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State v. Arias

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 21, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ROBERT M. ARIAS DEFENDANT-APPELLANT

          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

          MARY EILEEN KILBANE, PRESIDING JUDGE.

         {¶1} 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 this opinion.

         {¶2} 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 degree, respectively.[1]

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 prosecution.

         {¶7} 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 ...

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