STATE OF OHIO, Plаintiff-Appellee, - vs - SHANE S. COFFMAN, Defendant-Appellant.
CASE NO. CA2015-01-014
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
7/27/2015
[Cite as State v. Coffman, 2015-Ohio-2990.]
S. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-11-1833
Repper, Pagan, Cook Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
O P I N I O N
S. POWELL, J.
{¶ 1} Defendant-appellant, Shane S. Coffman, appeals from the conviction and sentence he received in the Butler County Court of Common Pleas resulting from his admitted violation to the terms and conditions of his intervention in lieu of conviction treatment plan after he pled guilty to single counts of attempted tampering with evidence and possession of heroin. For the reasons outlined below, we affirm.
{¶ 3} On February 28, 2014, Coffman filed a motion requesting he be granted intervention in lieu of conviction (ILC) and be placed on an ILC treatment plan. The trial court held a hearing on the matter on April 23, 2014. During this hearing, the state informed the trial court that it had reached a plea agreement with Coffman, wherein Coffman would plead guilty to a reduced charge of attempted tampering with evidence, a fourth-degree felony, as well as the originally charged possession of heroin offense, in exchange for his placement on ILC. However, before Coffman entered his guilty plea, the trial court engaged Coffman in the following discussion:
THE COURT: Okay. Now, you‘re going to be going into the intervention in lieu program. But I can tell you now that, sir, if you‘re not able to complete that program there‘s a mandatory – you must go to prison –
THE DEFENDANT: Yes, sir.
THE COURT: -- as there – if you violate the conditions in that.
On the attempted tampering of evidence, which is an F4, you can get 18 months in prison; on the F5, possession of heroin, that‘s 12 months in prison. So you‘re exposing yourself to a possible 2 1/2 years in prison if you‘re not able to complete the program. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: I‘m also – there‘s a $5,000 fine on Count I and a $2500 fine possible on Count II, for a total of $7500. Do you
understand that? THE DEFENDANT: Yes, sir.
THE COURT: And, also, there‘s a license suspension of 6 months to 5 years. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Now, I‘m also going to tell you that if you end [up] going to prison – which I hope you don‘t – but if you do, you‘d be subject to optional post-release control for up to three years.
What that means is once you get out of serving the prison sentence that is imposed, the Adult Parole Authority could impose certain conditions or rules on you; and if you violate those conditions, then they can send you back to prison for up to one half the originally stated prison sentence and then commence for up to nine months for each violation. Do you understand that?
THE DEFENDANT: Yes, sir.
{¶ 4} Following this discussion, and after the trial court completed the remaining
{¶ 5} On August 1, 2014, a mere three months and nine days after Coffman was
{¶ 6} Assignment of Error No. 1:
{¶ 7} COFFMAN‘S PLEAS WERE NEITHER KNOWING, INTELLIGENT, NOR VOLUNTARY.
{¶ 8} In his first assignment of error, Coffman argues his guilty pleas to the single counts of attempted tampering with evidence and possession of heroin were not knowingly, intelligently and voluntarily made. We disagree.
{¶ 9} “When а defendant enters a guilty plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily, and the failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Butcher, 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-3081, ¶ 8, citing State v. Douglass, 12th Dist. Butler Nos. CA2008-07-168 and CA2008-08-199, 2009-Ohio-3826, ¶ 9. To ensure that a defendant‘s plea is entered knowingly, intelligently and voluntarily, the trial court must engage the defendant in a colloquy pursuant to
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defеndant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to requirе the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶ 10} A guilty plea is invalid if the trial court does not strictly comply with
{¶ 11} Yet, even where we find the trial court did not substantially comply with
{¶ 12} At the outset, we note that Coffman argues he actually entered two guilty pleas, “one at the ILC рlea hearing and the second at the ILC-revocation hearing.” According to Coffman, “[t]he right to understand a plea‘s effects extends equally to a second plea at an ILC-revocation hearing.” However, similar to a community control revocation hearing, we find the so-called “effect of the plea” requirement found in
{¶ 13} Rather, contrary to Coffman‘s claim otherwise,
{¶ 14} Moreover, although Coffman cites to our decision in State v. Davis, 12th Dist. Warren Nos. CA2013-12-129 and CA2013-12-130, 2014-Ohio-2122, we find that case distinguishable. Unlike the case at bar, our decision in Davis addressed the issue of whether
As noted above, after being notified of [the offender‘s] alleged positive drug test, the trial court held a hearing, wherein [the offender] admitted to the violation of the terms and conditions of his ILC. Yet, although entering a guilty finding, the trial court merely ordered [the offender] to continue with his ILC treatment plan after serving only four dаys in jail. This is not an appropriate sanction under
R.C. Chapter 2929 .
{¶ 15} Furthermore, although this court did permit the offender in Davis to move to withdraw the plea he entered admitting to the violation of the terms and conditions of his ILC, that was because the offender‘s decision to admit to the violation was based on the trial court misinforming him that he could remain on ILC if he admitted to the violation at the ILC revocation hearing. Id at ¶ 12. In turn, our decision in Davis presents a strikingly different set of facts and circumstances than the case at bar. Therefore, besides the general principles regarding ILC and the ILC statute, we find our decision in Davis is simply not applicable here.
{¶ 16} That said, turning to the facts and circumstances of this case, while it is undisputed the trial court strictly complied with the constitutional requirements of
{¶ 17} To that end, Coffman argues he was prejudiced by the trial court‘s partial compliance with the nonconstitutional notification requirements of
{¶ 18} As noted above, the test for prejudicial effect “is whether the plea would have otherwise been made.” Hartsook, 2014-Ohio-4528 at ¶ 18. Coffman has not shown that had he known he was not subject to a mandatory prison sentence if he violated the terms of his ILC treatment plan that he would not have pled guilty. See, e.g., State v. Younker, 2d Dist. Montgomery No. 26414, 2015-Ohio-2066, ¶ 22-27 (finding appellant “has not demonstrated prejudice such that his pleas аre void based upon the trial court‘s determination that he was subject to a mandatory sentence, when in fact he was not“); see also State v. Gulley, 1st Dist. Hamilton No. C-040675, 2005-Ohio-4592, ¶ 22 (holding “where the trial court erroneously overstates the length of additional prison time that can be imposed for a violation of post-release-control conditions, the defendant is not prejudiced“); State v. Scott, 8th Dist. Cuyahoga No. 73071, 1998 WL 413773, *3 (July 23, 1998) (determining that “[a]lthough the
{¶ 19} Assignment of Error No. 2:
{¶ 20} COFFMAN‘S CONVICTIONS REQUIRED MERGER AS ALLIED OFFENSES OF SIMILAR IMPORT.
{¶ 21} In his second assignment of error, Coffman argues the trial court committed рlain error by failing to merge his convictions for attempted tampering with evidence and possession of heroin as they were allied offenses of similar import.2 We disagree.
{¶ 22} Pursuant to
(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 сonvicted of all of them.
{¶ 23} Although previously applying the two-part test as outlined in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme Court clarified the test for allied
{¶ 24} Here, Coffman argues the trial court committed plаin error by failing to merge his attempted tampering with evidence conviction with his possession of heroin conviction because the “offenses involved a single act: Coffman possessed the heroin as he attempted to flush it.” However, comparable to our holding as it relates to carrying a concealed weapon and having a weapon while under disability, see State v. Dillingham, 12th Dist. Butler No. CA2011-03-043, 2011-Ohio-6348, ¶ 28, because possession of herоin is itself a crime, we find Coffman‘s attempt to then flush the heroin down the toilet while officers executed a search warrant on the property constitutes a separate offense that was committed with a separate animus or motivation; i.e., to destroy or conceal the heroin with the purpose to impair its availability as evidence. As this court has stated previously, the term “animus” means “‘purpose’ or ‘more properly, immediate motive.‘” State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13, quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979). Therefore, because we find the two offenses were committed separately and with a separate animus or motivation, the trial court did not err, let alone commit plain error, by failing to merge Coffman‘s attempted tampering with evidence conviction with his possession
{¶ 25} Assignment of Error No. 3:
{¶ 26} THE REVOCATION-HEARING COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
{¶ 27} In his third assignment of error, Coffman argues the trial court erred by imposing consecutive sentences because the record did not contain evidence to support the trial court‘s consecutive sentence findings under
{¶ 28} Pursuant to
(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 , or2929.18 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 adequаtely 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.
{¶ 29} “A trial court satisfies the statutory requirement of making the required findings when the record reflects that the court engaged in the required analysis and selected the appropriate statutory criteria.” State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 аnd CA2013-06-050, 2014-Ohio-2340, ¶ 113. When imposing consecutive sentences, a trial court is not required to provide a word-for-word recitation of the language of the statute or articulate reasons supporting its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 27, 29. “Nevertheless, the record must reflect that the trial court engaged in the required sentencing analysis and made the requisite findings.” State v. Moore, 12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-5191, ¶ 12. The court‘s findings must then be incorporated into its sentencing entry. Id., citing Bonnell at ¶ 37. Therefore, “as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29.
{¶ 30} As noted above, Coffman does not dispute that the trial court made all the necessary findings required by
{¶ 31} Furthermore, as the trial court found, after absconding, Coffman ridiculed
This Defendant has expressed, through his conduct, zero desire to accept rehabilitation efforts that were then extended towards him and not just rejected it but did so in a fashion that not only attempts to poke fun, or whatever the case may be, at probation staff, who are the representatives – the arms – of the Court and, therefore, ridicule аnd poke fun and publicly attempt to embarrass the Court and its staff, but also members of TASC.
While Coffman attempts to downplay these facts by implying he is a model citizen who has no criminal history at all, the record before this court clearly proves otherwise. Therefore, because we find no error in the trial court‘s decision imposing consecutive sentences in this matter, Coffman‘s third assignment of error is overruled.
{¶ 32} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.