State of Ohio, Plaintiff-Appellee, v. Clare Armstrong, Defendant-Appellant.
No. 16AP-410 (C.P.C. No. 14CR-5938)
THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 28, 2017
State v. Armstrong, 2017-Ohio-8715
BROWN, J.
(REGULAR CALENDAR)
Rendered on November 28, 2017
On brief: Michael DeWine, Attorney General, Anthony J. Molnar, William C. Greene, and Darcy T. Cook, for appellee. Argued: Anthony J. Molnar.
On brief: Peterson, Conners, Swisher & Peer LLP, and Gregory S. Peterson, for appellant. Argued: Gregory S. Peterson.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Clare Armstrong, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following her entry of an “Alford”1 plea of guilty to one count of forgery.
{¶ 2} On November 7, 2014, appellant was indicted on three counts of forgery, in violation of
{¶ 3} On September 8, 2015, appellant filed a motion to dismiss the indictment, asserting in part that plaintiff-appellee, State of Ohio, was limited to charging her with respect to the penalties for fraud found under
{¶ 4} On May 2, 2016, appellant entered an “Alford” plea of guilty to one count of forgery, in violation of
{¶ 5} On appeal, appellant sets forth the following two assignments of error for this court‘s review:
[I.] THE TRIAL COURT ERRORED IN DENYING APPELLANT‘S MOTION TO DISMISS BASED UPON COMPREHENSIVE STATUTORY PROCEDURE PROVIDED BY O.R.C. CHAPTER 4751.
[II.] THE TRIAL COURT ERRORED IN DENYING APPELLANT‘S MOTION TO DISMISS THE INDICTMENT AS VIOLATING THE DUE PROCESS CLAUSES OF THE CONSTITUTIONS OF THE UNITED STATES AND STATE OF OHIO.
{¶ 6} Appellant‘s two assignments of error are interrelated and will be considered together. Under these assignments of error, appellant asserts the trial court erred in denying her motion to dismiss the indictment on both statutory and due process grounds.
{¶ 7} At the outset, we note the state raises an argument as to whether appellant has preserved the right to appeal the rulings of the trial court as set forth in her assignments of error. Specifically, the state maintains that appellant waived her right to
{¶ 8} In general, “if a defendant enters a guilty plea, such plea acts as a waiver of an individual‘s right to raise most issues on appeal.” State v. Benman, 10th Dist. No. 03AP-1012, 2004-Ohio-3935, ¶ 12. See also State v. Legg, 4th Dist. No. 14CA23, 2016-Ohio-801, ¶ 12 (“a voluntary, knowing, and intelligent guilty plea waives any alleged constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional defects in the proceedings“).
{¶ 9} As noted under the facts, appellant entered an Alford plea of guilty based on North Carolina v. Alford, 400 U.S. 25 (1970). This type of plea “is predicated upon the defendant‘s desire to obtain a lesser penalty rather than risk the consequences of a jury trial.” Benman at ¶ 12. Ohio courts have “recognized that an Alford plea is ‘a species of a guilty plea, which, in effect, waives a defendant‘s right to raise most issues on appeal.’ ” State v. Gilmer, 6th Dist. No. L-12-1079, 2013-Ohio-3055, ¶ 6, quoting State v. Ware, 6th Dist. No. L-08-1050, 2008-Ohio-6944, ¶ 12. See also State v. Darks, 10th Dist. No. 05AP-982, 2006-Ohio-3144, ¶ 14, quoting State v. Carter, 124 Ohio App.3d 423, 429 (2d Dist.1997) (“An Alford plea is ‘merely a species of a guilty plea, having the effect of waiving [a defendant‘s] right to appeal.’ “).
{¶ 10} In arguing appellant waived the right to raise the issues presented on appeal, the state relies on case law generally holding that a plea of guilty waives a defendant‘s ability to challenge the denial of pretrial motions. See, e.g., Huber Heights v. Duty, 27 Ohio App.3d 244 (2d Dist.1985) (declining to reach merits of trial court‘s failure to grant motion to suppress where defendant entered guilty pleas to offenses); State v. McPherson, 8th Dist. No. 82558, 2004-Ohio-5202, ¶ 5 (“By entering a guilty plea, defendant waived his right to appeal the court‘s rulings on pretrial motions.“); State v. Mastice, 2d Dist. No. 10154 (June 8, 1987) (defendant‘s guilty plea operated as a waiver of claimed errors by trial court in overruling pretrial motions to suppress evidence and for separate trials).
{¶ 11} In response to the state‘s waiver argument, appellant contends the issues raised in her appeal implicate the trial court‘s subject-matter jurisdiction which, appellant notes, cannot be waived. See, e.g., State v. Kremer, 3d Dist. No. 15-05-05, 2006-Ohio-736, ¶ 5 (“Subject matter jurisdiction refers to the authority of the court to hear a matter and may not be waived.“).
{¶ 12} Specifically, appellant argues the trial court lacked subject-matter jurisdiction to accept the plea in this case based on her contention that the state, pursuant to
{¶ 13} Even assuming that appellant‘s Alford plea of guilty did not waive the issues presented, we find unpersuasive appellant‘s contention that she could only have been charged with a misdemeanor under
{¶ 14} In considering the interpretation of statutes “and their application, an appellate court conducts a de novo review, without deference to the trial court‘s determination.” State v. Sufronko, 105 Ohio App.3d 504, 506 (4th Dist.1995). Under Ohio law, “[p]rinciples of statutory construction require that specific statutory provisions prevail over conflicting general statutes.” Id., citing State v. Volpe, 38 Ohio St.3d 191, 193 (1988).
{¶ 15}
If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
[I]t is critical in the first instance to determine whether the statutes upon which the prosecution seeks to proceed are general, special or local. If the statutes are general and do not involve the same or similar offenses, then
R.C. 1.51 is inapplicable.However, if one of the statutes is general and one specific and they involve the same or similar offenses, we must then ask whether the offenses constitute allied offenses of similar import.
To summarize,
R.C. 1.51 comes into play only when a general and a special provision constitute allied offenses of similar import and additionally do not constitute crimes committed separately or with a separate animus for each crime. When this is the case, we must proceed with our analysis ofR.C. 1.51 .
{¶ 17} Thus, a conflict arises “when the same conduct receives different penalties under two different statutes.” State v. Hardy, 2d Dist. No. 27158, 2017-Ohio-7635, ¶ 49. However, if the offenses “are not allied offenses of similar import they are not irreconcilable under
{¶ 18} In determining whether offenses are allied offenses of similar import, “the Ohio Supreme Court held that courts must evaluate ‘the conduct, the animus, and the import.’ ” State v. Stewart, 10th Dist. No. 16AP-884, 2017-Ohio-7840, ¶ 43, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. In Ruff, at paragraph three of the syllabus, the Supreme Court held that, pursuant to
{¶ 19} With respect to the charged offenses in the instant case,
(A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:
(1) Forge any writing of another without the other person‘s authority;
(2) Forge any writing so that it purports to be genuine when it actually is spurious, or to be the act of another who did not authorize that act, or to have been executed at a time or place or with terms different from what in fact was the case, or to be a copy of an original when no such original existed;
(3) Utter, or possess with purpose to utter, any writing that the person knows to have been forged.
{¶ 20} Appellant was also charged with (but did not enter a plea to) the offense of tampering with records, pursuant to
(A) No person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall do any of the following:
(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record;
(2) Utter any writing or record, knowing it to have been tampered with as provided in division (A)(1) of this section.
{¶ 21}
{¶ 22} Appellant asserts that
{¶ 24} In Clark, the appellant was convicted and sentenced in municipal court for resisting arrest under Columbus General Offenses Code 2321.33. On appeal, the appellant challenged her conviction, asserting that “principles of statutory construction require the specific statutory provision that addresses resisting enforcing officials in traffic situations, City Traffic Code 2109.03, ‘prevail’ over the general resisting arrest statute, City General Offenses Code 2321.33, because both sections provide different penalties for the same conduct.” Id. at ¶ 13. The appellant in Clark argued that her conviction was in violation of the Supreme Court‘s decision in Volpe, which she cited “for the rule that ‘[w]ell-established principles of statutory construction require that specific statutory provisions prevail over conflicting general statutes.’ ” Id. at ¶ 17, quoting Volpe at 193.
{¶ 25} In considering the applicable law and statutes, this court held in part:
We find the character of these two statutes, compared, do not fit the mold of “general” and “special or local” provisions and, therefore, do not trigger an analysis under
R.C. 1.51 . City General Offenses Code 2321.33 includes the element of reckless or forceful behavior and the element of lawful arrest, both which are unnecessary for conviction under City Traffic Code 2109.03. Even if characterized as a general and a specific statute, they are not “irreconcilable” and can be construed “so that effect is given to both.”R.C. 1.51 . Specifically, each statute provides a different penalty for a different course of conduct. * * * City General Offenses Code 2321.33 addresses resisting situations in any context where the person uses force or acts recklessly, while City Traffic Code 2109.03 addresses resisting situations in traffic contexts where the person does not use force or act recklessly. The slightly harsher penalty attached to City General Offenses Code 2321.33 reflects a higher degree of culpability attached to a person‘s use of force or reckless behavior.
Clark at ¶ 23.
{¶ 27} As set forth above,
{¶ 28} By contrast,
{¶ 30} Because the charging statutes do not contain the same mens rea or culpability as
{¶ 31} We also find no merit with appellant‘s contention that the trial court erred in failing to dismiss the indictment on due process grounds. Appellant points to language in an administrative application form for annual license renewal which contained a warning that misrepresentation or falsification on the application may result in suspension or revocation of a nursing home administrator license. According to appellant, the state‘s attempt to impose a more severe criminal consequence than that set forth in the application was a violation of fundamental due process. We disagree.
{¶ 32} In general, “the decision whether or not to prosecute and what charge to file or bring” rests within the discretion of the prosecutor. State v. Cecil, 10th Dist. No. 84AP-999 (Oct. 17, 1985). Accordingly, a prosecutor‘s “charging discretion” is ordinarily beyond the purview of appellate review “so long as the complaints and indictments are based on
{¶ 33} The fact that a defendant‘s conduct may violate more than one statute “does not force the state to prosecute [such defendant] under the lesser statute.” State v. Cooper, 66 Ohio App.3d 551, 553 (4th Dist.1990). Further, the fact that a prosecutor “may be influenced by the penalties available upon conviction, * * * standing alone, does not give rise to a violation of the * * * Due Process Clause.” United States v. Batchelder, 442 U.S. 114, 125 (1979). Nor is the state “required to proceed against a defendant under a specific statute where the specific and general statute ‘each provides a different penalty for a different course of conduct’ and are therefore reconcilable.” Clark at ¶ 19, quoting State v. Culwell, 10th Dist. No. 96APA04-504 (Nov. 26, 1996).
{¶ 34} In the instant case, appellant does not contend she did not have fair notice of the charged offenses under the indictment. Further, we have previously noted that
{¶ 35} Based on the foregoing, appellant‘s first and second assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
TYACK, P.J., and LUPER SCHUSTER, J., concur.