[Cite as State v. Smith , 2022
- Ohio
- 4425.]

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 feloni ous 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.2

. 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

v iolation 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 whe reby 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 coun t of felonious assault in v iolation 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. 2923.0 2 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.3

. {¶ 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 suppo rt 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 cour t 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 o f 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.)4

. [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 th e 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 vio lent offenses, and that he had 17 prior felony convictions and nine misdemeanor convictions. The court then ordered appellant to serve an indefini te 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 rev iew:

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.5

. III. Analysis

{¶ 8} In su pport 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 , 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). “Notice of plain erro r 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.” Id. Here, the record does not support a finding of plain error. {¶ 10} In State v. Shell , 6th Dist. Sandusky No . S

- 19

- 015, 2020

- Ohio

- 295, 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 th ere -- 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, t his court recognize d that the prosecutor erred by speaking at the sentencing6

.

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 comme nts.” 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 j ail, 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 pros ecutor’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 , 158 Ohio St.3d 139, 2019

- Ohio

- 4539, 140 N.E.3d 616, ¶ 433, quoting In re Disqualification of Forsthoefel , 135 Ohio St.3d 1316,
2013

- Ohio

- 2292, 989 N.E.2d 62, ¶ 9. In this case, the prosecutor was made aware of his error, and immediately requested that his comments be s t ricken from the record. B ecause 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 fa ct 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’s7

.

criminal history was readily avai lable to the court from the pr esentence 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 stat ements were arguably more innocuous than in Shell , and only point ed 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, a lthough the trial court passi ngly mentioned that appellant was a multi

- stat e 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.8

. 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 al so 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/.