author: KATHLEEN ANN KEOUGH, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Angela GROOMS, Defendant-Appellant
    No. 105874
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 22, 2018
    Britta M. Barthol, P.O. Box 670218, Northfield, Ohio 44067, ATTORNEY FOR APPELLANT,
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Jonathan Block, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE,
    BEFORE: Keough, J., Boyle, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant Angela Grooms appeals her convictions. For the reasons that follow, we affirm.

{¶ 2} In December 2015, Grooms was named in a two-count indictment charging her with one count each of trafficking in or illegal use of foods stamps and tampering with records. The case proceeded to trial where the jury heard the following evidence.

{¶ 3} On November 7, 2013, Cuyahoga County Job and Family Services ("CCJFS") received a complaint that Grooms may have been receiving food assistance benefits that she was not entitled to receive. Naomi Benson ("Benson") testified that this alert caused her to screen Grooms's file, where she discovered that the addresses listed for Grooms did not match and that Grooms may have earned income that was not reported. Based on a review of the case file, an investigation commenced. According to Benson, an investigation consists of contacting the client's employer and landlord, and confirming rent, utilities, and members of the household. Benson explained that food assistance benefits are determined based on these factors. As a result of the investigation, it was discovered that Grooms received an overpayment in benefits of $10,658 from April 2012 until April 2014.

{¶ 4} Simeon Best, supervisor in the investigation department of CCJFS, testified about the process of receiving assistance benefits. He explained that when a person applies for benefits, the factors considered to determine eligibility are earned and unearned income, employment, residency, household makeup, and cost of living. He explained that these factors are computed into a formula that determines the amount of benefits, if any. After a person is found eligible, the client is then advised about their rights and responsibilities, including their responsibility to timely report any changes of circumstances. Additionally, every six months, the client is required to file an interim report to report any changes to their income, rent, utilities, and household makeup. Finally, a yearly redetermination process occurs where the case worker speaks with the client to verify eligibility and amount of benefits.

{¶ 5} Best testified that in Grooms's case, the investigation began by verifying all the information in the file, including contacting Grooms's employer and landlord. As part of the investigation, they discovered that Grooms was not residing at the address she provided to CCJFS during the period of April 2012 through April 2014. According to the department's records, Grooms reported during that period that she was residing at a Fairhill residence in Shaker Heights and had rent expenses of $760 per month. Based on their investigation, this information was false. Additionally, CCJFS received a September 2014 rent receipt from Gooms for rent for the Fairhill address in the amount of $900. This was also proven to be false. According to Best, Grooms's failure to update her address with CCJFS violated the policies and procedures for receiving benefits. Additionally, the interim report submitted by Grooms during April 2012 to April 2014 where she reported "no change" in her living circumstances was false.

{¶ 6} Sheree Maryash, office manager for L & A Management, which owns the Fairhill property, testified that Grooms lived at the Fairhill address from October 22, 2000 until she was evicted in August 2011 for nonpayment of rent. Grooms's rental obligation was $760 per month. According to Maryash, Grooms vacated the premises on September 26, 2011, but last paid rent in May 2011. Maryash testified that the September 2014 rent receipt presented to CCJFS depicting that Grooms paid $900 in rent for the Fairhill property was not a receipt generated by her or by management.

{¶ 7} Best also testified, over objection, about documents that CCJFS received during the investigation from Grooms's employer, Victor Stewart of Stewart Enterprises. The documents revealed that Grooms was employed by Stewart from October 2012 to August 2013. The documents also disclosed that after Grooms was terminated from Stewart Enterprises, she received unemployment benefits through 2014. Best testified that Grooms did not report either her earned or unearned income to the CCJFS. According to Best, the income would have made her ineligible to receive benefits.

{¶ 8} Best further testified about the procedure the agency followed after it was alerted that Grooms's eligibility may have changed. Once the alert occurs, the agency sends out a letter requesting verification of benefits. If after ten days nothing is received, a second letter is sent. If after 15 days and no response is received, it is the policy to terminate benefits. However, in Grooms's case, the benefits inadvertently continued. Best testified that despite this error, he determined Grooms's continued receipt of benefits was an intentional program violation because Grooms repeatedly failed to update her address, residence, and income. On cross-examination, both Best and Benson admitted that an agency error occurred during this time period. The agency error was the case worker's failure to terminate benefits after Grooms failed to return the verification of benefits inquiry. However, even if an agency error occurs, the client is still responsible for repayment of any overpayment. Benson testified that had the case been properly handled, Grooms would have stopped receiving benefits in March 2013.

{¶ 9} Grooms was found guilty of trafficking in or illegal use of food stamps and tampering with records. The court sentenced her to two years of community control sanctions and ordered her to pay $10,658 in restitution.

{¶ 10} Grooms now appeals, raising three assignments of error.

I. Effective Assistance of Counsel

{¶ 11} In her first assignment of error, Grooms contends her counsel was ineffective for failing to file a pretrial motion to dismiss.

{¶ 12} To establish ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's performance fell below an objective standard of reasonable representation, and (2) he was prejudiced by that performance. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 694, 104 S.Ct. 2052.

{¶ 13} In this case, Grooms contends that counsel was ineffective for failing to file a motion to dismiss based on the state's failure to comply with Ohio Adm.Code 5101:4-8-15. Specifically, she contends that because the state did not comply with the time frames specified in the Ohio Administrative Code, the state failed to comply with the statute of limitations pertaining to crimes related to the improper receipt of food stamp benefits. She appears to argue that the Ohio Administrative Code provides the relevant statute of limitations.

{¶ 14} The provisions of the Ohio Administrative Code are not law, but merely supplements to the Revised Code. State v. Cooper , 2016-Ohio-8048, 75 N.E.3d 805, ¶ 47 (8th Dist.), citing N. Ohioans Protecting the Environment v. Shank , 52 Ohio App.3d 41, 43, 557 N.E.2d 126 (10th Dist.1988). Ohio Adm.Code 5101:4-8-15 governs food assistance claims against assistance groups. Grooms contends subsection (L) creates a statute of limitations for crimes related to improper receipt of food stamp benefits. We disagree.

{¶ 15} Ohio Adm.Code 5101:4-8-15(L) sets forth the claim management process and time frames for establishing claims against any assistance group that trafficked benefits or received more food assistance benefits than it was entitled to receive. Accordingly, Ohio Adm.Code 5101:4-8-15 does not apply to criminal investigations; it is applicable to a civil sanction based on defined misappropriation of benefits.

{¶ 16} R.C. 2901.13 is the statutory provision that governs the determination of the statute of limitations for criminal prosecutions. In this case, Grooms was charged with third-degree felony violations of trafficking in or illegal use of food stamps in violation of R.C. 2913.46(B), and tampering with records in violation of R.C. 2913.42(A)(1).

{¶ 17} Pursuant to R.C. 2901.13(A)(1), the relevant statutory period for any felony other than murder is six years. Therefore, the statute of limitations pertaining to crimes related to the improper receipt of food stamp benefits is six years. Because the alleged offenses occurred between April 1, 2012 and April 30, 2014, and the indictment was filed against Grooms on December 10, 2015, the case was brought within the relevant statutory period of six years.

{¶ 18} Accordingly, counsel was not ineffective for failing to file a futile motion to dismiss for a statute of limitations violation because criminal prosecution commenced against Grooms within the relevant statute of limitations period for a third-degree felony. Grooms's first assignment of error is overruled.

II. Hearsay Testimony

{¶ 19} During trial and over objection, the trial court admitted exhibit No. 6, which consisted of various documents provided to CCJFS from Stewart Enterprises, Grooms's employer. The trial court determined that the documents were admissible under the business records exception to the hearsay rule. In her second assignment of error, Grooms contends that the trial court abused its discretion in admitting this prejudicial hearsay testimony.

{¶ 20} A trial court possesses broad discretion regarding the admission of evidence, including the discretion to determine whether evidence constitutes hearsay and whether it is admissible hearsay. State v. Graves , 9th Dist. Lorain No. 08CA009397, 2009-Ohio-1133, 2009 WL 653091, ¶ 4. Abuse of that discretion implies that the court's attitude was unreasonable, arbitrary, and unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 21} In this case, Victor Stewart, the owner of Stewart Enterprises, did not testify, but Best testified regarding the nature and content of exhibit No. 6, which consisted of the Stewart employment records. Included in these records was a letter sent to Grooms from Stewart dated August 31, 2013. The subject of the letter was a "notice of termination." The letter advised Grooms that she was terminated from Stewart Enterprises, the basis why she was terminated, and instructions on returning property belonging to Stewart Enterprises. The exhibit also contained a letter from Stewart to the Ohio Department of Job and Family Services ("ODJFS"), Office of Unemployment Compensation regarding the determination of unemployment benefits. Exhibit No. 6 also contained a letter from Stewart to Michael B. Colbert, the director of ODJFS, requesting that Grooms be investigated for fraud. Attached to the letter was documentation from ODJFS revealing that Grooms was receiving unemployment compensation benefits for August and September 2013 and August and September 2014.

{¶ 22} " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within one of the exceptions listed in Evid.R. 803.

{¶ 23} Evid.R. 803(6) provides the "business records exception" to the hearsay rule and states that the following records are not excluded by the hearsay rule:

memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

This rule allows the admission of business records if they are made in the course of a regularly conducted business activity because the courts presume that such records are trustworthy given the self-interest to be served by the accuracy of such entries. Weis v. Weis , 147 Ohio St. 416, 425-426, 72 N.E.2d 245 (1947).

{¶ 24} To qualify for the business-records exception, a record must meet the following criteria: (1) the record must be one recorded regularly in a regularly conducted activity, (2) a person with knowledge of the act, event, or condition recorded must have made the record, (3) it must have been recorded at or near the time of the act, event, or condition, and (4) the party who seeks to introduce the record must lay a foundation through testimony of the record custodian or some other qualified witness. State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171.

{¶ 25} In this case, the business records at issue are letters and unemployment compensations records from Stewart that were provided to CCJFS. While they may be part of the agency's file, the records themselves are business records of Stewart Enterprises, not CCJFS. Accordingly, absent any testimony from a witness who was the custodian of Stewart's records, or a qualified witness who could attest to the business records of Stewart, the trial court abused its discretion in admitting these records at trial.

{¶ 26} Best's testimony was offered to prove the truth of the matter asserted-that Grooms had been employed with Stewart Enterprises on specific dates. Best, an employee of CCJFS, could testify how the agency obtained the letters, but Best could not testify about their content. He had no personal knowledge regarding (1) whether the document was prepared and maintained in the course of a regularly conducted business activity, and (2) the content of Stewart's letter or the employment records attached thereto. Best is not the custodian of the Stewart exhibit, by his own testimony, and he is also not an "other qualified witness" as provided by Evid.R. 901(B)(10) and could not authenticate the exhibits as a business record of Stewart Enterprises. State v. Hood , 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 40 (a qualified witness is someone with enough familiarity with the record-keeping system of the business to explain how the record came into existence in the ordinary course of business). Best's testimony was only based on a review of Grooms's CCJFS file. "There is no hearsay exception, either in Evid.R. 803 or 804, that allows a witness to give hearsay testimony of the content of business records only upon a review of the records."

St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. , 8 Ohio App.3d 155, 157, 456 N.E.2d 551 (1982), paragraph one of the syllabus. Accordingly, the trial court abused its discretion in admitting the Stewart letters.

{¶ 27} However, pursuant to Crim.R. 52(A), "any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." To find an error harmless, a reviewing court must be able to declare a belief that the error was harmless beyond a reasonable doubt. State v. Lytle , 48 Ohio St.2d 391, 403, 358 N.E.2d 623 (1976). A reviewing court may overlook an error where the remaining admissible evidence, standing alone, constitutes "overwhelming" proof of a defendant's guilt. State v. Williams , 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983). "Where there is no reasonable possibility that unlawful testimony contributed to a conviction, the error is harmless and therefore will not be grounds for reversal." State v. Brown , 65 Ohio St.3d 483, 485, 605 N.E.2d 46 (1992).

{¶ 28} In this case, the jury also heard testimony that Grooms did not update her information with CCJFS regarding her place of residence and rent. Benson and Best both testified that in determining eligibility and computing benefits, multiple factors are considered, including rental obligation and household makeup. Best also testified that failing to report any change in rent or household makeup violates the policies, rules, and reporting responsibilities of which clients are advised at the time benefits are determined. Testimony and evidence was presented that despite being evicted from the Fairhill property in August 2011, Grooms did not update this change with CCJFS. In fact, Grooms continued using the Fairhill address as her place of residence with CCJFS and submitted a falsified receipt claiming that she paid $900 rent for the Fairhill property in 2014. Best testified that based on Grooms's misrepresentations, Grooms received an overpayment of benefits.

{¶ 29} Additionally, other agency exhibits were admitted and not objected to that provided information on Grooms's employment with Stewart Enterprises. Exhibit No. 5, which was the agency's benefit calculation worksheets, contained internal agency notes stating the dates Grooms started working for Stewart Enterprises and the amount of income she was receiving.

{¶ 30} Accordingly, the letters authored by Stewart were inadmissible under the Evid.R. 803(6) as business records. However, the error was harmless because other admissible evidence was presented for the jury to conclude that Grooms did not report income she was receiving from April 2012 until April 2014. Additionally, Grooms's convictions were also based on her failure to notify CCJFS of her change of address, rental obligations and repeated nondisclosure of her change of circumstances.

{¶ 31} Accordingly, Grooms's second assignment of error is overruled.

III. Manifest Weight

{¶ 32} Grooms contends in her third assignment of error that her convictions for trafficking in or illegal use of food stamps and tampering with records were against the manifest weight of the evidence.

{¶ 33} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. A reviewing court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Thompkins , 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of the evidence only in the most "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 34} In this case, Grooms was charged with trafficking in or illegal use of food stamps in violation of R.C. 2913.46(B), which prohibits a person from "knowingly possessing, buying, selling, using, altering, accepting, or transferring supplemental nutrition assistance program benefits, WIC program benefits, or any electronically transferred benefit in any manner not authorized by the Food and Nutrition Act of 2008 ( 7 U.S.C. 2011 et seq. ) or section 17 of the 'Child Welfare Nutrition Act of 1966,' 80 Stat. 885, 42 U.S.C. 1786, as amended."

{¶ 35} Best testified that Grooms was receiving nutrition assistance program benefits, commonly referred to as "food stamps," through CCJFS. He stated that benefits are determined based on a calculation of earned and unearned income, rent, utilities, and household makeup. According to Best, Grooms's failure to report her income and update her rental obligations caused her to receive an overpayment of $10,658 from April 2012 to April 2014. Grooms indicated on her interim reports during that time frame that "no change" existed, despite testimony and evidence clearly showing that she longer resided at the Fairhill address and that she was receiving either earned or unearned income during that time frame. Her failure to report was a knowing violation of R.C. 2913.46(B), and her conviction was not against the manifest weight of the evidence.

{¶ 36} Additionally, in light of Grooms's failure to update her information with CCJFS, and falsely reporting "no change" on government documents, the jury did not lose its way in finding that Grooms tampered with records in violation of R.C. 2913.42(A)(1). That section provides that "no person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record." The weight of the evidence demonstrated that Grooms acted with purpose to defraud by failing to report the changes in her income and residence, while continuing to receive benefits as originally calculated.

{¶ 37} Accordingly, Grooms's convictions are not against the manifest weight of the evidence. Her third assignment of error is overruled.

{¶ 38} Judgment affirmed.

MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR


source: Caselaw Access Project

author: EILEEN A. GALLAGHER, A.J.:

license: Public Domain

text:
    IN RE: Investigation Into the November 22, 2014 Shooting Death of Tamir RICE, a Minor
    [Appeal by Reverend Kyle Earley, Reverend Larry Howard and Michelle Kinney]
    No. 105707
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 22, 2018
    James L. Hardiman, 3615 Superior Avenue, Suite 3101-D, Cleveland, Ohio 44114, Michael L. Nelson, 55 Public Square, Suite 1055, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANTS.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Kristen L. Sobieski, Matthew E. Meyer, Assistant Prosecuting Attorneys, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: E.A. Gallagher, A.J., Boyle, J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, A.J.:

{¶ 1} Petitioners-appellants Reverend Kyle Earley, Reverend Larry Howard and Michelle Kinney (collectively "appellants") appeal the decision of the Cuyahoga County Court of Common Pleas denying their petition for release of selected portions of the transcripts and exhibits from the Cuyahoga County Grand Jury proceedings relating to the investigation of the November 22, 2014 shooting death of Tamir Rice. Based on the record before us, we cannot say that the trial court abused its discretion in denying appellants' petition. Accordingly, for the reasons that follow, we affirm the trial court's decision.

Factual and Procedural Background

{¶ 2} On January 31, 2017, appellants filed a petition seeking the release of all grand jury transcripts and exhibits related to the investigation into the death of Tamir Rice. On February 9, 2017, they filed an amended petition limiting their request to the release of the following grand jury materials related to the Tamir Rice case:

(1) all exhibits, including but not limited to diagrams, charts and photographs,
(2) all written statements submitted to or considered by the Grand Jury,
(3) all expert reports submitted to or considered by the Grand Jury,
(4) the testimony of experts who testified before the Grand Jury,
(5) all law enforcement reports submitted to or considered by the Grand Jury, and
(6) transcripts of all special instructions and arguments provided to the Grand Jury by the Prosecuting Attorneys.

Appellants are three individual citizens who are active members of the Cleveland Branch of the National Association for the Advancement of Colored People ("NAACP"). They have no legal interest in the Tamir Rice matter other than as concerned citizens and as representatives of the NAACP. In their amended petition, appellants asserted that the release of the requested grand jury materials "is of great public interest and will enhance the public's knowledge and understanding of the methods by which this particular Grand Jury conducted its investigation and reached its decision." Appellants further asserted that given the former prosecuting attorney's prior "selective release" of information relating to the grand jury proceedings, including the identity of certain witnesses who testified before the grand jury and the release of certain expert reports and data related to the investigation, releasing the requested grand jury materials "would serve the ends of justice based on the NAACP's and the general public's particularized need for disclosure which outweighs the need for secrecy."

{¶ 3} The state filed a response indicating that it had no objection to a "limited release" of the portion of the grand jury transcripts containing "the prosecutors' legal instructions and voting instructions" given the "compelling public interests unique to this case" and the existence of "a legitimate public concern * * * concerning the manner in which the grand jury receive[d] legal instruction and voted on the issues in the case." However, the state opposed the release of the other grand jury materials appellants requested. The state further indicated that its response "should not be viewed as precedent and is instead tailored to the specific, unique facts of the case at bar."

{¶ 4} On March 27, 2017, the trial court denied appellants' petition, concluding that disclosure of the requested grand jury transcripts and exhibits was not authorized under Ohio law. As the court explained:

The shooting death of Tamir Rice has received an enormous amount of media coverage. There have been vigils and community protests demonstrating strong public interest in the particulars of the investigation. However, this alone is insufficient grounds to set aside the dictates of Criminal Rule 6(E) or to allow for an exception which would persuade this court to grant the petition. Petitioners have failed to show a particularized need for the transcripts. To grant the petition would erode the plain language of Criminal Rule 6(E). Furthermore, the investigation into Tamir Rice's death only concluded four months ago and * * * disciplinary proceedings are presently underway.
This court recognizes Petitioners' well-intentioned request. However, based on an analysis of Criminal Rule 6(E), the limited precedent available and the reasons set forth in the foregoing opinion, the petition must be denied. To do otherwise would eviscerate the historical practice of guarding the secrecy of grand jury proceedings. Release herein could set precedent whereby eventually any entity for almost any reason could be granted release of grand jury transcripts.

{¶ 5} Appellants appealed the trial court's decision, raising two assignments of error for review:

Assignment of Error I:
The court that oversees the grand jury proceedings possesses the authority to release transcripts and exhibits related to those proceedings notwithstanding Criminal Rule 6(E)'s secrecy provisions.
Assignment of Error II:
In light of the unique facts surrounding this case, the irregularities reflected in the grand jury proceeding itself, and the interests of justice that transparency would serve, the court should have granted the requested release.

Law and Analysis

Standard of Review

{¶ 6} When considering the issues raised by this appeal, we are mindful of the deference we must give to the trial court's decision in this case. A trial court's decision whether to release grand jury materials is reviewed for abuse of discretion. State v. Coley , 93 Ohio St.3d 253, 261, 263, 754 N.E.2d 1129 (2001), citing State v. Brown , 38 Ohio St.3d 305, 308, 528 N.E.2d 523 (1988). In applying an abuse of discretion standard, a reviewing court is not free to simply substitute its judgment for that of the trial court. Berk v. Matthews , 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). An abuse of discretion occurs where a decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). " 'A decision is unreasonable if there is no sound reasoning process that would support that decision.' " Ockunzzi v. Smith , 8th Dist. Cuyahoga No. 102347, 2015-Ohio-2708, 2015 WL 4049089, ¶ 9, quoting AAAA Ents. Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of discretion may also occur where the trial court " 'applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.' " Ockunzzi at ¶ 9, quoting Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.) ; see also Flemco, LLC v. 12307 St. Clair, Ltd. , 8th Dist. Cuyahoga No. 105956, 2018-Ohio-588, 2018 WL 904808, ¶ 15 ("A discretionary act that reaches an end or purpose clearly against reason and evidence is an abuse of discretion."); Trustar Funding, L.L.C. v. Harper , 8th Dist. Cuyahoga No. 105837, 2018-Ohio-495, 2018 WL 776601, ¶ 7 ("To find that a trial court abused its discretion, 'the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias.' "), quoting Nakoff v. Fairview Gen. Hosp. , 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996).

The Origins of Grand Jury Proceedings

{¶ 7} The modern grand jury traces its origins to the Assize of Clarendon, an enactment of King Henry II in 1166. The Assize called for an inquiry to be made, upon the oath of twelve men from every hundred and four men from every village, of persons publicly suspected of robbery, theft or murder. The crimes to be investigated were expanded, over succeeding years, to include almost all serious crimes.

{¶ 8} In this country, the grand jury is " 'a constitutional fixture in its own right.' " United States v. Williams , 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), quoting United States v. Chanen , 549 F.2d 1306, 1312 (9th Cir. 1977). The Fifth Amendment to the United States Constitution states, in relevant part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury * * *." See also Ohio Constitution, Article I, Section 10. The function of a grand jury is to inquire whether sufficient evidence exists to put an individual on trial for alleged criminal conduct, but it also serves as a shield against unfounded and oppressive prosecution.

Ohio Grand Jury Proceedings

{¶ 9} R.C. Chapter 2939 and Crim.R. 6 govern grand jury proceedings in Ohio. Once a grand jury is impaneled, the common pleas court administers an oath that requires the grand jurors to swear or affirm, among other things, that they will "diligently inquire into and carefully deliberate all matters that shall come to [their] attention," that they "will keep secret all proceedings of the grand jury unless [they] are required in a court of justice to make disclosure," that they "will indict no person through malice, hatred, or ill will," that they "will not leave unindicted any person through fear, favor, or affection, or for any reward or hope thereof" and that "in * * * deliberations [they] will present the truth, the whole truth, and nothing but the truth, according to the best of [their] skill and understanding * * *." R.C. 2939.06(A) ; see also R.C. 2939.07 ("The grand jurors, after being sworn, shall be charged as to their duty by the judge of the court of common pleas, who shall call their attention particularly to the obligation of secrecy which their oaths impose, and explain to them the law applicable to such matters as may be brought before them."). The secrecy of the grand jury is crucial. Although the prosecuting attorney or an assistant prosecuting attorney may appear before the grand jury to interrogate witnesses, "to give information relative to a matter cognizable by it" or to give "advice upon a legal matter when required," no person other than the grand jurors may remain in the room while the grand jurors are expressing their views or voting on the matters before them. R.C. 2939.10. The process is ex parte, or one-sided, presenting only the side of the state.

Disclosure of Grand Jury Proceedings

{¶ 10} Crim.R. 6(E) governs the disclosure of grand jury proceedings. It provides:

Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror, prosecuting attorney, interpreter, stenographer, operator of a recording device, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No grand juror, officer of the court, or other person shall disclose that an indictment has been found against a person before such indictment is filed and the case docketed. The court may direct that an indictment shall be kept secret until the defendant is in custody or has been released pursuant to Rule 46. In that event the clerk shall seal the indictment, the indictment shall not be docketed by name until after the apprehension of the accused, and no person shall disclose the finding of the indictment except when necessary for the issuance of a warrant or summons. No obligation of secrecy may be imposed upon any person except in accordance with this rule.

See also R.C. 2939.11 (imposing obligation of secrecy on court reporter transcribing grand jury proceedings); R.C. 2939.18 ("No grand juror, officer of the court, or other person shall disclose that an indictment has been found against a person not in custody or under bail, before such indictment is filed and the case docketed, except by the issue of process.").

{¶ 11} The Ohio Supreme Court has held that a supervising court may order disclosure of evidence presented to a grand jury "only after the court carefully weighs the need to maintain the secrecy of the grand jury proceedings against [the] petitioner's need for the information and determines that justice can only be done if disclosure is made." In re Petition for Disclosure of Evidence Presented to Franklin Cty. Grand Juries in 1970 , 63 Ohio St.2d 212, 218, 407 N.E.2d 513 (1980).

When presented with a petition for disclosure of grand jury materials, the supervising court must determine whether the petitioner has demonstrated a "particularized need" for disclosure of the materials that outweighs the need for secrecy. State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph two of the syllabus. The determination of whether a particularized need for disclosure exists is a matter within the sound discretion of the trial court. State v. Grewell, 45 Ohio St.3d 4, 9, 543 N.E.2d 93 (1989).

{¶ 12} In Greer , a defendant sought to examine the complete transcript of a witness' grand jury testimony to determine whether there were any inconsistencies with his testimony at trial. Greer at 143, 420 N.E.2d 982. The Ohio Supreme Court held that because the defendant had established a particularized need for the witness' grand jury testimony for impeachment purposes, all of the witness' pertinent grand jury testimony should have been given to the defendant. Id. at 151, 420 N.E.2d 982.

{¶ 13} Like Greer , most of the Ohio cases that discuss disclosure of grand jury materials involve a balancing of the rights of an accused who is seeking disclosure of grand jury materials against the desire to maintain grand jury secrecy. These cases hold that even a defendant is not entitled to grand jury materials "unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy."See, e.g., Greer at paragraph two of the syllabus. A "particularized need" is established "when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial." State v. Sellards , 17 Ohio St.3d 169, 173, 478 N.E.2d 781 (1985).

{¶ 14} Appellants have cited no cases in their appellate brief in which grand jury transcripts or exhibits were disclosed under circumstances similar to those here.

{¶ 15} In In re Grand Jury Investigation , 61 Ohio Misc.2d 583, 580 N.E.2d 868 (Hamilton C.P. 1991), the Hamilton County Court of Common Pleas denied a petition filed by the county prosecutor for an order to release grand jury transcripts involving allegations of misconduct by certain county building inspectors to the Hamilton County Board of County Commissioners. Id. at 584, 580 N.E.2d 868. No indictments were returned by the grand jury. Id. The request was based upon two claims: (1) that the transcripts would assist the board in disciplinary hearings that were pending against several building inspectors and (2) that "they would dispel allegedly unfounded criticism of the grand jury, which criticism engenders disrespect for the justice system and is a disservice to the community." Id. The court refused to apply an "historical-interest exception" to grand jury secrecy, reasoning as follows:

[T]he historical-interest exception, has been invoked with extreme rarity. Under this exception, grand jury proceedings have been opened to the public in a long-completed case of historical interest, or in a recent case involving matters of unique, statewide, historical interest. Needless to say, the present case, despite the inflamed rhetoric which has surrounded it, is not possessed of such uniqueness or historical value as to justify the use of this rare exception. The persons involved are still very much alive; and disciplinary proceedings related to this matter are just about to begin. If the grand jury proceedings in this case were to be opened to the public on the basis of the historical-interest exception, the secrecy of the grand jury would be trivialized, and such secrecy violable in virtually every publicized case involving some controversy, real or manufactured.

Id. at 593-594, 580 N.E.2d 868.

{¶ 16} In State v. Kearney , 109 N.J.Super. 502, 263 A.2d 817 (1970), a New Jersey court denied the prosecuting attorney's request to release grand jury materials to the public after the defendants were acquitted of all charges in murder cases. The prosecutor had been criticized in an article published in the March 1970 edition of Look Magazine , a national publication. Id. at 504, 263 A.2d 817. The prosecutor asserted that the article did not present an accurate picture of the investigation, that if it went unanswered it would undermine public confidence in law enforcement and that public disclosure of the grand jury materials was, therefore, necessary to prevent "a great travesty upon justice and irreparable harm to members of the Passaic County Prosecutor's Office." Id.

{¶ 17} The court denied the request, concluding that public disclosure of the grand jury materials was not sanctioned under the law, that the prosecutor was merely seeking to "retry the cases in the press" and that "use of the news media as a forum for the resolution of issues in criminal cases has been disapproved." Id. at 505-506, 263 A.2d 817, citing Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.E.2d 600 (1966).

{¶ 18} It is critical to its functioning that the secretive nature of the work of a grand jury remain sacrosanct and inviolable. As such, that secrecy has long been "jealously guarded" by Ohio courts. State v. Tenbrook, 34 Ohio Misc.2d 14, 15, 517 N.E.2d 1046 (Cuyahoga C.P. 1987), citing State v. Rhoads , 81 Ohio St. 397, 91 N.E. 186 (1910). The interest in the secrecy of grand jury proceedings is not eliminated when an investigation has ended because disclosure could affect the functioning of future grand juries.

{¶ 19} Every matter that is brought before the citizens of this county who have been entrusted by their fellow citizens to serve as grand jurors is important to someone. In each such case, there are individuals who are obviously interested in the outcome, including the accused or someone who has been in some manner aggrieved, e.g., a victim. Few cases have incited such community outrage as that surrounding the shooting death of Tamir Rice. The fact that the office of the former prosecuting attorney disseminated selected portions of the evidence presented to the grand jury under the guise of "transparency" was inappropriate.

{¶ 20} Nevertheless, appellants have not shown that they are entitled to the grand jury materials they seek under Ohio law. Appellant's request for disclosure is not for use "preliminary to or in connection with a judicial proceeding" or for any other purpose for which disclosure is authorized under Crim.R. 6(E). Further, appellants have made no showing of a "particularized need" for this information that outweighs the need for secrecy of the grand jury proceedings. There is no Ohio case law or other authority that supports the release of grand jury transcripts and exhibits to persons who are merely interested in the proceedings. Grand jury proceedings are secret and are not be disclosed to the public to satisfy its curiosity regarding what occurred during those proceedings.

{¶ 21} In this case, the record shows that the trial court carefully considered appellants' petition and the state's response. In a thoughtful, well-reasoned opinion, the trial court concluded that there was no basis under Ohio law for disclosure of the requested grand jury materials to the appellants. We cannot say that the trial court acted unreasonably, arbitrarily or unconscionably in denying the appellants' petition. Accordingly, we overrule the appellants' assignments of error.

{¶ 22} Judgment affirmed.

MARY J. BOYLE, J., and EILEEN T. GALLAGHER, J., CONCUR

      Although they do not cite it in the brief they filed with this court, below appellants cited In re May , 13 Media L. Rptr. 2198 (S.D.N.Y. 1987), in support of their claim that courts have discretion to release grand jury transcripts "in the interest of public transparency." The decision in that case was originally published but was later withdrawn from publication at the request of the issuing court. See 651 F. Supp. 457. In May , Gary May, an associate professor of history at the University of Delaware, was writing a book about William Walter Remington, a public official during the McCarthy era, who was accused of being a communist.
      May filed a petition seeking the release of the minutes of a special federal grand jury that had been in session from December 1948 to June 1950 to the extent they pertained to Remington. The United States District Court for the Southern District of New York granted the petition based upon the historical significance of the Remington case, extensive prior litigation regarding alleged improprieties in the grand jury proceedings, extensive previous disclosures of portions of the grand jury transcripts and the fact that the events underlying the grand jury investigation had occurred more than 35 years prior and the principals were all, but for Remington's former wife (who had already been interviewed by May), dead. May at 2199.
      The court noted that although May's petition did not fall "within the legislatively defined exceptions of Fed. R. Crim. P. 6(e), * * * in an extraordinary case the court need not confine itself to the strictures of Rules 6(e) [sic], but may exercise its discretion to permit disclosure." Id. Ultimately, the court held that "[i]n the circumstances of this case, we find a considerable public interest in disclosure and no interest in continued grand jury secrecy." Id.
      As the trial court observed, this case presents a very different scenario from that in May . Among other things, the grand jury proceedings here are recent in time and there were pending disciplinary hearings for the individuals involved in the shooting at the time the trial court ruled on appellants' petition.


author: FRANK D. CELEBREZZE, JR., J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Anthony R. THOMAS, Defendant-Appellant
    No. 105375
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    March 22, 2018
    Anna Markovich, Law Office of Anna Markovich, 18975 Villaview Road, # 3, Cleveland, Ohio 44119, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Jillian Eckart, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Anthony Thomas ("appellant"), brings the instant appeal challenging his convictions and the trial court's sentence for robbery, abduction, and drug possession. Specifically, appellant argues that his guilty plea was not knowingly, intelligently, and voluntarily entered due to ineffective assistance of trial counsel; the trial court abused its discretion in failing to sua sponte vacate appellant's guilty plea; the trial court abused its discretion in denying his postsentence motion to withdraw his guilty plea; and the trial court erred by imposing consecutive sentences on allied offenses of similar import. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} On November 21, 2015, appellant attacked a physically disabled victim who was riding on an RTA train. Appellant pulled the victim from his seat, dragged the victim across the floor of the train, and removed the victim from the train onto a platform outside. During the struggle, the victim lost his cell phone and the victim's prosthetic leg became detached.

{¶ 3} On December 2, 2015, in Cuyahoga C.P. No. CR-15-601429-A, the Cuyahoga County Grand Jury returned a six-count indictment charging appellant with (1) robbery, a second-degree felony in violation of R.C. 2911.02(A)(2) ; (2) robbery, a third-degree felony in violation of R.C. 2911.02(A)(3) ; (3) theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1), with a furthermore specification alleging that the victim is an elderly person or disabled adult and that the property or services stolen is valued at less than $1,000; (4) kidnapping, a first-degree felony in violation of R.C. 2905.01(B)(2) ; (5) drug possession, a fifth-degree felony in violation of R.C. 2925.11(A) ; and (6) illegal conveyance into a detention facility, a third-degree felony in violation of R.C. 2921.36(A)(2). Appellant was arraigned on December 7, 2015; he pled not guilty to the indictment.

{¶ 4} The parties reached a plea agreement. On March 2, 2016, appellant pled guilty to robbery, as charged in Count 1 of the indictment, abduction, a third-degree felony in violation of R.C. 2905.02(A)(1), as amended in Count 4, and drug possession, as charged in Count 5 of the indictment.

The remaining counts were nolled. The trial court ordered a presentence investigation report and screening to determine whether appellant was eligible for placement in a community-based correctional facility program ("CBCF"). On the same day, appellant also pled guilty in Cuyahoga C.P. No. CR-15-600864-A to attempted drug possession, a first-degree misdemeanor in violation of R.C. 2923.02 and 2925.11(A).

{¶ 5} The trial court held a sentencing hearing on March 29, 2016. During the sentencing hearing, the trial court viewed video surveillance footage from the RTA train of appellant's encounter with the victim.

{¶ 6} After hearing statements from defense counsel, appellant, the victim, and the prosecutor, and after viewing the video of the incident, the trial court imposed a prison sentence of two years and nine months: two years on Count 1, nine months on Count 4, and six months on Count 5. The trial court ordered appellant to serve Counts 1 and 4 consecutively; the trial court ordered Count 5 to run concurrently. The trial court ordered appellant to serve his two-year and nine-month prison sentence consecutively with his 60-day sentence in CR-15-600864-A.

{¶ 7} On June 15, 2016, appellant filed a pro se motion to withdraw his guilty plea. Therein, he asserted that (1) he pled guilty because counsel advised him that he would be sentenced to CBCF, (2) he did not see the videotape from the RTA train that captured the incident, and (3) the video footage clearly shows that he was actually innocent. Thus, appellant requested to withdraw his guilty plea and enter a plea of not guilty. The state filed a brief in opposition on June 22, 2016. On July 13, 2016, the trial court denied appellant's motion to withdraw his guilty plea without holding a hearing.

{¶ 8} On August 11, 2016, appellant filed a pro se motion to reconsider his plea withdrawal request. Therein, appellant appeared to argue that the state violated the terms of the plea agreement because he was not sentenced to CBCF, and that the video footage from the RTA train demonstrated that he was actually innocent. The state opposed appellant's motion for reconsideration on August 16, 2016. The trial court denied appellant's motion for reconsideration on August 16, 2016.

{¶ 9} On October 11, 2016, appellant filed a pro se motion to compel the trial court to issue findings of fact and conclusions of law regarding its denial of his motion to withdraw his guilty plea and motion for reconsideration. The trial court denied the motion to compel on October 19, 2016.

{¶ 10} On December 29, 2016, appellant filed a petition for postconviction relief. Therein, appellant appeared to argue that the common pleas court lacked subject matter jurisdiction over the criminal proceedings.

{¶ 11} On December 30, 2016 and January 3, 2017, appellant filed petitions to vacate or set aside the judgment of conviction or sentence. In both petitions, appellant appeared to argue again that the common pleas court lacked subject matter jurisdiction over the criminal proceedings. The state filed a brief in opposition to appellant's petitions on January 9, 2017. The trial court denied appellant's petitions to vacate or set aside judgment on February 13, 2017.

{¶ 12} On January 17, 2017, appellant filed the instant appeal. He assigns four errors for review:

I. Appellant's guilty plea to robbery was not voluntary and knowing due to ineffective assistance of counsel.
II. The trial court abused its discretion in failing to vacate sua sponte appellant's guilty plea to robbery when the trial court became aware at the sentencing that appellant did not commit this offense.
III. The trial court abused its discretion in denying appellant's post-sentence motion to withdraw his guilty plea without having an evidentiary hearing.
IV. The trial court erred by convicting and sentencing appellant to consecutive sentences on allied offenses of similar import.

II. Law and Analysis

A. Guilty Plea

{¶ 13} Appellant's first, second, and third assignments of error pertain to his guilty plea on the robbery count.

1. Ineffective Assistance of Counsel

{¶ 14} In his first assignment of error, appellant argues that his guilty plea on the robbery count was not knowingly and voluntarily entered because his trial counsel provided ineffective assistance.

{¶ 15} In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's performance fell below an objective standard of reasonable representation, and (2) the defendant was prejudiced by that deficient performance. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 694, 104 S.Ct. 2052.

{¶ 16} A defendant's failure to prove either prong of the Strickland two-part test makes it unnecessary for a court to consider the other prong. State v. Madrigal , 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697, 104 S.Ct. 2052. "In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course should be followed." Strickland at id.

A claim of ineffective assistance of counsel is waived by a guilty plea, except to the extent that the ineffective assistance of counsel caused the defendant's plea to be less than knowing, intelligent and voluntary. State v. Williams , 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415 [2014 WL 3866137], ¶ 11, citing State v. Spates , 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), citing Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Where a defendant has entered a guilty plea, the defendant can prevail on an ineffective assistance of counsel claim only by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, he would not have pled guilty to the offenses at issue and would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie , 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

State v. Vinson , 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.).

The prejudice inquiry in the context of a guilty plea requires a "nuanced analysis of all of the factors surrounding the plea decision," including the benefits associated with a plea, the possible punishments involved, the weight of the evidence against the defendant and any other special circumstances that might support or rebut a defendant's claim that he would have taken his chances at trial.

State v. Mays , 8th Dist. Cuyahoga No. 103785, 2016-Ohio-7481, 2016 WL 6299171, ¶ 26, quoting State v. Ayesta , 8th Dist. Cuyahoga No. 101383, 2015-Ohio-600, 2015 WL 759004, ¶ 16.

{¶ 17} In the instant matter, appellant appears to argue that counsel's performance was deficient because counsel advised him to plead guilty to robbery despite the fact that the video of the incident demonstrated that appellant was actually innocent. Appellant further asserts that counsel failed to show him the video before the change of plea hearing and that he did not know that the video "show[ing] that he was innocent of [the robbery] offense" existed. Appellant's brief at 5. Appellant contends that had he seen this video, he would not have pled guilty and would have elected to proceed to trial.

{¶ 18} Initially, we note that appellant's arguments are premised entirely on the assumption that the video of the incident unequivocally shows that he did not commit the offense of robbery. Appellant pled guilty to robbery in violation of R.C. 2911.02(A)(2), which provides, in relevant part, "[n]o person, in attempting or committing a theft offense * * * shall * * * [i]nflict, attempt to inflict, or threaten to inflict physical harm on another[.]" (Emphasis added.)

{¶ 19} Appellant emphasizes that the video does not show him taking or stealing anything from the victim. The video shows that appellant and the victim had an initial encounter while the train was moving. After this initial encounter, appellant walked to the other end of the train.

{¶ 20} Appellant approached the victim a second time while the train was still moving. Appellant waited for the train to stop and the doors to open, at which point he physically engaged the victim who was seated with his backpack.

{¶ 21} Even if, as appellant asserts, the video does not show him taking or stealing anything from the victim, we find that appellant's actions can be reasonably interpreted as an attempt to steal the victim's belongings. Appellant was holding what appeared to be an umbrella in his right hand, and he pointed the umbrella at the victim several times during both encounters. The umbrella was in appellant's hand when he forcibly removed the victim from his seat, dragged him across the floor of the train, and pulled him onto the platform outside of the train.

{¶ 22} During both encounters, the victim was sitting down with his bag or backpack. The victim's bag was either directly next to him on the seat, or partially underneath the victim. The victim appeared to be guarding his bag during the encounters with appellant.

{¶ 23} It is possible that appellant contemplated removing the victim from the train and staying on the train with the victim's backpack, but was unable to do so when the victim struggled to stay in his seat and on the train, which caused a commotion that attracted the attention of the other passengers. It is possible that appellant contemplated grabbing the victim's bag and jumping off the train, but was unable to do so based on the way that the victim was guarding the bag. It is possible that appellant intended to rob the victim, but changed his mind when the victim did not comply and one of the passengers on the train alerted the police. Accordingly, we find that appellant's actions during the incident can certainly be construed as an attempt to rob the victim.

{¶ 24} Furthermore, during the sentencing hearing, the victim asserted that he was certain that appellant's objective in attacking him was to grab and take his belongings. The victim explained that he did, in fact, lose his cell phone during the struggle with appellant and opined that he would have also lost his wallet but for the fact that he had it hidden.

{¶ 25} Although appellant suggests that he did not see the video of the incident until it was played during the sentencing hearing, appellant did not allege that he had not seen the video or that counsel failed to inform him of the video after it was played in open court. Furthermore, after the video was played in open court, appellant did not protest his innocence or orally move to withdraw his guilty plea.

{¶ 26} The record reflects that the state produced the video on December 22, 2015, in its response to defense counsel's request for discovery. Appellant did not plead guilty until more than two months later.

{¶ 27} After reviewing the record, we cannot say that appellant's counsel's representation fell below an objective standard of reasonableness. The record reflects that counsel advocated on appellant's behalf in an effort to negotiate a favorable plea agreement. Appellant's counsel did, in fact, negotiate a favorable plea agreement for appellant under which two third-degree felonies and a fifth-degree felony were nolled, and the first-degree felony kidnapping count was amended to third-degree felony abduction.

{¶ 28} We cannot say that counsel provided ineffective assistance by recommending that appellant plead guilty rather than proceeding to trial. After the parties exchanged discovery and defense counsel reviewed the state's evidence against appellant, including the video of the incident, defense counsel could have reasonably determined that appellant's actions supported the elements of the robbery offense and that appellant was better off pleading guilty than taking his chances at trial.

{¶ 29} We find no merit to appellant's assertion that his plea was not knowingly and voluntarily entered. The record reflects that the trial court fully complied with Crim.R. 11 in ensuring that appellant's guilty plea was knowingly, intelligently, and voluntarily entered. When appellant informed the trial court about the medication that he takes, the trial court confirmed that the medication did not affect appellant's ability to understand the nature of the proceedings. Appellant confirmed that he was thinking clearly, no one had threatened him to enter the plea or promised him anything specific if he pled guilty, and that he was entering the plea voluntarily.

{¶ 30} The trial court advised appellant of his constitutional rights and explained that he was waiving these rights by pleading guilty. The trial court advised appellant of the nature of the charges and the potential penalties. The trial court explained that the robbery, abduction, and drug possession offenses were not allied offenses of similar import, and thus, they would not merge for sentencing purposes. Finally, the trial court confirmed that appellant had enough time with counsel and that he was satisfied with counsel's representation.

{¶ 31} Based on the foregoing analysis, appellant cannot demonstrate a reasonable probability that but for counsel's alleged deficient performance, he would not have pled guilty to robbery and instead would have insisted on going to trial. Appellant's first assignment of error is overruled.

2. Sua Sponte Vacating Plea

{¶ 32} In his second assignment of error, appellant argues that the trial court abused its discretion by failing to vacate, sua sponte, his guilty plea on the robbery count after viewing the video of the incident. Appellant argues that the trial court should have sua sponte vacated his guilty plea on the robbery count pursuant to Crim.R. 32.1 to correct a manifest injustice. He asserts that the video demonstrated that he did not commit the offense of robbery, and that the video footage, coupled with his statement at sentencing that he did not intend to rob the victim, should have "alerted" the trial court that his guilty plea on the robbery count was invalid. We disagree.

{¶ 33} As an initial matter, we note that appellant did not assert that he did not intend to rob the victim during the sentencing hearing. Appellant's brief states that during the sentencing hearing, he "mentioned that he 'did not mean' to rob the victim." Appellant's brief at 6. This assertion is taken out of context. Appellant did not assert that he did not mean to rob the victim-he asserted, "I really didn't mean that [,]" referring generally to the incident in its entirety, rather than his intent with respect to the robbery count. (Emphasis added.) (Tr. 49.)

{¶ 34} In support of his argument that the trial court should have sua sponte vacated his guilty on the robbery charge, appellant directs this court to the trial court's description of the video footage. After viewing the video, the trial court stated:

The record should reflect that the Court did, in fact, review the videotape of the incident on the RTA train just now during the sentencing and so the Court got a good look at the specifics of this incident and should describe it as the defendant-basically, [the victim] was minding his own business seated on the RTA train and [appellant] approached him twice, initially just must have said something to him, went to a different place on the train, came back and physically went at [the victim] and grabbed him and started pulling him from his seat.
[The victim] is clear on the tape was trying to hold onto the seat to avoid being dragged out by [appellant]. [The victim] was unable to maintain his position on the seat as [appellant] overpowered him, pulled him from the seat, pulled him on to the floor of the train and then out the door onto the platform. And during that process, [the victim's] prosthetic leg came off as well. That's clearly seen in the video.
And so the Court just wanted to place that on the record in terms of part of the basis for the sentencing associated with [appellant].

(Tr. 55-56.)

{¶ 35} Appellant appears to suggest that the trial court should have vacated his guilty plea on the robbery count because the court did not specifically describe observing a robbery in the video. Appellant's argument is misplaced.

{¶ 36} As noted above, the robbery offense to which appellant pled guilty requires the offender to commit or attempt to commit a theft offense. Furthermore, appellant fails to consider the victim's statement during the sentencing hearing. The victim asserted that he was certain that appellant's objective in attacking him was to grab and take his belongings. The victim informed the trial court that he lost his cell phone during the struggle with appellant. The victim appeared to suggest that appellant would have taken his wallet but for the fact that it was "hidden." (Tr. 53.) Appellant also fails to consider the prosecutor's statement at sentencing. The prosecutor asserted that appellant was trying to rob the victim. (Tr. 55.) The trial court indicated that it considered the oral statements, including the victim's and the prosecutor's statements, made during the sentencing hearing.

{¶ 37} Based on the foregoing analysis, we cannot say that the trial court abused its discretion in failing to vacate, sua sponte, appellant's guilty plea on the robbery count. Appellant's second assignment of error is overruled.

3. Evidentiary Hearing

{¶ 38} In his third assignment of error, appellant argues that the trial court abused its discretion by denying his postsentence motion to withdraw his guilty plea without holding an evidentiary hearing.

{¶ 39} A trial court is not required to hold a hearing on every postsentence motion to withdraw a guilty plea. State v. Vihtelic , 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818, 2017 WL 2983328, ¶ 11, citing State v. Chandler , 10th Dist. Franklin No. 13AP-452, 2013-Ohio-4671, 2013 WL 5745128, ¶ 7. "A hearing is required only if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea." Vihtelic at id. , citing Chandler at id. , and State v. Rodriguez , 8th Dist. Cuyahoga No. 103640, 2016-Ohio-5239, 2016 WL 4141499, ¶ 23. We review a trial court's decision whether to hold a hearing on a postsentence motion to withdraw a guilty plea for an abuse of discretion. Vihtelic at id.

Under Crim.R. 32.1, a defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice. A manifest injustice is a fundamental flaw in the proceedings that results in a miscarriage of justice or is inconsistent with the requirements of due process. State v. Sneed , 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502 [2002 WL 31667630], ¶ 13. This heightened standard is in place because "a defendant should not be encouraged to plead to test the potential punishment and withdraw the plea if the sentence is unexpectedly severe." Cleveland v. Jaber , 8th Dist. Cuyahoga Nos. 103194 and 103195, 2016-Ohio-1542 [2016 WL 1464220], ¶ 18.

State v. Colon , 8th Dist. Cuyahoga No. 104944, 2017-Ohio-8478, 2017 WL 5197251, ¶ 7. The determination of whether a defendant has demonstrated a manifest injustice is left to the sound discretion of the trial court. Colon at ¶ 9, citing State v. Blatnik , 17 Ohio App.3d 201, 204, 478 N.E.2d 1016 (6th Dist.1984), State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus, and Jaber at ¶ 17. We review a trial court's determination of whether a defendant demonstrated a manifest injustice for an abuse of discretion. Colon at id. , citing Blatnik at 202, 478 N.E.2d 1016.

{¶ 40} In the instant matter, appellant argues that he should have been permitted to withdraw his guilty plea because (1) he did not see the video of the incident before pleading guilty, (2) the video demonstrated that he did not commit the offense of robbery because he did not attempt to rob the victim and did not take anything from the victim, (3) had he seen the video of the incident, he would not have pled guilty, and (4) defense counsel promised that he would be placed in the CBCF program if he pled guilty. Appellant further asserts that "[i]f defense counsel failed to show the video to [him], his plea was invalid because it was not knowing and voluntary." Appellant's brief at 9.

{¶ 41} After reviewing the record, we find that appellant failed to meet his burden of demonstrating the existence of a manifest injustice. As noted above, when the video of the incident was played during the sentencing hearing, appellant did not allege that he had not seen the video or that counsel failed to inform him that the video existed. Furthermore, appellant did not protest his innocence or orally move to withdraw his guilty plea after viewing the video.

{¶ 42} We find no merit to appellant's argument that the video "show[ed] that [he] did not commit robbery[.]" Appellant's brief at 7. Even if, as appellant asserts, the video revealed that "he did not steal or take anything from the victim," appellant's conduct during the incident can be reasonably interpreted as an attempt to do so.

{¶ 43} Appellant's assertion that his counsel promised that he would be placed in the CBCF program if he pled guilty is unsupported by the record. During the change of plea hearing, when the trial court asked appellant if "anyone promised you anything specifically if you enter your plea," appellant confirmed that no one promised him anything specific. (Tr. 17.) Furthermore, appellant confirmed that he was entering the plea voluntarily.

{¶ 44} During the change of plea hearing, the trial court advised appellant about the nature of the charges against him and the potential penalties. Regarding the second-degree felony robbery offense charged in Count 1, the trial court advised appellant that there was a presumption in favor of prison. When appellant's counsel requested a CBCF referral at the close of the change of plea hearing, the trial court explained that counsel's request for CBCF does not guarantee placement in CBCF. (Tr. 39.) During the sentencing hearing, defense counsel acknowledged that the CBCF referral concluded that appellant was "high risk." (Tr. 48.)

{¶ 45} Even if appellant's counsel had, in fact, led appellant to believe that he would be placed in the CBCF program, this court has held that "a lawyer's mistaken prediction about the likelihood of a particular sentence is insufficient to demonstrate ineffective assistance of counsel." State v. Durrette , 8th Dist. Cuyahoga No. 104050, 2017-Ohio-7314, 2017 WL 3635592, ¶ 17, citing State v. Bari , 8th Dist. Cuyahoga No. 90370, 2008-Ohio-3663, 2008 WL 2833951, ¶ 11, and State v. Williams , 8th Dist. Cuyahoga No. 88737, 2007-Ohio-5073, 2007 WL 2793345.

{¶ 46} Finally, in his motion to withdraw his guilty plea, appellant asserted that he only spoke with his attorney two times while he was in jail. However, during the change of plea hearing, appellant confirmed that he had enough time with counsel and that he was satisfied with counsel's representation.

{¶ 47} Appellant has not alleged any facts that could reasonably support the conclusion that withdrawal of his guilty plea was necessary to correct a manifest injustice. Accordingly, the trial court did not abuse its discretion in denying appellant's postsentence motion to withdraw his guilty plea without a hearing. Appellant's third assignment of error is overruled.

B. Sentence

{¶ 48} In his fourth assignment of error, appellant argues that the trial court erred by imposing consecutive sentences on his robbery and abduction convictions because they are allied offenses of similar import.

R.C. 2941.25(A) allows only a single conviction for conduct that constitutes "allied offenses of similar import." However, under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the offenses are dissimilar in import or significance, i.e., each offense caused separate, identifiable harm, (2) the offenses were committed separately or (3) the offenses were committed with separate animus or motivation. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 13, 25, 31.

State v. Bridges , 8th Dist. Cuyahoga No. 105547, 2017-Ohio-8579, 2017 WL 5499315, ¶ 21.

{¶ 49} Initially, we note that the record reflects that appellant waived any allied offenses issue. During the change of plea hearing, the trial court stated that the robbery, abduction, and drug possession counts were not allied offenses of similar import, and thus, they would not merge for sentencing purposes. Both the prosecution and defense counsel agreed. (Tr. 29.) Furthermore, during the sentencing hearing, the prosecution argued that the robbery and abduction counts were separate acts that should not merge for sentencing purposes. The trial court agreed with the state's argument that the robbery and abduction counts should not merge for sentencing purposes because they were not allied offenses of similar import. "Where the transcript demonstrates that the state and defense counsel agreed that offenses were not allied, the issue of allied offenses is waived." Bridges at ¶ 22, citing State v. Allison , 8th Dist. Cuyahoga No. 105212, 2017-Ohio-7720, 2017 WL 4176964, ¶ 32, and State v. Black , 2016-Ohio-383, 58 N.E.3d 561, ¶ 18 (8th Dist.).

{¶ 50} Even if appellant had not waived the issue of allied offenses, no objection was raised when the trial court imposed a sentence on both the robbery and abduction counts. Thus, appellant has forfeited all but plain error. See State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3, 21 (a defendant who fails to raise an allied offense issue in the trial court forfeits all but plain error); State v. Clarke , 8th Dist. Cuyahoga No. 105047, 2017-Ohio-8226, 2017 WL 4711959, ¶ 26-27. "A forfeited error is not reversible error unless it affected the outcome of the proceedings and reversal is necessary to correct a manifest miscarriage of justice." State v. Amison , 8th Dist. Cuyahoga No. 104728, 2017-Ohio-2856, 2017 WL 2241655, ¶ 4. If a defendant fails to raise the issue of allied offenses at the trial court level, "the burden is solely on that defendant, not on the state or the trial court, to 'demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus.' " State v. Locke , 8th Dist. Cuyahoga No. 102371, 2015-Ohio-3349, 2015 WL 4997202, ¶ 20, quoting Rogers at ¶ 3.

{¶ 51} In the instant matter, we cannot say that the trial court committed plain error in failing to merge the robbery and abduction counts for sentencing purposes because the offenses caused separate, identifiable harm. The resulting harm of the robbery offense was the victim's loss of his cell phone. Regarding the abduction offense, the victim explained that he was devastated and horrified by appellant's actions of pulling him from his seat, dragging him across the floor of the train while he attempted to hold on, and removing him from the train onto the platform outside.

{¶ 52} Based on the foregoing analysis, we find that the trial court did not err when it did not merge the robbery and abduction counts and imposed consecutive sentences for the two offenses of dissimilar import. Accordingly, appellant's fourth assignment of error is overruled.

III. Conclusion

{¶ 53} After thoroughly reviewing the record, we find that appellant was not denied his constitutional right to the effective assistance of counsel, and appellant failed to demonstrate a reasonable probability that but for counsel's alleged deficient performance, he would not have pled guilty to robbery and instead would have insisted on going to trial. The trial court did not abuse its discretion in failing to vacate, sua sponte, appellant's guilty plea on the robbery count. The trial court did not abuse its discretion in denying appellant's postsentence motion to withdraw his guilty plea without a hearing. The trial court did not err by imposing consecutive sentences on the robbery and abduction counts.

{¶ 54} Judgment affirmed.

MARY EILEEN KILBANE, P.J., and LARRY A. JONES, SR., J., CONCUR