[Cite as State v. Smith, 2016-Ohio-103.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 102495




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     DEONDRE SMITH
                                                      DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REMANDED IN PART


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-589073-A

        BEFORE:          Laster Mays, J., Celebrezze, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                      January 14, 2016
                                  -i-




ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street, 2nd Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy McGinty
Cuyahoga County Prosecutor

By: Edward D. Brydle
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Deondre Smith (“Smith”) pleaded guilty to two counts

of felonious assault in violation of R.C. 2903.11(A)(2), felonies of the second degree with

a three-year firearm specification and one count of attempting to have a weapon while

under disability in violation of R.C. 2923.13(A)(3), a felony of the fourth degree. The

court imposed an 11-year prison term for the felonious assault convictions with the

firearm specification and a 6-month concurrent term on the attempting to have a weapon

while under disability. Although the sentencing journal entry imposes costs, the trial

court did not impose costs during the sentencing hearing.

       {¶2} After a review of the record, we agree with the trial court and affirm on

assignments of error one, three, four, five, six, and seven, but remand to the trial court to

correct the journal entry for assignment of error two.    Smith assigns seven errors for our

review.

       1. The appellant’s sentence is clearly and convincingly not supported by
       the record and is contrary to law.

       2.   The trial court erred by ordering appellant to pay costs.

       3. The trial court violated Crim.R. 11 inducing appellant to plea, and
       accepting appellant’s plea to an offense not bargained for, clearly showing
       appellant’s misunderstanding of the nature of the plea.

       4. The trial court erred in unlawfully sentencing appellant to a felony of
       the second degree with a three-year firearm specification, when in fact
       appellant only pled guilty to a one-year specification.
       5. The trial court erred in denying appellant’s motion to withdraw his
       guilty plea.

       6. Defense counsel was ineffective for failure to properly advise appellant
       of the nature of the plea agreement.

       7. The trial court erred when it failed to merge allied offenses of similar
       import.

I.     Facts and Procedural Posture

       {¶3}     During a visit to a barbecue restaurant, Smith witnessed one of the

employees, with whom he was sexually involved, engage in a verbal altercation with her

husband. Smith was not involved in this discussion and left the restaurant. When the

husband exited the restaurant, Smith fired several shots at him, shooting the husband in

the leg. Smith then ran away from the scene. This is the second time that Smith has

been involved in a shooting at this restaurant.   In 2011, he was incarcerated for 18

months for shooting at the restaurant.

       {¶4} As a result of the shooting, Smith was indicted on two counts of felonious

assault both with one-and three-year firearm specifications and one count of having

weapons while under disability. On the day of trial, Smith pleaded guilty to felonious

assault with a three-year specification as well as an amended charge of attempted having

weapons while under disability, and was sentenced to 11 years in prison. Six days after

sentencing, Smith filed a postconviction pro se motion to withdraw the guilty plea and

enter a plea of not guilty. The trial court denied the motion. As a result, Smith filed

this timely appeal.
II.    Insufficient Sentencing

       A.     Standard of Review

       {¶5} R.C. 2953.08 sets forth the parameters of an appellate court’s review of

felony sentences.   It includes categories of sentences that may be appealed such as

consecutive sentences under R.C. 2953.08(C)(1) or a maximum sentence under R.C.

2953.08(A). R.C. 2953.08(G)(1) provides, in part, that the appellate court’s standard for

review is not whether the sentencing court abused its discretion; rather, if this court

“clearly and convincingly” finds that “the record does not support the sentencing court’s

findings under R.C. 2929.14(C)(4),” or that “the sentence is otherwise contrary to law,”

then this court “may increase, reduce, or otherwise modify a sentence * * * or may vacate

the sentence and remand the matter to the sentencing court for resentencing.” State v.

Pluhar, 8th Dist. Cuyahoga No. 102012, 2015-Ohio-3344, ¶ 13.

       B.     Law and Analysis

       {¶6} In his first assignment of error, Smith argues that his sentence was not

supported by the record and is contrary to law.        He requested that his sentence be

modified to the minimum term of five years instead of the maximum 11 years on the

felonious assault. However, the trial court did not give Smith the maximum of 11 years,

but eight years on the felonious assault and three years on the firearm specification.   The

trial court used R.C. 2929.11(A) in its sentencing analysis, which states,

       The overriding purposes of felony sentencing are to protect the public from
       future crime by the offender and others and to punish the offender using the
       minimum sanctions that the court determines accomplish those purposes
       without imposing an unnecessary burden on state or local government
       resources. To achieve those purposes, the sentencing court shall consider
       the need for incapacitating the offender, deterring the offender and others
       from future crime, rehabilitating the offender, and making restitution to the
       victim of the offense, the public, or both.

The trial court judge explained to Smith that his actions permanently affected the victim

who no longer can work as a landscaper, has post-traumatic stress disorder, and has

limited use of his leg as a result of being shot. The record reflects that Smith had been

involved in a previous shooting at this same establishment, it is reasonable that the court

sentenced him to eight years on the felony assault.        Thus, the record clearly and

convincingly supports the trial court’s findings, and the sentence is not contrary to law.

Smith’s first assignment of error is overruled.

III.   Court Costs

       {¶7} In his second assignment of error, Smith argues that the court erred by

ordering him to pay costs even though he was declared indigent.    The state concedes that

court costs were imposed upon Smith via the journal entry but not done so on the record

in the presence of Smith.    In these scenarios, this court has remanded the case back to

the trial court for the sole purpose of providing Smith the opportunity to seek a waiver of

courts costs. State v. Ellis, 8th Dist. Cuyahoga No. 100896, 2014-Ohio-4812, ¶ 3. The

state would concur with this limited remand.

IV.    Accepting a Plea

       A.     Standard of Review

       {¶8} The standard for determining whether a trial court properly accepts a plea is

whether the court substantially complied with Crim.R. 11. State v. Stewart, 51 Ohio
St.2d 86, 364 N.E.2d 1163 (1977). “Substantial compliance means that under the totality

of the circumstances the defendant objectively 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).

“A defendant who challenges his guilty pleas on the basis that it was not knowingly,

intelligently, or voluntarily made must show prejudicial effect.” Id. In State v. Rainey, 3

Ohio App.3d 441, 446 N.E.2d 188 (1982), the court stated that,

      “in order for a trial court to determine that a defendant is making a plea
      with an understanding of the nature of the charge to which he is entering a
      plea, it is not always necessary that the trial court advise the defendant of
      the elements of the crime, or to specifically ask the defendant if he
      understands the charge, so long as the totality of the circumstances are such
      that the trial court is warranted in making a determination that the defendant
      understands the charge.”

State v. Davis, 133 Ohio App.3d 511, 728 N.E.2d 1111 (8th Dist.1999).
       B.     Law and Analysis

       {¶9} In his third assignment of error, Smith argues that the court violated Crim.R.

11 in inducing him to plea, and accepting his plea to an offense not bargained for, when

he clearly showed that he misunderstood the nature of the plea. In his fourth assignment

of error, Smith argues that the trial court erred in unlawfully sentencing him to a felony of

the second degree with a three-year firearm specification, when in fact he only pled guilty

to a one-year specification.   We will review these two assignment of errors together.

       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.

Crim.R. 11.

       {¶10} In this case, the trial court judge complied with all the standards of Crim.R.

11. Each time the judge asked Smith if he understood that he was pleading guilty and

what he was pleading guilty to, Smith replied in the affirmative. On page 10 of the trial

transcript, the judge asked Smith if he understood the “offenses to which you are going to

plead guilty and the potential penalties.” To which Smith replied that he did. Then the
judge read Count 1 of the plea verbatim, including the three-year gun specification.

Smith, however, argues that when the judge restated the plea for the second time, instead

of saying three-year gun specification, she said one-year gun specification.        Smith is

correct, however, the trial court corrected itself twice.        The court’s misstatement

constituted a harmless error and did not effect a substantial right. Crim.R. 52(A) states

that we may disregard “any error, defect, irregularity, or variance which does not affect

substantial rights.” State v. Jackson, 8th Dist. Cuyahoga No. 102394, 2015-Ohio-4274,

¶ 23.

        {¶11} Smith must also show there exists a prejudicial effect resulting from the trial

judge accepting his guilty plea.   The test for prejudice is “whether the plea would have

otherwise been made.” Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 at 108. Because

the trial judge explicitly and clearly explained Smith’s rights and the results of his guilty

plea, we cannot conclude that he would not have pleaded guilty.        There is no evidence

on the record that the trial judge did not comply in any way with the standards set forth in

Crim.R. 11. Smith understood the nature of his guilty plea and the trial court did not

unlawfully sentence him.     Therefore, assignments of error three and four are overruled.

V.      Motion to Withdraw Guilty Plea

        A.     Standard of Review

        {¶12} A motion to withdraw a guilty plea is governed by the standards set forth in

Crim.R. 32.1, which provides that “[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but 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.”       State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715

(1992).

       {¶13} The decision to grant or deny a Crim.R. 32.1 motion is committed to the

sound discretion of the trial court.   State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d

1324 (1977), at paragraph two of the syllabus. We will not reverse a trial court’s decision

absent an abuse of discretion. Id. citing Xie at 584. A trial court abuses its discretion

when its judgment is unreasonable, arbitrary, or unconscionable. State v. Armstrong, 8th

Dist. Cuyahoga No. 101961, 2015-Ohio-3343, citing Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       B.     Law and Analysis

       {¶14} In his fifth assignment of error, Smith argues that the trial court erred in

denying appellant’s motion to withdraw his guilty plea. Smith believes that his guilty

plea was induced by the court and his attorney because his attorney told him he would

only be sentenced to five years on the felonious assault. He argues that the court should

have conducted a hearing on his motion and that because it did not, his plea should be

vacated. “A post-conviction Crim.R. 32.1 motion to withdraw a guilty plea should be

granted, only in extraordinary cases, to correct a manifest injustice.” Crim.R. 32.1.; State

v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The “manifest injustice”

standard is an extremely high standard, which permits the withdrawal of a guilty plea only

in extraordinary cases. Id. at 264.
       {¶15} Smith has misinterpreted the law.        A hearing is not mandatory in a

postconviction motion to withdraw a guilty plea. State v. Tucker, 8th Dist. Cuyahoga

No. 90799, 2008-Ohio-5746, ¶ 23. It is well within the trial court’s discretion to deny

his motion to withdraw his guilty plea. His plea was not induced by the court or by his

attorney.   The trial judge explained to Smith several times what the minimum and

maximum sentences were for his convictions.     The court thoroughly explained the plea

deal that was being offered by the prosecution, and the court asked Smith numerous times

if he understood and agreed. In addition, the court asked him if he had any questions

about the plea agreement.    The only issue Smith raised was that he wanted to have

people, including his mother, speak on his behalf at sentencing.          Smith said he

understood and agreed to everything the judge said.   There is no indication in the record

that a manifest injustice occurred during his plea. For this reason, we overrule Smith’s

fifth assignment of error.

VI.    Ineffective Assistance of Counsel

       A.     Standard of Review

       {¶16} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial. State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).             Judicial

scrutiny of defense counsel’s performance must be highly deferential. Strickland, at
689.   In Ohio, there is a presumption that a properly licensed attorney is competent.

State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).

       B.     Law and Analysis

       {¶17} Smith argues in his sixth assignment of error that his defense counsel was

ineffective for failure to properly advise Smith of the nature of the plea agreement.     In

order to show ineffective assistance of counsel, a defendant must show that counsel’s

representation fell below an objective standard of reasonableness and that counsel’s errors

were so serious that there is a reasonable probability that, but for counsel’s unprofessional

errors, the results of the trial court would have been different. State v. Williams, 74

Ohio App.3d 686, 694, 600 N.E.2d 298 (8th Dist.1991). Smith submits to the court that

he was misled as to the nature of his possible prison term. He claims that his attorney

told him he would not receive more than five years.        He contends that if he knew he

would receive more than five years, he would not have pled guilty.

       {¶18} Smith has to show that his attorney’s conduct was deficient and that the

deficiency deprived him of a fair trial.   There is no record of Smith’s attorney telling him

that he would receive a five-year sentence.     However, if we take Smith’s word that his

attorney said this, his claim for ineffective assistance still fails under the second

requirement. Even if Smith’s attorney told him this, the judge, on record, explained in

meticulous detail the range of time of incarceration he could expect to receive.         On

pages 13 and 14 of the trial transcript, the judge says,

       I’m going to review that with you, sir. It’s proposed you will plead guilty to
       Count 1, felonious assault, with a three-year gun specification. The one-year
          gun specification will be nolled or dismissed. So that’s in violation of
          2903.11(A)(2). It’s a felony of the second degree. First you would have to
          serve years with the gun specification and when you are done with that, you
          would serve anywhere from 2 to 8 on top of it; do you understand that?

To which Smith replied that he understood. The judge stated to Smith that the minimum

amount of time he would receive is five years and the maximum is 11 years. Smith

again responded that he understood. At sentencing, the judge asks Smith if any “threats

or promises” have been made to him to induce him to plead guilty. (Tr. 17.) Smith

responded, “no ma’am.” Smith was fully aware of the potential penalties of pleading

guilty.    The record does not support a deficient performance that would have deprived

him of a fair trial. Therefore, Smith’s sixth assignment of error is overruled.

VII.      Allied Offenses

          A.    Standard of Review

          {¶19} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Ohio Supreme Court recently clarified the test a trial court and a reviewing court must

employ in determining whether offenses are allied offenses that merge into a single

conviction, stating:

          When the defendant’s conduct constitutes a single offense, the defendant
          may be convicted and punished only for that offense. When the conduct
          supports more than one offense, however, a court must conduct an analysis
          of allied offenses of similar import to determine whether the offenses merge
          or whether the defendant may be convicted of separate offenses. R.C.
          2941.25(B). A trial court and the reviewing court on appeal when
          considering whether there are allied offenses that merge into a single
          conviction under R.C. 2941.25(A) must first take into account the conduct
          of the defendant. In other words, how were the offenses committed? If any
          of the following is true, the offenses cannot merge and the defendant may
          be convicted and sentenced for multiple offenses (1) the offenses are
       dissimilar in import or significance — in other words, each offense caused
       separate, identifiable harm; (2) the offenses were committed separately; and
       (3) the offenses were committed with separate animus or motivation. At
       its heart, the allied-offense analysis is dependent upon the facts of a case
       because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at
       trial or during a plea or sentencing hearing will reveal whether the offenses
       have similar import. When a defendant’s conduct victimizes more than one
       person, the harm for each person is separate and distinct, and therefore, the
       defendant can be convicted of multiple counts. Also, a defendant’s conduct
       that constitutes two or more offenses against a single victim can support
       multiple convictions if the harm that results from each offense is separate
       and identifiable from the harm of the other offense. We therefore hold that
       two or more offenses of dissimilar import exist within the meaning of R.C.
       2941.25(B) when the defendant’s conduct constitutes offenses involving
       separate victims or if the harm that results from each offense is separate and
       identifiable. Id. at ¶ 24-26. State v. Sutton, 8th Dist. Cuyahoga
       Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 57.

       B.     Law and Analysis

       {¶20} Smith argues in his seventh assignment of error that the trial court erred

when it failed to merge allied offenses of similar import. While Smith contends that the

count for attempted having a weapon under disability and the felonious assault count

should be merged because he was punished twice for using a firearm in an assault.       The

having a weapon while under disability statute Smith pleaded guilty to states,

       Unless relieved from disability under operation of law or legal process, no
       person shall knowingly acquire, have, carry, or use any firearm or
       dangerous ordnance, if any of the following apply: The person is under
       indictment for or has been convicted of any felony offense involving the
       illegal possession, use, sale, administration, distribution, or trafficking in
       any drug of abuse or has been adjudicated a delinquent child for the
       commission of an offense that, if committed by an adult, would have been a
       felony offense involving the illegal possession, use, sale, administration,
       distribution, or trafficking in any drug of abuse.

R.C. 2923.13(A)(3).
The felonious assault statute states, “No person shall knowingly do either of the

following:   cause or attempt to cause physical harm to another or to another’s unborn by

means of a deadly weapon or dangerous ordnance.”           R.C. 2903.11(A)(2).     These are

not allied offenses.    Smith was charged with R.C. 2923.13(A)(3) because he was

convicted of drug possession twice in 2007. As a result, it is illegal for him to have a

firearm. In order to determine whether offenses should merge as the same offense, it

must first be determined if each offense caused separate or identifiable harm, were

committed separately, or were committed with separate animus or motivation.              Once

Smith was in possession of the firearm, he was in violation of the having a weapon while

under disability statute.   This offense has nothing to do with the felonious assault

because it was committed separate from the felonious assault. Having possession of the

firearm occurred long before the felonious assault was committed against the victim.

Smith’s seventh assignment of error is overruled.

VII.   Conclusion

       {¶21} Assignments of error one, three, four, five, six, and seven, are affirmed and

this court finds no lawful reason to reverse Smith’s conviction.            With respect to

assignment of error two, we remand to the trial court for the sole purpose of providing

Smith the opportunity to seek a waiver of courts costs.

       It is ordered that appellant and appellee equally split 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.

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

the Rules of Appellate Procedure.



______________________________________________
ANITA LASTER MAYS, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR IN
JUDGMENT ONLY
