State v. AndersonState v. Anderson
I.
{¶2} Anderson was indicted on one count of kidnapping in violation of
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY CONVICTING AND SENTENCING ANDERSON TO MULTIPLE COUNTS FOR RAPE AND KIDNAPPING AS THEY WERE ALLIED OFFENSES OF A SIMILAR IMPORT.
{¶3} Anderson argues that the trial court committed plain error by sentencing him on both kidnapping and rape because the two counts were allied offenses of similar import. This Court disagrees.
{¶4} A reviewing court reviews the trial court‘s determination whether to merge offenses pursuant to
{¶5} Ohio‘s allied offense statute provides as follows:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶6} “When determining whether two offenses are allied offenses of similar import subject to merger under
{¶7} Anderson was convicted of kidnapping in violation of
{¶8} The State concedes, and this Court agrees, that it is possible to commit rape and kidnapping with the same conduct. “Sexual activity” includes “sexual conduct.”
{¶9} The Ohio Supreme Court has held:
In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to
R.C. 2941.25(B) , this court adopts the following guidelines:(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.
Logan, 60 Ohio St.2d at syllabus.
{¶10} In this case, Anderson does not challenge the jury‘s finding that the State proved all elements of both rape and kidnapping at trial. The evidence demonstrated that Anderson stopped the victim as she was walking outside, offered her a ride to church, drove her instead to another location, and forced her to engage in fellatio and cunnilingus. Based on our review of the evidence of Anderson‘s conduct, this Court concludes that he committed the offenses of kidnapping and rape separately.
{¶11} The victim volunteered to cook lunch every Tuesday at her church as part of the church‘s community outreach program. To prepare the elaborate lunches, the cooks were required to arrive at the church around 8:00 a.m. When her friend failed to pick her up in the morning of May 15, 2012, the victim decided to make the 15-minute trek on foot. As she was walking, she noticed a car pass her and circle around several times to pass her again and again.
{¶12} Anderson began driving the victim in the direction of the church. As he reached the front of the church, he began to punch the victim repeatedly in the head and face. He then drove past the church, turned down a side street, and began driving away from the church. Until Anderson began punching her, the victim was unaware that he was not taking her to the church. Anderson threatened to shoot the victim, preventing her out of fear from rolling down her window to yell for help. After driving on several streets, Anderson quickly pulled into the driveway of an abandoned house which was located next door to another abandoned house. Anderson drove to the back of the house which was surrounded on three sides by heavy foliage, bushes, and trees. He then told her to get out of the car and get in the back seat or he would shoot her. She dared not attempt to run away out of fear of being shot and killed.
{¶13} Anderson joined the victim in the back seat where he again punched her repeatedly and strangled her until she began to black out. Despite her pleas that he “stop it,” Anderson forced the victim to perform fellatio until he ejaculated in her mouth. He then forced the victim to remove one shoe and one leg from her pants, and forced her to submit to cunnilingus. The victim was able to escape after the police arrived on the scene after a neighbor heard her screams and called 911.
{¶14} This Court concludes that Anderson did not commit one single act of kidnapping merely incidental to his restraining the victim during sexual activity. Rather, his conduct indicated that he kidnapped the victim the moment she entered his car, deceiving her that he was
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING ANDERSON TO CONSECUTIVE SENTENCES IN VIOLATION OF
R.C. 2929.14(C) .
ASSIGNMENT OF ERROR III
ANDERSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S IMPOSITION OF CONSECUTIVE SENTENCES WAS CONTRARY TO LAW.
{¶15} Anderson argues that the trial court erred by sentencing him to consecutive sentences without making the factual findings required by
{¶16}
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 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} This Court recently discussed the requirement that the trial court make the statutory findings enunciated in
{¶18} In this case, Anderson concedes that the trial court found that consecutive sentences were necessary to protect the public and to punish him. He argues, however, that the trial court failed to find that (1) consecutive sentences were not disproportionate to the seriousness of his conduct and to the danger he poses to the public, and (2) one of the factors in
{¶19} At the sentencing hearing, the trial court found, based on the evidence adduced at trial, that “no single prison term could adequately reflect the seriousness of [Anderson‘s] conduct.” Moreover, the trial court noted the “heinous nature of these offenses[,]” including the “significant mental * * * [and] physical harm” Anderson perpetrated on the victim. The trial court referred to the victim‘s letter which a representative read at the sentencing hearing in which the victim wrote that Anderson‘s acts against her have rendered her suicidal and “bottled up in fear.” The court further referred to the photographs of the victim‘s injuries and remarked that all of Anderson‘s statements about the incidents constituted “lie after lie.” Finally, the trial court expressly found that the kidnapping and rape were “two separate incidents,” i.e., that they were committed as part of more than one course of conduct. Accordingly, based upon the record and considering these findings as a whole, this Court concludes that the trial court made the requisite findings that consecutive sentences were not disproportionate to the seriousness of Anderson‘s conduct, that the rape and kidnapping were committed as part of more than one course of conduct, and that a single prison term would not adequately reflect the seriousness of Anderson‘s conduct which resulted in great and unusual harm. Anderson‘s second assignment of error is overruled.
{¶20} Anderson argues that defense counsel was ineffective for failing to argue that the trial court‘s imposition of consecutive sentences was contrary to law. This Court uses a two-step process as set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), to determine whether a defendant‘s right to the effective assistance of counsel has been violated.
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
{¶21} Given our resolution of Anderson‘s second assignment of error, we conclude that trial counsel‘s performance was not deficient. Anderson‘s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT FAILED TO PROPERLY NOTIFY ANDERSON OF HIS OBLIGATIONS TO REGISTER AS A SEX OFFENDER AT HIS SENTENCING HEARING.
ASSIGNMENT OF ERROR V
ANDERSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT AT HIS SENTENCING HEARING THAT THE TRIAL COURT FAILED TO PROPERLY NOTIFY HIM OF HIS OBLIGATIONS TO REGISTER AS A SEX OFFENDER.
{¶22} Anderson argues that this Court must reverse and remand for a new sentencing hearing because the trial court failed to properly explain his sex offender registration duties or ensure that Anderson read the form explaining his registration duties. This Court disagrees.
{¶23}
If the notice is provided to an offender under division (A)(1) or (2) of this section, * * * the judge shall require the offender to read and sign a form stating that the offender‘s duties to register, to file a notice of intent to reside, if applicable, to register a new residence address or new school, institution of higher education, or place of employment address, and to periodically verify those addresses, and the offender‘s duties in other states as described in division (A) of this section have been explained to the offender. If the offender is unable to read, * * * the judge shall certify on the form that the * * * judge specifically informed the offender of those duties and that the offender indicated an understanding of those duties.
{¶25} At the sentencing hearing, the trial court informed Anderson that he was a Tier III sex offender and that, upon release from prison, he would be required to “register for life with in-person verification every 90 days.” The judge then gave the form that delineated Anderson‘s registration duties to his attorney so that Anderson could complete it. Again, he does not dispute that he signed the form. Under these circumstances where Anderson was represented by counsel, and the trial court summarized his registration duties and provided the applicable form to defense counsel for completion by Anderson, we presume that defense counsel reviewed the form with Anderson.
{¶26} Finally, Anderson argues that the form he admits he signed, and which enunciated his registration duties, is a nullity because it was not filed with the clerk‘s office until after he filed his notice of appeal. Anderson cites no authority for the proposition that the form must be filed with the clerk, and we find none. Anderson‘s fourth assignment of error is overruled.
{¶27} Anderson further argues that trial counsel was ineffective for failing to object to the trial court‘s failure to notify him of his registration duties. Given our conclusion that the trial court did not fail to provide him with adequate notification, we conclude that defense counsel‘s performance was not deficient. Anderson‘s fifth assignment of error is overruled.
TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN SENTENCING ANDERSON FOR KIDNAPPING AS A FELONY OF THE FIRST DEGREE, INSTEAD OF A FELONY OF THE SECOND DEGREE, BECAUSE THE JURY VERDICT DID NOT INCLUDE THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS AS REQUIRED UNDER
R.C. 2945.75(A)(2) AND STATE V. PELFREY, 112 OHIO ST.3D 422, 2007-OHIO-256.
ASSIGNMENT OF ERROR VII
ANDERSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT SHOULD HAVE SENTENCED ANDERSON ON HIS KIDNAPPING CONVICTION AS A FELONY OF THE SECOND DEGREE.
{¶28} Anderson argues that the trial court erred by sentencing him for kidnapping as a felony of the first degree pursuant to State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256. This Court disagrees.
{¶29} In Pelfrey, the Ohio Supreme Court held: “Pursuant to the clear language of
{¶31} Anderson further argues that trial counsel was ineffective for failing to argue that the trial court should have sentenced him on the kidnapping charge as a felony of the second degree. Given our conclusion that the trial court did not err by sentencing Anderson for a felony of the first degree, we must conclude that trial counsel‘s performance was not deficient. Accordingly, Anderson‘s seventh assignment of error is overruled.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT ORDERED ANDERSON HAVE “NO CONTACT” WITH THE PROSECUTING WITNESS.
ASSIGNMENT OF ERROR IX
ANDERSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S ORDER OF HAVING “NO CONTACT” WITH THE PROSECUTING WITNESS WAS UNLAWFUL.
{¶33} Anderson relies on authority out of the Eighth District for the proposition that a trial court has no authority to impose a no contact order upon a criminal defendant who has been sentenced to prison. See State v. Holly, 8th Dist. Cuyahoga No. 95454, 2011-Ohio-2284, ¶ 21 (“While a ‘no contact’ order may be properly imposed as a sanction pursuant to
{¶34} Arguably,
{¶35} Moreover, the imposition of a no contact order to shield the victim from future harassment, in conjunction with a prison sentence, is consistent with the legislative intent relative to sentencing.
{¶36} A no contact order not only serves the interests of the victim, and meets one of the primary goals of sentencing, but it also gives effect to the Ohio Constitution‘s amendment to recognize the rights of crime victims. In 1994, the people voted to amend the Ohio Constitution to include a provision addressing the rights of victims of crimes.
{¶37} The General Assembly and the Ohio Constitution have encouraged victims to participate in the criminal justice system. This allows judges to have a greater understanding of the harm caused by the defendant‘s crimes and gives a voice to the victims of crime. It would be
{¶38} There are already mechanisms in place which require the prison system to protect victims. See State of Ohio Department of Rehabilitation and Correction Policy No. 03-OVS—1, eff. June 24, 2013, VI(A)(4)(a) (providing that a victim may request in writing a cease and desist order from the institution, directing the inmate to stop unwanted or inappropriate contact). In addition, penal institutions themselves may establish rules prohibiting inmates from having contact with victims.
{¶39} This Court concludes that a trial court may impose a no contact order as part of its sentence. Anderson has not argued, and thus we need not review, whether the terms of the no contact order in this case are appropriate. We recognize that there may be other cases where a no contact order could be troublesome. For example, if a trial court ordered no contact between the defendant and his child, the defendant may have other constitutional arguments that do not apply here. Because we are not presented with that argument in this case, we need not address it.
{¶40} Based on the above discussion, this Court concludes that there is no prohibition against a trial court‘s issuance of a no contact order in conjunction with the imposition of a prison sentence. Accordingly, the trial court did not err by ordering no contact between Anderson and the victim notwithstanding his prison sentence. Anderson‘s eighth assignment of error is overruled.
{¶41} Anderson argues in his final assignment of error that trial counsel was ineffective for failing to object to the imposition of the no contact order in conjunction with a term of imprisonment. Based on our resolution of Anderson‘s eighth assignment of error, this Court concludes that trial counsel‘s performance was not deficient. Anderson‘s ninth assignment of error is overruled.
III.
{¶42} Anderson‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
CONCURS.
BELFANCE, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶43} I concur in the majority‘s judgment with respect to Mr. Anderson‘s first assignment of error as I agree that the offenses should not have merged for purposes of sentencing because they were separately committed. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 51 (“[I]f the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶44} Mr. Anderson asserts in his second assignment of error that the trial court failed to make the findings required by
{¶45} Because I would sustain Mr. Anderson‘s second assignment of error, I would decline to address Mr. Anderson‘s third assignment of error as it would have been rendered moot. See
{¶46} Mr. Anderson argues in his eighth assignment of error that the trial court erred when it ordered him to have no contact with the victim as part of his sentence. In my view, if the no-contact order was ever a permissible sanction in the felony sentencing scheme, it would be via
{¶47} “Judges have no inherent power to create sentences. Rather, judges are duty-bound to apply sentencing laws as they are written. [T]he only sentence which a trial court may impose is that provided for by statute.” (Internal quotations and citations omitted.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 22. Thus, I question the majority‘s premise that
{¶48} Moreover, the majority‘s reference to
{¶49} In sentencing a defendant for a felony, ”
[e]xcept as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, a court that imposes a sentence upon an offender for a felony
may impose any sanction or combination of sanctions on the offender that are provided in sections 2929.14 to2929.18 of the Revised Code .1
(Emphasis added.)
{¶50} Once an offender is committed to the prison system, the legislature has authorized the director of rehabilitation and correction or his or her designee to assume legal custody of the offender.
{¶51} If the trial court sentences an offender to nonresidential community control pursuant to
notify the offender that, if the conditions of the sanction are violated, if the offender commits a violation of any law, or if the offender leaves this state without the permission of the court or the offender‘s probation officer, the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of prison terms for the offense pursuant to
section 2929.14 of the Revised Code .
{¶52} As the majority points out, no-contact orders are not specifically mentioned in the felony sentencing statutes. However,
{¶53} Thus, I would conclude that, in imposing a no-contact order on Mr. Anderson, the trial court imposed a nonresidential community control sanction pursuant to
{¶54} Notably, as discussed above,
[e]xcept as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, a court that imposes a sentence upon an offender for a felony may impose any sanction or combination of sanctions on the offender that are provided in
sections 2929.14 to2929.18 of the Revised Code .
Thus, on its face, that section would appear to authorize a trial court to sentence a defendant to both prison under
{¶55} The basic assumption underlying the imposition of a nonresidential community control sanction is that the offender is out in the community. Accordingly, the trial court has discretion to impose a variety of sanctions designed to proscribe certain conduct and encourage or even mandate other conduct. This becomes apparent when one considers that, in imposing a nonresidential community control sanction, the trial court is mandated to require the offender not to leave the state absent permission of the offender‘s probation officer. See
{¶56} Thus, if a portion of
{¶57} While I share the majority‘s concern for the mental well-being of the victim, I also reach this conclusion given that the legislature has enacted statutes pertaining to the establishment and operation of the state correctional system and there are many avenues for protection of the victim. See generally
{¶58} Because I can find no authority for the trial court to sentence Mr. Anderson to prison and impose a no-contact order simultaneously, I would sustain Mr. Anderson‘s eighth assignment of error and vacate the no-contact order from his sentence.
{¶59} In light of the resolution of Mr. Anderson‘s eighth assignment of error, his ninth assignment of error would be moot, and I would decline to address it.