[Cite as State v. Thomas, 2014-Ohio-5153.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101263 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

LETHEDIOUS L. THOMAS

 DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-576098-A 

BEFORE: Jones, P.J., S. Gallagher, J., and McCormack, J. 

 

RELEASED AND JOURNALIZED: November 20, 2014 
ATTORNEYS FOR APPELLANT 

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Cullen Sweeney 

 John T. Martin 

Cuyahoga County Assistant Public Defender 

310 Lakeside Avenue 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Jennifer A. Driscoll 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., P.J.: 

{¶1} Defendant-appellant, Lethedious L. Thomas, appeals his convictions for gross 

sexual imposition. We affirm his convictions, but remand to the trial court for correction of the 

journal entry. 

{¶2} In 2013, Thomas was charged with three counts of gross sexual imposition, two 

counts of importuning, and one count of kidnapping with a sexual motivation specification 

involving his former girlfriend’s young daughter. 

{¶3} Thomas pleaded guilty to three counts of gross sexual imposition and the trial court 

sentenced him to a maximum, consecutive sentence of 15 years in prison. 

{¶4} Thomas appeals, raising the following assignments of error for our review: 

I. Appellant’s guilty plea was not knowingly, intelligently, or voluntarily entered 

when the trial court misinformed appellant that he could only receive five years in 

prison. 

II. The trial court, by considering uncharged, unproven and vague allegations of 

criminal conduct in sentencing him to maximum, consecutive sentences, deprived 

appellant of his liberty without due process and of his constitutional rights to a 

grand jury indictment, to trial by an impartial jury, to proof of the charges against 

him beyond a reasonable doubt, to confront the witnesses against him, and to 

otherwise present a defense. 

{¶5} In the first assignment of error, Thomas argues that his plea was not knowingly and 

voluntarily made because the trial court told him the maximum sentence he could receive was 

five, not 15, years in prison. The record does not support this claim. 

{¶6} Crim.R. 11(C) governs the process by which a trial court must inform a defendant of 

certain constitutional and nonconstitutional rights before accepting a felony plea of guilty or no 

contest. The underlying purpose of Crim.R. 11(C) is to convey certain information to a 

defendant so that he or she can make a voluntary and intelligent decision regarding whether to 

plead guilty. State v. Schmick, 8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263, ¶ 5. 
{¶7} To ensure that a defendant enters a plea knowingly, voluntarily, and intelligently, a 

trial court must engage in an oral dialogue with the defendant in accordance with Crim.R. 

11(C)(2). State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R. 11(C)(2) 

requires that a trial court determine from a colloquy with the defendant whether the defendant 

understands (1) the nature of the charge and maximum penalty, (2) the effect of the guilty plea, 

and (3) the constitutional rights waived by a guilty plea. 

{¶8} A trial court must strictly comply with the Crim.R. 11(C)(2)(c) requirements that 

relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176, 

2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Under the more stringent standard for constitutionally 

protected rights, a trial court’s acceptance of a guilty plea will be affirmed only if the trial court 

engaged in meaningful dialogue with the defendant which, in substance, explained the pertinent 

constitutional rights “in a manner reasonably intelligible to that defendant.” Id. at ¶ 27, citing 

State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981). 

{¶9} With respect to the nonconstitutional requirements of Crim.R. 11, set forth in 

Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial compliance 

with the rule. Veney at ¶ 14-17. “Substantial compliance means that under the totality of the 

circumstances the defendant subjectively understands the implications of his plea and the rights 

he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “[I]f it appears 

from the record that the defendant appreciated the effect of his plea and his waiver of rights in 

spite of the trial court’s error, there is still substantial compliance.” State v. Caplinger, 105 Ohio 

App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995). Further, a defendant must show prejudice 

before a plea will be vacated for a trial court’s error involving Crim.R. 11(C) procedure when 

nonconstitutional aspects of the plea colloquy are at issue. Veney at ¶ 17. Crim.R. 11(C)(2)(a) 

requires the court to determine that the defendant is making the plea voluntarily, with 
understanding of the nature of the charges and of the maximum penalty involved. Therefore, a 

trial court must substantially comply with this requirement. 

{¶10} In the case at bar, our review of the record shows that the trial court adhered to the 

requirements of Crim.R. 11. During the plea colloquy, Thomas affirmatively expressed that he 

understood his rights and that he understood he was giving up those rights by entering a guilty 

plea. The trial court explained each count to Thomas, informed him of the maximum time he 

could receive on each count, and explained to him the sentencing range for each offense to which 

he was pleading guilty. 

{¶11} Thomas claims that he was induced to plead guilty because the court made him 

think he could only receive a maximum of five years in prison, but the record belies that claim. 

{¶12} The trial court explained: 

Court: Mr. Thomas, you are expected to plead guilty to Counts 1, 3 and 5, each

of those counts alleges gross sexual imposition in violation of 2907.05(A)(4), and 

therefore each is a felony of the third degree. This felony of the third degree — 

each of those three is punishable by a period of imprisonment of 1 to 5 years, also 

they’re 

punishable by a fine of up to $10,000, and also there is a mandatory period of 

postrelease control of five years. Do you understand that? 

Thomas: * * * Yes. Yes. 

(Emphasis added.) Transcript, p. 11-12. 

{¶13} Thus, here, the trial court explained that Thomas was facing one to five years in 

prison on each count of gross sexual imposition. Later on, during the plea colloquy, the court 

inquired: 

Court: Mr. Thomas, do you understand the penalties you face by 

entering your guilty pleas? 

Thomas: Yes. 

Court: Do you have any questions about the penalties you face? 
Thomas: Yes. 

Court: You do have questions. What questions do you have? 

Thomas: The sentencing guidelines for this right now, for taking this plea, it’s a 

chance to get the max? 

Court: Is there a chance that you could get the maximum? 

Thomas: Yes. 

Court: What do you mean by that, five years? 

Thomas: Five years. Five years. 

Court: Certainly that is a potential penalty, because the incarceration, period of 

incarceration, the potential penalties are one to five years. So certainly, anything 

from one up to five years you can get. I’m not the sentencing judge, so I have no 

involvement in that part of it. I’m just taking the plea for you here today. 

Thomas: Okay. 

Court: But you can certainly get the maximum, there is no doubt that is a 

possibility, is what I'm saying. 

Thomas: Okay. 

Court: Do you understand then? 

Thomas: Yes. 

(Emphasis added.) Transcript, p. 16-17. 

{¶14} Thomas told the court he understood the possible penalties involved in his plea. 

Despite his claim now that the court told him the maximum was five years, it is clear from the 

transcript that Thomas was asking if it was possible that he could receive the maximum sentence 

on each count. We do note, however, that it would be advisable to notify the defendant of the 

total number of years the counts amount to, in this case 15 years, especially in instances such as 

these, where the defendant further questions the sentence he or she is facing. 

{¶15} But, based on the transcript and Thomas’s assurances that he understood the 

penalties involved in his guilty pleas, the trial court complied with Crim.R. 11 in explaining the 
maximum penalties he faced in pleading guilty to three counts of gross sexual imposition. 

{¶16} Therefore, we find no fault with the plea colloquy, or that Thomas did not 

understand the rights that he waived, or that his plea was not knowingly and intelligently made. 

{¶17} The first assignment of error is overruled. 

{¶18} In the second assignment of error, Thomas claims the trial court sentenced him to 

consecutive, maximum sentences based on uncharged and unproven allegations that he had 

sexually abused other children. 

{¶19} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences, the 

appellate court’s standard for review is not whether the sentencing court abused its discretion; 

rather, if this court “clearly and convincingly” finds that (1) “the record does not support the 

sentencing court’s findings under R.C. 2929.14(C)(4),” or that (2) “the sentence is otherwise 

contrary to law,” then we “may increase, reduce, or otherwise modify a sentence * * * or [a 

reviewing court] may vacate the sentence and remand the matter to the sentencing court for 

re-sentencing.” 

{¶20} A sentence is not clearly and convincingly contrary to law “where the trial court 

considers the purposes and principles of sentencing under R.C. 2929.11 as well as the 

seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease control, 

and sentences a defendant within the permissible statutory range.” State v. A.H., 8th Dist. 

Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio St.3d 23, 

2008-Ohio-4912, 896 N.E.2d 124, ¶ 18. 

{¶21} R.C. 2929.11(A) provides that “[t]he overriding purposes of felony sentencing are 

to protect the public from future crime by the offender and others and to punish the offender 

using the minimum sanctions that the court determines accomplish those purposes without 

imposing an unnecessary burden on state or local government resources.” Under R.C. 
2929.12(A), trial courts must consider a nonexhaustive list of factors, including the seriousness 

of the defendant’s conduct, the likelihood of recidivism, and “any other factors that are relevant 

to achieving those purposes and principles of sentencing.” 

{¶22} Pursuant to R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial 

court must first find the sentence is “necessary to protect the public from future crime or to 

punish the offender.” Next, the trial court must find that consecutive sentences are “not 

disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses 

to the public.” Finally, the trial court must find the existence of one of the three statutory 

factors set forth in R.C. 2929.14(C)(4)(a)-(c): 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed pursuant 

to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under 

post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or more 

courses of conduct, and the harm caused by two or more of the multiple offenses 

so committed was so great or unusual that no single prison term for any of the 

offenses committed as part of any of the courses of conduct adequately reflects the 

seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by the offender. 

{¶23} Thomas bases his argument on the following statement the trial court made during 

sentencing: 

The Court makes a following finding with reference to its sentencing. The Court 

does find that consecutive sentences are necessary to protect the public from 

future crime. And this Court takes into consideration and makes its finding 

based upon the defendant’s statement to the victim that, [“]I will smash the door 

in. I’ve done this many times to other kids. If you tell anyone about this, I will kill 

you.[”] 
Transcript, p. 47-48. 

{¶24} This court has held that a trial court abuses its discretion when it sentences a 

criminal defendant based upon a crime neither charged nor proven. 

State v. Armetta, 8th Dist. Cuyahoga No. 84366, 2005-Ohio-3689, ¶ 16. Although we no longer 

review felony sentences under an abuse-of-discretion standard, Thomas claims that the trial court 

erred and violated his constitutional rights. 

{¶25} Thomas relies on State v. Longo, 4 Ohio App.3d 136, 446 N.E.2d 1145 (8th 

Dist.1982), for the proposition that it was error for the trial court to consider inappropriate and 

prejudicial evidentiary material that clearly impacted its sentencing determination. Id. In 

Longo, the appellant pleaded guilty to carrying a concealed weapon, but the sentencing court 

concluded that the appellant was involved in an organized car theft ring after the court itself 

made several ex parte contacts and conducted its own presentence investigation. This court 

reversed, noting that the trial court’s “persuasion, on matters not charged or investigated” shaped 

its decision. Id. at 141. 

{¶26} Longo is easily distinguishable from this case because the trial court’s action in 

Longo in conducting its ex parte investigation “went beyond any defensible limit.” Id. In this 

case, the trial court relied on the presentence investigation report and the statements made by 

Thomas, the victim’s mother, defense counsel, and the prosecutor. 

{¶27} Ohio law is clear that “[u]nindicted acts or not guilty verdicts can be considered in 

sentencing without resulting in error when they are not the sole basis for the sentence.” State v. 

Gray, 8th Dist. Cuyahoga No. 91806, 2009-Ohio-4200, ¶ 13, citing State v. Williams, 8th Dist. 

Cuyahoga No. 79273, 2002-Ohio-503. Moreover, the rules of evidence do not apply in 

sentencing hearings; therefore, a trial court may rely on hearsay statements contained in a 

presentence investigation report. State v. Cook, 8th Dist. Cuyahoga No. 87265, 2007-Ohio-625, 
¶ 70, citing State v. Bundy, 7th Dist. Mahoning No. 02 CA 211, 2005-Ohio-3310. 

{¶28} In State v. Edwards, 8th Dist. Cuyahoga No. 89181, 2007-Ohio-6068, the appellant 

pleaded guilty to multiple counts of gross sexual imposition involving his niece. The trial court 

relied on allegations made during the sentencing hearing that the appellant had molested other 

nieces, but charges were never brought regarding those family members. This court affirmed 

his sentence, finding that the uncharged conduct was not the sole basis for the sentence because, 

when sentencing the appellant, the trial court stressed that the harm to the victim would last 

forever and the victims included not just the victim of sexual abuse but also the families of the 

victim and appellant. Moreover, “in mentioning that Edwards also abused other family 

members for which he was not charged, the court was considering Edwards likelihood of 

recidivism pursuant to R.C. 2929.12(D).” Id. at ¶ 7. 

{¶29} In this case, there is no indication in the transcript that the trial court sentenced 

Thomas to maximum, consecutive sentences solely based on allegations that he molested other 

children. The court found that consecutive sentences were necessary to punish Thomas and 

were not disproportionate to the seriousness of his conduct. The court expressly considered that 

the victim was six years of age at the time of the abuse; the victim continued to have “serious 

problems”; Thomas had committed a previous crime against the same family; and Thomas 

denied committing the abuse.1

 

{¶30} Having found that the trial court made the required statutory findings to support the 

imposition of consecutive sentences and the trial court considered all required factors of law, the 

 

1

 R.C. 2929.14(C)(4) requires a court to find, in part, that “the consecutive service is necessary 

to protect the public from future crime or to punish the offender * * * .” (Emphasis added). The trial 

court stated it was sentencing Thomas to protect the public from future crime based on the threats he 

made to the victim, including the statement, “I’ve done this many times to other kids,” and his 

sentence was designed to punish him. Therefore, even if we strike the offending portion of the trial 

court’s sentence, the court still made the required findings. 
second assignment of error is overruled. 

{¶31} The record shows, however, that the trial court failed to incorporate into the 

sentencing journal entry the statutory findings supporting consecutive sentences that it made at 

the sentencing hearing. Thus, in light of State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 

16 N.E.3d 659, this matter is remanded to the trial court for the court to issue a new sentencing 

journal entry, nunc pro tunc, to incorporate its findings. The court does not, however, have an 

obligation to state reasons to support its findings in the entry. Id. at ¶ 37; R.C. 2929.14(C)(4). 

{¶32} Judgment affirmed and case remanded for a new sentencing journal entry. 

It is ordered that appellant and appellee split the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

TIM McCORMACK, J., CONCUR