[Cite as State v. Kibble,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103822

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RODNEY KIBBLE DEFENDANT-APPELLANT

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

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595318-D

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

RELEASED AND JOURNALIZED: January 5, 2017 ATTORNEY FOR APPELLANT

Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor BY: Ryan J. Bokoch Yasmine M. Hasan Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Rodney Kibble, appeals from dozens of convictions that resulted

from a crime spree he engaged in with several others. He now claims that his 30-year

sentence is contrary to law, the indictment is defective, and the amount of restitution

ordered is improper. After a thorough review of the record and law, this court affirms in

part, vacates in part, and remands for a nunc pro tunc entry reflecting that Count 65

merged at sentencing with Count 64 and removing the sentence imposed on Count 65.

I. Factual and Procedural History

{¶2} Appellant left prison in August 2014. On September 29, 2014, he

burglarized a home and stole an expensive electronic device. 1 Appellant, along with

several others, also conducted a string of robberies that began on March 23, 2015.

Appellant’s crime spree included 18 armed robberies of various businesses including

Verizon Wireless, McDonald’s, Subway, Auto Zone, Game Stop, United Dairy Farmers,

7-Eleven, and others.

{¶3} Appellant was apprehended and charged in Cuyahoga C.P. No

CR-15-595318-D, along with other individuals, in a 105-count indictment with numerous

counts of aggravated robbery, kidnapping, having weapons under disability, possessing

criminal tools, and one count of engaging in a pattern of corrupt activity (“RICO”).

After several pretrials, appellant agreed to accept a plea deal offered by the state. On

1 The charges stemming from this case, Cuyahoga C.P. No. CR-15-594053-A, are the subject of State v. Kibble, 8th Dist. Cuyahoga No. 104173, a companion case to this appeal. September 16, 2015, he entered guilty pleas to 14 counts of aggravated robbery, 29 counts

of kidnapping, 3 counts of having weapons while under disability, 1 count of receiving

stolen property, 1 count of improperly handling a firearm in a motor vehicle, 1 count of

carrying a concealed weapon, and 1 count of possession of criminal tools. Many counts

carried one- and three-year firearm specifications. The trial court accepted appellant’s

guilty pleas and set the matter for sentencing.

{¶4} On October 15, 2015, after the court addressed the merger of allied offenses,

appellant was sentenced to an aggregate prison term of 30 years. The court ordered two,

three-year firearm specifications sentences to be served prior to and consecutive to the

other sentences imposed. For each count of aggravated robbery and kidnapping, the

court imposed an eight-year prison sentence. All of those counts were ordered to be

served concurrent with each other and the other sentences imposed, except for three

sentences for aggravated robbery that were ordered consecutive. The sentences for the

other offenses ranged from 12 months to 3 years, all being served concurrent to each

other. The court also ordered appellant to pay restitution to various businesses and

individuals.

{¶5} Appellant then filed the instant appeal assigning three errors for review:

I. The trial court erred by imposing consecutive sentences that are contrary to law and not supported by the record.

II. Appellant’s convictions on Counts 9, 10, 11, 12, 13, 14, 15, 16, 26, and 27 are void because the indictment did not adequately identify the alleged victims in violation of appellant’s constitutional rights to due process, his protections against double jeopardy and his rights to confront his accusers. III. The trial court erred by ordering appellant to pay restitution amounts to

entities and individuals that were unrelated to his convictions.

II. Law and Analysis

A. Consecutive Sentences

{¶6} Appellant claims that his sentence is contrary to law and not supported by the

record.

{¶7} Appellate sentencing review is guided by R.C. 2953.08. State v. Marcum,

,

,

. R.C. 2953.08(A)(4) allows a

criminal defendant to appeal a sentence that includes consecutive service. In order to

impose consecutive sentences, the trial court, where required, must make findings set

forth in R.C. 2929.14(C)(4) and incorporate those findings into the journal entry of

sentence. State v. Bonnell,

,

,

.

R.C. 2929.14(C)(4) requires the court to find that consecutive sentences are (1) necessary

to protect the public from future crime or to punish the offender, (2) are not

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

offender poses to the public, and one 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 postrelease 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 the offender.

{¶8} This court will affirm the sentence imposed unless the record clearly and

convincingly demonstrates that the trial court’s sentence is contrary to law. Marcum at

paragraph two of the syllabus. 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,

,

,

, overruled on other

grounds, in Marcum.

{¶9} When setting forth the consecutive sentencing factors, the trial court stated,

I’m [going to] find a course of multiple prison terms are imposed, or if the offender has convictions for multiple offenses, the [c]ourt may require the offender to serve the prison terms consecutively, and in this case that is what I’m doing.

I’m doing that to protect the public from future crime and to punish this offender. Consecutive sentences are not disproportionate to the seriousness of this offender’s conduct and to the danger that this offender poses to the public.

In addition, this offender committed one or more multiple offenses while this defendant was under a sanction or was under post-release control for a prior offense.

Additionally, at least two of these multiple offenses were committed as part of one or more courses of conduct, and that the harm that was 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 this offender’s conduct.

Additionally, this defendant also has a history of criminal conduct which demonstrates that consecutive sentences are necessary to both protect the public from future crime by this offender. I’m [going to] note for the record that this defendant committed eighteen separate aggravated robberies over the course of a month; additionally, committed a separate offense of burglary.

All of these offenses were caught on video, and in the burglary case, the defendant’s fingerprints were found at the scene of the crime. I have never seen, as the [c]ourt or a judge, eighteen separate first degree felony robberies with brandished firearms.

***

Finally, these eighteen aggravated robberies constitute a course of

conduct, and pursuant to that, the defendant will serve consecutive

sentences as it relates to this offense.

{¶10} The trial court made all the required findings and more. Appellant does not

point to anything in the record that clearly and convincingly establishes that the court

erred in making these findings. Apparently, appellant feels that one who commits over a

dozen armed robberies should be sentenced the same as someone who commits a single

one. The Ohio Legislature has a different view. R.C. 2929.14(C)(4) allows a trial court

to order consecutive service of sentences for one who engaged in a pattern of conduct

such as this. In fact, based on the record of this case and appellant’s criminal history, the

court made every possible finding under R.C. 2929.14(C)(4). Therefore, appellant’s sentence is not contrary to law in this respect.

{¶11} Appellant claims that the court merely recited the statutory language without

any exposition and that is insufficient to justify consecutive sentences. That is not what

the court did. The court went through appellant’s lengthy criminal history on the record,

the court explained that this was the most aggravated robberies committed by a single

group it had ever encountered, and noted that firearms were brandished in each of the

robberies. The trial court applied the facts of this case to the factors in R.C.

2929.14(C)(4) on the record.

{¶12} Appellant also complains that he only pled guilty to seven distinct robberies,

but the trial court indicated that there were 18 robberies. Sentencing is designed to be a

holistic endeavor where the court may consider all the surrounding factors in a given case

to arrive at an appropriate punishment that protects the public and rehabilitates the

offender. Therefore, “a sentencing court may consider a criminal charge and supporting

facts that are dismissed under a plea agreement.” State v. Bowser,

,

,

(2d Dist.). “[W]hen the defendant’s convictions

result from a plea bargain, the plea bargain ‘does not preclude the trial court’s

consideration of the underlying facts’ in determining the appropriate sentence to impose.”

State v. Clayton, 8th Dist. Cuyahoga No. 99700,

, quoting State v.

Frankos, 8th Dist. Cuyahoga No. 78072,

, 7 (Aug. 23,

2001).

{¶13} Here, the court considered all the robberies with which appellant was charged and that were committed by a coordinated group of individuals when sentencing

appellant. Pursuant to the RICO charge that was dismissed as part of the plea agreement,

the court recognized that appellant was the leader of this criminal enterprise and punished

him accordingly. The court properly considered the surrounding facts and circumstances

of this case. Therefore, appellant’s sentence is not contrary to law in this respect.

{¶14} Appellant also makes arguments related to findings under R.C. 2929.11 and

2929.12, including the fact that the court did not make any findings as to proportionality

under R.C. 2929.12. However, the court is not required to set forth findings regarding

these sentencing provisions. State v. Switzer, 8th Dist. Cuyahoga No. 102175,

, ¶ 8. Further, our limited scope of review does not allow for a review

of the trial court’s analysis under R.C. 2929.11 and 2929.12 to determine whether the

court abused its discretion in analyzing those provisions.

The court clearly

considered these factors in crafting appellant’s sentence and no specific finding regarding

proportionality is required.

{¶15} Appellant further argues that a review of factors under R.C. 2929.12 clearly

indicates concurrent sentences should be imposed. The factors in R.C. 2929.12 do not

speak to the consecutive nature of sentences. The trial court is guided by R.C.

2929.14(C)(4) in determining whether to impose consecutive sentences, and here the

court made those findings on the record and incorporated its consideration of those

factors into the sentencing entry.

{¶16} Appellant also points out that his sentence is contrary to law because the journal entry of sentence includes a sentence on a count for which no sentence was

imposed at the hearing because the count merged with a different count.

{¶17} At sentencing, the court found that Count 65, the kidnapping relating to a

victim of the Dairy Mart robbery would merge with the aggravated robbery of the Dairy

Mart, Count 64. The state elected for the court to impose sentence on the aggravated

robbery count. Thereafter, the court did not impose a sentence on Count 65. However,

the journal entry of sentence includes a sentence on Count 65. Therefore, the court must

correct this error with a nunc pro tunc entry removing the sentence for Count 65 from the

journal entry of sentence.

{¶18} Appellant’s first assignment of error is overruled, but this court remands the

case to the trial court for the issuance of a nunc pro tunc entry.

B. Defective Indictment

{¶19} Appellant next argues that his rights to due process have been violated by a

defective indictment that casts doubt on the protections afforded by the United States

Constitution’s Double Jeopardy Clause.

{¶20} In order to comply with principles of due process, an indictment must be

sufficiently definite to apprise defendants of the criminal conduct with which they are

charged and be sufficiently definite to allow defendants to know with acquittal or

conviction, what charges may no longer be brought in the future. Russell v. United

States,

,

,

(1962). However, pleading

guilty waives many errors, including a defect in the indictment: “[A] guilty plea represents a break in the chain of events which has

preceded it in the criminal process. When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he

is charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the

guilty plea. He may only attack the voluntary and intelligent character of the

guilty plea * * *.”

State v. Spates,

,

(1992), quoting Tollett v.

Henderson,

,

,

(1973). Stated more

recently, “‘a guilty plea * * * renders irrelevant those constitutional violations not

logically inconsistent with the valid establishment of factual guilt and which do not stand

in the way of conviction if factual guilt is validly established.’” State v. Fitzpatrick,

,

,

, ¶ 78, quoting Menna v. New York,

,

,

(1975), fn. 2. See also State v. Fitzpatrick,

11th Dist. Lake No. 2009-L-030,

, ¶ 27, citing State v. Banks, 11th Dist.

Lake No. 2008-L-177,

, ¶ 21 (“[W]hen a defendant enters a guilty plea

and thereby admits that he is in fact guilty of the charged offenses, he may not thereafter

raise independent claims relating to the deprivation of constitutional rights that occurred

prior to the entry of the guilty plea.”).

{¶21} Here, appellant does not allege that any defect in the indictment caused his

guilty pleas to be less than voluntary, intelligent, and knowing. Further, he failed to object to any perceived defect in the indictment at the trial court level. Therefore, he has

waived all but plain error. Civ.R. 52(B) provides an avenue for correcting errors that

were not brought to the trial court’s attention. A reviewing court has discretion to

recognize “plain errors or defects affecting substantial rights * * * although they were not

brought to the attention of the court.”

Notice of plain error under Crim.R. 52(B) is

to be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice. State v. Long,

,

(1978), paragraph three of the syllabus. Thus, an alleged error “does not constitute a

plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial

clearly would have been otherwise.”

at paragraph two of the syllabus.

{¶22} The Second District has recognized that “the failure to include the name of

the victim in an indictment is not a basis for dismissing it if the name of the victim is not

an essential element of the charged offense.” State v. Phillips,

,

(2d Dist. 1991). Further, unless an error in the indictment prejudices the

substantial rights of a defendant, the indictment remains valid.

{¶23} Here, the name of each victim is not an element of the offense. Further, the

indictment is sufficiently definite for appellant to understand the nature of the charged

crimes and the victims involved. The indictment, while not including names for each

and every victim, did include names or identifying characteristics for each victim that was

sufficiently definite for appellant to assert the protections of the Fifth Amendment to

prevent any future prosecution for the events for which he has been prosecuted in this case. Therefore, plain error does not exist in this case, and this assigned error is

overruled.

C. Restitution

{¶24} Finally, appellant argues that the court erred when it ordered restitution to

businesses and individuals that were not named victims in the crimes to which he pled

guilty.

{¶25} R.C. 2929.18(A)(1) allows a court to impose an order of restitution to crime

victims as part of a criminal sentence. Generally, restitution is limited to the actual

economic loss suffered by the victim that is the direct and proximate result of the crime

for which a defendant was charged and convicted. State v. Lalain,

,

,

.

{¶26} Appellant did not object to the imposition of restitution below, and therefore

has waived all but plain error. State v. Jackson, 8th Dist. Cuyahoga No. 99059,

.

{¶27} A trial court may order a criminal defendant to pay restitution for

economic losses related to the indicted but dismissed charges under certain

circumstances.

A trial court may order a defendant to pay restitution relating to dismissed

counts where (1) the defendant entered into a plea agreement in which he or

she agreed to plead guilty to some counts contained in the indictment in

exchange for the dismissal of other counts in the indictment, and (2) the defendant agreed, as part of the consideration for the plea agreement, to

provide restitution to the victims for damages caused by his or her conduct

for which criminal charges were dropped under the plea agreement.

State v. Wickline, 3d Dist. Logan No. 8-10-20,

, citing State v.

Strickland, 10th Dist. Franklin No. 08AP-164,

.

{¶28} Therefore, if appellant acknowledged that he would be required to pay

restitution to victims included in the indicted but dismissed charges, the trial court was

within its authority to order the full amount of restitution in this case.

{¶29} The only agreement as to restitution that appears in the record involved

Cuyahoga C.P. No. CR-15-594053-A. Appellant agreed to pay restitution to the victim

in the amount of $1,800. In Cuyahoga C.P. No. CR-15-595318-D, appellant did not

agree to any amount of restitution and restitution was not discussed at the plea hearing

regarding this case. Therefore, restitution is only appropriate to the victims of the crimes

to which appellant pled guilty.

{¶30} At sentencing, the trial court ordered restitution to the following victims:

Verizon Wireless, $10,180; McDonald’s, $900; Game Stop, $1,100; Auto Zone, $200;

Little Caesar’s, $75; Pizza Express, $1,600; Dairy Mart, $2,714; 7-Eleven, $1,700; Value

Star, $4,960; Sun Valley, $1,000; and United Dairy Farmers, $100. Appellant did not

plead guilty to any crime where Value Star, Little Caesar’s, and Pizza Express were the

victims. The RICO count could have been used to impute financial responsibility for

these victims, but the dismissal of the RICO count removes him from financial liability for these counts in the absence of an agreement. Therefore, the trial court’s restitution

order relating to Value Star, Little Caesar’s, and Pizza Express must be vacated. The

remaining restitution orders are valid as appellant was charged and convicted of counts

related to each of the remaining victims.

{¶31} Appellant argues that there is nothing in the record to support the amount of

restitution to Dairy Mart, 7-Eleven, and United Dairy Farmers. However, appellant did

not object to the amounts of restitution imposed. He therefore waived a hearing on the

matter. “A trial court is required to conduct a hearing on restitution only if the offender,

victim, or survivor disputes the amount of restitution ordered.” Lalain,

,

,

. This court does not find any plain error

on this point.

{¶32} Appellant’s third assignment of error is sustained in part.

III. Conclusion

{¶33} The trial court made the necessary findings in order to impose consecutive

sentences. Therefore, appellant’s sentence is not contrary to law. However, the journal

entry of sentence improperly includes a sentence that was not imposed in open court.

Therefore, the trial court must correct the journal entry to reflect that the trial court

merged Count 65 with Count 64 at the sentencing hearing, and a sentence was not

imposed on Count 65. The indictment is not constitutionally defective in this case

because it was sufficiently definite to prohibit future charges that would violate principles

of Double Jeopardy. The trial court’s order of restitution in this case is imperfect because it includes restitution to victims that were not a part of appellant’s convictions

and no agreement appears in the record as to restitution to these victims. Therefore, this

court must vacate the restitution orders to Value Star, Little Caesar’s, and Pizza Express.

{¶34} Judgment affirmed in part, vacated in part, and remanded to the lower court

for correction of the journal entry.

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.

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

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

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