State v. Kolvek

[Cite as State v. Kolvek, 2017-Ohio-9137.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 28141
28142
Appellee 28143
28144
v. 28145
ROBERT M. KOLVEK
Appellant APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. CR 2010 03 0633(A)
CR 2010 06 1617
CR 2010 10 2988(A)
CR 2015 04 1206(B)
CR 2015 05 1474(A)
DECISION AND JOURNAL ENTRY
Dated: December 20, 2017
HENSAL, Presiding Judge.
{¶1} Robert Kolvek appeals his convictions and sentences from the Summit County
Court of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} In April 2015, Akron police officers found materials and equipment used in the
manufacturing of methamphetamine during their search of two houses. After police connected
Mr. Kolvek to the locations, the Grand Jury indicted him for illegal manufacture of drugs, illegal
assembly or possession of chemicals for the manufacture of drugs, and aggravated possession of
drugs. A few days later, police arrested Mr. Kolvek after he and a woman attempted to purchase
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Sudafed from a store. Following his arrest, the Grand Jury indicted him for another count of
illegal assembly or possession of chemicals for the manufacture of drugs. The State also charged
Mr. Kolvek with violating the terms and conditions of the community control he received upon
being released early from prison in three prior cases.
{¶3} The indicted charges were consolidated for trial, and a jury found Mr. Kolvek
guilty of the offenses. In light of the jury’s verdicts, the trial court found that Mr. Kolvek
violated the terms and conditions of his community control. It, therefore, ordered him to serve
the remainder of his prison sentences in the prior cases. It also sentenced him to a total of 12
years imprisonment for the new offenses, which it ordered to run consecutively to his prior
sentences. Mr. Kolvek has appealed, assigning five errors.
II.
ASSIGNMENT OF ERROR I
MR. KOLVEK’S INDICTMENT IN CR 2015-04-1206(B) VIOLATED HIS
RIGHTS UNDER THE U.S. CONSTITUTION BECAUSE IT WAS
DUPLICITOUS, MERITING REVERSAL.
{¶4} Mr. Kolvek argues that the indictment that arose out of the search of the two
houses did not adequately inform him about what he would have to defend against at trial. He
notes that one of the searches occurred on Archwood Avenue and the other on Stanley Road.
The first count of the indictment, however, only accused him of manufacturing
methamphetamine in the presence of the children that live at the Archwood Avenue house. He,
therefore, thought that all of the counts arose out of the search of the Archwood Avenue house.
According to Mr. Kolvek, he did not learn that the State was also accusing him of committing
offenses at the Stanley Road house until trial was imminent.
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{¶5} “An indictment meets constitutional requirements if it first, contains the
elements of the offense charged and fairly informs a defendant of the charge against which he
must defend, and, second, enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” State v. Jackson, 134 Ohio St.3d 184, 2012-Ohio-5561, ¶
13, quoting State v. Childs, 88 Ohio St.3d 558, 565 (2000); see Crim. R.7(B). In addition, under
Revised Code Section 2941.03(D), an indictment must indicate that the offense “was committed
at some place within the jurisdiction of the court[.]” An indictment is not “required to list the
precise actions which constitute an offense.” State v. Brust, 4th Dist. Pike No. 95CA551, 1995
Ohio App. LEXIS 5681, *18 (Nov. 20, 1995) (concluding that indictment that included the
county of the offense was not defective for failing to include a place of occurrence).
{¶6} Mr. Kolvek has not alleged that the indictment failed to contain the elements of
each offense or that he is not protected from future prosecution for the same offenses. Each
count indicated that it occurred with Summit County, satisfying Section 2941.03(D).
Accordingly, upon review of the record, we reject Mr. Kolvek’s argument that the indictment
was defective because it did not indicate that the alleged offenses arose out of the searches of
both houses.1
{¶7} Mr. Kolvek also argues that the indictment was impermissibly duplicitous
because it charged multiple acts in the same count. According to Mr. Kolvek, because the
charges accused him of committing offenses at both the Stanley Road house and, separately, at
the Archwood Avenue house, the jury became confused about what evidence it could consider
for each charge.
1
We note that Mr. Kolvek did not request a bill of particulars, which would have
provided more information about the location or locations where each of the offenses allegedly
occurred. See Crim.R. 7(E).
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{¶8} “Duplicity in an indictment is the joinder of two or more separate offenses in a
single count.” State v. Abuhilwa, 9th Dist. Summit No. 16787, 1995 Ohio App. LEXIS 1260,
*14 (Mar. 29, 1995). “The prohibition against duplicity is geared to protect the accused’s Sixth
Amendment right to notice of the nature of the charge against him and prevent confusion as to
the basis of the verdict.” State v. Smith, 9th Dist. Summit No. 8869, 1978 Ohio App. LEXIS
8415 (Oct. 4, 1978); see generally Cooksey v. State, 752 A.2d 606, 609-618 (Md.App.2000).
The fact that an indictment is duplicitous, however, does not compel its dismissal. R.C.
2941.28(B). “Instead, the trial court may sever the indictment into separate indictments or
separate counts.” State v. Ward, 9th Dist. Lorain No. 09CA009720, 2011-Ohio-518, ¶ 5.
Alternatively, the court may give an instruction on unanimity to the jury. State v. Johnson, 46
Ohio St.3d 96, 104-105 (1989); State v. Miller, 9th Dist. Lorain Nos. 10CA009922,
10CA009915, 2012-Ohio-1263, ¶ 26.
{¶9} At trial, Mr. Kolvek moved to dismiss the indictment because it included offenses
allegedly committed at two different locations under the same charge. When the court denied his
motion, Mr. Kolvek did not request that the court sever the charge into two separate counts or
request an instruction on unanimity. Severing the charge or including a unanimity instruction
would have prevented juror confusion about what evidence it could consider for each offense and
would have avoided the possibility that the jury’s verdict would not be unanimous. See Crim.R.
31(A). Although Mr. Kolvek has not forfeited plain error regarding the court’s failure to sever
the charges or its failure to provide a unanimity instruction, he has not developed an argument in
his brief that the trial court committed plain error when it failed to sever the charges or instruct
the jury on unanimity. We decline to construct a plain error argument regarding those severance
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and jury-instruction issues on Mr. Kolvek’s behalf. Mr. Kolvek’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
KOLVEK’S SENTENCE IS INVALID, MERITING REMAND FOR A NEW
SENTENCING HEARING, BECAUSE THE TRIAL COURT SENTENCED
HIM FOR ALLIED OFFENSES OF SIMILAR IMPORT.
{¶10} Mr. Kolvek next argues that the trial court incorrectly failed to merge all of the
charges arising out of the searches of the houses on Archwood Avenue and Stanley Road for
sentencing purposes. At sentencing, the State conceded that the aggravated-possession-of-drugs
count should merge with the other counts. It argued that, because illegal manufacturing only
occurred at the Archwood Avenue house, but illegal assembling was alleged to have occurred at
both addresses, the conduct that supported the illegal-assembly count was distinct from the
illegal-manufacturing count and should not merge. In response to the State’s argument, Mr.
Kolvek agreed that the aggravated-possession count should merge with the other offenses. Upon
review, the trial court merged the aggravated-possession count with the illegal-manufacturing
count, but sentenced Mr. Kolvek separately for the illegal-assembly count.
{¶11} Revised Code Section 2941.25 “is the primary indication of the General
Assembly’s intent to prohibit or allow multiple punishments for two or more offenses resulting
from the same conduct” and is “an attempt to codify the judicial doctrine of merger[.]” State v.
Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 11. It provides:
(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
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indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
R.C. 2941.25. In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Ohio Supreme Court
interpreted Section 2941.25(B), explaining:
Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses
may be convicted of all the offenses if any one of the following are true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows that the offenses
were committed with separate animus.
Id. at paragraph three of the syllabus. It also explained that offenses are of dissimilar import
under Section 2941.25(B) if they involved “separate victims or if the harm that results from each
offense is separate and identifiable.” Id. at paragraph two of the syllabus.
{¶12} Mr. Kolvek concedes that, because he did not argue that the illegal-assembly
count that arose out of the search of the two houses should merge with the illegal-manufacturing
count that arose out of the search of the Archwood Avenue house, he is limited to arguing plain
error on appeal. Under a plain error review, any mistake by the trial court regarding allied
offenses “is not reversible error unless it affected the outcome of the proceeding and reversal is
necessary to correct a manifest miscarriage of justice.” State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, ¶ 3. Mr. Kolvek “has the burden to demonstrate a reasonable probability that
[his] convictions are for allied offenses of similar import committed with the same conduct and
without a separate animus[.]” Id. But see State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶
67 (explaining that, to constitute plain error, “[t]he alleged error must have ‘substantially
affected the outcome of the trial,’ such that ‘but for the error, the outcome of the trial clearly
would have been otherwise[.]’”), quoting State v. Slagle, 65 Ohio St.3d 597, 605 (1992); State v.
Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus.
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{¶13} Mr. Kolvek argues that, because the illegal-assembly count encompassed the
activities that occurred at both addresses, it is impossible to know whether the jury found him
guilty of illegal assembly for the same conduct that supported the illegal-manufacturing count or
because of the conduct that was alleged to have occurred at the Stanley Road house. Because it
cannot be determined from the record which evidence the jury relied on, he argues that there is a
reasonable probability that the jury found that the offenses were committed with the same
conduct and same animus.
{¶14} In his brief, Mr. Kolvek notes that police found material and apparatus used in the
manufacturing of methamphetamine at the Stanley Road house, including empty blister packs
and boxes of Sudafed cold medication, empty solvent cans, tubing, a funnel, white plastic
containers, naphta, and batteries that had been opened and stripped of their lithium. He has not
argued that there was insufficient evidence to find him guilty of committing illegal assembly or
possession of chemicals for the manufacture of drugs in connection with the Stanley Road house.
He also does not challenge the proposition that, if the jury found that such activity occurred at
the Stanley Road house, it would constitute separate conduct under Section 2941.25(B) from the
illegal activity that occurred at the Archwood Avenue house.
{¶15} Because the evidence supports a finding that Mr. Kolvek committed illegal
assembly at the Stanley Road house, we cannot say that there is a “reasonable probability” that
his convictions for counts one and two were committed with the same conduct and without a
separate animus. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, at ¶ 3. Mr. Kolvek, therefore,
has failed to establish that it was plain error for the trial court to sentence him for both offenses
or that reversal of his sentence is necessary to correct a manifest miscarriage of justice. Mr.
Kolvek’s second assignment of error is overruled.
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ASSIGNMENT OF ERROR III
MR. KOLVEK’S DUE PROCESS RIGHTS WERE ABROGATED BY THE
IMPROPER JOINDER OF THE APRIL 2015 AND MAY 2015 INDICTMENTS
FOR TRIAL, MERITING REVERSAL.
{¶16} Mr. Kolvek next argues that the trial court incorrectly consolidated for trial the
indictment arising out of the search of the two houses with the indictment arising out of his
attempted purchase of Sudafed a few days later. According to Mr. Kolvek, the acts were not part
of a common scheme or plan and their consolidation prejudiced him. Specifically, he notes that
there was only circumstantial evidence tying him to the two methamphetamine labs. When he
was arrested in connection with his attempted purchase of Sudafed, however, there were
packages of the drug, which contains an ingredient used in the manufacturing of
methamphetamine, near him in the vehicle. Mr. Kolvek’s prejudice argument appears to be that,
because he had Sudafed near him when he was arrested and he was planning on trading that
Sudafed for methamphetamine, it made it more likely that the jury would believe the
circumstantial evidence connecting him to the methamphetamine labs that were discovered at the
Archwood Avenue and Stanley Road houses. He concedes that, because he did not move to
sever the trial of his cases, this Court’s review is for plain error.
{¶17} “The law favors joinder.” State v. Carr, 9th Dist. Summit No. 26661, 2014-Ohio-
806, ¶ 7. Notwithstanding that policy, Criminal Rule 14 provides that, “[i]f it appears that a
defendant * * * is prejudiced by a joinder of offenses * * *, the court shall order an election or
separate trial of [the] counts * * *.” To prevail on a claim that the trial court erred in denying a
motion to sever, the defendant normally “has the burden of demonstrating three facts.” State v.
Schaim, 65 Ohio St.3d 51, 59 (1992).
He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at
the time of the motion to sever he provided the trial court with sufficient
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information so that it could weigh the considerations favoring joinder against the
defendant’s right to a fair trial, and (3) that given the information provided to the
court, it abused its discretion in refusing to separate the charges for trial.
Id. “If a defendant did not file a Crim.R. 14 motion in the trial court, however, we review claims
of prejudicial joinder for plain error.” State v. Spaulding, __ Ohio St.3d __, 2016-Ohio-8126, ¶
64. “To prevail under this standard, the defendant must establish that an error occurred, it was
obvious, and it affected his or her substantial rights.” Id. In addition, an appellate court will take
notice of the error “with the utmost caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice.” Id., quoting Long, 53 Ohio St.2d 91, paragraph three of the
syllabus.
{¶18} The State can overcome a defendant’s claim that he was prejudiced by the joinder
of offenses by showing that it could have introduced evidence of the joined offenses as “other
acts” evidence under Evidence Rule 404(B). Id. at ¶ 62. It can also overcome a claim of
prejudice if the evidence of each crime was simple and direct, such that “the jury is believed
capable of segregating the proof on each charge.” State v. Roberts, 62 Ohio St.2d 170, 175
(1980).
{¶19} Upon review of the record, we conclude that Mr. Kolvek was not prejudiced by
the joinder of the indictments because the evidence of the two incidents was simple and direct.
As the State notes, the evidence pertaining to the search of the two houses involved different
dates, locations, and witnesses. Any prejudice to Mr. Kolvek was not so obvious as to constitute
plain error that this Court must notice to prevent a manifest miscarriage of justice. Mr. Kolvek’s
third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ANNOUNCED A DIFFERENT SENTENCE IN ITS
JOURNAL ENTRIES IN KOLVEK’S 2010 CASES THAN IT DID DURING
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HIS SENTENCING HEARING, VIOLATING HIS RIGHT TO DUE PROCESS
AND MANDATING REVERSAL FOR A NEW SENTENCING HEARING.
{¶20} Mr. Kolvek also argues that the trial court incorrectly sentenced him for his
community control violations. According to Mr. Kolvek, the sentence that the trial court
announced at his sentencing hearing is different than the one that it wrote in its journal entries.
He notes that, at the sentencing hearing, the court told Mr. Kolvek that, for his violations of
community control, he would be required “to serve whatever may remain of the time previously
imposed[.]” According to Mr. Kolvek, because he had already served about two and a half years
of those prison terms, he had about four years remaining. In its sentencing entry, however, the
court re-imposed the entire sentence that the court originally imposed, which, according to Mr.
Kolvek, will require him to serve another six years for the prior offenses.
{¶21} When a court grants a motion for judicial release, it reserves the “right to
reimpose the sentence that it reduced if the offender violates the sanction.” R.C. 2929.20(K).
That language has been construed strictly, such that it is “error for a trial court, after revoking
judicial release, to impose a greater or lesser sentence than the original sentence.” State v.
Thompson, 3d Dist. Crawford Nos. 3-16-01, 3-16-12, 2016-Ohio-8401, ¶ 13. Although Mr.
Kolvek is entitled to credit for the time he already served for those offenses, the trial court acted
in accordance with Section 2929.20(K) when it reimposed the same sentences for his prior
offenses. See State v. Wiley, 148 Ohio App.3d 82, 84 (9th Dist. 2002). The trial court’s
statement at the sentencing hearing that Mr. Kolvek would serve the remainder of his time for his
prior offenses, in other words, the original terms less time served, is not inconsistent with the
language in the court’s sentencing entries. Mr. Kolvek’s fourth assignment of error is overruled.
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ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING A
VAGUE RESTITUTION ORDER UPON KOLVEK WITHOUT PREVIOUSLY
HOLDING A HEARING, REQUIRING REMAND FOR RESENTENCING.
{¶22} Mr. Kolvek’s final argument is that the trial court failed to determine the amount
of victim restitution he should pay and failed to determine whether he had the ability to pay the
amount. At oral argument, however, Mr. Kolvek conceded that his argument is foreclosed by
this Court’s decision in State v. Moreland, 9th Dist. Summit No. 27910, 2016-Ohio-7588. In
light of his concession, Mr. Kolvek’s fifth assignment of error is overruled.
III.
{¶23} Mr. Kolvek’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CALLAHAN, J.
CONCURS.
CARR, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶24} I concur in judgment only with respect to the first assignment of error. At the
heart of Kolvek’s first assignment of error is his assertion that the indictment was duplicitous.
“Pursuant to Crim.R. 12(C)(2), objections based on defects in the indictment must be raised prior
to trial.” State v. Ward, 9th Dist. Lorain No. 09CA009720, 2011-Ohio-518, ¶ 7. Like the
circumstances this Court confronted in Ward, Kolvek did not request a bill of particulars in this
case, nor did he raise a duplicity challenge to the indictment prior to trial. See id. Thus, Kolvek
forfeited the issue. While Crim.R. 12(H) provides that a trial court may grant relief from
forfeiture for good cause shown, this Court has held that a trial court’s failure to do so will be
reviewed under a plain error standard of review. Ward at ¶ 7, citing State v. Noling, 98 Ohio
St.3d 44, 2002-Ohio-7044, ¶ 61-62. Here, Kolvek has not demonstrated that the result below
would have been different but for the alleged error. See Crim.R. 52(B).
{¶25} I respectfully dissent with respect to the fourth assignment of error. Upon review
of the record, it is apparent that at the time the trial court initially sentenced Kolvek in 2010, it
ordered all of the sentences to run consecutively. As noted by the majority, when a trial court re-
imposes sentences after revoking judicial release, it should order the same sentences that were
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originally imposed. See State v. Thompson, 3d Dist. Crawford Nos. 3-16-01, 3-16-12, 2016-
Ohio-8401, ¶ 13. Though the trial court was required to run Kolvek’s sentences consecutive to
each other, it appears the trial court ordered that Kolvek’s sentences in CR 2010 06 1617 and CR
2010 06 1617 be served concurrently with each other and consecutive to the other sentences.
While Kolvek did not raise this specific issue in his appellate brief, he did raise a challenge to the
sentence imposed by the trial court in his fourth assignment of error. I would reverse and
remand for the trial court to correct this error.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.