State v. Starr, 2016 Ohio 8179

Background

Defendant Mark M. Starr sold heroin to an undercover officer while his infant child sat in the back seat of his car.
Starr was indicted for: trafficking in heroin in the vicinity of a juvenile (felony), possession of marijuana (minor misdemeanor), child endangering (first-degree misdemeanor), and possession of criminal tools (felony).
Starr pleaded guilty pursuant to a negotiated plea to trafficking (elevated to a third-degree felony for being in the vicinity of a juvenile) and child endangering; the state dismissed the marijuana and criminal-tools counts.
The trial court sentenced Starr to 18 months on trafficking and 120 days on child endangering, concurrent, and ordered those sentences to run consecutively to an existing sentence from Richland County.
Starr appealed, raising three assignments of error: (1) sentencing separately for trafficking and child endangering (allied-offense/double jeopardy), (2) guilty plea was not knowing/intelligent/voluntary, and (3) trial court failed to state consideration of R.C. 2929.12 sentencing factors.

Issues

Issue	State's Argument	Starr's Argument	Held
Whether trafficking-in-the-vicinity and child endangering are allied offenses requiring merger	Offenses have different elements (parental relationship and duty required for endangering) so they are not allied; forfeiture of merger claim when not raised below	Double jeopardy/allied-offense problem: elevating trafficking because a juvenile was present punishes the same conduct twice	Court held Starr forfeited the allied-offense claim by not moving to merge below and, on the merits, the offenses have different import/animus and may be separately punished; assignment overruled
Whether Starr’s guilty plea was knowing, intelligent, and voluntary	Court substantially complied with Crim.R. 11; written plea form and plea colloquy, counsel present, and later conduct (motion to withdraw and withdrawing that motion) show understanding	Plea was not knowingly/intelligently entered because court failed to ensure he knew and understood his rights	Court found substantial (and in part strict) compliance with Crim.R. 11; written waiver and plea colloquy support voluntariness — assignment overruled
Whether trial court failed to consider R.C. 2929.12 factors and thus erred in sentencing	Trial court stated it considered R.C. 2929.11 and 2929.12, record (PSI, counsel statements, allocution) shows consideration, and the sentence is within statutory range	Court failed to state on-record findings under R.C. 2929.12 and thus sentencing was defective	Court held no requirement to recite talismanic statutory language; consideration may be implicit in the record and sentence (18 months) is within the statutory range — assignment overruled

Key Cases Cited

State v. Rogers, 38 N.E.3d 860 (Ohio 2015) (forfeiture vs. waiver on allied-offense claims; appellate review limited to plain error if merger not raised below)
State v. Ruff, 34 N.E.3d 892 (Ohio 2015) (R.C. 2941.25 allied-offense test: consider conduct, animus, and import)
State v. Kalish, 896 N.E.2d 124 (Ohio 2008) (post-Foster sentencing review framework and discussion of trial court consideration of statutory factors)
State v. Foster, 845 N.E.2d 470 (Ohio 2006) (severed mandatory judicial fact-finding portions of sentencing statutes)
State v. Ballard, 423 N.E.2d 115 (Ohio 1981) (substantial-compliance standard for Crim.R. 11)
State v. Griggs, 814 N.E.2d 51 (Ohio 2004) (Crim.R. 11 substantial-compliance test and prejudice inquiry)
State v. Jells, 559 N.E.2d 464 (Ohio 1990) (written waiver satisfies jury-trial waiver requirement)
North Carolina v. Butler, 441 U.S. 369 (U.S. 1979) (written waiver is strong evidence of voluntary waiver)
State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (appellate review of sentencing under R.C. 2953.08)