State v. Whitaker , 2013 Ohio 4434 ( 2013 )

[Cite as State v. Whitaker, 2013-Ohio-4434.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
CASE NO. CA2012-10-013
Plaintiff-Appellee, :
OPINION
: 10/7/2013
- vs -
:
WILLIAM J. WHITAKER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 11CR010835
Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. West, 101 East Main Street,
Courthouse, 1st Floor, Eaton, Ohio 45320, for plaintiff-appellee
James Vanzant, P.O. Box 161, Eaton, Ohio 45320, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, William Whitaker, appeals his conviction and sentence in
the Preble County Court of Common Pleas for kidnapping, felonious assault, and a repeat
violent offender specification.
{¶ 2} Appellant was indicted in January 2012 on two counts of kidnapping in violation
of R.C. 2905.01(A)(2) and/or (A)(3) (first-degree felonies), two counts of felonious assault in
violation of R.C. 2903.11(A)(1) and/or (A)(2) (second-degree felonies), and one count of
Preble CA2012-10-013
coercion in violation of R.C. 2905.12(A)(1) (a second-degree misdemeanor). The indictment
also included a repeat violent offender (RVO) specification in violation of R.C. 2941.149.
{¶ 3} The state alleged that on November 28, 2011, and again on December 3, 2011,
appellant kidnapped the victim and inflicted serious physical harm on her. The victim was
able to escape during the November incident. She was not so fortunate with regard to the
December incident. However, the police were able to track the whereabouts of appellant and
the victim after appellant called his mother and the victim's mother during the incident (and
told the latter she would not see her daughter again), and in turn, both women called the
police multiple times. As a result of the December incident, the victim suffered multiple
severe injuries, including several deep and significant lacerations, broken bones, and
bruising and swelling.
{¶ 4} On July 20, 2012, appellant entered a guilty plea to both counts of kidnapping,
both counts of felonious assault, and the coercion count, and entered a plea of admit to the
RVO specification. The trial court accepted appellant's pleas and found him guilty as
charged. The trial court subsequently sentenced appellant to 43 years in prison as follows: 8
years on each of the felonious assault charges, 11 years on each of the kidnapping charges,
and 5 years on the RVO specification, all to be served consecutively, and 90 days on the
coercion charge to be served concurrently.
{¶ 5} Appellant appeals, raising three assignments of error which will be addressed
out of order.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT, IN ACCEPTING APPELLANT'S PLEA OF GUILTY
(ADMIT) TO THE REPEAT VIOLENT OFFENDER SPECIFICATION (RVOS), ERRED TO
THE PREJUDICE OF APPELLANT BECAUSE THE PLEA COLLOQUY WAS
INSUFFICIENT TO ESTABLISH THAT APPELLANT MADE A KNOWING, VOLUNTARY
-2-
Preble CA2012-10-013
AND INTELLIGENT PLEA OF ADMIT TO SAID SPECIFICATION.
{¶ 8} Appellant argues his plea of admit to the RVO specification was not knowingly,
intelligently, and voluntarily made because during the Crim.R. 11 colloquy, the trial court (1)
failed to advise him of his constitutional rights when addressing his plea to the RVO
specification, (2) failed to properly advise him as to the definition of a repeat violent offender
and instead relied upon the state's reference to the statutory definition, and (3) never
informed him that his sentence for the RVO specification was not only mandatory, but that it
would also have to be served prior to and consecutively to the prison term imposed for the
underlying offenses.
{¶ 9} When a defendant enters a guilty plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily. See State v. Engle, 74 Ohio St.3d 525 (1996).
Before a trial court can accept a guilty plea in a felony case, it must conduct a colloquy with
the defendant to determine that he understands the plea he is entering and the rights he is
voluntarily waiving. Crim.R. 11(C)(2); State v. Butcher, 12th Dist. Butler No. CA2012-10-206,
2013-Ohio-3081, ¶ 8.
{¶ 10} The rights found in Crim.R. 11 are divided into nonconstitutional and
constitutional rights. The latter include the right to a jury trial, the right to confront one's
accusers, the right to compulsory process to obtain witnesses, the right to require the state to
prove guilt beyond a reasonable doubt, and the privilege against compulsory self-
incrimination. Crim.R. 11(C)(2)(c). With regard to constitutional rights, a trial court must
strictly comply with Crim.R. 11 or the defendant's plea is invalid. State v. Bullard, 12th Dist.
Clermont No. CA2012-09-064, 2013-Ohio-3313, ¶ 10.
{¶ 11} With regard to nonconstitutional rights, found in Crim.R. 11(C)(2)(a) and (b), a
trial court's substantial compliance during the plea colloquy is sufficient for a valid plea. State
v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 22; Butcher at ¶ 9. Substantial compliance
-3-
Preble CA2012-10-013
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 (1990); Butcher at id.{¶ 12} Appellant first argues his plea of admit to the RVO specification was not
knowingly, intelligently, and voluntarily made because the trial court failed to advise him of his
constitutional rights when addressing his plea to the RVO specification.
{¶ 13} We find no merit to appellant's argument. Appellant entered guilty pleas to
felonious assault, kidnapping, and coercion and subsequently a plea of admit to the RVO
specification during the same plea hearing. The record shows that the trial court advised
appellant of his constitutional rights, in strict compliance with Crim.R. 11(C), at the outset of
the plea hearing. The trial court was not required to advise appellant again of his
constitutional rights when addressing his plea to the RVO specification.
{¶ 14} Appellant next argues his plea of admit to the RVO specification was not
knowingly, intelligently, and voluntarily made because the trial court failed to properly advise
him as to the definition of a repeat violent offender and instead relied upon the state's
reference to the statutory definition.
{¶ 15} We find no merit to appellant's argument. During the plea hearing, the state
provided the trial court with the definition of a repeat violent offender as follows: "the
definition of the RVO spec is that the Defendant is now being convicted of what's considered
to be felonies offenses of violence, and has previously been convicted [ ] of two or more prior
1
felony offenses of violence." Satisfied with the state's definition, the trial court asked
1. {a} R.C. 2929.01(CC) defines a repeat violent offender as a person about whom both of the following
apply:
{b} (1) The person is being sentenced for committing or for complicity in
committing any of the following:
{c} (a) Aggravated murder, murder, any felony of the first or second degree that is
-4-
Preble CA2012-10-013
appellant if he understood the RVO specification as provided by the state. Appellant replied
he did. Appellant does not claim that the state's definition was incorrect. We find that the
definition of a repeat violent offender as provided to appellant during the plea hearing
substantially complied with Crim.R. 11(C).
{¶ 16} Finally, appellant argues his plea of admit to the RVO specification was entered
in violation of Crim.R. 11(C)(2)(a) because the trial court never informed him that the
sentence for the RVO specification was mandatory and that it would have to be served prior
to and consecutively to the prison term imposed for the underlying offenses.
{¶ 17} Pursuant to R.C. 2929.14(B)(2)(a), in addition to the longest prison term
authorized or required for an offense, the trial court may impose an additional definite prison
term of one, two, three, four, five, six, seven, eight, nine, or ten years for the RVO
specification if specific criteria are met (appellant does not claim the criteria were not met).
R.C. 2929.14(B)(2)(d) provides that the offender "shall serve" the additional prison term
imposed for the RVO specification "consecutively to and prior to the prison term imposed for
the underlying offense."
{¶ 18} Before accepting appellant's plea of admit to the RVO specification, the trial
court informed appellant that the sentence for the RVO specification would be "up to ten year
mandatory sentence, and the Court, whatever the Court orders for that repeat violent
offender spec will be mandatory." Thus, contrary to appellant's assertion, the trial court
informed appellant that his sentence for the RVO specification was mandatory. However,
an offense of violence, or an attempt to commit any of these offenses if the
attempt is a felony of the first or second degree;
{d} (b) An offense under an existing or former law of this state, another state, or
the United States that is or was substantially equivalent to an offense
described in division (CC)(1)(a) of this section.
{e} (2) The person previously was convicted of or pleaded guilty to an offense
described in division (CC)(1)(a) or (b) of this section.
-5-
Preble CA2012-10-013
before accepting appellant's plea of admit, the trial court did not inform appellant that he
would be required to serve such sentence prior to and consecutively to the prison terms for
the underlying offenses of kidnapping and felonious assault.
{¶ 19} Crim.R. 11(C)(2)(a) provides that in felony cases, the trial court "shall not
accept a plea of guilty * * * without first addressing the defendant personally and determining
that the defendant is making the plea voluntarily, with understanding of the nature of the
charges and of the maximum penalty involved[.]" Crim.R. 11(C)(2)(a) thus requires a trial
court to determine that a defendant understands the "maximum penalty involved" when he
enters a guilty plea. See State v. Gibson, 34 Ohio App.3d 146 (8th Dist.1986). Notification
of the maximum penalty is a nonconstitutional right. Butcher, 2013-Ohio-3081 at ¶ 9.
{¶ 20} The Ohio Supreme Court has held that "failure to inform a defendant who
pleads guilty to more than one offense that the court may order him to serve any sentences
imposed consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and
does not render the plea involuntary." State v. Johnson, 40 Ohio St.3d 130 (1988), syllabus.
{¶ 21} In reaching its holding, the supreme court noted that "the decision of whether
the criminal defendant is to serve the sentences for all his crimes consecutively or
concurrently is a matter of sentencing discretion, the exercise of which is committed to the
trial court." Id. at 133-134. In addition,
Crim.R. 11 applies only to the entry and acceptance of the plea.
It has no relevance to the exercise of the trial court's sentencing
discretion at that stage other than directing the court to proceed
with or impose sentencing. Thus, it can hardly be said that the
rule imposes upon a trial judge a duty to explain what particular
matters he may, at a later date, determine are significant to the
exercise of his discretion.
Id. at 134. The supreme court "concluded that because whether to impose consecutive
sentences was a matter within the trial court's discretion, it need not be addressed at a plea
hearing." State v. Bragwell, 7th Dist. Mahoning No. 06-MA-140, 2008-Ohio-3406, ¶ 56.
-6-
Preble CA2012-10-013
{¶ 22} Following Johnson, several Ohio appellate courts held that: (1) the supreme
court's holding did not apply when a consecutive sentence was statutorily required to be part
of the maximum penalty a defendant faced; (2) thus, a trial court's failure to inform a pleading
defendant that he faced statutorily required consecutive sentences did not substantially
comply with Crim.R. 11(C)(2)(a); and (3) accordingly, the plea was invalid.
{¶ 23} Thus, in State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, the
Eighth Appellate District held that the supreme court's decision in Johnson
is not dispositive because its use of the word "may" shows that it
concerns the discretionary imposition of consecutive sentences.
When consecutive sentences are mandatory, the consecutive
sentence directly affects the length of the sentence, thus
becoming a crucial component of what constitutes the
"maximum" sentence, and the failure to advise a defendant that
a sentence must be served consecutively does not amount to
substantial compliance with Crim.R. 11(C)(2).
Id. at ¶ 7. Accordingly, "compliance with the 'maximum' penalty provision of Crim.R. 11(C)(2)
requires the court to inform the defendant, prior to taking a guilty plea, that a charge carries a
mandatory consecutive sentence." Id. at ¶ 12. The appellate court found that the trial court's
failure to inform Norman that any sentence for failure to comply would have to be served
consecutively to sentences imposed on other counts to which Norman pled guilty "constituted
a lack of substantial compliance with Crim.R. 11(C)(2)(a) and requires a reversal of Norman's
guilty plea." Id. at ¶ 13.
{¶ 24} Likewise, the Seventh Appellate District noted in Bragwell that the consecutive
sentences ordered in Johnson were discretionary, not mandatory:
Here the trial court did not simply fail to inform [Bragwell] that it
might order him to serve his sentences consecutively. Instead it
completely neglected to inform him that he was required to serve
his sentences consecutively. Whether [Bragwell] was to serve
his sentences consecutively or concurrently was not up to the
trial court's discretion as was the case in Johnson, supra. R.C.
2929.13(G)(2) directs that the court impose a mandatory prison
term for the repeat offender specification prior to and
-7-
Preble CA2012-10-013
consecutive to the sentence on the underlying DUI. Unlike
Johnson, in this case a mandatory, consecutive prison term was
a guaranteed consequence of [Bragwell's] guilty plea.
Bragwell, 2008-Ohio-3406 at ¶ 57. The appellate court vacated Bragwell's plea on the
ground the trial court did not substantially comply with Crim.R. 11(C)(2)(a), thus, Bragwell's
plea was not knowingly and intelligently made. Id. at ¶ 58.
{¶ 25} Other appellate courts have likewise held that when sentences are mandated to
be served consecutively, a trial court's failure to so inform a pleading defendant does not
constitute substantial compliance with Crim.R. 11(C)(2). See State v. Millhoan, 6th Dist.
Lucas Nos. L-10-1328 and L-10-1329, 2011-Ohio-4741 (noting that holdings in Norman and
Bragwell apply when the imposition of consecutive sentences is a foregone conclusion at the
time the plea is entered and accepted, that is, where a mandatory consecutive prison term is
a guaranteed consequence of the defendant's plea); State v. Pitts, 159 Ohio App.3d 852,
2005-Ohio-1389 (6th Dist.) (finding that because a consecutive sentence was part of the
maximum penalty Pitts faced, the trial court erred by failing to so inform him at the plea
hearing). See also State v. Hankison, 4th Dist. Scioto No. 01CA2792, 2002-Ohio-6161(finding that Hankison's guilty plea to failure to comply was not knowingly and intelligently
made where the trial court did not advise him that by pleading guilty, it was mandatory that
his sentence be served consecutively to any other sentence).
{¶ 26} This court has "tap danced" around the issue in State v. Hogg, 12th Dist.
Warren No. CA87-02-018, 1987 WL 12763 (July 20, 1987), a pre-Johnson decision. In
Hogg, the defendant argued his guilty plea to two counts was not knowingly made because
the trial court did not inform him the sentences he might receive could run consecutively or
concurrently, and cited State v. Ricks, 53 Ohio App.2d 244 (9th Dist.1977), in support of his
argument. This court found that Hogg's guilty plea did not violate Crim.R. 11(C)(2)(a)
because:
-8-
Preble CA2012-10-013
As we read Ricks, it stands for the proposition that where,
according to R.C. 2929.41(B)(3), a new sentence must be served
consecutively to some other sentence, the pleading defendant
must be informed of the statutory requirement that this new
sentence must be served consecutively to his other sentence.
Otherwise, the defendant has not been properly informed of the
maximum sentence involved as required by Crim. R. 11(C)(2)(a).
A close reading of Ricks, supra, shows that the appellate court
placed heavy emphasis on the fact that Ricks faced statutorily
required consecutive sentences. It was these statutorily required
consecutive sentences which caused the court to conclude Ricks
had not been informed of the maximum penalty involved.
Here, on the other hand, appellant's consecutive sentences were
not mandatory. Instead, appellant received consecutive terms
when the trial court exercised its sentencing discretion under
R.C. 2929.41(B)(1). On the basis of this statutory distinction, the
cases cited by appellant are distinguishable and are inapplicable
to the case at bar.
Id. at *3.
{¶ 27} Upon reviewing the supreme court's decision in Johnson as well as the
foregoing appellate decisions, we find the reasoning in Norman and Bragwell persuasive and
therefore adopt their reasoning. In the case at bar, the trial court failed to inform appellant he
would be required to serve his sentence for the RVO specification prior to and consecutively
to the sentences for the underlying offenses. Whether appellant was to serve his sentence
for the RVO specification consecutively or concurrently was not up to the trial court's
discretion as was the case in Johnson. Rather, R.C. 2929.14(B)(2)(d) requires that a
sentence for an RVO specification be served prior to and consecutively to the sentence for
the underlying offense. Thus, a consecutive prison term was a guaranteed consequence of
appellant's plea of admit to the RVO specification.
{¶ 28} We accordingly find that because the trial court never informed appellant that
any prison sentence imposed for the RVO specification would have to be served prior to and
consecutively to the sentences imposed for the kidnapping and felonious assault, the trial
court failed to substantially comply with Crim.R. 11(C)(2)(a) and appellant did not enter a
-9-
Preble CA2012-10-013
knowing and intelligent plea of admit to the RVO specification.2
{¶ 29} Appellant's plea of admit to the RVO specification is therefore vacated and the
cause is remanded to the trial court for appellant to plead anew with regard to the RVO
specification. Were appellant to deny the specification on remand, the trial court shall
conduct further proceedings as are necessary.
{¶ 30} Appellant's first assignment of error is sustained in part and overruled in part.
{¶ 31} Assignment of Error No. 3:
{¶ 32} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
CONVICTING AND SENTENCING HIM OF BOTH KIDNAPPING AND FELONIOUS
ASSAULT WHEN, ON THE FACTS OF THIS CASE, KIDNAPPING AND FELONIOUS
ASSAULT AS CHARGED ARE ALLIED OFFENSES OF SIMILAR IMPORT.
{¶ 33} Appellant argues the trial court erred in sentencing him on both kidnapping and
felonious assault with regard to the November 28, 2011 incident because the offenses are
allied offenses of similar import under R.C. 2941.25 and State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314. Likewise, appellant argues the trial court erred in sentencing him on
both kidnapping and felonious assault with regard to the December 3, 2011 incident because
the offenses are allied offenses of similar import. Specifically, appellant argues that as
written, the indictment and the bill of particulars create an overlap of the elements of the
offenses, and thus the offenses for either incident should merge, because when appellant
committed the offense of felonious assault by the actual infliction of serious physical harm on
2. We are mindful of this court's decision in State v. Gatewood, 12th Dist. Fayette No. CA95-04-011, 1995 WL
764058 (Dec. 29, 1995), a post-Johnson decision. In Gatewood, we held that in light of the supreme court's
decision in Johnson, the trial court's failure to advise the defendant that a sentence for escape was required to
be served consecutively to any other sentence of confinement substantially complied with Crim.R. 11(C) and did
not render the defendant's guilty plea to escape involuntary. Given the reasoning in Norman and Bragwell, we
believe this court improperly relied on Johnson in reaching its decision in Gatewood. We also note that State v.
Jasper, 12th Dist. Butler Nos. CA2005-02-060 and CA2005-03-061, 2006-Ohio-7025, a decision from this court
cited by the state in its brief, is not applicable because unlike in the case at bar, the trial court in Jasper had the
discretion to impose consecutive or concurrent sentences.
- 10 -
Preble CA2012-10-013
the victim, he also committed the offense of kidnapping with the intent to inflict serious
physical harm.
{¶ 34} At the close of the sentencing hearing, defense counsel briefly argued that the
kidnapping and felonious assault offenses should merge for purposes of sentencing because
"you cannot commit felonious assault without the kidnapping," and asked the trial court if it
would entertain a brief or motion on the issue. The trial court asked defense counsel whether
he had a case in support of his claim. Defense counsel acknowledged he did not but asked
the court to accept a brief on the issue. A tangential discussion ensued between defense
counsel and the trial court as to the timing of a previous sentencing memorandum submitted
by defense counsel and his access or lack thereof to a sentencing memorandum submitted
3
by the state.
{¶ 35} The trial court then advised defense counsel: "You can file your brief to argue
with the Court that these are allied offenses of similar import or otherwise the Court is
required to merge. Off the top of my head, I don't believe that's the case. But I could be
wrong." The sentencing hearing then concluded, and a sentencing entry was filed the same
day. The felonious assault and kidnapping offenses were not merged for either incident and
the sentences for the offenses were ordered to be served consecutively. It does not appear
defense counsel filed a memorandum on the allied offenses issue after the sentencing
hearing.
{¶ 36} Notwithstanding the state's argument to the contrary, we find that defense
counsel raised the issue of allied offenses in the trial court. An appellate court applies a de
novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination. State
3. In its brief, the state acknowledged that on the date of sentencing, defense counsel "provide[d] it with a
sentencing memo in which allied offenses were discussed in a general matter * * *, however, this document was
not filed with the clerk of court and so is not part of the record[.]"
- 11 -
Preble CA2012-10-013
v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28. As appellant argued below that the
offenses of kidnapping and felonious assault for either incident should merge, we review the
trial court's merger determination de novo. Id.; see also State v. Davis, 12th Dist. Butler No.
CA2012-09-194, 2013-Ohio-2637, ¶ 7.
{¶ 37} R.C. 2941.25 prohibits the imposition of multiple punishments for the same
criminal conduct and provides that:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶ 38} In Johnson, the Ohio Supreme Court clarified the test used to determine
whether offenses are allied offenses of similar import under R.C. 2941.25. Davis, 2013-Ohio-
2637 at ¶ 9. Under this test, courts must first determine "whether it is possible to commit one
offense and commit the other with the same conduct." (Emphasis sic.) Johnson, 2010-Ohio-
6314 at ¶ 48. It is not necessary that the commission of one offense will always result in the
commission of the other. Id. Rather, the question is simply whether it is possible for both
offenses to be committed by the same conduct. Id.{¶ 39} If it is possible to commit both offenses with the same conduct, courts must
next determine whether the offenses were in fact committed by the same conduct, that is, by
a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied
offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the
offenses are committed separately or with a separate animus, the offenses will not merge.
Id. at ¶ 51.
- 12 -
Preble CA2012-10-013
{¶ 40} Appellant was charged with kidnapping in violation of R.C. 2905.01(A)(2) and/or
(A)(3). The statute prohibits a person from removing another person from the place where
the other person is found or from restraining the liberty of the other person by force, threat, or
deception, with the purpose to facilitate the commission of any felony or flight thereafter, or to
terrorize or inflict serious physical harm on the victim or another.
{¶ 41} Appellant was also charged with felonious assault in violation of R.C.
2903.11(A)(1) and/or (A)(2). The statute prohibits a person from knowingly causing serious
physical harm to another, or causing or attempting to cause physical harm to another by
means of a deadly weapon or dangerous ordnance. The state concedes, and we agree, that
it is possible to commit both offenses with the same conduct.
{¶ 42} We next determine whether the offenses of kidnapping and felonious assault
were in fact committed by way of a single act with a single state of mind on either November
28, 2011, or December 3, 2011. We first address the November 2011 incident.
{¶ 43} We find we are unable, under the second prong of the Johnson test, to
determine from the record before us whether appellant committed the kidnapping and
felonious assault separately or with a separate animus on November 28, 2011. As appellant
pled guilty to the offenses, there was no witness testimony at the plea hearing. The state did
not otherwise offer any facts establishing appellant's conduct on November 28, 2011. The
indictment simply recites the statutory elements of both offenses and does not identify the
facts supporting each offense. The bill of particulars is nothing more than a recitation of the
indictment and offers no separate basis to determine the allied offenses issue.
{¶ 44} In sentencing appellant for the November 28, 2011 offenses, the trial court
noted that the victim was held, cut, and hit on that day, and that she was able to escape.
Thereafter, without holding a hearing on the issue, without engaging in any analysis, without
considering any evidence, and without invoking the Johnson test, the trial court cursorily
- 13 -
Preble CA2012-10-013
determined that the November 28, 2011 kidnapping and felonious assault offenses were not
allied offenses of similar import.
{¶ 45} The Johnson decision clearly states that "[w]hen determining whether two
offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the
conduct of the accused must be considered." Johnson, 2010-Ohio-6414 at syllabus. Thus,
under Johnson and R.C. 2941.25, the allied offenses analysis must center upon the
offender's conduct and a court is required to consider the specific details of the conduct
which precipitated the charges. State v. Miller, 11th Dist. Portage No. 2009-P-0090, 2011-
Ohio-1161, ¶ 47, 56; Williams, 2012-Ohio-5699 at ¶ 25 (appellate courts apply the law to the
facts of individual cases to make a legal determination as to whether R.C. 2941.25 allows
multiple convictions).
{¶ 46} The Ohio Supreme Court has further held that "allied offenses of similar import
are to be merged at sentencing. Thus, a trial court is prohibited from imposing individual
sentences for counts that constitute allied offenses of similar import." (Internal citations
omitted.) State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 26. "Under R.C.
2941.25, the court must determine prior to sentencing whether the offenses were committed
by the same conduct." Johnson, 2010-Ohio-6314 at ¶ 47. "A defendant's plea to multiple
counts does not affect the court's duty to merge those allied counts at sentencing. This duty
is mandatory, not discretionary." Underwood at ¶ 26.
{¶ 47} The Eighth Appellate District recently addressed a similar situation to the case
at bar. State v. Rogers, 8th Dist. Cuyahoga Nos. 98292 and 98584 through 98590, 2013-
Ohio-3235. In that case, Rogers pled guilty to several charges and was sentenced on all of
the offenses. The sentences were not merged; no discussion took place in the trial court
about merger. Finding itself in conflict between the original panel's decision in the case and
previous decisions by the appellate court, the Eighth Appellate District considered the issue
- 14 -
Preble CA2012-10-013
en banc.
{¶ 48} The appellate court first addressed Rogers' sentences for receiving stolen
property. Despite the lack of facts to analyze Rogers' conduct, the appellate court found it
could determine "from the face of these convictions" that the offenses were not subject to
merger because they involved separate victims, and thus separate animus. Id. at ¶ 21-22.
Accordingly, the appellate court upheld the trial court's imposition of separate sentences.
{¶ 49} The appellate court then addressed Rogers' sentences for receiving stolen
property and possession of criminal tools. The court noted its inability to determine whether
the offenses were allied offenses of similar import as there were "simply no facts in the
record" to help the court in its review of the issue. After reviewing the role of the trial judge,
the Eighth Appellate District held that when multiple charges facially present a question of
merger under R.C. 2941.25 (that is, when a facial review of the charges and the elements of
the crimes present a viable question of merger), a trial judge has a duty to inquire and
determine under R.C. 2941.25 whether the offenses merge, and the trial court errs in failing
to conduct an allied offenses analysis. Rogers, 2013-Ohio-3235 at ¶ 28, 33, and 63.4
{¶ 50} In so holding, the court found that (1) R.C. 2941.25 and the supreme court's
decision in Underwood both squarely place the duty on the trial court to address the merger
issue, regardless of how a defendant's conviction on multiple counts is achieved; (2) while
the trial court cannot be an advocate for either position, the court must address an allied
offenses issue when the charges facially present a question of merger; and (3) the merger
5
issue must be addressed and resolved, or it remains outstanding. Id. at ¶ 27, 32.
4. The Eighth Appellate District further held that where a facial question of allied offenses of similar import
presents itself, a "trial court commits plain error in failing to inquire and determine whether such offenses are
allied offenses of similar import". Rogers, 2013-Ohio-3235 at ¶ 63.
5. The Eighth Appellate District also noted that although prosecutors do not have to prove that offenses are not
allied offenses of similar import, they would be well advised to address the issue during the many opportunities
available along the path of case resolution to put facts on the record that would support a determination that
- 15 -
Preble CA2012-10-013
{¶ 51} The Eighth Appellate District also held that in the absence of a stipulation or an
agreement on the allied offenses issue, "a guilty plea does not negate the court's mandatory
duty to merge allied offenses of similar import at sentencing." Id. at ¶ 40, citing Underwood,
2010-Ohio-1. Further, while facts establishing the conduct of the offender offered at the time
of the plea may be used to determine that offenses are not allied, "a guilty plea alone that
does not include a stipulation or finding that offenses are not allied offenses of similar import
does not conclusively resolve the merger question." Id. at ¶ 41.
{¶ 52} In light of the foregoing, the appellate court reversed the trial court's judgment in
part and remanded the case to the trial court "to establish the underlying facts of Rogers'
conduct [regarding his receiving stolen property and possession of criminal tools offenses]
and for the trial court to determine whether the subject crimes should merge for sentencing
purposes." Id. at ¶ 64.
{¶ 53} In 1993, this court addressed a similar situation to the case at bar. State v.
Mangrum, 86 Ohio App.3d 156 (12th Dist.1993). In that case, Mangrum pled guilty to two
counts of sexual battery, one count of gross sexual imposition, and one count of
disseminating matter harmful to juveniles. Before sentencing Mangrum separately on all
counts, the trial court did not make a finding as to whether any of the offenses were allied
offenses. The decision does not indicate whether the allied offenses issue was raised below.
This court generally held that "[w]hen a defendant pleads guilty to multiple offenses of similar
import and the trial court accepts the pleas, the court has a duty to conduct a hearing and to
certain offenses are not allied. Id. at ¶ 43, 44. Such opportunities include putting facts into the individual
indictment counts distinguishing conduct; indicating in a bill of particulars which offenses are not allied and why;
at the time of a plea, indicating which offenses are not allied and why, by stating a factual basis for the plea even
if one is not required under Crim.R. 11; and entering into a stipulation regarding what offenses are committed
with separate conduct or separate animus. Id. at ¶ 44. The appellate court further noted that for prosecutors to
put facts on the record at any point in the process to support a determination that certain offenses are not allied
offenses does not have to involve long or complicated hearings or witnesses. Id. at ¶ 45. Rather, the process
could be easily satisfied by a brief recitation of facts or circumstances by the prosecutor. Id.
- 16 -
Preble CA2012-10-013
make a determination as to whether the crimes were committed separately or with a separate
animus for each offense prior to entering a judgment sentencing the defendant." Id. at 158.
{¶ 54} Then, turning to the particular offenses at issue, this court found that the
offenses of sexual battery and gross sexual imposition were not allied offenses because they
did not meet the first prong of the applicable allied offenses test. Hence, "there was no need
for the court to conduct a hearing to determine whether [Mangrum's] actions resulting in
[these convictions] were committed separately or whether there was a separate animus for
each crime." Id. at 160. Likewise, this court found that disseminating matter harmful to
juveniles was not an allied offense to either sexual battery or gross sexual imposition.
Hence, no hearing was necessary. Id.
{¶ 55} By contrast, this court found that Mangrum's convictions for each count of
sexual battery met the first prong of the test. Consequently,
the trial court had a duty to hold a hearing to determine whether
each count of sexual battery was committed separately or with a
separate animus prior to sentencing [Mangrum]. Because we
are unable to make such a determination from the record before
us, we must remand this case to the trial court to hear evidence
on this question in order to determine whether [Mangrum] can be
sentenced for both counts of sexual battery pursuant to R.C.
2941.25.
Id. This court subsequently remanded the case for the trial court "to determine whether
[Mangrum's] actions resulting in the sexual battery convictions occurred separately or with a
separate animus for each crime and thereafter to resentence [him] in accordance with R.C.
2941.25." Id.
{¶ 56} In State v. Philpot, 145 Ohio App.3d 231 (12th Dist.2001), Philpot was
convicted by a jury of one count each of aggravated robbery, theft, and theft of drugs. During
the sentencing hearing, Philpot moved the trial court to merge the theft counts with the
aggravated robbery count. The trial court implicitly overruled Philpot's motion by sentencing
- 17 -
Preble CA2012-10-013
him on all three counts. On appeal, this court found that the offenses met the first prong of
the applicable allied offenses test. It then reversed Philpot's sentences on the following
ground:
Although the trial court sentenced [Philpot] on all three counts,
thereby implicitly overruling [his] motion to merge * * * , it made
no finding as to whether [Philpot] committed the [offenses]
separately or with a separate animus. Absent such finding, we
find that the trial court erred by separately sentencing [Philpot]
for the three offenses.
Id. at 240. This court subsequently remanded the matter to the trial court "for a resentencing
hearing solely for the purpose of determining whether [Philpot] committed the [three offenses]
separately or with a separate animus." Id.
{¶ 57} This court also recently decided State v. Davis, 12th Dist. Butler No. CA2012-
09-194, 2013-Ohio-2637. In that case, Davis pled guilty to drug trafficking and importuning.
Prior to imposing sentence, the trial court considered whether the offenses merged. Davis
asserted his position that "the offenses are allied offenses" but ultimately "defer[red] to the
Court's knowledge and understanding and interpretation of the law." Id. at ¶ 3. The state
similarly deferred to the court as to allied offenses. In an analysis spanning several
paragraphs and supported by references to the record, the trial court determined that the
drug trafficking and importuning offenses did not merge.
{¶ 58} On appeal, this court noted that a "defendant bears the burden of establishing
his entitlement to the protection provided by R.C. 2941.25 against multiple punishments for a
single criminal act." Id. at ¶ 8. Then, based upon the statement of facts read into the record
at the plea hearing and the language of the indictment and the bill of particulars, this court
found that the offenses were not allied offenses as there was "nothing to suggest that th[e]
two offenses occurred by way of a single act by Davis, with a single state of mind," that is,
there was nothing to connect the two offenses. Id. at ¶ 13-14. In reaching its determination,
- 18 -
Preble CA2012-10-013
this court noted that "Davis did only what was minimally necessary to raise this issue below.
Davis merely asserted his 'position' that the offenses were allied offenses of similar import
but did not make any arguments as to why the offenses were allied and ultimately deferred to
the trial court." Id. at ¶ 14.
{¶ 59} In the case at bar, because the first prong of the allied offenses test is met, and
because both the offenses of kidnapping and felonious assault were committed on
November 28, 2011, against the same victim, the charges facially present a question of
merger. However, as explained earlier, the record before us is insufficient to determine
whether the offenses were committed separately or with a separate animus, and thus
whether the offenses are allied offenses of similar import.
{¶ 60} As in Mangrum and Philpot, and unlike in Davis, the trial court made no finding
as to whether the two offenses were committed separately or with a separate animus, and in
fact, did not engage in an allied offenses analysis at all. Rather, the trial court essentially
overruled appellant's request to merge the two counts by sentencing him on both counts.
Unlike in Davis, appellant did not simply assert his position at the sentencing hearing or
subsequently defer to the trial court. Rather, appellant tried to argue at the hearing why the
offenses were allied offenses, however his attempt was cut off when the trial court asked if
he had a case to support his argument. Following a tangential discussion between appellant
and the trial court, the latter allowed appellant to file a brief on the issue. As stated earlier, it
is not clear whether appellant did so. Nevertheless, the record shows that the trial court's
sentencing entry was issued on the same day as the sentencing hearing.
{¶ 61} Accordingly, in light of the foregoing, we find that the trial court erred in
sentencing appellant separately for the November 28, 2011 offenses of kidnapping and
felonious assault without first sufficiently addressing the basis for refusing to merge these
offenses. We reverse the sentences imposed for those offenses and remand the matter to
- 19 -
Preble CA2012-10-013
the trial court to conduct such proceedings as it may determine are necessary to decide
whether the November 28, 2011 offenses of kidnapping and felonious assault were
committed separately or with a separate animus, and thus whether the offenses should
merge for sentencing purposes. Mangrum, 86 Ohio App.3d at 160; Philpot, 145 Ohio App.3d
at 240; State v. Collins, 8th Dist. Cuyahoga No. 99111, 2013-Ohio-3726, ¶ 13 (reversing the
imposition of separate sentences where the record lacked sufficient factual detail to
determine whether the offenses were allied offenses, and remanding the matter to the trial
court to establish the underlying facts of the defendant's conduct so that the trial court is able
to properly determine whether the offenses should merge for sentencing purposes); State v.
Biondo, 11th Dist. Portage No. 2012-P-0043, 2013-Ohio-876, ¶ 12 (reversing and remanding
the matter to the trial court for the limited purpose of establishing the facts underlying the
charges, and once the facts are established, instructing the trial court to analyze the
defendant's conduct under Johnson and rule whether the offenses at issue should be
merged for sentencing).
{¶ 62} We note that any allied offenses proceedings conducted by a trial court,
whether in general or on remand in the case at bar, do not have to involve long or
complicated hearings or witnesses. Rogers, 2013-Ohio-3235 at ¶ 45. As the Eighth
Appellate District stated, because merger of offenses is part of the sentencing process, which
itself is less exacting than the process of establishing guilt, "this process can easily be
satisfied by a brief recitation of facts or circumstances by the prosecutor to aid the trial court
in its determination. Nothing more should be required." Id. Furthermore, a trial court may
require the parties to submit sentencing memoranda if the parties otherwise fail to adequately
address the issue. Finally, an evidentiary hearing, while permissible in a trial court's
discretion, is not required since merger of offenses is part of the sentencing process and is
therefore not subject to the rules of evidence. Evid.R. 103(C)(3).
- 20 -
Preble CA2012-10-013
{¶ 63} We emphasize that "[b]ecause R.C. 2941.25(A) protects a defendant only from
being punished for allied offenses, the determination of the defendant's guilt for committing
allied offenses remains intact, both before and after the merger of allied offenses for
sentencing." State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 27. Thus, our remand
affects only the sentences, not the trial court's determination of appellant's guilt for the
November 28, 2011 kidnapping and felonious assault offenses. "Those remain intact and
are not subject to review." State v. Swiergosz, 197 Ohio App.3d 40, 2012-Ohio-830, ¶ 43
(6th Dist.).
{¶ 64} Further, because a defendant "bears the burden of establishing his entitlement"
to the merger of offenses under R.C. 2941.25, Davis, 2013-Ohio-2637 at ¶ 8, appellant will
have to show on remand that the November 28, 2011 offenses of kidnapping and felonious
assault were committed with the same animus, and were therefore allied offenses of similar
import. That is, appellant will have to come forward with evidence to support his argument.
Nonetheless, any failure of appellant to present any evidence will not relieve the trial court of
its duty to conduct an analysis that is reflected in the record based upon such information as
may be available to the trial court on the issue.
{¶ 65} We next address the December 3, 2011 incident and determine whether the
offenses of kidnapping and felonious assault were committed by way of a single act with a
single state of mind during that incident.
{¶ 66} As it did with the offenses committed on November 28, 2011, the trial court,
without analysis, a hearing on the issue, or consideration of any evidence, and without
invoking the Johnson test, cursorily determined that the offenses committed on December 3,
2011, were not allied offenses of similar import. However, unlike the November 2011
offenses, we find there is enough factual evidence in the record to determine that the
December 2011 offenses were not allied offenses of similar import. See Rogers, 2013-Ohio-
- 21 -
Preble CA2012-10-013
3235 at ¶ 19. Hence, we need not reverse the imposition of separate sentences for the
December 2011 offenses or remand the matter to the trial court to conduct an allied offenses
hearing as to those offenses.
{¶ 67} In establishing whether kidnapping and another offense of the same or similar
kind are committed with a separate animus, the Ohio Supreme Court adopted the following
guidelines:
Where the restraint or movement of the victim is merely
incidental to a separate underlying crime, there exists no
separate animus sufficient to sustain separate convictions;
however, where the restraint is prolonged, the confinement is
secretive, or the movement is substantial so as to demonstrate a
significance independent of the other offense, there exists a
separate animus as to each offense sufficient to support
separate convictions;
Where the asportation or restraint of the victim subjects the
victim to a substantial increase in risk of harm separate and apart
from that involved in the underlying crime, there exists a separate
animus as to each offense sufficient to support separate
convictions.
State v. Logan, 60 Ohio St.2d 126 (1979), syllabus. These guidelines appear to remain valid
in the wake of Johnson. State v. Ozevin, 12th Dist. Clermont No. CA2012-06-044, 2013-
Ohio-1386, ¶ 13.
{¶ 68} Although the bill of particulars recited the indictment with regard to the elements
of the December 3, 2011 offenses of kidnapping and felonious assault, it also specified that:
upon arriving at the scene, * * * inside the bedroom of the trailer
was [the victim]; [the victim] had multiple and severe injuries
including * * * multiple deep and significant lacerations, broken
bones, and miscellaneous bruising and swelling; [the victim]
reported that she had been restrained in the bedroom of the
trailer for a considerable period of time by William Whitaker and
that Whitaker inflicted the injuries in question; [and] a pair of
handcuffs used in the crime was found in the bedroom and that
multiple knives were found on the person of Mr. Whitaker upon
his arrest.
{¶ 69} Additionally at sentencing, the prosecutor noted that the victim "survive[d] hours
- 22 -
Preble CA2012-10-013
of torture, being stabbed, sliced, broken bones[.]" In turn, the trial court invoked "the
incredible violence" the victim suffered that day and stated appellant beat, tortured, and cut
the victim for several hours and came close to killing her. Arguably, the confinement of the
victim was secretive as her whereabouts were not discovered until after appellant took time
out from torturing the victim and called his mother and the victim's mother. Both women
made several phone calls to the police, and over a period of time, the police were able to
locate the whereabouts of appellant and the victim. The restraint was prolonged and
substantially increased the risk of harm to the victim. Based upon the foregoing evidence, we
find that appellant committed the kidnapping and felonious assault on December 3, 2011,
with a separate animus as to each offense.
{¶ 70} We therefore find that the December 3, 2011 kidnapping and felonious assault
are not allied offenses of similar import. See State v. Harmon, 9th Dist. Summit No. 26502,
2013-Ohio-1769 (holding that the trial court did not err by declining to merge kidnapping and
felonious assault offenses where the kidnapping occurred over an extended period of time
and was, thus, not merely incidental to the felonious assault). The trial court, therefore,
properly sentenced appellant for both kidnapping and felonious assault under Johnson,
2010-Ohio-6314, and R.C. 2941.25.
{¶ 71} Appellant's third assignment of error is sustained in part and overruled in part.
{¶ 72} Assignment of Error No. 2:
{¶ 73} THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES ON TWO COUNTS EACH OF KIDNAPPING AND
FELONIOUS ASSAULT.
{¶ 74} Appellant argues the trial court erred in imposing consecutive sentences for the
felony offenses of kidnapping and felonious assault because the trial court failed to make the
required statutory findings under R.C. 2929.14(C). We note that because we are reversing
- 23 -
Preble CA2012-10-013
and remanding appellant's sentences for the November 28, 2011 offenses of kidnapping and
felonious assault under the third assignment of error, our analysis under the second
assignment of error will not include the trial court's imposition of consecutive sentences for
these offenses.
{¶ 75} As we recently noted in State v. Crawford, 12th Dist. Clermont No. CA2012-12-
088, 2013-Ohio-3315, "'the standard of review set forth in R.C. 2953.08(G)(2) shall govern all
felony sentences.'" Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-
Ohio-2525, ¶ 7. Accordingly, we review appellant's consecutive sentences to determine
whether the imposition of those sentences is clearly and convincingly contrary to law.
Crawford at ¶ 6-7; State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410,
¶ 43; R.C. 2953.08(G)(2).
{¶ 76} In 2011 Am.Sub.H.B. No. 86 ("H.B.86"), the General Assembly revived the
requirement that a trial court make certain factual findings before imposing consecutive
sentences. State v. Dillon, 12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 8. A
trial court must now engage in a three-step analysis and make certain findings before
imposing consecutive sentences pursuant to R .C. 2929.14(C)(4). Id. at ¶ 9. First, the trial
court must find that the consecutive sentence is necessary to protect the public from future
crime or to punish the offender. R.C. 2929.14(C)(4). Second, 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. Id. Third, the trial court must find that
one of the following applies:
(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
- 24 -
Preble CA2012-10-013
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.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 77} "A trial court satisfies the statutory requirement of making the required findings
when the record reflects that the court engaged in the required analysis and selected the
appropriate statutory criteria." State v. Smith, 12th Dist. Clermont No. CA2012-01-004, 2012-
Ohio-4523, ¶ 26. In imposing consecutive sentences, "the trial court is not required to state
any talismanic language" or otherwise give reasons explaining its findings. State v. Oren,
12th Dist. Madison No. CA2012-05-010, 2013-Ohio-531, ¶ 25; Williams, 2013-Ohio-3410 at ¶
45. Nevertheless, the record must reflect that the court made the requisite findings. Williams
at id.{¶ 78} The record indicates that the trial court engaged in the required analysis before
imposing consecutive sentences and that its findings comport with the statutory
requirements. During the sentencing hearing, the trial court stated it was imposing
consecutive sentences "because of the seriousness of the offense. Concurrent sentences
simply would demean the seriousness of the offense and would not amply protect the public
from future crime by the Defendant."
{¶ 79} The trial court also stated during the sentencing hearing that the offenses
consisted of two separate incidents of kidnapping and assaulting the same victim, the two
incidents were approximately a week apart and thus did not "just happe[n] at the spur of the
moment," the offenses were not isolated offenses but rather were "one of many offenses, at
least four in the last twenty years," and in fact, appellant had "spent quite a bit of time in
- 25 -
Preble CA2012-10-013
prison" for a previous offense involving another female victim.
{¶ 80} The trial court also stated this was "the worst" case it had ever seen in 30 years
of being on the bench, appellant came close to killing the victim during the December 3, 2011
incident, and based on the two 2011 incidents and appellant's criminal history, appellant was
a "very dangerous person." The trial court noted that when appellant was released in 2006
or 2007 after serving prison time for a previous offense, he was released against the will of
the prosecutors that had handled the case, and "it wasn't that long after his release that
these offenses were committed."
{¶ 81} After reviewing the record, we find that the trial court made the essential
statutory findings under R.C. 2929.14(C)(4). Although the trial court may not have used the
statutory language, we find that the language employed by the trial court complies with the
statutory requisites. State v. Dehner, 12th Dist. Clermont No. CA2012-12-090, 2013-Ohio-
3576, ¶ 39 (finding that a trial court need not use the exact statutory language when making
its findings under R.C. 2929.14[C][4]); Smith, 2012-Ohio-4523 at ¶ 34 (even though the trial
court did not incorporate its findings in its sentencing entry, following H.B. 86, a trial court is
not required to set forth its findings under R.C. 2929.14(C)(4) in its sentencing entry).
{¶ 82} We therefore find that the trial court properly sentenced appellant to
consecutive sentences for the December 3, 2011 offenses of kidnapping and felonious
assault. Appellant's second assignment of error is overruled.
{¶ 83} The judgment of the trial court is affirmed in part and reversed in part. We
vacate appellant's plea of admit to the RVO specification and remand the matter to the trial
court for appellant to plead anew regarding the specification. We also reverse appellant's
sentences for the November 28, 2011 offenses of kidnapping and felonious assault and
remand the matter for the trial court to conduct a hearing as to those offenses and determine
whether those offenses were committed separately or with a separate animus, and thus
- 26 -
Preble CA2012-10-013
whether those offenses should merge for sentencing purposes. In all other respects,
appellant's sentence and conviction are affirmed.
{¶ 84} Judgment affirmed in part, reversed in part, and cause remanded to the trial
court for further proceedings consistent with this opinion.
S. POWELL, P.J., and PIPER, J., concur.
- 27 -