[Cite as State v. Mankins, 2013-Ohio-4039.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99356



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 MICHAEL MANKINS
                                                    DEFENDANT-APPELLANT




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


                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
               Case Nos. CR-554926, CR-562876, CR-562940, and CR-565884

        BEFORE: Rocco, J., Stewart, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: September 19, 2013
ATTORNEY FOR APPELLANT

Michael L. Wolpert
2539 Traymore Road
University Heights, Ohio 44118


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James A. Gutierrez
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

         {¶1} After entering pleas of no contest in Cuyahoga C.P. No. CR-562940 to 1

count of grand theft, 54 counts of tampering with governmental records, 54 counts of

forgery, 18 counts of tampering with odometers, and 18 counts of selling vehicles with

altered odometers, and entering guilty pleas in Cuyahoga C.P. Nos. CR-554926,

CR-565884, and CR-562876, respectively, to one count of grand theft, one count of theft,

and one count of misdemeanor menacing, defendant-appellant Michael Mankins appeals

from his convictions and the four and one-half year prison sentence the trial court

imposed.

         {¶2} Mankins presents two assignments of error. This court cannot decipher the

argument he makes in his first, although it seems to challenge his sentence. In his

second, Mankins claims his trial counsel rendered ineffective assistance in securing his

pleas.

         {¶3} This court has reviewed the record of these cases and finds that plain error

occurred in sentencing.      The trial court neither followed the requirements of R.C.

2929.14(C)(4) at the sentencing hearing in imposing consecutive sentences, nor entered

journal entries that reflected what occurred at the sentencing hearing, nor imposed

consequences should Mankins fail to comply with the “probation” imposed on some of

the counts in CR-562940.         Therefore, even though his argument is meaningless,

Mankins’s first assignment of error is sustained.
       {¶4} However, the record fails to support Mankins’s claim of ineffective

assistance of trial counsel. His second assignment of error is consequently overruled.

Mankins’s convictions and sentences in CR-554926, CR-562876, CR-565884, and

CR-562940 are affirmed, but his sentences are vacated and these cases are remanded for

resentencing consistent with this opinion.

       {¶5} The record reflects Mankins was indicted in these cases in 2011 and 2012 as

a result of his activities in operating a used car dealership. In CR-554926, he was

charged with one count of passing bad checks and one count of grand theft.              In

CR-562876, he was charged with five counts of intimidation. In CR-565884, he was

charged with one count of passing bad checks and one count of theft.

       {¶6} In CR-562940, Mankins was charged together with his wife. The counts that

pertained to him charged him with 1 count of grand theft, 54 counts of tampering with

records, 54 counts of forgery, 18 counts of tampering with odometers, and 18 counts of

selling vehicles with altered odometers. Mankins entered pleas of not guilty at his

arraignments and retained counsel to represent him and his wife.

       {¶7} By October 2012, the parties notified the trial court that a plea agreement had

been reached. As outlined by the prosecutor, in the three less-serious cases, in exchange

for a dismissal of the other counts and an agreed amount of restitution, Mankins would

plead guilty as follows: (1) in CR-554926 to a single count of grand theft; (2) in

CR-562876 to Count 1, amended to a charge of menacing; and (3) in CR-565884, to a

single count of theft.
       {¶8} The trial court conducted a thorough colloquy with Mankins before accepting

his pleas, finding him guilty, and dismissing the other charges. Then the parties turned

their attention to Mankins’s remaining case, viz., CR-562940.

       {¶9} The prosecutor stated that Mankins and his wife would enter pleas of no

contest to all the charges in the remaining case. The prosecutor set forth the amount of

restitution involved. Defense counsel indicated that Mankins had already made some

restitution to one of the victims.

       {¶10} The trial court proceeded with a second colloquy for each defendant in

CR-562940. The court carefully described the constitutional rights the defendants were

waiving in entering their pleas and set forth the maximum penalties involved. The trial

court first accepted Mankins’s wife’s no contest pleas before conducting a separate

colloquy with Mankins and accepting his pleas as well. The prosecutor then presented a

factual basis for the charges. Thereafter, the trial court made findings of guilt on all the

charges. The trial court concluded the hearing by referring Mankins and his wife to the

probation department for presentence reports.

       {¶11} When the trial court called the cases for sentencing, the court indicated that

it had reviewed the presentence reports.      The court also heard statements from the

prosecutor, one of the victims, defense counsel, and Mankins and his wife before ordering

the hearing to be continued so that Mankins could close up his business and make further

restitution.
      {¶12} The conclusion of the sentencing hearing took place a week later. The

prosecutor indicated the parties had come to an agreement on the amount of restitution.

In the less-serious cases, the trial court imposed sentences on Mankins as follows: in

CR-554926, a prison term of one year, to be served “consecutive[ly] with the [other]

cases”; in CR-565884, a six-month prison term; and in CR-562876, 30 days in jail.

      {¶13} As to CR-562940, the transcript of the sentencing hearing demonstrates that

the trial court sentenced Mankins as follows:

      Count 1, to 5 years of “probation”;

      the “tampering with records” counts, except for Count 143, to concurrent
      prison terms of three years;

      the terms in this case were to be served concurrently with each other but
      consecutively to the sentence in CR-565884;

      Count 143, to 5 years of “probation”;

      the “forgery counts,” except for Count 144, to prison terms of nine months;

      Count 144, to 5 years of “probation”;

      the “tampering with the odometer” counts, except for Count 145, to prison
      terms of nine months;

      Count 145, five years of “probation;” and,

      the “[s]ale of a vehicle with tampered odometer” counts, except for Count
      146, to prison terms of one year;

      Count 146, 5 years of “probation.”

      {¶14} Despite the trial court’s generalizations, as set forth above, the journal entry

of sentence in CR-562940 specifically set forth each count. The journal entry also
reflects that the state “elected” certain of the counts for purposes of merger. Finally, the

journal entry states that the sentences on all of the counts were to be served concurrently

with each other, but consecutively to the sentences imposed in CR-565884 and

CR-554926.

       {¶15} Mankins appeals from his convictions and the sentences imposed with two

assignments of error:

              I. The trial court’s imposition of consecutive prison sentences
       involving felony four and five levels without adequate inquiry or
       separate animus was error.

             II.   Failure to raise mitigation matters during the plea
       bargaining [with the] State constitutes ineffective assistance of counsel.

       {¶16} Mankins challenges his sentence in his first assignment of error with an

argument that makes no sense, and this court would be inclined to disregard it pursuant to

App.R. 16(A) and 12(A)(2) but for the plain error that the record reflects occurred in

sentencing. When there is a deviation from a legal rule, the error is obvious on the face

of the record, and the error affects a substantial right, plain error exists. State v. Payne,

114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 15-17. Several instances of

plain error are present herein.

       {¶17} First, with respect to CR-562940, the transcript of the sentencing hearing

does not contain any indication that the subject of “merger” was even discussed, much

less that the state made any elections between the numerous counts of the indictment in

CR-562940. Thus, the sentence was “modified” in the journal entry, and, as stated in

State v. Carpenter, 1st Dist. Hamilton No. C-950889, 1996 Ohio App. LEXIS 4434,
“When a sentence pronounced in open court is subsequently modified and the judgment

entry reflects the modification, the modification must have been made in the defendant’s

presence.”

       {¶18} Second, the journal entries in these cases do not reflect what was stated by

the trial court at the sentencing hearing.      Although the trial court declared at the

conclusion of the hearing that the sentence imposed in CR-554926 would “run

consecutive to the earlier cases,” the journal entry in that case indicates that the sentence

was to run “concurrent to CR-562876; and consecutive to case CR-562940 and

CR-565884.” State v. Quinones, 8th Dist. Cuyahoga No. 89221, 2007-Ohio-6077.

       {¶19} Third, the trial court failed to state any consequence should Mankins fail to

comply with the terms of the “probation” imposed on some of the counts, in direct

contravention of R.C. 2929.19(B)(4). State v. Polus, 6th Dist. Ottawa No. OT-08-040,

2010-Ohio-25.

       {¶20} Finally, the trial court made none of the findings necessary pursuant to R.C.

2929.14(C)(4) for the imposition of consecutive sentences. State v. Venes, 8th Dist.

Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 17.

       {¶21} For these reasons, this court is constrained to sustain Mankins’s first

assignment of error.

       {¶22} The argument Mankins makes in support of his second assignment of error,

consisting of two sentences, is as flawed as the one he presents in support of his first. He

apparently asserts that his trial counsel rendered ineffective assistance by failing to advise
him of “the risk” that, when he entered his pleas, the trial court might decline to “accept

the package” to which he agreed. Mankins perhaps is implying that his trial counsel told

him the trial court would impose only community control sanctions for his convictions in

these cases.

       {¶23} In this instance, this court declines to address this argument due to

Mankins’s failure to comply with App.R. 16(A). State v. Herron, 11th Dist. Lake Nos.

2009-L-119, 126 through 134, 2010-Ohio-2050, ¶ 17. In any event, because it requires

evidence dehors the record, it is an argument that belongs in a petition for postconviction

relief rather than a direct appeal.          State v. Maldonado, 9th Dist. Summit No.

01CA007759, 2001 Ohio App. LEXIS 4014 (Sept. 12, 2001).

       {¶24} Mankins’s second assignment of error is overruled.

       {¶25} Mankins’s convictions are affirmed. His sentences, however, are vacated,

and these cases are remanded for resentencing.

       {¶26} Affirmed in part, vacated in part, and remanded to the lower 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.



KENNETH A. ROCCO, JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
MELODY J. STEWART, A.J., CONCURS
IN JUDGMENT ONLY
