[Cite as State v. Reeves,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100560

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DONALD R. REEVES DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-571787

BEFORE: McCormack, J., Kilbane, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: August 14, 2014 ATTORNEYS FOR APPELLANT

Robert Tobik Cuyahoga County Public Defender

By: Jeffrey Gamso Assistant Public Defender 310 Lakeside Ave., Suite 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Mary Weston Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Appellant, Donald R. Reeves, appeals from the judgment of the trial court

that accepted his plea of guilty to felonious assault, compelling prostitution, and two

counts of attempted felonious assault and sentenced him to 17 years of incarceration.

After careful review of the record, we affirm the decision of the trial court.

Procedural History

{¶2} On February 25, 2013, Reeves was indicted on 20 counts. Counts 1

through 9 contained charges of rape, felonious assault, compelling prostitution,

kidnapping, trafficking in persons, corrupting another with drugs, and intimidation of a

crime victim or witness pertaining to the time period of January 22, 2013, to February 7,

2013. Counts 10 through 18 charged the same offenses that allegedly occurred from

February 9, 2013, to February 13, 2013. The final two counts, felonious assault and

possessing criminal tools, pertained to acts that allegedly occurred on February 13, 2013.

{¶3} On July 22, 2013, Reeves withdrew his previously entered pleas of not

guilty and pleaded guilty to the following: Count 2, felonious assault in violation of R.C.

2903.11(B)(1), which is a felony of the second degree and includes a maximum possible

penalty of eight years in prison; Count 3, compelling prostitution in violation of R.C.

2907.21(A)(1), which is a felony of the third degree and includes a maximum possible

penalty of 36 months in prison; amended Count 17, attempted corrupting another with

drugs in violation of R.C. 2925.02(A)(2), which is a felony of the third degree and

includes a maximum possible penalty of 36 months in prison; and amended Count 19, attempted felonious assault in violation of R.C. 2903.11(A)(1), which is a felony of the

third degree and also includes a maximum possible penalty of 36 months in prison.

Count 3 is a tier two sex offense that includes certain registration requirements. The trial

court accepted Reeves’s pleas and found him guilty. In exchange for the plea, the

remaining Counts 1, 4 through 16, 18, and 20, were nolled. Without the plea agreement,

Reeves could have received up to 127 years incarceration.

{¶4} On September 25, 2013, the trial court held a sentencing hearing, during

which the court advised defense counsel that a presentence investigation report (“PSI”)

had been ordered and provided defense counsel an opportunity to review the report.

Counsel declined, indicating that she had reviewed the report and was satisfied with its

contents. The court then heard testimony from the state, the victim, Detective Joe

DiGregorio, defense counsel, and Reeves.

{¶5} Thereafter, the court noted Reeves’s lengthy criminal history, beginning in

1976 with grand theft, receiving stolen property, and possessing criminal tools, and

continuing to the present matter. It made findings with respect to the seriousness of the

crime and the likelihood of recidivism. The court found Reeves’s behavior to be the

worst form of the offense, and it sentenced him to the maximum of eight years

incarceration on Count 2 and the maximum of 36 months incarceration on each of Counts

3, 17, and 19, to be served consecutively, for an aggregate sentence of 17 years.

Assignments of Error I. The trial court committed error when it did not, at the sentencing hearing, inquire whether Appellant’s plea to felonious assault in violation of R.C. 2903.11(B)(1) was in fact knowing, intelligent, and voluntary.

II. Appellant was denied his right to a fair sentencing proceeding and to be

sentenced only on facts that were either admitted or proved beyond a

reasonable doubt when the trial court imposed maximum consecutive

sentences based at least in part on information regarding alleged offenses as

to which Appellant was not convicted and which were, in fact, dismissed as

part of his plea agreement all in violation of his rights under the Sixth and

Fourteenth Amendments, Article I, Section 10 of the Ohio Constitution, and

Santobello v. New York.

The Guilty Plea

{¶6} In his first assignment of error, Reeves contends that the trial court erred

when it failed to make a Crim.R. 11 inquiry at his sentencing after Reeves made a

statement alluding to his innocence of the felonious assault charge contained in Count 2

of the indictment.

{¶7} Reeves pleaded guilty to Count 2, which charged felonious assault in

violation of R.C. 2903.11(B)(1). That section defines felonious assault as follows:

No person, with knowledge that the person has tested positive as a carrier of

a virus that causes acquired immunodeficiency syndrome, shall knowingly *

* * [e]ngage in sexual conduct with another person without disclosing that

knowledge to the other person prior to engaging in the sexual conduct. R.C. 2903.11(B)(1).

{¶8} When the court provided Reeves the opportunity to speak before sentencing,

Reeves stated as follows:

I would like to say to the court that, yes, I did have sex with [victim] and we

did use condoms each time. It was twice. I do it for 21 days and I thought

she fully understood because she was giving me my HIV pills every

morning, making sure that I took them that she had all of the opportunity to

wear the condoms.

{¶9} Reeves did not move to withdraw his guilty plea under Crim.R. 32.1 or claim

that his guilty plea was not made knowingly, intelligently, and voluntarily. Rather, he

argues now on appeal that his statement at sentencing imposed upon the trial court a duty

to further inquire whether he “was actually denying guilt of the offense” because Reeves,

by his statement, raised the issue of whether his plea was knowing, intelligent, and

voluntary. We find no merit to this argument.

{¶10} Crim.R. 11(C) governs the process by which a trial court must inform a

defendant of certain constitutional and nonconstitutional rights before accepting a felony

plea of guilty or no contest. The underlying purpose of Crim.R. 11(C) is to convey

certain information to a defendant so that he or she can make a voluntary and intelligent

decision regarding whether to plead guilty. State v. Schmick, 8th Dist. Cuyahoga No.

95210,

. {¶11} To ensure that a defendant enters a plea knowingly, voluntarily, and

intelligently, a trial court must engage in an oral dialogue with the defendant in

accordance with Crim.R. 11(C)(2). State v. Engle,

,

(1996). Crim.R. 11(C)(2) requires that a trial court determine from a colloquy with

the defendant whether the defendant understands (1) the nature of the charge and

maximum penalty, (2) the effect of the guilty plea, and (3) the constitutional rights waived

by a guilty plea.

{¶12} In determining whether a defendant is making a plea with an understanding

of the nature of the charge, a trial court has no obligation to advise the defendant of the

elements of the crime or to specifically ask whether he or she understands the charge,

provided the totality of the circumstances support the trial court’s determination that the

defendant understands the charge. State v. Minifee, 8th Dist. Cuyahoga No. 99202,

. In fact, “[w]here a defendant indicates that he understands the

nature of the charge, in the absence of evidence to the contrary or anything in the record

that indicates confusion, it is typically presumed that the defendant actually understood

the nature of the charge against him.” State v. Wangul, 8th Dist. Cuyahoga No. 84698,

. And where a defendant enters a guilty plea without asserting

innocence, it is presumed that the defendant understands that he or she has admitted guilt.

State v. Griggs,

,

,

, ¶ 19.

{¶13} This court has repeatedly stated that a defendant’s protestations of

innocence, however, are insufficient grounds for vacating a plea that was voluntarily, knowingly, and intelligently entered. State v. Barrett, 8th Dist. Cuyahoga No. 100047,

; Minifee at ¶ 27; State v. Bloom, 8th Dist. Cuyahoga No. 97535,

; State v. Abdelhag, 8th Dist. Cuyahoga No. 71136,

, *10 (July 31, 1997). Moreover, when a defendant makes claims of

innocence after a guilty plea has been accepted, a trial court has no duty to inquire into a

defendant’s reasons for pleading guilty.1 See State v. Auble, 8th Dist. Cuyahoga No.

76709,

, *8 (July 27, 2000) (finding that the defendant’s

protestation of innocence at the sentencing hearing did not necessitate the trial court’s

inquiring whether the defendant wished to withdraw his guilty plea at that moment); State

v. Cutlip, 8th Dist. Cuyahoga No. 72419,

, *4 (June 18,

1998) (where the defendant made claims of innocence after the plea hearing, did not

object to the factual basis of the charge, and never moved to withdraw his plea, the trial

court did not err in accepting the guilty plea); State v. Darks, 10th Dist. Franklin No.

05AP-982,

(because the defendant did not assert his innocence

A guilty plea that is made contemporaneously with claims of innocence, known as an 1

Alford plea, can only be accepted once the trial court has inquired into the factual basis surrounding the charges in order to determine whether the defendant was making an intelligent and voluntary guilty plea. State v. Corbett, 8th Dist. Cuyahoga No. 99649,

, citing North Carolina v. Alford,

,

,

(1970). Alford does not apply, however, where claims of innocence are made after the plea. Id. at ¶ 7, citing State v. Cutlip, 8th Dist. Cuyahoga No. 72419,

, *4 (June 18, 1998). Reeves concedes that he did not enter an Alford plea. until after he entered a guilty plea and the trial court complied with Crim.R. 11 and

determined the defendant entered his guilty plea knowingly and voluntarily, the trial court

did not err in accepting his guilty plea after he asserted his innocence); State v. Gales,

,

(7th Dist. 1999). The trial court also has no duty to

inform a defendant about the ability to file a motion to withdraw a plea under Crim.R.

32.1.

{¶14} Here, the record indicates that trial court fully complied with Crim.R. 11.

Prior to accepting Reeves’s guilty plea, the trial court held a hearing and engaged in a

colloquy regarding Reeves’s understanding of the nature of the charges, the potential

penalties, the consequences of the plea agreement, and his constitutional rights. The

court ensured that Reeves was not under the influence of alcohol or drugs and that Reeves

was satisfied with his counsel’s representation. The court then advised Reeves of the

charges, including the maximum possible penalty of each offense to which he pleaded

guilty, as well as the potential maximum sentence of all the charges had he not entered

into a plea agreement. The court also advised Reeves that the offenses were not allied

offenses. Reeves indicated that he understood the court’s explanation.

{¶15} Thereafter, the trial court advised Reeves of his constitutional rights,

including the right to representation, a jury trial, the state proving its case beyond a

reasonable doubt, confrontation, compulsory process, and the right to remain silent.

Finally, the court advised Reeves that a plea of guilty would constitute a complete

admission of the truth of the charges and that by pleading guilty, he waived the rights as explained to him. Reeves answered that he understood the court’s advisement. He

entered guilty pleas to the four counts, and the court found that Reeves made a knowing,

intelligent, and voluntary decision to plead. Reeves’s counsel also provided that Reeves

understood the charges and the potential penalties and stated that she believed the trial

court had fully complied with Crim.R. 11 and Reeves’s plea was entered knowingly,

voluntarily, and intelligently.

{¶16} The record is devoid of any indication of confusion, hesitation, or

protestations of innocence by Reeves during the plea hearing.

{¶17} Based upon the above, we find that Reeves did, in fact, knowingly,

voluntarily, and intelligently enter a guilty plea to the charge of felonious assault in

violation of R.C. 2903.11(B)(1), as well as the other three charges. Moreover, Reeves

did not make any claim of innocence until his sentencing, approximately two months after

the plea hearing; he never objected to the factual basis of the charges; and he never

moved to withdraw his guilty plea. The trial court was therefore not obligated to inquire

further into Reeves’s guilty plea.

{¶18} Reeves’s first assignment of error is overruled.

The Sentencing

{¶19} In his second assignment of error, Reeves contends that the trial court

imposed a maximum sentence based upon consideration of dismissed charges in violation

of his constitutional rights to a fair sentencing proceeding. Specifically, Reeves claims

that the trial court erred when it heard statements from the victim, the prosecutor, and the investigating detective concerning the dismissed charges of rape, kidnapping,

intimidation of a witness, and human trafficking, and it considered such statements when

it imposed the 17-year sentence.

{¶20} At the sentencing hearing, the prosecutor provided the trial court with

background information and pressed upon the seriousness of Reeves’s actions in preying

upon the vulnerable victim, who was a heroin addict. The prosecutor advised the court

about Reeves’s course of conduct, which included intimidation, physical abuse, threats to

her life and the life of her family, drugs, and locks on the bedroom doors. She also stated

that Reeves would have sex with the victim without her consent when he became angry

with her. The prosecutor indicated that she had other witnesses who would have testified

at trial concerning the kidnapping charges. She submitted photographs purportedly of

the victim’s injuries. The prosecutor informed the court that the case was originally

investigated as a human trafficking case and that is why Detective DiGregorio, a detective

with the Federal Bureau of Investigation task force, was involved. The prosecutor

explained to the court that the human trafficking charges in Reeves’s case were dismissed

as part of his plea agreement.

{¶21} Detective DiGregorio advised the court of the “nightmare situation” in

Reeves’s home and stated that “this is one of the worst crimes that I have seen against a

human being.” He asked the court to sentence Reeves “appropriately for his crimes that

he committed.” {¶22} The trial court also provided the victim an opportunity to speak. The victim

told the court that Reeves “knew he was, in fact, HIV positive when he continuously

raped and performed oral sex on me without protection.” She also stated that every

morning she was “locked in [Reeves’s] room.” Finally, the victim described some of the

physical abuse Reeves allegedly inflicted upon her, and she explained that she was afraid

of Reeves.

{¶23} Reeves’s counsel spoke on Reeves’s behalf, refuting the various allegations

made by the prosecutor and the victim, and offering contradictory evidence of the

charges. Reeves provided his own statement to the court, claiming that he thought the

victim “fully understood” that he was HIV positive, ensuring that he take his medication

daily. Reeves also denied threatening or harming the victim, with the exception of

“kicking at her.”

{¶24} Prior to imposing sentence, the trial court stated that the purposes and

principles of felony sentencing are to protect the public and punish the offender. The

court then independently determined that Reeves’s crimes were not allied offenses; it

explained to Reeves the sex offense registration duties necessitated by Count 3,

compelling prostitution; it reviewed Reeves’s extensive criminal history that began in

1976 and continued to the present matter; and it made the requisite seriousness and

recidivism findings.

{¶25} In addressing the seriousness factors, the court stated as follows:

[T]he victim in this matter suffered serious physical and psychological harm, that the injury was exacerbated by the victim’s physical condition, given the fact that she was a strung-out heroin addict, as well as her young age, [and] the defendant’s relationship with the victim facilitated this offense. The court does not find that any of the less serious factors in this matter apply.

{¶26} In addressing the likelihood of recidivism, the court found as follows:

[Reeves] does have a history of criminal convictions and * * * he has not responded favorably to sanctions previously imposed by the court, [in] Ohio as well as [in] California, and the court finds that there is really no genuine remorse that is coming from the defendant with regard[s] to his allocution. The court finds that the less-likely factors with regard to recidivism do not apply in this matter.

{¶27} The trial court then found Reeves’s behavior to be the worst form of the

offense and sentenced him to the maximum prison term on each count, to be served

consecutively, for an aggregate of 17 years incarceration.

{¶28} When sentencing a defendant, the trial court must consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set

forth in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,

. It may consider “any factors that are relevant to achieve the purposes and principles

of sentencing and any factors that are relevant to determine the seriousness of the

offender’s conduct and whether the offender is likely to commit future crimes.” State v.

Lewis, 8th Dist. Cuyahoga No. 99395,

; R.C. 2929.11 and 2929.12.

Providing that the court considered the sentencing purposes in R.C. 2929.11 and the

guidelines contained in R.C. 2929.12, it has full discretion to impose any term of

imprisonment within the statutory range. Hodges. {¶29} At a sentencing hearing, the offender, the prosecuting attorney, the victim or

the victim’s representative, and any other person with the court’s approval may present

information relevant to the imposition of the sentence in a case. R.C. 2929.19(A).

Before imposing the sentence, the trial court must consider the information presented by

such persons, along with the record and any PSI or victim impact statement. R.C.

2929.19(B).

{¶30} The trial court may not impose a sentence based upon a “‘crime neither

charged nor proven.’” State v. Dari, 8th Dist. Cuyahoga No. 99367,

, quoting State v. Henley, 8th Dist. Cuyahoga No. 74305,

(Oct. 29, 1998). Nor may a court impose a greater sentence upon a defendant based

upon the court’s belief that the defendant committed a more serious crime than the

charges for which he was convicted. State v. Peal, 8th Dist. Cuyahoga No. 97644,

, citing State v. Smith, 8th Dist. Cuyahoga No. 76919,

, *7 (Aug. 3, 2000); Cleveland Hts. v. Seastead, 8th Dist. Cuyahoga No.

68875,

(Oct. 12, 1995).

{¶31} However, the trial court is permitted to consider the original charge when

sentencing. Peal at ¶ 18. When the defendant’s convictions result from a plea

agreement, that agreement does not preclude the trial court’s consideration of the

underlying facts of the case in determining the appropriate sentence to impose. State v.

Frankos, 8th Dist. Cuyahoga No. 78072,

, *7 (Aug. 23,

2001); State v. Clayton, 8th Dist. Cuyahoga No. 99700,

. “‘[T]he seriousness of the offense will generally be based upon the judge’s perception of the real

facts of what occurred, and the plea bargained offense will simply set a ceiling on what

the judge can impose.’” (Footnotes and citations omitted.) Frankos at *6, quoting

Griffin & Katz, Ohio Felony Sentencing Law, at 450-451 (2000 Ed.).

{¶32} Additionally, the court may consider prior arrests, prior unindicted acts, and

not guilty verdicts before imposing a sentence. See Corbett, 8th Dist. Cuyahoga No.

99649, 2013-Ohio 4478, at ¶ 24 (consideration in sentencing of unindicted acts and not

guilty verdicts are proper when they are not the sole basis for the sentence); Lewis, 8th

Dist. Cuyahoga No. 99395,

(just as the trial court may consider

prior arrests, it may also consider prior uncharged acts in sentencing). In finding it

well-established that a sentencing court may weigh factors such as arrests for other

crimes, this court concluded that

“the function of the sentencing court is to acquire a thorough grasp of the

character and history of the defendant before it. The court’s consideration

ought to encompass negative as well as favorable data. Few things can be so

relevant as other criminal activity of the defendant * * *.”

State v. Hinton, 8th Dist. Cuyahoga No. 84582,

, quoting United

States v. Doyle,

(2d Cir. 1965).

{¶33} At the sentencing hearing in this case, the trial court relied on what each

party placed on the record, including the testimony of the victim, the initial investigating

detective, and that of the defendant himself, as well as the PSI, the facts of the case, and Reeves’s prior criminal history. The court also considered the principles and purposes of

felony sentencing and other relevant sentencing factors under R.C. 2929.11 and 2929.12,

including the fact that Reeves used his relationship with a vulnerable victim to facilitate

the offense, he has expressed no remorse, and he has not responded favorably to

court-imposed sanctions in the past. All of this information was relevant and proper for

the court’s consideration during sentencing in order to understand Reeves’s character and

history. See

{¶34} Further, Reeves’s convictions resulted from a plea agreement. Because

there was no agreement by the parties that the trial court should not consider the

dismissed charges, and because trial courts routinely consider these matters in sentencing,

the court’s consideration of the underlying facts in this case was proper. In receiving 17

years incarceration on the four counts to which he pleaded guilty as part of the plea

agreement, rather than the possible 127 years incarceration without the plea agreement,

Reeves received the benefit of the bargain. See Frankos, 8th Dist. Cuyahoga No. 78072,

, at *7.

{¶35} Finally, there is no indication in the record that the trial court’s sentence was

reflective of any improper sentencing factors. There are no statements clearly indicating

that the dismissed charges were the sole basis for the sentence, and Reeves’s sentence

was within the statutory parameters.

{¶36} In light of the above, we find that the record supports the conclusion that the

trial court considered the relevant sentencing factors before imposing sentence, and the sentence was not solely based on unproven conduct. The sentence is therefore not

contrary to law. See Clayton, 8th Dist. Cuyahoga No. 99700,

.

{¶37} Reeves’s second assignment of error is overruled.

{¶38} Judgment affirmed.

It is ordered that appellee recover of appellant 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. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR