[Cite as State v. Collins, 2019-Ohio-249.]


                  Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                       Nos. 106590 and 107341



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                             TREMELE COLLINS

                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED




                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-17-617043-A

        BEFORE: S. Gallagher, P.J., Keough, J., and Yarbrough, J.*

        RELEASED AND JOURNALIZED: January 24, 2019
ATTORNEY FOR APPELLANT

Kimberly Kendall Corral
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: John Farley Hirschauer
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



SEAN C. GALLAGHER, P.J.:

       {¶1} Appellant Tremele Collins appeals from his sentence and from the denial of his

postsentence motion to withdraw his guilty pleas. Upon review, we affirm his conviction and

sentence and the trial court’s denial of his motion.

       {¶2} Appellant, who was 17 years old at the time of the charged offenses, was bound over

to the court of common pleas. The indictment contained 13 counts, relating to three separate

robbery incidents.

       {¶3} On September 28, 2017, appellant appeared in court with defense counsel and the

assistant prosecutor. The state placed a plea offer on the record, pursuant to which appellant

would plead guilty to the following three charges: Count 1, aggravated robbery, a felony of the

first degree; Count 6, robbery, a felony of the second degree; and Count 11, robbery, a felony of

the second degree, along with a criminal gang specification and a one-year firearm specification

as to each of those three counts. The charges related to offenses occurring on separate dates and
involving separate victims.   The assistant prosecutor represented that “as part of this plea

agreement we would agree to recommend a minimum term of 6 years up to a maximum term of

39 years. * * * Both sides could obviously argue within that range.” Defense counsel indicated

that he had conveyed the plea offer to his client and that he “believe[d] [the defendant]

understands what the range is that is going to be jointly recommended as well as the amendments

made by the state.”

       {¶4} On October 16, 2017, appellant entered a plea of guilty to each of the three charges

pursuant to the plea agreement and the remaining charges and specifications were nolled. Prior

to appellant entering his guilty pleas, the assistant prosecutor and defense counsel indicated an

understanding that “[t]he state and defendant also agree that the minimum sentence in this case

would be sufficient.”

       {¶5} The record reflects that the trial court complied with Crim.R. 11. The trial court

informed appellant of his constitutional rights and reviewed the nature of the charges to which

appellant would be pleading guilty, the effect of a guilty plea, and the maximum penalties that

could be imposed. With regard to the sentencing recommendation, the trial court indicated that

“[t]he parties have submitted to the Court a recommendation of a minimum of six years. The

State — the parties have agreed that you are to serve a minimum of six years. That’s a decision

being made by the Court. It’s a recommendation. It’s not a promise.” Appellant stated that he

understood this and agreed that no promise of a particular sentence had been made. The court

confirmed appellant’s understanding upon asking if appellant understood “that if I sentence you

consecutively on this, the combined counts would be 39 years in prison, and a $50,000 fine?”

Appellant affirmatively responded and proceeded with entering his guilty pleas.
       {¶6} During the sentencing hearing, the trial court read the state’s summation into the

record, which included a review of appellant’s juvenile record and details of the three separate

crimes committed in this matter. One of the victims made a statement to the court, as did

appellant’s sister. The court also heard from the assistant prosecutor, defense counsel, and the

appellant. Appellant repeatedly taunted the court with regard to his sentence. The court then

ordered a psychiatric evaluation.

       {¶7} The sentencing hearing resumed on November 13, 2017. The prior proceedings

were incorporated, and the parties stipulated to a mitigation of penalty report. The assistant

prosecutor indicated that the three incidents involved occurred over a period of about two and

one-half weeks and that in each incident, appellant brandished a firearm, robbed the respective

victim at gunpoint, and threatened the victim.            In the aggravated robbery, appellant

pistol-whipped the victim. It also was represented that appellant is a member of the Heartless

Felons gang. Appellant had committed three prior robberies, with progressive sanctions. He

showed little remorse during the proceedings and reportedly had “laughed and smirked” during

the bindover proceedings. The court heard from defense counsel and appellant. Appellant

apologized to the victims, but denied responsibility for the crimes.

       {¶8} The trial court noted that appellant has a “bad juvenile record” and a “history of

violence.” The court found he “clearly engaged in gang activity” and found that a “lengthy

prison sentence is appropriate.”      The court sentenced appellant to an aggregate term of

imprisonment of 29 years. The trial court made the required findings for imposing consecutive

sentences.

       {¶9} Appellant timely appealed his sentence to this court. Thereafter, appellant filed a

motion to withdraw his guilty plea in the trial court. This court remanded the matter to the trial
court for the purpose of allowing a ruling on the motion. The trial court denied the motion, and

appellant appealed that ruling. The two appeals have been consolidated for review.

       {¶10} Under his first assignment of error, appellant claims the trial court erred by denying

his motion to withdraw his guilty pleas. He claims that his pleas were not knowing, voluntary,

and intelligent because he did not know or understand that he would be subject to a term of 29

years. He argues that he relied upon the advice of counsel and was misled to believe that he

faced a sentence around the recommended term of six years.

       {¶11} Crim.R. 32.1 provides that “to correct manifest injustice[,] the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

The defendant has the burden of establishing the existence of manifest injustice, and a

postsentence withdrawal of a guilty plea is allowable only in extraordinary cases. State v. Smith,

49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). We review the trial court’s decision under an

abuse of discretion standard. Id.

       {¶12} Appellant claims that his plea was not knowing, intelligent, and voluntary because

he relied upon misleading advice of counsel with regard to the sentencing recommendation. In

support of his argument, appellant refers to the affidavit of defense counsel, which was attached

to his motion to withdraw. Defense counsel avers in the affidavit that there was an agreement

with the assistant prosecutor to a recommended sentence of six years, that he advised appellant of

an anticipated sentence ranging between six and ten years, and that he explained to appellant that

“the judge could sentence him to more than ten years.” Appellant also refers to his behavior

during the initial sentencing proceeding and an outburst by his sister following the imposition of

the 29-year aggregate prison term.
       {¶13} We recognize that a plea of guilty generally waives all appealable errors that may

have occurred unless such errors are shown to have precluded the defendant from entering a

knowing and voluntary plea. State v. Wilson, 8th Dist. Cuyahoga No. 105876, 2018-Ohio-3666,

¶ 6. Likewise, a claim of ineffective assistance of counsel is considered waived by a guilty plea,

except to the extent the ineffective assistance of counsel caused the defendant’s plea to be less

than knowing and voluntary. Id. at ¶ 15, citing State v. Williams, 8th Dist. Cuyahoga No.

100459, 2014-Ohio-3415, ¶ 11. Manifest injustice does not result from a mere inaccurate

prediction of the sentence by counsel. See State v. Royal, 1st Dist. Hamilton No. C-160666,

2017-Ohio-4146, ¶ 10-11; State v. Woods, 8th Dist. Cuyahoga No. 84993, 2005-Ohio-3425, ¶ 9.

       {¶14} Appellant does not assert any error as to the trial court’s plea colloquy under

Crim.R. 11(C)(2), and the record reflects that the trial court complied with those requirements.

The record reflects that when the plea agreement was placed on the record, the parties submitted

a recommendation of “a minimum term of 6 years up to a maximum term of 39 years.” The

record reflects that appellant was informed of the nature of the charges and of the maximum

penalties that could be imposed. Insofar as the state agreed to “recommend a minimum of six

years,” wherein the minimum that could be imposed was five years, the record shows no

agreement to any fixed term. Furthermore, a joint sentencing recommendation is not binding

upon a trial court. The trial court informed appellant that the recommendation that he “serve a

minimum of six years” was not a promise of a particular sentence and that if the court chose to

sentence him consecutively, “the combined counts would be 39 years in prison[.]” Appellant

expressed his understanding on the record and proceeded to enter guilty pleas to the charges.

       {¶15} Additionally, defense counsel’s affidavit reflects that appellant received competent

advice from counsel. Although defense counsel expressed an anticipated term of six to ten
years, defense counsel further advised appellant that the court was not bound to any particular

sentence and “the judge could sentence him to more than ten years.” The affidavit reflects that

counsel, based on his training and experience, made a prediction as to the prison term that might

be imposed. As defense counsel acknowledged on the record, the parties had “the ability to

argue about other additional factors that the court could consider” in determining the sentence to

be imposed. The trial court ensured that appellant understood there was no promise to any

particular sentence. “When defendants are advised by competent counsel and are protected by

the appropriate procedural safeguards, they are presumptively capable of an intelligent and

voluntary choice to plead guilty and forgo trial.” State v. Franks, 9th Dist. Summit No. 18767,

1998 Ohio App. LEXIS 4756, 9 (Oct. 7, 1998), citing Bordenkircher v. Hayes, 434 U.S. 357,

363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

       {¶16} The totality of the circumstances herein shows that appellant’s guilty pleas were

knowingly, intelligently, and voluntarily entered. We further find no merit to any claim of

ineffective assistance of counsel because appellant has not shown that trial counsel’s alleged

errors precluded him from entering a knowing, voluntary plea. Because no manifest injustice

occurred, the trial court did not abuse its discretion by denying appellant’s postsentence Crim.R.

32.1 motion to withdraw his guilty pleas. Appellant’s first assignment of error is overruled.

       {¶17} Under his second assignment of error, appellant claims the trial court erred by

sentencing him after the state did not adhere to its portion of the plea agreement. A plea

agreement is generally contractual in nature, and a prosecutor’s failure to comply with the terms

thereof may, in some circumstances, render a defendant’s plea involuntary. State v. Parham, 8th

Dist. Cuyahoga No. 105983, 2018-Ohio-1631, ¶ 24. To determine whether a breach of a plea
agreement has occurred, courts examine what the parties reasonably understood at the time the

defendant entered his guilty plea. Id. at ¶ 25.

         {¶18} Appellant argues that he was induced to enter his plea by the agreement of the state

and the state’s representation on the record “that the minimum sentence in this case would be

sufficient.” Our review of the record reflects that the specific terms of the plea agreement were

placed on the record and that the parties’ recommendation was to a sentencing range, with “a

minimum term of 6 years up to a maximum term of 39 years.” The record further reflects

appellant was clearly advised of the sentencing possibilities by the trial court and he understood

that no particular sentence was promised. The second assignment of error is overruled.

         {¶19} Under his third assignment of error, appellant claims the trial court erred by

imposing a sentence that is tantamount to a life sentence in violation of the Eighth Amendment.1

He argues that he was a juvenile when the crimes were committed and the 29-year aggregate term

of imprisonment affords him no meaningful opportunity to demonstrate rehabilitation. We are

not convinced by his argument.

         {¶20} The Supreme Court of Ohio has held that pursuant to Graham v. Florida, 560 U.S.

48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), “a term-of-years prison sentence that exceeds a

defendant’s life expectancy violates the Eighth Amendment to the United States Constitution

when it is imposed on a juvenile nonhomicide offender.” State v. Moore, 149 Ohio St.3d 557,

2016-Ohio-8288, 76 N.E.3d 1127, ¶ 1. Further, in such a case, a court may not impose a prison

sentence that denies a juvenile some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation. Moore at ¶ 47, citing Graham. Unlike the defendant


1
  In this case, it is not entirely clear whether the recommended sentence was intended to be an agreed sentence that,
if accepted by the trial court, would not be subject to review on appeal, pursuant to R.C. 2953.08(D).
in Moore, who was sentenced to 112 years, appellant was sentenced to an aggregate term of 29

years, and he will be eligible to apply for judicial release.

        {¶21} Appellant will be in his late forties upon release, if he serves the full term. It is

understandable why this arguably seems excessive. If we still had the pre-Senate Bill 2

sentencing provisions, appellant may have been eligible for reformatory time and received a

reduction in his base term and then been subjected to parole review. “Before passage of

Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996 (‘S.B. 2’), Ohio had a

predominantly indeterminate felony-sentencing structure in which a sentence was expressed in

the form of a minimum and maximum prison term with the release decision in the hands of a

parole board.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 34, citing

Ohio Criminal Sentencing Commission, The Impact of Ohio’s Senate Bill 2 on Sentencing

Disparities (Apr. 19, 2002) 4-5. “With the enactment of S.B. 2, the General Assembly adopted a

comprehensive      sentencing    structure   that   recognized   the   importance    of   ‘truth   in

sentencing.’” Id. Now “[t]he parole board no longer makes early-release decisions, and a

sentence is subject to modification only by the judge.” Id. at ¶ 35. “While the opportunity for

judicial release has been expanded since the original version of Senate Bill 2, it hardly creates the

independent review of an offender’s status that existed with the parole board under the prior

law.” State v. Sykes, 8th Dist. Cuyahoga No. 106390, 2018-Ohio-4774, ¶ 34 (S. Gallagher, J.,

concurring). Nevertheless, appellant is subject to the current statutory scheme. He will be able

to petition the court for judicial release after 14.5 years, at which time he will be nearly 32 years

old. His sentence affords him a meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation. Appellant’s sentence is not the equivalent of a “life sentence.”
       {¶22} The record reflects that the trial court considered the seriousness of appellant’s

conduct, his history of prior juvenile adjudications, and the relevant mitigating factors. These

were serious robbery incidents in which appellant brandished a firearm, robbed three different

victims at gunpoint, threatened each victim, and in one instance pistol-whipped the victim. Each

count included a gang specification and a firearm specification. Appellant had three prior

robbery convictions as a juvenile and was on probation for robbery at the time of the offenses

herein. The trial court stated that it considered all required factors of the law and made the

requisite findings for imposing consecutive sentences. Appellant has not challenged his

sentence on the question of whether the record supports the findings made under R.C.

2929.14(C)(4). Further, the claims made by appellant’s counsel at oral argument before this

court about the effect of prison on juveniles and the decrease in life expectancy, as well as other

juvenile-related claims asserted in the appellate brief, are not part of the sentencing record and

cannot be considered by this panel. Appellant’s third assignment of error is overruled.

       {¶23} Judgment affirmed.

       It is ordered that appellee recover of appellant 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. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

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

Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
STEPHEN A. YARBROUGH, J.,* CONCUR

*(Sitting by assignment: Judge Stephen A. Yarbrough, Retired, of the Sixth District Court of
Appeals.)
