[Cite as State v. Collier,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108687 v. :

SHARON COLLIER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: May 21, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-626420-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James A. Gutierrez, Assistant Prosecuting Attorney, for appellee.

Flannery│Georgalis, L.L.C., Edward Fadel, and Paul M. Flannery; and Robinson Law Firm, L.L.C., and Emmett E. Robinson, for appellant.

EILEEN T. GALLAGHER, A.J.:

Defendant-appellant, Sharon Collier, appeals from her convictions

and sentence. She raises the following assignments of error for review: 1. The state’s violation of the terms of its plea agreement with Collier constituted plain error.

2. The trial court’s imposition of consecutive sentences should be vacated for failure to comply with R.C. 2929.14(C)(4).

3. The trial court committed plain error by failing to conclude, and counsel was constitutionally ineffective for failing to argue, that aggravated theft and money laundering were allied offenses.

4. Collier’s sentence is not supported by the record.

After careful review of the record and relevant case law, we affirm

Collier’s convictions, but reverse the trial court’s imposition of consecutive

sentences. The matter is remanded for the trial court to consider whether

consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make

all of the required findings on the record and incorporate those findings into its

sentencing journal entry.

I. Procedural and Factual History

In March 2018, Collier and her codefendants were named in a 91-

count indictment in Cuyahoga C.P. No. CR-18-626420-A-D. Collier was charged

with one count of aggravated theft; one count of telecommunications fraud; 32

counts of forgery; and 54 counts of money laundering. The indictment stemmed

from allegations that, over a three-year period of time, Collier made unauthorized

withdrawals from company accounts while working as an office manager for

Taylored Construction Services.

In April 2019, Collier accepted the negotiated terms of a plea

agreement with the state. At the onset of the plea hearing, the state set forth the terms of the proposed plea agreement, expressing that Collier intended to plead

guilty to one count of aggravated theft, seven counts of forgery, and two counts of

money laundering. The remaining counts against Collier would be nolled. The state

further expressed that Collier would be required to pay restitution in the amount of

$210,000. However, “no threats or promises [were] made to [Collier] concerning

any type of sentence.”

Following a Crim.R. 11 colloquy, Collier pleaded guilty to aggravated

theft in violation of R.C. 2913.02(A)(3), as charged in Count 1 of the indictment;

seven counts of forgery in violation of R.C. 2913.21(A)(1), as charged in Counts 6-12

of the indictment; and two counts of money laundering in violation of R.C.

1315.55(A)(1), as charged in Counts 38 and 40 of the indictment. The remaining

counts were nolled. The trial court accepted Collier’s guilty pleas and referred her

to the county probation department for a presentence-investigation report.

In June 2019, the trial court sentenced Collier to 36 months in prison

on the aggravated theft offense, 36 months in prison on each money laundering

offense, and 12 months in prison on each forgery offense. The prison terms imposed

on the forgery offenses were ordered to run concurrently with each other, and

concurrently with the prison term imposed on the aggravated theft offense. The

prison terms imposed on the money laundering offenses were ordered to be served

concurrently to each other, but consecutive to the prison term imposed on the

aggravated theft offense, for a total prison term of 72 months. In addition, the trial

court ordered restitution to the victim in the amount of $210,000. Collier now appeals from her convictions and sentence.

II. Law and Analysis A. Plea Agreement

In her first assignment of error, Collier argues the state breached the

terms of the plea agreement by advocating for a six-year prison term despite its

statement during the plea hearing that it would leave sentencing to the discretion of

the trial court.

This court has recognized that “‘[a] plea bargain itself is contractual

in nature and subject to contract-law standards.’” State v. Butts,

,

(8th Dist. 1996), quoting Baker v. United States,

(6th Cir. 1986). A contract is generally defined as a promise that is actionable

upon breach. Essential elements of a contract include an offer, acceptance,

contractual capacity, consideration, and a manifestation of mutual assent. State v.

Robinson, 8th Dist. Cuyahoga No. 82801,

, citing Perlmuter

Printing Co. v. Strome, Inc.,

(N.D.Ohio 1976). A meeting of

the minds as to the essential terms of the contract is a requirement to enforcing the

contract.

citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus.

Relations,

,

(1991). As such, the terms of a

plea agreement must be explicit. State v. Padilla, 8th Dist. Cuyahoga No. 98187,

, citing United States v. Benchimol,

,

,

(1985). Plea agreements should be construed strictly against the government.

United States v. Fitch,

(6th Cir. 2002). “When a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must be fulfilled.”

Santobello v. New York,

,

,

(1971). “When

an allegation is made that a plea agreement has been broken, the defendant must

merely show that the agreement was not fulfilled.” State v. Legree,

,

(6th Dist. 1988). In the event of a breach, the trial court may

allow the defendant to withdraw his or her plea, or it may order specific performance

of the plea agreement, in which case the defendant shall be resentenced by a

different judge. Santobello,

. The appropriate remedy is left to the

sound discretion of the trial court. Padilla at ¶ 14.

“In order to determine whether a plea agreement has been breached,

courts must examine what the parties reasonably understood at the time the

defendant entered his guilty plea.” State v. Latimore, 8th Dist. Cuyahoga No.

92490,

, ¶ 7. In this case, the record reflects that upon identifying

the counts to which Collier would be pleading guilty under the terms of the plea

agreement, the prosecutor stated as follows:

Judge, there have been no threats or promises made to these defendants concerning this plea. And there have been no threats or promises made to these defendants concerning any type of sentence, Your Honor.

In fact, the sentencing of Ms. Collier we’re leaving to the wise discretion of the Court at the time of sentencing. (Tr. 7.) The court then asked Collier if she wished to accept the terms of the plea

agreement as set forth by the state. Collier responded “yes.” (Tr. 9.)

On appeal, Collier characterizes the prosecutor’s statement as “an

agreement that the government would not make a sentencing recommendation” at

the sentencing hearing. Thus, Collier contends that the state breached the terms of

the plea agreement by arguing at the sentencing hearing that probation “would be

an injustice” and that a six-year prison term was warranted. (Tr. 72.)

In support of her position, Collier relies on the factual circumstances

addressed by the United States Supreme Court in Santobello,

,

,

. In Santobello, the defendant was arrested and charged with

several gambling offenses.

. The defendant subsequently agreed to enter

a guilty plea to a reduced charge in exchange for a promise by the prosecutor that he

would make no sentencing recommendation to the trial judge.

The prosecutor

later recommended to the trial judge that the defendant receive the maximum

penalty and the defendant was sentenced accordingly.

.

On appeal, the Supreme Court vacated the defendant’s guilty plea.

. As discussed above, the court held that due process requires the state to

honor any promise or representation it may make to induce a guilty plea by the

defendant, stating:

The adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

.

After careful consideration, we find the circumstances presented in

Santobello to be distinguishable from the facts of this case. Viewing the disputed

statement in its entirety, it is evident that the prosecutor was informing the court

that Collier was not promised a certain term of imprisonment in exchange for her

plea and, therefore, the terms of the plea agreement did not include a negotiated

agreed-upon sentence. Unlike the facts contemplated in Santobello, the prosecutor

in this case did not make an express promise to forego a sentencing

recommendation. Nor did the prosecutor expressly or implicitly agree “to remain

silent” or otherwise “take no position” during the sentencing hearing. See, e.g., State

v. Ahlers, 6th Dist. Erie No. E-14-005,

. Rather, the

inducement in this case was predicated on the government’s agreement to nolle a

significant number of offenses in exchange for Collier’s guilty pleas. In the absence

of credible information to suggest otherwise, this court will not impute terms or

conditions of a plea agreement that were not clearly negotiated and unambiguously

made part of the record. Thus, we are unable to conclude that the state breached

the terms of the negotiated plea agreement by recommending the imposition of a

six-year prison term during the sentencing hearing.

Moreover, even if this court were to interpret the prosecutor’s

statement as a binding promise, we find no prejudice. On appeal, Collier concedes that there was no objection to the prosecutor’s comments during the sentencing

hearing. Where, as here, a defendant fails to object to the state’s breach of the plea

agreement, he or she forfeits that alleged error, and an appellate court reviews for

plain error only. Puckett v. United States,

,

, L.Ed.2d

266 (2009). Crim.R. 52(B) provides that “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” Plain error will be recognized only where, but for the error, the outcome

of the case would clearly have been different. State v. Sanders,

,

(2001). The Ohio Supreme Court has admonished courts to

notice plain error “with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” State v. Rogers,

,

,

.

In this case, the trial court’s imposition of a six-year prison term was

predicated on its own independent assessment of the record, including

consideration of the relevant sentencing factors, the victim impact statements, the

scope of the financial deprivation, and the information contained in Collier’s

sentencing memoranda and presentence-investigation report. See State v. Namack,

7th Dist. Belmont No. 01 BA 46,

, 15-16 (Sept. 23, 2002)

(“when a prosecutor violates the terms of a plea agreement by attempting to

influence the sentence a trial court imposes upon an offender, an appellate court will

affirm the trial court’s decision imposing the sentence upon that offender if the

record demonstrates the court’s decision is based upon its own review of the record before it.”). While the trial court ultimately imposed the sentence recommended by

the state, there is no clear indication that, but for the prosecutor’s comments during

the sentencing hearing, the trial court would have sentenced Collier differently.

Accordingly, we find Collier has failed to meet her burden of demonstrating that

plain error occurred in this case.

Alternatively, Collier contends that defense counsel rendered

ineffective assistance of counsel by failing to object to the state’s breach of the plea

agreement. In order to establish ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable representation and that he or she was prejudiced by that performance.

State v. Hill, 8th Dist. Cuyahoga No. 106542,

, citing

Strickland v. Washington,

,

,

(1984). Prejudice is established when the defendant demonstrates “a reasonable

probability that but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”

.

In support of her ineffective assistance of counsel claim, Collier

argues that defense counsel’s failure to raise an objection “was unquestionably

deficient performance” that “was undoubtedly prejudicial.” Regarding the prejudice

prong of the Strickland test, Collier contends that she was prejudiced because, “had

trial counsel objected immediately, then the case could have been transferred to a

different trial judge to pronounce the sentence without the taint of the state’s breach and before the onerous six-year sentence was imposed.” In short, Collier suggests

that she would have been provided the remedy afforded under Santobello,

,

,

, had counsel made the trial court aware of the

state’s breach of the plea agreement.

We find no merit to Collier’s ineffective assistance of counsel claim.

As previously determined, the challenged statement did not amount to a binding

promise by the state to forego a sentencing recommendation. Accordingly, we are

unable to conclude that counsel was deficient for failing to object to the prosecutor’s

sentencing recommendation during the sentencing hearing.

Collier’s first assignment of error is overruled.

B. Consecutive Sentences

In her second assignment of error, Collier argues the trial court erred

by imposing consecutive sentences without making the findings mandated by R.C.

2929.14(C)(4). In her fourth assignment of error, Collier argues her consecutive

sentences are “clearly and convincingly unsupported by the record.” We address

these assigned errors together.

We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum,

,

,

, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a

reviewing court may overturn the imposition of consecutive sentences where the

court “clearly and convincingly” finds that (1) “the record does not support the

sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.” The imposition of consecutive sentences is contrary to

law if a trial court fails to make the findings mandated by R.C. 2929.14(C)(4). State

v. Morris,

,

, ¶ 24 (8th Dist.), citing State v. Bonnell,

,

,

.

R.C. 2929.14(C)(4) provides that in order to impose consecutive

sentences, the trial court must find that consecutive sentences are (1) necessary to

protect the public from future crime or to punish the offender, (2) that such

sentences would not be disproportionate to the seriousness of the conduct and to

the danger the offender poses to the public, and (3) that one of the following applies:

(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.

Compliance with R.C. 2929.14(C)(4) requires the trial court to make

the statutory findings at the sentencing hearing, which means that “‘the [trial] court

must note that it engaged in the analysis’ and that it ‘has considered the statutory

criteria and specifie[d] which of the given bases warrants its decision.’”

, quoting State v. Edmonson,

,

(1999). Further, the reviewing court must be able to discern that the record contains

evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No. 102639,

, ¶ 21, citing

. A trial court is not, however, required

to state its reasons to support its findings, nor is it required to precisely recite the

statutory language, “provided that the necessary findings can be found in the record

and are incorporated in the sentencing entry.”

.

Where the trial court made the requisite consecutive sentencing

findings, R.C. 2953.08(G)(2) requires this court to affirm an order of consecutive

service unless we “clearly and convincingly” find that the record does not support

the court’s findings in support of consecutive sentences. State v. Simmons, 8th Dist.

Cuyahoga No. 107144,

. “This is an extremely deferential

standard of review.” State v. Venes,

,

, ¶ 21 (8th

Dist.).

In imposing the consecutive sentences in this case, the trial court

stated, in relevant part:

The court finds that a consecutive sentence is necessary to protect the public from future crimes. The court finds the consecutive sentences are not disproportionate to the seriousness of the offender’s conduct. The court finds that consecutive sentences are not disproportionate to the danger the offender poses to the public.

In making those findings, the court has taken into consideration the operative facts of this case, the way the crimes were calculated and done, * * * her lack of guilt and her lack of remorse. The court does note that they — the defendant failed to adequately apologize to the victims in this case, who were friends.

*** The court does take into consideration the impact this client had on the [victims’] lives. Both [victims] have been greatly impacted by this betrayal, as well as this financial stress that was caused on this family and, therefore, the court believes that consecutive sentences are necessary.

(Tr. 73-75.)

Viewing this statement in its entirety, we find the trial court made the

first two findings required under R.C. 2929.14(C)(4). The court found that

consecutive sentences were necessary to protect the public, and were not

disproportionate to the seriousness of Collier’s conduct and to the danger she poses

to the public. However, we find the trial court failed to make the third finding

supporting the imposition of consecutive sentences under R.C. 2929.14(C)(4)(a)-(c).

While the trial court discussed Collier’s lack of remorse and the substantial financial

and emotional harm suffered by the owners of Taylored Construction Services, the

court expressed that such considerations were relevant to its first and second

findings.

Contrary to the state’s assertion on appeal, we are unable to discern

from the record that the trial court’s brief reference to the “impact Collier had on the

victims’ lives” amounted to a “so great and unusual” finding under R.C.

2929.14(C)(4)(b). See State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-

Ohio-1536, ¶ 21 (“[T]he focus of this factor is the ‘so great or unusual’ finding

required to distinguish this offense from other identical offenses, and how this

offense was part of a ‘course of conduct,’ which elevates the seriousness of the crime

and the need for greater punishment.”), quoting State v. Kay, 2d Dist. Montgomery No. 26344,

. We recognize that there are multiple cases in

which appellate courts have been able to discern a finding under subsection (b) even

though the trial court did not use the language of the statute. See, e.g., State v.

Tucker, 9th Dist. Lorain Nos. 16CA010963 and 16CA010964,

(the trial court used a shortened version of the statutory text — “[a] single prison

term would not adequately reflect the seriousness of defendant’s conduct.”); State

v. Blanton, 4th Dist. Adams No. 16CA1031,

, ¶ 100 (The trial court

noted the great harm caused by the defendant and similarly used a shortened

version of text when it said that it was unaware of “any sentence that would

adequately reflect the seriousness of this conduct.”). However, we find these cases

to be distinguishable, because the relevant statement by the court in this case does

not contain language that is consistent with the purpose of R.C. 2929.14(C)(4)(b).

Likewise, the sentencing journal entry does not contain any language regarding the

third finding required under R.C. 2929.14(C)(4).

Under these circumstances, we find the trial court’s statements were

insufficient for this court to conclude that the third finding — “one of the three

statutory factors set forth in R.C. 2929.14(C)(4)(a)-(c)” — was made. State v.

Jackson, 1st Dist. Hamilton Nos. C-180245 and C-180246,

(finding

the trial court failed to make a subsection (b) finding at the sentencing hearing

despite the trial court’s reference to the great psychological and economic harm

caused by the defendant). Accordingly, we vacate Collier’s consecutive sentences

and remand the case for the trial court to again consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make the required

findings on the record and incorporate those findings in the sentencing journal entry

in accordance with Bonnell.

Collier’s second assignment of error is sustained. Having vacated the

consecutive sentences, we need not address Collier’s argument that the record does

not support consecutive sentences. Accordingly, Collier’s fourth assignment of error

is moot.

C. Allied Offenses

In her third assignment of error, Collier argues her convictions for

aggravated theft and money laundering are allied offenses that should have been

merged for the purposes of sentencing. Alternatively, Collier contends that defense

counsel rendered ineffective assistance of counsel by failing to argue that the

aggravated theft and money laundering were allied offenses of similar import.

R.C. 2941.25 codifies the protections of the Double Jeopardy Clause

of the Fifth Amendment to the United States Constitution and Article I, Section 10,

of the Ohio Constitution, prohibiting multiple punishments for the same offense.

Under R.C. 2941.25(A), when the same conduct by the defendant “can be construed

to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be

convicted of only one.” Nevertheless, under R.C. 2941.25(B),

[w]here the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

The Supreme Court of Ohio, in State v. Ruff,

, 2015-

Ohio-995,

, established that the test for determining whether offenses

are allied offenses of similar import requires the trial court to consider three

separate factors: import, conduct, and animus. Convictions do not merge, and a

defendant may be sentenced for multiple offenses if any of the following are true (1)

the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the

offenses were committed separately, or (3) the conduct shows that the offenses were

committed with separate animus. Id. at ¶ 25.

Defense counsel did not raise an allied-offense argument before the

trial court.

An accused’s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice. Accordingly, an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; absent that showing, the accused cannot demonstrate that the trial court’s failure to inquire whether the convictions merge for purposes of sentencing was plain error.

Rogers,

,

,

.

On appeal, Collier argues “the trial court committed plain error when

it convicted and sentenced [her] for both aggravated theft and money laundering.”

She contends that “the same conduct — the charging of the company credit card,

depositing company checks, and withdrawal of company cash — constituted both the ‘depriv[ation] * * * of property,’ R.C. 2913.02(A), and the ‘transaction * * * [with]

proceeds of * * * unlawful activity,’ R.C. 1315.55(A)(1).”

We find Collier’s argument to be unsupported. In the current case,

the state alleged that Collier committed the aggravated theft offense by making

withdrawals from company accounts without consent or authorization. The state

further alleged that Collier subsequently committed the crimes of money laundering

when she used the stolen funds to purchase personal items such as groceries,

clothing, prescriptions, home items, etc., and/or moved the stolen funds into her

own personal accounts, or the accounts of family members. (Tr. 64-66.) Thus,

contrary to Collier’s characterization of the facts supporting her convictions, the

state alleged that Collier committed the offenses with separate conduct. This court

has rejected allied offense arguments under similar circumstances. See State v.

Cody, 8th Dist. Cuyahoga No. 100797,

, ¶ 25 (defendant’s conduct

showed that the money laundering and theft offenses were committed subsequently

and in separate acts), citing State v. Dabney, 1st Dist. Hamilton No. C-140575, 2015-

Ohio-4142 (the crimes of theft and money laundering are not necessarily allied

offenses).

Because this case was resolved by a plea agreement, the facts

supporting Collier’s convictions, particularly the money laundering offenses, were

discussed in general terms. The indictment and bill of particulars are not fact

specific, and Collier has failed to cite any information in the record to overcome the

state’s recitation of facts and its assertion that Collier committed the money laundering offenses subsequently and in separate acts. Under these circumstances,

we find Collier has failed to meet her burden of demonstrating a reasonable

probability that her convictions for theft and money laundering constituted allied

offenses of similar import. See State v. Hilliard, 8th Dist. Cuyahoga No. 102214,

(explaining the application of the plain error standard to a

record containing insufficient facts). Therefore, we find that the trial court did not

commit plain error in failing to merge Collier’s convictions.

Collier further argues that defense counsel was ineffective for failing

to argue that the aggravated theft and money laundering offenses were allied

offenses. This court has recognized that where the offenses do not merge, a

defendant cannot establish prejudice from his or her trial counsel’s failure to request

merger. Hill, 8th Dist. Cuyahoga No. 106542,

. Having

determined that the trial court did not commit plain error by failing to merge the

aggravated theft and money laundering offenses, Collier has not demonstrated a

reasonable probability that but for counsel’s failure to object, the result of the

proceeding would have been different.

Collier’s third assignment of error is overruled.

Judgment affirmed in part, reversed in part. The matter is remanded

for the trial court to consider whether consecutive sentences are appropriate under

R.C. 2929.14(C)(4) and, if so, to make all of the required findings on the record and

incorporate those findings into its sentencing 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.

EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

PATRICIA ANN BLACKMON, J., and RAYMOND C. HEADEN, J., CONCUR