2020 Ohio 944
Ohio Ct. App.2020Background
- Lee was banned from a Domino’s Pizza, entered the store, and employees refused to serve him.
- After being refused service, Lee exposed himself to employees; he was charged with criminal trespass and public indecency (both fourth-degree misdemeanors).
- Lee pled no contest to both counts and was convicted.
- Sentences: 30 days on each count (with various suspensions/credit), $100 fines and costs, one year probation on indecency, and a stay-away order from the Domino’s.
- Trial counsel did not move to merge the convictions; on appeal Lee argued the offenses were allied and that counsel was ineffective for not raising merger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred (plain error) by failing to merge criminal trespass and public indecency for sentencing | Offenses are dissimilar: trespass completed when Lee entered; indecency occurred later when he exposed himself — therefore separate conduct | The two convictions arise from the same incident and should merge as allied offenses of similar import | Court held convictions are not allied; offenses committed separately (entry completed trespass; indecency occurred after refusal); no plain error in imposing separate sentences |
| Whether Lee was denied effective assistance of counsel because counsel did not raise an allied-offense merger | No prejudice from failing to object because offenses are not allied; even if counsel omitted the argument, outcome would be the same | Counsel’s failure to raise merger deprived Lee of potentially merged sentences and thus was ineffective assistance | Court held counsel was not ineffective: no prejudice because merger would not have succeeded under Ruff factors; claim fails |
Key Cases Cited
- State v. Rogers, 143 Ohio St.3d 385 (2015) (plain-error review where counsel failed to object)
- State v. Underwood, 124 Ohio St.3d 365 (2010) (imposition of multiple sentences for allied offenses of similar import is plain error)
- State v. Yarbrough, 104 Ohio St.3d 1 (2004) (discusses plain-error multiple-sentence doctrine)
- State v. Ruff, 143 Ohio St.3d 114 (2015) (three-factor allied-offense test: conduct, animus, import)
- State v. Jackson, 149 Ohio St.3d 55 (2016) (offense completeness can render later acts separate offenses)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)