STATE OF OHIO v. CHARLES F. ANTHONY
No. 101847
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 11, 2015
[Cite as State v. Anthony, 2015-Ohio-2267.]
BEFORE: Boyle, P.J., S. Gallagher, J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-576392-A
REVERSED AND REMANDED
David V. Patton
P.O. Box 39192
Solon, Ohio 44139
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Charles Anthony, appeals from a judgment convicting him of involuntary manslaughter and felonious assault. He raises four assignments of error for our review:
- The trial court committed reversible error as a matter of law when it failed to follow Rule 11 of the Ohio Rules of Criminal Procedure during the plea hearing.
- The trial court committed reversible error as a matter of law when it failed to merge the two counts for sentencing purposes.
- Mr. Anthony suffered ineffective assistance of trial counsel in violation of the U.S. Constitution.
- Mr. Anthony suffered ineffective assistance of trial counsel in violation of the Ohio Constitution.
{¶2} Finding merit to his second assignment of error, we vacate his sentence and remand for resentencing where the state should elect which allied offense on which to proceed for sentencing.
Procedural History and Factual Background
{¶3} In August 2013, Anthony was indicted on four counts: one count of aggravated murder and murder and two counts of felonious assault. All counts carried notice of prior conviction and repeat violent offender specifications. Anthony pleaded not guilty to all charges at his arraignment.
{¶4} In November 2013, Anthony withdrew his former plea of not guilty and entered a plea of guilty to an amended indictment of involuntary manslaughter with both
{¶5} The trial court sentenced Anthony to a total of 13 years in prison, 11 years for involuntary manslaughter and two years for felonious assault, to be served consecutive to one another. The trial court further notified Anthony that he would be subject to five years of mandatory postrelease control upon his release from prison. It is from this judgment that Anthony appeals.
Crim.R. 11
{¶6} In his first assignment of error, Anthony contends that the trial court erred when it failed to follow
{¶7} The underlying purpose of
{¶8}
{¶9} The mandate set forth in
{¶10} Prior to accepting Anthony‘s guilty plea, the trial court did not inform him that it could proceed with judgment and sentence upon acceptance of the plea. The record reflects, however, that the trial court did not proceed directly to sentencing but rather referred the matter for a presentence investigation. The sentencing hearing took place approximately one month after Anthony entered into his plea.
{¶11} “Where a trial court does not proceed immediately to sentencing upon accepting a guilty plea, the defendant is not prejudiced by the court‘s failure to warn that it
{¶12} Accordingly, Anthony‘s first assignment of error is not well taken.
Allied Offenses of Similar Import
{¶13} In his second assignment of error, Anthony argues that the trial court erred when it failed to merge his involuntary manslaughter and felonious assault convictions. At the plea hearing, after Anthony pleaded guilty to both counts and the trial court accepted his pleas, defense counsel stated, “Your Honor, just I would like the obvious to be on the record, if I could, namely, that the Counts 2 and 3 merge for the purposes of sentencing.” The trial court replied, “They certainly appear to me to do so.” The state then stated, “No, we have no agreement. The sentencing range will be applied through the RVO, Your Honor.” At sentencing, the trial court found that the felonious assault was a “separate and distinct act, and it is not subject to merger” with the involuntary manslaughter.
{¶14} An appellate court should apply a de novo standard of review in reviewing whether two offenses are allied offenses of similar import. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. Anthony failed to object to the imposition of multiple punishments. Nonetheless, the Ohio Supreme Court has held that the imposition of multiple sentences for allied offenses of similar import is plain error.
{¶15} The Double Jeopardy Clauses of the
{¶16} In Ohio, this constitutional protection is codified in
{¶17}
(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 offеnses 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.
{¶18} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, the Ohio Supreme Court explained:
The legislative history of
R.C. 2941.25 demonstrates that “[t]he basic thrust of the section is to prevent ‘shotgun’ convictions.” Legislative Service Commission Summary of Am.Sub.H.B. 511, The New Ohio Criminal Code (June 1973) 69. The summary states: “For example, a thief theoretically is guilty not only of theft but of receiving stolen goods, insofar as he receives, retains or disposes of the property he steals. Under this section, he may be charged with both offenses but he may be convicted of only one, and the prosecution sooner or later must elect as to which offense it wishes to pursue. On the other hand, a thief who commits theft on three separate occasions or steals different property from three separate victims in the space, say, of 5 minutes, can be charged with and convicted of all three thefts.” Id. Similarly, the final report of the Technical Committee 1 to Study Ohio Criminal Laws and Procedures reflects the committee‘s opinion that “where the same conduct by the defendant technically amounts to two or more related offenses, he should be guilty of only one offense. On the other hand, where his conduct amounts to two or more different offenses, or to two or more offenses of the same kind committed at different times or with a separate evil purpose as to each, then it should be possible to convict him of all such crimes. The proposed section [R.C. 2941.25 ] is designed to effect this policy.” Ohio Legislative Service Commission, Proposed Ohio Criminal Code (Mar.1971) 308.
{¶19} The Ohio Supreme Court set forth a new test for determining when two or more offenses are allied offenses of similar import in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, overruling the abstract-elements test in State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999). Pursuant to Johnson, “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under
In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , the question is whether it is рossible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. [State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816 (1988)] (Whiteside, J., concurring) (“It is not necessary that both crimes are always committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct. It is a matter of possibility, rather than certainty, that the same conduct will constitute commission of both offenses.” [Emphasis sic]). If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” [Brown at ¶ 50] (Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
Conversely, if 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
R.C. 2941.25(B) , the offenses will not merge.
{¶20} In State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, the Ohio Supreme Court explained that “although Johnson abandoned the abstract
In a unanimous syllabus, we overruled Rance and held that “the conduct of the accused must be considered” when determining whether two offenses are allied offenses of similar import subject to merger under
R.C. 2941.25 . [Johnson] at syllabus. Beyond the syllabus, however, we were divided as to how to consider a defendant‘s conduct in the first prong‘s “similar import” analysis.
{¶21} Subsequent to Washington, the Supreme Court issued State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603. In Miranda, the Supreme Court held that ”Johnson is not applicable to a RICO violation and that a RICO offense does not merge with its predicate offenses for purposes of sentencing.” Id. at ¶ 3. The Supreme Court explained that although
{¶22} The Supreme Court found that a RICO offense is dependent upon a defendant committing two or more predicate offenses, but the statute also requires а defendant to be “employed by, or associated with” an “enterprise” and to “conduct or participate in” an “enterprise through a pattern of corrupt activity, as well as proof of the existence of the enterprise.” Id. at ¶ 13, citing
{¶23} The Miranda court reasoned that one of the purposes of the RICO statute was to provide “‘enhanced sanctions * * * to deal with the unlawful activities of those engaged in organized crime.‘” Id. at ¶ 14, quoting State v. Schlosser, 79 Ohio St.3d 329, 681 N.E.2d 911 (1997). “‘The RICO statute was designed to impose cumulative liability for the criminal enterprise.‘” Id., quoting Schlosser at 335. The court further reasoned that “[i]f the purpose of [RICO] is to provide enhanced sanctions, this purpose is furthered by not merging [the predicate offenses with the RICO offense].” Id. at ¶ 14, citing Thomas at ¶ 61.
{¶24} Justice Lanzinger wrote a concurring in judgment only opinion in Miranda, which two other justices joined. Justice Lanzinger stated that she would have held “simply that because a RICO offense and its underlying predicate offenses are offenses of dissimilar import, they do not merge.” Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, at ¶ 21.
{¶25} In her concurring in judgment opinion, Justice Lanzinger explained that “[i]n reviewing whether multiple crimes constitute allied offenses that merge, the Supreme Court had mainly discussed the concept of offenses of the same or similar import that result in offenses committed separately or with a separate animus.” Id. at ¶ 22. But she
{¶26} Justice Lanzinger went on to address the defendant‘s argument that his sentence for the same conduct in the two offenses violates the rule in Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. She explained:
While it is true that the syllabus in Johnson says that “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under
R.C. 2941.25 , the conduct of the accused must be considered,” this language does not offer the complete analysis necessary to determine whether offenses are subject to merger rather than multiple convictions and cumulative punishment. Consideration of the defendant‘s conduct is but the first step in determining whether multiple offenses are allied offenses of similar import pursuant toR.C. 2945.21(B) . As a justice in Johnson succinctly stated about allied offenses of similar import: “In practice, allied offenses of similar import are simply multiple offenses that arise out of the same criminal conduct and are similar but not identical in the significance of the criminal wrongs committed and the resulting harm.” (Emphasis added.) Id. at ¶ 64 (O‘Connor, J., concurring in judgment). In other words, offenses are dissimilar if they are not alike in their significance and their resulting harm.
Id. at 25 (Lanzinger, J., concurring in judgment only).
{¶27} In State v. Velez, 8th Dist. Cuyahoga No. 101303, 2015-Ohio-105 (released after Miranda, but before State v. Ruff, Slip Opinion No. 2015-Ohio-995, the Supreme Court‘s most recent pronouncement on allied offenses), this court addressed the question of whether involuntary manslaughter and aggravated robbery were allied offenses of similar import. This court explained in Velez:
For many years the Supreme Court held that “felony-murder under
R.C. 2903.01(B) is not an allied offense of similar import to the underlying felony.” State v. Keene, 81 Ohio St.3d 646, 669, 1998- Ohio-342, 693 N.E.2d 246 (1998). See also State v. Campbell, 90 Ohio St.3d 320, 347,
2000-Ohio-183, 738 N.E.2d 1178 (2000); State v. Logan, 60 Ohio St.2d 126, 135, 397 N.E.2d 1345 (1979). Felony murder and involuntary manslaughter are very similar crimes — they differ only in respect to the degree of the predicate offense. For this reason, courts likewise considered that involuntary manslaughter and its predicate offense were not allied offenses. See, e.g., State v. Noble, 1st Dist. Hamilton No. C-100049, 2010-Ohio-5493.
{¶28} But as we pointed out in Velez, the rationale for these cases holding that felony murder and its predicate offense were not allied offenses “rested on a comparison of the statutory elements.” Id. at ¶ 6. This rationale, however, which was set forth in Rance, 85 Ohio St.3d 632, 710 N.E.2d 699, was overruled by Johnson. See Johnson at syllabus.
{¶29} In Velez, this court further stated that
[a]n argument could be made that for purposes of involuntary manslaughter under
R.C. 2903.04(B) , the General Assembly intended to punish the death proximately caused during the commission of a felony separately from the predicate felony itself. The plain language of the statute suggests as much — with the death having to occur as a proximate result of committing the predicate offense, the offenses are thus committed with the same conduct. To say that the predicate offense is an allied offense of similar import to the death would seem to render a separate charge on the predicate offense meaningless.
{¶30} We explained in Velez that the Supreme Court acknowledged this reasoning in Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, “by finding a legislative intent to separately punish predicate crimes under Ohio‘s RICO statute.” This court then pondered the following in Velez:
It is unclear whether Miranda signals the Supreme Court‘s intention to apply this line of reasoning, noting that it did not do so in Johnson where it held that felony murder and the predicate offense of child endangering merged based upon the defendant‘s same conduct — the beating of a child.
Velez, 8th Dist. Cuyahoga No. 101303, 2015-Ohio-105, at ¶ 8.
{¶31} Despite discussing Miranda and contemplating whether the Supreme Court would apply this line of reasoning, we acknowledged in Velez that Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, was more closely on point than Miranda, because Johnson dealt with felony murder, which is more analogous to involuntary manslaughter. We concluded in Velez that the involuntary manslaughter and aggravated robbery were not allied offenses of similar import because “the force used to effectuate the murder [was] far in excess of that required to complete the robbery.” Id. at ¶ 10. We further concluded that “[n]ot only do we find that the stabbing was an additional act of such excessive force that it went beyond being the same conduct necessary to rob the victim, it was an act of harm thаt had a separate animus and was unnecessary to the commission of the robbery.” Id. at ¶ 11. Thus, despite this court‘s discussion of Miranda in Velez, we decided the allied-offense issue based upon the relevant allied-offense test at that time — Johnson (not Miranda). Essentially, this court determined in Velez that the defendant committed the acts with separate conduct and a separate animus. Id.
{¶32} Recently, the Ohio Supreme Court revisited the issue of allied offenses once again in Ruff, Slip Opinion No. 2015-Ohio-995. Although the Supreme Court did not explicitly overrule Johnson, it stated that the “decision in Johnson was incomplete.” Ruff
{¶33} In Ruff, the defendant was convicted, among other things, оf rape and aggravated burglary involving three women at different times and in different homes. At sentencing, Ruff argued that the three rape counts for each victim should merge with the corresponding aggravated burglary counts. The trial court denied his request. Ruff appealed, arguing that the trial court erred by not merging the relevant counts. The First District agreed with Ruff, concluding that based on Johnson and considering Ruff‘s conduct:
each aggravated burglary was not completed until Mr. Ruff raped his victims, and the state necessarily relied upon evidence of the rapes to establish the elements of the aggravated-burglary offenses. The conduct relied upon to establish rape — sex compelled by force — was the same as the conduct relied upon by the state to establish the “physical harm” component in
R.C. 2911.11(A)(1) .
{¶34} The state appealed. The Ohio Supreme Court accepted jurisdiction on the state‘s sole proposition of law: “The import of rape and aggravated burglary are inherently different.” Ruff at ¶ 9. The Supreme Court explained, “[i]n other words, we were asked to determine what ‘import’ means within the meaning of
{¶35} The state argued in Ruff that “rape and aggravated burglary can never be allied offenses because rape is not merely incident to aggravated burglary.” Id. at ¶ 17. According to the state‘s position, rape is classified “as a crime against a person, whereas aggravated burglary is a crime against property,” and thus, “they will always have different imports.” Id.
{¶36} Ruff argued, on the other hand, that “aggravated burglary, by requiring an element related to physical harm, must always merge with a violent offense such as rape” because “[a]n offender does not commit aggravated burglary until the offender inflicts or attempts to or threatens to inflict physical harm on another.” Id. at ¶ 18.
{¶37} The Ohio Supreme Court rejected both “absolute” positions, stating that “neither party‘s position completely follows the language of the statute.” Ruff, Slip Opinion No. 2015-Ohio-995, at ¶ 19. It explained that “[n]o bright-line rule can govern every situation.” Id. at ¶ 30.
{¶38} The Supreme Court went on to define the meaning of “similar import.” It explained that even if two offenses are committed with “identical conduct and the same evidence,” that ”
{¶39} In further defining what “import” means, the Supreme Court reviewed cases where it had previously “illustrated when offenses are of dissimilar import.” Id. at ¶ 23.1 From these cases, the court concluded that “two or more offenses of dissimilar import exist within the meaning of
{¶40} In setting forth the new test for merger of multiple offenses, the Supreme Court stated that “[a] trial court and the reviewing сourt on appeal when considering
{¶41} The Supreme Court further explained:
At its heart, the allied-offense analysis is dependent upon the facts of a case because
R.C. 2941.25 focuses on the defendant‘s conduct. The evidence at trial or during a plea or sentencing hearing will reveal whether the offenses have similar import. When a defendant‘s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant cаn be convicted of multiple counts. Also, a defendant‘s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning ofR.C. 2941.25(B) when the defendant‘s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.
(Emphasis added.) Id. at ¶ 26.
{¶42} The Supreme Court made clear that “[r]ather than compare the elements of two offenses to determine whether they are allied offenses of similar import,” courts must “focus on the defendant‘s conduct to determine whether one or more convictions may result because an offense may be committed in a variety of ways and the offenses
{¶43} The Supreme Court noted, as it had in Johnson, that “‘this analysis may be sometimes difficult to perform and may result in varying results for the same set of offenses in different cases. But different results are permissible, given that the statute instructs courts to examine a defendant‘s conduct — an inherently subjective determination.‘” Ruff, Slip Opinion No. 2015-Ohio-995, at ¶ 32, quoting Johnson at ¶ 52 (plurality opinion per Brown, C.J.).
{¶44} It would have been helpful had the Supreme Court illustrated how the newly articulated test for merger applied in Ruff. But after setting forth the three-part test, the Supreme Court did not apply it to determine whether aggravated burglary and rape were allied offenses of similar import under the facts of the case. Instead, the court remanded the case to the First District to conduct the analysis because the First District “did not consider the import of the offenses.” Id. at ¶ 29. The Supreme Court noted that “even if Ruff committed the aggravated burglary and the corresponding rape of each victim with
{¶45} In determining whether two offenses have dissimilar import, such that the defendant can be punished for both, one thing is clear: it is not a matter of simply looking at the statute to determine legislative intent. We know this because the Supreme Court rejected the state‘s proposition that rape and aggravated burglary have a dissimilar import as a matter of law because rape “is a crime against a person,” and aggravated burglary “is a crime against property.” Id. at ¶ 17. Likewise, the Supreme Court rejected Ruff‘s “absolute” approach, namely, that because aggravated burglary required an element related to physical harm, it must always merge with a violent offense such as rape. Both the state‘s and Ruff‘s positions amounted to merely looking to the statute, without taking into account the defendant‘s conduct.
{¶46} In this case, we must determine if Anthony‘s involuntary manslaughter and felonious assault convictions are allied offenses of similar import. Relying on Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, the dissent asserts that involuntary manslaughter and felonious assault are offenses of dissimilar import because
involuntary manslaughter is meant to punish for the resulting death of a victim, a crime legislatively deemed separate and distinct from that of felonious assault, which punishes the offender for the immediate harm resulting from his conduct in assaulting the victim (and not the resulting injuries).
But this is exactly the rationale set forth by the state in Ruff that was rejected by the Supreme Court. See Ruff, Slip Opinion No. 2015-Ohio-995, at ¶ 17-19. Thus, we disagree with the dissent that Miranda is the applicable test.
{¶47} Instead, in determining whether involuntary manslaughter and felonious assault are allied offenses under the facts of this case, we must apply the new merger test set forth in Ruff, as this case was pending on appeal when the Supreme Court announced its decision. State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-730, citing State v. Ali, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6. Ruff directs that “[r]ather than compare the elements of two offenses to determine whether they are allied offenses of similar import,” we must “focus on [Anthony‘s] conduct.” Ruff at ¶ 30. Even though we do not have to comparе the elements, it helps to know what offenses we are addressing. Anthony was convicted of involuntary manslaughter and felonious assault. Involuntary manslaughter under
{¶48} The state presented the facts at the sentencing hearing. Anthony and the victim were friends. They had been drinking and doing drugs on the night of the incident. At some point, they started arguing. And then Anthony stabbed the victim four times “on the victim‘s backside.”
{¶50} Next, there is nothing in the record to establish that the offenses were committed separately or with a separate animus. The evidence presented was simply that Anthony and the victim were doing drugs together, after which at some point they began arguing, and Anthony stabbed the victim four times in the back, and the victim died. There are no other details to establish that there was a break in a “‘temporal continuum‘” between the initial stabbing and the final stabbing such that we could find that there were separate acts or a separate animus. State v. Roberts, 180 Ohio App.3d 666, 2009-Ohio-298, 906 N.E.2d 1177, ¶ 14 (3d Dist.), quoting State v. Williams, 8th Dist. Cuyahoga No. 89726, 2008-Ohio-5286, ¶ 37; State v. Hines, 8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 48. Alternatively, there were no facts in the record to “‘distinguish the circumstances or draw a line of distinction that enables a trier of fact to reasonably conclude separate and distinct crimes were committed * * *.‘” Roberts, quoting Williams (noting facts also may support a separate animus where the defendant‘s conduct “created a ‘substantial independent risk of harm‘“).
{¶52} Interestingly, in Johnson, the Supreme Court rejected the First District‘s reasoning that felony murder and its predicate offense, child endangering, were not allied offenses of similar import because they protected “unique societal interest[s].” See State v. Johnson, 1st Dist. Hamilton Nos. C-080156 and C-080158, 2009-Ohio-2568, ¶ 28-33. The First District acknowledged that the offenses of felony murder and child endangering were committed with the same conduct, but reasoned that when enacting the child endangering statute, the legislature “intended to ‘bestow speсial protection upon children’ when ‘crafting’ the offense of child endangering.” Id. at ¶ 95, quoting State v. Morin, 5th Dist. Fairfield No. 2008-CA-10, 2008-Ohio-6707. But the First District explained that felony murder protected a different societal interest, that of “protect[ing] human life.” Id. at ¶ 96. The First District concluded that “the General Assembly intended to distinguish these offenses and to permit separate punishments for the commission of these two crimes.” Id. The Supreme Court, however, rejected this reasoning outright — holding
{¶53} Thus, it is irrelevant in this case that the purpose of involuntary manslaughter is to protect human life, and the purpose of felonious assault is to prevent physical harm to persons. Instead, courts must look at the defendant‘s conduct to determine whether (1) the offenses caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus. Ruff, Slip Opinion No. 2015-Ohio-995, at ¶ 25. If any of the three are true, then “the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses.” Id.
{¶54} Essentially, when analyzing whether two offenses are allied offenses of similar import, as the statute directs, it is the defendant‘s conduct that is at the heart of the question. In determining whether two offenses are allied offenses of similar import, courts should not lose sight of “common sense.” See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶ 24 (“common sense and logic tell us that in order to prepare a controlled substance for shipping, ship it, transport it, deliver it, prepare it for distribution, or distribute it, one must necessarily also possess it“).
{¶55} In Cabrales, which is the case that began the evolution of overruling Rance, 85 Ohio St.3d 632, 710 N.E.2d 699, the Supreme Court discussed how Rance produced “inconsistent, unreasonable, and at times, absurd or unreasonable results.” Cabrales at ¶ 20. To illustrate the absurdity of these results, the Supreme Court gave examples of cases from the Second, Eleventh, and Fourth Appellate Districts (as well as others). Cabrales
{¶56} The Supreme Court explained in Cabrales that Rance produced absurd results because courts interpreted it as “requiring a strict textual comparison,” where allied offenses of similar import could only be found if “all the elements of the compared offenses coincide exactly.” Cabrales at ¶ 22. The Supreme Court explained that “[o]ther than identical offenses, we cannot envision any two offenses whose elements align exactly.” Id. The court further reasoned that such an interpretation was “incongruous because the state is already prohibited from punishing a defendant for
{¶57} What the dissent is suggesting here would produce results just as absurd as Rance did. The dissent, after discussing the legislative intent of the offenses in Ruff (rape and aggravated burglary), asserts that “[t]he legislature must have intended [rape and aggravated burglary to be separately punishable], or burglary would not be a separately delineated crime.” But if that were true, two or more offenses — all separately delineated by the legislature — would never merge. Each criminal offense is, by definition, separately delineated by the legislature. Indeed, other than identical offenses, we cannot envision any two offenses that have the exact same legislative intent. For example, one could argue that rape was enacted to protect persons from sexual assault and that kidnapping was enacted to protect persons from restraint of their liberty. But it has long been settled that implicit with every rape is a kidnapping, and thus, the two offenses are allied offenses of similar import (whether they were committed with a separate animus or conduct is another issue).2
{¶59} Accordingly, we conclude that under the facts of this case, felonious assault and involuntary manslaughter are allied offenses of similar import and should have merged. Thus, the trial court erred when it sentenced Anthony on both offenses.
{¶60} We further note that, contrary to the dissent‘s assertion, Anthony‘s sentence is subject to review under
{¶61} Anthony‘s second assignment of error is sustained.
Ineffective Assistance of Counsel
{¶62} In his third and fourth assignments of error, Anthony argues that his trial counsel was ineffective and violated his due process rights under the United States and Ohio Constitutions. He claims that his trial counsel was ineffective for (1) failing to raise a Castle Doctrine defense, (2) repeatedly misstating Anthony‘s criminal history, (3) failing
{¶63} In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that (1) the performance of defense counsel was seriously flawed and deficient, and (2) the result of the appellant‘s trial or legal proceeding wоuld have been different had defense counsel provided proper representation. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986). Judicial scrutiny of defense counsel‘s performance must be highly deferential. Strickland at 689. A strong presumption exists that a licensed attorney is competent and that the challenged action is the product of sound trial strategy and falls within the wide range of professional assistance. Id. at 689. Generally, debatable trial tactics and strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995); State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).
{¶64} As for Anthony‘s arguments that his trial counsel failed to raise a Castle Doctrine defense and failed to follow up on Anthony‘s request for a defense investigator, based on the record before us, there is nothing to suggest that the defense counsel did anything improper. Anthony claims that another attorney he spoke with (who he attempted to hire, but then did not have the money to do so) told him that he had a defense based upon the Castle Doctrine. But we can only presume from the record before us that
{¶65} Regarding Anthony‘s request for a defense investigator, it is true that defense counsel moved for funds to be appropriated for a defense investigator on September 13, 2013. Anthony had just been indicted one month previously. He was charged with aggravated murder, i.e., murdering someone purposely and with prior calculation and design. Presumably, defense counsel moved for a defense investigator prior to obtaining all of the discovery in the case. But after receiving discovery, defense counsel likely realized that a defense investigator was not necessary. Accordingly, we find no deficient performance on the part of defense counsel.
{¶66} Regarding Anthony‘s claims that his trial counsel was ineffective at his sentencing hearing for misstating Anthony‘s criminal history, failing to raise a similar acts defense, and misstating Anthony‘s age, we find that even if true, these actions or lаck of actions did not prejudice Anthony in any way. As part of his plea agreement, the state and Anthony agreed that Anthony would be sentenced somewhere in the range of 11 and 17 years. Anthony received 13 years (although upon remand and resentencing, he can only receive 11 years because involuntary manslaughter and felonious assault are allied offenses of similar import). Further, the trial court had access to the presentence investigation report that included Anthony‘s prior criminal history and age. Accordingly, we find that even if defense counsel‘s actions or lack of actions amounted to deficient
{¶67} Accordingly, Anthony‘s third and fourth assignments of error are overruled.
{¶68} Judgment reversed. Sentence vacated. Case remanded for resentencing where the state should elect which allied offense to proceed on before thе trial court imposes the sentence.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
{¶69} This case exemplifies the distinction between what will be referred to as predicate-offense type or result-based crimes,3 such as felony murder, involuntary
{¶70} The majority‘s analysis misses the point. Any double jeopardy concerns involving the conviction of involuntary manslaughter and felonious assault are not analyzed through the lens of
{¶72} In an effort to explain why I am compelled to dissent in this case, a more detailed look back at Ruff, Slip Opinion No. 2015-Ohio-995, is in order. In Ruff, the Ohio Supreme Court held that “[t]wo or more offenses of dissimilar import exist within the meaning of
{¶73} It is of little consequence that the harm is actually inflicted through the commission of the offense that the offender intended to commit upon entering the structure. One way to look at this is that if one offense is completed before the other begins, two offenses have been committed. State v. Fields, 12th Dist. Clermont No. CA2014-03-025, 2015-Ohio-1345, ¶ 18. That analysis does not work in all situations because, as in Ruff, the aggravated burglary is not “complete” until a harm is actually caused. This likely led to the rejection of the all-or-nothing approach the state offered in Ruff. When looking at the situation posed in Ruff, however, a rape occurring in the sanctity of one‘s home should be separately punishable. To hold otherwise would treat a rape occurring outside the home (which is bad enough) the same as if it occurred in the presumed safety of the victim‘s home. Aggravated burglary and rape are both felonies of the first degree, and the merger results in the conviction of one offense. The legislature must have intended otherwise, or burglary would not be a separately delineated crime. If the Ruff syllabus is to be believed, separate and identifiable harms are indeed separately punishable.
{¶74} Unlike the crimes at issue in Ruff, involuntary manslaughter is not a conduct-based crime. Involuntary manslaughter is a result-based crime solely dependent on the commission of a separate predicate offense. Therefore, involuntary manslaughter is
[f]or many years the Supreme Court held that “felony-murder under
R.C. 2903.01(B) is not an allied offense of similar import to the underlying felony.” State v. Keene, 81 Ohio St.3d 646, 669, 1998- Ohio-342, 693 N.E.2d 246 (1998). See also State v. Campbell, 90 Ohio St.3d 320, 347, 2000-Ohio-183, 738 N.E.2d 1178 (2000); State v. Logan, 60 Ohio St.2d 126, 135, 397 N.E.2d 1345 (1979). Felony murder and involuntary manslaughter are very similar crimes — they differ only in respect to the degree of the predicate offense. For this reason, courts likewise considered that involuntary manslaughter and its predicate offense were not allied offenses. See, e.g., State v. Noble, 1st Dist. Hamilton No. C-100049, 2010-Ohio-5493.
Velez, 8th Dist. Cuyahoga No. 101303, 2015-Ohio-105, at ¶ 5; State v. Carter, 8th Dist. Cuyahoga No. 101810, 2015-Ohio-1834.
{¶75} Although Velez and Carter recognized the difference in result-based, predicate offense defined crimes, they nevertheless erroneously use a conduct-based analysis in resolving the merger issue. In both cases, the panels concluded that the offender used more force than was necessary to commit the predicate offense, and therefore, the associated involuntary manslaughter conviction did not merge with the underlying predicate offense. Carter at ¶ 36. Under that analysis, the predicate
{¶76} Johnson did not overrule that long line of cases holding that crimes dependent on the commission of a predicate offense do not merge with the predicate offense itself. Accordingly, and contrary to the suggestion in the majority‘s opinion, Johnson should not be used to drastically alter the legal landscape.4 Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Crimes, such as aggravated murder, involuntary manslaughter, or aggravated burglary, punish an offender for the harm separate and identifiable from that caused by the underlying offense, just as felony murder punishes for the death of the victim over and above the harm resulting from the underlying crime. Analyzing the merger of those crimes based solely on conduct effectively nullifies statutory provisions. Id. at ¶ 7.
{¶77} The majority‘s position is steeped in the belief that using a conduct-based analysis will lead to different results on a case-by-case approach. The conduct-based inquiry, however, will always lead to the merger of involuntary manslaughter and the underlying felony, and it is for this reason that courts cannot strictly apply Ruff, Slip
{¶78} The simple fact is that predicate-offense type crimes, such as involuntary manslaughter, which punish the death of a victim based on the commission of an underlying offense, must either always merge or always be separate and distinct from the predicate offense itself. There is no middle ground.
{¶79} Anthony was convicted of involuntary manslaughter and felonious assault.
{¶80} As the Ohio Supreme Court clarified,
{¶81} The Ohio Supreme Court‘s Miranda analysis applies to the current case. State v. Schidecker, 2d Dist. Montgomery No. 26334, 2015-Ohio-1400, ¶ 39 (applying Miranda to OVI and aggravated vehicular manslaughter and assault charges); State v. Hill, 9th Dist. Summit No. 27263, 2015-Ohio-1122, ¶ 11-16 (the same); State v. Bates, 1st Dist. Hamilton No. C-140033, 2015-Ohio-116, ¶ 29 (weapons under disability, aggravated robbery with a firearm, and carrying a concealed weapon charges); State v. Greer, 4th Dist. Jackson No. 13CA2, 2014-Ohio-2174, ¶ 15 (child endangerment and manufacturing drugs in the vicinity of a child); State v. Washington, 8th Dist. Cuyahoga No. 100994, 2014-Ohio-4578, ¶ 29 (noting that Miranda could be applied to burglary and theft charges).
{¶82} Involuntary manslaughter, as with the RICO violation, is dependent on the commission of underlying felony offenses with an additional “resulting death” component. Thus, the legislature intended to punish for the harm, the death of the victim, separate from the conduct underlying the felony offense that caused the harm. The purpose of the involuntary manslaughter statute is to punish the offender for the death of the victim, not the underlying crime. By codifying an enhanced sanction for the death of the victim stemming from the commission of the underlying felony, merger must be deemed inapplicable. Accordingly, I would affirm Anthony‘s conviction.