State v. Williams , 2012 Ohio 3384 ( 2012 )

[Cite as State v. Williams, 2012-Ohio-3384.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 26
v. : T.C. NO. 09CR722
MICHAEL S. WILLIAMS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of July , 2012.
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STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Prosecutor, 55 Greene
Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
JEREMY M. TOMB, Atty. Reg. No. 0079664, 124 West Main Street, Troy, Ohio 45373
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Michael S. Williams appeals from his conviction and sentence on charges
of felonious assault and violating a protection order.
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{¶ 2} Williams advances two assignments of error on appeal. First, he contends
the trial court erred in sentencing him separately for allied offenses of similar import.
Second, he claims the trial court abused its discretion in imposing consecutive four-year
prison sentences.
{¶ 3} The record reflects that Williams was indicted on charges of felonious
assault, domestic violence, and violating a protection order. As part of a plea agreement,
Williams pled guilty to felonious assault and violating a protection order. The felonious
assault charge alleged that Williams “did knowingly cause or attempt to cause physical harm
to another by means of a deadly weapon or dangerous ordnance, to wit: a motor vehicle[.]”
The charge for violating a protection order alleged that Williams “did recklessly violate the
terms of a protection order * * * and at the time of the violation, the offender was
committing a felony offense of Felonious Assault[.]” The charges were based on Williams’s
act of hitting his ex-girlfriend’s car with his own vehicle. At the time of the incident,
Williams’s ex-girlfriend had obtained a protection order against him. The trial court imposed
consecutive four-year prison terms. This appeal followed.
{¶ 4} In his first assignment of error, Williams raises an allied-offense argument
under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. He
contends felonious assault and violation of a protection order can be committed by the same
conduct and were committed by the same conduct in his case. Conversely, the State argues
that the two offenses were committed separately. According to the State, Williams violated
the protection order by following the victim in his car. He then engaged in separate conduct
by striking her car with his.
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{¶ 5} Upon review, we find Williams’s argument to be persuasive. In Johnson,
the Ohio Supreme Court announced a new test for determining when offenses are allied
offenses of similar import that must be merged pursuant to R.C. 2941.25. Johnson held:
“When 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.” Id. at syllabus.
It explained:
Under R.C. 2941.25, the court must determine prior to sentencing
whether the offenses were committed by the same conduct. Thus, the court
need not perform any hypothetical or abstract comparison of the offenses at
issue in order to conclude that the offenses are subject to merger.
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 the offenses
correspond to such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other, then the
offenses are of similar import.
If the 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.” * * *
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
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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 ¶47-51 (citations and quotations omitted).
{¶ 6} In the present case, the State charged Williams with felonious assault, a
second-degree felony, based on his act of hitting his ex-girlfriend’s car with his vehicle. The
other charge, violating a protection order, typically is a first-degree misdemeanor. R.C.
2919.27(B)(2). The offense is a third-degree felony, however, “[i]f the offender violates a
protection order * * * while committing a felony offense[.]” R.C. 2919.27(B)(4). Here
Williams was charged with third-degree felony violation of a protection order. As set forth
above, the indictment alleged that he “did recklessly violate the terms of a protection order *
* * and at the time of the violation, * * * was committing a felony offense of Felonious
Assault[.]”
{¶ 7} In essence, Williams was charged with felonious assault and violation of a
protection order by means of committing felonious assault. These offenses can be committed
by the same conduct, and they were committed by the same conduct here. If the State
intended to base the protection-order violation on Williams’s act of following his
ex-girlfriend’s car, it should have charged him with first-degree misdemeanor violation of a
protection order. By charging Williams with third-degree felony violation of a protection
order, the State explicitly and necessarily based the charge on his act of hitting her car, i.e.,
felonious assault.
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{¶ 8} Based on the foregoing reasoning, we conclude that felonious assault and
violation of a protection order were allied offenses of similar import. See State v. Weathers,
12th Dist. Butler App. No. CA2011-01-013, 2011-Ohio-6793, ¶24 (finding that “the
felonious assault, domestic violence and violation of a protection order offenses are allied
offenses of similar import and must be merged for sentencing because the state relied on the
felonious conduct for each offense”). Therefore, the trial court erred in sentencing Williams
separately for both offenses. Although he did not raise this issue below, “we have previously
held that a trial court’s failure to merge allied offenses of similar import constitutes plain
error.” State v. Fairman, 2d Dist. Montgomery No. 24299, 2011-Ohio-6489, ¶56 (citation
omitted). As a result, we “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.”1 State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶25.
Williams’s first assignment of error is sustained.
{¶ 9} In light of the foregoing disposition, we overrule, as moot, Williams’s
second assignment of error, which challenges the trial court’s discretion to impose
consecutive four-year prison terms.
{¶ 10} The judgment of the Greene County Common Pleas Court is reversed, and
the matter is remanded for re-sentencing.
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“Because 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. Thus, the trial court should not vacate or dismiss
the guilt determination.” Whitfield, at ¶27.
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DONOVAN, J., concurs.
HALL, J., dissenting:
{¶ 11} Williams pled guilty to felonious assault and violation of a protection order
while committing a felony. The question is whether the two offenses can be, and were,
committed by the same conduct. The conduct for the felonious assault was the striking of the
victim’s car with the defendant’s own. But the defendant’s conduct of violating the
protection order involves the additional fact that the defendant is subject to a protection
order and makes this defendant’s conduct different from anyone else who would be in the
victim’s presence. This distinction, that the defendant was subject to a protection order, was
the result of actions far removed from the September 26, 2009 car crash and involves
conduct independent thereof. Although the discrete act of striking the victim’s car completed
the offense, that act would not constitute violation of a protection order if the defendant had
not been prohibited from being in the victim’s presence. Accordingly, different acts
constitute the separate offenses.
{¶ 12} The foregoing result is consistent with the apparent intent of the legislature
to have the violation of a protection order, while committing a felony, constitute a separate
offense. The state is required to prove that the violation of a protection order occurred “while
committing a felony.” The state’s case, of necessity, must prove commission of the
underlying felony. Thus, if merger applies, the violation of a protection order while
committing a felony would always merge with the other felony being committed and could
never constitute a separate offense. Because “while committing a felony” language was
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placed in the protection-order-violation statute long after the allied-offense statutory
limitation, the legislature could not have intended for the “while committing a felony”
enhancement to have no meaning. Moreover, the apparent purpose of the statute is to
proscribe certain conduct by a person subject to a court order. Felonious assault by a person
who intentionally strikes an occupied motor vehicle, and who is not subject to a protection
order, is a different situation than the same offense being committed by someone who has
been ordered by a court to stay away from the victim altogether.
{¶ 13} Likewise, there is a separate animus related to the offenses. The focus of the
protection order violation is to recklessly violate the terms of the order, in this case by being
in the victim’s presence, or within a prohibited distance. The focus of the felonious assault is
the attempt to cause physical harm with a deadly weapon, here a motor vehicle. Those are
separate animi which prevent the offenses from being allied offenses that merge. Based on
the foregoing reasoning, I conclude that felonious assault and violation of a protection order
while committing a felony of felonious assault are not allied offenses of similar import.
{¶ 14} My dissent here is consistent with my partial dissent in State v. Fairman, 2d
Dist. Montgomery No. 24299, 2011-Ohio-6489. In that case, the defendant was accused of
obtaining a firearm from a third person with the immediate intent of shooting the victim who
was standing next to him when he got the firearm. He was charged with having a weapon
while under disability (for possessing the firearm when prohibited) and felonious assault (for
shooting the victim). The opinion of the court held that the felonious assault and having a
firearm while under disability merged. I disagreed because having the weapon and using the
weapon were different acts and were supported by different intent, i.e., having a weapon and
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using the weapon. Like the case here, Fairman’s status of being under a disability was part of
the weapons offense. “Fairman acquired the disability that prevents him from having a
firearm by committing a felony of violence long before he used a firearm to shoot [the
victim]. That separate act is unrelated to the Felonious Assault.” Id. at ¶ 87 (Hall, J.,
concurring in part and dissenting in part).
{¶ 15} I also recognize that the 12th District has held differently in a similar
situation. In State v. Weathers, 12th Dist. Butler No. CA2011-01-013, 2011-Ohio-6793, the
court held that “the felonious assault, domestic violence and violation of a protection order
offenses are allied offenses of similar import and must be merged for sentencing because the
state relied on the felonious conduct for each offense.” Id. at ¶24. Weathers punched and
choked his victim, the mother of his children, during an altercation outside a bar. The state
conceded that the felonious assault and domestic violence offenses merged. The appeals
court determined that the conduct constituting felonious assault and violation of a protection
order was the conduct outside the bar when the defendant pulled the victim out of a car and
punched her. Nowhere in the discussion is recognition that the protection order was acquired
by and through separate pre-existing conduct. Under the 12th District’s analysis, a violation
of a protection order would always merge with a discrete act of assault, or domestic violence
if applicable, on the protected party. That result fails to recognize the distinction between
domestic violence committed by any offender, and domestic violence committed by one who
has previously been ordered by a court to stay away from the protected person. The entirety
of the defendant’s conduct should be considered, not just the immediate physical act.
Accordingly, I disagree with Weathers; and in this case, I would overrule the first
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assignment of error.
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Copies mailed to:
Stephanie R. Hayden
Jeremy M. Tomb
Hon. Stephen A. Wolaver