[Cite as State v. Luna,
2024-Ohio-5706.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113655
v. :
GREGORY LUNA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED, REVERSED, AND REMANDED
RELEASED AND JOURNALIZED: December 5, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-683200-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda and Carl M. Felice,
Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Noelle A. Powell-Sacks, Assistant Public Defender, for
appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Gregory Luna (“Luna”) appeals his conviction
and sentence following a guilty plea. Plaintiff-appellee State of Ohio concedes
reversible error occurred pursuant to Loc.App.R. 16(B).1 Following a thorough
review of the record and law, this court vacates Luna’s plea, reverses his conviction
and sentence, and remands this matter to the trial court for further proceedings
consistent with this opinion.
Background and Facts
Luna was indicted on multiple counts arising from an automobile
accident that occurred in the summer of 2023. In October 2023, Luna pleaded guilty
to aggravated vehicular assault, R.C. 2903.08(A)(1)(a), a third-degree felony;
operating a vehicle while under the influence of alcohol or drugs (“OVI”), R.C.
4511.19(A)(1)(a), a first-degree misdemeanor; and criminal damaging, R.C.
2909.06(A)(1), a first-degree misdemeanor.
Assignments of Error
Luna assigns three errors on appeal:
I. Luna’s guilty plea was not voluntarily, knowingly, and intelligently
entered.
II. The trial court erred when it failed to deduct the documented
insurance payments that the victim received from the total restitution.
III. Luna received ineffective assistance of counsel because counsel
failed to object to the restitution amount and, thus, failed to trigger the
requirement that the trial court hold a restitution hearing.
1 Loc.App.R. 16(B) provides: “Notice of Conceded Error. When a party concedes
an error that is dispositive of the entire appeal, the party conceding the error shall file a
separate notice of conceded error in lieu of a responsive brief. Once briefing is completed,
the appeal will be randomly assigned to a merit panel for review. The appeal will be
submitted on the briefs unless the assigned panel sets an oral argument date.”
Discussion
In a conceded error case, where a party concedes the presence of a
dispositive reversible error, this court conducts its own examination of the record to
determine whether the concession accurately reflects settled law. State v. Green,
2024-Ohio-2174, ¶ 1 (8th Dist.); State v. Forbes,
2022-Ohio-2871, ¶ 2 (8th Dist.);
Cleveland v. Patterson,
2020-Ohio-1628, ¶ 6 (8th Dist.); and Loc.App.R. 16(B).
Guilty Plea
Generally, Crim. R. 11 governs pleas and rights upon entering pleas.
The purpose of the colloquy is to ensure that a defendant is advised of and
understands the defendant’s constitutional and nonconstitutional rights, so the
defendant has the information needed to enter a plea knowingly, intelligently, and
voluntarily. See, e.g., State v. Veney, 2008-Ohio-5200; State v. Ballard,
66 Ohio
St.2d 473 (1981).
Luna contends the trial court failed to comply with
Crim.R. 11(C)(2)(a) that requires “that a defendant understand the ‘nature of
charges against him and the maximum penalty involved’ in order for his plea to be
knowing, intelligent, and voluntary.” State v. Straley, 2019-Ohio-5206, ¶ 19. Luna
was informed during the colloquy that the aggravated vehicular assault charge was
a low-tier offense subject to a potential sentence between nine and 36 months. The
failure to correctly inform Luna of the maximum penalty was not a complete failure
to address the maximum sentence under Crim.R. 11(C); thus, Luna must show
prejudice to establish the plea was not knowingly, intelligently, and voluntarily
made. State v. Dangler,
2020-Ohio-2765, ¶ 23.
The court asked the parties whether the aggravated vehicular assault
charge was a “high tier or low tier” third-degree felony. Both parties responded that
it was low tier. Luna was advised the term was nine to 36 months and could be
imposed in six-month increments. The criminal damaging charge was subject to
180 days of incarceration, and three days of jail-time credit applied to the first-
offense OVI.
Luna, who had no criminal record, was sentenced three months after
the plea. Again, the trial court inquired whether the aggravated vehicular assault
charge was a high- or low-tier offense. The State read the applicable code section
into the record that provided that the charge was a high-tier offense that carried a
one- to five-year term of incarceration. The trial court stated, “That’s what I thought
when we were doing it, that I had some memory of that when I did the review with
him.” Tr. 25.
Luna was sentenced to the maximum term of five years and $250 in
costs for aggravated vehicular assault. For criminal damaging, the trial court said,
“The sentence of the Court is [$]250 in costs.” Id. The trial court also stated on the
record that the sentence of the court for the OVI charge was “$375 in costs, 180 days”
with a three-year license suspension, restricted plates, and the requirement to
obtain a GED.
Id. Mandatory alcohol counseling upon release was also included.
The term of incarceration cited during the plea hearing was 180 days
for the criminal damaging and three days for the OVI. The aggravated vehicular
assault term imposed exceeded the total maximum term for all three charges cited
at the plea hearing. “When a defendant receives a sentence that exceeds what the
trial court previously informed the defendant was the maximum penalty, the
prejudice is apparent on its face.” State v. Tackett, 2023-Ohio-2298, ¶ 22 (8th
Dist.), citing State v. Drake,
2017-Ohio-4027, ¶ 12 (9th Dist.).
The State concedes Luna was incorrectly advised of the potential
penalties and concedes the guilty plea should be vacated and the case remanded for
further proceedings.
The first assignment of error is sustained.
Restitution
Luna argues that the trial court’s restitution order was not in
compliance with R.C. 2929.18(A)(1) and it exceeded the economic loss suffered by
the victim. As Luna points out:
R.C. 2929.18(A)(1) governs restitution. Under R.C. 2929.18(A)(1), a
trial court may order restitution “to the victim of the offender’s crime
or any survivor of the victim” in an amount that does “not exceed the
amount of the economic loss suffered by the victim as a direct and
proximate result of the commission of the offense.” The court may base
the amount of restitution imposed “on an amount recommended by the
victim, the offender, a presentence investigation report, estimates or
receipts indicating the cost of repairing or replacing property, and other
information.” R.C. 2929.18(A)(1).
State v. Speights, 2021-Ohio-1194, ¶ 10 (8th Dist.).
We also explained in Speights that the restitution amount ‘““must be
supported by competent, credible evidence from which the court can discern the
amount of the restitution to a reasonable degree of certainty.”’” Id. at ¶ 11, quoting
State v. Johnson, 2018-Ohio-3670, ¶ 55 (8th Dist.), quoting State v. Gears,
135 Ohio
App.3d 297, 300 (6th Dist. 1999); see also State v. Mills,
2019-Ohio-706, ¶ 33 (8th
Dist.) (“[P]rior to imposing restitution, a trial court must determine the amount of
restitution to a reasonable degree of certainty, ensuring that the amount is
supported by competent, credible evidence.”). “A trial court must conduct a hearing
to determine the amount of restitution only if ‘the offender, victim, or survivor
disputes the amount.’” R.C. 2929.18(A)(1).
The record reflects the restitution amount contained in the trial
court’s documents totaled $35,338.12. The sum was not consistent with the
prosecution’s records. Defense counsel informed the trial court “there’s indications
that the insurance company is also paying for some of those sums that are contained
in the packet.” Tr. 26.
After a sidebar, the trial court held:
Okay. There are some indications that apparently the insurance
company paid something for the hospitalization and then they
indicated to her that there were some moneys that were due from her,
but there’s only one. One that’s for $5,320.00. So restitution is going
to be ordered in the amount of $35,338.12.
Tr. 28.
The State concedes that $26,129.23 in insurance payments
documented in the trial court’s file should have been deducted, which amount did
not reflect any out-of-pocket costs and should not have been included in the
restitution figure.
The record does not confirm that the restitution amount was based
on competent, credible evidence.
The second assignment of error is sustained.
Ineffective assistance of counsel
App.R. 12(A)(1)(b) and (c) provide that an appellate court shall
“‘[d]etermine the appeal on its merits on the assignments of error set forth in the
brief . . . [u]nless an assignment of error is made moot by a ruling on another
assignment of error.”’ Greenlawn Cos. v. Canty, 2024-Ohio-3412, ¶ 40 (10th Dist.).
Luna’s claim that counsel was ineffective for failing to object to the trial court’s
restitution finding and failing to request a hearing is rendered moot by this court’s
decision to vacate Luna’s guilty plea, reverse his sentence and conviction, and
remand for further proceedings according to this opinion.
Conclusion
Luna’s guilty plea is vacated, the trial court’s judgment is reversed,
and the case is remanded to the trial court for further proceedings consistent with
this opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
MICHELLE J. SHEEHAN, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
