[Cite as State v. Gatewood, 2013-Ohio-5573.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 99430 and 99431




                                      STATE OF OHIO

                                                            PLAINTIFF-APPELLEE

                                                vs.

                                   PAUL GATEWOOD

                                                            DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART
                            AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                             Case Nos. CR-566517 and CR-565160

        BEFORE:          Jones, P.J., S. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: December 19, 2013
ATTORNEY FOR APPELLANT

Joseph W. Jasper, Jr.
614 West Superior Aveue
Suite 940
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Adam M. Chaloupka
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

         {¶1} Defendant-appellant Paul Gatewood challenges his conviction entered after

his plea to two counts of burglary and his 16-year sentence on the charges that consisted

of the maximum eight-year sentence on both charges, to be served consecutive to each

other.    We affirm the conviction, but reverse the sentence and remand the case for

resentencing.

         {¶2} In August 2012, Gatewood was indicted in Case No. CR-565160 with one

count of burglary.       The charge contained notice of prior conviction and repeat violent

offender specifications.

         {¶3} In September 2012, Gatewood was indicted in Case No. CR-566517 with one

count each of burglary and theft.         The burglary charge contained notice of prior

conviction and repeat violent offender specifications.     The cases proceeded together at

the trial court level.

         {¶4} After negotiations with the state, Gatewood pleaded guilty to two counts of

burglary.    The specifications and theft charge were dismissed.

         {¶5} Prior to sentencing, Gatewood filed pro se motions to disqualify counsel and

withdraw his guilty plea.        The trial court addressed the motions at the sentencing

hearing, and after affording Gatewood the opportunity to be heard, denied them. The

court sentenced Gatewood to eight years on each count, and ordered them to be served

consecutively, for a total 16-year sentence.     The court ordered $200 restitution in Case

No. CR-565160, and $225 restitution in Case No. CR-566517.
      {¶6} Gatewood raises three assignments of error for our review:

      [I.] The trial court imposed an excessive sentence that subjects him to cruel
      and unusual punishment in violation of the Ohio State Constitution Art.1,
      §9.

      [II.] The trial court erred in failing to address the required statutory factors
      under R.C. 2929.14(E)(4) for consecutive sentences. In particular, the
      lower court failed to address the proportionality aspect of R.C.
      2929.14(E)(4) and R.C. 2929.11(B).

      [III.] That trial counsel provided ineffective assistance of counsel, in
      violation of the Sixth Amendment to the United States Constitution and
      Section I of the Ohio Constitution.

Consecutive Sentences

      {¶7} We first consider Gatewood’s contention that the trial court did not make the

required statutory findings in imposing consecutive sentences. The state contends that

although it believes the record in this case supports the imposition of consecutive

sentences, the trial court did not fully comply with the statutory requirements for the

imposition of such sentences. We agree with the state and Gatewood that not all of the

necessary findings for consecutive sentences were made.          We therefore sustain the

second assignment of error and remand for resentencing.

Excessive Sentence

      {¶8} Although we are remanded for resentencing, we nonetheless consider

Gatewood’s contention that the sentence imposed by the trial court was excessive.

      {¶9} The Eighth Amendment to the United States Constitution states that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” The final clause prohibits not only barbaric punishments, but
also sentences that are disproportionate to the crime committed. Solem v. Helm, 103

S.Ct. 3001, 3006, 463 U.S. 277, 77 L.Ed.2d 637 (1983).

      {¶10} In reviewing the constitutionality of a criminal sentence, this court stated the

following:

       * * * it is well established that sentences do not violate these constitutional
      provisions against cruel and unusual punishment unless the sentences are so
      grossly disproportionate to the offenses as to shock the sense of justice in
      the community. State v. Chaffin (1972), 30 Ohio St.2d 13, 59 Ohio Op.2d
      51, 282 N.E.2d 46; State v. Jarrells (1991), 72 Ohio App.3d 730, 596
      N.E.2d 477.

State v. Hamann, 90 Ohio App.3d 654, 672, 630 N.E.2d 384 (8th Dist.1993).

      {¶11} In State v. Lazada, 107 Ohio App.3d 189, 667 N.E.2d 1292 (8th Dist.1995),

this court set forth the following standard for considering a constitutional review of a

criminal sentence:

      The standard of review for determining the constitutionality of [a

      defendant’s] sentence is plenary.    Ohio courts have held a sentence does

      not violate the constitutional prohibition against cruel and unusual

      punishment if it is not so greatly disproportionate to the offense as to

      “shock the sense of justice of the community.”           See State v. Chaffin

      (1972), 30 Ohio St.2d 13 at 17, 282 N.E.2d 46. See, also, State v.

      O’Shannon (1988), 44 Ohio App.3d 197, 542 N.E.2d 693. Moreover, the

      Supreme Court of the United States has provided that “Reviewing courts, of

      course, should grant substantial deference to broad authority that

      legislatures necessarily possess in determining the types and limits of
      punishments for crimes, as well as to the discretion that trial courts possess

      in determining the types and limits of punishments for crimes, as well as to

      the discretion that trial courts possess sentencing convicted criminals.”

      Solem v. Helm (1983), 463 U.S. 277, 290, 77 L.Ed. 2d 637, 103 S.Ct. 3001.

       In either case, the ultimate decision is whether the punishment, as a matter

      of law, violates the United States or the Ohio Constitution.

      The Supreme Court concluded proportionality analysis “should be guided

      by objective criteria, including (i) the gravity of the offense and the

      harshness of the penalty; (ii) the sentences imposed on other criminals in

      the same jurisdiction; and (iii) the sentences imposed for commission of the

      same crime in other jurisdictions.” Id. at 292.    The court, however, noted

      that “* * * no one factor will be dispositive in a given case.” Id. at 290 fn.

      17.

      In Harmelin v. Michigan (1991), 501 U.S. 957, 111 S.Ct. 2680, 115
      L.Ed.2d 836, a plurality of the Supreme Court focused the proportionality
      requirement set forth in Solem and eliminated the need for comparative
      proportionality analysis in every case. “The proper role for comparative
      analysis of sentences, then, is to validate an initial judgment that a sentence
      is grossly disproportionate to a crime.” 111 S.Ct. at 2707. Therefore,
      where “* * * a comparison of [a defendant’s] crime with his sentence does
      not give rise to an inference of gross disproportionality,” a comparative
      analysis with other sentences need not be performed. See Id.

      In comparing the crimes and punishment imposed in the case sub judice,
      this court gives substantial deference to the General Assembly’s sentencing
      guidelines which demonstrate an intent to make punishment proportionate
      to the degree of crime.

Lazada at 191-192.
       {¶12} In light of Harmelin, if a comparison of the “gravity of the offense and the

harshness of the penalty” under the first element of Solem does not give rise to an

inference of gross disportionality, then the “comparative analysis with other sentences,”

pursuant to the second and third elements of Solem, “need not be performed.”

       {¶13} The totality of Gatewood’s argument in support of his cruel and unusual

claim is as follows: “the imposition [of] two prison terms of the maximum penalty of 8

years each to be served consecutively, resulting in a total sentence of 16 years for the

crimes he committed is greatly disproportionate and amounts to the imposition of cruel

and unusual punishment for his crime.”    We disagree.

       {¶14} The sentence for each of the burglaries fell within the permissible statutory

range for burglary, a felony of the second degree.     See R.C. 2929.14(A)(2). Further,

the record before us demonstrates that the victims of Gatewood’s crimes suffered a

significant amount of fear because of his crimes.

       {¶15} For example, the victims in Case No. CR-565160 were a mother and her

nine year-old daughter.   The burglary left the daughter traumatized to the point where

she had difficulty sleeping alone. Case No. CR-566517 had three victims and they were

likewise traumatized to the point where they were all frightened to participate in the

proceedings and one had to move out of the burglarized house.        Moreover, Gatewood

has an extensive prior criminal history, which includes 14 felony convictions.

       {¶16} On this record, the “gravity of the offense and the harshness of the penalty”

under the first element of Solem does not give rise to an inference of gross disportionality
and we, therefore, overrule Gatewood’s first assignment of error.

Ineffective Assistance of Counsel

       {¶17} Gatewood’s motions to withdraw his plea and disqualify his counsel were

based on his claim that his counsel was ineffective and pressured him to take the state’s

plea deal. We find that the record does not support his claim.

       {¶18} Crim.R. 32.1 permits a motion to withdraw a guilty plea “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.”

       {¶19} A guilty plea waives all appealable orders including the right to assert an

ineffective assistance of counsel claim except to the extent the defects complained of

caused the plea to be less than knowing, intelligent, and voluntary. State v. Spates, 64

Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), citing Tollett v. Henderson, 411 U.S. 258,

267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

       {¶20} Thus, to prove a claim of ineffective assistance of counsel in the context of a

guilty plea, the appellant must demonstrate that there is a reasonable probability that, but

for counsel’s deficient performance, he would not have pleaded guilty and would have

insisted on going to trial.   State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992);

Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

       {¶21} The record here demonstrates that Gatewood’s plea was knowingly,

intelligently, and voluntarily made.    The trial court complied with the requirements of

Crim.R. 11 before accepting Gatewood’s plea.       Gatewood indicated that he understood

his rights, and that by pleading guilty he would be waiving his rights. Gatewood further
indicated during his plea colloquy with the court that he was satisfied with the

representation he received from his counsel and that no threats or promises had been

made to him to induce him to plead.

       {¶22} The trial court asked Gatewood how he like to plead, to which Gatewood

responded, “I plead guilty, your Honor.”        The court then questioned him, “[a]nd are you

in fact guilty, sir?” to which Gatewood responded “[y]es your Honor.”

       {¶23} At his hearing on his motions to withdraw his plea and disqualify his

counsel, the trial court inquired as follows:

       When you came to court, the Court looked directly to you and said, how do
       you plead? And you said, guilty. And I said, and sir, are you in fact
       guilty? And you said, yes.

       Now your attorney was not allowed to speak at that time. If you felt
       pressured * * * then why didn’t you say that * * *?

       {¶24} Gatewood’s response was a general one, merely stating that he felt

pressured.   The court responded:

       Come off of it. That’s absolutely false. You weren’t pressured, because
       at the time that I said to you how do you plead, [your attorney] is not
       allowed to speak then. He’s not allowed to express his opinion then. The
       dialogue has to happen between me and you. So he didn’t say one word
       then.

       And then, to insure that I am not taking a guilty plea from an innocent
       person, I personally always say to a person, and are you in fact guilty?
       And you said, yes.

       I’m satisfied, sir, that it was a knowing, willing and voluntary plea.

       {¶25} On consideration of this record, we find that Gatewood failed to

demonstrate that his plea was less than knowingly, intelligently, and voluntarily made.
The trial court, therefore, properly denied his motions to withdraw his plea and to

disqualify his counsel.

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

       {¶27} The judgment of conviction is affirmed; the judgment of sentence is

reversed and the case is remanded to the trial court for resentencing.

       It is ordered that appellant and appellee 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

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

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCURS
