[Cite as State v. Rogers, 2012-Ohio-2496.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 97093 and 97094




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       BILLY ROGERS
                                                    DEFENDANT-APPELLANT




                  JUDGMENT:
CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART,
                VACATED IN PART


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-543805 and CR-548840

        BEFORE: Rocco, J., Stewart, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: June 7, 2012
                                  -i-



ATTORNEY FOR APPELLANT

Nancy E. Schieman
9368 Sunrise Court
Mentor, Ohio 44060

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    Scott Zarzycki
       James Hofelich
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Billy Rogers appeals from his convictions and portions

of the sentences imposed after he entered guilty pleas to charges of attempted burglary,

breaking and entering, and theft in two cases that were consolidated in the trial court.

       {¶2} Rogers presents seven assignments of error. He claims the trial court acted

improperly in accepting his pleas, because the court did not first ascertain whether he

understood that his pleas constituted a complete admission of guilt and whether they were

knowingly, intelligently, and voluntarily made. He claims the trial court erred in failing

to conduct a hearing on his “request to withdraw” his pleas. He claims his trial counsel

rendered ineffective assistance. He asserts that his offenses in one of his cases were

allied pursuant to R.C. 2941.25(A). He claims the trial court should have held a hearing

before ordering restitution. Finally, he asserts the trial court exceeded its authority in

forbidding him to have contact with the victims.

       {¶3} Upon a review of the record, this court finds that the trial court committed no

error in either accepting Rogers’s guilty pleas, failing to conduct additional hearings,

imposing sentence on each count, or ordering restitution. Moreover, Rogers’s claim of

ineffective assistance of counsel is unsupported.        The trial court, however, lacked

authority to impose a “no contact” order; therefore, that portion of Rogers’s sentence is

vacated. Otherwise, Rogers’s convictions and sentences are affirmed.
      {¶4} Rogers originally was indicted in November 2010 in case number CR-543805

on two counts, viz., burglary and theft of property in an amount less than $500.00.

Rogers entered pleas of not guilty and received the services of assigned counsel. After

two months, however, Rogers filed a pro se motion complaining that his assigned counsel

was not representing him to his satisfaction. The trial court permitted Rogers’s original

counsel to withdraw from the case and appointed a new attorney. The court also referred

Rogers to the psychiatric clinic to determine his eligibility for transfer to the “mental

health” court docket. Rogers’s case was transferred the following month.

      {¶5} In April 2011, Rogers was indicted with a codefendant in case number

CR-548840. Rogers was charged with two counts of breaking and entering and one

count of theft, with the value of the stolen property placed at between $5000.00 and

$100,000.00. After he pleaded not guilty to these new charges, the case was assigned to

the same trial court that was presiding over Rogers’s prior case. Consequently, Rogers’s

assigned counsel represented Rogers in the new case, as well.

      {¶6} On May 23, 2011, the parties notified the trial court that a plea agreement had

been reached. As outlined by the prosecutor, in exchange for Rogers’s guilty plea to

Count 1 in CR-543805, the state would amend the charge to include the attempt statute

and would dismiss Count 2. In exchange for Rogers’s guilty pleas to Counts 2 and 3 in

CR-548840, the state would dismiss the first count. The plea agreement with respect to

CR-548840 included restitution; Rogers and his codefendant jointly would owe
$11,058.00 to the victim in that case. Rogers’s defense attorney concurred with the

prosecutor’s statements.

       {¶7} The trial court proceeded to address Rogers. Rogers indicated that, although

he was taking “psych medication,” he responded “yes, ma’am, I am” when the court

asked if he were “thinking clearly today?” The trial court made sure that Rogers was

“medication compliant” and that the medications were “helping” Rogers before

continuing with the Crim.R. 11(C) colloquy.

       {¶8} After a thorough explanation of the constitutional rights Rogers would be

waiving in entering his pleas and the potential penalties involved, the trial court accepted

Rogers’s guilty pleas to the amended indictments. The trial court referred Rogers for

both presentence and “mitigation of penalty” reports before concluding the hearing.

       {¶9} Rogers’s cases were called for sentencing on June 28, 2011. At the outset of

the hearing, the trial court noted Rogers had been diagnosed with “schizoeffective [sic]

disorder, poly-substance dependence, borderline intellectual functioning,” and a “mental

illness marked by psychotic symptoms,” so he had been transferred to the mental health

court docket. The trial court then permitted the victim in case number CR-548840 to place

comments on the record. The prosecutor provided a recitation of the facts surrounding

case number CR-543805.

       {¶10} After Rogers’s defense attorney spoke on his behalf, Rogers told the trial

court he was “sorry” for “doing what [he] did” to the victims and promised “to make
payments” to atone for his crimes. He asked the trial court to “give [him] help, some

kind of chance to get some kind of treatment” for his drug addiction.

       {¶11} The trial court prefaced its decision with respect to Rogers’s sentences in

these cases by reciting his criminal history. The court also asked if the parties agreed

concerning the restitution amounts in both cases. The court then imposed a four-year

prison term in case number CR-543805, to be served consecutively with concurrent terms

of eighteen months and one year in case number CR-548840, ordered Rogers to pay

restitution in the agreed amounts, and further ordered Rogers to have “no contact, directly

or indirectly, with anyone [he] victimized.”

       {¶12} Rogers appeals from his convictions and sentences with the following

assignments of error.

       “I. The trial court erred by accepting Appellant’s plea of guilty without first

informing Appellant that a plea of guilty constituted an admission of guilt.

       “II. The trial court erred by accepting Appellant’s guilty plea without first

ensuring the plea was knowingly, intelligently, and voluntarily made.

       “III.   The trial court abused its discretion by not holding a hearing on

Appellant’s request to withdraw his guilty plea made prior to the imposition of

sentence.

       “IV. Appellant was deprived of his constitutional right to effective assistance

of counsel in the plea proceedings.
       “V.    The trial court erred by failing to determine that grand theft and

breaking and entering are allied offenses of similar import and by imposing separate

sentences for the offenses.

       “VI.   The trial court erred by not determining whether the amount of

restitution ordered was reasonable and supported by competent, credible evidence.

       “VII. The trial court exceeded its authority by ordering Appellant to have

no contact with the victims.”

       {¶13} Rogers’s first and second assignments of error present challenges to the

propriety of the trial court’s actions at his plea hearing; therefore, they will be addressed

together. Rogers argues that, prior to accepting his guilty pleas, the trial court did not

adequately either describe the effect his pleas would have, or ensure his mental state

allowed knowing, intelligent, and voluntary pleas.

       {¶14} Crim.R. 11(C) states in pertinent part:

               (2) In felony cases the court may refuse to accept a plea of guilty or a
       plea of no contest, and shall not accept a plea of guilty or no contest without
       first addressing the defendant personally and doing all of the following:
               (a) Determining that the defendant is making the plea voluntarily,
       with understanding of the nature of the charges and of the maximum
       penalty involved, and, if applicable, that the defendant is not eligible for
       probation or for the imposition of community control sanctions at the
       sentencing hearing;
               (b) Informing the defendant of and determining that the defendant
       understands the effect of the plea of guilty or no contest, and that the court,
       upon acceptance of the plea, may proceed with judgment and sentence;
               (c) Informing the defendant and determining that the defendant
       understands that by the plea the defendant is waiving the rights to jury trial,
       to confront witnesses against him or her, to have compulsory process for
       obtaining witnesses in the defendant’s favor, and to require the state to
      prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
      defendant cannot be compelled to testify against himself or herself.

      {¶15} In determining whether the trial court has satisfied its duties under Crim.R.

11 in taking a plea, reviewing courts make a distinction between constitutional and

nonconstitutional rights. State v. Higgs, 123 Ohio App.3d 400, 704 N.E.2d 308 (11th

Dist. 1997); State v. Gibson, 34 Ohio App.3d 146, 517 N.E.2d 990 (8th Dist. 1986). The

trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to the

waiver of constitutional rights. State v. Stewart, 51 Ohio St.2d 86, 88-89, 364 N.E.2d

1163 (1977); State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115, paragraph one of the

syllabus (1981).

      {¶16} For nonconstitutional rights, the trial court must “substantially comply” with

the rule’s requirements. Stewart. “Substantial compliance means that under the totality

of the circumstances the defendant subjectively understands the implication of his plea

and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990).

      {¶17} Moreover, a defendant who challenges his guilty plea on the basis that it was

not knowingly, voluntarily, and intelligently entered must show a prejudicial effect.

State v. Moulton, 8th Dist. No. 93726, 2010-Ohio-4484.         The test for prejudice is

whether the plea would have otherwise been made. State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621.
      {¶18} In this case, the record reflects the trial court complied literally with Crim.R.

11(C)(2) with respect to the constitutional requirements. The trial court also correctly

advised Rogers of the potential penalties involved.

      {¶19} Although the trial court did not specifically tell Rogers that his guilty plea

constituted a complete admission of his guilt, this court does not find the omission

constituted error. Rogers had no questions for the court, made no protest that he was

innocent, and did not give any indication that he was unaware of this consequence;

certainly, the word “guilty” implies an acknowledgment of guilt. State v. Rodgers, 8th

Dist. No. 95560, 2011-Ohio-2535, ¶ 28, citing State v. Taylor, 8th Dist. No. 94569,

2010-Ohio-5607, ¶ 5; State v. Freed, 8th Dist. No. 90720, 2008-Ohio-5742.

      {¶20} Similarly, although Rogers argues that the trial court should have more

thoroughly determined whether his mental state interfered with his understanding of the

plea proceeding, in view of the trial court’s careful compliance with Crim.R. 11(C)(2),

this court disagrees.    The record reflects the trial court asked Rogers about his

medications and the clarity of his thinking before beginning the colloquy. State v.

Stokes, 8th Dist. No. 95488, 2011-Ohio-2531, citing State v. Mink, 101 Ohio St.3d 350,

2004-Ohio-1580, 805 N.E.2d 1064.       Rogers’s assurances and the appropriateness of his

responses during the colloquy demonstrated that, under the totality of the circumstances,

he understood the implications of his pleas. Stokes.

      {¶21} Rogers’s first and second assignments of error, accordingly, are overruled.
       {¶22} In his third assignment of error, Rogers argues that the trial court should

have addressed his request to withdraw his pleas before proceeding with the sentencing

hearing. However, Rogers’s “request” was presented only in a letter addressed to the

trial court that Rogers dated “6/10/11.”

       {¶23} At the June 28, 2011 sentencing hearing, Rogers neither made a formal

motion to withdraw his guilty pleas nor even mentioned his letter.            Under these

circumstances, the trial court had no duty to conduct a hearing on his request. Rodgers,

8th Dist. No. 95560, 2011-Ohio-2535, ¶ 34.

       {¶24} Rogers’s third assignment of error also is overruled.

       {¶25} Rogers claims in his fourth assignment of error that his second assigned trial

counsel “induced” him to plead guilty to the charges by trickery. Regarding an argument

such as Rogers makes in this case, the court made the following observations in State v.

Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist. 1991):

              In determining whether counsel was constitutionally ineffective, the
       central issue in any case is whether an accused had a fair trial and
       substantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71, 74
       O.O.2d 156, 341 N.E.2d 304. An accused is denied his right to a fair trial
       if his counsel fails to play the role necessary to ensure that the accused
       enjoys the benefits of the adversarial process which the law affords him for
       testing the charges brought by the state. Strickland v. Washington (1984),
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
              * * * [D]etermination of th[e] issue [appellant presents] necessarily
       depends on matters not in the record before us. We decline to accept
       appellant’s statement of them, * * * as they concern appellant’s private
       conversations with counsel and could not be a part of the trial record in this
       case. They may be made in a proper motion for postconviction relief
       pursuant to R.C. 2953.21.
       {¶26} For the foregoing reason, Rogers’s fourth assignment of error also is

overruled. State v. Devine, 8th Dist. No. 92590, 2009-Ohio-5825.

       {¶27} In his fifth assignment of error, Rogers argues that the two offenses to which

he pleaded guilty in case number CR-548840 were allied offenses pursuant to R.C.

2941.25(A).

       {¶28}   According to the holding in State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, a court of appeals should review, even in the context of a

plea agreement, whether multiple counts in the plea agreement constitute allied offenses,

or whether those offenses were committed with separate animus that may be punished

separately.    However, this court recently stated in State v. Snuffer, 8th Dist. Nos.

96480-83, 2011-Ohio-6430, ¶ 9-11:

               Snuffer did not object to his sentence, so we review for plain error.
       See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
       923, ¶ 31. Plain error exists only when it is obvious on the record. See
       State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Snuffer
       pleaded guilty to the indictment, thus admitting the facts as charged in the
       indictment and obviating the need for any factual basis for the plea. State
       v. Kent (1980), 68 Ohio App.2d 151, 156, 428 N.E.2d 453. As he
       concedes, he offered no other facts at sentencing, so the record on appeal is
       such that we cannot say that plain error in failing to merge the sentences
       was “obvious.”
       We are aware that in State v. Masters, 8th Dist. No. 95120, 2011-Ohio-937, a
panel of this court cited to Underwood for the proposition that the “trial court should have
inquired into the facts when accepting Masters’s plea to all charges in order to determine
whether any of the offenses were allied.” Id. at ¶ 9. The holding that the court must
inquire into the facts during a plea hearing cannot be reconciled with Crim.R. 11(C),
which does not require a factual basis for a guilty plea. Implicit within Crim.R. 11(C), is
the idea that a guilty plea constitutes a full admission of factual guilt that obviates the
need for a fact-finding trial on the charges. State v. Wilson (1979), 58 Ohio St.2d 52,
388 N.E.2d 745, paragraph one of the syllabus. Moreover, Masters failed to grasp that
merger of offenses is a sentencing issue, not a plea issue, see Cleveland v. Scott (1983), 8
      Ohio App.3d 358, 359, 457 N.E.2d 351, so even if a factual inquiry had to be made, it
      could only occur during sentencing, not during the plea hearing. Masters assumed the
      existence of plain error despite acknowledging that “there are insufficient facts in the
      record for this court to [find whether offenses are allied] in the instant case.” Id. As
      noted, plain error exists only when it is “obvious” in the record. Masters found the
      opposite—that the absence of facts raised an issue of fact that the court needed to resolve
      on remand—thus showing that the error could not have been “plain” on the face of the
      record. Finally, unlike in Underwood, there was no direct concession from the state that
      the offenses were allied—in Masters the state only conceded that “unless a separate
      animus exists” the charged offenses would be allied. Id. The state did not concede that
      Masters’s offenses were allied, only that the offenses might be allied had there been facts
      showing that Masters committed them with a single animus.
             For the foregoing reasons, we find that Snuffer failed to offer any evidence to
      make an obvious case for plain error in the court’s failure to merge the theft and forgery
      counts in CR-539285.

      {¶29} See also State v. Lindsey, 8th Dist. No. 96601, 2012-Ohio-804, ¶ 13; compare, State v.

James, 2d Dist. No. 11 CAA 05 0045, 2012-Ohio-966 (burglary and theft merged based upon trial

evidence).

             {¶30} At any event, with respect to R.C. 2941.25, the Ohio Supreme Court stated

      in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at paragraph

      one of the syllabus, that the following is the appropriate analysis:

                    When determining whether two offenses are allied offenses of
             similar import subject to merger under R.C. 2941.25, the conduct of the
             accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632,
             710 N.E.2d 699, overruled.)

             {¶31} In this case, as described by the victim during the sentencing hearing, the

      circumstances indicated Rogers entered the victim’s garage, broke into her vehicle, and

      remained inside the vehicle long enough to smoke a cigarette. Before leaving, he took

      many pieces of the victim’s handmade jewelry from the vehicle.
       {¶32} The circumstances surrounding the crimes, i.e., the length of time involved

between the breaking and entry into the vehicle and the theft of the particular property

therein, thus indicated Rogers had a separate animus for each crime. State v. Martin, 8th

Dist. No. 95281, 2011-Ohio-222.        Consequently, the trial court properly sentenced

Rogers on both counts in case number CR-548840.            His fifth assignment of error,

therefore, also is overruled.

       {¶33} Rogers argues in his sixth assignment of error that the trial court should have

conducted a hearing prior to ordering a specific amount of restitution in each case.

However, because the record reflects Rogers agreed to the specific amount of restitution

to be paid to the victim in each case, he has waived this argument on appeal. State v.

Williams, 8th Dist. No. 93625, 2010-Ohio-3418.

       {¶34} In his seventh assignment of error, Rogers complains that the trial court

lacked the authority to order, as part of his sentence, that he have no contact with the

victims. This court addressed the same argument in State v. Holly, 8th Dist. No. 95454,

2011-Ohio-2284, ¶ 21-22, as follows:

              It is well settled that a trial court may only impose a sentence as
       provided for by law. State v. Bruno, 8th Dist. No. 77202, 2001-Ohio-4227,
       citing State v. Eberling (Apr. 9, 1992), 8th Dist. No. 58559. While a “no
       contact” order may be properly imposed as a sanction pursuant to R.C.
       2929.25 when a trial court places a defendant on community controlled
       sanctions, we find no authority in Ohio sentencing law to allow for such a
       penalty when imposing a prison term, nor does the state cite to any
       authority. Once the trial court imposed a prison term and executed Holly’s
       sentence, the authority to impose any “no contact” order following Holly’s
       release from prison lies with the Adult Parole Board. Indeed, Holly faces a
       mandatory term of three years of postrelease control following his release
       from prison.
              Contrary to Holly’s assertion, however, this unlawful part of his
       sentence does not render his entire sentence void, entitling him to a new
       sentencing hearing.        See State v. Fischer, 128 Ohio St.3d 92,
       2010-Ohio-6238, 942 N.E.2d 332. Instead, consistent with our authority
       under R.C. 2953.08(G), we vacate this portion of Holly’s sentence that
       includes an indefinite “no contact” order. The remainder of his sentence *
       * * we affirm in its entirety.

       {¶35} In accord with the foregoing, Rogers’s seventh assignment of error is

sustained.

       {¶36} Rogers’s convictions are affirmed. His sentence is affirmed in part and

vacated only as to the portion that imposes a “no contact” order.

       It is ordered that appellee and appellant share the 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 convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for further proceedings.

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

the Rules of Appellate Procedure.



__________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
