[Cite as State v. Williams, 2013-Ohio-1988.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98778



                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                  MARC A. WILLIAMS
                                                          DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-549272

         BEFORE: E.A. Gallagher, J., Jones, P.J., and Kilbane, J.

         RELEASED AND JOURNALIZED:                      May 16, 2013
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Fallon Radigan
Blaise D. Thomas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant, Marc A. Williams, appeals from his guilty plea and

the sentence imposed in the Cuyahoga County Court of Common Pleas. Williams

argues that the trial court violated his Sixth Amendment Constitutional rights when it

imposed more than the minimum sentence and that the trial court failed to properly

inform him of the mandatory prison term prior to his guilty plea. Finding no merit to

the instant appeal, we affirm the decision of the trial court.

       {¶2} On April 25, 2011, the Cuyahoga County Grand Jury indicted Williams for

three counts of kidnapping with sexual motivation specifications (Counts 1, 3 and 9),

four counts of rape (Counts 2, 4, 10 and 11), four counts of unlawful sexual conduct with

a minor (Counts 5 thru 8), one count of felonious assault (Count 12) and one count of

compelling prostitution (Count 13).        After initially pleading not guilty, Williams

entered into a plea agreement.    In exchange for amending Count 1 to abduction without

the sexual motivation specification and deleting the sexual motivation specifications

from the charge of rape in Count 10, Williams pleaded guilty.    The state dismissed the

remaining ten charges.

       {¶3} On August 3, 2012, the state sentenced Williams to 24 months on Count 1

and 8 years on Count 10 to run concurrent. Williams appeals, raising two assignments
of error.

                                     Assignment of Error I

           Defendant was denied his rights under the Sixth Amendment when the
           court imposed more than a minimum sentence based upon judicial
           factfinding.

                                    Assignment of Error II

           Defendant was denied due process of law when the court did not inform
           the defendant that any sentence for rape was entirely mandatory and not
           probationable.1

           {¶4} In his first assignment of error, Williams argues that the trial court erred

because it sentenced him to more than the minimum sentence after conducting

impermissible judicial factfinding. We disagree.

           {¶5} Specifically, Williams contends that the statements of the trial court judge

at the sentencing hearing constituted prejudicial, judicial fact-finding.     He focuses on

the following statements of the court, made after the court imposed a prison sentence of

eight years for the charge of rape and 24 months on the charge of abduction to run

concurrently:

           I have rarely seen a more serious case involving a long pattern of abuse,
           and a very serious crime occurring a number of years ago with a young
           woman that should not have happened.

           {¶6} In addition, the court found that Williams “forced yourself upon her and it


       Williams limits this assigned error to the charge of rape, as such, we will not address
       1


Williams’ sentence for abduction.
has caused her extreme harm.”

           {¶7} Williams argues that the imposed prison sentence, despite the fact that it is

within the statutory range for the offenses, violates State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, because the trial court participated in judicial

fact-finding when making the above statements.

           {¶8} The Ohio Supreme Court held in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus, that “[t]rial courts

have full discretion to impose a prison sentence within the statutory range and are no

longer required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences.”2 Trial courts must still consider the

statutes applicable to felony cases, including R.C. 2929.11, regarding the purposes of

sentencing, and R.C. 2929.12, delineating factors relating to the seriousness of the

offense and the offender’s likelihood of recidivism.         State v. Mathis, 109 Ohio St.3d 54,

2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

           {¶9}   After Foster, the Ohio Supreme Court, in a plurality opinion, developed a

two-step analysis for reviewing sentences.             State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124. The Kalish court held:

           First, [appellate courts] must examine the sentencing court’s compliance with all
           applicable rules and statutes in imposing the sentence to determine whether the


        H.B. 86 “revives” judicial fact-finding prior to imposing consecutive sentences, set forth in
       2


R.C. 2929.14(C)(4). See State v. Du, 2d Dist. No. 2010-CA-27, 2011-Ohio-6306.
         sentence is clearly and convincingly contrary to law. If this first prong is
         satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion
         standard.
         {¶10} In State v. Smith, 8th Dist. No. 91346, 2009-Ohio-1610, this court dealt with a

similar factual scenario.   Smith argued that the imposed sentence violated his constitutional

rights because the trial court participated in judicial fact-finding when it imposed its sentence.

This court found that Smith incorrectly argued that the effect of Foster was to prohibit a trial

court from making any findings whatsoever. In Smith, we concluded that the Foster decision

in no way precluded judicial determinations at sentencing hearings, as incorrectly argued by

Smith.    We agree with the rationale in Smith and apply it equally to the present case.

         {¶11} Williams’ imposed sentence is not contrary to law.       The trial court considered

R.C. 2929.11 and 2929.12, found the prison term to be consistent with the purpose of R.C.

2929.11 and imposed a sentence within the statutory range. Thus, the trial court’s sentence

was not clearly and convincingly contrary to law.

         {¶12} We next review the trial court’s sentencing of Williams under the “abuse of

discretion standard.” An abuse of discretion is “more than an error of law or judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶13} The sentencing transcript and journal entry of the court reveals that the trial

court considered the relevant statutory considerations set forth in R.C. 2929.11, 2929.12 and

2929.13 in sentencing Williams.       The court also considered the presentence investigation

report, the statements of victim Nikeeta Stanley and her parents Donna and Nathaniel Stanley,

and the emotional harm suffered by the victim.      There is nothing in the record to suggest that
the trial court’s sentencing decision was unreasonable, arbitrary or unconscionable.

       {¶14} As in Smith, we find Williams’ argument that his constitutional rights were

violated by prejudicial, judicial fact-finding to be unfounded. His sentence was not judicially

increased and the imposed sentence fell within the permissible statutory range.

       {¶15} Williams’ first assignment of error is overruled.

       {¶16} In his second assigned error, Williams, in particular, claims that the trial court

explained that only the minimum sentence of three years was non-probationable and thus, he

was unaware of the effect of his plea at the time of its entry.     We disagree with Williams’

argument.

       {¶17} In support of his assigned error, Williams cites to State v. Pettito, 8th Dist. No.

95276, 2011-Ohio-2391, where this court determined that the trial court erred when it did not

inform a defendant of the maximum penalty for each offense and used misleading language

regarding multiple offenses that ambiguously referred to a single maximum penalty.

       {¶18} As stated by this court in Pettito,

       The standard for reviewing whether the trial court accepted a plea in compliance
       with Crim.R. 11(C) is a de novo standard of review. It requires an appellate
       court to review the totality of the circumstances and determine whether the plea
       hearing was in compliance with Crim.R. 11(C).

       When accepting a plea of guilty in a felony case, the trial court is required to
       inform the defendant of the effect of the plea.          Crim.R. 11(C)(2)(b).
       Crim.R.11(B) defines a guilty plea as, “a complete admission of the defendant’s
       guilt.”

       The trial court’s duty to inform the defendant of the effect of the plea is a
       nonconstitutional requirement of Crim.R. 11.             With respect to the
       nonconstitutional requirements of Crim.R. 11, as set forth in Crim.R. 11(C)(2)(a)
       and (b), reviewing courts shall consider whether there was substantial
      compliance with the rule. Substantial compliance means that under the totality
      of the circumstances the defendant subjectively understands the implications of
      his plea and the rights he is waiving.

      Furthermore, a defendant must show prejudice before a plea will be vacated for a
      trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional
      aspects of the colloquy are at issue. The test for prejudice is whether the plea
      would have otherwise been made. (Citations omitted.) Pettito, 8th Dist. No.
      95276, 2011-Ohio-2391, at ¶ 4-7.

      {¶19}    In Pettito, the court informed the defendant that a sentence on multiple

sentences would be between one and five years.      This court held that Pettito “could not

have understood the implications of his plea because the trial court’s ambiguous

reference to potential ‘prison term of anywhere from one to five years’ failed to convey

that the potential maximum prison term for each offense was five years.” Pettito, 8th

Dist. No. 95276, 2011-Ohio-2391, at ¶ 13.

      {¶20}    Unlike Pettito, the trial court in this case clearly explained the potential

minimum and maximum sentence for the charge of rape.               In particular, the court

engaged in the following colloquy:

      Court: Do you understand that as amended this remains a felony of the
      first degree, carries with it the potential of a sentence of imprisonment of
      three years up to ten years in one-year increments or steps but it’s a
      mandatory minimum of at least three years? It’s nonprobationable in
      other words. So you have to serve at least three years. Is that clear?

      Williams: Yes.

      Court: The maximum in one-year increments would be ten years under
      the old law. Is that clear?
      Williams: I’m under the old law?
       Court: For that count.

       Williams: For that count. Okay.

       Court:   The new law has a higher maximum.

       Williams:    But it’s more favorable for the other one.

       Court: Yes.      Under the old law for this particular count it’s more
       favorable.

       Williams:    Okay.

       Court: So, the three to ten years in one-year increments and the $25,000
       fine. Is that clear?

       Williams: Yes, sir.

       {¶21}    In Williams’ brief, he focuses on the court’s language “So you have to

serve at least three years.”      However, the short brief ignores the court’s continued

dialogue wherein the court explains to Williams that the maximum in one-year

increments would be ten years and where Williams states that he understands.         Thus,

under the totality of the circumstances, we find that Williams understood the maximum

penalty for the charge of rape.     Further, Williams offers no argument as to how he was

prejudiced in any way by an alleged failure on the part of the trial court.

       {¶22}     We find this case distinguishable from Pettito.       Here the trial court

informed Williams of the potential minimum and maximum penalties for the charge of

rape and Williams admitted to the court that he understood. We find no error with the

court’s plea colloquy and overrule Williams’ second assigned error.
      {¶23}   The judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.   The defendant’s conviction having been affirmed, any bail

pending appeal is terminated.   The case is 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.




EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
