State v. Kennell

[Cite as State v. Kennell, 2015-Ohio-4817.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2015-01-002
: OPINION
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:
SAMUEL T. KENNELL, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2013 CR 0084
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Samuel T. Kennell, #A695496, North Central Correctional Institution, P.O. Box 1812, Marion,
Ohio 43302, defendant-appellant, pro se
RINGLAND, J.
{¶ 1} Defendant-appellant, Samuel T. Kennell, appeals from his conviction in the
Clermont County Court of Common Pleas after he pled guilty to one count of kidnapping and
one count of attempted murder. For the reasons discussed below, we affirm.
{¶ 2} On February 6, 2013, appellant was indicted on one count of attempted murder
in violation of R.C. 2923.02(A), a first-degree felony, one count of felonious assault in
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violation of R.C. 2903.11(A)(1), a second-degree felony, one count of felonious assault in
violation of R.C. 2903.11(A)(2), a second-degree felony, and one count of kidnapping in
violation of R.C. 2905.01(B)(2), a second-degree felony.
{¶ 3} On September 11, 2013, appellant pled guilty to one count of attempted murder
and one count of kidnapping in exchange for the dismissal of the two counts of felonious
assault. Additionally, as a part of the plea agreement, appellant was informed the minimum
sentence he would receive would be seven years in prison and the maximum sentence he
would receive would be 13 years in prison, as opposed to a maximum sentence of 19 years
in prison.
{¶ 4} At the plea hearing, after a lengthy colloquy, appellant pled guilty to one count
of attempted murder and one count of kidnapping. Additionally, the bill of particulars was
stipulated to on the record and the state rendered additional facts. According to these facts,
appellant purposefully attempted to cause the death of another when appellant sat down next
to one victim, removed a knife, and then slit this victim's throat with the intention of killing him.
Thereafter, appellant restrained the liberty of a second victim when he placed a knife to her
throat and threatened to kill her.
{¶ 5} An initial sentencing hearing was scheduled for October 23, 2013. The court,
however, did not have sufficient time to review the presentence investigation report, and thus,
after discussing the presentence investigation report with appellant and his counsel and
hearing testimony from several of appellant's friends and relatives, the court continued the
hearing until November 7, 2013. At the November hearing, the court sentenced appellant to
an aggregate term of ten years in prison.
{¶ 6} On January 2, 2015, appellant filed a motion for a delayed appeal, which we
granted. Now on appeal, appellant asserts three assignments of error for review.
{¶ 7} Assignment of Error No. 1:
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{¶ 8} THE APPELLANT'S FIFTH AMENDMENT RIGHT FOR DUE PROCESS WAS
VIOLATED PURSUANT TO R.C. 2951.03(B)(2) AND CRIM.R. 32(A)(1) AND CONTRARY
TO UNITED STATES V. OSBORNE[,] 291 F.3D 908 [6TH CIR.2002], WHILE SENTENCING
THE APPELLANT WHEN THE COURT FAILED TO NOTE ON THE RECORD DURING THE
SENTENCING HEARING THAT THE APPELLANT AND TRIAL COUNSEL HAD READ AND
DISCUSSED THE PRESENTENCE INVESTIGATION REPORT BEFORE THE APPELLANT
WAS SENTENCED AND THE COURT PASSED OVER THE APPELLANT'S STATEMENT
OF FACTUAL INACCURACIES IN THE PRESENTENCE INVESTIGATION WITHOUT
MAKING ANY FINDINGS.
{¶ 9} In his first assignment of error, appellant argues the court erred by failing to ask
whether he had reviewed the presentence investigation report and by failing to make findings
regarding factual inaccuracies contained in the presentence investigation report. We
disagree.
{¶ 10} To support his argument, appellant relies on United States v. Osborne, 291
F.3d 908 (6th Cir.2002), a federal circuit court case that analyzes a sentencing court's
requirements regarding a presentence investigation report under Fed.R.Crim.P. 32. In this
instance, however, Fed.R.Crim.P. 32 is inapplicable. Rather, in Ohio, the sentencing court
must comply with R.C. 2951.03.
{¶ 11} Pursuant to R.C. 2951.03(B)(1), when a presentence investigation report is
prepared, the trial court "at a reasonable time before imposing sentence, shall permit the
defendant or the defendant's counsel to read the report * * * ." Further, R.C. 2951.03(B)(2)
provides:
Prior to sentencing, the court shall permit the defendant and the
defendant's counsel to comment on the presentence
investigation report and, in its discretion, may permit the
defendant and the defendant's counsel to introduce testimony or
other information that relates to any alleged factual inaccuracy
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contained in the report.
{¶ 12} This statute also addresses requisite findings regarding alleged factual
inaccuracies contained in a presentence investigation report. According to R.C.
2951.03(B)(5), if comments of the defendant or his counsel raise any factual inaccuracy in
the presentence investigation report, then the trial court shall do one of the following: "(a)
Make a finding as to the allegation; (b) Make a determination that no finding is necessary with
respect to the allegation, because the factual matter will not be taken into account in the
sentencing of the defendant." Compliance with R.C. 2951.03(B)(5) need not be explicit, and
a court's failure to make requisite findings pursuant to the statute is harmless if "the record
reflects that none of the trial court's findings or considerations would be affected in the least
by the alleged inaccuracies in the report." State v. Platz, 4th Dist. Washington No. 01CA33,
2002-Ohio-6149, ¶ 18; Crim.R. 52.
{¶ 13} At the hearing on October 23, 2013, appellant's attorney stated he reviewed the
presentence investigation report and discussed statements appellant made to the writer of
the presentence investigation report with appellant. Further, appellant's attorney stated that
"[appellant] accepts full responsibility for his transgressions, and he doesn't want to disturb
the - - the plea based on comments made to a - - the PSI writer." The court then asked
appellant whether the information as stated by his attorney was true, to which appellant
replied, "Yes." The court then stated, "Because your words are important, and I want to
make sure it's how you feel." Appellant replied, "It is."
{¶ 14} At the second hearing held on November 7, 2013, the following exchange took
place:
THE COURT: * * * You've reviewed the PSI, not that it's
changed from the last time, and I think I continued it because I
hadn't had enough time to digest it and then your memo was
fairly recent, and so we - - I've done all that. Is there anything
you want to add or subtract from the PSI?
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[DEFENDANT'S ATTORNEY]: No, Your Honor, thank you.
Also at the second hearing, the following exchange took place:
THE COURT: * * * here you are in the United States of America
over a woman acting out like this.
THE DEFENDANT: Can I say something?
THE COURT: Well, yeah. Yeah, I want you to say something.
This is your time.
THE DEFENDANT: It was over drugs not a female.
THE COURT: Okay. Over drugs then. Over drugs. I mean the
- - the report suggests otherwise. But even over drugs * * * .
{¶ 15} As evidenced in the record, appellant and his counsel reviewed the
presentence investigation report before the first sentencing hearing on October 23, 2013, and
also had time to review the report before the second hearing on November 7, 2013.
Additionally, the court questioned appellant and his counsel regarding the report at these
hearings. At the second hearing, appellant raised a factual inaccuracy contained in the
presentence investigation report. While the court indicated that the presentence investigation
report stated appellant's motivation for committing the crimes stemmed from jealously issues
over a woman, appellant contended he committed the crimes due to drug use. The court
conceded that the motivation may have been drugs, and thus implicitly made a finding
regarding the alleged factual inaccuracy. In any event, because appellant failed to show that
the court specifically relied on this supposed erroneous information, any failure by the court
to make such a finding was immaterial and amounts to harmless error. See Crim.R. 52.
Accordingly, appellant's first assignment of error is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT ERRED AND VIOLATED THE APPELLANT'S
FOURTEENTH AMENDMENT RIGHT OF DUE PROCESS WHEN IT FAILED TO HOLD AN
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ALLIED OFFENSE DETERMINATION HEARING PURSUANT TO STATE V. LONG, (1978)
53 OHIO ST.2D 91, 97 AND DETERMINE IF THERE WERE ALLIED OFFENSES.
{¶ 18} In his second assignment of error, appellant argues that the court erred by
failing to hold a hearing to determine whether attempted murder and kidnapping are allied
offenses of similar import. We disagree.
{¶ 19} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio
App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). Specifically, R.C. 2941.25 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.
{¶ 20} In order to determine which offenses are of dissimilar import that cannot be
merged, the Ohio Supreme Court recently clarified the test to employ in State v. Ruff, 143
Ohio St.3d 114, 2015-Ohio-995. When conducting the analysis, if any of the following are
true, a defendant may be convicted and sentenced for multiple offenses as the offenses
cannot merge: (1) the offenses are of dissimilar import with separate, identifiable harm, (2)
the offenses were separately committed, or (3) a separate animus or motivation was used to
commit the offenses. Id. at ¶ 25. Two or more offenses of dissimilar import exist "when the
defendant's conduct constitutes offenses involving separate victims or if the harm that results
from each offense is separate and identifiable." Id. at ¶ 23.
{¶ 21} In this instance, appellant pled guilty to one count of attempted murder and one
count of kidnapping. The attempted murder count and kidnapping count were committed
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against separate victims. At appellant's plea hearing, it was reiterated that appellant slit the
throat of a man and then held a woman at bay with a knife. As the counts included separate
victims, under the facts and circumstances of this case, kidnapping and attempted murder
are offenses of dissimilar import and cannot be merged. As such, appellant's second
assignment of error is overruled.
{¶ 22} Assignment of Error No. 3:
{¶ 23} THE APPELLANT'S SIXTH AMENDMENT RIGHT FOR EFFECTIVE
ASSISTANCE OF COUNSEL WAS VIOLATED PURSUANT TO STATE V. CHAMBERLIN,
[12TH DIST. NO. CA2013-04-004,] 2014-Ohio-4619[,] [ ] DUE TO TRIAL COUNSEL'S
CUMULATIVE ERRORS.
{¶ 24} In his third assignment of error, appellant sets forth 14 alleged errors committed
by his counsel at the trial court level. Appellant contends that these errors, construed
together, amounted to cumulative error that rendered his counsel's performance deficient
and resulted in prejudice. We disagree.
{¶ 25} To establish ineffective assistance of counsel, a defendant must show his trial
counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
With respect to deficiency, appellant must show his counsel's performance "fell below an
objective standard of reasonableness." Strickland at 688. There is a "strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance," and
as a result, "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689.
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691.
{¶ 26} When a plea is involved, a defendant is unable to claim he was "prejudiced by
ineffective assistance of counsel, except to the extent that such ineffective assistance made
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the plea less than knowing, intelligent, and voluntary." State v. McMahon, 12th Dist. Fayette
No. CA2009-06-008, 2010-Ohio-2055, ¶ 33. In other words, "[w]hen a criminal defendant
has admitted in open court that he is in fact guilty of the offense with which he is charged, he
may not thereafter raise independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea." State v. Pardon, 12th Dist. Warren No.
CA2000-10-090, 2001 WL 848242, *1 (July 30, 2001), citing Tollett v. Henderson, 411 U.S.
258, 267, 93 S.Ct. 1602 (1973).
{¶ 27} In felony cases, a court may not accept a guilty plea unless it complies with
Crim.R. 11(C)(2) by addressing a defendant personally and performing the following:
(a) 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.
(b) 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.
(c) 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 guilt
beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
{¶ 28} "In conducting this colloquy, the trial judge must convey accurate information to
the defendant so that the defendant can understand the consequences of his decision and
enter a valid plea." State v. Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, ¶
11. The court must verify the defendant understands the constitutional rights that he is
waiving under Crim.R. 11(C)(2)(c) and strictly comply with its requirements, or the plea is
invalid. State v. Shavers, 12th Dist. Butler No. CA2014-05-119, 2015-Ohio-1485, ¶ 11.
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However, substantial compliance is only required for a court to comply with the
nonconstitutional notification provisions contained in Crim.R. 11(C)(2)(a) and (b). Id. Under
the substantial compliance standard, the appellate court must review the totality of the
circumstances surrounding the defendant's plea and determine whether he subjectively
understood the effects of his plea. Givens at ¶ 12.
{¶ 29} When a court complies with Crim.R. 11(C)(2), there is a presumption that the
plea entered by a defendant was voluntary. State v. Richards, 12th Dist. Clermont No.
CA97-06-059, 1997 WL 779084, *3 (Dec. 15, 1997). A defendant then bears the burden of
rebutting this presumption by submitting supporting materials to indicate he is entitled to
relief. Id. A defendant's own self-serving declarations or affidavits are insufficient to rebut a
record that shows a plea was made voluntarily. State v. Kapper, 5 Ohio St.3d 36, 38 (1983).
{¶ 30} At the plea hearing the court engaged in a lengthy colloquy with appellant.
THE COURT: Did you read or have read to you the front and the
back of this written plea of guilty?
THE DEFENDANT: It was summarized for me, Your Honor.
***
THE COURT: All right. Do you have any questions about it?
THE DEFENDANT: No, Your Honor.
THE COURT: You understand that by pleading guilty to Count 1
and Count 4 as we discussed you're making complete
admissions of guilt that you committed those two offenses that
are in the indictment and Counts 2 and 3 get dismissed; do you
understand that?
THE DEFENDANT: Yes, I do, Your Honor.
{¶ 31} The court then discussed the sentencing options and the maximum sentencing
possibilities, including postrelease control. The court also detailed appellant's waiver of
constitutional rights:
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THE COURT: All right. Now, in addition to the rights we've just
gone over that you've acknowledged an understanding to, we're
going to go over your constitutional rights. You understand you
have the right to have a trial by jury of 12 people; all 12 people
must agree upon your guilt; do you understand those rights?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: And are you waiving those rights this morning in
order to enter these pleas?
THE DEFENDANT: Yes, I am, Your Honor.
THE COURT: You understand if we had a trial the prosecutor
must prove your guilt beyond a reasonable doubt on each
element of each crime for which you are charged; do you
understand that right?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: Now, are you waiving that right this morning?
THE DEFENDANT: Yes, I am, Your Honor.
THE COURT: Do you understand if we had a trial that Mr. Rubenstein, your
attorney, would have the right to question, confront, cross examine any
witnesses who had testified against you at trial; do you understand that right?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: And are you waving that right this morning?
THE DEFENDANT: Yes, I am, Your Honor.
THE COURT: Do you further understand that if we had a trial
Mr. Rubenstein could bring in witnesses that either he thought or
you thought could be helpful to you at trial; do you understand
that right?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: Are you waiving that right this morning?
THE DEFENDANT: Yes, I do.
THE COURT: You further understand you could not be forced to
testify against yourself at trial, and if you elected to stay silent
during the trial that silence could not be used against you in an
attempt to prove your guilt in this matter; do you under - - in
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these matters; do you understand those rights?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: And are you waiving those rights this morning?
THE DEFENDANT: Yes, I am.
THE COURT: Do you have any questions at this time?
THE DEFENDANT: No, I don't, Your honor.
The court then asked the following:
THE COURT: All right. And you've had enough time to think
about these decisions, Mr. Kennell; is that correct?
THE DEFENDANT: Yes, I have.
THE COURT: And it's your desire then to withdraw your
previous pleas of not guilty to Counts 1 and to Counts 4 and now
enter pleas of guilty to Counts 1 and Count 4; is that correct?
THE DEFENDANT: Yes, I do, Your Honor.
{¶ 32} In this instance, appellant does not dispute that the court complied with Crim.R.
11(C), and only four of his fourteen arguments relate to the voluntariness of his plea. First,
appellant asserts his plea was involuntary because his counsel failed to inform him that the
two counts of felonious assault were allied offenses of each other and lesser included
offenses of attempted murder. Second, appellant contends his counsel advised him he
would be making a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160(1970), meaning he would plead guilty while maintaining his innocence. Third, appellant
argues he was coerced by his counsel with threats of an excessive sentence. Fourth,
appellant argues he was under medication at the time of the plea, and despite his counsel's
knowledge, counsel allowed appellant to proceed with the plea. None of appellant's
arguments are supported by the record.
{¶ 33} The court engaged in an extensive colloquy with appellant. Appellant indicated
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at sentencing that he was satisfied with his counsel and stated he was taking responsibility
for Counts 1 and 4, which involved separate victims. At his plea hearing, appellant indicated
that no one pressured him to take the plea. When asked whether he was under the influence
of any medication that would affect his ability to make the decision to plea, he responded, "I
am not." While appellant attached exhibits of his medication regimen to his brief, these
exhibits were not before the court below and appellant failed to demonstrate that his trial
counsel was aware of the medication.
{¶ 34} As the court below complied with Crim.R. 11(C) and appellant failed to rebut the
presumption that his plea was voluntary, appellant was not deprived of effective assistance of
counsel. As such, appellant's third assignment of error is overruled.
{¶ 35} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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