State v. Ross , 2014 Ohio 1675 ( 2014 )

[Cite as State v. Ross, 2014-Ohio-1675.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 13CA0015
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOSHUA A. ROSS COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 12-CR-0417
DECISION AND JOURNAL ENTRY
Dated: April 21, 2014
CARR, Judge.
{¶1} Appellant Joshua Ross appeals the judgment of the Wayne County Court of
Common Pleas. This Court affirms in part, reverses in part, and remands for resentencing.
I.
{¶2} Ross was indicted on one count of aggravated robbery (count 1), a felony of the
first degree; one count of aggravated burglary (count 2), a felony of the first degree; one count of
robbery (count 3), a felony of the second degree; and one count of having weapons while under
disability (count 4), a felony of the third degree. Each of the four counts included an identical
firearm specification. Pursuant to the indictment, all four counts were alleged to have occurred
on or about November 15, 2012, arising out of the same course of conduct.
{¶3} The parties engaged in plea negotiations, resulting in the State’s dismissal of
counts 1 and 3, and its amendment of count 2 to burglary, a felony of the second degree, in
exchange for Ross’ guilty plea to amended count 2 and count 4. After Ross pleaded guilty, he
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requested that the trial court proceed immediately to sentencing. The assistant prosecutor
informed the court that the parties agreed as part of their plea bargain that amended count 2 and
count 4 constituted allied offenses of similar import and that the sentences for those offenses
would merge. The State then elected to have Ross sentenced on count 2, burglary and its
attendant firearms specification.
{¶4} The trial court imposed a sentence of six years for burglary and three years for the
attendant firearm specification, to be served consecutively. The trial court further imposed a
sentence of three years for having weapons while under disability and three years for the
attendant firearm specification, ordering those sentences to be served consecutively to one
another, but concurrently with the nine-year sentence imposed relative to count 2. Ross moved
for leave to file a delayed appeal, and this Court granted leave. Ross raises six assignments of
error for review. Some assignments of error are rearranged and some are consolidated to
facilitate review.
II.
ASSIGNMENT OF ERROR I
JOSHUA ROSS’S CHANGE OF PLEA WAS RENDERED UNKNOWING
AND INVOLUNTARY WHEN THE SENTENCING COURT FAILED TO
SUBSTANTIALLY COMPLY WITH CRIM.R. 11(C)’S NOTICE
REQUIREMENTS REGARDING MAXIMUM PENALTY AND EFFECT OF
THE PLEA.
{¶5} Ross argues that he did not enter his guilty plea knowingly and voluntarily
because the trial court failed to explain the maximum possible penalty associated with the
firearms specification associated with count 4. This Court disagrees.
{¶6} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of
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the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”
State v. Engle, 74 Ohio St.3d 525, 527 (1996). Compliance with the mandates of Crim.R. 11(C)
allows for the determination of whether the defendant’s plea was entered in a knowing,
intelligent, and voluntary manner. State v. Nero, 56 Ohio St.3d 106, 107 (1990). The rule
provides:
In felony cases the court may refuse to accept a plea of guilty or a plea of no
contest, and shall not accept a plea of guilty or no contest without first addressing
the defendant personally and doing all of the following:
Determining that the defendant is making the plea voluntarily, with understanding
of the nature of the charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
Informing the defendant of and determining that the defendant understands the
effect of the plea of guilty or no contest, and that the court, upon acceptance of the
plea, may proceed with judgment and sentence.
Informing the defendant and determining that the defendant understands that by
the plea the defendant is waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for obtaining witnesses in the
defendant’s favor, and to require the state to prove the defendant’s guilty beyond
a reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.
Crim.R. 11(C)(2)(a)-(c).
{¶7} While trial courts must strictly comply with the constitutional notifications of the
rule, they need only substantially comply with the nonconstitutional notifications. State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 14, 18. Substantial compliance requires that the
defendant subjectively understand the implications of his plea based on a totality of the
circumstances. Id. at ¶ 15. “Though failure to adequately inform a defendant of his
constitutional rights would invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly, failure to comply with nonconstitutional rights [subject only to
substantial compliance with Crim.R. 11(C)] will not invalidate a plea unless the defendant
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thereby suffered prejudice.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12. The test
for prejudice is “whether the plea would have otherwise been made.” Nero, 56 Ohio St.3d at
108, citing State v. Stewart, 51 Ohio St.2d 86, 93 (1977).
{¶8} Ross argues that there was no substantial compliance with Crim.R. 11(C)(2)(a)
because the trial court did not inform him of the maximum penalty associated with the firearm
specification relevant to count 4 (having weapons while under disability). Ross concedes that
the issue of maximum penalties implicates a nonconstitutional issue subject only to substantial
compliance with the rule. He argues that the court did not substantially comply with the rule
because it explained the maximum mandatory penalty only for the firearm specification
associated with count 2 (burglary). In addition, Ross argues that, when inquiring as to his plea to
counts 2 and 4, the trial court only mentioned the underlying felonies, not the firearm
specifications.
{¶9} Under the totality of the circumstances, however, we conclude that Ross
subjectively understood the nature of the charges against him and the maximum penalties
involved. When the trial court first explained the charges, count 2 as amended and count 4 as
indicted, it explained that there was a firearm specification associated with each felony. Ross
asserted his understanding of the charges. He further asserted his understanding that his guilty
plea to the offenses would constitute a complete admission that he committed the allegations as
explained. The trial court next explained the maximum penalty for burglary and the three-year
mandatory penalty for the firearm arm specification. It then explained the maximum penalty for
having weapons while under disability, although it did not reiterate the penalty for the firearm
specification associated with count 4. Ross further executed a written Plea of Guilty/Criminal
Rule 11(C) document, which reiterated the nature of the two felonies and a firearm specification.
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His written plea stated that he understood the nature of the charges and maximum penalties and
that he had an opportunity to discuss his case with his attorney. Defense counsel stated on the
record that Ross understood the mandatory prison sentence associated with the firearm
specification. The assistant prosecutor stated on the record that the felony and firearm
specification in count 2 would merge with the felony and firearm specification in count 4, and
that the State would elect for Ross to be sentenced only on count 2. When the trial court inquired
regarding Ross’ plea, it made reference to the charges by count numbers. Under these
circumstances, Ross had a clear understanding of the nature of the charges and the maximum
penalties he faced. He was aware that each count carried a firearm specification, that the firearm
specification carried a mandatory three-year prison term, and that the two counts would merge
for purposes of sentencing.
{¶10} Moreover, Ross has not demonstrated prejudice, i.e., that he would not otherwise
have pleaded guilty to the two counts. He alleges two bases for prejudice. First, he argues that it
is prejudicial “to have that second specification sentence on his record, because it should not be
there.” To the extent that he is arguing that the trial court erroneously imposed a sentence on
both felonies and firearm specifications when the parties agreed that the two counts would merge
for sentencing, that is a sentencing issue that this Court will address in a later assignment of
error. Second, Ross argues that he suffered prejudice because he was “surprised” by the
sentence. He cites no authority for the proposition that surprise constitutes prejudice. Moreover,
he does not assert that he would not have pleaded guilty under these circumstances.
{¶11} This Court concludes that the trial court substantially complied with the
notification requirements in Crim.R. 11(C)(2) relevant to the nature of the offenses and the
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maximum penalties associated with the charges. In addition, Ross has failed to establish that he
was prejudiced by the trial court’s notification. Ross’ first assignment of error is overruled.
ASSIGNMENT OF ERROR V
IT WAS ERROR TO DENY JOSHUA ROSS’S MOTION TO WITHDRAW HIS
PLEA.
{¶12} Ross argues that the trial court abused its discretion by denying his post-sentence
motion to withdraw his guilty plea. This Court disagrees.
{¶13} As a general matter, the decision to grant or deny a motion to withdraw a guilty
plea lies within the sound discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 264
(1977). An abuse of discretion is more than an error in judgment; it means that the trial court
was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not
substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d
619, 621 (1993).
{¶14} The law regarding a post-sentence motion to withdraw a guilty plea is well-
settled.
Pursuant to Crim.R. 32.1, a motion to withdraw a plea of guilty or no contest may
be made only before sentence is imposed; but to correct manifest injustice the
court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea. In a post-sentence motion, the burden of
establishing the existing of a manifest injustice is upon the individual seeking to
withdraw the plea. A manifest injustice has been defined as a clear or openly
unjust act. Under the manifest injustice standard, a post-sentence withdrawal
motion is allowable only in extraordinary cases.
(Internal citations and quotations omitted.) State v. Brown, 9th Dist. Summit No. 24831,
2010-Ohio-2328, ¶ 9.
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{¶15} In support of his motion to withdraw his guilty plea, Ross averred in an affidavit
that he was denied a preliminary hearing on the charges and that counsel was ineffective for
waiving the preliminary hearing, that he was not advised of his right to appeal at sentencing, and
that his constitutional rights were violated.
{¶16} Crim.R. 5(B) discusses when a preliminary hearing is necessary. The rule states,
in relevant part: “The preliminary hearing shall not be held, however, if the defendant is
indicted.” Crim.R. 5(B)(1). Ross was indicted, and the record contains nothing prior to the
indictment.
{¶17} Although Ross did not invoke Crim.R. 11(C) by name in either his motion to
withdraw his plea or his accompanying affidavit, that rule does not require notification of the
right to appeal. In addition, Ross executed a written plea of guilty document evidencing that he
understood his limited appellate rights, including the right to appeal a maximum sentence.
Moreover, Ross did not identify the constitutional rights he asserted were violated and which
required withdrawal of his guilty plea. However, a “guilty plea waive[s] any complaint as to
claims of constitutional violations not related to the entry of the guilty plea.” State v. Ketterer,
111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 105. As he did not allege any constitutional violations
related to the entry of his guilty plea, Ross has not demonstrated a manifest injustice requiring
withdrawal of his plea.
{¶18} For the reasons above, Ross failed to demonstrate that withdrawal of his plea was
necessary to cure a manifest injustice. Under the circumstances, the trial court did not abuse its
discretion by denying his motion to withdraw his plea. Ross’ fifth assignment of error is
overruled.
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ASSIGNMENT OF ERROR II
THE SENTENCE ON TWO FIREARM SPECIFICATIONS WAS CONTRARY
TO LAW.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PLAIN ERROR BY SENTENCING
JOSHUA ROSS ON BOTH AMENDED COUNT 2 AND COUNT 4, WHEN
THESE COUNTS SHOULD HAVE MERGED AS ALLIED OFFENSES OF
SIMILAR IMPORT.
{¶19} Ross argues that the trial court erred by imposing a sentence on count 4, having
weapons while under disability and the associated firearms specification. This Court agrees.
{¶20} The Ohio Supreme Court recognizes:
R.C. 2941.25 “codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and Section 10, Article I of the
Ohio Constitution, which prohibits multiple punishments for the same offense.”
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. At the heart of R.C.
2941.25 is the judicial doctrine of merger; merger is “the penal philosophy that a
major crime often includes as inherent therein the component elements of other
crimes and that these component elements, in legal effect, are merged in the major
crime.” State v. Botta, 27 Ohio St.2d 196, 201 (1971).
State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 13.
{¶21} The high court has explained the application of the merger doctrine as follows:
When a defendant has been found guilty of offenses that are allied offenses, R.C.
2941.25 prohibits the imposition of multiple sentences. State v. Whitfield, 124
Ohio St.3d 319, 2010-Ohio-2, ¶ 12. Therefore, a trial court must merge the
crimes into a single conviction and impose a sentence that is appropriate for the
offense chosen for sentencing. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-
4569, ¶ 41-43.
State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17.
{¶22} As an initial matter, this Court declines to consider the State’s argument that the
offenses of burglary and having weapons while under disability are not allied offenses of similar
import in this case. The State expressly asserted at the plea/sentencing hearing that the two
counts were allied offenses of similar import and that the State was electing to proceed to
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sentencing on the burglary count. The parties properly entered into a negotiated plea and the
agreement was stated on the record in open court. See Crim.R. 11(F). The State cannot now be
heard to attempt to modify the terms of that agreement.
{¶23} In this case, the trial court accepted Ross’ guilty plea and found him guilty of both
count 2 and count 4. Despite the parties’ agreement that the counts were allied offenses and the
State’s election to proceed to sentencing on count 2, the trial court imposed a sentence on both
count 2 and count 4 and ran those sentences concurrently. “The imposition of concurrent
sentences is not the equivalent of merging allied offenses.” Damron at ¶ 17. The trial court,
therefore, improperly imposed a sentence for having weapons while under disability and that
count’s attendant firearms specification. This matter must, therefore, be remanded to the trial
court for resentencing solely on the count elected by the State. Ross’ second and third
assignments of error are sustained.
ASSIGNMENT OF ERROR IV
IT WAS PLAIN ERROR FOR THE TRIAL COURT TO ASSERT
JURISDICTION OVER THE CASE, WHEN THE CHARGE WAS DISMISSED
IN THE MUNICIPAL COURT AFTER JOSHUA ROSS HAD BEEN
INCARCERATED FOR SEVENTEEN DAYS WITHOUT A PRELIMINARY
HEARING OVER HIS OBJECTION AND MOTION TO DISMISS WITH
PREJUDICE.
{¶24} Ross argues that the common pleas court did not have jurisdiction over this matter
because the charges had to be dismissed for failure of the municipal court to accord him a timely
preliminary hearing. This Court disagrees.
{¶25} R.C. 2945.73(A) provides that “[a] charge of felony shall be dismissed if the
accused is not accorded a preliminary hearing within the time required by sections 2945.71 and
2945.72 of the Revised Code.” Ross asserts that he was not accorded a preliminary hearing in
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the municipal court within the statutorily required timeframe. Accordingly, he argues that the
charges would have properly been discharged.
{¶26} The municipal court record is not before this Court for review. Accordingly, we
have no ability or authority to consider this argument on appeal. The record does however
contain the indictment. As we earlier recognized, Crim.R. 5(B) provides that no preliminary
hearing shall be held if the defendant is indicted. Based on the record before us, there is nothing
to indicate that the common pleas court was divested of jurisdiction to hear the criminal case
before it. Ross’ fourth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
JOSHUA ROSS SUFFERED INEFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF U.S. CONST. AMEND. VI, XIV, AND OHIO CONST. ART.
I, SEC. 10.
{¶27} Ross argues that his trial counsel was ineffective with regard to (1) sentencing
issues previously raised in this appeal, and (2) the failure to raise jurisdictional issues. This
Court disagrees.
{¶28} This Court uses a two-step process as set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984), to determine whether a defendant’s right to the effective assistance of
counsel has been violated.
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id.{¶29} Based on our resolution of Ross’ second and third assignments of error resulting
in remand to the trial court for resentencing, the majority of Ross’ argument is rendered moot.
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We, therefore, decline to address the issue of ineffective assistance of counsel with regard to the
assigned sentencing errors. See App.R. 12(A)(1)(c).
{¶30} Ross further argues that trial counsel was ineffective for failing to raise the issue
of the common pleas court’s jurisdiction to proceed with the case based on his lack of a
preliminary hearing in the municipal court. This Court reiterates that the record is devoid of
information relevant to the case, if any, before the municipal court. Therefore, we have no
knowledge of whether or not a preliminary hearing occurred. We further reiterate that Crim.R.
5(B) provides that no preliminary hearing shall be held if the defendant is indicted. Ross was
indicted on four felonies and four firearm specifications in this case. Accordingly, there was no
error in trial counsel’s failure to challenge the jurisdiction of the common pleas court on the basis
that the charges must be dismissed for failure to accord Ross a preliminary hearing. In the
absence of any error, we cannot conclude that trial counsel was ineffective. Ross’ sixth
assignment of error is overruled.
III.
{¶31} Ross’ first, fourth, fifth, and sixth assignments of error are overruled. His second
and third assignments of error are sustained. The judgment of the Wayne County Court of
Common Pleas is affirmed in part, reversed in part, and the cause remanded for resentencing
consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, 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.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
CONCURS.
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
CLARKE W. OWENS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.