State v. Smith

[Cite as State v. Smith, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY

State of Ohio                                     Court of Appeals No. L-22-1034

        Appellee                                  Trial Court No. CR0202101613

v.

Remaro Smith                                      DECISION AND JUDGMENT

        Appellant                                 Decided: December 9, 2022

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Francis P. de la Serna, Assistant Prosecuting Attorney, for appellee.

        Tyler Naud Jechura, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Remaro Smith, appeals the judgment of the Lucas County Court

of Common Pleas, convicting him following a plea of guilty to one count of felonious

assault and one count of attempted failure to comply with an order or signal of a police

officer, and sentencing him to a total indefinite prison term of six years and two months

to eight years and eight months. For the reasons that follow, we affirm.
                          I. Facts and Procedural Background

       {¶ 2} On April 29, 2021, the Lucas County Grand Jury returned a three-count

indictment against appellant, charging him with two counts of felonious assault in

violation of R.C. 2903.11(A)(2) and (D), felonies of the second degree, and one count of

failure to comply with an order or signal of a police officer in violation of R.C.

2921.331(B), (C)(1), and (C)(5)(a)(ii), a felony of the third degree. The charges stemmed

from appellant’s conduct whereby he twice rammed his vehicle into another parked,

occupied vehicle, and then fled, leading police on a chase that involved speeds of up to

90 miles per hour.

       {¶ 3} On January 11, 2022, appellant entered a plea pursuant to North Carolina v.

Alford to one count of felonious assault in violation of R.C. 2903.11(A)(2) and (D), a

felony of the second degree, and one amended count of attempted failure to comply with

an order or signal of a police officer in violation of R.C. 2923.02 and 2921.331(B),

(C)(1), and (C)(5)(a)(ii), a felony of the fourth degree. In exchange, the state agreed to

dismiss the second count of felonious assault. Although not mentioned during the plea

hearing, or in the plea form, the state concedes that as an additional part of the plea deal

the state agreed to remain silent at sentencing. The trial court accepted appellant’s plea,

found him guilty, ordered a presentence investigation report, and set the matter for a

sentencing hearing.




2.
       {¶ 4} At the sentencing hearing, defense counsel spoke in mitigation. While

acknowledging that appellant has a poor criminal record consisting of 17 prior

convictions, counsel argued that for the six or seven months prior to the incident,

appellant had been doing well with a strong support system. Unfortunately, on the night

of the incident, a confluence of factors including appellant’s lack of sleep, failure to take

his mental health medications, and alcohol consumption led appellant to act irrationally.

Counsel requested that the court sentence appellant on the lower range, and provide

access to mental health and substance abuse services so that appellant could return to

society and have a positive relationship with his wife and children.

       {¶ 5} After counsel and appellant addressed the court, the court asked the

prosecutor if he had anything to add, and the following exchange occurred:

              THE COURT: Anything from the State?

              [THE STATE]: Judge, simply that I believe the Defendant’s record

       speaks for itself, and this conduct is almost a mirror of what he’s been

       convicted of in multiple other states.

              (Whereupon, a discussion was held off the record.)

              [THE STATE]: May we approach, Judge?

              THE COURT: Yes.

              (Whereupon, a bench discussion was held off the record.)




3.
              [THE STATE]: Judge, pursuant to the plea agreement, Defense

       counsel advised me that there was an agreement that the State stay silent, so

       I would ask that any statement be stricken from the record and ask the

       Court not to consider anything that I have said in regards to sentencing and

       ask the Court to proceed. Thank you.

       {¶ 6} Following that exchange, the trial court addressed appellant and commented

on the circumstances of appellant’s offense. The court also noted that appellant was a

multi-state offender, that he had several convictions for violent offenses, and that he had

17 prior felony convictions and nine misdemeanor convictions. The court then ordered

appellant to serve an indefinite prison term of five to seven-and-one-half years in prison

on the count of felonious assault, and 17 months in prison on the count of failure to

comply. The court further ordered that those sentences must be served consecutively.

                                 II. Assignment of Error

       {¶ 7} Appellant has timely appealed his judgment of conviction, and now raises

one assignment of error for our review:

              I. The trial court committed plain error and prejudiced the defendant

       by continuing to sentence the defendant after the prosecutor alleged facts

       disfavorable (sic) to the defendant when the prosecutor had agreed to

       remain silent.




4.
                                        III. Analysis

       {¶ 8} In support of his assignment of error, appellant argues that it was plain error

for the trial court to continue to sentence appellant after the state informed the court that

appellant had been convicted of offenses in multiple other states. Appellant argues that

the trial court judge should have recused herself, and sentencing should have proceeded

in front of a different judge.

       {¶ 9} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” Plain

error does not exist unless, “but for the error, the outcome of the [proceeding] clearly

would have been otherwise.” State v. Long, 

, 

(1978). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” 

 Here, the record does not support a finding of plain error.

       {¶ 10} In State v. Shell, 6th Dist. Sandusky No. S-19-015, 

, this

court addressed a similar situation where the prosecutor spoke at sentencing despite an

agreement to remain silent. In that case, the prosecutor stated that the defendant was “a

drug addict with no control,” and “I think there -- has to be punishment, and I think there

has to be the opportunity for -- for fixing the problem so that we don’t end up back here *

* * * I don’t know what to do, but I don’t think prison is the answer.” Id. at ¶ 5. On

appeal, this court recognized that the prosecutor erred by speaking at the sentencing




5.
hearing. Id. at ¶ 12. Nonetheless, this court found that the error did not rise to the level

of plain error “given the absence of any evidence that the trial court relied on the

prosecutor’s comments.” Id. This court reasoned that the trial court rejected the

prosecutor’s recommendation to impose community control, and sentenced the defendant

to incarceration even though it was informed by the prosecutor that it could only send the

defendant to jail, not prison. Id. Thus, this court concluded that there was no evidence

that the prosecutor’s statements had any impact on the trial court, and therefore the

defendant could not show plain error. Id.

       {¶ 11} Here, there is similarly no evidence that the prosecutor’s statements had

any impact on the trial court’s imposition of sentence. When sentencing a defendant, “a

judge is presumed to be capable of separating what may be properly considered from

what may not be considered.” State v. Ford, 

, 

, 

, ¶ 433, quoting In re Disqualification of Forsthoefel, 

,

, 

. In this case, the prosecutor was made aware of his

error, and immediately requested that his comments be stricken from the record. Because

the state requested the comments be stricken, we presume that the trial court did not

consider them. Appellant attempts to rebut this presumption by arguing that the court did

consider the statements as evidenced by the fact that the prosecutor referred to appellant’s

convictions in “multiple other states,” and the trial court described appellant as a “multi-

state offender.” However, appellant’s argument is unpersuasive in that appellant’s




6.
criminal history was readily available to the court from the presentence investigation

report.

          {¶ 12} Moreover, even if the trial court did consider the prosecutor’s statements, it

did not constitute plain error in this case. Here, the prosecutor’s statements were

arguably more innocuous than in Shell, and only pointed out that appellant’s record

speaks for itself and that appellant’s present conduct is similar to what he has been

convicted of in other states. In addition, although the trial court passingly mentioned that

appellant was a multi-state offender, the court devoted its attention to appellant’s conduct

in committing the offenses, and his criminal history that included 17 prior felony

convictions. Based on the record, we do not find that these are exceptional circumstances

where the outcome of the proceedings clearly would have been otherwise but for the

error. Therefore, we hold that the trial court did not commit plain error when it continued

to sentence appellant after the prosecutor spoke at the sentencing hearing.

          {¶ 13} Accordingly, appellant’s assignment of error is not well-taken.

                                        IV. Conclusion

          {¶ 14} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                           Judgment affirmed.




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                                                                               State of Ohio
                                                                           v. Remaro Smith
                                                                                  L-22-1034




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         ____________________________
                                                         JUDGE
Thomas J. Osowik, J.
                                                 ____________________________
Christine E. Mayle, J.                                   JUDGE
CONCUR.
                                                 ____________________________
                                                         JUDGE


          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.supremecourt.ohio.gov/ROD/docs/.




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