State v. Mullen , 191 Ohio App. 3d 788 ( 2011 )

[Cite as State v. Mullen, 191 Ohio App.3d 788, 2011-Ohio-37.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
The STATE OF OHIO, CASE NO. 7-10-08
APPELLEE,
v.
MULLEN, OPINION
APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 07 CR 036
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: January 10, 2011
APPEARANCES:
John H. Hanna, for appellee.
Kenneth J. Rexford, for appellant.
ROGERS, Presiding Judge.
Case No. 7-10-08
{¶ 1} Defendant-appellant, Jeffrey S. Mullen, appeals the judgment of the
Court of Common Pleas of Henry County finding him guilty of one count of
aggravated burglary, two counts of abduction, and one count of felonious assault.
On appeal, Mullen asserts that the trial court erred in finding him guilty of
felonious assault and both counts of abduction, and that the convictions of
felonious assault and abduction were imposed in violation of his due process
rights. Based upon the following, we affirm in part, and reverse in part, the
judgment of the trial court.
{¶ 2} In August 2007, the Henry County Grand Jury indicted Mullen on
Count One, attempted murder in violation of R.C. 2903.02(A), a felony of the first
degree with a firearm specification under R.C. 2941.145; Count Two, attempted
murder in violation of R.C. 2903.02(A), a felony of the first degree with a firearm
specification under R.C. 2941.145; Count Three, aggravated burglary in violation
of R.C. 2911.11(A)(1) and/or (2), a felony of the first degree with a firearm
specification under R.C. 2941.145; Count Four, abduction in violation of R.C.
2905.02(A)(2), a felony of the third degree with a firearm specification under R.C.
2941.145; Count Five, abduction in violation of R.C. 2905.02(A)(2), a felony of
the third degree with a firearm specification under R.C. 2941.145; Count Six,
abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree with a
firearm specification under R.C. 2941.145; Count Seven, abduction in violation of
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R.C. 2905.02(A)(2), a felony of the third degree with a firearm specification under
R.C. 2941.145; and Count Eight, felonious assault in violation of R.C.
2903.11(A)(2), a felony of the second degree with a firearm specification under
R.C. 2941.145.
{¶ 3} In August 2007, Mullen entered a plea of not guilty by reason of
insanity, and the trial court ordered a competency evaluation.
{¶ 4} In October 2007, the trial court found that Mullen was competent to
stand trial.
{¶ 5} In April 2008, Mullen withdrew his pleas of not guilty and entered
pleas of no contest to Count Three with the gun specification, and Counts Four,
Five, and Eight, on which the trial court found him guilty. As part of the plea
agreement, the state agreed to recommend dismissal of Counts One, Two, Six, and
Seven. At the plea hearing, the state recited the factual basis for the offenses:
[A]s to Count 3, the defendant did by force trespass in an
occupied structure in which Elizabeth Walters and Sarah McCorkle
and children of them and of the occupants of that residence were
present and he did so with purpose to commit a criminal offense
having fired into the residence before he came in and while in the
house he threatened to inflict physical harm to the two women and
also was in possession of a deadly weapon, to wit, a firearm. As to
the specification, he did display the firearm, brandish it and indicate
that he possessed the firearm and used it to facilitate the offense.
As to Count 4, while in the home he held Elizabeth Walters
against her will and restrained her of her liberty refusing her the
opportunity to leave in fact, threatening to kill her if she attempted
to, and the same thing happened as to Count 5, just with a different
victim – they were in separate rooms, he went into one room, held
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the gun to Elizabeth’s head and told her if she didn’t shut up and if
she attempted to leave he would kill her. He did the same thing in
County [sic] 5 with Sarah McCorkle in a totally separate room of the
house and as to Count 8 Your Honor, he did knowingly cause or
attempt to cause physical harm to Elizabeth Walters by means of a
deadly weapon holding the firearm to her head threatening to blow
her brains out if she didn’t shut up.
{¶ 6} In June 2008, the trial court sentenced Mullen to a seven-year prison
term on Count Three and a three-year prison term on the gun specification; to a
three-year prison term on Count Four; to a three-year prison term on Count Five;
and to a five-year prison term on Count Eight. The trial court ordered all terms to
be served consecutively, for an aggregate 21-year prison term. Additionally, the
trial court dismissed Counts One, Two, Six, and Seven and the remaining
specifications. The trial court further ordered Mullen to pay restitution of $620.
{¶ 7} In November 2009, Mullen filed a motion to withdraw his plea
pursuant to Crim.R. 32.1 because his judgment entry of conviction lacked
notification of postrelease control, rendering his convictions void.
{¶ 8} In February 2010, the trial court denied Mullen’s motion to
withdraw his plea because he was advised of the mandatory term of postrelease
control at the time of his plea, but the court ordered that Mullen be resentenced
because postrelease control was not addressed in the trial court’s June 2008
sentencing entry. The trial court scheduled Mullen’s resentencing for March 30,
2010.
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{¶ 9} On March 8, 2010, Mullen filed a “Pre-Sentence Motion to
Withdraw Plea.”
{¶ 10} In April 2010, the trial court denied Mullen’s motion to withdraw his
plea. Additionally, the trial court resentenced Mullen to the same prison term
imposed in June 2008, and specifically stated that he would be subject to a five-
year term of postrelease control.
{¶ 11} It is from the trial court’s April 2010 judgment entry that Mullen
appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
The trial court erred in finding Mr. Mullen guilty of felonious
assault.
Assignment of Error No. II
The trial court erred in finding Mr. Mullen guilty of abduction
as alleged in Count IV.
Assignment of Error No. III
The trial court erred in finding Mr. Mullen guilty of abduction
as alleged in Count V.
Assignment of Error No. IV
The convictions as to Counts IV, V, and VIII each were imposed in
violation of the right of the accused to due process of law.
{¶ 12} Initially, we note that although Mullen has appealed from an entry
that resentenced him and denied his motion to withdraw his plea, his arguments
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and request for relief concern only the entry of resentencing and do not dispute the
denial of his motion to withdraw his plea. Additionally, due to the nature of
Mullen’s arguments, we elect to address his second and third assignments of error
together.
Assignment of Error No. I
{¶ 13} In his first assignment of error, Mullen argues that the trial court
erred in finding him guilty of felonious assault. Specifically, Mullen contends that
the trial court was required to consider the prosecutor’s statement of facts in
conjunction with his no-contest plea and to ensure that the stated facts did not
negate the charged offense, and further that the prosecutor’s statement of facts
alleged a threat of force without any actual attempt or assault, which negated the
charge of felonious assault. In support, Mullen cites State v. Wooldridge, 2d Dist.
No. 18086, 2000 WL 1475699; State v. Edward Joseph Lowe, M.D., Inc., 2d Dist.
Nos. 93-CA-54 and 93-CA-55, 1995 WL 127890, and State v. Cohen (1978), 60
Ohio App.2d 182.
{¶ 14} Crim.R. 11(B)(2) provides, “The plea of no contest is not an
admission of defendant’s guilt, but is an admission of the truth of the facts alleged
in the indictment.” Additionally, it is well settled that if a charging instrument
contains the elements of the offense charged and fairly informs the defendant of
the charge against which he must defend, it will satisfy federal and state
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requirements. State v. Reinhart, 3d Dist. No. 15-06-07, 2007-Ohio-2284, ¶ 14,
citing State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶ 9. Initially, we
note that the indictment for felonious assault, to which Mullen entered his no-
contest plea, contains all elements of the offense and properly tracks the language
of the statute. See R.C. 2903.11(A)(2).
{¶ 15} In Cohen, 60 Ohio App.2d 182, the First Appellate District
examined a situation in which a defendant pleaded no contest to a properly
indicted charge of robbery pursuant to the 1977 version of R.C. 2911.02(A),
which, at that time, required that the perpetrator “[u]se or threaten the immediate
use of force against another.” However, the state’s uncontroverted statement of
facts provided that the victim was sleeping during the entire commission of the
offense. On appeal, the First District determined that the element of force or threat
of immediate use of force could not be present when the victim was sleeping.
Consequently, the court set aside the no-contest plea because “the uncontroverted
statement of facts recited to the court below not only failed to include, but
[a]bsolutely negatived the existence of, an essential element of the offense charged
in the indictment.” Id. at 184.
{¶ 16} In Edward Joseph Lowe, M.D., Inc., 1995 WL 127890, the Second
Appellate District examined a situation in which a doctor had pleaded no contest
to a multicount indictment for illegal processing of drug documents. At the plea
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hearing, the state recited facts including that the majority of the indictments for
illegal processing of drug documents under R.C. 2925.23(A) were based on the
defendant’s acts of falsifying patients’ medical charts. However, the Second
District concluded that patients’ medical charts were not included under R.C.
2925.23(A) as a matter of law. Consequently, the reviewing court held that the
trial court erred in entering a finding of guilty as to these charges, concluding that
“ ‘[w]here the facts presented to the trial court unequivocally negate an essential
element of the offense charged in the indictment, it is an abuse of discretion for the
court to accept the no contest plea of the defendant.’ ” Id. at * 10, quoting State v.
Mehozonek (1983), 8 Ohio App.3d 271, 273-274, citing Cohen, 60 Ohio App.2d at
184.
{¶ 17} In Wooldridge, 2000 WL 1475699, the Second District similarly
held that “although the omission of a fundamental fact is permissible, the trial
court may not find a defendant guilty based on his no contest plea if the state’s
statement of facts absolutely negates the existence of an essential element of the
offense.” (Emphasis sic.) On that basis, the Second District declined to vacate the
defendant’s plea because the state’s recitation of facts did not absolutely negate an
essential element of the offense, but merely raised the possibility that the offense
at issue had been committed in a county different from that alleged in the
indictment.
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{¶ 18} Here, Mullen was convicted of felonious assault in violation of R.C.
2903.11(A)(2), which provides, “No person shall knowingly do either of the
following: * * * (2) Cause or attempt to cause physical harm to another * * * by
means of a deadly weapon or dangerous ordnance.” Mullen contends that the facts
recited by the state, that he had held a gun to the victim’s head and threatened her,
negated the element that he had caused or attempted to cause harm to another.
Consequently, Mullen requests that this court remand the matter to the trial court
with instructions to vacate his conviction for felonious assault and enter a
judgment of conviction for the lesser offense of aggravated menacing.
{¶ 19} We disagree with Mullen’s contentions. Although he is correct that
the prosecutor stated that Mullen had held a gun to the victim’s head and
threatened her, we do not find that this statement absolutely negates the element
that he had caused or attempted to cause harm to the victim. Conversely, we find
that similar to Wooldridge, 2000 WL 1475699, the prosecutor’s statement merely
omitted a fundamental fact. It is not clear from the prosecutor’s statement whether
Mullen only held a gun to the victim’s head and threatened her, or whether other
facts involving causing harm to or attempting to cause harm to the victim may also
have been present, yet omitted from the statement.
{¶ 20} Accordingly, we overrule Mullen’s first assignment of error.
Assignment of Error Nos. II and III
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{¶ 21} In his second and third assignments of error, Mullen argues that the
trial court erred in finding him guilty on the two counts of abduction. Specifically,
he argues that because he entered a plea of no contest, the trial court was required
to review the indictment to determine that it alleged all necessary elements of the
charged offense and that the omission of the element of “circumstances that create
a risk of physical harm to the victim or place the other person in fear” from both
counts rendered the indictments for abduction sufficient to charge only the lesser
included offense of unlawful restraint.
{¶ 22} R.C. 2905.02 governs abduction and provides:
(A) No person, without privilege to do so, shall knowingly do any of
the following:
***
(2) By force or threat, restrain the liberty of another person under
circumstances that create a risk of physical harm to the victim or
place the other person in fear.
{¶ 23} Here, Counts Four and Five of the indictment, charging abduction in
violation of R.C. 2905.02(A)(2), provided that “JEFFREY S. MULLEN, did,
without privilege to do so, knowingly by force or threat, restrain the liberty of
another person.” The indictment contained no assertion that Mullen created a risk
of physical harm to the victims or placed the victims in fear.
{¶ 24} The Supreme Court of Ohio has emphasized the following:
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While a plea of guilty is a complete admission of the defendant’s
guilt, a plea of no contest is not an admission of guilt, but is an
admission of the truth of the facts alleged in the indictment,
information, or complaint. Crim.R. 11(B)(1) and (2). The trial court
thus possesses discretion to determine whether the facts alleged in
the indictment, information, or complaint are sufficient to justify
conviction of the offense charged. State v. Thorpe (1983), 9 Ohio
App.3d 1, 3, 9 OBR 1, 3, 457 N.E.2d 912, 915 (Markus, J.,
concurring). If the court determines that the alleged facts are
insufficient to state the charged offense, it may find the defendant
guilty of a lesser included offense, State ex rel. Leis v. Gusweiler
(1981), 65 Ohio St.2d 60, 61, 19 O.O.3d 257, 418 N.E.2d 397, 398,
or dismiss the charge.
State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 423. Additionally, this
court has previously held, “There being no admission of guilt by a no contest plea
and such plea only admitting the truth of the facts alleged in the indictment, if
those facts do not, in and of themselves, constitute the allegation of an offense
under the statute, or statutes, involved, the defendant has admitted to nothing upon
which the court can base a conviction.” State v. Hayes, 3d Dist. No. 5-82-11,
1983 WL 7178, citing Crim.R. 11(B)(2).
{¶ 25} In light of the preceding, we find that as Mullen has admitted only
the truth of the facts alleged in the indictment, which are insufficient to charge
abduction, he has admitted nothing upon which the trial court could base his
convictions for abduction. Consequently, the trial court erred in finding Mullen
guilty of the two abduction offenses. However, as Mullen admits, Counts Four
and Five of the indictment contain all essential elements to charge the offense of
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unlawful restraint under R.C. 2905.03(A), which provides, “No person, without
privilege to do so, shall knowingly restrain another of the other person’s liberty.”
Additionally, multiple courts have found unlawful restraint to be a lesser included
offense of abduction. See State v. Urban, 9th Dist. No. 08CA009396, 2009-Ohio-
2789, ¶ 19; State v. Stoutamire, 11th Dist. No. 2007-T-0089, 2008-Ohio-2916, ¶
81; State v. Martin, 10th Dist. Nos. 02AP33 and 02AP34, 2002-Ohio-4769, ¶ 46;
State v. Graves, 12th Dist. No. CA2001-05-018, 2002-Ohio-868; State v. Jonas
(Mar. 6, 2001), 4th Dist. No. 99CA38.
{¶ 26} Accordingly, we sustain Mullen’s second and third assignments of
error, reverse his convictions for abduction on Counts Four and Five, and remand
to the trial court with instructions to enter convictions for unlawful restraint in
violation of R.C. 2905.03(A) and to resentence him accordingly.
Assignment of Error No. IV
{¶ 27} In his fourth assignment of error, Mullen argues that his two
convictions for abduction and his conviction for felonious assault were imposed in
violation of his due process rights. Specifically, Mullen contends that the trial
court should not have accepted his no-contest plea and found him guilty, as the
trial court should have first reviewed the indictments for abduction for sufficiency
and should have reviewed the prosecutor’s statement of facts regarding the
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felonious-assault charge to ensure that it did not negate the facts alleged in the
indictment for felonious assault.
{¶ 28} Having determined in our analysis of Mullen’s first assignment of
error that the prosecutor’s statement concerning the charge of felonious assault did
not negate the indictment, we consequently hold that his felonious-assault
conviction did not violate his due process rights. Additionally, having already
reversed Mullen’s convictions for abduction with instructions for the trial court to
enter convictions for unlawful restraint, we find this assignment of error moot in
regard to the abduction convictions.
{¶ 29} Accordingly, we overrule Mullen’s fourth assignment of error.
{¶ 30} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued in the first and fourth assignments of error, but
having found error prejudicial in the particulars assigned and argued in the second
and third assignments of error, we affirm Mullen’s conviction for felonious
assault, but reverse his convictions for abduction. We remand to the trial court
with instructions to enter convictions for unlawful restraint in violation of R.C.
2905.03(A) and to resentence him accordingly.
Judgment affirmed in part
and reversed in part,
and cause remanded.
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WILLAMOWSKI and PRESTON, JJ., concur.
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