Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
BEFORE: E.A. Gallagher, P.J., Stewart, J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, P.J.
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.
and Procedural Background
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.
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.
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,  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.
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
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.
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."
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.
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.
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.
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.
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
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 ...