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State v. Wojtowicz

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
ERIC PAUL WOJTOWICZ, DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-600564-A, CR-15-600634-A, CR-15-600857-A, CR-15-601578, CR-15-601644-A, CR-15-602158-A.

          ATTORNEYS FOR APPELLANT Robert L. Tobik Cuyahoga County Public Defender By: Erika B. Cunliffe Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Anna Woods Assistant Prosecuting Attorney

          BEFORE: Keough, A.J., S. Gallagher, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

         {¶1} Defendant-appellant, Eric Paul Wojtowicz, appeals his guilty pleas and sentence. For the reasons that follow, we affirm.

         {¶2} In late 2015 and early 2016, Wojtowicz was named in six different indictments charging him with multiple counts of theft, breaking and entering, and criminal damaging, mostly felonies of the fourth and fifth degree. In Cuyahoga C.P. No. CR-15-600564, he was charged with breaking and entering (Counts 1, 5, 7, and 10), grand theft (Count 2), theft (Count 3), misuse of credit cards (Count 4), petty theft (Counts 6 and 11), theft (Count 8), failure to comply (Count 9), and receiving stolen property (Count 12). In Cuyahoga C.P. No. CR-15-600634, Wojtowicz was charged with breaking and entering (Count 1), vandalism (Count 2), and petty theft (Count 3). In Cuyahoga C.P. No. CR-15-600857, he was charged with breaking and entering (Count 1), theft (Count 2), and criminal damaging or endangering (Count 3). In Cuyahoga C.P. No. CR-15-601578, Wojtowicz was charged with breaking and entering (Count 1), petty theft (Count 2), and vandalism (Count 3). In Cuyahoga C.P. No. CR-15-601644, Wojtowicz was charged with breaking and entering (Count 1) and theft (Count 2). In Cuyahoga C.P. No. CR-15-602158, he was charged with breaking and entering (Count 1) and petty theft (Count 2).

         {¶3} All these cases arose from a month-long crack cocaine binge where Wojtowicz would steal cars, back them into stores to gain entrance, and steal cigarettes and other merchandise from inside the stores. He did this approximately eight times in seven different jurisdictions in Cuyahoga County, causing approximately $40, 000 worth of overall damage. The cases were consolidated without objection.

         {¶4} In 2016, Wojtowicz entered in a plea agreement with the state. In Case No. CR-15-600564, he pled guilty to Counts 1, 7, 10 (breaking and entering, a fifth-degree felony), Count 9 (failure to comply, a third-degree felony), and Count 12 (receiving stolen property, a fourth-degree felony). In Case No. CR-15-600634, he pled guilty to Count 1 (breaking and entering, a fifth-degree felony) and Count 2 (vandalism, a fifth-degree felony). In Case No. CR-15-600857, he pled guilty to Count 1 (breaking and entering, a fifth-degree felony). In Case No. CR-15-601578, he pled guilty to Count 1 (breaking and entering, a fifth-degree felony). In Case No. CR-15-601644, he pled guilty to Count 1 (breaking and entering, a fifth-degree felony). In Case No. CR-15-602158, Wojtowicz pled guilty to Count 1 (breaking and entering, a fifth-degree felony) and Count 2 (petty theft, a first-degree misdemeanor). All other counts in the six indictments were nolled. As part of the plea agreement, Wojtowicz agreed to pay restitution to the victims and businesses.

         {¶5} At sentencing, the trial court reviewed the presentence investigative report ("PSI") and heard victim impact statements and mitigation arguments. The court imposed the following sentence: in Case No. CR-15-600564, Wojtowicz was sentenced to the maximum of 12 months on Counts 1, 7, 10 (breaking and entering), 30 months on Count 9 (failure to comply), and the maximum of 18 months on Count 12 (receiving stolen property); with all counts to be served consecutively for a total prison sentence of 7 years. He was also ordered to pay restitution to Michael Beach ($8, 095.94), GetGo Gas Station ($6, 030.05), and Express Deli ($1, 500).

         {¶6} In Case No. CR-15-600634, Wojtowicz was sentenced to the maximum of 12 months on each of Count 1 (breaking and entering) and Count 2 (vandalism), to be served concurrently for a total prison sentence of 12 months.

         {¶7} In Case No. CR-15-600857, he was sentenced to the maximum of 12 months on Count 1 (breaking and entering), and ordered to pay restitution to Circle K ($500). In Case No. CR-15-601578, Wojtowicz was sentenced to the maximum of 12 months on Count 1 (breaking and entering). In Case No. CR-15-601644, Wojtowicz was sentenced to the maximum of 12 months on Count 1 (breaking and entering), and ordered to pay restitution to Game Stop ($10, 968.70). In Case No. CR-15-602158, he was sentenced to the maximum of 12 months on Count 1 (breaking and entering) and the maximum of six months on Count 2 (petty theft), to be served concurrently for a total prison sentence of the maximum of 12 months. All of the sentences imposed in each case were ordered to run consecutively to each other for a total prison sentence of 12 years.

         {¶8} Wojtowicz filed a timely appeal. In September 2016, this court granted Wojtowicz's motion to remand the case to the trial court for the limited purpose of allowing him to move to vacate his guilty plea. The motion to vacate challenged the voluntariness of his plea, the competence of his counsel, counsel's advice regarding Wojtowicz's sentencing exposure, and the length and proportionality of the sentence that the court imposed. The trial court summarily denied Wojtowicz's motion, and the case was returned to this court's docket to address Wojtowicz's appeal.

         I. Plea

         {¶9} In his first assignment of error, Wojtowicz contends that he did not enter a knowing, intelligent, and voluntary guilty plea because the plea colloquy was misleading. Specifically, he contends the plea colloquy (1) contained ambiguous information concerning whether and the extent to which the trial court could impose the sentences consecutively, and (2) failed to give him any realistic sense of his sentencing exposure because the lack of information prevented him from intelligently comparing the risks and benefits of entering the guilty plea versus going to trial.

         {¶10} Under Crim.R. 11(C)(2), in a felony case, a trial court shall not accept a guilty plea without first addressing the defendant personally and (1) determining that the defendant is making the plea voluntarily, with an understanding of the nature of the charges and the maximum penalty involved, (2) informing the defendant of and determining that the defendant understands the effect of the guilty plea and that the court, upon accepting the plea, may proceed with judgment and sentence, and (3) informing the defendant and determining that the defendant understands that by the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against him, 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.

         {¶11} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements regarding the waiver of constitutional rights, which means that the court must actually inform the defendant of the constitutional rights he is waiving and make sure the defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. For nonconstitutional rights, such as the right to be informed of the nature of the charges and the maximum penalty involved, we review for substantial compliance with the rule. Id. at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). Substantial compliance means that under the totality of the circumstances, the defendant understands the implications of his plea and the rights he is waiving. State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979).

         {¶12} In this case, the trial court more than substantially complied with advising Wojtowicz of the maximum penalty he could receive for each charge he pled guilty to, including the mandatory-consecutive sentence that was required for the third-degree felony offense of failure to comply. (Tr. 15.) Moreover, Crim.R. 11(C) does not require a defendant to be told that his sentences may be imposed consecutively. State v. Vinson, 8th Dist. Cuyahoga No. 103329, 2016-Ohio-7604, ¶ 24, citing State v. Johnson,40 Ohio St.3d 130, 134, 532 N.E.2d 1295 (1988), syllabus. Nor does the trial court have to advise a defendant of the cumulative total of all ...


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