State v. Harless

[Cite as State v. Harless, 2022-Ohio-4475.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 21AP-415
(C.P.C. No. 19CR-0970)
v. :
(REGULAR CALENDAR)
Warren Harless, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 13, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond for appellee. Argued: Kimberly M. Bond.
On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex for appellant. Argued: Robert D. Essex.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Defendant-appellant, Warren Harless, appeals from a judgment of the
Franklin County Court of Common Pleas where appellant argues that the trial court
committed plain error by the failure to merge the offenses of breaking and entering, and
theft for the purposes of sentencing. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 17, 2017, appellant smashed the front door window of a convenience
store with a brick and went into the store and stole cigarettes valued at $4,000. The
incident was captured on video. The owner noticed a bloodstain and a DNA sample was
collected. The DNA sample was a match which identified appellant as the perpetrator.
Appellant was arrested in January 2019.
No. 21AP-415 2
{¶ 3} On February 25, 2019, appellant was indicted for one count of breaking and
entering in violation of R.C. 2911.13, and one count of theft in violation of R.C. 2913.02,
both fifth degree felony offenses. On June 27, 2019, appellant pleaded guilty to the
indictment, and was sentenced directly to a joint recommended two-year term of
community control with payment of restitution of $4,000. After the imposition of
community control, appellant was notified that "if Defendant violates Community Control
* * * defendant will receive a prison term of eight (8) months as to Count One, and eight (8)
months as to Count Two, to be served consecutively to each other, for a total of sixteen (16)
months." (June 27, 2019 Jgmt. Entry at 2.) No objections were made at the time of plea or
sentencing for failure to merge allied offenses. Appellant failed to appeal the sentence.
{¶ 4} On February 13, 2020, appellant was declared an absconder and a capias
issued for his arrest. On April 6, 2020, appellant was arrested and charged with breaking
and entering (F5), obstruction of official business (M1), failure to confine a dog (M1),
obstruction of justice (F5), and possessing criminal tools (F5) in Miami County. Appellant
also had a Ross County warrant for breaking and entering.
{¶ 5} On May 7, 2020, appellant was restored to community control and placed on
house arrest. Shortly after the electronic monitoring equipment was connected, appellant
cut off his ankle monitor. On May 20, 2020, appellant was again declared an absconder
and a capias issued. Appellant was arrested on June 14, 2021.
{¶ 6} On July 30, 2021, community control was revoked and appellant was
sentenced to six months on each charge, to be served consecutive to each other. Appellant
brings this appeal.
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant assigns the following as trial court error:
The trial court erred and committed plain error in failing to
merge Mr. Harless's convictions at sentencing in violation of
R.C. 2941.25, the Fifth and Fourteenth Amendments to the
United States Constitution, and Article I, Sections 10 and 16 of
the Ohio Constitution.
III. LEGAL ANALYSIS
{¶ 8} Appellant challenges the sentence imposed by the trial court, alleging that the
offenses are allied offenses of similar import that merge under R.C. 2941.25. According to
No. 21AP-415 3
appellant, he can only be sentenced for theft or breaking and entering, but not both. The
appeal does not challenge the conviction, only the sentence. The state focuses on invited
error, stating that appellant requested 12 months and that is what he got, and argues
appellant waived or forfeited his right to challenge the non-merger.
{¶ 9} Appellant did not object or assert any right in the trial court, so plain error
applies. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459. A defendant who pleads
guilty to two or more offenses that could be allied does not waive his R.C. 2941.25 protection
but rather forfeits his allied offenses claim for appellate review. Id. A defendant may raise
a forfeited claim on appeal through Crim.R. 52(B), plain errors affecting substantial rights.
However, the appellate court is not required to correct plain error. Id."Notice of plain error * * * is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice." State v. D.H., 10th
Dist. No. 16AP-501, 2018-Ohio-559, ¶ 45. "For a court to notice plain error, the error must
be an obvious defect in a trial's proceedings, it must have affected substantial rights, and it
must have affected the outcome of the trial." State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-
2470, ¶ 30.
{¶ 10} Even if an error satisfies these three requirements, "Crim.R. 52(B) states only
that a reviewing court 'may' notice plain forfeited errors; a court is not obliged to correct
them." State v. Barnes, 94 Ohio St.3d 21, 27 (2002). "[U]nless a defendant shows, based
on the record, a reasonable probability that his convictions are for allied offenses of similar
import committed with the same conduct and without a separate animus, he cannot
demonstrate that the trial court's failure to inquire whether the convictions merged for
sentencing was plain error." State v. Hilliard, 8th Dist. No. 102214, 2015-Ohio-3142, ¶ 27.
{¶ 11} "Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or claimed lack of due
process that 'was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment.' " (Quotations
and citations omitted.) State v. Chapin, 10th Dist. No. 14AP-1003, 2015-Ohio-3013, ¶ 7.
Further, "[i]t is well-settled that, 'pursuant to res judicata, a defendant cannot raise an issue
in a [petition] for post-conviction relief if he or she could have raised the issue on direct
No. 21AP-415 4
appeal.' " (Quotations and citations omitted.) State v. Elmore, 5th Dist. No. 2005-CA-32,
2005-Ohio-5940, ¶ 21. Concerning Davic's case, res judicata applies to all the sentences
which were not void at the time of the initial appeal. State v. Davic, 10th Dist. No. 15AP-
1000, 2016-Ohio-4883.
{¶ 12} When a defendant's conduct constitutes a single offense, the defendant may
only be convicted and sentenced for that offense. State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, ¶ 24. A test was created whereby courts must ask three questions when a
defendant's conduct supports multiple offenses: (1) were the offenses dissimilar in import
or significance? (2) were they committed separately? And (3) were they committed with
separate animus of motivation? Id. at ¶ 31. If the answer is yes to any question, the
defendant may be convicted of all the offenses separately. Id.
{¶ 13} In Rogers, the Supreme Court of Ohio recently examined a case where the
defendant was convicted of multiple offenses pursuant to a guilty plea. The defendant
appealed and argued for the first time on appeal that some of the convictions should have
merged for sentencing. Rogers at ¶ 11. The matter was certified as a conflict and
presented to the 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
* * * '[i]t is a well-established rule that "an appellate court will not consider any error
which counsel for a party 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." ' " Id.
{¶ 14} Most cases allow convictions for both breaking and entering, and theft, and
do not require the offenses to merge. It is not one continuous course of conduct, and
appellant offered no authority regarding if motive has any impact on the analysis.
"Ultimately, if the harm resulting from each offense is separate and identifiable, the
No. 21AP-415 5
offenses are of dissimilar import and do not merge." State v. McKnight, 10th Dist. No.
20AP-595, 2022-Ohio-591, ¶ 34. In this matter, the harm from breaking the glass is
different from the harm caused by stealing cigarettes.
{¶ 15} In the case of State v. Harless, 5th Dist. No. 14-COA-034, 2015-Ohio-4753,
the current appellant was convicted of complicity to breaking and entering, and theft. The
appellate court reviewed Harless under the standard of plain error as appellant failed to
object at sentencing to the trial court's failure to merge the offenses, and found that
appellant forfeited the right to merger of what were presumed to be allied offenses when he
failed to timely assert or object to the trial court's failure to merge the sentences. The court
found that the conduct for breaking and entering, and theft were separate and distinct acts
and resulted in separate and identifiable harm. In the instant case currently under review,
appellant failed to object to the consecutive sentence in the trial court, again leaving the
appellate court to review this case under the standard of plain error. Following the prior
cases of Harless and McKnight, we now find the trial court did not err in finding the
conduct in the instant case of breaking and entering and theft were separate and distinct
acts and resulted in separate and identifiable harm.
{¶ 16} The trial court found that appellant should be sentenced to consecutive
sentences pursuant to Ohio Revised Code Section 2929.14(C)(4) which states:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
No. 21AP-415 6
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.
{¶ 17} Appellant had been convicted of a similar crime in Ashland County on
October 1, 2014. Harless at ¶ 5. As noted in the instant case, appellant had a warrant to
resolve in Ross County at the time of sentencing. (June 27, 2019 Jgmt. Entry.) While on
community control, appellant was declared an absconder on February 13, 2020, arrested
on May 5, 2020, and additional community control sanction of house arrest, appellant was
ordered to appear for all hearings in Miami County, and restored to community control
through a telephonic hearing. (May 7, 2020 Entry Restoring Absconder at 1.) On May 20,
2020, appellant was declared an absconder for a second time. (May 20, 2020 Entry
Declaring Def.'s Absconder at 1.) Appellant was arrested on June 14, 2021. At the time of
his arrest, appellant had the following pending cases in Miami County, Ohio: case No.
2020CRA-00971 for breaking and entering (F5), case No. 2020CRA-01023 for possession
of criminal tools (F5), case No. 2020CRA-01030 for obstruction of justice (F5), case No.
2020CRB-00972 for obstructing official business (M2), and violations prohibited-directors
order to stay home (M2), and appellant had a warrant in case No. 19CR-000346 for
breaking and entering (F5).
{¶ 18} The trial court made the findings that: "(a) a consecutive sentence is
necessary to punish Defendant, given the seriousness of the offenses committed; (b) a
consecutive sentence is not disproportionate to the seriousness of Defendant's conduct and
to the danger the offender poses to the public; (c) at least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm caused by two or more
of the multiple offenses committed was so great or unusual that no single prison term for
any of the offenses committed as part of any of the courses of conduct adequately reflects
the seriousness of the offender's conduct; and (d) the offender's history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from future
crime by the offender." (Jgmt. Entry at 2.)
No. 21AP-415 7
{¶ 19} Appellant argues that the decision to merge the offenses for the purposes of
sentencing is subject to de novo review under plain error standard. The court declines this
invitation as appellant forfeited the right to review when he failed to object at the time of
sentencing or appeal the sentence. Further, the court has reviewed appellant's record of
same and similar offenses, appellant was under community control sanctions when he
absconded on two occasions, he was indicted in Miami County for three (3) cases, had an
outstanding warrant in Ross County for breaking and entering, and the court finds that the
trial court's use of consecutive sentences in this case is not misplaced.
IV. CONCLUSION
{¶ 20} For the foregoing reasons, appellant's sole assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.
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