State v. Starr ( 2016 )

[Cite as State v. Starr, 2016-Ohio-8179.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 16-COA-019
MARK M. STARR :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 15-CRI-
027
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 9, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EMILY BATES RUTH FISCHBEIN-COHEN
CHRISTOPHER TUNNELL 3552 Severn Road #613
110 Cottage Street Cleveland, OH 44118
Third Floor
Ashland, OH 44805
Ashland County, Case No. 16-COA-019 2
Gwin, P.J.
{¶1} Appellant Mark Starr [“Starr”] appeals his conviction and sentence after a
negotiated guilty plea in the Ashland County Court of Common Pleas.
Facts and Procedural History
{¶2} Starr sold heroin to an undercover police officer. Seated in the back seat
of Starr’s car was his infant child. Starr was indicted on one count of trafficking in heroin
in the vicinity of a juvenile [F3]; one count of possession of marihuana [MM]; one count of
endangering children [M1] and one count of possession of criminal tools [F5].
{¶3} In exchange for his plea of guilty to the trafficking count and the child
endangerment count the state dismissed the marihuana count and the criminal tools
count.
{¶4} On May 2, 2016, the trial court sentenced Starr to 18 months in prison on
the trafficking count; 120 days in jail on the child endangerment count, concurrent. The
sentences were ordered to be served consecutively to a sentence Starr was serving out
of the Richland County Court of Common Pleas.
Assignments of Error
{¶5} Starr raises three assignments of error,
{¶6} “I. THE COURT ERRED IN SENTENCING MARK STARR SEPARATELY
FOR TRAFFICKING IN HEROIN AND SEPARATELY FOR CHILD ENDANGERING.
{¶7} “II. MARK STARR'S DUE PROCESS WAS VIOLATED WHEN HE MADE
HIS PLEA OF GUILTY NOT KNOWINGLY AND NOT INTELLIGENTLY.
{¶8} “III. THE COURT ERRED IN SENTENCING MARK STARR ABSENT
MAKING STATUTORY FINDINGS.”
Ashland County, Case No. 16-COA-019 3
I.
{¶9} Starr argues that his right to be free from double jeopardy was violated when
the trial court sentenced him separately for the offense of trafficking in the vicinity of a
juvenile and child endangerment. Specifically, Starr contends that because the trafficking
charge was elevated from a fourth degree felony to a third degree felony due to the
presence of his child in the car, he has already been punished for the child’s presence
and he cannot be punished a second time via the child endangerment charge. Starr
contends the charges are allied offenses and should have merged for sentencing.
{¶10} In this case, Starr failed to object to his sentences in the trial court. In State
v. Rogers, the Ohio Supreme Court recently examined a case where the defendant was
convicted of multiple offenses pursuant to a guilty plea. State v. Rogers, 143 Ohio St.3d
385, 2015–Ohio–2459, 38 N.E.3d 860. The defendant appealed and argued for the first
time on appeal that some of the convictions should have merged for sentencing. Id. at ¶
11. The matter was certified as a conflict and presented to the Ohio Supreme Court. In
making its decision, the Court clarified the difference between waiver and forfeiture as it
pertains to allied offenses. Id. at ¶ 19–21. The Court rejected the argument that by
entering a guilty plea to offenses that could be construed to be two or more allied offenses
of similar import, the accused waives the protection against multiple punishments under
R.C. 2941.25. Id. at ¶ 19. The Court held that an accused’s failure to seek the merger
of his or her convictions as allied offenses of similar import in the trial court, the accused
forfeits his or her allied offenses claim for appellate review. Id. at ¶ 21. “[F]orfeiture is
the failure to timely assert a right or object to an error, and * * * ‘it is a well-established
rule that “an appellate court will not consider any error which counsel for a party
Ashland County, Case No. 16-COA-019 4
complaining of the trial court’s judgment could have called but did not call to the trial
court’s attention at a time when such error could have been avoided or corrected by the
trial court.” Rodgers at ¶ 21.
{¶11} The accused may raise a forfeited claim on appeal through Crim.R. 52(B).
Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” The Court held in
Rogers:
An accused’s failure to raise the issue of allied offenses of similar
import in the trial court forfeits all but plain error, and a forfeited error is not
reversible error unless it affected the outcome of the proceeding and
reversal is necessary to correct a manifest miscarriage of justice.
Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus; absent
that showing, the accused cannot demonstrate that the trial court’s failure
to inquire whether the convictions merge for purposes of sentencing was
plain error.
143 Ohio St.3d 385, 2015–Ohio–2459, ¶ 3; Accord, State v. Williams, Oh.Sup.Ct.
No. 2015-1478, 2016-Ohio-7658, 2016 WL 6646162(Nov. 10, 2016), ¶25.
{¶12} The Court in Rogers reaffirmed that even if an accused shows the trial court
committed plain error affecting the outcome of the proceeding, the appellate court is not
required to correct it. Id. at ¶ 23. The Supreme Court stated:
Ashland County, Case No. 16-COA-019 5
[W]e have “admonish[ed] courts to notice plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’” (Emphasis added.) Barnes at 27, 94 Ohio St.3d 21,
759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.
Rogers at ¶ 23.
{¶13} R.C. 2941.25, Multiple counts states:
(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.
{¶14} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the
Ohio Supreme Court revised its allied-offense jurisprudence,
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate three
separate factors-the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
Ashland County, Case No. 16-COA-019 6
involving separate victims or if the harm that results from each offense is
separate and identifiable.
Ruff, at syllabus. The Court further explained,
A trial court and the reviewing court on appeal when considering
whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant.
In other words, how were the offenses committed? If any of the following is
true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses: (1) the offenses are dissimilar in import or
significance—in other words, each offense caused separate, identifiable
harm, (2) the offenses were committed separately, and (3) the offenses
were committed with separate animus or motivation.
***
An affirmative answer to any of the above will permit separate
convictions. The conduct, the animus, and the import must all be
considered.
R.C. 2925.03 (A) provides:
{¶15} (A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
***
(C) Whoever violates division (A) of this section is guilty of one of the
following:
Ashland County, Case No. 16-COA-019 7
(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II, with the
exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled
substance analogs, whoever violates division (A) of this section is guilty of
aggravated trafficking in drugs. The penalty for the offense shall be
determined as follows:
***
b) Except as otherwise provided in division (C)(1)(c), (d), (e), or (f) of
this section, if the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, aggravated trafficking in drugs is a felony of the third
degree, and division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
{¶16} R.C. 2919.22 Endangering Children provides,
(A) No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen years
of age or a mentally or physically handicapped child under twenty-one years
of age, shall create a substantial risk to the health or safety of the child, by
violating a duty of care, protection, or support. It is not a violation of a duty
of care, protection, or support under this division when the parent, guardian,
custodian, or person having custody or control of a child treats the physical
or mental illness or defect of the child by spiritual means through prayer
alone, in accordance with the tenets of a recognized religious body.
Ashland County, Case No. 16-COA-019 8
{¶17} Relative to the case at bar, endangering children requires that Starr be the
parent of the child and that he, as a parent, create a substantial risk to the health or safety
of the child, by violating a duty of care, protection, or support. Trafficking in heroin does
not require the offender be the parent, guardian or custodian of the child. For example,
if the offender sells heroin on the street corner and a child who is a stranger to the offender
is standing on the opposite street corner, the offender can be convicted of trafficking in
the vicinity of a juvenile; however the offender cannot be convicted of child endangering.
{¶18} In this case, Starr violated a duty of care, protection, or support by placing
the child in the car with the intent to sell heroin. Starr created a substantial risk to the
health or safety of the child by placing the child into the car and driving to a location to
make a drug deal.
{¶19} Pursuant to Rodgers, it is Starr’s burden to demonstrate a reasonable
probability that his convictions were for allied offenses of similar import committed with
the same conduct and without a separate animus. Because the elements of child
endangerment and trafficking in heroin in the vicinity of a juvenile in this case demonstrate
different elements, we find that Starr has failed to demonstrate any probability that he was
convicted of allied offenses of similar import committed with the same conduct and the
same animus. Thus, Starr’s double jeopardy rights were not violated by the trial court’s
sentence.
{¶20} Starr’s first assignment of error is overruled.
Ashland County, Case No. 16-COA-019 9
II.
{¶21} In his second assignment of error, Starr argues that his plea was not
knowing, intelligent and voluntary. Specifically, Starr contends that the trial court did not
insure the he “knew and understood” his rights.
{¶22} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d
115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.
Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme
Court noted the following test for determining substantial compliance with Crim.R. 11:
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 non-constitutional
rights will not invalidate a plea unless the defendant thereby suffered
prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.
The test for prejudice is ‘whether the plea would have otherwise been
made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant’s] plea and determine
whether he subjectively understood [the effect of his plea]. See, State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.
{¶23} It is also well established that a defendant need not have a complete or
technical understanding of each constitutional rights, such as the jury trial right, in order
Ashland County, Case No. 16-COA-019 10
to knowingly and intelligently waive it. State v. Bays, 87 Ohio St.3d 15, 20, 716 N.E.2d
1126 (1999). In State v. Jells, the Ohio Supreme Court held:
There is no requirement in Ohio for the trial court to interrogate a
defendant in order to determine whether he or she is fully apprised of the
right to a jury trial. The Criminal Rules and the Revised Code are satisfied
by a written waiver, signed by the defendant, filed with the court, and made
in open court, after arraignment and opportunity to consult with counsel.
53 Ohio St.3d 22, 25–26, 559 N.E.2d 464(1990). This test applies to other constitutional
rights as well. See, State v. Truitt, 10th Dist. Franklin No. 10AP-795, 2011-Ohio-2271(jury trial and right to remain silent); State v. Ballard, 6th Dist. Lucas No. L-04-1070, L-05-
1027, 2006-Ohio-1863 (right to compel attendance of witnesses).
{¶24} Further, evidence of a written waiver form signed by the accused is strong
proof that the waiver was valid. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844,
854(1988); see North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758-
1759, 60 L.Ed.2d 286, 293(1979); State v. Dennis, 79 Ohio St.3d 421, 425, 1997-Ohio-
372, 683 N.E.2d 1096, 1102(1997).
{¶25} In the case at bar, Starr was represented by counsel. A written plea of guilty
form signed by Starr, defense counsel, the prosecutor and the trial judge was filed on
December 30, 2015. A written waiver of constitutional rights is presumed to have been
voluntary, knowing, and intelligent. State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938,
826 N.E.2d 266, ¶25. Further, the trial court conducted a lengthy inquiry concerning each
of Starr’s constitutional rights during the change of plea hearing on December 30, 2015.
{¶26} We reviewed the transcript of the hearing at which the trial court conducted
Ashland County, Case No. 16-COA-019 11
the plea colloquy required by Crim.R. 11 and determined that the court substantially
complied with Crim.R. 11(C)(2)(a) and (b) and strictly complied with Crim.R. 11(C)(2)(c).
{¶27} We further note in the case at bar that, Starr through counsel, filed a motion
to withdraw his guilty plea with the trial court before sentencing on February 19, 2016.
The reasons asserted in the motion were that Starr wanted to proceed with a jury trial on
the charges and he desired to preserve a speedy trial argument for appeal. The court
scheduled a hearing on the motion for May 1, 2016 by Judgment Entry filed April 4, 2016.
On April 20, 2016, Starr through counsel filed a written motion to withdraw his motion. By
Judgment Entry filed April 29, 2016, the trial court granted Starr’s motion to withdraw his
previously filed motion to withdraw his guilty plea. Clearly, Starr had an understanding of
his constitutional rights.
{¶28} Starr’s second assignment of error is overruled.
III.
{¶29} In his third assignment of error, Starr argues the trial court failed to set forth
the R.C. 2929.12 sentencing factors that it considered when sentencing Starr in the case
at bar.
{¶30} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.
We now review felony sentences using the standard of review set forth in R.C. 2953.08.
State v. Marcum, __Ohio St.3d__, 2016–Ohio–1002, __N.E.3d ___, ¶22; State v. Howell,
5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 2953.08(G)(2) provides
we may either increase, reduce, modify, or vacate a sentence and remand for
resentencing where we clearly and convincingly find that either the record does not
Ashland County, Case No. 16-COA-019 12
support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or
(C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v.
Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.
{¶31} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
{¶32} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the
court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have
full discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.
{¶33} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
Ashland County, Case No. 16-COA-019 13
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,
see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.
Firouzmandi supra at ¶ 29.
{¶34} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,
4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are
still required to consider the general guidance factors in their sentencing decisions.
{¶35} There is no requirement in R.C. 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State
v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the
decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its
findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.
Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to
address each R.C. 2929.12 factor individually and make a finding as to whether it was
applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19
(“... R.C. 2929.12 does not require specific language or specific findings on the record in
order to show that the trial court considered the applicable seriousness and recidivism
factors”). (Citations omitted).
{¶36} Prior to sentencing, the trial court stated that it had considered the purposes
and principles of sentencing [R.C. 2929.11] as well as the factors that the court must
consider when determining an appropriate sentence. [R.C. 2929.12]. The trial court has
Ashland County, Case No. 16-COA-019 14
no obligation to state reasons to support its findings. Nor is it required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry. The record contains the
statements of counsel, Starr’s allocution and the pre-sentence investigation report.
{¶37} Starr was sentenced for a felony of the third degree. The sentencing range
for a third degree felony is nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
R.C. 2929.14(A)(3)(b). Starr was given a sentence of eighteen months, which is within
the statutory range.
{¶38} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Furthermore, the record reflects that the trial court
considered the purposes and principles of sentencing and the seriousness and recidivism
factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and
advised Starr regarding post release control.
{¶39} We find the trial court properly considered the purposes and principles of
sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.
2929.12, along with all other relevant factors and circumstances. While Starr may
disagree with the weight given to these factors by the trial judge, Starr’s sentence was
within the applicable statutory range for a felony of the third degree and therefore, we
have no basis for concluding that it is contrary to law.
{¶40} Smith’s third assignment of error is overruled.
Ashland County, Case No. 16-COA-019 15
{¶41} The judgment of the Ashland County Court of Common Pleas, Ashland
County, Ohio is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur