[Cite as State v. Crain, 2011-Ohio-1924.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                               Nos. 95012, 95013, 95014, and 95015




                                        STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                   CHRISTOPHER CRAIN

                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                 Case Nos. CR-522284, CR-528311, CR-529763, and CR-532481,

        BEFORE: Kilbane, A.J., S. Gallagher, J., and Rocco, J.

        RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT

Timothy F. Sweeney
Law Office - Timothy Farrell Sweeney
The 820 Building, Suite 430
920 West Superior Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Diane Russell
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} In this consolidated appeal, defendant-appellant, Christopher Crain (“Crain”),

appeals his guilty pleas and sentences in four criminal cases.   Finding no merit to the appeal,

we affirm.

       {¶ 2} In CR-522284, Crain was charged with two counts of drug

trafficking, which carried a schoolyard specification, drug possession, and

possessing criminal tools.          In CR-528311, Crain was charged with theft;
aggravated theft. In CR-529763, Crain was charged with having a weapon

while under disability, carrying a concealed weapon, and improperly handling

a firearm in a motor vehicle.1 In CR-532481, Crain was charged with two

counts of robbery.

      {¶ 3} In March 2010, Crain entered into a plea agreement on all four

cases. Pursuant to the agreement, in CR-522284 he pled guilty to one count of

drug trafficking, with the schoolyard specification attached. In CR-528311,

he pled guilty to aggravated theft. In CR-529763, he pled guilty to having a

weapon while under disability, with the forfeiture specification attached; and

in CR-532481, he pled guilty to one count of robbery. All remaining counts

were nolled in each case.        The trial court sentenced him to two years in

prison in CR-522284, one year in prison in CR-528311, two years in prison in

CR-529763, and two years in prison in CR-532481. The court ordered that

these sentences be served consecutively for an aggregate of seven years in

prison.

      {¶ 4} Crain now appeals, raising two assignments of error for review.

      ASSIGNMENT OF ERROR ONE

      “Crain’s guilty pleas in all four cases were not made
      knowingly, voluntarily and intelligently, and, as a result,
      the court’s acceptance of the pleas was in violation of
      Crain’s constitutional rights and [Crim.R. 11].”




      1Each   count carried a forfeiture of a weapon specification.
      {¶ 5} Crain argues that the trial court did not comply with Crim.R. 11

when it failed to adequately inform him that he was waiving his right to a

trial by jury. He further argues that the trial court failed to ensure that he

understood the nature of the charges against him and the extent of the

penalties he faced.    As a result, Crain claims that his pleas were not

knowingly, voluntarily, and intelligently made.

      {¶ 6} In order for a plea to be made knowingly and voluntarily, the trial

court must follow the mandates of Crim.R. 11, which provides that the court

must address the defendant personally and do all of the following:

      “(a) [Determine] that the defendant is making the plea
      voluntarily, with understanding of the nature of the
      charges and of the maximum penalty involved, and, if
      applicable, that the defendant is not eligible for probation
      or for the imposition of community control sanctions at
      the sentencing hearing.

      “(b) [Inform] the defendant of and determin[e] that the
      defendant understands the effect of the plea of guilty * * *,
      and that the court, upon acceptance of the plea, may
      proceed with judgment and sentence.

      “(c) [Inform] the defendant and determin[e] that the
      defendant understands that by the plea the defendant is
      waiving the rights to jury trial, to confront witnesses
      against him or her, to have compulsory process for
      obtaining witnesses in the defendant’s favor, and to
      require the state to prove the defendant’s guilt beyond a
      reasonable doubt at a trial at which the defendant cannot
      be compelled to testify against himself or herself.” Id. at
      (C)(2).

      {¶ 7} The duties of the trial court under Crim.R. 11 have been

distinguished as constitutional and nonconstitutional rights. State v. Parks,
Cuyahoga App. No. 86312, 2006-Ohio-1352, ¶6, citing State v. Higgs (1997),

123 Ohio App. 3d 400, 704 N.E.2d 308.

      {¶ 8} The trial court must strictly comply with those provisions of

Crim.R. 11(C) that relate to the waiver of constitutional rights. See State v.

Nero (1990), 56 Ohio St. 3d 106, 107-108, 564 N.E.2d 474, citing Boykin v.

Alabama (1969), 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274. Failure to

strictly comply with these constitutional requirements renders the plea

“constitutionally infirm.” State v. Ballard (1981), 66 Ohio St. 2d 473, 479,

423 N.E.2d 115. See, also, State v. Stewart (1977), 51 Ohio St. 2d 86, 88-89,

364 N.E.2d 1163. “Strict compliance” does not require a rote recitation of the

exact language of the rule. Rather, we focus on whether the “record shows

that the judge explained these rights in a manner reasonably intelligible to

the defendant.” Ballard at paragraph two of the syllabus.

      {¶ 9} Under the broader standard for the nonconstitutional rights, the

reviewing court must consider whether the trial court substantially complied

with Crim.R. 11(C)(2)(a) and (b).    qanderson@example.org.    “Substantial compliance

means that under the totality of the circumstances the defendant subjectively

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

citing Stewart.

      {¶ 10} In the instant case, a review of the record reveals that the trial

court complied with Crim.R. 11.     The trial court first stated that it was

“required to ask [Crain] certain questions to make sure [he] understands the
Constitutional rights that [he] would in fact be giving up.” The court then

established that Crain was a citizen, he attended both high school and some

college, and he was not under the influence of alcohol, medication, or drugs.

      {¶ 11} With respect to the right to a jury trial, the court advised that

“[t]he State * * * must prove beyond a reasonable doubt each and every

element of the crimes charged against you, and they have to do this by proof

beyond a reasonable doubt, and they have to do this unanimously to a jury of

12 or a judge if you waive a jury.” The court further advised Crain of the

charges and the minimum and maximum sentence for each charge in all four

cases. The court also asked Crain if he understood each right required under

Crim.R. 11. Each time, Crain responded “yes.”

      {¶ 12} Based on the foregoing, we find that Crain’s pleas were

knowingly, intelligently, and voluntarily made.

      {¶ 13} Accordingly, the first assignment of error is overruled.

      ASSIGNMENT OF ERROR TWO

      “Crain was denied due process of law when the trial court
      failed to follow the statutory guidelines and otherwise
      comply      with    applicable    law    in    imposing
      more-than-minimum and consecutive sentences.”

      {¶ 14} The Ohio Supreme Court has set forth the applicable standard of

appellate review of a felony sentence in State v. Kalish, 120 Ohio St. 3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶4:

      “In applying [State v. Foster, 109 Ohio St. 3d 1,
      2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes,
      appellate courts must apply a two-step approach. First,
      they must examine the sentencing court’s compliance with
      all applicable rules and statutes in imposing the sentence
      to determine whether the sentence is clearly and
      convincingly contrary to law.          If this first prong is
      satisfied, the trial court’s decision shall be reviewed under
      an abuse-of-discretion standard.”2

      {¶ 15} Crain argues that the trial court’s imposition of more than the

minimum sentence on each count and the imposition of consecutive sentences

was contrary to law and violated his due process rights because the trial court

failed to make requisite findings required by R.C. 2929.14(E)(4) and

2929.41(A).

      {¶ 16} However, Ohio courts have not been required to make these

statutory findings since they were severed from Ohio’s sentencing statutes in

Foster. 3    As the Kalish court noted, post-Foster, “trial courts ‘have full

discretion to impose a prison sentence within the statutory range and

are no longer required to make findings or give reasons for imposing

maximum, consecutive or more than the minimum sentences.’” (Emphasis in


      2 We recognize Kalish is merely persuasive and not necessarily controlling
because it has no majority. The Supreme Court split over whether we review
sentences under an abuse-of-discretion standard in some instances.
      3Crain  relies on the United States Supreme Court’s decision in Oregon v. Ice
(2009), 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517, arguing that Ice demonstrates
that Ohio’s consecutive sentencing statutes do not violate the Sixth Amendment.
However, in State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the
Ohio Supreme Court recently addressed this argument and determined that Ice
does not revive these sentencing statutes and that “[t]rial court judges are not
obligated to engage in judicial fact-finding prior to imposing consecutive sentences
unless the General Assembly enacts new legislation requiring that findings be
made.” Id. at paragraphs two and three of the syllabus.
the original.)   Id. at ¶11, citing Foster.     In the instant case, Crain’s

seven-year sentence is within the permissible statutory range for his

convictions.

      {¶ 17} Crain also argues that his sentence is inconsistent with sentences

imposed for similar crimes committed by similar offenders. He claims the

trial court demonstrated this when it compared him to another defendant at

his sentencing hearing, whose charges were more serious than his charges.

      {¶ 18} At the hearing, Crain blamed his actions on his drug addiction.

The trial court noted Crain was the second person it sentenced that morning

who blamed his actions on drug abuse. The court further noted that this

defendant had a similar number of cases and similar charges. Although this

defendant’s case is not part of the record before us, both parties state that

this defendant received six years in prison on three cases.

      {¶ 19} We note that “[c]onsistency in sentencing is achieved by weighing

the sentencing factors.”     State v. Dowell, Cuyahoga App. No. 88864,

2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.

81934, 2003-Ohio-4341. As an appellate court, we are not required to decide

whether the lower court “‘imposed a sentence in lockstep with others, but

whether the sentence is so unusual as to be outside the mainstream of local

judicial practice.   Although the offense[s] may be similar, distinguishing

factors may justify dissimilar treatment.’” State v. Rabel, Cuyahoga App.
No. 91280, 2009-Ohio-350, ¶15, quoting State v. Dawson, Cuyahoga App. No.

86417, 2006-Ohio-1083.

      {¶ 20} In the instant case, there is nothing in the record to demonstrate

that Crain’s sentence is “outside the mainstream of local judicial practice.”

Their sentences are not vastly different and the court’s consistency is

apparent — this defendant received six years in prison on three cases and

Crain received seven years on four cases. Since Crain was sentenced within

the statutory range and has failed to demonstrate how his sentence violated

Ohio’s sentencing statutes, we do not find that it was contrary to law.

      {¶ 21} Having satisfied step one, we next consider whether the trial

court abused its discretion. An abuse of discretion “‘implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.’”         Blakemore v.

Blakemore (1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140, quoting State v.

Adams (1980), 62 Ohio St. 2d 151 404 N.E.2d 144.

      {¶ 22} We find nothing in the record to suggest that the trial court’s

decision was unreasonable, arbitrary or unconscionable.        The trial court

explained the reasons for the sentence it imposed, including a review of the

record, the statements made at the sentencing hearing, the presentence

report, and “the number of cases [Crain] had in [its] courtroom [.]” The trial

court also expressly stated that it had considered all the purposes and

principles of R.C. 2929.11, as well as the factors in R.C. 2929.12.

Furthermore, Crain faced a possible sentence of sixteen years in prison, but
was sentenced to seven, with credit for time served. Therefore, we do not

find that the trial court abused its discretion when it sentenced Crain to

seven years in prison.

      {¶ 23} Accordingly, the second assignment of error is overruled.

      Judgment is affirmed.

      It is ordered that appellee recover from 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

appeal 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.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
