State v. Flowers

Citation: 2021 Ohio 2966Docket: WD-20-077

Court: Ohio Court of Appeals; August 27, 2021; Ohio; State Appellate Court

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Rekia Flowers appeals the Wood County Court of Common Pleas' judgment from October 26, 2020, asserting two main errors. First, she contends that the State of Ohio breached its plea agreement by not recommending a community control sanction at her sentencing. Second, she argues that the trial court erred in finding that she engaged in "organized criminal activity," which contributed to her sentencing. 

Flowers was indicted on June 11, 2020, for eight counts of counterfeiting, to which she pled not guilty on June 26, 2020. During a change of plea hearing on September 4, 2020, she agreed to plead guilty to four counts and pay restitution, with the understanding that the state would dismiss the remaining counts and recommend community control. Evidence presented by the prosecutor indicated that Flowers and her co-defendant attempted to use counterfeit $100 bills at various retail stores, selecting items priced under ten dollars. 

At the sentencing on October 23, 2020, the court reviewed relevant statutory factors and acknowledged a presumption of community control; however, it ultimately decided on prison time, citing Flowers' extensive criminal history—including sixteen prior theft offenses—as indicative of a pattern of criminal behavior. The court sentenced her to twelve months for each count, to run concurrently, and dismissed the remaining counts per the state's request. Flowers filed a timely appeal regarding the alleged breach of the plea agreement.

A plea agreement that relies on a promise from the prosecutor must be fulfilled, as established in Santobello v. New York. If the prosecutor fails to honor this promise, the defendant may withdraw the plea or seek specific performance, which involves resentencing by a different judge. However, a trial court is not bound to accept a recommended sentence and can impose a harsher penalty if the defendant is warned of this possibility beforehand. The state asserts it complied with its agreement to recommend community control, arguing that the prosecutor's statements at sentencing regarding misconduct justified this position. Nonetheless, the court finds that the state's request for a "sanction" does not equate to a recommendation for community control, as defined by the Ohio Revised Code, which includes various penalties.

Since there was no objection at sentencing, the review is limited to plain error, which can only be noticed if it significantly affects the fairness of the judicial process. The court concludes that the outcome would not have been clearly different even if the error existed. The appellant argued that the prosecutor's promise significantly influenced her decision to plead guilty, similar to a rejected claim in State v. Liles. In Liles, despite a breach of the promise not to recommend a sentence, the trial court found no plain error due to the substantial benefit of dismissing numerous charges. In this case, the plea included the dismissal of four counts against the appellant, and her counsel did not object to the lack of a community control recommendation, undermining her claim that this promise was a critical factor in her guilty plea.

The court found no plain error regarding the appellant's sentence, which was determined based on the judge's assessment of the appellant's criminal record. The judge acknowledged a presumption in favor of community control but deemed imprisonment appropriate given the appellant's convictions for four fourth-degree felonies, as this presumption only applies to a single nonviolent fourth or fifth-degree felony. The appellant's first assignment of error was thus deemed not well-taken. In the second assignment of error, the appellant argued that the trial court erred in finding her actions constituted "organized criminal activity," which influenced her sentencing for a non-violent fifth-degree felony. Under R.C. 2953.08(G)(2), an appellate court can modify or vacate a sentence if it finds clear and convincing evidence that the sentencing court's findings do not align with specific statutory sections, which do not include R.C. 2929.11 and 2929.12. The state referenced State v. Jones, which limits an appellate court's ability to substitute its judgment for that of the trial court regarding compliance with these sections. Although the appellant contended that her argument was rooted in R.C. 2929.13, which is applicable for review, the court found that the trial court's consideration of organized criminal activity was relevant under R.C. 2929.12(B), precluding review under Jones. However, since this finding also pertains to R.C. 2929.13(B), the appellate court agreed to consider her arguments in this context.

R.C. 2929.13(B)(1)(a) establishes a presumption favoring community control for fourth or fifth-degree felonies if certain criteria are met, but this presumption can be overridden by factors outlined in R.C. 2929.13(B)(1)(b). The appellant contended that the trial court improperly sentenced her to prison based on two such factors: involvement in organized criminal activity and committing offenses while on probation. While she acknowledged being on probation, she disputed the characterization of her actions as 'organized criminal activity.' However, it was determined that the presumption of community control did not apply to her multiple felony convictions, as R.C. 2929.13(B)(1)(a) applies only to singular convictions. 

In considering whether her conduct constituted organized criminal activity, courts assess various elements, including planning, scope, and number of participants. The appellant argued her actions were too 'amateurish' to be deemed organized, referencing State v. Roberson, where mere complicity did not imply organization. However, evidence indicated that her and her co-defendant’s actions were premeditated, involving systematic use of counterfeit bills. 

The trial court's sentencing was also evaluated, finding it lawful as it adhered to R.C. 2929.11 and R.C. 2929.12 guidelines, including consideration of seriousness and recidivism factors, and proper application of post-release control. The appellant received a concurrent twelve-month sentence for each of the four fourth-degree felonies, which is within the statutory range outlined in R.C. 2929.14(A)(4). Consequently, the court affirmed the judgment of the Wood County Court of Common Pleas, ordering the appellant to bear the appeal costs, while acknowledging the decision is subject to editing by the Supreme Court of Ohio.