[Cite as State v. Imber, 2012-Ohio-3720.]



               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellee                      :     C.A. CASE NO. 11CA0063

vs.                                             :     T.C. CASE NO. 11CR71

BRANDEN IMBER                                   :     (Criminal Appeal from
                                                       Common Pleas Court)
        Defendant-Appellant                     :

                                            .........

                                            OPINION

                            Rendered on the 17th day of August, 2012.

                                            .........

Andrew Wilson, Pros. Attorney; Lisa M. Fannin, Asst. Pros. Attorney, Atty. Reg. No.
0082337, 50 E. Columbia Street, 4th Floor, P.O. Box 1608, Springfield, OH 45501
      Attorneys for Plaintiff-Appellee

Joe Cloud, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, OH 45432
       Attorney for Defendant-Appellant

                                            .........

GRADY, P.J.:

        {¶ 1} On May 4, 2011, Defendant Branden Imber entered guilty pleas to ten

fourth-degree felony offenses. The State dismissed other charges. The parties agreed to an

aggregate sentence of twelve years in exchange for Imber’s promise to cooperate in the State’s

prosecution of a co-defendant, including testifying truthfully if called as a witness by the State.



        {¶ 2} On that same date, the trial court imposed an agreed eighteen months sentence
of imprisonment for the offense of receiving stolen property charged in Count Three of the

indictment.   The court journalized its judgment of conviction on that single charge the

following day. [Dkt. 13]. The court held in abeyance sentencing on the remaining charges

pending disposition of the co-defendant’s trial.

       {¶ 3} The State subsequently moved to withdraw the plea agreement. The State

contended that Imber had refused to meet with prosecutors concerning the charges against the

co-defendant. Following a hearing on August 10, 2011, the court held the State’s motion in

abeyance until after the co-defendant’s trial, when Imber’s cooperation or lack of cooperation

could be more fully considered.

       {¶ 4} Both the State’s motion to withdraw and Imber’s sentencing on the remaining

nine charges came on for hearing on August 12, 2011. The State had not called Imber to

testify at his co-defendant’s trial. But, because Imber had declined to talk to prosecutors prior

to that trial, the court found that Imber failed to provide the promised cooperation. Instead of

an aggregate twelve year sentence for the ten charges of which Imber was convicted, the court

imposed an aggregate sentence of thirteen and one-half years.

       {¶ 5} The court journalized a judgment of conviction on all ten charges, including

Count Three for which Imber was previously sentenced, on August 16, 2011. [Dkt. 20].

Imber filed a timely notice of appeal from that final judgment.

       FIRST ASSIGNMENT OF ERROR

       {¶ 6} “THE TRIAL COURT ERRED AS A MATTER OF LAW AT THE PLEA

HEARING WHEN IT FAILED TO COMPLY WITH C.R. 11 THEREBY DENYING THE

DEFENDANT HIS RIGHTS TO DUE PROCESS GRANTED BY THE OHIO AND

UNITED STATES CONSTITUTION.”
       {¶ 7} Imber argues that his guilty pleas at the hearing on May 4, 2011, were not

knowing, intelligent and voluntary because the court never asked Imber whether he pled guilty

to the ten charges against him.

       {¶ 8} After advising Imber of his right to trial and the related constitutional rights

and determining that Imber understood his rights, the court engaged Imber in the following

colloquy:

               THE COURT: By pleading guilty you would be giving up all of these

       rights that we have gone over. Are you telling the Court that you want to give

       those rights up and plead guilty to these offenses set forth in the plea form?

               THE DEFENDANT: Yes, sir.

               THE COURT: The Court finds that the defendant has knowingly,

       voluntarily, intelligently waived his rights and entered pleas of guilty to those

       offenses. Based upon his plea I find him guilty.

       {¶ 9} Pleas of guilty and not guilty may be made orally. Crim.R. 11(A). Imber’s

oral response to the court’s question demonstrates that he entered guilty pleas to the ten

charges against him and withdrew his prior pleas of not guilty.           To the extent that a

defendant’s express statement of his plea is required, the record demonstrates substantial

compliance with that requirement.       Except for the constitutional rights Crim.R. 11(C)

concerns, substantial compliance is sufficient to demonstrate that a plea of no contest or guilty

was knowing, intelligent, and voluntary according to the requirements the rule imposes. State

v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).

       {¶ 10} Imber also argues that the trial court failed to address Imber personally and

determine his understanding that he was not eligible for community control sanctions.
Crim.R. 11(C)(2)(a). The Offenses to which Imber pled guilty are fourth degree felonies for

which terms of imprisonment were not mandated.         Because Defendant was eligible for

community control sanctions, R.C. 2929.13(B), he was therefore not ineligible.

       {¶ 11} Imber further argues that his plea was less than knowing, intelligent, and

voluntary because the court failed to inform Imber that the plea agreement was not binding on

the court, presumably when the court imposed its sentences. The court agreed to impose a

twelve-year aggregate sentence, and its agreement was binding on the court unless Imber

failed to cooperate with the State as promised.     The court explained that in that event

sentencing on the counts not including Count Three “would be left to the discretion of the

court.” (Tr. 5). In addressing Imber, the court engaged him in the following colloquy:

              THE COURT: the agreement is that you will receive a twelve-year

       sentence and no fine, again, so long as you fulfill your obligations under the

       plea agreement. Do you understand that?

              THE DEFENDANT: Yes, sir. (Tr. 18).

       {¶ 12} The record demonstrates that the court determined that Imber understood that

the court’s agreement to impose a twelve year aggregate sentence would not be binding on the

court should Imber breach his plea agreement, and in that event the court would be free to

impose any other sentence or sentences authorized by law.

       {¶ 13} Finally, Defendant complains that in conditionally accepting his guilty pleas

the court did not make Imber aware of what his agreement to cooperate would require him to

do. Imber promised his “cooperation” with the State in its prosecution of his co-defendant,

and to testify truthfully if called as a witness. That promise was one Imber made and the

court accepted.   The court was entitled to accept Imber’s unqualified promise.          It was
Imber’s obligation to express any reservations he had or exceptions he would impose.

Crim.R. 11(C) did not require the court to make Imber’s promise more specific.

       {¶ 14} The first assignment of error is overruled.

       SECOND ASSIGNMENT OF ERROR

       {¶ 15} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN BOTH

SENTENCING HEARINGS VIOLATING THE DEFENDANT’S RIGHT TO DUE

PROCESS WHEN IT FAILED TO APPLY THE APPLICABLE RULES AND STATUES.”

       {¶ 16} Imber argues that the May 5, 2011 judgment of conviction is defective because

it is contradictory, first stating that Defendant pled guilty to Count Three and subsequently

that the State had agreed to dismiss Count Three.           The judgment [Dkt. 13] states that

Defendant pled guilty to Count Three, but not that the State agreed to dismiss Count Three.

That particular misstatement was made by the prosecutor in describing the plea agreement

when he said that the State agreed to dismiss Count Three. (Tr. 3).

       {¶ 17} The prosecutor obviously misspoke, and Defendant does not contend that he

understood that Count Three would be dismissed. More importantly, the alleged error is not

before us for review. The May 5, 2011 judgment of conviction is a final order from which

Imber took no appeal. The fact that the court again imposed a sentence for the offense in

Count Three in the subsequent August 16, 2011 final judgment from which this appeal was

taken does not operate to resurrect for review any error the court committed in the unappealed

May 5, 2011 judgment of conviction.

       {¶ 18} Imber again argues that he was convicted of Count Three without entering a

guilty plea. We disposed of that claim with respect to the first assignment of error.

       {¶ 19} Imber further complains that the August 18, 2011 judgment of conviction
identifies Count Three as a fifth degree felony when it is in fact a fourth degree felony. As a

result, the eighteen month sentence the court therein imposed is clearly and convincingly

contrary to law because it is outside the sentencing range for fifth degree felonies. R.C.

2929.14(A)(5).

       {¶ 20} Defendant is correct, but he was not prejudiced by the error. The prior May 5,

2011 judgment of conviction, which correctly identifies Count Three as a fourth degree felony,

is a final unappealed judgment that concluded Defendant’s conviction for Count Three. The

erroneous reference to the offense in Count Three in the August 18, 2011 judgment of

conviction as a fifth degree felony is harmless error.

       {¶ 21} Defendant further argues that when it imposed his nine prison sentences at the

August 12, 2011 proceeding on the remaining nine offenses, the court failed to notify him of

his possible post-release control and the potential punishments for its violation. At the

sentencing proceeding in which a prison sentence is imposed, the Defendant must be notified

of any post-release control requirements to which he will or may be subject, and the potential

penalties for their violation.   State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817

N.E.2d 864 (2004). The notice must also be reflected in the resulting judgment of conviction.

 Id.

       {¶ 22} The court conducted a combined “plea and disposition” proceeding on May 5,

2011. Imber pled guilty to the ten offenses to which he agreed to plead guilty, after the court

advised him of the post-release control provisions applicable to his sentences for those

offenses. (Tr. 19). The court then imposed a prison sentence on the offense in Count Three.

 The judgment of conviction the court entered on that same date indicates that the required

notice concerning post-release control was given. (Dkt. 13).
       {¶ 23} When the court imposed additional prison sentences on the remaining nine

offenses on August 12, 2011, the court made no mention of post-release control.           The

transcript of that proceeding concludes with the following colloquy between the prosecutor

and the court:

                 MR. PICEK: Your Honor, would you advise him of his post-release

       control?

                 THE COURT: I don’t think there’s any mandatory post-release control.

                 MR. PICEK: It’s optional.

                 THE COURT: I advised him at the time of the plea that it would be

       optional. That will be all for today. (Tr. 21).

       {¶ 24} The prosecutor was correct; post-release control notification must be given at

the proceeding in which a prison sentence is imposed. Jordan. The trial court erred when it

failed to notify Defendant of the post-release control provisions applicable to the nine

sentences the court imposed in the proceeding held on August 12, 2011. The August 16,

2011 judgment of conviction imposing those sentences [Dkt. 20] states that the required

notices were given at the August 12, 2011 sentencing proceeding, but that finding is belied by

the record.

       {¶ 25} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶

23, 24, the Supreme Court explained that the remedy for error of this kind with respect to

sentences imposed on or after July 11, 2006, is not reversal and resentencing, as Jordan held,

but is instead the procedure set out in R.C. 2929.191(C). That section requires notice and a

hearing, following which the court may correct its error with a nunc pro tunc entry. The case

will be remanded to the trial court on our special mandate to follow the procedure in R.C.
2929.191(C).

       {¶ 26} Defendant also argues that the court erred when it failed to state that it

considered the factors in R.C. 2929.11 and 2929.12 before imposing Defendant’s sentences.

The court is not required to state that it considered those sections, and unless the sentence

imposed is contrary to law, the court’s consideration of them is presumed. State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Defendant does not argue any matters

that would rebut the presumption.

       {¶ 27} Finally, Defendant argues that his convictions for the offense alleged in Count

Five, receiving stolen property consisting of a 1994 GMC Sierra vehicle, and in Count Six,

receiving stolen property consisting of a firearm, should have been merged pursuant to R.C.

2941.25. Defendant argues that merger is required because the two offenses occurred at the

same time and place and under the same circumstances.

       {¶ 28} R.C. 2941.25(A) requires merger of two convictions for the same criminal

conduct. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Even

though the two offenses coincided, they did not involve the same conduct, that is, the same act

or omission. In one, Defendant acted to deprive an owner of his vehicle. In the other, the

coveted object was a firearm. On the same distinction, there was a separate animus to each

offense. R.C. 2941.25(B). Merger was not required.

       {¶ 29} The second assignment of error is sustained in part and overruled in part.

       THIRD ASSIGNMENT OF ERROR

       {¶ 30} “THE     TRIAL        COURT    ABUSED       ITS    DISCRETION       IN       BOTH

SENTENCING HEARINGS VIOLATING THE DEFENDANT’S RIGHTS TO DUE

PROCESS WHEN IT FAILED TO APPLY TO APPLICABLE RULES AND STATUTES.”
       {¶ 31} Defendant repeats the several matters to which his previous assignments of

error referred. Because we previously ruled on them, the errors assigned are moot, and we

need not decide them. App.R. 12(A)(1)(c).

       {¶ 32} The third assignment of error is overruled.

       FOURTH ASSIGNMENT OF ERROR

       {¶ 33} “THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO

MERGE COUNTS FIVE AND SIX AND IMPOSING INDIVIDUAL SENTENCES ON

EACH OF THOSE COUNTS.”

       {¶ 34} This assignment of error raises the same issue we rejected in deciding the

second assignment of error. It is therefore moot, and need not be decided.

       {¶ 35} The fourth assignment of error is overruled.

                                         Conclusion

       {¶ 36} Having sustained the second assignment of error, in part, we will remand the

case to the trial court pursuant to App.R. 27 to correct its failure to notify Defendant of

post-release control applicable to him, pursuant to the procedure in R.C. 2929.191(C). The

judgment of August 16, 2011 is otherwise affirmed.

DONOVAN, J., concurs.



FROELICH, J., concurring:

       As stated by the majority, the defendant apparently complains that the plea was not

knowingly and intelligently made because the court never adequately defined “cooperation.”

Although in hindsight, this agreement, as almost any agreement, could have been more

explicit, there was an in-court hearing on August 10, to flesh out any concerns. On August
12, after the conclusion of the co-defendant’s trial, the court found that the Appellant had

“partially not complied.” Neither this finding nor the sentence based on it have been assigned

as an error and there is no plain error.




Copies mailed to:

Lisa M. Fannin, Esq.
Joe Cloud, Esq.
Hon. Douglas M. Rastatter
