulated to an amendment to the
indictment changing the defendant’s name to “Vegil St. Valle, a.k.a. Otis Edward Williams.” The defense sentencing memorandum also spells the defendant’s name as “Otis Edward Williams.” Therefore, we refer to the defendant by that name throughout this opinion. We note, however, that the presentence-investigation report alternatively identifies his true name as “Otis Edward Williams” and “Otis Williams Edwards.” When Williams was arrested, he was carrying a Georgia driver’s license under the name “Vegil St. Valle”; this is also the name under which he is incarcerated. We further note that many of the letters in mitigation identify the defendant as “Otis Edwards.” And the presentence-investigation report identifies that Williams has used other aliases — including Mario Brown, Ian Obryant, Eric Smith and William Johnson as well as many alias social security numbers and birth dates. recommend a sentencing range of five to eleven years in prison. The trial court
engaged in the following colloquy with respect to that portion of the agreement:
THE COURT: The government has further indicated to this Court that you entered into an agreement whereby you agree to be sentenced between five and eleven years in prison. Did you enter into that agreement?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand it?
THE COURT: Do you have any questions with reference to it?
THE DEFENDANT: No, Your Honor.
The trial court accepted Williams’ guilty pleas, ordered a presentence
investigation and set the matter for sentencing.
On August 23, 2023, Williams filed a motion to waive fines and costs,
attaching a document styled as an affidavit of indigence.
On September 12, 2023, the trial court held a sentencing hearing. In
advance of sentencing, Williams filed a sentencing memorandum and numerous
letters in mitigation. He advocated for an aggregate sentence of five years in prison,
noting, among other things, that he was genuinely remorseful for his conduct, had
led a law-abiding life for ten years prior to these offenses and was simultaneously
facing federal prosecution for illegal reentry into the United States and probable
deportation. The defense described his conduct as follows:
[T]he Defendant was given the opportunity to make $400, if he would pick up and deliver a parcel. Defendant went to the home and paid the homeowner $200, for receiving the package. Defendant then loaded the package in his car and was stopped by police as he was driving to deliver the package [which contained around a kilogram of a substance containing cocaine].
Williams addressed the court at the sentencing hearing, as did defense
counsel. The court noted that Williams had prior drug convictions in 1998 and 1999
and also had a federal conviction for illegal reentry into the United States. Defense
counsel noted that Williams had been living in Cleveland Heights, had a “stable
home” and “stable relationship” and had “grown children, all who [sic] are solid
citizens.”
After confirming with defense counsel that “[y]ou entered into an
agreement with the State of Ohio for a sentence between five and 11 years,” the trial
court announced its sentence. It sentenced Williams to ten years in prison and a
$10,000 fine on the trafficking count. It sentenced him to 11 months in prison and
a $250 fine on the possessing-criminal-tools count.2 The court ran the prison
sentences concurrently and awarded 231 days of jail-time credit.
The court thereafter reduced its sentence to a journal entry, which
read as follows, in relevant part:
The court considered all required factors of the law. The court finds that prison is consistent with the purpose of R.C. 2929.11.
The court imposes a prison sentence at the Lorain Correctional Institution of 10 year(s).
2 The trial court referred to these fines as “costs” in announcing its sentence at the
hearing but in context it was clear that the court meant the money penalties as fines. The court identified these money penalties as fines in its sentencing entry and no party raises an error in this appeal from the court’s misstatement at the hearing. Count 1: F1, 10 year(s) * * *
Count 3: F5, 11 month(s) * * *
***
The defendant is ordered to pay a fine in the sum of $10,250.00. (Count 1 — $10,000.00 fine; Count 3 — $250.00 fine)
The court hereby enters judgment against the Defendant in an amount equal to the costs of this prosecution.
Williams appealed, raising the following assignments of error for
review:
First Assignment of Error: The trial court erred when it imposed a 10- year prison term that is not supported by the record.
Second Assignment of Error: The trial court abused its discretion when it imposed a $10,000 fine, despite Appellant filing a timely motion to waive fines and costs, with a supporting affidavit of indigency.
II. Law and Analysis
A. First Assignment of Error
Williams asks us to vacate his sentences. Presumably, he would have
us remand the matter for resentencing. He first contends that the sentences are
contrary to law because the trial court erroneously believed he had five previous
felony drug convictions when, in fact, he only had two. This argument is meritless.
Williams’ counsel corrected the trial court’s misunderstanding at the sentencing
hearing and the court acknowledged the correction before announcing its sentence.
Williams’ remaining arguments concern the trial court’s weighing of
the statutory sentencing factors in R.C. 2929.12(B), (C), (D) and (E). He contends
that the court failed to properly consider the mitigating factors enumerated at R.C. 2929.12(C)(3), (C)(4), (E)(1), (E)(4) and (E)(5) and, further, failed to consider
that Williams is facing federal illegal reentry charges and deportation. And, he says,
the court put too much emphasis on certain aggravating factors. Finally, he argues
that the trial court gave undue weight to his lack of immigration status and failed to
fairly consider a character letter written on his behalf.
At the heart of all these arguments is a contention that the
circumstances of his case do not support a ten-year prison sentence.
Williams asks us to review his felony sentences under the standard set
forth in R.C. 2953.08(G)(2). Under that statute, an appellate court may increase,
reduce or otherwise modify a sentence or vacate a sentence and remand for
resentencing if it “clearly and convincingly” finds that (1) the record does not
support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4) or 2929.20(I) or (2) the sentence is “otherwise contrary
to law.” See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 21.
This case, however, involves a jointly recommended sentence. Our
review of Williams’ sentence is therefore limited by R.C. 2953.08(D)(1). Under that
statute, a sentence imposed upon a defendant is not subject to appellate review “if
the sentence is authorized by law, has been recommended jointly by the defendant
and the prosecution in the case, and is imposed by a sentencing judge.”
R.C. 2953.08(D)(1); see also State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764,
992 N.E.2d 1095, ¶ 22 (R.C. 2953.08(D)(1) is “a statutory limit on a court of appeals’ jurisdiction to hear an appeal.”). This limitation on a defendant’s ability to challenge
a jointly recommended sentence on appeal applies to sentences imposed as a result
of plea agreements involving an agreed specific term, plea agreements involving a
jointly recommended sentencing range and plea agreements involving pleas to
multiple offenses with a jointly recommended aggregate sentencing range. State v.
Williams, 8th Dist. Cuyahoga No. 108724, 2020-Ohio-3802, ¶ 8–10; State v.
Patterson, 8th Dist. Cuyahoga No. 106655, 2018-Ohio-4114, ¶ 10; State v. Grant,
2018-Ohio-1759, 111 N.E.3d 791, ¶ 11–20, 23 (8th Dist.). “That appellant agreed to
a sentencing range or sentencing cap, as opposed to a specific sentence, is
immaterial.” Grant at ¶ 23.3
As this court explained in Grant:
Range agreements are no different than specific term agreements; they are both negotiated agreements based on a quid pro quo arrangement where each side gives up something in exchange for being bound by the terms of the agreement. Under either scenario, the defendant can “cap” or limit his exposure. When an agreed range is involved, the state is ensured the sentence will fall within the agreed range and the defendant is ensured the sentence will not exceed it. We cannot permit a defendant to agree to a term of imprisonment, whether expressed specifically or within a range, in exchange for lesser charges or having some charges dismissed, only to turn around and challenge that very agreement on appeal. Such practice would only serve to undermine the state’s incentive to enter plea agreements in the first place.
3 We are aware of at least one case in which a majority of a panel of this court
considered a defendant’s appellate arguments regarding the trial court’s weighing of statutory sentencing factors, even after an agreed sentence. See State v. Townsend, 8th Dist. Cuyahoga No. 107458, 2019-Ohio-1442, ¶ 4, 7, fn.1, 10–25. However, the majority noted that its decision to consider the argument was based in part on the state’s failure to argue that it could not. Id. Here, the state specifically argued that the agreed sentence limits our ability to consider Williams’ appellate arguments. ***
Where a defendant agrees to a sentencing range, he implicitly agrees to all definite sentencing possibilities within that range * * *. “If [the defendant] believed a sentence at the top end of that range was improper, [he] should not have accepted a plea deal that authorized it.” [State v.] Connors, 2d Dist. Montgomery No. 26721, 2016-Ohio-3195, at ¶ 4.
Grant at ¶ 18, 31; cf. State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829
N.E.2d 690, ¶ 25 (“The General Assembly intended a jointly agreed-upon sentence
to be protected from review precisely because the parties agreed that the sentence is
appropriate. Once a defendant stipulates that a particular sentence is justified, the
sentencing judge no longer needs to independently justify the sentence.”).
A sentence is “authorized by law” within the meaning of
R.C. 2953.08(D)(1) “‘if it comports with all mandatory sentencing provisions.’”
(Emphasis deleted.) State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69
N.E.3d 627, ¶ 26, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,
922 N.E.2d 923, paragraph two of the syllabus; see also State v. Adkins, 8th Dist.
Cuyahoga Nos. 109184 and 109185, 2021-Ohio-1294, ¶ 11.
In this case, Williams and the state jointly recommended a sentencing
range of an aggregate five to eleven years in prison. Williams thus agreed that any
sentence within that range would be appropriate. The ten-year prison sentence the
trial court imposed was within that jointly recommended range. While Williams
disagrees with the trial court’s weighing of certain statutory sentencing factors, he
makes no argument that his sentence fell outside of the statutory range for these
offenses or failed to comport with any mandatory sentencing provision. Compare, e.g., State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26–
27 (considering a trial court’s failure to merge allied offenses of similar import, a
mandatory duty, in the context of an agreed sentence). Further, Williams does not
challenge his sentence on constitutional grounds. See State v. Bennett, 8th Dist.
Cuyahoga No. 112182, 2023-Ohio-4412, ¶ 27–30 (Sean C. Gallagher, J., concurring)
(stating the opinion that “[w]hen an appeal of a sentence is presented as a
constitutional claim, * * * that appeal of the sentence does not arise under R.C.
2953.08(A), and therefore, the appellate court has authority to review the sentence
despite the preclusionary language under [R.C. 2953.08(D)(1)],” an issue that is not
before us in this appeal.). Finally, we note that Williams is not challenging the
validity of his plea agreement and has not sought to withdraw his plea. He
challenges only the resulting sentences imposed after he pleaded guilty.
Because the sentences imposed by the trial court were within the
jointly recommended sentencing range and were authorized by law, Williams’
sentences are not reviewable by operation of R.C. 2953.08(D)(1).
We, therefore, overrule Williams’ first assignment of error.
B. Second Assignment of Error
Williams contends that the trial court erred by imposing a $10,000
fine on the trafficking count when he had filed a motion to waive fines and costs and
an affidavit of indigency prior to the sentencing hearing. Because Williams did not object to the imposition of the fine at the
sentencing hearing, we review this argument only for plain error. See, e.g., State v.
Brantley, 8th Dist. Cuyahoga No. 94508, 2010-Ohio-5760, ¶ 12.
Crim.R. 52(B) provides that “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.” An appellate court notices plain error “‘with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’”
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
Plain error “must be an ‘obvious’ defect in the trial proceedings” and we will not find
plain error unless, but for the error, the outcome would have been different. Barnes
at 27; Long at paragraph two of the syllabus; State v. Gardner, 118 Ohio St.3d 420,
2008-Ohio-2787, 889 N.E.2d 995, ¶ 78. “The burden of demonstrating plain error
is on the party asserting it.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,
873 N.E.2d 306, ¶ 17.
William pleaded guilty to drug trafficking in violation of
R.C. 2925.03(A)(2), a first-degree felony. R.C. 2925.03(D)(1) states, in relevant
part:
If the violation of division (A) of this section is a felony of the first * * * degree, the court shall impose upon the offender the mandatory fine specified for the offense under [R.C. 2929.18(B)(1)] unless, as specified in that division, the court determines that the offender is indigent. R.C. 2929.18(B)(1), in turn, requires a trial court to impose a fine of
at least $10,000, and up to $20,000, for a first-degree drug trafficking offense.
R.C. 2929.18(A)(3)(a), (B)(1). The statute goes on to state the following:
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
The state contends that Williams failed to comply with this statute
because the document attached to his motion to waive the fine was not a properly
executed affidavit. The state notes that the document does not appear to bear a
notary seal or stamp. Therefore, the state says, “[I]t is unclear who has notarized
this document and whether the person carries a valid commission.”
An affidavit is “a written declaration under oath, made without notice
to the adverse party.” R.C. 2319.02. The document attached to Williams’ motion
indicates that the statements therein were declared under oath. That said, it is true
that the person serving as notary to this document — their signature appears
visually similar to the signature of Williams’ counsel on the motion itself — failed to
provide a completed notarial certificate as required by R.C. 147.542. Williams’
affidavit does not include, for example, “[t]he notary’s printed name, displayed
below the notary’s signature or inked stamp” or “[t]he notary’s notarial seal and
commission expiration date.” R.C. 147.542(F). We also note that the document was
executed by the defendant using an alias, Vegil St. Valle, and not under his apparent true name. On the other hand, the state did not object to the trial court’s
consideration of the affidavit and the trial court did not strike the document.
We need not dwell on these facts or consider whether this document
is defective for purposes of R.C. 2929.18(B)(1), because we would affirm the trial
court’s judgment even if the document were a properly executed affidavit of
indigency.
“[A]n offender who files an affidavit alleging that he or she is indigent
and is unable to pay a mandatory fine is not automatically entitled to a waiver of that
fine.” (Emphasis deleted.) State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750
(1998). The sentencing court must find that the offender is an indigent person and
is unable to pay the mandatory fine in order to waive the fine. State v. Cotto, 8th
Dist. Cuyahoga No. 107159, 2019-Ohio-985, ¶ 11.
Before imposing a fine under R.C. 2929.18, a trial court is required to
“consider the offender’s present and future ability to pay the amount of the sanction
or fine,” R.C. 2929.19(B)(5), but “‘there are no express factors that must be taken
into consideration or findings regarding the offender’s ability to pay that must be
made on the record.’” Cotto at ¶ 11, quoting State v. Hampton, 8th Dist. Cuyahoga
No. 103992, 2016-Ohio-5419, ¶ 7. Generally, a trial court satisfies this requirement
when it considers a presentence-investigation report that contains information
about the defendant’s financial situation and his ability to pay the fine. See, e.g.,
State v. Clemons, 8th Dist. Cuyahoga No. 101230, 2015-Ohio-520, ¶ 10; State v.
Simpson, 8th Dist. Cuyahoga No. 101088, 2014-Ohio-4580, ¶ 21. Ultimately, to avoid the imposition of a mandatory fine, the burden is on the defendant “to
affirmatively demonstrate that he or she is indigent and is unable to pay the
mandatory fine.” (Emphasis deleted.) Gipson at 635; Cotto at ¶ 13.
Here, the trial court considered a presentence-investigation report
that contained information about Williams’ financial situation and his ability to pay
the fine. Among other things, it indicated that Williams had been employed doing
“drywall and flooring.” Defense counsel also noted, at the sentencing hearing, that
Williams had stable housing, a stable romantic relationship and adult children.
Furthermore, we note that Williams retained counsel throughout the trial court
proceedings and before this court. See State v. Reese, 8th Dist. Cuyahoga No.
107564, 2019-Ohio-1779, ¶ 7. Finally, when he was arrested he was in possession of
multiple cell phones and over $400 in cash.
While we acknowledge that Williams is not a U.S. citizen and will be
facing potential deportation after his release from prison, we cannot say, based on
the record before us, that the trial court failed to consider Williams’ present and
future ability to pay the fine or that it was unreasonable for the trial court to conclude
that Williams would be able to pay the fine. Accordingly, we do not find plain error
in the trial court’s imposition of the fine.
We, therefore, overrule Williams’ second assignment of error.
III. Conclusion
Having overruled Williams’ assignments of error for the reasons
stated above, we affirm. The court finds there were reasonable grounds for this appeal.
It is ordered that the appellee recover from the appellant the costs herein
taxed.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
_________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and EMANUELLA D. GROVES, J., CONCUR