State v. BlandaState v. Blanda
Brian K. Harrison, P.O. Box 80, Monroe, Ohio 45050, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶1} Defendant-appellant, Vincent Blanda, appeals a decision of the Butler County Court of Common Pleas sentencing him following his convictions for murder, child endangering, and domestic violence. For the reasons outlined below, we reverse the decision of the trial court in part and remand.
{¶2} On the morning of March 24, 2008, Carmen Vanscyoc departed for work and left the children in the care of her husband, appellant. Around 7:00 a.m., appellant
{¶3} Appellant phoned Carmen for advice. Carmen suggested that appellant wrap Brooklyn in a blanket, give her a pacifier, and walk around until she fell asleep. After these efforts also failed, appellant “snapped.” He held Brooklyn in front of him, shouted at her, and shook her until she stopped crying. The infant slowly began going limp and regurgitated a white fluid from her mouth and nose. She remained quiet, except for gurgling sounds.
{¶4} Appellant, growing concerned, phoned Carmen and told her he “did something stupid” and shook the baby. An alarmed Carmen asked to speak to Mercedes. After observing that Brooklyn was growing pale, appellant called a nonemergency number for the Butler County Sheriff. He was transferred to a police dispatcher for the city of Hamilton, who sent police and paramedics to the Blanda residence.
{¶5} Brooklyn was first transported to Fort Hamilton Hospital, and then to Cincinnati Children‘s Medical Center. She died the next day. An autopsy revealed that Brooklyn suffered an intracranial hemorrhage due to cranial cerebral trauma. The coroner opined that the manner of death was homicide.
{¶6} On May 7, 2008 appellant was indicted on felony murder in violation of
{¶7} The trial court sentenced appellant to a six-month jail term on the domestic violence conviction, an eight-year prison term on the child endangering conviction (to be served concurrent with the six-month term), and an indefinite prison term of 15 years to life on the felony murder conviction (to be served consecutive to the eight-year term). Appellant timely appeals, raising a single assignment of error.
{¶8} Assignment of Error No. 1:
{¶9} “THE TRIAL COURT ERRED IN IMPOSING MULTIPLE PUNISHMENTS FOR ALLIED OFFENSES OF SIMILAR IMPORT CONTRARY TO
{¶10} Appellant argues that the trial court erred in sentencing him on his convictions for child endangering and felony murder because these offenses are allied offenses of similar import under
{¶11}
“(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.”
{¶15} If it is possible to commit both offenses with the same conduct, the court must next determine whether the offenses were in fact committed by a single act, performed with a single state of mind. Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶50 (Lanzinger, J., concurring in judgment only). If so, the offenses are allied offenses of similar import and must be merged. Johnson at ¶50. On the other hand, if the offenses are committed separately or with a separate animus, the offenses will not merge. Id. at ¶51.
{¶16} We employ the Johnson analysis to determine whether child endangering under
{¶17} The offense of second-degree child endangering under
{¶18} We conclude that it is possible to commit the offenses of second-degree child endangering under
{¶19} The offenses were based upon the following conduct. Appellant shook his infant daughter, Brooklyn, directly causing serious injury to the infant and, ultimately, her death. Appellant‘s convictions for both offenses were generally based on this single shaking incident. In fact, the shaking incident served as the basis for the offense of child endangering, which in turn served as the predicate offense for appellant‘s felony murder conviction. See id. Clearly, the state relied upon the same conduct to prove both offenses. Johnson at ¶56. Consequently, the offenses are allied offenses of similar import and must be merged. Id. at ¶50.
{¶20} Appellant failed to argue at the trial court level or on appeal that his conviction for domestic violence was also an offense of similar import allied to his other convictions. However, it is within this court‘s discretion to sua sponte consider whether the trial court committed plain error. State v. Byrd, Warren App. No. CA2008-10-124, 2009-Ohio-1722, ¶21, fn. 1. See, also, State v. Derov, Mahoning App. No. 07 MA 71, 2009-Ohio-5513, ¶12-13.
{¶21} The offense of domestic violence under
{¶22} On the other hand, where a person knowingly abuses a family or household member who is a minor child and thereby causes serious physical harm, it is possible for him to have committed the offenses of domestic violence and second-degree child endangering under
{¶23} After reviewing the record, it is evident that the state relied upon the same conduct to prove the offenses of domestic violence and child endangering. Appellant‘s single act of shaking Brooklyn formed the basis for both charges. Therefore, appellant‘s convictions for domestic violence and child endangering in this case were allied offenses of similar import and the failure to merge them amounted to plain error. Id. at ¶50.
{¶24} We note that, because this was a pre-Johnson case, the charges were pursued collectively in contemplation of the now-overruled Rance analysis for allied offenses of similar import. Following Johnson, it is likely that criminal cases will proceed differently from the indictment forward. In the present matter, neither the parties nor the trial court could have anticipated the Johnson decision and its impact on the allied offenses analysis. However, because Johnson is now the law and this case cannot be retried due to Double Jeopardy concerns, we are compelled to view the record as it stands in addressing the issue.
{¶25} Because the trial court erred in failing to merge appellant‘s convictions, his sole assignment of error is sustained. As far as we can discern, the state retains the right to elect which allied offense to pursue at sentencing following a remand to the trial court, and the trial court is still bound by the state‘s election. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶24.
{¶26} Insofar as the trial court failed to merge appellant‘s convictions, the judgment of the trial court is reversed and this matter is remanded for further proceedings according to law and consistent with this opinion.
{¶27} Judgment affirmed in part, reversed in part, and remanded.
POWELL, P.J., and RINGLAND, J., concur.