STATE OF OHIO, PLAINTIFF-APPELLEE vs. PAUL BONNEAU, DEFENDANT-APPELLANT
No. 99437
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 14, 2013
[Cite as State v. Bonneau, 2013-Ohio-5021.]
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-545066
BEFORE: Keough, J., Rocco, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 14, 2013
John F. Corrigan
19885 Detroit Road, #335
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel T. Van
Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Paul Bonneau, appeals from the trial court‘s resentencing. We affirm.
I. Background
{¶2} Bonneau was indicted in an eight-count indictment. Counts 1, 2, and 3 charged gross sexual imposition in violаtion of
{¶3} The matter proceeded to trial. The jury found Bonneau guilty of Counts 1, 2, 3, and 4 (the offenses against M.S.) and not guilty of Counts 5, 6, 7 and 8 (the offenses against A.F.). The trial court sentenced him to six months each on Counts 1 and 2 and, after merging Count 3 into Count 4, to three years; all counts to run concurrent, for an aggregate term of three years incarceration. The court also found that Bonneau was a sexually oriented offender under Megan‘s Law and ordered him to report onсe a year for ten years.
{¶5} Although Bonneau‘s offenses occurred before the effective date of the sentencing reforms enacted in 1996,1 the trial court initially sentenced him under the sentencing provisions of Senate Bill 2. While Bonneau‘s appeal was pending, the trial court resentenced him under the prior law.2 This court held in Bonneau I, however, that the new sentencing judgment was void because the trial court was without jurisdiction to resentence Bonneau while his appeal was pending. Bonneau I at fn.1.
{¶6} After this court‘s decision was announced, the trial court resentenced Bonneau pursuant to the law in effect in 1994 when the offenses were committed. At the
{¶7} Bonneau now appeals from the resentencing.
II. Analysis
{¶8} In his first аssignment of error, Bonneau argues that the trial court erred in imposing a sentence of five to twenty-five years for kidnapping.
{¶9} Initially, we note that the issues in this appeal from the trial court‘s resentencing are not subject to the doctrine of res judicata, despite Bonneau‘s earlier appeal. Bonneau‘s first sentence was void because he was not sentenced under the proper law. See State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984) (a trial court‘s failure to comply with statutory requirements when imposing a sentence renders the attempted sentence a nullity or void). Likewise, Bonneau‘s second sentence was void because the trial court was without jurisdiction to resentence him while his appeal was pending. Thus, the first and second sentences were nullities, as though such proceedings had never occurred. State v. Abner, 8th Dist. Cuyahoga No. 81023, 2002-Ohio-6504, ¶ 17. Accordingly, “any issues arising from the current resentencing were not available оn direct appeal and are not subject to res judicata, as they could not
{¶10} Bonneau contends that the trial court erred in imposing a sentence of five to twenty-five years incarceration because any kidnapping of M.S. was “merely incidental” to the underlying gross sexual impositiоn and, therefore, the conviction for kidnapping “cannot be sustained as a separate cognizable offense.” Accordingly, he argues, the trial court should never have reached the issue of merger because, without a separate offense, the state has no merger оption.
{¶11} Bonneau bases his argument on State v. Logan, 60 Ohio St.3d 126, 397 N.E.2d 1345 (1979), wherein the defendant was convicted of rape, kidnapping, and carrying a concealed weapon and sentenced to consecutive sentences on each count. The appellate court affirmed the convictions. On appeal to the Ohio Supreme Court, the defendant argued that the rape and kidnapping were allied offenses of similar import under
{¶12} Before considering the specific facts of the defendant‘s case, the Ohio Supreme Court set forth the following criteria for determining what constitutes separate animus within the meaning of
In establishing whether kidnapping and another offense of the same or similar kind are committed with a sеparate 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 confinеment 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.
{¶13} Looking at the facts of the defendant‘s casе in light of these guidelines, the Supreme Court in Logan found that the defendant‘s detention and asportation of the victim was incidental to the underlying crime of rape and therefore, that it demonstrated a single animus. Id. at 136. The Supreme Court reversed the defendant‘s conviction for kidnapping; “hence, the kidnаp had been merged into the rape.” State v. Dunlap, 8th Dist. Cuyahoga No. 70427, 1997 Ohio App. LEXIS 91, *8 (Jan. 16, 1997).
{¶14} Bonneau contends that the evidence in this case likewise did not demonstrate that any kidnapping occurred independently of the gross sexual imposition offenses but rather, that any kidnapping was merely incidental to the gross sexual imposition. The evidence at trial demonstrated that on one occasion, Bonneau came up to M.S. as she sat in a chair in the Bonneau‘s home, ran his hand up her thigh, and French-kissed her. M.S. stood up, pushed Bonneau away, and went into the kitchen with Bonneau‘s wife. On another oсcasion, Bonneau came up to M.S. while she was at the Bonneau home, pushed her on the couch, grabbed her hands and held them behind her head, and then French-kissed and “dry-humped” her before M.S. rolled and forced
{¶15} Bonneau contends that this evidence does not demonstrate prolonged or secretive confinement, or substantial movement sufficient to demonstrate a separate animus to support a separate cоnviction for kidnapping. Therefore, he contends that, as in Logan, his kidnapping conviction cannot be sustained as a separate, cognizable offense and, hence, because the kidnapping was not a separate offense, no allied offenses analysis was implicated, аnd there was no merger for the prosecutor to elect. Accordingly, he argues that his kidnapping conviction should be vacated and the matter remanded for resentencing on three counts of gross sexual imposition.
{¶16} Bonneau‘s argument is without merit. The jury found Bonneau guilty of kidnapping, as well as three counts of gross sexual imposition. This court affirmed Bonneau‘s convictions on his direct appeal, specifically finding that his convictions were not against the manifest weight of the evidence. Thus, Bonneau‘s argument that the evidence does not support “a separate, cognizable” kidnapping offense has already been rejected by this court. The law-of-the-case doctrine “provides that the decision of a reviewing court in a case remains the law of the case on the legal questions involved for
{¶17} This court has recognized that gross sexual imposition and kidnapping are allied offenses of similar import. State v. Fischer, 8th Dist. Cuyahoga No. 75222, 1999 Ohio App. LEXIS 5568, *13 (Nov. 24, 1999). The merger doctrine, as codified in
{¶18} The General Assembly has made clear that the state may choose which of the allied offenses to pursue at sentencing, “and it may choose any of the allied offenses.” Id. at ¶ 20, citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 16 and 43. Accordingly, the state could elect in this case to proceed to sentencing on the kidnapping count. Unlike in Logan, where the defendant was sentenced on both
{¶19} We are not persuaded by Bonneau‘s argument that Logan established an exception to the allied offenses doctrine for cases involving kidnapping. In fact, the Logan court recognized that where a defendant has committed a rape and a kidnapping that was an allied offense of the rape, “the perpetrator may be convicted of either rape or kidnapping, but not both.” Logan, 60 Ohio St.2d at 132, 397 N.E.2d 1345. Thus, a defendant may be found guilty of both rape and kidnapping, but may not be sentenced on both. Here, consistent with Logan, Bonneau was found guilty of both kidnapping and gross sexual imposition, but sentenced on only kidnapping. The first assignment of error is therefore overruled.
{¶20} In his second assignment of error, Bonneau contends that the trial court erred in finding him to be a sexually oriented offender under Megan‘s Law and imposing registration requirements consistent with its finding. Bonnеau contends that the registration laws in effect in 1994, when the offenses were committed, did not require him to register and, accordingly, the retroactive application of Megan‘s Law is punitive, in violation of
{¶21} In 1996, the General Assembly enacted
{¶22} In State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700 N.E.2d 570, the Ohio Supreme Court considerеd the constitutionality of Megan‘s Law as applied to offenders who had committed sexually oriented offenses before the effective date of the statute. The Supreme Court held that the law did not violate
{¶23} In 2003, the General Assembly enacted
{¶24} In June 2007, the Ohio General Assembly enacted
{¶25} In Williams, supra, the Ohio Supreme Court found that
{¶26} Thus, under Williams, Cook, and Ferguson, the application of Megan‘s Law to offenders who committed a sexually oriented offense prior to its enаctment does not violate
{¶27} Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there wеre reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR