State v. Ross, 2014 Ohio 1675

Background

Joshua Ross was indicted on aggravated robbery, aggravated burglary, robbery, and having weapons while under disability, each with identical firearm specifications, arising from the same November 15, 2012 course of conduct.
Pursuant to a plea agreement, the State dismissed two counts and amended aggravated burglary to burglary (second-degree); Ross pled guilty to amended burglary (count 2) and having weapons while under disability (count 4).
The parties agreed on the record that counts 2 and 4 (and their firearm specifications) were allied offenses and would merge for sentencing; the State elected sentencing on count 2.
The trial court nonetheless sentenced Ross to 6 years on burglary plus a consecutive 3-year mandatory firearm specification, and separately imposed a concurrent 3-year sentence on having weapons while under disability plus its 3-year firearm specification.
Ross filed post-sentence motions including a motion to withdraw his plea and raised claims on appeal that the plea was involuntary (Crim.R. 11), that sentences on both counts/firearm specifications were unlawful because of merger, that the common pleas court lacked jurisdiction due to a deficient municipal-court preliminary hearing, and ineffective assistance of counsel.

Issues

Issue	Ross's Argument	State's Argument	Held
1. Whether plea was knowing and voluntary under Crim.R. 11(C) because trial court did not state maximum penalty for the firearm specification on count 4	The court failed to inform him of the maximum penalty for the firearm specification on count 4, so plea was involuntary	Court substantially complied with Crim.R. 11(C); defendant and counsel understood firearm penalties and merger; written plea acknowledged understanding	Overruled — plea was knowingly and voluntarily entered (substantial compliance; no prejudice shown)
2. Whether sentencing on both count 2 and count 4 (and both firearm specs) violated allied-offense/merger principles (double jeopardy)	Sentencing on both counts and their firearm specifications violated R.C. 2941.25 because the parties agreed they were allied and would merge	State initially agreed on the record that counts were allied and elected count 2 for sentencing; now cannot relitigate plea terms	Sustained — sentencing on count 4 and its firearm specification was improper; remand for resentencing on the elected count only
3. Whether the common pleas court lacked jurisdiction because municipal court failed to give a timely preliminary hearing	Charges should have been dismissed under R.C. 2945.73(A) for lack of a timely preliminary hearing, so common pleas court lacked jurisdiction	Record shows indictment; Crim.R. 5(B) prohibits a preliminary hearing after indictment; municipal court record not before appellate court	Overruled — appellate record contains indictment and no basis to find lack of jurisdiction
4. Whether trial counsel was ineffective for (a) sentencing-related omissions and (b) failing to raise jurisdictional defects	Counsel erred re: sentencing and failed to challenge jurisdiction	Most sentencing claims rendered moot by remand; no record evidence municipal preliminary hearing was missed; counsel not ineffective for raising nonmeritorious argument	Overruled — ineffective-assistance claim denied as to jurisdiction; sentencing-related IAC moot on appeal

Key Cases Cited

State v. Engle, 74 Ohio St.3d 525 (plea must be knowing, voluntary, intelligent)
State v. Nero, 56 Ohio St.3d 106 (Crim.R. 11 compliance analysis; prejudice test)
State v. Veney, 120 Ohio St.3d 176 (distinguish strict v. substantial compliance under Crim.R. 11)
State v. Griggs, 103 Ohio St.3d 85 (prejudice requirement for nonconstitutional Crim.R. 11 errors)
State v. Stewart, 51 Ohio St.2d 86 (prejudice test — would plea otherwise have been made)
State v. Underwood, 124 Ohio St.3d 365 (R.C. 2941.25 and double jeopardy/merger principles)
State v. Botta, 27 Ohio St.2d 196 (merger/penal philosophy explained)
State v. Williams, 134 Ohio St.3d 482 (application of merger doctrine)
State v. Whitfield, 124 Ohio St.3d 319 (prohibition on multiple sentences for allied offenses)
State v. Brown, 119 Ohio St.3d 447 (trial court must merge allied offenses; choose offense for sentencing)
State v. Damron, 129 Ohio St.3d 86 (imposition of concurrent sentences ≠ merger)
State v. Smith, 49 Ohio St.2d 261 (standard for motion to withdraw plea)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse of discretion standard)
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (appellate review of discretion)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-part test)
State v. Ketterer, 111 Ohio St.3d 70 (guilty plea waives non-plea-related constitutional claims)