Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0644.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
Leonard J. Breiding, II, (For Defendant-Appellant).
DIANE V. GRENDELL, J.
(¶1} Defendant-appellant, Jonathan J. Kornet, appeals from the Order and Journal Entry of the Portage County Court of Common Pleas, denying his Motion to Withdraw Guilty Plea and Vacate Finding, and sentencing him to a term of ten years imprisonment. The issues to be determined by this court are whether a sentence was proper when the trial court considered the seriousness and recidivism factors and whether a defendant should be allowed to withdraw his guilty plea prior to sentencing when he believed that the entry of his plea would cause the State to cease pursuing charges against his fiancée. For the following reasons, we affirm the decision of the trial court.
(¶2} On September 24, 2012, Kornet was indicted by the Portage County Grand Jury on one count of Aggravated Robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1). This charge had a firearm specification, in violation of R.C. 2929.14 and R.C. 2941.145.
(¶3} On November 14, 2012, a change of plea hearing was held. No transcript of that hearing was filed with this court. A Waiver of Trial by Jury was signed by Kornet on the same date, in which he waived his right to a jury trial, and indicated he would enter a plea. A Written Plea of Guilty to the charges as stated in the Indictment was also filed. The Written Plea, signed by Kornet, indicated the maximum potential punishments and outlined the constitutional rights being waived by entering the plea, including, inter alia, the right to a trial by jury, the right to cross-examine witnesses, and the right not to testify.
(¶4} In a Judgment Entry filed on November 15, 2012, the court accepted Kornet's guilty plea and found that "the Defendant is knowingly and voluntarily entering this Written Plea of Guilty."
(¶5} On December 5, 2012, Kornet filed a Motion to Withdraw Guilty Plea and Vacate Finding. He asserted that his plea of guilty was based on "a misplaced and misguided allegiance to his co-defendant whom he was trying to protect and shield."
(¶6} A hearing was held on December 17, 2012, at which time the court addressed Kornet's Motion to Withdraw Guilty Plea. At the hearing, Kornet's counsel indicated that he wished to withdraw his plea only with respect to the gun specification and not to the Aggravated Robbery charge. Kornet testified that he understood all of the rights described in the Written Plea of Guilty. He admitted that the court reviewed his guilty plea with him before accepting his plea, explained his constitutional rights, and inquired as to whether his plea was voluntary. As his justification for withdrawal, Kornet explained that he believed, at the time of the plea, that if he pled guilty, charges against his fiancée would not be further pursued by the State, although this was based on his own beliefs and not statements or promises made by defense counsel or the State. Kornet also contended that he did not have a gun during the robbery and that he wanted to present this as a defense to the firearm specification.
(¶7} After his testimony, the trial court denied Kornet's Motion. The court then proceeded to hold the sentencing hearing. Defense counsel noted that Kornet had a prior criminal record, including a Burglary conviction. The court stated: "I am sending a clear message not only to you, but to the community that I am not going to put up with these aggravated robberies, these robberies, burglaries. I'm sick of it. People in this community are sick of it."
(¶8}On December 19, 2012, the trial court issued an Order and Journal Entry, memorializing its finding that Kornet's Motion to Withdraw Guilty Plea was overruled. Regarding Kornet's sentence, the Entry stated that the court had considered the purposes of felony sentencing and the record. Kornet was sentenced to a term of seven years for Aggravated Robbery and three years for the firearm specification, to run consecutively, for a total term of ten years imprisonment, and ordered to pay a fine of $200.
(¶9} Kornet timely appeals and raises the following assignments of error:
(¶10} " The trial court erred in sentencing the appellant by imposing more than the minimum sentence and by imposing an ...