State v. Asefi ( 2014 )

[Cite as State v. Asefi, 2014-Ohio-2510.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26931
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARID B. ASEFI COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 09 2587(E)
DECISION AND JOURNAL ENTRY
Dated: June 11, 2014
BELFANCE, Presiding Judge.
{¶1} Marid Asefi appeals from the judgment of the Summit County Court of Common
Pleas. For the reasons set forth below, we affirm.
I.
{¶2} On June 26, 2011, Mr. Asefi, along with some accomplices, broke into David
Allen’s home and assaulted and robbed him. Mr. Asefi was indicted on charges of aggravated
burglary, aggravated robbery, felonious assault, grand theft, and theft from the elderly.
Following plea negotiations, the State dismissed the charges of felonious assault, grand theft, and
theft from elderly, and Mr. Asefi pleaded guilty to aggravated burglary and aggravated robbery.
The trial court sentenced Mr. Asefi to an aggregate term of 20 years in prison. Mr. Asefi
appealed, and this Court remanded for the trial court to consider State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, in the first instance. State v. Asefi, 9th Dist. Summit No. 26430, 2012-
Ohio-6101, ¶ 8.
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{¶3} On remand, the trial court held a hearing to consider the merger issue. Mr. Asefi
objected, arguing that the hearing needed to be an evidentiary hearing. The trial court overruled
the objection and proceeded to determine that Mr. Asefi’s offenses were not allied offenses of
similar import based on the information contained in the presentence investigation report. The
trial court reimposed Mr. Asefi’s 20-year prison term.
{¶4} Mr. Asefi has appealed, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN RULING THAT A JOHNSON HEARING
NEED NOT BE AN EVIDENTIARY HEARING IN ORDER FOR IT TO
MAKE A DETERMINATION AS TO WHETHER OR NOT THE OFFENSES
OF AGGRAVATED BURGLARY AND AGGRAVATED ROBBERY WERE
ALLIED OFFENSES OF SIMILAR IMPORT.
{¶5} In Mr. Asefi’s first assignment of error, he argues that the trial court was required
to hold an evidentiary hearing to determine whether his sentences were allied offenses of similar
import subject to merger. We disagree.
{¶6} Since the Supreme Court decided Johnson, appellate courts have held that,
“‘where the record suggests that multiple offenses to which a defendant has pled guilty or no
contest may be allied offenses of similar import, but the record is inconclusive in that regard, the
trial court has a duty to conduct inquiry concerning the circumstances of the offenses, and the
trial court’s failure to do so is plain error.’” State v. Bryant, 10th Dist. Franklin No. 12AP-703,
2013-Ohio-5105, ¶ 18, quoting State v. Cleveland, 2d Dist. Montgomery No. 24379, 2011-Ohio-
4868, ¶ 19; State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587,
98588, 98589, 98590, 2013-Ohio-3235, ¶ 63 (A trial court commits plain error in failing to
inquire and determine merger question where facial question of allied offenses presents itself.).
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Mr. Asefi argues that, in the context of this case, the allied offense inquiry must take the form of
an evidentiary hearing, while the State contends that a less formal hearing is required. However,
neither party has cited any case directly on point, and our own research indicates that what
constitutes the necessary inquiry appears to be a question of first impression post-Johnson.
{¶7} Nevertheless, we are not without some guidance. The Supreme Court recently
decided State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, providing some clarity on
the issue of allied offenses of similar import subsequent to Johnson. The Supreme Court noted
that “[m]erger is a sentencing question, not an additional burden of proof shouldered by the state
at trial.” Id. at ¶ 18. It further noted that, “in the vast majority of cases—that is, cases resolved
by entry of a guilty plea—there is no evidence, no opening statement, no closing argument, and
little upon which a court can rely to discern the state’s theory of the case. In those cases, the
sentencing hearing may be the only source of information relating to merger.” (Internal citations
omitted.) Id at ¶ 19.
{¶8} Sentencing courts have long been permitted to “‘exercise a wide discretion in the
sources and types of evidence used to assist [it] in determining the kind and extent of punishment
to be imposed within limits fixed by law.’” State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-
951, ¶ 14 (2d Dist.), quoting Williams v. New York, 337 U.S. 241, 246 (1949). Likewise, R.C.
2929.19 grants broad discretion to the trial court to consider any information relevant to the
imposition of a sentence. R.C. 2929.19(A) allows the state and the defendant to “present
information relevant to the imposition of sentence in the case[,]” and R.C. 2929.19(B) requires
the trial court to “consider the record, any information presented at the hearing by any person
pursuant to division (A) of this section, and, if one was prepared, the presentence investigation
report * * * and any victim impact statement * * *.” (Emphasis added.). In other words, R.C.
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2929.19 sets out a procedure less formal than an evidentiary hearing for interested parties to
submit arguments and information to the trial court. See Bowser at ¶ 14, quoting Nichols v.
United States, 511 U.S. 738, 747 (1994) (“[T]he sentencing process is ‘less exacting than the
process of establishing guilt.’”).
{¶9} Given that “[m]erger is a sentencing question,” it would follow that the
procedures set out in the sentencing hearing statutes would be controlling. See Washington at ¶
18. Thus, while the trial court must conduct an inquiry into the circumstances of the offense, the
procedures set forth in R.C. 2929.19 do not require an evidentiary hearing with sworn testimony
and cross-examination. Notwithstanding, where there is a question of merger, the factual
circumstances surrounding the defendant’s conduct must be developed so as to enable the trial
court to actually determine the merger question and to enable appropriate appellate review. See
Cleveland, 2011-Ohio-4868, at ¶ 17 (finding remand necessary to consider merger where the
circumstances concerning the question of merger were not well developed in the record at
sentencing notwithstanding existence of presentence investigation report); Bryant, 2013-Ohio-
5105, at ¶ 19 (where record contained limited recitation of facts by prosecutor, record on appeal
was not developed sufficiently to determine merger question). Thus, when considering the
question of merger, the trial court must conduct its inquiry with attention to adducing
information relevant to its consideration of the statutory elements of each offense in the context
of the defendant’s conduct. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 20
(“[I]n making an allied-offenses determination, a court should not employ an abstract analysis,
but instead should consider the statutory elements of each offense in the context of the
defendant’s conduct.”).
5
{¶10} Nevertheless, Mr. Asefi contends that an evidentiary hearing is required for
allied-offense inquiries under circumstances where there is a plea and the parties do not agree on
the facts of the case. We are not persuaded by his argument given that R.C. 2929.19 provides
wide latitude for a defendant to present any information relevant to the merger issue including
the defendant’s own statements as to the conduct surrounding the offenses that may be subject to
merger. See R.C. 2929.19. See also Bowser at ¶ 14.
{¶11} For the foregoing reasons, we conclude that the trial court properly determined
that an evidentiary hearing was not necessary and that it should proceed in accordance with the
requirements of R.C. 2929.19. Accordingly, Mr. Asefi’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO
CONSECUTIVE SENTENCES FOR AGGRAVATED ROBBERY AND
AGGRAVATED BURGLAR[]Y BECAUSE THE OFFENSES WERE
COMMITTED WITH THE SAME COURSE OF CONDUCT AND ANIMUS
AND [] THEREFORE ARE ALLIED OFFENSES OF SIMILAR IMPORT.
{¶12} Mr. Asefi argues in his second assignment of error that the trial court should have
merged his convictions for purposes of sentencing because aggravated burglary and aggravated
robbery are allied offenses of similar import and he committed them with the same conduct and
animus.
{¶13} We pause to briefly address the State’s argument that Mr. Asefi’s argument is
barred by this Court’s decision in State v. Linde, 9th Dist. Summit No. 26714, 2013-Ohio-3503.
In Linde, the defendant pleaded guilty to R.C. 2911.11(A)(1)/(3)1 and R.C. 2911.01(A)(1)/(3).
1
The majority noted that R.C. 2911.11(A)(3) does not exist and that it was probably a
clerical error intended to refer to R.C. 2911.11(A)(2). See Linde at ¶ 16, fn. 2.
6
Linde at ¶ 16. The majority concluded that Mr. Linde’s sentences did not merge because
“aggravated burglary offense was complete when he broke into [the victim’s] house with a knife
for the purpose of taking money from the house[]” and, therefore, could not merge with his
aggravated robbery offense which did not occur until the victim “emerged from his hiding place
and [the defendant] attacked him, thereby causing him serious physical harm.” Id. at ¶ 19. In
reaching that conclusion, the majority cited appellate decisions which have held that aggravated
burglary with a deadly weapon (R.C. 2911.11(A)(1)) is complete upon entering the structure.
Linde at ¶ 18. However, the majority also noted that “[t]he exception to the general rule has been
in cases where the offender was convicted strictly under the physical harm subsections of both
the aggravated burglary and aggravated robbery statutes, as neither crime could be completed
until the physical harm element was satisfied.” Id. It concluded the exception was inapplicable
because the defendant “was not convicted strictly under the physical harm subsections of
aggravated burglary and aggravated robbery.” (Emphasis added.) Id. Unlike the defendant in
Linde, Mr. Asefi was convicted strictly under the physical harm subsections of aggravated
burglary and aggravated robbery. Mr. Asefi only pleaded guilty to violating R.C. 2911.11(A)(1)
and R.C. 2911.01(A)(3), which are “the physical harm subsections of both the aggravated
burglary and aggravated robbery statutes * * *.” Linde at ¶ 18. Thus, the exception to the
general rule acknowledged in Linde applies in this case. Id. at ¶ 18. See also State v. Powell, 59
Ohio St.3d 62 (1991), paragraph one of the syllabus (“The crime of aggravated burglary
continues so long as the defendant remains in the structure being burglarized.”).
{¶14} Notwithstanding, we overrule Mr. Asefi’s assignment of error in light of the
record in this case. The presentence investigation report, which the trial court specifically relied
upon at sentencing, is not part of the record on appeal; thus, we must presume regularity in the
7
proceedings below. State v. Furman, 9th Dist. Summit No. 26825, 2014-Ohio-20, ¶ 7 (“In light
of the fact that the record does not contain the presentence investigation report, we do not have
the same information that the trial court had when it determined whether Ms. Furman’s offenses
were allied * * *[,]” and, therefore, “we must presume the validity of the trial court’s sentencing
with regard to its determination, pursuant to Johnson[.]”) (Internal quotations and citations
omitted.).
{¶15} Accordingly, Mr. Asefi’s second assignment of error is overruled.
III.
{¶16} Mr. Asefi’s assignments of error are overruled, and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
8
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶17} A conflict exists among the various district courts as to when plain error exists
with respect to merger issues at sentencing when the defendant has pleaded guilty to multiple
charges. For example, the First District has declined to find error where the defendant has not
actually demonstrated that the charges constituted allied offenses of similar import. E.g., State v.
Wesseling, 1st Dist. Hamilton No. C-110193, 2011-Ohio-5882, ¶ 16. On the other hand, the
Eighth District has held that a sentencing court commits plain error merely by failing to inquire
when the determination whether the offenses are allied is not clear from the record. E.g., State v.
Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, 98590,
2013-Ohio-3235, ¶ 46. For the first time in this Court, the majority is taking the position that the
trial court commits plain error by failing to inquire after a guilty plea to determine the issue of
merger where a facial question of allied offenses exists. I do not agree that plain error is
implicated by a lack of inquiry by the trial court, as plain error may only be demonstrated by
actual sentencing on allied offenses.
{¶18} Any issue pertaining to allied offenses and plain error must be examined in light
of State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1. In Underwood, the Ohio Supreme
9
Court accepted a certified question as to whether a guilty plea with a jointly recommended
sentence could be appealed where the defendant is sentenced on allied offenses. In a 4-3
decision, the Supreme Court held that the matter was appealable and reviewable under a plain
error standard. Id. at paragraph one of the syllabus. The high court then determined that
Underwood had demonstrated plain error because the State had conceded that the offenses were
allied and Underwood could only be sentenced on two of the four offenses. In making its
determination, the Underwood court stated: “When the plea agreement is silent on the issue of
allied offenses of similar import, however, the trial court is obligated under R.C. 2941.25 to
determine whether the offenses are allied, and if they are, to convict the defendant of only one
offense. Nevertheless, if a trial court fails to merge allied offenses of similar import, the
defendant merely has the right to appeal the sentence.” Id. at ¶ 29. In other words, the trial court
is not relieved of its obligation to avoid sentencing on allied offenses of similar import.
However, it need only make its determination on the basis of the information before it.
{¶19} Pursuant to 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.” This Court reviews
an issue for plain error in cases where the appellant has otherwise forfeited the issue on appeal
by failing to raise it below at a time when the trial court had the opportunity to correct the
alleged error. State v. Dent, 9th Dist. Summit No. 20907, 2002-Ohio-4522, ¶ 6. In these cases,
where the defendant failed to object during sentencing, he has not waived the issue of the
imposition of allied offenses. Rather, he has merely forfeited the ability to challenge his
sentence on the basis of anything other than plain error.
{¶20} A reviewing court will correct plain error where three conditions have been met:
First, there must be an error, i.e., a deviation from the legal rule. * * * Second,
the error must be plain. To be plain within the meaning of Crim.R. 52(B), an
10
error must be an obvious defect in the trial proceedings. * * * Third, the error
must have affected substantial rights. We have interpreted this aspect of the rule
to mean that the trial court’s error must have affected the outcome of the trial.
(Internal citations and quotations omitted) State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,
¶ 16. The third condition requires a showing of prejudice and this Court may not reverse the
judgment of the trial court on the basis of plain error, unless appellant has established prejudice,
i.e., that the outcome of the trial clearly would have been different but for the alleged error. State
v. Kobelka, 9th Dist. Lorain No. 01CA007808, 2001 WL 1379440 (Nov. 7, 2001), citing State v.
Waddell, 75 Ohio St.3d 163, 166 (1996). “The burden of demonstrating plain error is on the
party asserting it.” Payne at ¶ 17.
What Constitutes Plain Error
{¶21} The question then becomes: What constitutes plain error when a defendant is
sentenced without objection to multiple offenses? The majority concludes that a trial judge’s
mere failure to inquire as to the possibility of allied offenses gives rise to plain error. This
conclusion is inconsistent with the prior plain error analysis and specifically rejected in
Underwood, as discussed above. After holding that a defendant has the right to appeal a
sentence he believes includes multiple punishments for allied offenses of similar import, the
Underwood court ultimately decided that the trial court plainly erred in that case, not because it
failed to inquire, but rather because the defendant had met his burden of demonstrating plain
error because the State conceded before the trial court that the offenses were allied. Underwood
at ¶ 30.
{¶22} A sentence that is not obviously wrong cannot constitute plain error. In the
context of multiple sentences, I would hold that plain error cannot be found unless the defendant
can demonstrate that he was actually sentenced on allied offenses. See Underwood at ¶ 31; see
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also Wesseling, supra, at ¶ 16. Where the defendant has pleaded guilty, it is not the absence of
facts in the record or a lack of inquiry which would allow the trial court to make a determination
as to whether offenses are allied that forms the basis of any plain error. Instead, it is the actual
imposition of multiple sentences on allied offenses that forms the basis of error. This comports
with the law enunciated in Underwood at ¶ 26, which recognizes that the trial court has no
authority to impose separate sentences for allied offenses. Underwood does not require the trial
court to create, and then resolve, an issue regarding allied offenses where one is not otherwise
apparent due to a lack of facts on the record. As noted above, in Underwood, the State stipulated
that the underlying convictions were allied so error obviously occurred. Where there are no facts
on the record to allow the trial court to consider whether the offenses are allied, a plain error
analysis by this Court cannot constitute a viable mechanism to determine whether the trial court
erred by imposing multiple sentences. In other words, the absence of facts in the record
precludes a showing that the results of the proceedings would have been different because there
is nothing to demonstrate that the defendant was actually sentenced to allied offenses. Instead,
the defendant’s recourse is to file a petition for post-conviction relief, in which he may create a
factual record to allow the trial court to engage in an allied offenses analysis.
Steps to Protect the Defendant’s Right to a Proper Sentence
{¶23} The concern of the sentencing and reviewing courts is that the defendant receives
a proper sentence. The parties and trial court can take steps to be certain that the defendant’s
right to be free from multiple punishments for allied offenses is not infringed. I would suggest
the following measures to ensure this.
{¶24} In the case of a conviction pursuant to a guilty plea or no contest plea, where the
record is inconclusive as to whether certain offenses are allied, the State and/or trial court can
12
prevent the defendant from receiving an erroneous sentence by taking certain precautions at the
time of the plea. First, the prosecutor could address the issue of allied offenses as part of the plea
bargain. Underwood at ¶ 29. The simplest way would be for the defendant to agree that the
offenses are not allied offenses of similar import, and for the trial court to secure the defendant’s
waiver of the right to later challenge his sentences. Another alternative would be for the State to
recite the factual basis for each plea, thereby giving the sentencing court the information required
to make a determination regarding allied offenses. Rogers, 2013-Ohio-3235, at ¶ 46. This
approach has been recognized in other courts, as well. The Eleventh District Court of Appeals
cited a lengthy recitation of facts by the prosecutor prior to the defendant’s being sentenced on
six counts of gross sexual imposition. State v. Devai, 11th Dist. Ashtabula No. 2012-A-0054,
2013-Ohio-5264. The Devai court concluded that there was no plain error by the trial court in
failing to analyze the issue of merger where the record contained such facts as would
demonstrate that the offenses were committed separately. Id. at ¶43. Although the prosecutor
recited the facts at the sentencing hearing, the Devai court recognized that the requisite record of
facts could be made at either the plea or sentencing hearing. Id. at ¶ 26, citing Rogers at ¶ 44.
{¶25} Second, the parties could enter into a stipulation or agreement on the record
regarding the specific conduct underlying the charges for the express purpose of allowing the
sentencing court to determine which offenses, if any, are allied. See Rogers at ¶ 40. A stipulation
as to the factual basis for the offenses would construct the necessary foundation to allow the
sentencing court to conduct the requisite analysis.
Conclusion
{¶26} Notwithstanding my concerns, in this case, I agree that no hearing was required
for the trial court to determine whether the offenses were allied offenses of similar import. Asefi
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has not demonstrated plain error, i.e., that he was sentenced to multiple prison terms for allied
offenses. In fact, this Court recited the State’s description of the events underlying the offenses
at the original plea hearing, to which Asefi did not object. State v. Asefi, 9th Dist. Summit No.
26430, 2012-Ohio-6101, ¶ 2. Accordingly, the undisputed facts relevant to a determination of
the issue of allied offenses were already on the record for the trial court’s consideration.
Moreover, those facts on the record demonstrated that the offenses were not allied. Therefore, in
that regard, the absence of a presentence investigation report is not dispositive of the issue on
appeal. Nevertheless, I agree with the majority’s conclusion that, in this case, the trial court did
not err by failing to hold an evidentiary hearing on the issue of whether the offenses were allied
offenses of similar import.
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.