[Cite as State v. Cleary,
2017-Ohio-4120.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
)
PLAINTIFF-APPELLEE, ) CASE NO. 16 MA 0092
)
V. ) OPINION
)
ROY J. CLEARY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 14 CR 803
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee No brief filed
For Defendant-Appellant Attorney Donna Jewell McCollum
3695 Stutz Drive, Suite 100
Canfield, Ohio 44406
Roy J. Cleary
A671-501
2075 South Avon Beldon Road
Grafton, Ohio 44044
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 2, 2017
[Cite as State v. Cleary, 2017-Ohio-4120.]
DONOFRIO, J.
{¶1} Defendant-appellant, Roy Cleary, appeals from a Mahoning County
Common Pleas Court judgment convicting him of murder and aggravated robbery
following his guilty plea.
{¶2} On August 21, 2014, a Mahoning County Grand Jury indicted appellant
on one count of aggravated murder, one count of murder, one count of tampering
with evidence, and one count of aggravated robbery. These charges stemmed from
the robbery and murder of Mark Westfall.
{¶3} Appellant originally pleaded not guilty. He filed motions to suppress his
confession to the police and to suppress evidence seized from his mother’s home.
The trial court overruled the suppression motions.
{¶4} Appellant subsequently reached a plea agreement with plaintiff-appellee, the State of Ohio. Per the terms of the plea agreement, appellant agreed
to plead guilty to murder and aggravated robbery. In exchange, the state agreed to
dismiss the aggravated murder and tampering with evidence charges. Additionally,
appellant and the state agreed to jointly recommend a sentence of 15 years to life in
prison on the murder charge and five years on the aggravated robbery charge, to be
served consecutively to the murder sentence, for a total jointly recommended
sentence of 20 years to life.
{¶5} The trial court held a change of plea hearing where appellant pleaded
guilty to murder, a special felony in violation of R.C. 2903.02(A)(D) and aggravated
robbery, a first-degree felony in violation of R.C. 2911.01(A)(1)(C). The trial court
accepted appellant’s plea and set the matter for a sentencing hearing.
{¶6} At the sentencing hearing on June 5, 2015, the trial court sentenced
appellant to the jointly recommended sentence of 15 years to life for murder and five
years for aggravated robbery, to be served consecutively, for a total sentence of 20
years to life.
{¶7} This court granted appellant’s motion to file a delayed appeal on August
4, 2016.
{¶8} Appellant's appointed counsel filed a no merit brief and request to
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withdraw pursuant to State v. Toney, 23 Ohio App.2d 203,
262 N.E.2d 419 (7th Dist.
1970).
{¶9} On September 28, 2016, we issued a judgment entry notifying the
parties that appellant’s counsel had filed a Toney brief and advising appellant he had
30 days to file a pro se brief. Appellant did not file a pro se brief. Consequently, we
are left only to conduct our own independent review pursuant to Toney.
{¶10} In Toney, this court set out the procedure to be used when appointed
counsel finds that an indigent criminal defendant's appeal is frivolous. The procedure
set out in Toney, at the syllabus, is as follows:
3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is
frivolous and that there is no assignment of error which could be
arguably supported on appeal, he should so advise the appointing court
by brief and request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to withdraw
as counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
…
7. Where the Court of Appeals determines that an indigent's
appeal is wholly frivolous, the motion of court-appointed counsel to
withdraw as counsel of record should be allowed, and the judgment of
the trial court should be affirmed.
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{¶11} Appellant’s counsel mentions that appellant alleged two issues: (1) his
trial counsel did not inform him of his right to appeal and (2) the trial court should
have conducted an allied offense sentencing analysis.
{¶12} As to his right to appeal, this court granted appellant’s motion for a
delayed appeal. Therefore, there can be no prejudicial error in that regard. As to
any alleged sentencing errors, we will examine appellant’s sentence later in this
opinion.
{¶13} Because appellant entered a guilty plea in this case, there are only two
issues to examine. The first issue is whether appellant entered his plea knowingly,
voluntarily, and intelligently. The second issue is his sentence.
{¶14} When determining the validity of a plea, this court must consider all of
the relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-0365,
2005-Ohio-552, ¶ 8, citing Brady v. United States,
397 U.S. 742,
90 S.Ct. 1463
(1970). Pursuant to Crim.R. 11(C)(2), the trial court must follow a certain procedure
for accepting guilty pleas in felony cases. Before the court can accept a guilty plea to
a felony charge, it must conduct a colloquy with the defendant to determine that he
understands the plea he is entering and the rights he is voluntarily waiving. Crim.R.
11(C)(2). If the plea is not knowing, intelligent, and voluntary, it has been obtained in
violation of due process and is void. State v. Martinez, 7th Dist. No. 03-MA-196,
2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama,
395 U.S. 238, 243,
89 S.Ct. 1709
(1969).
{¶15} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of federal constitutional rights. Martinez, supra, ¶ 12. These rights include
the right against self-incrimination, the right to a jury trial, the right to confront one's
accusers, the right to compel witnesses to testify by compulsory process, and the
right to proof of guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c).
{¶16} In this case, the trial court strictly complied with Crim.R. 11(C)(2) in
informing appellant of the constitutional rights he was waiving by entering a guilty
plea. Before accepting appellant's plea, the trial court informed appellant that by
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pleading guilty he was waiving his right to have the state prove its case beyond a
reasonable doubt, his right to a jury trial, his right to subpoena witnesses to assist
him, his right to cross-examine witnesses against him, and his right to remain silent at
trial. (Change of Plea Tr. 6-8). Appellant indicated that he understood that he was
giving up each of these rights and stated he had no questions regarding them.
(Change of Plea Tr. 6-8).
{¶17} A trial court need only substantially comply with Crim.R. 11(C)(2)
pertaining to non-constitutional rights such as informing the defendant of “the nature
of the charges with an understanding of the law in relation to the facts, the maximum
penalty, and that after entering a guilty plea or a no contest plea, the court may
proceed to judgment and sentence.” Martinez, supra, ¶ 12, citing Crim.R.
11(C)(2)(a)(b).
{¶18} In this case, the trial court substantially complied with Crim.R. 11(C)(2)
in informing appellant of his non-constitutional rights. The court informed appellant of
the nature of the charges against him. (Change of Plea Tr. 5-6). Appellant indicated
that he understood the charges against him. (Change of Plea Tr. 5-6). Appellant
indicated that he understood that the court could proceed immediately to sentencing.
(Change of Plea Tr. 8-9). Appellant also indicated that he understood the maximum
penalty and that he understood that the prison term was mandatory. (Change of
Plea Tr. 8-9). And appellant stated he understood that if the court imposed the jointly
recommended sentence, then he could not appeal that sentence. (Change of Plea
Tr. 8).
{¶19} Moreover, the trial court inquired as to whether appellant was
knowingly, intelligently, and voluntarily entering his plea. (Change of Plea Tr. 13).
Appellant stated that he was. (Change of Plea Tr. 13). And the court asked if
anyone had threatened appellant or promised him anything in exchange for his guilty
plea, to which he responded “no.” (Change of Plea Tr. 10).
{¶20} Thus, the trial court substantially complied with Crim.R. 11(C)(2) in
accepting appellant's plea.
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{¶21} Next, we must review appellant’s sentence.
{¶22} In this case, the state and the defendant agreed on a recommended
sentence, which the trial court imposed. (Sentencing Tr. 2-3, 15-16). Thus, no
sentencing error can be raised. A jointly recommended sentence that is authorized
by law and is accepted and imposed by the trial court is not subject to appeal. State
v. Baker, 7th Dist. No. 12 MA 32, 2013-Ohio-862, ¶ 11.
{¶23} Appellant was convicted of one count of murder in violation of R.C.
2903.02(A). On this count, the trial court sentenced him to the mandatory sentence of
15 years to life. R.C. 2929.02(B)(1). Appellant was also convicted of aggravated
robbery, a first-degree felony. The possible sentences for a first-degree felony are
three, four, five, six, seven, eight, nine, ten, or eleven years. R.C. 292914(A)(1). On
this count, the trial court sentenced appellant to five years, which was within the
applicable range.
{¶24} Moreover, appellant's sentence on the murder charge was mandatory.
A sentence imposed for aggravated murder or murder pursuant to R.C. 2929.02 to
R.C. 2929.06 is not subject to review. R.C. 2953.08(D)(3). State v. Terrell, 1st Dist.
No. C-020194, 2003-Ohio-3044, ¶ 28.
{¶25} Finally, the trial court made all of the required findings at the sentencing
hearing to impose consecutive sentences.
{¶26} R.C. 2929.14(C)(4) requires a trial court to make specific findings when
imposing consecutive sentences:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to
serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future crime
or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public, and if the court also finds any
of the following:
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(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of
the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part of
any of the courses of conduct adequately reflects the seriousness of the
offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶27} It has been held that although the trial court is not required to recite the
statute verbatim or utter “magic” or “talismanic” words, there must be an indication
that the court found (1) that consecutive sentences are necessary to protect the
public from future crime or to punish the offender, (2) that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and to the danger
posed to the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a),
(b), or (c). State v. Bellard, 7th Dist. No. 12-MA-97, 2013-Ohio-2956, ¶ 17. However,
the court need not give its reasons for making those findings. State v. Power, 7th
Dist. No.
12 CO 14,
2013-Ohio-4254, ¶ 38.
{¶28} In this case, the trial court made all of the required findings at the
sentencing hearing. First, the court found that consecutive sentences were
necessary to protect the public from future crime and to punish appellant.
(Sentencing Tr. 16). Second, it found consecutive sentences were not
disproportionate to the seriousness of the conduct and to the danger that appellant
poses to the public. (Sentencing Tr. 16). Third, the court found that when appellant
committed the crime in this case he was on bond from Pensacola, Florida; he had
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violated previous community control sanctions; he had been convicted of crimes in
Georgia, Iowa, and North Carolina, and had a bench warrant for his arrest in Florida;
and his criminal history of criminal conduct demonstrated that consecutive sentences
were necessary to protect the public from future crime. (Sentencing Tr. 16-17).
Thus, the trial court made all of the required consecutive sentencing findings at the
sentencing hearing and, therefore, consecutive sentences were authorized by law.
{¶29} In sum, because appellant’s sentence was jointly recommended, was
authorized by law, and was imposed by the trial court, it is not subject to review.
{¶30} Upon review of the case file and appellate filings, there are no
appealable issues.
{¶31} For the reasons stated above, the trial court's judgment is hereby
affirmed. Counsel’s motion to withdraw is granted.
Waite, J., concurs.
DeGenaro, J., concurs.
