State v. Flenniken , 2024 Ohio 5041 ( 2024 )

[Cite as State v. Flenniken, 2024-Ohio-5041.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
HARRISON COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DOMINICK FLENNIKEN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 HA 0003
Criminal Appeal from the
Court of Common Pleas of Harrison County, Ohio
Case No. CRI 2023-0083
BEFORE:
Katelyn Dickey, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Sentence Vacated and Remanded.
Atty. Lauren E. Knight, Harrison County Prosecutor, for Plaintiff-Appellee and
Atty. Brian A. Smith, for Defendant-Appellant.
Dated: October 18, 2024
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DICKEY, J.
{¶1} Appellant, Dominick Flenniken, appeals his conviction and sentence
following his entry of a guilty plea in the Harrison County Court of Common Pleas to two
counts of endangering children in violation of R.C. 2919.22(B)(2) and R.C. 2919.22(B)(3),
respectively, felonies of the third degree. Appellant advances five assignments of error.
First, Appellant contends the trial court abused its discretion when it overruled his
presentence motion to withdraw his plea. Second, he argues the trial court abused its
discretion when it overruled his motion for new counsel. Appellant’s third, fourth, and fifth
assignments of error are predicated upon the trial court’s alleged error at sentencing,
where it failed to: (1) state on the record or memorialize in the judgment of conviction that
Appellant’s convictions were merged for the purpose of sentencing; and (2) identify the
conviction for which he was sentenced. For the following reasons, Appellant’s guilty
verdicts are affirmed, but his sentence is vacated and this matter is remanded to the trial
court for a de novo sentencing hearing.
FACTS AND PROCEDURAL HISTORY
{¶2} On October 6, 2023, Appellant was indicted for two counts of endangering
children, to which he ultimately pleaded guilty. Count one alleges on or about September
27, 2023, Appellant tortured or cruelly abused A.F. (DOB 12/05/2019), Appellant’s then
three-year old son. Count two alleges on or about September 27, 2023, Appellant
administered corporal punishment or other physical disciplinary measure, or physically
restrained A.F., in a cruel manner or for a prolonged period, which punishment, discipline,
or restraint was excessive under the circumstances, and created a substantial risk of
serious physical harm to A.F.
{¶3} On November 13, 2023, Appellant sent pro se handwritten correspondence
to the trial court. The correspondence reads in its entirety:
This is Dominick Flenniken case number CRI 2023-0083. I wish to
fire [the public defender] because I feel like he is not representing me
properly in this trial. I went 35 days before I’ve meet [sic] him in the Juvenile
Court November 2nd of 2023. When I went to talk to him about everything
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he kinda [sic] blew me off. The previous case number is 2023 3023. I’ve
tried calling both of his numbers [telephone numbers redacted]. This started
on September 29, 2023 when I received the paperwork.
{¶4} In a judgment entry filed on November 22, 2023, the trial court
acknowledged the receipt of the pro se correspondence, which the trial court
characterized as a motion for new counsel. According to the judgment entry, the trial
court addressed the motion at a pretrial conference conducted on November 20, 2023
and the motion was overruled. There is no transcript of the November 20, 2023 pretrial
in the record.
{¶5} On December 19, 2023, Appellant entered guilty pleas to both counts of
child endangerment. The written plea agreement did not contain any provision regarding
allied offenses of similar import and did not contain an agreed sentence. At the hearing,
the trial court referred to a previous hearing during which a plea offer was proposed by
the state, and Appellant was given additional time to consider the offer. However, there
is no transcript of the previous hearing in the record.
{¶6} During the plea colloquy, the trial court provided the following information
regarding the maximum penalty that could be imposed on each count:
THE COURT: You understand that the possible penalties for Count
One, endangering children, is [sic] 9, 12, 18, 24, 30 or
36 months at the Ohio Department of Rehabilitation
and Corrections and a fine of up to $10,000.00.
[APPELLANT]: Yes, Your Honor.
THE COURT: And there’s two counts, correct?
[PROSECUTOR]: Correct, Your Honor, but they would merge for –
THE COURT: Right. And the second count, endangering children, is
also a felony of the third degree. It would have the
same penalties. However, even if you are found guilty
of both of those charges I can only sentence on one. I
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have to pick one or the other to sentence you on
because they are allied offenses of similar import. You
understand that?
[APPELLANT]: Yes, Your Honor.
(12/19/23 Change of Plea Hrg., p. 5-6.)
{¶7} The trial court reiterated several times throughout the hearing that Appellant
was entering guilty pleas to two crimes, but could be sentenced for only one. For
instance, the trial court stated, “[a]nd once again, even though I’m going to accept your
plea and find you guilty, I can only go forward to sentence you on one of these charges
because they are charged in the alternative to each other.” (Id. at ¶ 12.) The judgment
entry memorializing the plea contains no reference to an agreed sentence or merger.
{¶8} On January 10, 2024, prior to sentencing, Appellant sent pro se handwritten
correspondence to the trial court. The correspondence reads, in its entirety:
I (Dominick Flenniken) would like to retract my plea agreement to
case CRI 2023-0083. I also would like to fire [the public defender] as well
because I feel like he will and was not representing me properly in this trial
and I feel like he is biased against me. He told me multiple times that I
should’ve never moved into Harrison County. I also wasn’t in the right mind
when I took my plea agreement because of everything [the public defender]
told me that Friday he came down to visit me.
{¶9} At a hearing conducted on January 23, 2024, the trial court recognized the
pro se correspondence and characterized it as both a motion to withdraw plea and for
new counsel. At the hearing, the public defender orally moved to withdraw as counsel
and the trial court sustained the motion. The judgment entry memorializing the January
23, 2024 hearing reads, in relevant part, “[t]he Court shall appoint new counsel to
represent the Defendant on Motion to Vacate Plea only.” There is no transcript of the
January 23, 2024 hearing in the record.
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{¶10} On March 5, 2024, the trial court conducted a hearing on Appellant’s motion
to withdraw plea. Appellant was represented by new counsel. The trial court cautioned
Appellant that any testimony he provided regarding the motion could be used against him
at trial. The trial court further cautioned Appellant that he was waiving his attorney/client
privilege with respect to the public defender, who could be called by the state to rebut
Appellant’s testimony at the hearing.
{¶11} Appellant acknowledged the waiver of his Fifth Amendment right as well as
his attorney/client privilege as it related to the public defender, prior to providing the
following testimony:
[The public defender] told me the Judge was biased against people like me
which I’m assuming was child endangerment or anything that’s child related
cases. . . . [T]he way I took it was that if I would’ve taken it to trial the Judge
was going to max me out because [the public defender] said [the trial court]
was biased.
...
[The public defender] told me multiple times I should’ve never moved into
Harrison County, multiple occasions. . . . I told him that I corrected my kid it
just seemed like it didn’t matter to him.
(3/5/24 Hrg. On Mot. To Withdraw Plea Tr., p. 7-8.) Appellant interpreted the foregoing
statements to mean the Harrison County criminal justice system is corrupt.
{¶12} Defense counsel asked Appellant, “what did you tell [the public defender]
that you did?” Appellant responded, “I opened [sic] handedly – I say pop but I popped
my [three-year old] kid in the mouth open handedly.” (Id.) Appellant used a hand gesture
to animate the term “popped.” (Id. at 17.)
{¶13} Appellant explained he believed he was charged with punching his son in
the face. Appellant testified the public defender “really didn’t talk about [his] case. [The
public defender] just assumed [Appellant] was guilty because [he] was wearing orange.”
(Id. at 9.)
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{¶14} Appellant further testified the public defender told Appellant to “shut the fuck
up” at their first meeting, which was the reason he sent the original pro se handwritten
correspondence. Appellant testified “[he did not] feel like [the public defender] was
representing [him] properly in this case. Like [the public defender] didn’t ask [Appellant] if
[Appellant] had any witnesses to talk on [Appellant’s] behalf or anything like that to try to
prove [Appellant’s] innocence . . . .” (Id. at 11-12.)
{¶15} On cross-examination, Appellant conceded the public defender never
explicitly stated the trial court would impose the maximum sentence if Appellant went to
trial, but instead, there was a “good chance” the maximum penalty would be imposed. (Id.
at 17.) Appellant further testified the public defender “made it seem like that was the only
thing to do, to plead guilty . . . .” (Id. at 18.) Appellant explained that “[he had] never been
in trouble like this before so [he did not] quite know any of the rules and regulations that
everything goes with like this.” (Id.)
{¶16} Next, Appellant’s stepfather testified on his son’s behalf. A.F. was placed
in the custody of Appellant’s mother and stepfather after Appellant was arrested.
Appellant’s stepfather testified he had photographs of A.F. taken by a hospital technician
when he was at the emergency room after the alleged assault, and the photographs
demonstrate the child had no discernable injuries, but for preexisting marks from hand,
foot, and mouth disease.
{¶17} Appellant’s stepfather further testified he told the public defender about the
photographs at a pretrial conference, but the public defender refused to look at the
photographs. According to Appellant’s stepfather, the public defender told him that
Appellant had admitted to law enforcement that Appellant “might’ve got [sic] a little rough
with [A.F.],” so he did not need the photographs. (Id. at 22-23.)
{¶18} Defense counsel offered the photographs into evidence at the hearing on
the motion to withdraw plea but the trial court refused to admit them because they were
not “offered for the truth of the matter asserted.” (Id. at 22.) The trial court reasoned, “I
think it’s irrelevant what they are or what they show because that – if in fact [Appellant is]
successful in his motion then that would still be something that the court would have to
look at and rule on at trial.” (Id.) Appellant’s stepfather testified his impression of the
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photographs was “they would tend to indicate that if [Appellant] did strike [the] child it
wasn’t that hard.” (Id.)
{¶19} The public defender testified on behalf of the state. Prior to offering
testimony, the public defender was informed Appellant had waived his attorney/client
privilege. The state asked the public defender if he told Appellant that the trial court was
biased against him. The public defender responded, “is that a direct quote or is that
paraphrasing[,] or is that the implication?” The state replied the question was intended to
represent an actual quote from the public defender. The public defender testified, “I did
not say those words to [Appellant].” (Id. at 26-27.) The public defender likewise denied
telling Appellant the trial court was biased against “people like” Appellant or that the trial
court was biased in general.
{¶20} The state asked the public defender if he told Appellant that the trial court
would impose the maximum sentence if Appellant went to trial. The public defender again
asked, “Are these direct quotes . . . ?” The state responded, “[s]ome of them are
implications from something you said.” The public defender replied, “I would not have
said those words. I would’ve explained the sentences available to him.” (Id. at 27.)
{¶21} However, the public defender conceded he told Appellant that he should not
have moved to Harrison County. The public defender explained:
Based on the way this case played out, based upon the series of
events, based upon how law enforcement responded so quickly, based
upon what was provided in discovery in this case, the implication was that
. . . if this happened somewhere else it might not have been investigated
the way it was investigated here.
(Id. at 28.)
{¶22} After an off-the-record conversation with counsel, the trial court informed
the public defender, “these questions that are being asked of you will only be on things
that you directly said to [Appellant].” (Id.) The public defender denied explicitly informing
Appellant he could not get a fair trial, the trial court had a personal bias against him, he
had to enter a plea, and that the public defender would not represent Appellant if he
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proceeded to trial. However, the public defender could not recall whether he told
Appellant the public defender was Appellant’s “best option Attorney-wise.” (Id. at 29.)
{¶23} Finally, the public defender provided the following explanation for his refusal
to view the photographs:
[Appellant] was in County Court. He was charged with an F2, probably
improperly but he was. By the time it got to grand jury came back as an F3.
When we appeared for arraignment his father spoke to me in the hallway.
He wanted to hand me some things. I explained to him that relax, it’s not
the F2. It came back as a F3. I’d not yet been appointed to [Appellant] so
I was not formally his counsel. I told him to hold on to those items and it
was my understanding --
Here’s (inaudible) -- if you’re an experienced attorney you don’t let
people hand you things in the hallway, especially if you’re not appointed yet.
And secondly, if someone just hands me something in the hallway then I’m
going to be subject to reciprocal discovery. So I’m aware of the situation
but did I tell [Appellant’s stepfather] to hold onto those? Yeah. Did I tell him
also that the indictment was an F3 and not an F2, harm rather than serious
physical harm, yes.
(Id. at 30.)
{¶24} The public defender conceded on cross-examination that he never asked
to see the photographs after he was appointed. He testified he received photographs of
A.F. in the emergency room from the state during discovery.
{¶25} On March 12, 2024, the trial court denied the motion to withdraw guilty plea.
At the sentencing hearing on March 28, 2024, a victim coordinator read the victim impact
statement of A.F.’s mother. She described Appellant as emotionally cruel and physically
violent toward A.F.
{¶26} Defense counsel argued in favor of the imposition of less than the “agreed
sentence” of thirty months with judicial release after twelve months. As previously stated,
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there is no evidence of an agreed sentence in the plea hearing transcript or in the written
plea agreement.
{¶27} During his allocution, Appellant, age 22, explained that A.F.’s mother “gave
[Appellant] residential custody” when A.F. was fourteen days old. The trial court convicted
Appellant of both crimes of endangering children and imposed a thirty-month prison
sentence. The state indicated it would not object to a motion for judicial release after a
period of twelve months of incarceration, and the state would recommend that Appellant
complete the program at Eastern Ohio Correction Center as a part of his community
control.
{¶28} The state did not choose which allied offense of similar import would remain
after merger and the trial court did not merge the convictions at the sentencing hearing.
Further, the judgment of conviction contains no merger language. The judgment of
conviction reads, in relevant part:
For the offense of TWO COUNTS: ENDANGERING CHILDREN, contrary
to and in violation of Section 2919.22(B)(2) and (E)(3), a Felony of the Third
Degree, and ENDANGERING CHILDREN, contrary to and in violation of
Section 2919.22(B)(3) and (E)(3), a Felony of the Third Degree, Defendant
shall serve a term of 30 months incarceration under the supervision of the
Ohio Department of Rehabilitation and Corrections.
(3/28/24 J.E., p. 4.)
{¶29} This timely appeal followed.
ANALYSIS
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT'S MOTION TO VACATE GUILTY PLEA.
{¶30} “A presentence motion to withdraw a guilty plea should be freely and
liberally granted.” State v. Jones, 2020-Ohio-3578, ¶ 11 (7th Dist.), citing State v. Xie, 62
Case No. 24 HA 0003
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Ohio St.3d 521, 527 (1992). “A motion made pursuant to Crim.R. 32.1 is addressed to the
sound discretion of the trial court, and the good faith, credibility, and weight of the
movant’s assertions in support of the motion are matters to be resolved by that court.”
Jones, supra, at ¶ 11, citing State v. Smith, 49 Ohio St.2d 261, 264 (1997), paragraph
two of the syllabus. “A defendant does not have an absolute right to withdraw a guilty
plea prior to sentencing. A trial court must conduct a hearing to determine whether there
is a reasonable and legitimate basis for the withdrawal of the plea.” Xie at paragraph one
of the syllabus.
{¶31} “An abuse of discretion is more than an error of law or judgment; it implies
that the trial court's judgment was unreasonable, arbitrary, or unconscionable.” State v.
North, 2020-Ohio-6846, ¶ 12 (7th Dist.), citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983). While it is insufficient to show we would have reached a different result, an
abuse of discretion means an error in judgment resulting in a decision that is
“unreasonable based upon the record.” State v. Chapman, 2020-Ohio-5589, ¶ 5 (7th
Dist.).
{¶32} We have adopted a non-exclusive list of factors first announced in State v.
Fish, 104 Ohio App.3d 236 (1st Dist.1995), to be weighed in reviewing a decision on a
presentence plea withdrawal motion: (1) the representation provided by defense counsel;
(2) the defendant’s understanding of the nature of the charges and the potential sentence;
(3) the extent of the plea hearing; (4) the extent of the plea withdrawal hearing; (5) whether
the trial court gave full and fair consideration to the motion; (6) the reasons for the motion;
(7) whether the accused was perhaps not guilty or had a complete defense to the charge;
(8) whether the timing of the motion was reasonable; and (9) whether the state will be
prejudiced by the withdrawal. State v. Grabe, 2020-Ohio-4435, ¶ 15 (7th Dist.).
{¶33} In the judgment entry overruling the motion to withdraw plea, the trial court
opined Appellant was adequately represented at all stages of the trial. The trial court
further opined both the plea hearing and the hearing on the motion to withdraw plea were
thorough and complete, and the motion was filed within a reasonable time after the plea
hearing. Next, the trial court observed the public defender’s failure to view the
photographs was not evidence of poor representation, as “[n]othing indicates that
information would not be considered if a plea deal was not reached.” (3/12/24 J.E., p. 2.)
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The trial court further acknowledged Appellant’s innocence was not an issue as he
conceded to striking A.F. at the hearing. Finally, the trial court broadly reasoned “prejudice
is apparent in that by granting a motion to vacate a guilty plea the [s]tate would be in a
position where plea agreements are rendered useless; as any Defendant with buyer’s
remorse simply need file a motion to vacate plea to engage in further negotiations or trial.”
(Id.)
{¶34} Our review of the first factor, the representation provided by defense
counsel, is foreclosed in large measure by the absence of a transcript of the hearing on
Appellant’s original motion for new counsel in the record. Moreover, credibility
determinations are the province of the trial court. The trial court in this case appears to
have credited the testimony of the public defender regarding his pre-plea conversations
with Appellant.
{¶35} The second factor, Appellant’s understanding of the nature of the charges
and the potential sentence, is difficult to analyze given the trial court’s failure to merge the
guilty pleas and convict Appellant of one crime. If it was the result of an oversight by the
trial court and the state, then Appellant cannot argue he did not understand the charges
and potential sentence. If the failure to merge the guilty pleas was intentional, then
Appellant could argue he was misled regarding the number of convictions that would
result from his plea. However, any argument predicated upon Appellant’s sentence would
have to be challenged in a post-sentence motion to withdraw the plea.
{¶36} The extent of the hearings held by the trial court support the trial court’s
decision to overrule the motion to withdraw plea. Moreover, the trial court correctly
concluded Appellant did not assert that he did not touch A.F. or had a complete defense
to the charges, given his admission at the hearing that he “popped” A.F.
{¶37} Nonetheless, we agree with Appellant that the trial court incorrectly
analyzed the prejudice factor in this case. There was no argument advanced by the state
that it suffered any prejudice as a result of roughly one-month delay in proceedings that
would result from the withdrawal of the plea. At oral argument, the state conceded that it
was not prejudiced. According to the trial court, granting any motion to withdraw plea
would prejudice the state by encouraging every defendant to negotiate a plea in bad faith
knowing he could withdraw it. To the contrary, the trial court’s analysis of the prejudice
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factor should have focused exclusively on the state’s case against Appellant. While the
trial court misapplied the prejudice factor, the remaining factors support the trial court’s
decision overruling the presentence motion to withdraw plea.
{¶38} Having reviewed the factors, we find the trial court did not abuse its
discretion when it overruled Appellant’s presentence motion to withdraw plea. We further
find Appellant’s first assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT'S NOVEMBER 13, 2023 MOTION FOR NEW COUNSEL, IN
VIOLATION OF APPELLANT'S RIGHT TO COUNSEL UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
{¶39} “An indigent defendant has the right to professionally competent, effective
representation, not the right to have a particular attorney represent him.” State v. Brown,
2014-Ohio-4420, ¶ 5 (7th Dist.). Accordingly, an indigent defendant must demonstrate
“good cause to warrant substitution of counsel, which contemplates a breakdown in the
attorney-client relationship of such severity as to jeopardize the defendant's right to
effective assistance of counsel.” Id. citing State v. Coleman, 37 Ohio St.3d 286 (1988),
paragraph four of the syllabus. Examples of good cause are “a conflict of interest, a
complete breakdown in communication, or an irreconcilable conflict which leads to an
apparently unjust result.” Id. at ¶ 5. “[O]nly in the most extreme of circumstances should
appointed counsel be substituted.” Id. “Moreover, the defendant bears the burden of
demonstrating grounds that substitute counsel is warranted.” Id. We review a trial court’s
decision to deny a substitution of counsel and require a trial to proceed with the assigned
counsel for abuse of discretion. State v. Cowans, 87 Ohio St.3d 68, 73 (1999).
{¶40} "Factors to consider in deciding whether a trial court erred in denying a
defendant’s motion to substitute counsel include ‘the timeliness of the motion; the
adequacy of the court’s inquiry into the defendant’s complaint; and whether the conflict
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between the attorney and client was so great that it resulted in a total lack of
communication preventing an adequate defense.’ ” Brown, supra, at ¶ 7, citing State v.
Jones, 91 Ohio St.3d 335, 342 (2001).
{¶41} Appellant specifically challenges the trial court’s denial of his pre-plea
motion for new counsel. The motion was addressed at a pretrial conference on November
20, 2023 and overruled in a judgment entry issued on November 22, 2023. The transcript
of the November 20, 2023 hearing is not in the record. In the absence of a complete
record, we must presume the regularity of the trial court’s proceedings. State v. Moore,
2004-Ohio-3203, ¶ 31 (7th Dist.) Thus, without more in the record, we find Appellant has
not demonstrated grounds that substitute counsel was warranted. Accordingly, we further
find Appellant’s second assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 3
APPELLANT’S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY,
OR INTELLIGENTLY MADE, BECAUSE THE TRIAL COURT FAILED TO
ADVISE APPELLANT OF THE “MAXIMUM PENALTY INVOLVED”
UNDER CRIM.R. 11(C)(2)(a), BY TELLING APPELLANT, DURING THE
PLEA COLLOQUY, THAT COUNTS ONE AND TWO WOULD MERGE
FOR PURPOSES OF SENTENCING AS ALLIED OFFENSES OF
SIMILAR IMPORT, UNDER R.C. 2941.25, AND THEN PROCEEDING TO
SENTENCE APPELLANT ON BOTH COUNTS ONE AND TWO.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW FOR
SENTENCING APPELLANT ON “TWO COUNTS” OF ENDANGERING
CHILDREN, WITHOUT PROPERLY MERGING THE TWO COUNTS AS
ALLIED OFFENSES OF SIMILAR IMPORT PURSUANT TO R.C. 2941.25.
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ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT’S SENTENCE OF APPELLANT WAS CONTRARY
TO LAW FOR IMPOSING A PRISON SENTENCE ON “TWO COUNTS”
OF ENDANGERING CHILDREN, WITHOUT SPECIFYING “THE FACT
OF CONVICTION AND THE SENTENCE” FOR EACH COUNT, AS
REQUIRED UNDER CRIM.R. 32(C).
{¶42} Pursuant to R.C. 2941.25:
(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.
According to the Ohio Supreme Court, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts are to evaluate three
separate factors: (1) the conduct; (2) the animus; and (3) the import. State v. Ruff, 2015-
Ohio-995, at paragraph one of the syllabus.
{¶43} For purposes of merger, the state chooses which of the allied offenses to
pursue at sentencing. State v. T.D.J., 2018-Ohio-2766, ¶ 62 (7th Dist.), citing State v.
Brown, 2008-Ohio-4569, ¶ 16, 43. Once the state makes its election, the trial court must
accept the state’s choice and merge the crimes into a single conviction for sentencing
purposes. T.D.J. at ¶ 62, citing Brown at ¶ 42.
{¶44} When a defendant fails to raise the issue of allied offenses of similar import
in the trial court, the accused waives all but plain error. State v. Rogers, 2015-Ohio-2459,
¶ 3. Plain error is not reversible error unless it is shown to have affected the outcome of
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the proceeding and a manifest miscarriage of justice has occurred which warrants
reversal. Id. The defendant must show a reasonable probability that the convictions are,
in fact, allied offenses of similar import, committed with the same conduct and without
separate animus. Id.{¶45} Unable to determine from the record whether the trial court’s failure to
merge the two child endangering convictions at the sentencing hearing was an oversight
or a conscious decision, Appellant advances three assignments of error to address both
possibilities: First, Appellant’s plea was not knowing, intelligent, and voluntary based on
the trial court’s representation at the plea hearing that the endangering children guilty
verdicts would merge at sentencing, thereby subjecting him to a greater potential
maximum sentence.
{¶46} Second, assuming the trial court’s failure to merge the endangering children
guilty verdicts was intentional, the endangering children guilty verdicts were allied offense
of similar import that should have been merged at sentencing. Because the merits of the
issue were not addressed due to the trial court’s representations at the plea hearing, there
is insufficient evidence in the record to conclude the endangering children guilty verdicts
were allied offenses of similar import. However, the observations of the state and the trial
court at the plea hearing and the state’s representations at the oral argument suggest the
guilty verdicts should have merged.
{¶47} Third, assuming the trial court’s failure to merge the endangering children
guilty verdicts at the sentencing hearing was intentional, and did not constitute error, the
trial court failed to mete out the independent sentences for the two separate crimes with
specificity. Appellant argues that a specific sentence for each crime (possibly two thirty-
month concurrent sentences, or two fifteen-month consecutive sentences) cannot be
determined from the record.
{¶48} With respect to the plea, the state argues “[b]oth the state and [defense
counsel] acknowledged [at the sentencing hearing that] the agreed sentence was thirty
months at the Ohio Department of Rehabilitation and Correction, with the state agreeing
to not object to judicial release after a term of twelve months had been served.”
(Appellee’s Brf., p. 7.) The state contends Appellant cannot argue his plea was not
voluntary, intelligent and knowing because he was fully aware of the sentence that was
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imposed. However, the agreed sentence was not made a part of the record at the plea
hearing nor memorialized in the plea agreement, and Appellant was informed that he
would be convicted of only one crime during the plea colloquy, rather than two. The state
also relies on the agreed sentence to assert that Appellant’s sentence is not contrary to
law. However, the state concedes, “[i]f this Court finds that the trial court ordering one
sentence without specifically enumerating the merger of the two counts, the remedy
would be remand to the trial court for resentencing.” (Id., p. 9.)
{¶49} In Ohio, a “conviction” consists of a guilty verdict and the imposition of a
sentence or penalty. State v. Whitfield, 2010-Ohio-2, ¶ 12. In other words, a defendant
is not “convicted” for purposes of R.C. 2941.25(A) until the sentence is imposed. Id. at
¶ 24. “If . . . a court of appeals finds reversible error in the imposition of multiple
punishments for allied offenses, the court must reverse the judgment of conviction and
remand for a new sentencing hearing at which the state must elect which allied offense it
will pursue against the defendant.” Id. at ¶ 25.
{¶50} Here, the state failed to choose the allied offense of similar import for which
Appellant was sentenced. Moreover, the trial court at both the sentencing hearing and in
the judgment of conviction failed to make a determination regarding the merger of the two
crimes, despite informing Appellant several times at the plea hearing that he would only
be convicted (guilty verdict plus sentence) for one crime.
{¶51} “When the plea agreement is silent on the issue of allied offenses of similar
import[,] 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; if a trial court fails
to merge allied offenses of similar import, the defendant has the right to appeal the
sentence.” State v. Underwood, 2010-Ohio-1, ¶ 29. The Supreme Court of Ohio has
indicated that the failure to merge allied offenses of similar import constitutes plain error.
Id. at ¶ 31. The Court further indicated that “[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.” Id. at ¶ 26.
{¶52} Accordingly, we vacate the sentencing entry and remand the matter to the
trial court for a de novo sentencing hearing. The new sentencing hearing will provide
Appellant with the opportunity to argue in favor of merger, thereby preserving the issue
Case No. 24 HA 0003
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for appeal, in the event the trial court concludes the two charges are not allied offenses
of similar import. Appellant will also have the opportunity to challenge the validity of his
plea should the trial court find the guilty verdicts do not merge.
CONCLUSION
{¶53} In summary, we find the trial court did not abuse its discretion when it
overruled Appellant’s pre-sentencing motion to withdraw plea and his original motion for
new counsel. However, the trial court failed to address the merger issue at the sentencing
hearing. Therefore, we vacate Appellant’s sentence and remand this matter for a de novo
sentencing hearing.
Waite, J., concurs.
Robb, P.J., concurs.
Case No. 24 HA 0003
[Cite as State v. Flenniken, 2024-Ohio-5041.]
For the reasons stated in the Opinion rendered herein, it is the final judgment
and order of this Court that Appellant’s sentence is vacated. We hereby remand this
matter to the Court of Common Pleas of Harrison County, Ohio, for a de novo
sentencing hearing. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.