Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-16-606437-A and CR-17-616368-A
ATTORNEY FOR APPELLANT Joseph V. Pagano.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Carl Sullivan Assistant County Prosecutor
BEFORE: Kilbane, P.J., S. Gallagher, J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, PRESIDING JUDGE.
Defendant-appellant, Robert Arias ("Arias"),
appeals his sentence and guilty plea. For the reasons set
forth below, we vacate his guilty plea and sentence and
remand the matter for further proceedings consistent with
In April 2017, Arias was arrested as a result of an
investigation by the Internet Crimes Against Children Task
Force ("ICACTF"). At the time of his arrest, Arias
was on community control sanctions in another case. Arias was
subsequently charged in this case in a 26-count indictment.
He was charged with 16 counts of pandering sexually oriented
matter involving a minor, 9 counts of illegal use of a minor
in nudity-oriented material or performance, and 1 count of
possessing criminal tools. All of the charges constituted
felonies of the second degree, except Counts 25 and 26 - use
of a minor in nudity-oriented material and possessing
criminal tools, which are felonies of the fourth and fifth
In June 2017, Arias entered into a plea agreement with the
state. Arias plead guilty to the sixteen counts of pandering
sexually oriented matter involving a minor (Counts 1-16),
three counts of illegal use of a minor in nudity-oriented
material or performance (Counts 22-24), and one count of
possessing criminal tools (Count 26). The remaining counts
were nolled. The parties agreed that the offenses were
nonallied offenses, Arias would be classified as a Tier II
sex offender, and Arias would forfeit all electronic devices.
The trial court advised Arias of the maximum penalties for
Counts 1-16 and 22-24 (second-degree felonies), but did not
advise Arias of the possible maximum penalties for Count 26,
a fifth-degree felony.
At sentencing, the state advised that this case stemmed from
a cyber tip. Arias was uploading images of child pornography
to his email account. ICACTF investigators executed a search
warrant at the home where Arias was staying with his friend,
his friend's wife, and their seven-year-old son. ICACTF
investigators found child pornography on multiple devices
belonging to Arias. Arias admitted to investigators that he
took naked pictures of the seven-year-old when he would exit
the shower. Arias would hide behind the door and take the
pictures. The state further advised that Arias has a prior
conviction for sharing and downloading child pornography and
is a registered sex offender. Arias was on probation at the
time of sentencing for failing to register in his previous
case, which occurred ten years earlier.
The trial court then sentenced Arias to seven years in prison
on each of Counts 1-16, to be served concurrent to each
other, and seven years on Counts 22 through 24, to be served
concurrent to each other. The court ordered that the sentence
for Counts 1-16 and Counts 22-24 be served consecutive to
each other for a total of 14 years in prison. The court also
sentenced Arias to a consecutive term of 9 months for his
probation violation in his previous case for an aggregate of
14 years and 9 months in prison. The trial court did not
impose a sentence on Count 26 at the sentencing hearing, but
the corresponding journal entry reflects a sentence of 6
months to be served concurrent to the other sentences. The
court also did not imposed costs during the sentencing
hearing, but the corresponding journal entry imposes costs
against Arias in an amount equal to the costs of the
Arias now appeals, raising the following three assignments of
error for review.
Assignment of Error One
[Arias's] plea was not knowingly, intelligent, or
voluntary where he was not clearly and accurately informed ...