[Cite as State v. Clark,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Appellate Case No. 2011-CA-32 Plaintiff-Appellee : : Trial Court Case Nos. 2008-CR-321 v. : Trial Court Case Nos. 2011-CR-223 : JORDAN J. CLARK : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 1st day of February, 2013.

...........

KEVIN S. TALEBI, Atty. Reg. #0069198, Champaign County Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant

.............

FAIN, P.J.

{¶ 1} Defendant-appellant Jordan J. Clark appeals from his conviction and sentence

for Safecracking, Breaking and Entering, Burglary and Grand Theft (motor vehicle). Clark 2

contends that the trial court erred in sentencing him to maximum and consecutive sentences.

He further contends that the trial court erred by accepting his guilty plea to the charge of

Safecracking and by failing to sua sponte vacate the plea. Finally, Clark contends that he was

denied the effective assistance of counsel.

{¶ 2} We conclude that the trial court did not err in imposing sentence. We further

conclude that the trial court did not err either in accepting the guilty plea, or in failing to

vacate the plea, with regard to the Safecracking charge. Finally, Clark’s claim of ineffective

assistance of trial counsel is not supported by the record. Accordingly, the judgment of the

trial court is Affirmed.

I. Facts

{¶ 3} On August 1, 2011, Clark and two accomplices, Lee and McGuffey, made

plans to break into the Urbana City Pool. Clark and McGuffey drove to the area and dropped

off Lee who proceeded to break into the building. Clark and McGuffey later returned to pick

up Lee, who had taken money and food.

{¶ 4} On August 4, 2011, Clark, McGuffey, Lee and a fourth man, Dunham, worked

together to break into a residence, owned by the Hensons, while its owners were on vacation.

Clark and Mcguffey monitored police activity while the other two broke into the home.

Afterwards, Clark and McGuffey drove back to pick up the two men who had taken items

from the home. Later, Clark, Lee and McGuffey decided to return to the same house and

steal a vehicle. Clark and Lee entered the house and took the keys to the vehicle. Then the

three men took turns driving the vehicle while damaging local mailboxes. Ultimately the car 3

was wrecked, and the three men returned home.

{¶ 5} Clark was involved in opening a safe that Lee, Dunham and McGuffey had

stolen from a residence owned by Peggy Cauley on August 6. On August 7, he participated in

breaking into and entering the Mad River Farm Market and the Terre Haute Grocery.

II. The Course of Proceedings

{¶ 6} The Champaign County Grand Jury returned a twenty-count indictment

against Jordan Clark. The counts included: three counts of Breaking and Entering, in

violation of R.C. 2911.13, felonies of the fifth degree; three counts of Theft, in violation of

R.C. 2913.02, a misdemeanors of the first degree; two counts of Burglary, in violation of R.C.

2911.12(A)(3), felonies of the third degree; one count of Grand Theft, in violation of R.C.

2913.02, a felony of the fourth degree; one count of Grand Theft of a Motor Vehicle, in

violation of R.C. 2913.02, a felony of the fourth degree; six counts of Criminal Damaging, in

violation of R.C. 2909.06, misdemeanors of the second degree; three counts of Receiving

Stolen Property, in violation of R.C. 2913.51(A), misdemeanors of the first degree; and one

count of Safecracking, in violation of R.C. 2911.31(A), a felony of the fourth degree.

{¶ 7} Clark pled guilty to the three counts of Breaking and Entering, one count of

Burglary, one count of Grand Theft, one count of Grand Theft of a Motor Vehicle, six counts

of Criminal Damaging, and one count of Safecracking. The remaining seven counts of the

indictment were dismissed with prejudice. At his sentencing hearing, the trial court merged

the counts of Burglary and Grand Theft [Counts Three and Four], and then sentenced Clark to

a term of twelve months in prison on Count One, thirty-six months on Count Three, eighteen 4

months on Count Six, eighteen months for Count Fifteen, twelve months for Count Sixteen,

and twelve months on Count Eighteen. The trial court also sentenced Clark to a term of 90

days in the Tri-County Regional Jail with regard to each of Counts Seven, Eight, Nine, Ten,

Eleven and Twenty. The trial court stated that “all counts are concurrent confinement with

each other except Counts One, Three, Six, Fifteen and Sixteen which are consecutive to each

other. TOTAL SENTENCE - Eight (8) years to the Ohio Department of Rehabilitation and

Corrections.”

{¶ 8} The trial court stated the following:

The Court finds that the consecutive service is necessary to protect the public

from future crime and to punish the Defendant and that consecutive sentences are not

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

Defendant poses to the public and the Defendant committed one or more of the

multiple offenses while awaiting trial or under a community control sanction imposed

pursuant to Ohio Revised Code 2929.16, 2929.17 or 2929.18 and at least two of the

multiple offenses were committed as part of one or more courses of conduct and the

harm caused by two or more of the multiple offenses was so great that no single prison

term for any of the offenses adequately reflects the seriousness of the Defendant’s

conduct and the Defendant’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the Defendant. Dkt.

18, p. 5.

{¶ 9} From his conviction and sentence Clark appeals. [Cite as State v. Clark,

.] II. The Trial Court Did Not Abuse its Discretion in Imposing Maximum, Consecutive

Sentences on Certain Counts

{¶ 10} Clark’s First Assignment of Error states:

THE TRIAL COURT ERRED IN IMPOSING MAXIMUM CONSECUTIVE

SENTENCES ON COUNTS I, III, XV, AND XVI.

{¶ 11} Clark argues that the record does not support the imposition of maximum

sentences with regard to Counts One, Three, Six, Fifteen and Sixteen. Clark further contends

that “an eight year aggregate prison term” is “too long, and the sentence imposes an

unnecessary burden on state or local resources in violation of R.C. 2929.11(A).”

{¶ 12} “A trial court has broad discretion in sentencing a defendant and a reviewing

court will not interfere with the sentence unless the trial court abused its discretion.” State v.

Bray, 2d Dist. Clark No. 2010CA14, 2011–Ohio–4660, ¶ 28. The term “abuse of discretion”

has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Hufman v.

Hair Surgeon, Inc.,

,

(1985).

{¶ 13} When reviewing a felony sentence, an appellate court must first determine

whether the sentencing court complied with all applicable rules and statutes in imposing the

sentence, including R.C. 2929.11 and 2929.12, in order to decide whether the sentence is

contrary to law. State v. Kalish,

,

,

. If the

sentence is not clearly and convincingly contrary to law, the trial court's decision in imposing

the term of imprisonment must be reviewed under an abuse-of-discretion standard.

{¶ 14} The General Assembly, through the enactment of 2011 Am. Sub. H.B. 86,

amended Ohio's sentencing statutes. Since H.B. 86 took effect on September 30, 2011 and

Clark was sentenced on November 16, 2011, the trial court was required to sentence him 6

under the new statutes. Relevant to this appeal, the revisions under H.B. 86 now require a

trial court to make specific findings when imposing consecutive sentences. Specifically, R.C.

2929.14(C)(4) provides as follows:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to

protect the public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger the offender poses to the public, and if the

court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was

under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by 7

the offender.

{¶ 15} A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing which are “to protect the public from future crime by

the offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state or

local government resources.” R.C. 2929.11(A). A court imposing a sentence for a felony

“has discretion to determine the most effective way to comply with the purposes and

principles of sentencing set forth in section 2929.11 of the Revised Code.” R.C. 2929.12(A).

{¶ 16} Clark contends that because he did not enter the Urbana Pool, the Mad River

Farm Market or the Henson home, he should not have received the maximum sentences for

these offense. He also contends that he did not drive the Henson vehicle and he should not

have received the maximum sentence for that offense. Finally, he argues that he was not

involved in the Cauley offense, and thus, should not have received the maximum possible

sentence.

{¶ 17} In this case, prior to imposing sentence, the trial court reviewed the offenses,

the pre-sentence investigation report, and statements made by Clark and his attorney. The

court explained that it was imposing sentence after considering the purposes and principles of

sentencing, as well as the seriousness and recidivism factors. The trial court noted that Clark

had prior criminal convictions. He was, in fact, on community control at the time of the

offenses in the case before us. Additionally, the court considered the extent of the damages to

the victims.

{¶ 18} The record indicates that Clark was convicted of Breaking and Entering in 8

2008 and was sentenced to community control. Later that year he was convicted of Underage

Consumption and Failure to Identify and was sentenced to serve one hundred and eighty days;

the sentence was suspended. In April 2009, Clark was convicted of Theft and was sentenced

to three years of community control. Thereafter, in August 2011, while on community

control, Clark was involved in the series of offenses in the case before us.

{¶ 19} While Clark did not enter the Mad River Farmers Market or the Terre Haute

Grocery, he was involved in the plans to break in, and was actively involved with transport

and lookout responsibilities. Furthermore, the record reflects that he did enter the Henson

home for the purpose of taking the keys to their vehicle. The record shows that he took turns

driving the vehicle after stealing it. Finally, Clark was involved with Safecracking with

regard to a safe stolen from the Cauley residence, although he was not involved in the initial

offense of Breaking and Entering.

{¶ 20} Clark’s sentence falls within the permissible statutory range. The trial court

considered the factors set forth in R.C. 2929.14(C)(4) when deciding to impose consecutive

sentences. Thus, the sentence is not clearly and convincingly contrary to law.

{¶ 21} In their briefs, both Clark and the State cite authority for the proposition that

an appellate court may vacate consecutive sentences only if it clearly and convincingly finds

that the record does not support the trial court’s findings, or that the sentence is otherwise

contrary to law. Because of Clark’s criminal history of two prior felonies, the fact that he was

under community control for another felony at the time of these offenses, and was actively

involved in multiple offenses over the course of approximately a week, we do not clearly and

convincingly find that the record does not support the trial court’s findings with respect to the 9

imposition of consecutive sentences, or that the trial court abused its discretion by imposing

the maximum sentences allowed. Accordingly, the First Assignment of Error is overruled.

IV. The Trial Court Did Not Err in Accepting Clark’s Plea of Guilty to Safecracking

{¶ 22} Clark’s Second Assignment of Error states:

THE TRIAL COURT ERRED IN IMPOSING A SENTENCE ON COUNT

XV.

{¶ 23} Clark contends that he was not involved in the offense committed against

Peggy Cauley on August 6, 2011. Therefore, he claims that the trial court erred by failing to

permit him to enter a plea pursuant to North Carolina v. Alford,

,

,

, with regard to that offense. In support, Clark makes references to several

portions of the transcript of the sentencing hearing that he claims establish that the prosecutor

stated that Clark was not involved in the Cauley offense. He also references the pre-sentence

investigation report, in which he indicated that Lee had told him that Lee broke into Cauley’s

safe following the burglary of the house.

{¶ 24} The prosecutor made the following statements during sentencing:

Fortunate for him, he was not involved in the Peggy Culley [sic]

burglary that his co-defendant was.

***

Of that $4,040.12, $1,858.66 goes to Peggy – I’m sorry. That would be

a mistake on the restitution figure. I think my Victim Advocate had indicated

the Defendant’s culpability for the Peggy Culley [sic] loss, and the Defendant 10

was not involved in the Peggy Culley [sic].

***

The reason for my pause is that when the Court was reviewing the

sentence, it made me realize that when my Victim Advocate listed the Peggy

Culley [sic] property, Count Fifteen, which is the safecracking, it indicates that

contained within the safe was blank checks, a Lincoln Financial check, a life

insurance document, and two rings. So I needed to go back to the prosecution

report as well as comparing that to what Peggy Culley [sic] listed as her loss to

see if any of the information it contained in Peggy Culley’s [sic] victim impact

statement would fall within the provisions of what was set forth in Count

Fifteen.

And Peggy Culley [sic] claimed a loss for a PlayStation 3 and two Dell

laptops. But did not make specific mention in her victim impact statement of

the rings. So it was correct to list Peggy Culley [sic] as a victim. But as far

as restitution goes, based on what was claimed by the victim, I don’t believe

that Mr. Clark should be responsible for that loss.

{¶ 25} From our reading of the entire transcript, the prosecutor here was merely

indicating that Clark was not involved with the Cauley Burglary, was not charged with that

Burglary, and therefore could not be held liable for restitution regarding the loss from the

Burglary. However, as noted by the State, Clark was charged with Safecracking following

the Burglary. Since Ms. Cauley did not seek restitution for the loss of the items contained

within the safe, the prosecutor acknowledged no restitution could be awarded with regard to 11

the Safecracking charge. We do not read the above-quoted colloquy as indicating that Clark

was not involved with the Safecracking offense.

{¶ 26} Also, the pre-sentence investigation report was generated, and the sentencing

hearing was held, after the plea hearing. Therefore, none of that information was available to

the trial court when it accepted Clark’s plea. At the plea hearing the following colloquy took

place with regard to that count:

THE COURT: Count 15, safe cracking, are you admitting you

committed that crime as a fourth degree misdemeanor because you did on or

about August 6, 2011, in Champaign County, Ohio, with purpose to commit an

offense knowingly force an entrance into or tamper with any vault, safe or

strong [sic] with was Peggy Cauley’s safe containing Peggy Cauley’s Security

Bank checks, Lincoln Financial check, life insurance documents and two rings?

DEFENDANT CLARK: Yes, sir.

{¶ 27} A guilty plea must be knowingly, intelligently, and voluntarily made In order

to satisfy the requirements of due process. Boykin v. Alabama,

, 242–243,

,

(1969). The plea must be made with a full understanding of its

consequences. State v. Bowen,

,

(1977). Before

accepting a guilty plea, a trial court must substantially comply with the requirements of

Crim.R. 11. State v. Nero,

,

(1990). “Substantial

compliance means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving.”

{¶ 28} We conclude that the trial court did substantially comply with Crim.R. 11. 12

A review of the entire plea hearing transcript demonstrates that the trial court informed Clark

of the facts underlying the charges against him, the maximum sentence that he faced, and the

constitutional rights that he waived by pleading guilty. Prior to accepting the plea, the trial

court asked Clark whether he understood what he was doing, whether he was acting of his

own free will and not as the result of any promises aside from those incorporated in the plea

agreement, and whether he wanted the court to accept the plea. Clark responded to these

questions in the affirmative. He acknowledged that he had discussed his case with his

attorney. The court asked Clark whether there was any reason that he should not be found

guilty, to which he responded negatively.

{¶ 29} At no time during the plea proceedings did Clark indicate that he was not

guilty of the offense of Safecracking, as charged in Count Fifteen of the indictment. The trial

court had no information before it to indicate otherwise, and nothing in the record up to that

point, including the plea colloquy, gives rise to an inference that Clark was not guilty of the

crime of Safecracking as charged. In determining the propriety of the trial court’s acceptance

of Clark’s plea, we cannot consider information that was not before the trial court at that time.

Therefore, we find no error in the trial court’s acceptance of the plea.

{¶ 30} Clark’s Second Assignment of Error is overruled.

IV. The Trial Court Did Not Err by Failing to Vacate the Plea

of Guilty with Regard to the Charge of Safecracking

{¶ 31} Clark’s Third Assignment of Error states: 13

THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE JORDAN’S

PLEAS.

{¶ 32} Clark contends that the trial court should have vacated his guilty plea, sua

sponte, regarding to the Safecracking charge in Count Fifteen of the indictment. He again

relies upon the above-quoted statements of the prosecutor at the sentencing hearing and the

statement in the pre-sentence investigation report indicating that Lee broke into the Cauley

safe.

{¶ 33} The plea hearing transcript establishes that the trial court complied with

Crim.R. 11 in ascertaining that Clark was making his plea knowingly, voluntarily and

intelligently. Clark did not object, or move to vacate the plea at any time prior to appeal. Nor

did he make any protestations of innocence other than a comment in the pre-sentence

investigation report that Lee had told him that Lee had broken into the Cauley safe. We

presume that the trial court was aware of this statement at the time of sentencing, since the

trial court indicated that it had reviewed the pre-sentence investigation report.

{¶ 34} Thus, the question is whether the trial court, based upon the statement in the

pre-sentence investigation report, should have vacated Clark’s plea of guilty to the

Safecracking charge sua sponte, in the absence of a motion seeking to vacate. The Eighth

District Court of Appeals has addressed this issue in State v. Millhouse, 8th Dist. Cuyahoga

No. 79910,

, ¶ 27, stating:

Our review of the Rules of Criminal Procedure reveals no provisions

which would suggest that a trial court should sua sponte vacate a guilty plea

once it has been accepted; rather, it is Crim.R. 32.1 which provides for the 14

withdrawal of guilty pleas upon proper motion. Here, because no such motion

had been presented to the trial court at the time of sentencing, we are unable to

find error in this regard. Further, had the court sua sponte vacated his pleas at

sentencing as [the defendant] now urges, he could have easily claimed that the

trial court denied him the benefit of his bargain and then challenged on appeal

that uninvited judicial action. See also, State v. Heslop, 7th Dist. Belmont No.

11-BE-19,

.

{¶ 35} We agree. In light of the lack of a motion to vacate, and the fact that Clark’s

plea was knowingly, voluntarily and intelligently made, and that at no time during the plea

hearing did Clark or his counsel protest innocence regarding this charge, we cannot say that

the trial court erred by failing to sua sponte vacate the plea of guilty to the charge of

Safecracking. Accordingly, Clark’s Third Assignment of Error is overruled.

V. The Record Fails to Establish Clark’s Claim

of Ineffective Assistance of Counsel

{¶ 36} Clark’s Fourth Assignment of Error states:

JORDAN CLARK WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL.

{¶ 37} Clark contends that his counsel was ineffective because he permitted Clark to

enter a guilty plea to, and be sentenced on, the charge of Safecracking despite his claim that he

did not commit the offense.

{¶ 38} A claim of ineffective assistance of trial counsel requires both a showing that 15

trial counsel's representation fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result. Strickland v. Washington,

,

,

(1984). A reviewing court “must indulge in a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance.”

. The prejudice prong requires a finding that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different, with a

reasonable probability being “a probability sufficient to undermine confidence in the

outcome.”

. See also State v. Bradley,

,

(1989).

{¶ 39} In support of this argument, Clark again relies upon the statements made by

the prosecutor at the sentencing hearing, quoted in Part III, above, as well as a statement in the

pre-sentence investigation report. Again, the prosecutor merely commented that Clark did

not burglarize the Cauley home, and that he was charged only with Safecracking with regard

to Cauley. This is not inconsistent with Clark’s guilt on that charge.

{¶ 40} The pre-sentence investigation report does indicate that Clark informed the

author of the report that Lee had “told him that he broke into the safe.” However, without

more, we cannot say that trial counsel was ineffective. Clark and counsel may have discussed

the matter and decided that it was best to accept the plea agreement as offered. Or Clark may

have informed counsel that the statement in the report was inaccurate. There is no indication

in this record that counsel was not aware of the statement or that counsel failed to exercise

sound discretion regarding the plea to this charge. Therefore, we have no basis for finding

ineffective assistance of counsel.

{¶ 41} Clark’s Fourth Assignment of Error is overruled. 16

VI. Conclusion

{¶ 42} All of Clark’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

.............

DONOVAN and HALL, JJ., concur.

Copies mailed to:

Kevin S. Talebi Robert Alan Brenner Hon. Roger B. Wilson