[Cite as State v. Lett,
2016-Ohio-4811.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 15 MA 0128
VS. )
) OPINION
MARK LETT )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas, Mahoning County, Ohio
Case No. 14 CR 816
JUDGMENT: Reversed. Remanded for resentencing.
APPEARANCES:
For Plaintiff-Appellee Attorney Paul Gains
Mahoning County Prosecutor
Attorney Ralph Rivera
Assistant Prosecutor
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney John Falgiani, Jr.
8872 East Market Street
P.O. Box 8533
Warren, Ohio 44484
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: June 30, 2016
[Cite as State v. Lett, 2016-Ohio-4811.]
DeGENARO, J.
{¶1} Defendant-Appellant, Mark Lett, appeals the judgment of the Mahoning
County Court of Common Pleas overruling his motion to withdraw his guilty plea;
convicting him of multiple charges including trafficking in counterfeit substances,
tampering with records, receiving stolen property, telecommunications fraud, forgery,
passing bad checks, and identity theft; and sentencing him accordingly. On appeal,
Lett argues that the trial court abused its discretion by denying his pre-sentence
motion to withdraw his guilty plea. He also contends the court erred by failing to
merge several charges as they are allied offenses of similar import. Finally, he
contends trial counsel was ineffective.
{¶2} For the following reasons, Lett's assignments of error are meritless;
however, a review of the record reveals plain error regarding the sentencing with
respect to two counts. Accordingly, the judgment of the trial court is reversed and the
matter remanded for a limited resentencing.
Facts and Procedural History
{¶3} On August 7, 2014, Lett was secretly indicted by a Mahoning County
grand jury on: two counts of trafficking in counterfeit controlled substances, R.C.
2925.37(B) and (H), fifth-degree felonies; one count of tampering with records, R.C.
2913.42(A)(1) and (B)(4), a third-degree felony; one count of receiving stolen
property, R.C. 2913.51(A), a first-degree misdemeanor; one count of receiving stolen
property, R.C. 2913.51(A) and (C), a fifth-degree felony; two counts of
telecommunications fraud, R.C. 2913.05(A) and (C), four counts of forgery, R.C.
2913.31(A)(1) and (C)(1)(a)(c)(i), all fourth-degree felonies; four counts of passing
bad checks, R.C. 2913.11(B) and (F), fifth-degree felonies, one count of identity theft,
R.C. 2913.49(C) and (I)(3) and one count of money laundering, R.C. 1315.55(A)(1),
both third-degree felonies; and one count of engaging in a pattern of corrupt activity,
R.C. 2923.32(A)(1), a first-degree felony. Co-defendant Caprice A. Daye was also
charged with multiple counts in the same indictment.
{¶4} The record contains very little factual background regarding these
charges, other than what is stated in the indictment. We can glean from documents in
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the record that Lett and his co-defendant sold counterfeit oxycodone to a confidential
informant on several occasions, and that, as a result, a search warrant was issued for
Lett's residence and his co-defendant's vehicle. The additional charges presumably
arose from the fruits of that search warrant and the resulting investigation.
{¶5} Lett appeared, pled not guilty and was appointed counsel. The trial
court denied bond. Lett filed a motion for a bill of particulars which the trial court
sustained; however, from the record it does not appear that a bill of particulars was
ever filed. After original appointed counsel withdrew citing irreconcilable differences,
the trial court appointed new counsel.
{¶6} Lett filed a motion to suppress, in which he argued: (1) he was arrested
without a warrant and without probable cause; (2) the search warrant was invalid;
and (3) statements he made to police were in violation of his Miranda rights, which
the State opposed. The trial court denied Appellant's motion to suppress as to the
first two grounds and set a hearing on the Miranda issue; however the issue was
never heard as Lett subsequently entered a plea.
{¶7} In the meantime, during a pretrial, the trial court denied Lett's oral
motion to appoint new counsel, or in the alternative, to retain counsel, following a
hearing on the motion, finding:
Defendant failed to demonstrate a complete breakdown in
communications. Defendant was in Court one week ago and no
suggestion was made by him of a breakdown in communications. There
was no communication between that time and today's motion when
Defendant announced to his lawyer he wanted new counsel.
The Court has balanced Defendant's right to counsel and the
public's interest in a speedy resolution. This case has been pending for
almost a year, which is well beyond Supreme Court guidelines of ninety
(90) days. Previous counsel withdrew and new counsel was appointed
because Defendant had "lost confidence" in his appointed counsel. His
most recent motion comes within days of an unfavorable partial ruling
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on a Motion to Suppress and a final offer by the State of significant
prison time, and five (5) days before his fifth scheduled trial date.
Defendant has had sufficient time to obtain funds from outside
sources to retain his own counsel.
The Court finds the Motion to be unsubstantiated and
unreasonable and a delay tactic.
{¶8} The next day, apparently without knowledge of the trial court's denial of
Lett's pro-se motion to appoint new counsel, defense counsel filed a motion to
withdraw, noting Lett had filed a grievance against him which had since been
dismissed, without elaborating on the details; and despite the grievance, he had
continued to represent Lett after meeting with Lett to discuss the issue and learning
Lett did not object to his continued representation. Since then, however, counsel
stated that "the attorney-client relationship now suffers from irreconcilable differences
and counsel believes that effective representation cannot be afforded to this
Defendant."
{¶9} In any event, the following day, while still represented by counsel, Lett
entered into a Crim.R. 11 plea agreement. The State agreed to dismiss the money
laundering and the engaging in a pattern of corrupt activity charges, and to
recommend an aggregate 59-month prison sentence. In exchange, Lett agreed to
plead guilty to the remaining applicable charges in the indictment.
{¶10} At the plea hearing the issue of Lett's prior problems with appointed
counsel was examined; counsel withdrew his motion and Lett stated that he was able
to sufficiently communicate with counsel so as to make a knowing, voluntary and
intelligent plea. The trial court engaged in a colloquy with Lett about the rights he
would be giving up by pleading guilty; Lett indicated his understanding and pled
guilty. Notably, Lett agreed that no one had threatened him or promised him anything
in exchange for his guilty pleas. The trial court accepted Lett's guilty pleas as
knowing, voluntary and intelligent.
{¶11} The day before the original sentencing hearing Lett filed a pro se
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motion to withdraw his guilty pleas, which the State opposed. The trial court
continued the hearing and Lett filed a successive motion to withdraw his guilty pleas.
{¶12} The trial court held a hearing on the motions. The prosecutor reviewed
all of the factors regarding pre-sentence motions to withdraw pleas and argued that
plea withdrawal was unwarranted. Insofar as Lett filed the motions pro se and part of
his argument was ineffective assistance of counsel in the plea process, counsel gave
only the following brief statement: "Well, Your Honor, in light of his motion, I have to
proceed very cautiously in this situation. So the most that I can say is, and I think
Mark would agree, he wanted to file this pro se. He did not ask me to file this motion,
and that’s probably all I want to say."
{¶13} The trial court engaged in a lengthy colloquy with Lett about his reasons
for wanting to withdraw his guilty plea. Lett asserted that he had twice written to
counsel to ask him to file the motion to withdraw, but received no answer. In support
of his motion, Lett argued that he was misled by counsel during the plea
proceedings. Lett claimed he wanted to proceed to trial initially, but counsel
erroneously told him that several witnesses he wanted to call to testify would not be
permitted to do so. Lett did not elaborate about these witnesses other than to say
one was "a public official." Lett conceded that he did not raise any of these issues
during the earlier plea colloquy with the trial court.
{¶14} The trial court then denied Lett's motion to withdraw his guilty plea, after
providing its reasoning on the record. The trial court then proceeded to sentencing.
The prosecutor stood by its recommendation of 59 months, per the plea agreement.
Upon request of the trial court, the prosecutor gave factual support for the third
degree felony maximum sentence recommendations on counts 9 and 21, tampering
with records and identity theft, respectively. Defense counsel asked the trial court to
follow the jointly recommended sentence. Upon being asked by the trial court, Lett
gave a lengthy statement regarding sentencing.
{¶15} The trial court considered the statements made by Lett and the State, in
addition to the information in the PSI, as well as the principles and purposes of
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sentencing in R.C. 2929.11 and the seriousness and recidivism factors of R.C.
2929.12, and made findings relative to consecutive sentences and imposed a
combination of consecutive and concurrent sentences for an aggregate prison term
of 59 months with jail-time credit of 354 days for time served, plus additional days for
conveyance to the state institution. The trial court also imposed three years of
discretionary post-release control and explained the ramifications of violating post-release control.
{¶16} Although the aggregate prison sentence—59 months—was the same in
the plea agreement, sentencing hearing and sentencing entry, there are notable
differences in the specifics. The plea agreement recommended a sentence of six
months on Count 10, the misdemeanor receiving stolen property charge. A sentence
of 12 months was recommended on Count 20, one of the passing bad checks
counts. During the sentencing hearing, however, the trial court failed to pronounce
any sentence for Counts 10 and 20. Moreover, there were no arguments regarding
allied offenses during the hearing and the trial court did not state on the record that it
was merging any counts.
{¶17} By contrast, pertinent to this appeal, the sentencing entry states that
Count 10 is to merge with Count 11, receiving stolen property and imposed no
sentence for Count 20, passing bad checks.
Presentence Motion to Withdraw Guilty Plea
{¶18} In his first of three assignments of error, Lett asserts:
The trial court abused its discretion in denying Appellant's presentence
motion to withdraw guilty plea.
{¶19} The Supreme Court of Ohio has stated that trial courts should "freely
and liberally" grant pre-sentence motions to withdraw guilty pleas. State v. Xie, 62
Ohio St.3d 521, 527,
584 N.E.2d 715 (1992). That, however, does not mean a
defendant has an absolute right to withdraw a guilty plea prior to sentencing.
Id. at
paragraph one of the syllabus. Rather, there must be "a reasonable and legitimate
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basis for withdrawal of the plea." Id. A trial court's decision regarding a plea
withdrawal motion is reviewed under an abuse of discretion standard.
Xie at 526.
"Abuse of discretion means an error in judgment involving a decision that is
unreasonable based upon the record; that the appellate court merely may have
reached a different result is not enough." State v. Dixon, 7th Dist. No. 10 MA 185,
2013–Ohio–2951, ¶ 21.
{¶20} The factors to be considered when making a decision on a motion to
withdraw a guilty plea are: (1) prejudice to the state; (2) counsel's representation; (3)
adequacy of the Crim.R. 11 plea hearing; (4) extent of the plea withdrawal hearing;
(5) whether the trial court gave full and fair consideration to the motion; (6) timing; (7)
the reasons for the motion; (8) the defendant's understanding of the nature of the
charges and the potential sentences; and (9) whether the defendant was perhaps not
guilty or has a complete defense to the charge. State v. Cuthbertson, 139 Ohio
App.3d 895, 898–899,
746 N.E.2d 197 (7th Dist.2000), following State v. Fish,
104
Ohio App.3d 236,
661 N.E.2d 788 (1st Dist.1995) No one factor is determinative. See
State v. Morris, 7th Dist. No. 13MA19, 2014–Ohio–882, ¶ 22. "Rather, it is a weighing
process." State v. Peck, 7th Dist. No. 14 MA 56,
2015-Ohio-1279, ¶ 24, citing
Cuthbertson,
139 Ohio App.3d at 899.
{¶21} The first factor concerns prejudice to the State, which Lett asserts that
the State failed to establish. The State concedes this factor. Thus, this factor weighs
in Lett's favor.
{¶22} The second factor concerns counsel's representation. While there is
little in the record supporting Lett's assertions he was inadequately represented when
he entered his plea, it is true that he had no assistance from counsel during the plea
withdrawal proceedings. Lett asserted that he wrote to counsel twice asking him to
file the motion, but counsel failed to respond. However, counsel stated Lett had never
asked him to file the motion and that Lett wanted to argue it pro se. Ultimately, the
trial court was in the best position to determine credibility. See State v. Smith, 49
Ohio St.2d 261,
361 N.E.2d 1324 (1977), at paragraph two of the syllabus.
-7-
{¶23} Lett is correct that counsel failed to present any argument at the plea
withdrawal hearing. However, as the State points out, we cannot necessarily fault
counsel since Lett's arguments centered on ineffectiveness of representation, and
counsel should not be expected to argue his representation was ineffective.
{¶24} Lett also argues the trial court prevented him from retaining counsel
during the plea withdrawal proceedings; however, this is inaccurate. Lett stated
during the hearing that his family had engaged in preliminary talks about retaining
another attorney. However, Lett conceded that this attorney was merely "on standby"
who would represent Lett "if I was allowed to withdraw the plea." Moreover, this
issue is more relevant to our analysis of the fourth factor. In sum, this factor weighs
in the State's favor.
{¶25} The third factor concerns the adequacy of the plea hearing. Although
Lett contends that he was not adequately represented during negotiations, there is
nothing in the record demonstrating his representation was inadequate. The Criminal
Rule 11 colloquy demonstrates that his plea was entered into knowingly, intelligently,
and voluntarily. Lett's prior problems with appointed counsel were examined; counsel
withdrew his motion to withdraw, and Lett stated that he was able to sufficiently
communicate with counsel so as to make a knowing, voluntary and intelligent plea:
THE COURT: Did you have any - - we had some discussion on
[sic] the record earlier about your ability to communicate with your
client. I am going to ask Mr. Lett the same thing. Were you able to
adequately communicate with him of his rights and advise him of the
elements of the various crimes and to properly negotiate for him this
morning?
COUNSEL: I think we got along pretty well this morning. He even
said I'm growing on him, he said.
THE COURT: You are growing on him?
COUNSEL: Yeah.
THE COURT: Okay. All right. As long as you were able to get
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along enough so that Mr. Lett has been properly represented and his
interests protected.
COUNSEL: I think at some point she is going to ask you about it,
are you satisfied with me as counsel. But for now I would withdraw my
motion to withdraw. Are you happy with that?
THE DEFENDANT: I'm fine with it.
THE COURT: Okay. And I need to just make sure that you feel
that you were sufficiently able to communicate with Attorney Gentile this
morning to make a knowing, intelligent, and voluntary plea here. Are
you able to do that, Mr. Lett?
THE DEFENDANT: Yes, Your Honor.
{¶26} The trial court engaged in a colloquy with Lett about the constitutional
and nonconstitutional rights Lett would be giving up, and Lett indicated his
understanding and his desire to give up those rights and plead guilty. Notably, Lett
stated no one threatened or promised him anything in exchange for his guilty pleas.
Thus, the trial court accepted Lett's guilty pleas as knowing, voluntary and intelligent.
This factor weighs heavily in the State's favor.
{¶27} The fourth factor is the extent of the plea withdrawal hearing. As an
initial matter, Lett argues that counsel failed to argue the plea withdrawal motion
because he had a motion to withdraw as counsel pending at that time. This is
unsupported by the record; counsel withdrew his motion during the plea hearing. It is
true that counsel did not present argument during the plea withdrawal hearing, but it
was because Lett was alleging counsel's ineffectiveness, explaining: "Well, Your
Honor, in light of his motion, I have to proceed very cautiously in this situation. So the
most that I can say is, and I think Mark would agree, he wanted to file this pro se. He
did not ask me to file this motion, and that’s probably all I want to say."
{¶28} Lett then proceeded to argue his plea withdrawal pro se. After asking
Lett several specific questions, the trial court permitted him to present any argument
of his choosing in support of his motion. Lett never requested the trial court to appoint
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new counsel to assist him with the plea withdrawal, instead indicating he wanted to
retain another attorney for trial if the trial court permitted him to withdraw his plea.
{¶29} Although courts have held that a hearing on a motion to withdraw a
guilty plea is a critical stage of litigation to which the criminal defendant's right to the
assistance of counsel attaches, see State v. Emerson, 5th Dist. No. 14 CA 79, 2015-
Ohio-2121, ¶ 25, citing cases, here, Lett chose to argue his motion pro se. Thus, this
factor weighs in the State's favor.
{¶30} The fifth factor is whether the trial court gave full and fair consideration
of the motion. Lett's argument centers on the trial court's failure to appoint substitute
counsel to assist him. Again, this goes toward the extent of the plea withdrawal
hearing, and the trial court gave Lett ample opportunity to address the court pro se
concerning his motion. The trial court's decision to deny the plea withdrawal was
well-reasoned, as demonstrated by the hearing transcript. The trial court found it
important that Lett indicated he fully understood the rights he would be giving up
during the plea hearing, and represented that he was satisfied with counsel at that
point, despite prior issues with counsel. The trial court also gave weight to the timing
of the motion, finding it was problematic and indicative of a mere "change of heart" by
Lett about pleading guilty. Thus, this factor weighs in the State's favor.
{¶31} The sixth factor is the timing of the defendant's motion, which Lett filed
pro se over a month after he pled guilty, the day before the sentencing hearing was
originally set. That hearing was later rescheduled due to the unavailability of the trial
court. This court has previously concluded that a motion to withdraw a plea on the
day of sentencing is unreasonable. State v. Calloway, 7th Dist. No. 10 MA 147, 2011-
Ohio-4257, ¶ 45; State v. Gallagher, 7th Dist. No. 08 MA 178, 2009-Ohio-2636, ¶ 37.
Thus, the State asserts filing the motion the day before the hearing is likewise
unreasonable. Lett counters that the timing was reasonable considering he had no
assistance from counsel, contending the trial court ignored that he asked counsel
twice to file the motion but did not do so.
{¶32} During the hearing, Lett did allege he wrote counsel to ask that he file
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the motion on his behalf, but received no answer. However, counsel told the trial
court that Lett "wanted to file this pro se. He did not ask me to file this motion[.]" The
trial court did not "ignore" Lett's statements that he had asked counsel to file the
motion. Rather, the trial court made a credibility decision and rejected Lett's
assertions. Thus, this factor weighs in the State's favor.
{¶33} The seventh factor concerns the reasons for the motion to withdraw.
Lett asserted at the hearing that these include his innocence and lack of adequate
representation by counsel. However, there is nothing in the record to support either
assertion. Thus, this factor weighs in the State's favor.
{¶34} The eighth factor concerns the nature of the charges and potential
sentence. The trial court's Criminal Rule 11 colloquy establishes that Lett understood
the charges against him and maximum sentences that he faced on each charge.
Further, as the prosecutor pointed out during the plea withdrawal hearing, Lett had a
lengthy criminal history and had been through many plea and sentencing hearings in
the past and was aware of how the process worked. Thus, this factor weighs in the
State's favor.
{¶35} Finally, the ninth factor is whether the defendant has a meritorious
defense to the charges. Lett has largely failed to assert any defense to the charges
other than to claim that he could not be found guilty of identity theft where the victim
was female and he is male. This lacks merit because he was convicted of identity
theft under R.C. 2913.49 which provides: "No person shall create, obtain, possess, or
use the personal identifying information of any person with the intent to aid or abet
another person in violating division (B) of this section." Lett does generally assert he
is innocent of the charges, but presents nothing to support his claim of innocence.
Thus, this factor weighs in the State's favor.
{¶36} In sum, upon review of all of the factors, most weigh in favor of the
State's position and against the plea withdrawal. The only caveat is the extent of the
plea withdrawal hearing insofar as Lett argued it pro se. As discussed, counsel
asserted during the hearing that Lett wanted to argue the motion pro se. Further, Lett
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was given a full opportunity to present arguments of his choosing and never
requested that the trial court appoint substitute counsel to assist him with his plea
withdrawal motion. Accordingly, the trial court did not abuse its discretion in
overruling Lett's pre-sentence motion to withdraw his plea and Letts first assignment
of error is meritless.
Sentencing Issues/Allied Offenses of Similar Import
{¶37} In his second of three assignments of error, Lett asserts:
The trial court erred and abused its discretion by failing to merge "allied
offenses of similar import," and by erroneously sentencing Appellant
separately for said allied offenses.
{¶38} As an initial matter, a review of the record reveals plain error
concerning the sentencing. Lett pled guilty to 16 counts: counts 1 and 2, trafficking in
counterfeit controlled substances; count 9, tampering with records; count 10,
misdemeanor receiving stolen property; count 11, felony receiving stolen property;
counts 13 and 14, telecommunications fraud; counts 15, 17, 19 and 22, forgery;
counts 16, 18, 20, and 23 passing bad checks; and count 21 identity theft. The trial
court accepted Lett's guilty pleas to those counts.
{¶39} During the sentencing hearing, the trial court failed to pronounce any
sentence for counts 10 and 20. The sentencing entry states that count 10,
misdemeanor receiving stolen property, is to merge with count 11, felony receiving
stolen property count, and imposes no sentence for count 20, passing bad checks.
After the appeal was perfected in this case, the trial court issued an amended
sentencing entry that did pronounce a sentence on count 20.
{¶40} " 'Crim.R. 43(A) provides that the defendant shall be present at every
stage of the trial, including at the imposition of sentence. Because the defendant's
presence is required when the court imposes sentence, the trial court errs when its
judgment entry of sentence differs from the sentence that it announced at the
sentencing hearing in the defendant's presence.' " State v. Kase, 187 Ohio App.3d
- 12 -
590, 2010-Ohio-2688,
932 N.E.2d 990, ¶ 30 (7th Dist.), quoting State v. Kovach, 7th
Dist. No. 08–MA–125,
2009-Ohio-2892, ¶ 28. In other words, "imposition of a
sentence in a sentencing judgment entry different than the sentence announced by
the court at the time of sentencing violates a defendant's right to be present at
sentencing and requires a remand for resentencing[.]" State v. Williams, 6th Dist. No.
L-11-1084,
2013-Ohio-726,
987 N.E.2d 322, ¶ 49.
{¶41} Accordingly, a remand for resentencing is required so that the trial court
can impose sentences for counts 10 and 20, during a hearing in Lett's presence.
{¶42} Turning to the allied offenses argument, Lett contends without going
into much detail or analysis, that some of his convictions should have merged. As
discussed above, the sentence was jointly recommended, i.e., the trial court imposed
the sentence agreed upon in the plea agreement by Lett and the State. Even where
there is an agreed-upon sentence, the defendant is still entitled to plain error review
regarding merger. State v. Tesack, 7th Dist. No. 15 JE 4, 2015-Ohio-5601,¶ 22, citing
State v. Peck, 7th Dist. No. 12 MA 205, 2013–Ohio–5526, ¶ 14-15.
{¶43} In Peck this court explained:
The Ohio Supreme Court has recognized that the failure of the
trial court to account for allied offenses, when it is clear from the record
that multiple offenses are allied offenses of similar import under R.C.
2941.25, is plain error. State v. Underwood, 124 Ohio St.3d 365, 2010–
Ohio–1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough,
104 Ohio
St.3d 1, 2004–Ohio–6087,
817 N.E.2d 845, ¶ 96–102. In Underwood,
the defendant entered a no contest plea to two counts of aggravated
theft and two counts of theft. He agreed to serve up to two years in
prison. The prosecutor filed a sentencing recommendation with the trial
court that noted that two of the charges were allied offenses. The court
imposed sentences for all four counts, but ordered them to be served
concurrently for a total of two years in prison. The defendant did not
object to the sentence, but did file an appeal raising the issue of allied
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offenses. The Ohio Supreme Court held that the requirement to merge
allied offenses is mandatory, occurs at sentencing, is reviewable on
appeal even pursuant to a Crim.R. 11 jointly agreed-upon sentence,
and may be reviewed for plain error even when no allied offense
objection is raised at trial. Id. at ¶ 20, 26, 31.
The Underwood case allows for plain error review of possible
allied offenses even if the sentence was imposed as part of a Crim.R.
11 plea agreement and was agreed to by the defendant. Prior to
Underwood, it was often the practice of this Court and many others to
apply the waiver doctrine where Crim.R. 11 agreed-upon sentences
were involved, and to deny any further review of allied offenses, even
review for plain error. State v. Logsdon, 7th Dist. No. 09CO8, 2010–
Ohio–2536. The rationale for this holding was that R.C. 2953.08(D)(1)
does not allow for review of agreed-upon sentences that are authorized
by law. Underwood, though, held that a sentence that does not comport
with the allied offense statute is not authorized by law and is reviewable
for plain error. In light of Underwood, it is now possible in many cases
involving Crim.R. 11 plea agreements for a defendant to get a plain
error review of an allied offense issue. Underwood, though, did not
change how the plain error rule actually operates. While plain error may
be reviewed by an appellate court, plain error must still be
demonstrated by the record.
Peck at ¶ 14-15.
{¶44} Plain error exists when but for the error the outcome would have been
different. State v. Issa, 93 Ohio St.3d 49, 56,
752 N.E.2d 904 (2001); Crim.R. 52(B).
{¶45} The Ohio Supreme Court recently addressed the issue of offenses of
similar import requiring merger in State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995,
34 N.E.3d 892. The Court held that if a defendant's conduct supports multiple
offenses, the defendant can be convicted of all of the offenses if any one of the
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following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows the offenses were committed separately, or (3) the conduct shows the
offenses were committed with separate animus. Id. at paragraph three of the
syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import within
the meaning of R.C. 2941.25(B) "when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate
and identifiable."
Id. at paragraph two of the syllabus.
{¶46} Here, there was no allied offenses argument made by counsel at
sentencing, and the trial court did not merge any of the offenses during the hearing.
In the entry, the trial court then belatedly attempted to merge count 10, misdemeanor
receiving stolen property with count 11, felony receiving stolen property. Even if the
trial court would have merged those counts during the hearing, it would have been
error. The indictment demonstrates those two counts involved two completely
different circumstances. Count 10 involved the driver's license of one victim, whereas
Count 11 involved boxes of blank checks for three separate victims.
{¶47} None of the other offenses should have merged either—they each
involved different dates, victims and/or separate conduct.
{¶48} Accordingly, based on the above, the trial court did not commit plain
error by failing to merge any of the counts. The trial court committed plain error by
failing to pronounce sentences for counts 10 and 20 on the record. Thus, while Lett's
second assignment of error is meritless, a remand is required to correct this other
sentencing error.
Ineffective Assistance of Counsel
{¶49} In his third and final assignment of error, Lett asserts:
Appellant was denied effective assistance of counsel under the Sixth
and Fourteenth Amendments to the U.S. Constitution; Section 10,
Article I, Ohio Constitution.
{¶50} To establish ineffective assistance of counsel, a criminal defendant
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must show that counsel's performance was deficient and that the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984);
State v. Bradley,
42 Ohio St.3d 136, 142,
538 N.E.2d 373 (1989). To demonstrate
prejudice, "[t]he defendant must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome."
Strickland at 694. The defendant bears the burden of proving
counsel's alleged ineffectiveness, since Ohio law presumes a licensed attorney is
competent. State v. Calhoun,
86 Ohio St.3d 279, 289,
714 N.E.2d 905 (1999). If a
defendant cannot show how counsel's errors undermined the reliability of the court's
decision, there is no basis for finding that his right to counsel has been violated. State
v. Hancock,
108 Ohio St.3d 57, 2006–Ohio–160,
840 N.E.2d 1032, ¶ 109;
Strickland
at 693.
{¶51} The bulk of Lett's arguments rely on affidavits he has attached to his
brief. This court cannot consider them to establish any possible deficiencies by
defense counsel, because an "appellant cannot add affidavits to the record on appeal
that were not filed below." State v. Jones, 7th Dist. No. 10 MA 47, 2011-Ohio-1002, ¶
11, citing State v. Ishmail,
54 Ohio St.2d 402, 406,
377 N.E.2d 500 (1976) (cannot
add matter to record that was not in record before the trial court).
{¶52} Further, "the entry of a voluntary guilty plea waives ineffective
assistance of counsel claims except to the extent that counsel's performance causes
the waiver of Defendant's trial rights and the entry of his plea to be less than knowing
and voluntary.” State v. Fatula, 7th Dist. No. 07 BE 24, 2008–Ohio–1544 at ¶ 9,
quoting State v. Kidd, 2d Dist. No. 03CA43, 2004–Ohio–6784, ¶ 16. As a corollary, a
defendant can bring an ineffective assistance of counsel claim concerning a pre-sentence motion to withdraw his guilty plea. See Emerson, supra, 2015-Ohio-2121,
¶ 25.
{¶53} As discussed above, the trial court engaged in a proper plea colloquy
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with Lett, which demonstrates that the plea was entered into knowingly, intelligently,
and voluntarily. The trial court specifically questioned Lett about his prior issues with
defense counsel. Counsel withdrew his motion to withdraw from representation, and
Lett stated that he was able to sufficiently communicate with counsel so as to make a
knowing, voluntary and intelligent plea. The trial court engaged in a colloquy with
Lett about the constitutional and nonconstitutional rights Lett would give up by
pleading guilty. Lett indicated his full understanding, and his desire to give up those
rights and plead guilty. Notably, Lett agreed that no one had threatened him or
promised him anything in exchange for his guilty pleas.
{¶54} Lett's assertions that trial counsel misled him into believing that he
could not call witnesses of his own choosing at trial are unsupported by the record.
The trial court informed Lett about his right to compel witnesses to testify at trial and
Lett indicated his understanding that by pleading guilty he was waiving that right.
{¶55} Counsel was not ineffective during the plea withdrawal proceedings
either. Counsel stated, on the record, that Lett did not request that he file the motion
and that he wished to argue the motion pro se. As discussed above, counsel should
not be expected to, nor rendered ineffective because of his failure to, argue his own
ineffectiveness. Further, even had counsel assisted Lett in the motion, the outcome
would not have been different; thus, there was no prejudice. Accordingly, Lett's third
assignment of error is meritless.
{¶56} In conclusion, Lett's assignments of error are meritless, but there is
plain error regarding sentencing insofar as the trial court failed to pronounce a
sentence—on the record during the sentencing hearing—for counts 10 and 20.
- 17 -
Accordingly, the judgment of the trial court is reversed and the matter is remanded for
a limited resentencing.
Donofrio, P. J., concurs.
Waite J., concurs.
