State v. Davis , 2017 Ohio 245 ( 2017 )

[Cite as State v. Davis, 2017-Ohio-245.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-03-014
: OPINION
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:
BRETT DAVIS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2015-CR-00597
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
The Farrish Law Firm, Michaela Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio
45202, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Brett Davis, appeals his convictions in the Clermont
County Court of Common Pleas for multiple sex offenses. For the reasons detailed below,
we affirm.
{¶ 2} On November 5, 2015, appellant was indicted on 13 counts of gross sexual
imposition in violation of R.C. 2907.05(A)(4), six counts of unlawful sexual contact with a
Clermont CA2016-03-014
minor in violation of R.C. 2907.04(A), and five counts of sexual battery in violation of R.C.
2907.03(A)(5).
{¶ 3} Pursuant to a plea agreement, appellant pled guilty to four counts of gross
sexual imposition and five counts of sexual battery and agreed to a jointly recommended 25-
year prison sentence.
{¶ 4} At the plea and sentencing hearing, the state placed the following facts on the
record. Count One, charging gross sexual imposition, occurred between October 31, 2008
and October 31, 2009. The state alleged that appellant touched the genitals of eight-year-old
N.S. Specifically, appellant "instructed N.S. to get up after playing a video game and took
him into [appellant's] bedroom making N.S. lay [sic] on the bed. He then fondled the penis
and testicle [sic] of N.S."
{¶ 5} Counts Four, Five, and Six, also charging gross sexual imposition, occurred
between October 15, 2009 and October 15, 2012.1 The state alleged that T.S., a friend of
appellant's minor son, would stay the night at appellant's house and appellant would fondle
T.S.'s genitalia "one to two times a week starting when T.S. was 10 years old." The state
noted that "the acts would occur on the couch in the living room when T.S. would fall asleep.
He would awaken to [appellant] rubbing his penis and testicles."
{¶ 6} As to Counts 20, 21, 22, 23, and 24, charging sexual battery, the state alleged
that appellant touched the genitalia of J.K., then 12 or 13, numerous times when the child
spent the night at appellant's home. Specifically, the state alleged that "[appellant] also
performed oral sex on J.K. on three separate occasions in [appellant's] son's bedroom, and
two times in the [appellant's] bedroom."
{¶ 7} Appellant accepted the allegations as correct. Thereafter, the trial court
1. Specifically, Count Four occurred between October 15, 2009-October 15, 2010, Count Five occurred between
October 15, 2010-October 15, 2011, and Count Six occurred between October 15, 2011-October 15, 2012.
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accepted appellant's guilty plea and imposed the jointly recommended sentence. The trial
court imposed five years of prison for each count of gross sexual imposition and ordered
those terms to be served concurrently with one another. The trial court also ordered five
years on each count of sexual battery. The counts for sexual battery were to be served
consecutive to one another, but concurrent to the counts for gross sexual imposition.
Therefore, the trial court imposed a total prison term of 25 years. Appellant now appeals,
raising two assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ACCEPTING THE
JOINTLY RECOMMENDED SENTENCE AND IN SENTENCING APPELLANT IN
ACCORDANCE WITH THAT JOINT RECOMMENDATION.
{¶ 10} In his first assignment of error, appellant argues the trial court erred by
accepting his jointly recommended sentence based on an allied offenses violation. We note
that an agreed-upon sentence may not be appealed if both the defendant and the state
agree to the sentence, the trial court imposes the agreed sentence, and the sentence is
authorized by law. State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, ¶ 16; R.C.
2953.08(D)(1). However, the Ohio Supreme Court in Underwood held that an appellant can
argue that an agreed sentence is invalid if the challenge raises an allied offense argument.
Having reviewed appellant's first assignment of error, we find it without merit.
{¶ 11} Appellant failed to raise the issue of whether the offenses were allied at his
sentencing hearing. Nevertheless, we will review his argument for plain error. See State v.
Wells, 12th Dist. Brown No. CA2015-10-026, 2016-Ohio-4589, ¶ 11. Under Crim.R. 52(B),
plain error exists only where there is an obvious deviation from a legal rule that affected the
outcome of the proceeding. State v. Barnes, 94 Ohio St. 3d 21, 27 (2002). The imposition of
multiple sentences for allied offenses of similar import constitutes plain error. Underwood at
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¶ 31-33.
{¶ 12} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio
App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). Specifically, R.C. 2941.25 provides:
(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.
{¶ 13} In determining whether offenses are allied, courts are instructed to consider
three separate factors: the conduct, the animus, and the import. State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. Convictions do not merge and a
defendant may be sentenced for multiple offenses if any of the following are true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses
were committed separately, or (3) the conduct shows that the offenses were committed with
separate animus. Id. at ¶ 25. Two or more offenses of dissimilar import exist "when the
defendant's conduct constitutes offenses involving separate victims or if the harm that results
from each offense is separate and identifiable." Id. at paragraph two of the syllabus.
{¶ 14} In the present case, the record establishes that appellant's convictions were
not allied offenses. The indictment, bill of particulars, and agreed upon facts reflect that
appellant was convicted of nine separate offenses involving three different victims. Count
One involved the victim N.S. Counts Four, Five, and Six involved victim T.S and each
offense was committed separately and at a different time. Likewise, Counts 20, 21, 22, 23,
and 24, involving victim J.K., were based on five separate occasions in which appellant
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admitted that he performed oral sex on J.K., with three different occasions occurring in his
son's bedroom and two in his own bedroom. Accordingly, we find that appellant has failed to
demonstrate that his convictions were allied offenses of similar import. As such, the trial
court did not commit plain error by failing to merge the sentences.
{¶ 15} Next, appellant argues the trial court erred by failing to notify him that he would
be required not to ingest or be injected with a drug of abuse and to submit to drug testing as
provided by R.C. 2929.19(B)(2)(f), and in failing to notify him that he would be subject to DNA
testing under R.C. 2901.07(B)(1) and (2). However, similar to our holding in State v. Moore,
12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-5191, ¶ 16-18, any error resulting from
the trial court's omissions was, at worst, harmless. Pursuant to Crim.R. 52(A), this court shall
disregard any "error, defect, irregularity, or variance which does not affect substantial
rights[.]"
{¶ 16} After reviewing the record, we find appellant's first assignment of error without
merit and is hereby overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A
FAIR HEARING.
{¶ 19} In his second assignment of error, appellant argues that his trial counsel was
ineffective for failing to raise the allied offense issue and notification issue raised in his first
assignment of error. However, as determined in the first assignment of error, appellant's
convictions were not allied offenses and the notification issue does not amount to reversible
error. Moreover, appellant has filed to establish prejudice from the failure to raise these
issues. Failure of one prong of the Strickland test is fatal to any claim of ineffective
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assistance of counsel.2 State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-
7187, ¶ 49. Accordingly, appellant's second assignment of error is overruled.
{¶ 20} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
2. To prevail on an ineffective assistance of counsel claim, an appellant must establish (1) that his trial counsel's
performance was deficient and (2) that such deficiency prejudiced the defense to the point of depriving appellant
of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052 (1984).
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