State v. Cleveland ( 2011 )

[Cite as State v. Cleveland, 2011-Ohio-4868.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24379
Plaintiff-Appellee :
: Trial Court Case No. 2009-CR-3564
v. :
:
ANDRE R. CLEVELAND : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
rd
Rendered on the 23 day of September, 2011.
...........
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County
Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. #0076791, 75 North Pioneer Boulevard,
Springboro, Ohio 45066
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Andre R. Cleveland appeals from his conviction
and sentence, following a no-contest plea, for Rape, Aggravated Burglary, and
Kidnapping. Cleveland contends that the trial court erred when it failed to merge the
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offenses as allied offenses of similar import. He also contends that the trial court
erred when it disapproved him for the shock incarceration program and the intensive
program prison without having made the requisite findings under the statute, and that
the trial court erred by having prematurely disapproved him for transitional control.
{¶ 2} The record, including the pre-sentence investigation report, is
inconclusive on the factual issue of whether the offenses to which Cleveland pled no
contest are allied offenses of similar import. Consequently, the trial court committed
plain error when it sentenced Cleveland without first conducting an inquiry on the
allied-offenses issue. The trial court also erred when it disapproved Cleveland for
transitional control. Any error in the trial court’s having disapproved Cleveland for
shock incarceration or for intensive program prison is harmless, since Cleveland was
not eligible for either of those programs, having been convicted of first-degree
felonies. The judgment of the trial court is Reversed, and this cause is Remanded
for further proceedings consistent with this opinion.
I
{¶ 3} According to the pre-sentence investigation report, Cleveland induced
the victim to open her door at 2:00 in the morning to retrieve a card that he claimed
he had from the police, pushed her out of the way, and entered her home. To her
repeated demands that he leave, he responded by telling her to shut up or he would
kill her. When his victim tried to call the police, Cleveland ripped the phone cord
from the wall, and used the telephone cord to tie her hands together in front.
{¶ 4} Cleveland made his victim walk to her bathroom. Once in the
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bathroom, Cleveland ordered his victim to bend over, pushed her underwear to the
side, and attempted, unsuccessfully to have vaginal intercourse with her. He then
had anal intercourse with her for about five minutes.
{¶ 5} Cleveland then had his victim remove her underwear and get into a
bathtub that he had filled with water. He had put bleach in the water. He used a
blue shirt to wash his victim in her vaginal and anal areas. He opened the drain, told
his victim that if she got out of the tub before the water drained, he would kill her, and
then left.
{¶ 6} Cleveland was arrested and charged with Rape, Aggravated Burglary,
and Kidnapping. He eventually pled no contest to all three charges, after being
informed, on the record, that the trial court was inclined to sentence him to no more
than fifteen years in prison, “[a]nd it’s likely that it would be between the twelve and
fifteen range[.]” During the plea hearing, the State recited the three charges, but
limited its recitation to a recitation of the statutory elements of the three charges.
The victim’s daughter made a statement at the sentencing hearing, but that
statement concerned the impact of the defendant’s criminal conduct on her mother
and herself, and did not include any details of the offenses.
{¶ 7} Cleveland was sentenced to ten years for Rape, and ten years for
Aggravated Burglary, to be served concurrently. He was sentenced to three years
for Kidnapping, to be served consecutively to the other sentences, for an aggregate
sentence of thirteen years. He was designated as a Tier III sexual offender.
{¶ 8} From his conviction and sentence, Cleveland appeals.
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II
{¶ 9} Cleveland’s First Assignment of Error is as follows:
{¶ 10} “THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE
RAPE, AGGRAVATED BURGLARY AND KIDNAPPING CHARGES AS ALLIED
OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
{¶ 11} R.C. 2941.25 provides as follows:
{¶ 12} “(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.
{¶ 13} “(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.”
{¶ 14} Under State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, the
threshold test for allied offenses, before reaching the issue of whether they were
committed with a separate animus as to each, involved a comparison of the elements
of the offenses. The court cited Blockburger v. United States (1932), 284 U.S. 299,
52 S.Ct. 180, 76 L.Ed. 306, a case applying the Double Jeopardy clause of the Fifth
Amendment to the United States Constitution: “Because the comparison of elements
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of offenses outlined in Blockburger is reflected in R.C. 2941.25(A), courts engage in
a similar analysis whether applying Blockburger or Ohio's multiple-count statute.
Therefore, cases discussing and applying Blockburger are helpful, though not
controlling, in our examination of Ohio law.” Rance, 85 Ohio St.3d at 636.
{¶ 15} But the Supreme Court of Ohio recently overruled State v. Rance in
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Although there was no
majority opinion in State v. Johnson, all the justices agreed with the overruling of
State v. Rance, and it appears from their respective opinions that the correct
allied-offenses analysis now involves consideration of the conduct of the defendant in
the particular case, rather than an abstract comparison of the elements of the several
offenses. Thus, after State v. Johnson, it appears that R.C. 2941.25 now provides a
criminal defendant with more protection against being separately punished for
multiple offenses than is required by the Double Jeopardy clause, at least as
construed by Blockburger, supra.{¶ 16} Cleveland argues in his brief that: “Applying the recent standard
established by [State v.] Johnson, under the circumstances it would have been
impossible for the Defendant to commit any of the separate crimes without
committing the underlying rape.” As stated, we find Cleveland’s argument difficult to
follow. It would seem more pertinent to argue that the Kidnapping could not have
been committed without having committed Aggravated Burglary, and that the Rape
could not have been committed without having committed first the Aggravated
Burglary, and then the Kidnapping. It would have seemed possible for Cleveland to
have committed both the Aggravated Burglary and the Kidnapping without having
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committed the Rape if he had just forced his victim into her bathroom without
thereafter having sexually assaulted her.
{¶ 17} In any event, the circumstances of these three offenses, having been
committed in both temporal and spatial proximity to one another, raise obvious
issues under R.C. 2941.25, and the circumstances are not well developed in the
record, even if the record is deemed to include the pre-sentence investigation report.
{¶ 18} The State argues that Cleveland’s failure to have made the
pre-sentence investigation report a part of the record on appeal means that we must
presume the regularity of the proceedings, and the validity of the trial court’s
judgment. We have made the pre-sentence investigation report a part of the record,
sua sponte, as is our custom whenever we find that there is a pre-sentence
investigation report, it is not part of our record, and it appears that the report may be
material to an issue on appeal.
{¶ 19} Two of our sister courts of appeals 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. Corrao,
Cuyahoga App. No. 95167, 2011-Ohio-2517, at ¶ 10; State v. Miller, Portage App.
No. 2009-P-0090, 2011-Ohio-1161, at ¶ 56, 58. We have said the same in dictum.
State v. Myers, Montgomery App. No. 23913, 2011-Ohio-1615, ¶ 13.
{¶ 20} We hold, in this case, that where the record suggests that multiple
offenses of which a defendant has been found guilty may be allied offenses of similar
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import under R.C. 2941.25, but is inconclusive in that regard, it is plain error for the
trial court not to conduct the necessary inquiry to determine whether the offenses
are, in fact, allied offenses of similar import. Cleveland’s First Assignment of Error is
sustained, to that limited extent.
III
{¶ 21} Cleveland’s Second Assignment of Error, set forth in his supplemental
brief, is as follows:
{¶ 22} “THE TRIAL COURT ERRED BY DISAPPROVING SHOCK
INCARCERATION, INTENSIVE PROGRAM PRISON AND TRANSITIONAL
CONTROL AT SENTENCING.”
{¶ 23} The State notes that because Cleveland’s offenses are felonies of the
first degree, he is not eligible for shock incarceration or for the intensive prison
program, citing R.C. 5120.031(A)(4) and R.C. 5120.032(B)(2)(a). Therefore, the
State argues, any error in the trial court’s having disapproved shock incarceration
and the intensive prison program without having first made the necessary findings is
necessarily harmless, since Cleveland was not eligible for either of those programs in
any event.
{¶ 24} R.C. 5120.031(A)(4) provides as follows:
{¶ 25} “ ‘Eligible offender’ means a person, other than one who is ineligible to
participate in an intensive program prison under the criteria specified in section
5120.032 of the Revised Code, who has been convicted of or pleaded guilty to, and
has been sentenced for, a felony.”
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{¶ 26} R.C. 5120.032(B)(2) provides as follows:
{¶ 27} “A prisoner who is in any of the following categories is not eligible to
participate in an intensive program prison established pursuant to division (A) of this
section:
{¶ 28} “(a) The prisoner is serving a prison term for aggravated murder,
murder, or a felony of the first or second degree or a comparable offense under the
law in effect prior to July 1, 1996, or the prisoner previously has been imprisoned for
aggravated murder, murder, or a felony of the first or second degree or a comparable
offense under the law in effect prior to July 1, 1996.”
{¶ 29} Because Cleveland is serving a prison term for a felony of the first
degree, under R.C. 5120.032(B)(2)(a) he is not eligible to participate in the intensive
program prison. Because he is not eligible to participate in the intensive program
prison, under R.C. 5120.031(A)(4) and R.C. 5120.031(B)(1), he is not eligible for the
shock incarceration program. Because he is not eligible for either of these
programs, we agree with the State that any error in the trial court’s having
disapproved him for these programs is necessarily harmless.
{¶ 30} The State concedes that under State v. Howard, 190 Ohio App.3d 734,
2010-Ohio-5283, the trial court erred by having disapproved Cleveland for transitional
control at this time. Upon remand, the trial court should not include disapproval of
transitional control in its sentencing entry. To that limited extent, Cleveland’s
Second Assignment of Error is sustained.
IV
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{¶ 31} Both of Cleveland’s assignments of error having been partially
sustained, the judgment of the trial court is Reversed, and this cause is Remanded
for further proceedings consistent with this opinion.
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FROELICH and HALL, JJ., concur.
Copies mailed to:
Mathias H. Heck
R. Lynn Nothstine
Marshall G. Lachman
Hon. Gregory F. Singer