[Cite as State v. Corbett,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99649

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JOSEPH E. CORBETT DEFENDANT-APPELLANT

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

Criminal Appeal from th Cuyahoga County Court of Common Pleas Case No. CR-565891

BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Blackmon, J.

RELEASED AND JOURNALIZED: October 10, 2013 ATTORNEY FOR APPELLANT

Christopher R. Fortunato 13363 Madison Avenue Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: John D. Kirkland Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Joseph E. Corbett, brings the instant appeal claiming the trial court

erred in finding him guilty of attempted failure to notify change of address after his guilty

plea to that charge. Appellant also claims the trial court erred in imposing an 18-month

prison sentence and that counsel was ineffective for failing to object to certain

information discussed at sentencing. After a thorough review of the record and law, we

affirm appellant’s conviction, but remand for a limited resentencing regarding postrelease

control.

I. Factual and Procedural History

{¶2} In 1999, appellant was found guilty of rape of a child under the age of 13.

After his prison sentence was served, he was required to abide by certain registration

requirements; one of which was to notify the Cuyahoga County Sheriff’s Department of

any change of address. Appellant left the emergency mens shelter where he had been

residing and took up residence on an unused portion of city of Cleveland property near an

Animal Protective League facility. Appellant lived in a tent and took care of a few dogs.

Appellant kept in contact with his supervising officer from the parole authority, but he

failed to report this change of address. On May 18, 2012, the change of address was

discovered, and appellant was arrested and indicted on September 21, 2012. {¶3} Appellant was originally charged with failure to provide notice of change of

address in violation of R.C. 2950.05(F)(1), a first-degree felony. However, appellant was

classified under the prior version of the sexual offender registration system where failure

to register was a third-degree felony.1

{¶4} Appellant agreed to plead guilty to attempted failure to provide notice of

change of address in violation of R.C. 2950.05(F)(1), a fourth-degree felony. Much of

the three sentencing hearings that followed the acceptance of appellant’s plea were

focused on finding appellant a suitable community-based correctional facility that would

accept him. Appellant’s counsel was hopeful that a facility in Toledo would accept him

and asked the court to order an evaluation to determine if appellant met the parameters for

this facility. After this evaluation, it was determined that the facility would not take

appellant, and neither would any other community-based correctional facility. The court

discussed appellant’s lengthy criminal history and the rape conviction that caused

appellant to be classified as a sexual offender. The court also discussed an incident

where appellant was indicted for felonious assault, but the charges were dismissed. The

court decried appellant’s current living situation as untenable. The court then imposed

the maximum sentence of 18 months of incarceration followed by five years of

postrelease control.

{¶5} Appellant now appeals assigning three errors:

1 See State v. Howard,

,

,

. I. The trial court erred when it found there was a factual basis under Crim.R. 11 for the crime the appellant pleaded guilty.

II. The appellant failed to receive due process when trial counsel committed ineffective assistance of counsel.

III. The trial court erred when it sentenced appellant to the maximum sentence on a fifth-degree felony that is amenable to community control sanction.

II. Law and Analysis

A. Acceptance of Plea

{¶6} The United States Supreme Court has determined that guilty pleas made

contemporaneously with protestations of innocence should not be accepted unless the trial

court is satisfied that there is a factual basis for the plea. North Carolina v. Alford,

,

,

(1970), fn. 10. “When taking an Alford plea,

the trial court cannot determine whether the accused was making an intelligent and

voluntary guilty plea absent some basic facts surrounding the charge” demonstrating that

the plea cannot seriously be questioned. State v. Jones, 8th Dist. Cuyahoga No. 97674,

.

{¶7} Here, however, what appellant construes as claims of innocence came only

after the court had accepted appellant’s plea, moved on to set a date for sentencing, and

was entertaining arguments going to bond issues. It was then, regarding bond, that

appellant’s attorney made statements about a car accident that caused appellant to be

hospitalized for a significant period of time. Even if these statements did come at the

plea hearing, they do not constitute a claim of innocence. Appellant acknowledged that he was required to notify the sheriff of any change of address and that he was living in a

tent on city property without informing the county sheriff. He was not arrested for

residing in a hospital without notifying the sheriff and did not assert that the accident

prevented him from providing notice. He admitted that he moved out of the facility

registered as his address because people were stealing his belongings and because he had

dogs he kept that were not allowed at the facility. He further admitted to taking up a new

residence without informing the sheriff. This is a clear factual basis for the plea. While

some of these facts did not emerge until the sentencing phase, there was no basis to

question appellant’s plea at the time it was made and no duty to inquire without some

indication during the plea hearing that appellant was claiming innocence. “It is well

settled, * * * that North Carolina v. Alford will not apply if the protestation of innocence

is made after and not contemporaneously with the guilty plea.” State v. Cutlip, 8th Dist.

Cuyahoga No. 72419,

, *4 (June 18, 1998). See also State

v. Parham, 11th Dist. Portage No. 2011-P-0017,

, ¶ 34-35.

{¶8} Therefore, the trial court did not err in accepting appellant’s guilty plea.

Appellant’s first assignment of error is overruled.

B. Ineffective Assistance of Counsel

{¶9} Appellant claims he was denied the constitutionally guaranteed assistance of

counsel. To establish ineffective assistance of counsel, appellant must show that “(1)

counsel’s performance was deficient or unreasonable under the circumstances; and (2) the

deficient performance prejudiced the defense. To warrant reversal, the appellant must show that there is a reasonable probability that, but for counsel’s deficient performance,

the result of the proceeding would have been different.” State v. Jarrells, 8th Dist.

Cuyahoga No. 99329,

, citing Strickland v. Washington,

,

,

(1984).

{¶10} Appellant claims that trial counsel was ineffective for advising him to plead

guilty when there was no indication that he acted recklessly in failing to provide notice of

change of address. This argument is premised on the belief that it was the injury and

hospital stay that resulted in appellant being unable to notify the sheriff about a change of

address. As discussed above, there is no indication that appellant was prevented from

complying with his statutory duties. Appellant admitted he failed to provide notice of

change of address after he left the hospital and his prior registered address to take up

residence on city property for some five months. Therefore, trial counsel was not

ineffective for recommending appellant plead guilty to a fourth-degree felony charge of

attempted failure to notify change of address rather than going to trial.

C. Imposition of a Prison Sentence

{¶11} Finally, appellant claims that the trial court erred when it imposed an

18-month prison sentence.

{¶12} R.C. 2953.08(A)(1) gives a defendant who receives a maximum sentence

the right to appeal such a decision in certain circumstances. In the instant case, this gives

appellant the right to appeal his sentence because it was not a mandatory maximum

sentence pursuant to R.C. Chapter 2950 et seq., and it was “imposed for only one offense.” R.C. 2953.08(A)(1)(a). Therefore, this court “shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court” and

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.

R.C. 2953.08(G)(2).

{¶13} First this court must determine if the court’s findings under R.C. 2929.13(B)

are clearly and convincingly unsupported in the record. R.C. 2953.08(G)(2)(a). See

also State v. Venes, 8th Dist. Cuyahoga No. 98682,

.

{¶14} At the time of sentencing, for a nonviolent fourth-degree felony, a trial court

was required to impose community control when each provision of former R.C.

2929.13(B)(1)(a)(i)-(iii) was satisfied. Former R.C. 2929.13(B)(1)(a) provided in part,

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, the court shall sentence the offender to a community control sanction of at least one year’s duration if all of the following apply:

(i) [t]he offender previously has not been convicted of or pleaded

guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for

which sentence is being imposed.

{¶15} Appellant was previously convicted of felony offenses (rape and gross

sexual imposition) in 1999, for which he was classified as a sexual predator. Also, at the

time of his failure to notify offense, he was under community control supervision for a

felony conviction in 2010. Therefore, under previous R.C. 2929.13(B)(1)(a), the trial

court had discretion to impose a prison sentence for a fourth-degree felony offense.

{¶16} Next, under former R.C. 2929.13(B)(1)(b), the trial court could make any

one of four determinations to impose a prison sentence. These included,

(i) The offender committed the offense while having a firearm on or about the offender’s person or under the offender’s control.

(ii) The offender caused physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by the court.

(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction of at least one year’s duration that is available for persons sentenced by the court.

{¶17} Former R.C. 2929.13(B)(1)(b)(iv) gave the court discretion to impose a

prison sentence if appropriate community control options were unavailable. Here, that is

precisely the case. {¶18} On January 24, 2013, the trial court continued the sentencing hearing to

have appellant evaluated to find appropriate community-based facilities that would accept

him. At the March 7, 2013 sentencing hearing, all sides acknowledged that no facility

would accept him based on his past criminal history and psychological profile.

Therefore, the court could impose a prison sentence on appellant, and the findings

necessary to impose such a sentence for a nonviolent fourth-degree felony offense are

supported in the record.

{¶19} Finally, this court must determine whether the sentence is otherwise contrary

to law. R.C. 2953.08(G)(2)(b). A sentence is not clearly and convincingly contrary to

law where the trial court “considers the purposes and principles of sentencing under R.C.

2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly

applies postrelease control, and sentences a defendant within the permissible statutory

range.” State v. A.H., 8th Dist. Cuyahoga No. 98622,

, citing State

v. Kalish,

,

,

.2

{¶20} There are no longer any specific findings or reasons a court must give in

order to impose maximum sentences. State v. Calliens, 8th Dist. Cuyahoga No. 97034,

; State v. Rose, 12th Dist. Butler No. CA2011-11-214,

(“[T]he trial court is not required to make any findings prior to

2This court has rejected Kalish as a viable framework for felony sentencing review, but until a clearer definition of “contrary to law” is developed, it is informative on this point. imposing a maximum sentence. The prior version of R.C. 2929.14(C) required the trial

court to make certain findings before imposing a maximum term of imprisonment”).

{¶21} Therefore, the court’s only guide in this case is the purposes and principles

of felony sentencing as set forth in R.C. 2929.11 and 2929.12. Those are defined as the

need “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 * * * resources.” R.C.

2929.11(A). R.C. 2929.12(A) sets forth factors to consider, “including the seriousness of

the conduct, the likelihood of recidivism, and ‘any other factors that are relevant to

achieving those purposes and principles of sentencing.’” State v. Jones, 9th Dist. Summit

No. 24469,

, ¶ 39, quoting R.C. 2929.12(A).

{¶22} Here, the trial court indicated it considered the purposes and principles of

sentencing under these statutes. The court addressed appellant’s significant violent

criminal history, his negative behavior while in jail awaiting sentencing as reported by the

jail authority, and previous sanctions that have not had the desired effect of rehabilitation.

In mitigation, the court considered appellant’s regular contact with his supervising

officer, the accident, and his mental illness.

{¶23} The only aspect of the court’s colloquy that can be faulted is the court’s

consideration of criminal conduct for which appellant was charged but never convicted.3

The court stated,

3 The state asserted at sentencing that the trial court should not consider [n]ow, there is also the charge that was brought that we can’t ignore even though the case was dismissed. But here there were facts because of the victim not being able to produce, some type of violent act, whether justified or not, took place, which resulted in a felonious assault, an act in which this individual allegedly used a * * * sword to seriously injure someone, who didn’t show up. Whether that act was defensible, I have no idea, but these are all factors I can’t ignore in deciding what the court’s proper course of action is * * *.”

{¶24} The consideration of criminal conduct for which no criminal conviction has

resulted may constitute error on the part of the trial court in some instances. See State v.

Longo,

,

(8th Dist. 1982). But see State v. Dari,

8th Dist. Cuyahoga No. 99367,

(discussion of the ability of the trial

court to consider facts and dismissed charges in the indictment when imposing a sentence

that resulted from a plea bargain). However, “Ohio law is clear that ‘[u]nindicted acts or

not guilty verdicts can be considered in sentencing without resulting in error when they

are not the sole basis for the sentence.’” State v. Gray, 8th Dist. Cuyahoga No. 91806,

, ¶ 13, quoting State v. Williams, 8th Dist. Cuyahoga No. 79273,

. See also State v. Cooper, 8th Dist. Cuyahoga No. 93308,

, ¶ 15 (“a defendant’s uncharged yet undisputed conduct may be

considered in sentencing without resulting in error when it is not the sole basis for the

sentence”).

this conduct in crafting its sentence. The state also disclosed that the charges against appellant relating to this incident were dismissed because the victim could not be located to testify. {¶25} Here, the record does not indicate that an 18-month prison sentence was

clearly and convincingly contrary to law. The trial court’s consideration of the other

factors, as set forth above, provide an adequate basis to conclude that the sentence

imposed is not solely based on the unproven conduct and therefore not contrary to law.4

{¶26} However, one part of appellant’s sentence is contrary to law. Although not

raised by the parties, the trial court imposed five years of postrelease control sanctions

when the appropriate period is discretionary, up to three years. For fourth-degree felony

offenses not covered by R.C. 2967.28(B), the appropriate period of postrelease control is

discretionary, up to three years. R.C. 2967.28(C). R.C. 2967.28(B)(1) indicates felony

sex offenses are subject to five years of postrelease control, but the statute specifically

defines “felony sex offense” as “a violation of a section contained in Chapter 2907 of the

Revised Code that is a felony.” R.C. 2967.28(A)(3). Appellant was convicted of

attempted failure to notify a change in address under R.C. 2950.05(F)(1). Therefore, the

case must be remanded for the limited purpose of the proper imposition of postrelease

control.

III. Conclusion

{¶27} The trial court was not required to inquire into the circumstances of

appellant’s guilty plea to a charge of attempted failure to notify change of address where

claims of innocence were not made contemporaneously with his plea. Trial counsel was

4 However, the trial court should not feel free to consider such naked allegations in the future. also not constitutionally ineffective for advising appellant to enter a guilty plea because

appellant’s failure to notify the sheriff of his change of address was not the result of a

hospitalization, but was done knowingly when appellant moved from his registered

address to a tent set up on city property. Appellant’s 18-month sentence for attempted

failure to notify change of address is not clearly and convincingly contrary to law.

However, the imposition of five years of postrelease control for a fourth-degree felony is

contrary to law, and the trial court must hold a limited sentencing hearing to correct this

error.

{¶28} Judgment affirmed in part, reversed 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 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.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and PATRICIA A. BLACKMON, J., CONCUR