State v. Szidnik , 2011 Ohio 4093 ( 2011 )

[Cite as State v. Szidnik, 2011-Ohio-4093.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95644
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDWARD SZIDIK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534819
BEFORE: Kilbane, A.J., Cooney, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 18, 2011
ATTORNEYS FOR APPELLANT
Margaret Amer Robey
Gregory S. Robey
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Ronni Ducoff
Mark J. Mahoney
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Edward Szidik (Szidik), appeals his gross
sexual imposition convictions and sentence following his guilty plea. Finding
no merit to the appeal, we affirm.
{¶ 2} In March 2010, Szidik was charged with ten counts of gross
sexual imposition (GSI), with each count carrying a sexually violent predator
specification. Pursuant to a plea agreement, Szidik pled guilty to two
amended counts of GSI (the State deleted the sexually violent predator
specification on each count). The remaining eight counts were nolled. The
trial court sentenced him to four years in prison on each count, to be served
consecutively, for an aggregate of eight years in prison.
{¶ 3} Szidik now appeals, raising two assignments of error for review.
ASSIGNMENT OF ERROR ONE
“Because [Szidik] was indicted with ten carbon copy
counts that were never distinguished from one another,
due process and double jeopardy preclude his conviction
on more than one; the remaining counts must be vacated.”
{¶ 4} Szidik argues his constitutional rights were violated when he was
indicted with ten “carbon copy” counts of GSI. He relies on Valentine v.
Konteh (C.A.6, 2005), 395 F.3d 626; State v. Ogle, Cuyahoga App. No. 87695,
2007-Ohio-5066; and State v. Hemphill, Cuyahoga App. No. 85431,
2005-Ohio-3726, in support of his assertion that the carbon copy indictment
failed to provide him adequate notice of the charges against him and the right
to protection against double jeopardy.
{¶ 5} However, these cases are easily distinguishable from the matter
before us. In the instant case, Szidik pled guilty to the indictment, whereas
in Valentine, Ogle, and Hemphill, the defendants were convicted after jury
trials. A defendant who pleads guilty is generally limited on appeal. The
defendant may only attack the voluntary, knowing, and intelligent nature of
the plea, and may not raise independent claims relating to the deprivation of
constitutional rights that occurred prior to pleading guilty. See State v.
Clay, Cuyahoga App. Nos. 89339-89341, 2008-Ohio-314; State v. Sadowsky,
Cuyahoga App. Nos. 90696 and 91796, 2009-Ohio-341.
{¶ 6} “‘[A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea. He may only attack the voluntary and intelligent character
of the guilty plea by showing that the advice he received from counsel was not
within the standards set forth in McMann [v. Richardson (1970), 397 U.S.
759, 90 S.Ct. 1441, 25 L.Ed.2d 763].’” State v. Spates, 64 Ohio St.3d 269,
272, 1992-Ohio-130, 595 N.E.2d 351, quoting Brady v. United States (1970),
397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. Thus, Szidik’s reliance on these
cases is unpersuasive.
{¶ 7} Moreover, under Crim.R. 12(C)(2) “[d]efenses and objections
based on defects in the indictment” must be raised before trial. According to
the Ohio Supreme Court, the “failure to timely object to the allegedly
defective indictment constitutes a waiver of the issues involved.” State v.
Biros, 78 Ohio St.3d 426, 436, 1997-Ohio-204, 678 N.E.2d 891, citing State v.
Joseph, 73 Ohio St.3d 450, 1995-Ohio-288, 653 N.E.2d 285. Furthermore,
this court has held that “‘by voluntarily entering a guilty plea, a defendant
waives the right to contest non-jurisdictional defects that occurred before the
plea was entered. More specifically, by voluntarily entering a guilty plea
[the defendant] waived his right to a direct appeal of any alleged defects in
the indictment.’” State v. Moree, Cuyahoga App. No. 90894, 2009-Ohio-472,
¶21, quoting State v. Salter, Cuyahoga App. No. 82488, 2003-Ohio-5652.
(Internal citations omitted.)
{¶ 8} In the instant case, Szidik failed to object to the indictment at the
trial court and pled guilty under a plea agreement to two separate counts of
GSI. Based on these facts, we find that he waived any alleged defect in the
indictment.
{¶ 9} Accordingly, the first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
“The trial court erred in failing to merge the sentences for
the two identical counts, which were indistinguishable
and therefore allied offenses.”
{¶ 10} Szidik argues the two GSI counts were identical and thus allied
offenses. As a result, he contends the trial court should have merged them
for purposes of sentencing.
{¶ 11} Here, Szidik entered into a plea agreement where the State
nolled eight counts of GSI and removed the sexually violent predator
specifications from all counts on the condition that he plead guilty to two
separate counts of GSI. Szidik then proceeded to voluntarily enter a guilty
plea to each count.
{¶ 12} The Ohio Supreme Court recently held that the failure to merge
allied offenses of similar import constitutes plain error. State v. Underwood,
124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31, citing State v.
Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845. Under
Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.”
{¶ 13} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, the Ohio Supreme Court redefined the test for determining
whether two offenses are allied offenses of similar import subject to merger
under R.C. 2941.25.1 The Johnson court expressly overruled State v. Rance,
85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699, which required a
1R.C. 2941.25 governs allied offenses and 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.”
“comparison of the statutory elements in the abstract” to determine whether
the statutory elements of the crimes correspond to such a degree that the
commission of one crime will result in the commission of the other.
{¶ 14} The Johnson court held that rather than compare the elements of
the crimes in the abstract, courts must consider the defendant’s conduct. Id.at syllabus. The court found:
“In determining whether offenses are allied offenses of
similar import under R.C. 2941.25(A), the question is
whether it is possible to commit one offense and commit
the other with the same conduct, not whether it is possible
to commit one without committing the other. * * *
If multiple offenses can be committed by the same
conduct, then the court must determine whether the
offenses were committed by the same conduct, i.e., ‘a
single act, committed with a single state of mind.’ [State]
v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d
149, at ¶50, (Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses
are allied offenses of similar import and will be merged.
Conversely, if the court determines that the commission of
one offense will never result in the commission of the
other, or if the offenses are committed separately, or if the
defendant has separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.”
Id. at ¶48-50.
{¶ 15} Szidik argues the two counts of GSI are allied offenses because
the offenses have never been distinguished from each other. We disagree.
{¶ 16} Here, the four-year-old victim described that Szidik (victim’s
71-year-old step-grandfather) would play the “pee place game” with her,
which meant that she would have to touch Szidik’s penis. This “game” took
place when her grandmother was doing the laundry or cooking. Szidik told
the victim not to tell grandma because it was their secret. Furthermore, the
State advised the trial court that Szidik “committed two counts of [GSI] on
different dates.” The parties considered this case as a pattern of abuse that
took place over a period of time involving multiple incidents. As such, Szidik
pled guilty to two separate counts of GSI in exchange for the dismissal of
eight GSI counts and the deletion of the sexually violent predator
specifications.
{¶ 17} Based on these facts, we find the offenses distinguishable as
separate incidents. Thus, these crimes are not allied offenses of similar
import.
{¶ 18} Accordingly, the second assignment of error is overruled.
{¶ 19} Judgment is affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR