State v. Tyree

[Cite as State v. Tyree, 

.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 100377 and 100378



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                       CORTEZ TYREE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                           Case Nos. CR-13-573022 and CR-13-573669

        BEFORE: Kilbane, J., Rocco, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                    July 3, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Oscar E. Albores
James M. Rice
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

          {¶1} In this consolidated appeal, defendant-appellant, Cortez Tyree (“Tyree”),

appeals from his guilty pleas in two separate cases. For the reasons that follow, we

affirm.

          {¶2} In Case No. CR-13-573022, Tyree was charged with aggravated robbery,

which carried one- and three-year firearm and two weapon forfeiture specifications, and

having a weapon while under disability, which carried two weapon forfeiture

specifications for robbing a victim at gunpoint. In Case No. CR-13-573669, Tyree was

charged with having a weapon while under disability.

          {¶3} Pursuant to a plea agreement, in Case No. CR-13-573022, Tyree pled guilty

to an amended charge of attempted aggravated robbery with a one-year firearm

specification and two weapon forfeiture specifications.           The three-year firearm

specification was deleted, and the charge of having a weapon while under disability was

nolled. In Case No. CR-13-573669, Tyree pled guilty to an amended count of attempted

having a weapon while under disability.

          {¶4} In Case No. CR-13-573022, the trial court sentenced Tyree to one year in

prison on the firearm specification, to be served prior to three years on the attempted

aggravated robbery charge, for a total of four years in prison. The trial court ordered that

Tyree pay $319 as restitution. In Case No. CR-13-573669, the trial court sentenced him

to twelve months in prison on the attempted having a weapon while under disability

charge. The trial court ordered that the sentence in this case be served concurrent to the
sentence in Case No. CR-13-573022, for an aggregate sentence of four years in prison.

The court found Tyree indigent and ordered that the costs and fees be waived.

       {¶5} Tyree now appeals, raising the following single assignment of error for

review.

                               ASSIGNMENT OF ERROR

       The trial court failed to advise [Tyree] of the potential fine attendant to his
       plea of guilty to attempted [aggravated] robbery, thus rendering his plea
       unconstitutional.

       {¶6} In the sole assignment of error, Tyree argues that his guilty plea must be

vacated because the trial court did not advise him that the aggravated robbery charge

carried a potential fine of $15,000. In support of his argument, he relies on this court’s

decision in State v. Johnson, 8th Dist. Cuyahoga No. 91884, 

.

       {¶7} In Johnson, this court interpreted the oral dialogue implied in Crim.R. 11 to

include the mention of any particular fines and costs associated with a guilty plea, so that

a defendant may properly be advised of the maximum penalty involved in pleading guilty.

 Id. at ¶ 10. We vacated Johnson’s guilty plea on the grounds that the trial court did not

substantially comply with Crim.R. 11 because it failed to mention the fine associated with

pleading guilty to a single charge of rape. However, we find Johnson distinguishable

from the instant case.

       {¶8} First, in Johnson, the state conceded the trial court’s error, so we were

constrained to vacate Johnson’s plea. Second, in the instant case, the state informed the

court at the plea colloquy of the potential fine, and no objection was made by Tyree.
Furthermore, at the time of sentencing, the trial court stated that the potential fine for the

aggravated robbery was $15,000. Lastly, the trial court in the instant case never imposed

a fine at sentencing. Rather, the trial court found Tyree indigent and waived all costs and

fines.

         {¶9} Moreover, this court has addressed Tyree’s argument in State v. Simmons,

8th Dist. Cuyahoga Nos. 99513 and 100552, 

, and held as follows:

         With respect to the trial court’s omission to notify Simmons of the possible

         fines and court costs, because the trial court never actually imposed the

         fines or court costs, Simmons cannot show that he would not have entered

         the plea. Simmons received the incarceration penalty within the range of

         what the trial court informed him was possible at sentencing, including the

         mandatory three-year term of postrelease control on the felonious assault

         count. Further, this court has consistently held that a trial court’s failure to

         inform the defendant of the maximum penalty aside from the fines and costs

         satisfies the court’s obligation pursuant to Crim.R. 11(C)(2) when the court

         does not impose any monetary punishments. [State v.] Flagg, 8th Dist.

         Cuyahoga Nos. 93248 and 93279, 

, ¶ 33; State v. Smith, 8th

         Dist. Cuyahoga No. 36588, 

 (Dec. 8, 1977).

Id. at ¶ 7.

         {¶10} Likewise, in the instant case, the trial court never actually imposed fines or

court costs. Rather, the trial court found Tyree to be indigent and waived costs and fines.
Additionally, the state informed the court at the plea colloquy of the potential fine, and no

objection was made by Tyree. At the time of sentencing, the trial court stated that the

potential fine for the aggravated robbery was $15,000. Based on the foregoing, Tyree

cannot demonstrate that he was prejudiced by the trial court’s omission regarding the fine,

nor can he demonstrate that he would not have entered the plea had he been advised of

the potential fine.

       {¶11} Accordingly, the sole assignment of error is overruled.

       {¶12} Judgment is affirmed.

       Costs waived.

       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.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN T. GALLAGHER, J., CONCUR