[Cite as State v. Strong, 2018-Ohio-5289.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals Nos. L-18-1049
                                                                        L-18-1050
        Appellee
                                                  Trial Court Nos. CR0201702510
v.                                                                 CR0201702776

Thomas Strong                                     DECISION AND JUDGMENT

        Appellant                                 Decided: December 28, 2018

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        Brian Morrissey, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} In this consolidated appeal, appellant, Thomas Strong, appeals the

February 8, 2018 judgments of the Lucas County Court of Common Pleas convicting him

for receiving stolen property in violation of R.C. 2913.51(A) and (C), a felony of the

fourth degree, and for failure to comply with an order or signal of a police officer in
violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree. Finding no

error, we affirm.

                                   Assignments of Error

       {¶ 2} Appellant sets forth the following assignments of error:

                 1. The Trial Court Was Not Able To Assess The Necessary Factors

       At Sentencing Under R.C. 2921.331(C)(5)(b).

                 2. The Trial Court Could Not Find That Appellant Had Violated

       R.C. 2921.331(C)(5)(a)(i) or (ii).

                                        Background

       {¶ 3} On August 30, 2017, appellant was charged with receiving stolen property

and improperly handling a firearm in a motor vehicle. This is case No. CR0201702510.

       {¶ 4} On October 13, 2017, a second indictment was filed in which appellant was

charged with failure to comply with the signal of an officer, two counts of receiving

stolen property, obstruction of official business, and no operator’s license. This is case

No. CR0201702776.

       {¶ 5} After numerous continuances, a plea hearing was held for appellant on

January 28, 2018. At the hearing, appellant pled guilty to a count of receiving stolen

property from CR0201702510, and a count of failure to comply from CR0201702776.

The prosecutor clarified that all remaining counts against appellant were to be dismissed

at sentencing.




2.
       {¶ 6} Sentencing was held on February 7, 2018. The trial court sentenced

appellant to 12 months for receiving stolen property and 24 months for failure to comply.

These sentences were journalized in two separate entries on February 8, 2018. Appellant

timely appeals.

                                Assignment of Error No. 1

       {¶ 7} Appellant first argues the trial court did not properly assess necessary

sentencing factors under R.C. 2921.331(C)(5)(b), because the alleged facts of the case

were not read into the record. Appellee responds, arguing that appellant pled guilty to

violating that specific code section, and that the court had access to facts set out in

appellant’s presentence investigation report (PSI).

       {¶ 8} R.C. 2921.331(B) and (C)(5)(b) provide as follows:

              (B) No person shall operate a motor vehicle so as willfully to elude

       or flee a police officer after receiving a visible or audible signal from a

       police officer to bring the person’s motor vehicle to a stop.

              (C) * * * 5) * * * (b) If a police officer pursues an offender who is

       violating division (B) of this section and division (C)(5)(a) of this section

       applies, the sentencing court, in determining the seriousness of an

       offender’s conduct for purposes of sentencing the offender for a violation of

       division (B) of this section, shall consider, along with the factors set forth

       in sections 2929.12 and 2929.13 of the Revised Code that are required to be

       considered, all of the following:




3.
              (i) The duration of the pursuit;

              (ii) The distance of the pursuit;

              (iii) The rate of speed at which the offender operated the motor

       vehicle during the pursuit;

              (iv) Whether the offender failed to stop for traffic lights or stop signs

       during the pursuit;

              (v) The number of traffic lights or stop signs for which the offender

       failed to stop during the pursuit;

              (vi) Whether the offender operated the motor vehicle during the

       pursuit without lighted lights during a time when lighted lights are required;

              (vii) Whether the offender committed a moving violation during the

       pursuit;

              (viii) The number of moving violations the offender committed

       during the pursuit;

              (ix) Any other relevant factors indicating that the offender’s conduct

       is more serious than conduct normally constituting the offense.

       {¶ 9} Here, appellant points to State v. Anderson, 8th Dist. Cuyahoga No. 83285,

2004-Ohio-2858, and to State v. Deal, 8th Dist. Cuyahoga No. 93969, 2010-Ohio-4490,

to support the proposition that the facts of a case must be read into the record for the trial

court to properly consider the factors set out in R.C. 2921.331(C)(5)(b), supra.




4.
       {¶ 10} We are unpersuaded for two reasons.

       {¶ 11} First, we find appellant waived rights to challenge his sentencing based on

lack of factual basis in the record, where he pled guilty to the very code section under

which he was sentenced.

       {¶ 12} More specifically, appellant pled guilty to R.C. 2921.331(B) and

(C)(5)(a)(ii), that being a felony of the third degree. Based on our review of the record,

the trial court was explicit about the nature and effects of his pleading to this charge.

              [COURT]: The charges to which you intend to plead guilty today

       are as follows. The one case, receiving stolen property, a felony of the

       fourth degree, in violation of 2913.51(A) and (C) of the Revised Code. As

       to the other case, failure to comply with an order or signal of a police

       officer, that’s a felony of the third degree in violation of Revised Code

       2921.331(B) and (C)(a)(ii). Do you understand the nature of those

       charges?

              [APPELLANT]: Yes, Your Honor.

              [COURT]: Do you understand that the effect of your guilty plea to

       these charges is that you completely admit your guilt?

              [APPELLANT]: Yes.

              [COURT]: Do you understand that the penalties which could be

       imposed for these offenses are as follows: As to receiving stolen property,

       up to eighteen months of incarceration, a maximum fine of five thousand




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       dollars, and as to failure to comply, up to thirty-six months of incarceration,

       a maximum fine of ten thousand dollars.

              [APPELLANT]: Yes. * * *

              [COURT]: Do you that since you’re pleading to two different

       offenses, I have to decide—I would usually have to decide whether to run

       your sentences concurrently or consecutively, but it I were to impose a

       prison sentence in each of these cases, they would have to run

       consecutively by operation of law; that is, one after the other?

              [APPELLANT]: Yes.

              [COURT]: Do you understand that means you could serve a

       maximum total consecutive sentence of fifty-four months?

              [APPELLANT]: Yes.

       {¶ 13} Crim.R. 11(B)(1) explicitly states, “[t]he plea of guilty is a complete

admission of the defendant’s guilt.”

       {¶ 14} Further, “a plea of guilty, from an early period in the history of criminal

procedure, * * * has been regarded as an admission of every material fact well pleaded in

the indictment, dispensing with the necessity of proving them, and authorizing the court

to proceed to judgment.” Craig v. State, 49 Ohio St. 415, 418, 30 N.E. 1120 (1892). See

also State v. Post, 32 Ohio St.3d 380, 387, 513 N.E.2d 754 (1987) “Crim.R. 11 does not

require the trial court to establish a factual basis for the plea before its acceptance.”).




6.
       {¶ 15} In this case, appellant does not dispute that he knowingly and voluntarily

entered into a plea agreement, and we find this plea eliminated his opportunity to

challenge his conviction based on a lack of factual basis in the record. It is proper to

regard his plea as a complete admission of guilt to those charges for which he pled guilty.

See Crim.R. 11(B)(1), supra.

       {¶ 16} Second, we find the trial court had access to the facts of the offense

because there was a detailed account of those facts in appellant’s PSI.

       {¶ 17} In specific, the PSI in CR0201702776 states in relevant part as follows:

              As to CR17-2776: According to available police reports, on 10/1/17

       at approximately 1:44 a.m., Toledo Police officers responded to Batavia

       Street and Fulton Street on a report of a robbery with shots fired. Upon

       arrival to the area, officers observed a white vehicle matching the

       description of the one involved in the robbery, fleeing the area at a high rate

       of speed. In an attempt to conduct a traffic stop, the officer engaged both

       the overhead lights and the siren of the police vehicle. However, the driver

       failed to comply, increasing its rate of speed.

              In the area of Delaware Avenue and Fulton Street, the car slowed, at

       which time the driver, later identified as [appellant], vacated the vehicle

       while it was still in motion. The vehicle ultimately came to rest in a field

       after it passed in front of an occupied vehicle at an intersection.




7.
              Upon fleeing the vehicle, a foot pursuit ensued, at which time

       [appellant] fled through alleys and yards, jumped a fence, and attempted to

       hide under a truck located in a yard at 2466 Fulton Street. [Appellant] had

       to be physically removed from underneath the truck as he failed to comply

       with the officers’ verbal commands. [Appellant] was transported to the

       Safety Building, and then to LCCC where he was booked without incident.

       {¶ 18} At the sentencing hearing and in the journal entry, the trial court stated and

confirmed that it had reviewed the PSI. We, thus, find the court had access to the facts

set out in appellant’s PSI.

       {¶ 19} We note that “[t]he court is not required by statute or otherwise to state its

consideration of those statutory factors” set forth in R.C. 2921.331(C)(5)(b), regarding

the offense of failure to comply with the order or signal of a police officer, “on the record

nor to make any specific finding in relation thereto.” See Deal, 8th Dist. Cuyahoga No.

93969, 2010-Ohio-4490, at ¶ 54.

       {¶ 20} Accordingly, appellant’s first assignment of error is not well-taken.

                                Assignment of Error No. 2

       {¶ 21} Appellant secondly argues the trial court could not have found that

appellant violated R.C. 2921.331(C)(5)(a), because the alleged facts of the case were not

read into the record. Appellee counters, again arguing that appellant pled guilty and that

the court had access to facts in the PSI report.




8.
       {¶ 22} R.C. 2921.331(C)(5)(a) states:

              (C)* * *(5) * * * (a) A violation of division (B) of this section is a

       felony of the third degree if the jury or judge as trier of fact finds any of the

       following by proof beyond a reasonable doubt:

              (i) The operation of the motor vehicle by the offender was a

       proximate cause of serious physical harm to persons or property.

              (ii) The operation of the motor vehicle by the offender caused a

       substantial risk of serious physical harm to persons or property.

       {¶ 23} For the same reasons the first assigned error has no merit, we find against

this second assigned error.

                                         Conclusion

       {¶ 24} The judgments of the Lucas County Court of Common Pleas are affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




9.
                                                               State v. Strong
                                                               C.A. Nos. L-18-1049
                                                                           L-18-1050




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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