State v. Lindsey
2012 Ohio 804
Ohio Ct. App.2012Background
- Defendant Terrance Lindsey pleaded guilty in three joined cases (CR-507095, CR-509932, CR-540066) to multiple counts under Ohio statutes; several counts were nolled as part of a plea deal.
- Sentences: CR-507095 one year concurrent with others; CR-509932 multiple one-year terms concurrent with each other and with other cases; CR-540066 six-year term for Count 1, one year for Count 2, with restitution of $3,200; some counts served consecutively to yield seven years total.
- Post-plea, Lindsey moved to withdraw his pleas (Dec. 2010), which the trial court denied (Jan. 2011).
- Appeal to the Eighth District was timely, with leave to file a delayed appeal granted (May 2011).
- Issues on appeal included: (1) withdrawal of guilty pleas, (2) alleged allied offenses involving forgery/uttering, (3) misclassification of theft as a fifth-degree felony, (4) whether amendment of burglary to theft violated indictment, (5) sufficiency of evidence for burglary, (6) excessive/consecutive sentencing, and (7) restitution amount; the court disposed of several issues and remanded for resentencing and a restitution hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Allied offenses doctrine for forgery and uttering. | State argued not merged; plain error if merged. | Merger should occur; record insufficient. | Merger not decided on record; no plain error; assignment 2 overruled. |
| Felony classification of theft counts in CR-509932. | Counts 1 and 6 should be fifth-degree felonies. | Amendments and pleadings unclear; disagreement on classification. | Counts 1 and 6 incorrectly labeled as fifth-degree felonies; remand for resentencing to first-degree misdemeanor. |
| Amendment of burglary to theft under Rohrbaugh. | Amendment supported by plea negotiations. | Indictment integrity concerns; right to indictment. | Rohrbaugh (overruled third-party decision) permits amendment when counsel represented and no prejudice; assignment 4 without merit. |
| Restitution amount unsupported by evidence. | Prosecutor indicated appropriate amount. | No supporting documentary/ testimonial evidence. | Restitution order vacated and remanded for a proper restitution hearing. |
| Sufficiency of evidence for burglary conviction given guilty plea. | Plea admission precludes challenge to sufficiency. | Challenge to factual guilt still possible. | Plea admissions remove factual guilt challenges; assignment 5 lacks merit. |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (allied offenses analysis under 2941.25; same conduct and same state of mind)
- State v. Bounds, 107 Ohio App.3d 700 (1995) (allied offenses may merge depending on underlying facts)
- State v. Corrao, 2011-Ohio-2517 (2011 WL) (requires considering defendant’s conduct to determine allied offenses)
- State v. Rohrbaugh, 126 Ohio St.3d 421 (2010-Ohio-3286) (plea may amend charged crime when counsel represented and defendant not prejudiced)
- State v. Moulton, 8th Dist. No. 93726 (2010-Ohio-4484) (remand for entry correction and resentencing where misclassified)
- State v. Snuffer, 2011-Ohio-6430 (8th Dist.) (plain error not found where merger not shown by record)
- State v. Waiters, 191 Ohio App.3d 720 (2010-Ohio-5764) (restitution evidence required to support amount)