STATE OF OHIO v. LEMAR D. DANIELS
C.A. No. 26406
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 6, 2013
[Cite as State v. Daniels, 2013-Ohio-358.]
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 07 1921
Dated: February 6, 2013
CARR, Judge.
{1} Defendant-Appellant, Lemar Daniels, appeals from his resentencing in the Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and remands.
I.
{2} This Court set forth the facts underlying this matter in a prior appeal. See State v. Daniels, 9th Dist. No. 25808, 2011-Ohio-6414. In essence, Daniels was charged with repeatedly raping the resident of a group home over the course of an evening when Daniels was acting as the resident‘s nursing assistant. A jury found Daniels guilty of six counts of rape, three counts under
{3} On appeal, this Court affirmed Daniels’ guilty verdicts, but declined to decide his allied offense argument due to the issuance of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Because Johnson represented a dramatic shift in the law of allied offenses, we remanded the matter to the trial court for it to apply Johnson in the first instance. Daniels at ¶ 13. Upon remand, the trial court held a resentencing hearing and determined, pursuant to Johnson, that only three of Daniels’ counts should merge. The court merged the three counts under
{4} Daniels now appeals and raises eight assignments of error for our review. For ease of analysis, we combine several of the assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT FAILED TO MERGE ALL OF THE COUNTS FOR SENTENCING PURPOSES AS THEY WERE ALL ALLIED OFFENSES OF SIMILAR IMPORT.
{5} In his first assignment of error, Daniels argues that the trial court committed plain error by convicting him of allied offenses of similar import. Specifically, he argues that all of his rape convictions should have merged for purposes of sentencing. We disagree.
{6} Ohio‘s allied offense statute provides as follows:
(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.
{7} “When determining whether two offenses are allied offenses of similar import subject to merger under
{9} Well before the issuance of the element-based allied offenses cases that the Supreme Court rejected in Johnson, see, e.g., State v. Rance, 85 Ohio St.3d 632 (1999), the Supreme Court held that vaginal intercourse and fellatio constitute “separate sexual conduct” such that an offender is punishable for each rape. State v. Barnes, 68 Ohio St.2d 13, 14 (1981). This Court reached a similar result several years prior when we upheld separate convictions for a defendant who had forced his victim to engage in vaginal intercourse before anally penetrating her. State v. Ware, 53 Ohio App.2d 210, 211 (9th Dist.1977) (“We hold that the entry into two bodily orifices constituted two separate acts of rape.“). Since the issuance of Johnson, several other districts have continued to hold that different forms of forcible penetration constitute separate acts of rape for which a defendant may be separately punished. See, e.g., State v. Cuthbert, 1st Dist. No. 11CAA070065, 2012-Ohio-4472, ¶ 50-51; State v. Trotter, 8th Dist. No. 97064, 2012-Ohio-2760, ¶ 45; State v. Davic, 10th Dist. No. 11AP-555, 2012-Ohio-952, ¶ 16; State v. Hernandez, 12th Dist. No. CA2010-10-098, 2011-Ohio-3765, ¶ 48-49. We agree with our sister districts.
involved distinct, different kinds of sexual activity. Thus, they were separate offenses for merger purposes, even though they were committed in the course of the same sexual encounter. Because these offenses involved different, distinct types of sexual activity, they each constituted a separate crime, and their merger [was] not required by
R.C. 2941.25(B) .
State v. Drummonds, 1st Dist. No. C-110011, 2011-Ohio-5915, ¶ 8, quoting State v. Strong, 1st Dist. Nos. C-100484 & C-100486, 2011-Ohio-4947, ¶ 71. Accord Barnes at 14; Ware at 211. As such, the trial court did not err by sentencing Daniels on all three rape counts. Daniels’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN FAILING TO PROVIDE DANIELS WITH HIS RIGHT TO PROPER ALLOCUTION PRIOR TO THE IMPOSITION OF HIS PRISON SENTENCE IN VIOLATION OF
ASSIGNMENT OF ERROR III
DANIELS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT AT HIS RE-SENTENCING HEARING THAT THE TRIAL COURT FAILED TO PROPERLY ALLOCUTE PRIOR TO THE IMPOSITION OF DANIELS’ PRISON SENTENCE.
{11} In his second assignment of error, Daniels argues that the trial court denied him his right of allocution before it imposed his sentence. In his third assignment of error, Daniels argues that he received ineffective assistance of counsel because his trial counsel did not object when the court denied him his right of allocution. We disagree.
{12} Pursuant to
{13} The record reflects that Daniels had counsel at the resentencing hearing and, before resentencing Daniels, the trial court both addressed Daniels’ counsel and personally addressed Daniels. In personally addressing Daniels, the following exchange took place:
THE COURT: Mr. Daniels, would you like to make any statement regarding sentencing at this time?
THE DEFENDANT: Yes, sir. I still continue on saying * * * what I had stated before: I didn‘t do this. As far as I know, * * * the case itself didn‘t prove that I really did these things. I just want [] to * * * put that out there that I have been a person that always followed the law. As far as that, I have always done it. But as far as this, I didn‘t do it, I really didn‘t. So I still maintain the same thing that I said to you before.
The court then proceeded to sentence Daniels. According to Daniels, he was denied his right of allocution because the court never specified that he could make a statement or present evidence for the distinct purpose of mitigation.
{14} The trial court personally addressed Daniels and asked whether he wished to make a statement regarding sentencing. Both the Ohio Supreme Court and this Court have recognized that a trial court complies with a defendant‘s right of allocution when it personally addresses the defendant and asks whether he has anything to say. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 186-188; State v. Vickers, 9th Dist. No. 01CA007928, 2002-Ohio-3628, ¶ 34. Here, the trial court‘s question was even more specific because the court asked whether Daniels had any statement to make “regarding sentencing.” Moreover, Daniels took advantage of the opportunity and informed the court that he had always been a law-abiding citizen. Based
{15} Daniels also argues that he received ineffective assistance of counsel because his counsel did not object when the trial court failed to afford him his right of allocution. We have already determined, however, that the trial court afforded him his right of allocution. As such, “his ineffective assistance of counsel argument also must fail, as it is premised upon the same error.” State v. El-Jones, 9th Dist. No. 26136, 2012-Ohio-4134, ¶ 45. His third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING DANIELS WITHOUT CREDITING TO HIS SENTENCE OF INCARCERATION THE NUMBER OF DAYS THAT HE WAS CONFINED PRIOR TO CONVICTION AND SENTENCE.
ASSIGNMENT OF ERROR V
DANIELS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT AT HIS RE-SENTENCING HEARING THAT THE TRIAL COURT WAS REQUIRED TO DETERMINE DANIELS’ NUMBER OF DAYS OF CONFINEMENT BEFORE SENTENCE WAS IMPOSED.
{16} In his fourth assignment of error, Daniels argues that the trial court erred by sentencing him without including his credit for time served in his sentence. In his fifth assignment of error, he argues that he received ineffective assistance of counsel because his counsel did not object to the court‘s failure to calculate his time served.
{17} In Daniels’ first appeal, this Court reversed his sentence and remanded the matter for resentencing so that the trial court could apply State v. Johnson. The reversal necessitated a new sentencing hearing, at which the court could receive additional arguments and, if it
{18} ”
{19} Although the trial court previously calculated Daniels’ credit for time served at the time of his original sentencing, the court did not include the credit in its March 2012 sentencing entry when it resentenced Daniels. The court was obligated to include Daniels’ credit calculation in its sentencing entry. Keith at ¶ 6. Accordingly, Daniels’ fourth assignment of error is sustained on that basis.
{20} Daniels also argues that his trial counsel was ineffective for failing to object when the court did not calculate his time served. In light of our disposition of Daniels’ fourth
ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING DANIELS WITHOUT COMPLYING WITH
ASSIGNMENT OF ERROR VII
DANIELS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT‘S FAILURE TO RE-SENTENCING (sic) DANIELS IN ACCORDANCE WITH
{21} In his sixth assignment of error, Daniels argues that the court erred by sentencing him without informing him, pursuant to
{22} The statute governing earned credit allows offenders to receive a reduction in their stated prison terms upon the completion of certain designated programs.
{23} Former
{24} Daniels also argues that he received ineffective assistance of counsel because his counsel did not object when the trial court failed to notify him regarding earned credit. Because we have already determined that the court did not commit reversible error by not informing Daniels about earned credit, his ineffective assistance argument also must fail. El-Jones, 2012-Ohio-4134, at ¶ 45. Daniels’ seventh assignment of error is overruled.
ASSIGNMENT OF ERROR VIII
THE CUMULATIVE EFFECT OF THE TRIAL COURT‘S ERRORS DENIED DANIELS A FAIR SENTENCING HEARING.
{25} In his eighth assignment of error, Daniels argues that he was deprived of a fair sentencing hearing due to cumulative errors on the part of the trial court. Assuming without deciding that the cumulative error doctrine applies to a resentencing such as the one at hand, a
III.
{26} Daniels’ first, second, third, sixth, seventh, and eighth assignments of error are overruled, and his fifth assignment of error is moot. Daniels’ fourth assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.