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State v. Alvelo

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 2, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ERNESTO J. ALVELO DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-599547-A

         JUDGMENT: AFFIRMED IN PART; VACATED IN PART; REMANDED

          ATTORNEY FOR APPELLANT John F. Corrigan

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: John F. Hirschauer Assistant Prosecuting Attorney

          BEFORE: E.A. Gallagher, P.J., Stewart, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, P.J.

         {¶1} Defendant-appellant Ernesto Alvelo appeals his convictions, arguing that the trial court erred in accepting his guilty pleas. Alvelo contends that his guilty pleas should be vacated because they were "mixed with protestations of innocence" and, therefore, involuntary and because the trial court allegedly took "a vested interest" in the plea "by counseling" Alvelo that "he did not have a defense." For the reasons that follow, we affirm Alvelo's convictions. We find, however, that the trial court erred (1) in imposing sentences on counts of breaking and entering and having weapons while under disability in its sentencing journal entry that it did not orally impose at the sentencing hearing and (2) in ordering a different amount of restitution in its sentencing journal entry than it imposed at the sentencing hearing. Accordingly, we remand the matter for resentencing on the breaking and entering and having weapons while under disability counts and for entry of a nunc pro tunc order to correct the amount of restitution stated in the sentencing journal entry to that imposed at the sentencing hearing.

         Factual and Procedural Background

         {¶2} On June 25, 2015, a Cuyahoga County Grand Jury indicted Alvelo on six counts - one count of aggravated robbery, one count of theft, one count of kidnapping, one count of breaking and entering and two counts of having weapons while under disability. With the exception of the having weapons while under disability counts, all of the counts included one-year and three-year firearm specifications.

         {¶3} The charges arose out of a September 8, 2015 incident in which Alvelo and another unidentified male allegedly robbed 80 year-old Stephen Lazor while he was working in the garage of one of his investment properties in Tremont area of Cleveland. The two men entered the garage and demanded that Lazor turn over any money he had. Alvelo's accomplice allegedly brandished a handgun and Alvelo allegedly told him to shoot Lazor if Lazor did not comply. In response to their threats, Lazor gave the men $294 in cash and they took his cell phone and fled the scene. Surveillance video from the garage showed Alvelo entering and leaving the garage. Still shots of the surveillance video were provided to the media and Alvelo was arrested after an anonymous tip identified him as one of the perpetrators.

         {¶4} On December 1, 2015, Alvelo and the state reached a "package [plea] deal." Pursuant to the plea agreement, Alvelo agreed to plead guilty to one of the counts of having weapons while under disability and three other amended counts - i.e., the aggravated robbery charge was reduced to robbery (a second-degree felony instead of a first-degree felony) with a one-year firearm specification and the firearm specifications were deleted from the theft and breaking and entering counts. Alvelo also agreed to plead guilty to one count of drug possession in an unrelated case (Case No.CR-15-597223), to pay $394 in restitution to the victim, [1] to have no contact with the victim and to cooperate with the authorities in their efforts to identify, locate and prosecute his accomplice. In exchange for his guilty pleas, the remaining counts and firearm specifications were nolled. Defense counsel confirmed that a factual basis existed for Alvelo's guilty pleas. After reviewing the terms of the plea agreement with the parties, the trial judge proceeded with the plea colloquy.

         {¶5} The trial judge asked Alvelo several preliminary questions then inquired whether he understood "what is happening here today." Alvelo replied: "Pretty much, yeah, pretty much so." Apparently sensing some hesitation by Alvelo, the trial court probed his understanding of the proceedings and explained in detail what would be occurring:

THE COURT: You seem to hesitate a little bit. You said pretty much. Is there something you're not clear on or not following?
THE DEFENDANT: No, not really. I comprehend.
THE COURT: So, why the hesitation? Talk to me about it. Let me say I understand that you're expected to plead to some heavy duty charges here which is going to entail some prison. And, if there is some, I won't say reluctance or some issues regarding that, I understand that. And so, I'm not trying to, I guess what I'm trying to say, I know this isn't something you want to do, something you're not looking forward to doing. And, if it's along those lines, then I can deal with that. But, I'm trying to make sure that all your questions have been answered. We're going to go over all your rights here. So you understand, you have certain rights. You understand that by your entering into this plea, you'll be giving up those rights. We're going to go through all these charges. I'm going to advise what your penalties are and advise you what your maximum exposure may be and what your worst case scenario, how much prison time you're looking at. I'm going to talk about those things. If there is anything else other than these things, you got to let me know. If you're not clear, somebody told you one thing, whatever it may be, those are issues we have to talk about on the record. Fair enough?
THE DEFENDANT: Yes, sir.

         {¶6} Upon further inquiry by the trial court, Alvelo indicated that he did not realize, during his discussions with counsel regarding the plea agreement, that he would be "pleading guilty to all them counts."

         {¶7} The trial judge explained that the plea agreement involved charges in two cases - this case and a "pretty straightforward" unrelated drug possession case. He further explained the amendments that would be made to the charges as part of the plea agreement, e.g., amending Count 1 from aggravated robbery to robbery and deleting the three-year firearm specification, and the impact of those changes, i.e., "shav[ing] off a minimum of three years from your potential sentence." He also explained what it meant for two charges to be allied offenses, identified the charges to which Alvelo would be pleading guilty that would be considered allied offenses and explained the impact a determination that two offenses were allied offenses would have on his potential sentence, i.e., "there is not going to be a separate penalty or sentence for that." Alvelo indicated that the trial judge's explanation was helpful and that he had no questions at that time. The trial judge told Alvelo that if he had any questions at any other point in the proceedings or if there was anything he wished to discuss with counsel privately to let him know because "I want to make sure that happens." Alvelo agreed that he would do so.

         {¶8} The trial judge then continued with the plea colloquy. Alvelo confirmed that no threats or promises had been made to induce him to change his pleas other than what had been stated on the record and that it was his decision to plead guilty to the charges as negotiated. With respect to the representation provided by defense counsel, Alvelo stated that he was "very" satisfied with the representation he had received and that defense counsel had "[d]one her job." The trial judge advised Alvelo of his constitutional rights and confirmed that he understood the rights he would be waiving by entering guilty pleas. He also confirmed that Alvelo understood that the trial court, upon acceptance of his guilty pleas, could immediately proceed with judgment and sentencing. The trial court went through each of the counts to which Alvelo would be pleading guilty, outlined the penalties he faced on each count, including the maximum prison sentence for each offense and confirmed that Alvelo understood each count and its potential penalties.

         {¶9} After discussing all of the charges, the trial judge once again inquired of Alvelo as to whether he had any questions. Alvelo indicated that he had no questions and again confirmed that he understood the charges to which he would be pleading guilty, the rights he would be giving up and the possible penalties he would face as a result of his guilty pleas:

THE COURT: Do you have any questions of me about anything that we talked about here today or anything else?
THE DEFENDANT: No.
THE COURT: All right. You feel you have a complete understanding of all the rights that you're giving up, all the possible penalties that you're facing and all the charges that you're expecting to plead guilty to?
THE DEFENDANT: Yes.
THE COURT: All right. Again, any questions at all?
THE DEFENDANT: No.
THE COURT: All right. Let the record reflect that the plea you're about to tender will be made knowingly, voluntarily and intelligently. I am further going to find I have explained all your rights to you and that you understand the nature of the charges, the effect of a plea and the maximum penalties which I may impose.

         {¶10} Alvelo thereafter entered his guilty pleas and the trial court accepted those pleas, made findings of guilt and granted the state's motion to dismiss the remaining counts and specifications. At no point prior to the entry of his guilty pleas or the trial court's acceptance of his guilty pleas did Alvelo claim that he was innocent of any of the charges to which he pled guilty.

         {¶11} The trial court referred the case for preparation of a presentence investigation report ("PSI") and scheduled a sentencing hearing. The trial judge then asked Alvelo whether he had ever been through the PSI "process" before. Alvelo explained that he had but that it was "many years ago." The trial court explained the process to him then asked him about his criminal history and what had led to the incident giving rise to this case:

THE COURT: What was going on in this case here?
THE DEFENDANT: In this case?
THE COURT: It's been a while since you've been in trial?
THE DEFENDANT: Yes, sir. I stuck my hand in the wrong cookie jar, sir, believe me. I'm a heroin addict. Friend of mine came by, asked me to collect money for him. I went to collect money for him. He said he ...

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