[Cite as State v. Spencer, 2013-Ohio-137.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 6-12-15

        v.

JULIE ANN SPENCER,                                         OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 6-12-16

        v.

JULIE ANN SPENCER,                                         OPINION

        DEFENDANT-APPELLANT.


                 Appeals from Hardin County Common Pleas Court
                  Trial Court Nos. 20112266CRI and 20112079CRI

                                      Judgments Affirmed

                            Date of Decision: January 22, 2013


APPEARANCES:

        Michael B. Kelley for Appellant

        Bradford W. Bailey and Destiny R. Hudson for Appellee
Case Nos. 6-12-15, 6-12-16


SHAW, J.

       {¶1} Defendant-appellant, Julie Ann Spencer (“Spencer”), appeals the June

12, 2012 judgments of the Hardin County Court of Common Pleas journalizing

her conviction by guilty plea and sentencing her to serve seventeen months in

prison for her conviction for possession of heroin, in violation of R.C. 2925.11(A),

(C)(6)(b), and eleven months in prison for her conviction for trafficking in heroin,

in violation of R.C. 2925.03(A)(1), (C)(6)(a), with the sentences to be served

consecutively.

       {¶2} This consolidated appeal arises from two separate cases, which were

handled together at the trial court level.

       {¶3} On May 6, 2011, in case number 20112079, Spencer was indicted on

two counts of complicity to trafficking in heroin, in violation of R.C.

2923.03(A)(2) and R.C. 2925.03(A)(1), (C)(6)(c), and one count of possession of

heroin, in violation of R.C. 2925.11(A), (C)(6)(b). All three offenses are felonies

of the fourth degree.

       {¶4} Spencer was subsequently arraigned and released on personal

recognizance. While released on personal recognizance with her case pending,

Spencer committed an additional offense when she sold heroin to a police

informant. Consequently, on December 22, 2011, in case number 20112266,




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Case Nos. 6-12-15, 6-12-16


Spencer was indicted on one count of trafficking in heroin, in violation of R.C.

2925.03(A)(1), (C)(6)(a), a felony of the fifth degree.

       {¶5} On March 2, 2012, Spencer appeared in court on both cases to change

her plea pursuant to a negotiated plea agreement with the prosecution. However,

the change of plea hearing was continued upon the trial court discovering that

Spencer failed a drug test.

       {¶6} On March 23, 2012, Spencer again appeared in court on both cases for

a change of plea hearing. The trial court conducted a Crim.R. 11 colloquy with

Spencer in open court and Spencer entered a guilty plea to one count of possession

of heroin as charged in count three in the indictment in case number 20112079,

and one count of trafficking in heroin as charged in the indictment in case number

20112266. In exchange for her guilty plea, the prosecution dismissed the two

counts of complicity to trafficking in heroin in case number 20112079 and agreed

to a jointly recommended sentence of three years of community control.

       {¶7} The trial court reserved imposing Spencer’s sentence until a pre-

sentence investigation could be completed.         On the record, the trial court

encouraged Spencer to participate in the pre-sentence investigation and advised

her that her failure to cooperate would be taken into consideration at sentencing.

Spencer failed to appear at her interview for the pre-sentence investigation report.




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Case Nos. 6-12-15, 6-12-16


       {¶8} On June 11, 2012, Spencer appeared for sentencing. The trial court

declined to adopt the joint sentence recommendation of three years of community

control and instead imposed a seventeen month prison term for Spencer’s

conviction for possession of heroin in 20112079 and an eleven month prison term

for her conviction for trafficking in heroin in case number 20112266. The trial

court ordered the prison terms to be served consecutively. Spencer’s sentence was

journalized in the trial court’s June 12, 2012 Judgment Entries.

       {¶9} It is from these judgments that Spencer now appeals asserting the

following assignments of error.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO PROPERLY CONSIDER THE SENTENCING
       FACTORS FOUND IN O.R.C. 2929.11-2929.14 WHEN IT
       SENTENCED APPELLANT TO A PRISON TERM.

                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED WHEN IT ACCEPTED THE
       APPELLANT’S GUILTY PLEA AS THAT PLEA WAS NOT
       KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY
       GIVEN.

       {¶10} At the outset, we note that trial courts may reject plea agreements

and are not bound by a jointly recommended sentence. State v. Underwood, 124

Ohio St.3d 365, 2010-Ohio-1, ¶ 28. “A trial court does not err by imposing a

sentence greater than ‘that forming the inducement for the defendant to plead


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Case Nos. 6-12-15, 6-12-16


guilty when the trial court forewarns the defendant of the applicable penalties,

including the possibility of imposing a greater sentence than that recommended by

the prosecutor.” State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-

3674, ¶ 6, quoting State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772. At

the change of plea hearing, the trial court engaged in the following dialogue with

Spencer regarding the joint sentence recommendation.

       Trial Court: In both these cases, ma’am, there has been talk of
       recommended sentences. You understand that that’s all those
       are to me, are recommendations?

       Spencer: Yes sir.

       Trial Court: That I am free to accept or reject those
       recommendations, in whole or in part, and to sentence you
       within the guidelines in which we’ve just talked about?

       Spencer: Yes Your Honor, I do.

       Trial Court: You’re not sitting here today in either one of these
       cases believing that you’ve been guaranteed any particular
       sentence are you?

       Trial Court: No Your Honor.

(Change of Plea Trans. p. 25). Accordingly, the record reflects that Spencer was

adequately apprised of the trial court’s discretion to either accept or reject the joint

sentence recommendation prior to pleading guilty to the charges.




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Case Nos. 6-12-15, 6-12-16


       {¶11} We now address the particular arguments raised by Spencer on

appeal. For ease of discussion, we elect to discuss Spencer’s assignments of error

out of order.

                           Second Assignment of Error

       {¶12} In her second assignment of error, Spencer claims that the trial court

erred when it accepted her guilty plea. Specifically, Spencer argues that her plea

was not knowingly, intelligently, and voluntarily made as required by Crim.R. 11.

       {¶13} Before accepting a guilty plea, Crim.R. 11 requires the trial court to

personally address a defendant to determine if the plea is voluntary, and that the

defendant understands both the plea itself as well as the rights waived by pleading

guilty. See Crim.R. 11(C)(2). In determining whether a guilty plea is voluntarily,

intelligently, and knowingly made, the court must look to the totality of the

circumstances. State v. Calvillo, 76 Ohio App.3d 714, 719 (8th Dist.1991), citing

State v. Carter, 60 Ohio St.2d 34, 38 (1979).

       The essential duty imposed upon the trial judge by Crim.R. 11 is
       to ascertain that the defendant’s decision to plead guilty, and
       thereby waive her various constitutional rights to a fair trial, is a
       knowing and intelligent decision. In the typical case, this
       requires the trial judge to determine that the defendant, with an
       understanding of the nature of the charges against him,
       acknowledges his guilt, and that, with an understanding of the
       constitutional protections to which he is entitled, he agrees to
       waive them.




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Case Nos. 6-12-15, 6-12-16


State v. Padgett, 67 Ohio App.3d 332, 338 (2d Dist.1990). Thus. Crim.R. 11

requires a meaningful dialogue between the trial court and the defendant. A trial

court’s acceptance of a guilty plea will be affirmed only if the trial court engaged

in meaningful dialogue with the defendant which, in substance, explained the

pertinent constitutional rights “in a manner reasonably intelligible to that

defendant.” State v. Ballard, 66 Ohio St.2d 473, at paragraph two of the syllabus

(1981); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 27.

       {¶14} On appeal, Spencer claims that the record demonstrates instances of

her “obvious confusion at the [change of] plea hearing, possibly due to prescribed

medications Xanax and Percocet.”        (Appt. Brief at 17).    In support of her

argument, Spencer maintains she exhibited signs of confusion by neglecting to

sign her middle name on one of the plea documents, by being unsure of the last

day she took her prescription for Percocet and by not understanding who carries

the burden of proof in her case. However, when reviewing the entire transcript

from the change of plea hearing, it is apparent that on appeal Spencer is attempting

to isolate specific statements made on the record while failing to discuss these

statements in their full context. The following are excerpts of the exchanges

between the trial court and Spencer from the change of plea hearing which

Spencer claims is evidence of her “obvious confusion.”




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Case Nos. 6-12-15, 6-12-16


      Trial Court: Oh, Okay. Ms. Spencer are you under the
      influence of any substance today that would impair your ability
      to understand what’s taking place?

      Defendant: No, Your Honor.

      Trial Court: Okay. Well, the Court might take a different view
      of that. You are under certain prescription medications?

      Defendant: I have taken none this morning, Your Honor.

      Trial Court: I appreciate that. Answer my question. You are
      under doctor’s care and you take certain prescriptions?

      Defendant: Yes sir, I do.

      Trial Court: Xanax is one of them?

      Defendant: Yes sir.

      Trial Court: Percocet?

      Defendant: Yes sir.

      Trial Court: What else?

      Defendant: That’s it.

      Trial Court: That’s it?      You don’t take anything for your
      kidney problem, or?

      Defendant: Yeah I take all, a lot of it depends on the (inaudible).

      Trial Court: Okay. Are any of those narcotics?

      Defendant: Just the Percocets.

      Trial Court: Okay. And when was the last time you took a
      Percocet?


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Case Nos. 6-12-15, 6-12-16


      Defendant: Two days ago.

      Trial Court: Two days ago.

      Defendant: Thursday. What is today?

      Trial Court: Thursday would have been yesterday.           Okay.
      Early or late?

      Defendant: Early.

      Trial Court: Okay. [Defense Counsel], you’ve certainly been
      working with Ms. Spencer for some time?

      Defense Counsel: Yes sir.

      Trial Court: Your ability to go over the paperwork with her and
      have her comprehend and understand what was taking place
      was good or bad?

      Defense Counsel: I had no problems with her Judge. I believe
      she does understand and she’s been able to answer my questions,
      and ask cogent and proper questions of me.

      Trial Court: State?

      Prosecutor: Your Honor the State would trust [Defense
      Counsel’s] opinion. She does appear to be aware of what’s going
      on in the courtroom today as well, so.

      Trial Court: The record has been made. * * *

      ***

      Trial Court: The Prosecutor’s Office in Hardin County is
      charged by the Ohio Constitution, represents the State of Ohio
      in felony court, they’re also charged by that same constitutional
      provision to go to the grand jury before they bring charges in
      this court. They did that in this case, but their job is not done.
      They also have to be able to bring in sufficient evidence to

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Case Nos. 6-12-15, 6-12-16


      convince a jury or to convince me that you’re guilty of the
      charges they bring. Not only guilty, but guilty beyond a
      reasonable doubt. Highest form of proof we require in our
      judicial system. Since the Prosecutor’s Office has gotta bring
      the charges and prove the charges beyond a reasonable doubt, at
      no time do you have to prove anything in this courtroom, do
      you?

      Defendant: (Inaudible)

      Trial Court: No, now listen to my question, ma’am. Do you
      believe that you have to prove anything here?

      Defendant: Um, I’m just proving that I’m guilty, right?

      Trial Court: No. You’re not doing that, that’s the duty of the
      Prosecutor.

      Defendant: Oh. No then, Your honor. No.

      Trial Court: That’s right. You have no duty. In fact, we’ll talk
      about it in a minute, but you’re presumed innocent until the
      State produces that proof beyond a reasonable doubt, aren’t
      you? So you can sit there and do absolutely nothing, right?

      Defendant: Yes, Your Honor.

      Trial Court: Okay. Okay. And so consequently, since the
      prosecution has to bring the charges and prove the charges
      beyond a reasonable doubt, do you understand that by pleading
      guilty in these cases, is letting the prosecution off the hook—they
      don’t have to prove anything beyond a reasonable doubt here
      today?

      Defendant: Yes sir.

      Trial Court: So by your guilty pleas in each of these cases, you
      are freely and voluntarily giving up that constitutional right you
      have to have your guilt established beyond a reasonable doubt.
      Do you understand that?

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Case Nos. 6-12-15, 6-12-16



       Defendant: Yes Your Honor.

(Change of Plea Trans. pp.7-8, 14-15).

       {¶15} In reviewing the record, and looking at the totality of the

circumstances, we find that none of the instances raised by Spencer on appeal

demonstrate that she was so confused as to negate the voluntariness of her guilty

plea. Rather, we find that the record demonstrates that in each instance in which

Spencer exhibited some potential misunderstanding about the process of entering a

guilty plea, the trial court took the appropriate measures to ensure that Spencer

was entering her guilty plea voluntarily, intelligently, and knowingly. Moreover,

the record also demonstrates that the trial court engaged in a meaningful dialogue

with Spencer which, in substance, explained the pertinent constitutional rights in a

manner reasonably intelligible to Spencer. Accordingly, we find no error with the

comprehensiveness of the trial court’s Crim.R. 11 colloquy and further conclude

that the record supports the trial court’s finding that Spencer’s guilty pleas were

voluntarily, intelligently, and knowingly made. Spencer’s second assignment of

error is overruled.

                             First Assignment of Error

       {¶16} In her first assignment of error, Spencer claims the trial court failed

to consider the appropriate statutory factors when it sentenced her to serve a prison



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Case Nos. 6-12-15, 6-12-16


term. Specifically, Spencer argues that the prison term imposed by the trial court

is not supported by the record.

       {¶17} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16–07–07,

2007–Ohio–5774, ¶ 8, citing State v. Carter, 11th Dist. No.2003–P–0007, 2004–

Ohio–1181. In particular, R.C. 2953.08(G)(2) provides the following regarding an

appellate court’s review of a sentence on appeal.

       The court hearing an appeal * * * shall review the record,
       including the findings underlying the sentence or modification
       given by the sentencing court.

       The appellate court may increase, reduce, or otherwise modify a
       sentence that is appealed under this section or may vacate the
       sentence and remand the matter to the sentencing court for
       resentencing. The appellate court's standard for review is not
       whether the sentencing court abused its discretion. The appellate
       court may take any action authorized by this division if it clearly
       and convincingly finds either of the following:

       (a) That the record does not support the sentencing court’s
       findings under division (B) or (D) of section 2929.13, division
       (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
       2929.20 of the Revised Code, whichever, if any, is relevant;

       (b) That the sentence is otherwise contrary to law.

       {¶18} Furthermore, a sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing, which are

to protect the public from future crimes by the offender and others and to punish

the offender, and shall be commensurate with and not demeaning to the

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Case Nos. 6-12-15, 6-12-16


seriousness of the offender’s conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders. See R.C. 2929.11(A),(B).

       {¶19} Despite Spencer’s arguments on appeal, the record establishes that

the trial court considered the relevant factors from R.C. 2929.11 and R.C. 2929.12

in sentencing Spencer. Moreover, in exercising its discretion to impose a prison

term for Spencer’s convictions rather than to adopt the joint sentence agreement,

the trial court noted on the record the following factors contributed to its decision

to find that Spencer was not amenable to community control and that the prison

terms imposed were justified.

       {¶20} First, the trial court noted Spencer’s failure to take accountability for

not appearing for the pre-sentence investigation interview by blaming her drug

addiction, her health, and the probation department. Second, the trial court listed

Spencer’s several prior convictions, including multiple theft convictions, a

criminal history that spanned over a decade into her juvenile record, and observed

the fact that Spencer had previously served prison time for her past offenses. Last,

the trial court also noted that one of the two offenses for which Spencer was being

sentenced occurred while Spencer was released on bond and under indictment for

the other offense.




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Case Nos. 6-12-15, 6-12-16


       {¶21} We further note that R.C. 2929.13(B)(1)(a) sets forth a presumption

for community control if an offender is convicted of or pleads guilty to a felony of

the fourth or fifth degree that is not an offense of violence. However pursuant to

R.C. 2929.13(B)(1)(b)(iii) the trial court has discretion to impose a prison term

upon said offender if the offender violated a term of the conditions of bond as set

by the court. In addition, R.C. 2929.13(B)(2) directs the trial court to determine

the applicability of a list of factors when sentencing an offender for a fourth or

fifth degree felony, which includes (g) whether “[t]he offender at the time of the

offense was serving, or the offender previously had served, a prison term,” and (h)

whether “[t]he offender committed the offense while under a community control

sanction, while on probation, or while released from custody on a bond or personal

recognizance. Further, R.C. 2929.13(B)(3)(a) states that:

       If the court makes a finding described in division (B)(2)* * * (g),
       (h) * * *of this section and if the court, after considering the
       factors set forth in section 2929.12 of the Revised Code, finds
       that a prison term is consistent with the purposes and principles
       of sentencing set forth in section 2929.11 of the Revised Code
       and finds that the offender is not amenable to an available
       community control sanction, the court shall impose a prison term
       upon the offender.

(Emphasis Added). As previously mentioned, the trial court found that Spencer

had already served a prison term, which was verified by the pre-sentencing

investigation report, that Spencer committed one of the offenses for which she was

being sentenced while she was on personal recognizance, which violated a term of

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Case Nos. 6-12-15, 6-12-16


the conditions of her personal recognizance,1 and that Spencer was not amenable

to community control.

        {¶22} Finally, Spencer was convicted of possession of heroin, in violation

of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree, which carries a

possible prison term of six, seven, eight, nine, ten, eleven, twelve, thirteen,

fourteen, fifteen, sixteen, seventeen, or eighteen months. See R.C. 2929.14(A)(4).

Spencer was also convicted of trafficking in heroin, in violation of R.C.

2925.03(A)(1), (C)(6)(a), a felony of the fifth degree, which carries a possible

prison term of six, seven, eight, nine, ten, eleven, or twelve months. See R.C.

2929.14(A)(5). Thus, both prison terms imposed by the trial court were within the

permissible statutory range.

        {¶23} Accordingly, for all these reasons, we find no error with the sentence

imposed on Spencer by the trial court. Spencer’s first assignment of error is

overruled.

        {¶24} Based on the foregoing, the judgments of the Hardin County Court of

Common Pleas are affirmed.

                                                                          Judgments Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr


1
  One of conditions of Spencer’s personal recognizance was to “[h]ave no violations of law and be of
general good behavior.” (Doc. 6 at 2).

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