[Cite as State v. Johnson, 2013-Ohio-5744.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99620




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   ANDELL JOHNSON
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                           AFFIRMED IN PART, REVERSED
                             IN PART, AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-566485 and CR-566901

        BEFORE: Celebrezze, P.J., Jones, J., and McCormack, J.

        RELEASED AND JOURNALIZED: December 26, 2013
ATTORNEY FOR APPELLANT

Michael J. Manuszak
2905 Paxton Road
Shaker Heights, Ohio 44120


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Defendant-appellant, Andell Johnson, appeals from his conviction and

sentence following a guilty plea to two counts of burglary and one count of aggravated

theft. After a careful review of the record and relevant case law, we affirm in part,

reverse in part, and remand this case to the trial court for resentencing consistent with this

opinion.

                            I. Factual and Procedural History

       {¶2} On September 6, 2012, appellant was indicted in Cuyahoga C.P. No.

CR-566485 on two counts of burglary in violation of R.C. 2911.12(A)(2), two counts of

grand theft in violation of R.C. 2913.02(A)(1), and one count of aggravated theft in

violation of R.C. 2913.02(A)(1).

       {¶3} On September 25, 2012, appellant was indicted in Cuyahoga C.P. No.

CR-566901 on one count of aggravated burglary in violation of R.C. 2911.11(A)(2) with

a one-year firearm specification, one count of grand theft in violation of R.C.

2913.02(A)(1), and theft in violation of R.C. 2913.02(A)(1).

       {¶4} On January 10, 2013, appellant entered a plea in both cases. In CR-566485,

he pled guilty to burglary and aggravated theft as charged in the indictment, and the

remaining counts were dismissed. In CR-566901, he pled to an amended count of

burglary, and the remaining counts and specification were dismissed.

       {¶5} Appellant’s sentencing hearing was held on February 11, 2013.                  In

CR-566485, the trial court sentenced him to four years on the burglary count and 36
months on the aggravated theft count, to run concurrently to each other. In CR-566901,

the trial court imposed a four-year sentence on the sole burglary count. The sentences

imposed in each case were ordered to run consecutively to each other for a total term of

imprisonment of eight years.

       {¶6} Appellant now brings this timely appeal, raising four assignments of error for

review.

                                  II. Law and Analysis

                                     A. Crim.R. 11

       {¶7} In his first assignment of error, appellant argues that the trial court committed

plain error by allowing him to waive his rights at the Crim.R. 11 hearing.

       {¶8} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.      Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

       {¶9} To ensure that a plea to a felony charge is knowingly, intelligently, and

voluntarily entered, a trial court must follow the dictates of Crim.R. 11(C)(2). This

provision provides that the court must address defendants personally and (1) determine

that they understand the nature of the charges against them and of the maximum penalty

involved, (2) inform them of and determine that they understand the effect of a plea of

guilty or no contest and that the court may proceed with judgment and sentence, and (3)

inform them of and determine that they understand the constitutional rights that they are
giving up by entering into their plea.      Crim.R. 11(C)(2)(a)-(c).    The United States

Supreme Court specifies a defendant’s constitutional rights as (1) the Fifth Amendment

privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the

right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969).

       {¶10} In the case at hand, appellant contends that, despite the trial court’s best

efforts to comply with the requirements of Crim.R. 11, the record demonstrates that he

did not fully appreciate the nature and consequences of his plea. Relevant to appellant’s

argument is the following colloquy:

       THE COURT: Mr. Johnson, you intend to plead guilty to three counts
       between the two cases. One is burglary, a felony of the second degree, as
       indicted. One is aggravated theft, a felony of the third degree, as indicted.
       And in case 566901, Count 1, as amended, is now burglary, a felony of the
       second degree, with the deletion of the firearm specification.

       Now burglaries of the second degree are punishable by up to two to eight
       years in prison and a fine of up to $15,000.

       Aggravated theft, a felony of the third degree, is punishable by 9, 12, 18,
       24, 30, or 36 months in prison, and a fine of up to $10,000.

       ***

       Do you understand that, Mr. Johnson?

       APPELLANT: Yes.

       ***

       THE COURT: Mr. Johnson, how do you plead under case 566458? How
       do you plead to the first count? That’s the burglary charge, a felony of the
       second degree, guilty or not guilty?
      APPELLANT: Guilty.

      THE COURT: How do you plead to count number 5, aggravated theft, a
      felony of the third degree, guilty or not guilty?

      APPELLANT: Guilty.

      THE COURT: And under case 566901, how do you plead to amended
      Count 1, which includes the removal of the firearm specification, the
      reduction of the charge from a felony one to a felony two charge of
      burglary? How do you plead to that, guilty or not guilty?

      APPELLANT: Not Guilty.

      THE COURT: Mr. Mancino?

      APPELLANT: Oh, guilty.

      THE COURT: Okay. Are you giving me these three pleas of your own
      free will?

      APPELLANT: Yes.

      {¶11} With respect to the foregoing statements, appellant maintains that his “not

guilty” response to the burglary count in CR-566901 “was no mere knee-jerk reaction”

and demonstrates that he “did not have an adequate grasp and did not fully understand the

full import of what was happening with respect to plea negotiations, the Crim.R. 11

hearing, and sentencing.” We find no merit to appellant’s broad contention.

      {¶12} Here, the trial court went to great lengths to ensure that appellant understood

the constitutional and nonconstitutional rights he was waiving before entering his plea.

Moreover, the trial court advised appellant of the nature of the charges he intended to

plead to and the maximum penalties the court could impose.                Throughout the

proceedings, appellant continuously and affirmatively expressed that he understood the
nature and consequences of his plea and that he was entering the plea of his own free will.

 Thus, we find appellant’s “not guilty” response to be of little consequence. Due to the

immediacy of appellant’s correcting statement, “oh, guilty,” the totality of the

circumstances demonstrates that appellant’s “not guilty” response was a misstatement and

not an indication that his plea was entered unknowingly, unintelligently, or involuntary.

Accordingly, appellant’s assertions that he “may” have been confused about the finality

of his plea are merely speculative, and the trial court properly found his plea to be

knowingly and voluntarily entered.

       {¶13} Furthermore, there is nothing in the record to support appellant’s position

that defense counsel was ineffective for allowing him to waive his rights and go forward

with his guilty plea. The record reflects that the trial court specifically inquired into

whether appellant was satisfied with the work of his attorney and whether defense

counsel had answered every question appellant may have had. To each inquiry, appellant

affirmatively responded, “yes.”   As stated, appellant confirmed that he was entering the

pleas of his own free will and also indicated that there had been no promises, threats, or

other inducements that caused him to enter his plea. Accordingly, there is nothing in the

record to support appellant’s claim of ineffective assistance of counsel during the Crim.R.

11 hearing.

       {¶14} Appellant’s first assignment of error is overruled.

                         B. Ineffective Assistance of Counsel
       {¶15} In his second assignment of error, appellant argues that he received

ineffective assistance of counsel when defense counsel failed to move to withdraw his

guilty pleas prior to sentencing.

       {¶16} During the February 11, 2013 sentencing hearing, appellant requested a

moment to speak before the court, at which time he proclaimed his innocence with respect

to the burglary charge in CR-566901. Appellant stated that he had no involvement in the

burglary and that he wished to face his accusers and prove his innocence. However, the

trial court denied appellant’s request and indicated that he had waived that right when he

entered a guilty plea.

       {¶17} In light of his statements to the court, appellant argues that defense counsel

was ineffective for failing to move to withdraw his guilty plea prior to sentencing,

pursuant to Crim.R. 32.1.

       {¶18} To demonstrate ineffective assistance of counsel, defendants must satisfy

both parts of a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Defendants must first show that their trial counsel’s

performance was so deficient that the attorney was not functioning as             the counsel

guaranteed by the Sixth Amendment to the United States Constitution. Id. Second,

defendants must establish that counsel’s “deficient performance prejudiced the defense.”

Id. The failure to prove either prong of the Strickland test is fatal to a claim of ineffective

assistance. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52,

citing Strickland, supra.
       {¶19} Based on the record before this court, we are unable to say that a motion to

withdraw would have been successful because it was premised on nothing more than a

change of heart. Accordingly, we cannot say that the outcome of the proceeding would

have been different had defense counsel submitted a motion to withdraw appellant’s

guilty plea, and thus appellant has failed to demonstrate prejudice. See State v. Moore,

8th Dist. Cuyahoga No. 98132, 2012-Ohio-5734 , ¶ 9, citing State v. Robinson, 108 Ohio

App.3d 428, 433, 670 N.E.2d 1077 (3d Dist.1996) (trial counsel is not deficient in

choosing not to file a futile motion).

       {¶20} Appellant’s second assignment of error is overruled.

                                C. Consecutive Sentences

       {¶21} In his third and fourth assignments of error, appellant collectively argues

that the trial court’s imposition of consecutive sentences was contrary to law.

       {¶22} We review this claim using the standard set forth in R.C. 2953.08. State v.

Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 8-10 (8th Dist.). That statute provides two

grounds for an appellate court to overturn the imposition of consecutive sentences: (1)

when the sentence is “otherwise contrary to law” or (2) when the appellate court clearly

and convincingly finds that the record does not support the sentencing court’s findings

under R.C. 2929.14(C)(4). Id. at ¶ 11; R.C. 2953.08(G)(2).

       {¶23} Am.Sub.H.B. No. 86, effective September 30, 2011, revived the requirement

that trial courts make certain findings before imposing consecutive sentences. Under

current R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial court must
first find that the sentence is “necessary to protect the public from future crime or to

punish the offender.” Next, the trial court must find that consecutive sentences are “not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.” Finally, the trial court must find the existence of one of

the three statutory factors set forth in R.C. 2929.14(C)(4)(a)-(c). Compliance with this

statute “requires separate and distinct findings in addition to any findings relating to

purposes and goals of criminal sentencing.” Id. at ¶ 17. The failure to make these

findings is contrary to law. Id. at ¶ 12.

       {¶24} Our review of the record shows the trial court did not make the statutory

findings for consecutive sentences required by R.C. 2929.14(C). Therefore, the

consecutive sentences are contrary to law. At the sentencing hearing, the trial court

made the following statements at the time it imposed consecutive sentences in this matter:

       Mr. Andell Johnson, you stand before the court having pled guilty to two
       felonies of the second degree and a felony of the third degree. With regard
       to those counts, four years on the felony of the second degree, and that’s
       felony three low if I’m not mistaken, so that would be 36 months concurrent
       with Count 1. So that’s Count 1 and Count 5, four years concurrent with
       each other.

       With regard to 566901, four years. The counts in 566485 are concurrent
       with each other but consecutive to 566901. * * *

       In both cases this court finds that the nature of several burglaries happening
       in short order does constitute the worst type of the offense and looked like
       planned conduct that was going to continue for a while.

       {¶25} Such colloquy was insufficient to comply with the finding requirements of

R.C. 2929.14(C)(4).     Accordingly, we reverse the trial court’s judgment sentencing
appellant to consecutive terms of imprisonment and remand this matter to the trial court

to consider whether consecutive sentences are appropriate and, if so, to enter the proper

findings on the record.

       {¶26} Appellant’s third and fourth assignments of error are sustained.

       {¶27} Convictions affirmed; cause reversed in part and remanded to the trial court

for resentencing consistent with this opinion.

       It is ordered that appellant and appellee 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 resentencing.

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

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
TIM McCORMACK, J., CONCUR
