State of Ohio v. Jason Darnell Duhart
No. L-16-1283
Cоurt of Appeals of Ohio, Sixth Appellate District, Lucas County
September 29, 2017
[Cite as State v. Duhart, 2017-Ohio-7983.]
MAYLE, J.
Trial Court No. CR0201602207
DECISION AND JUDGMENT
Decided: September 29, 2017
Julia R. Bates, Lucas County Prosecuting Attorney, and Patricia S. Wardrop, Assistant Prosecuting Attorney, for appellee.
Patricia Horner, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Jason Darnell Duhart, appeals the November 3, 2016 judgment of the Lucas County Court of Common Pleas, convicting him of one count of vandalism, one count of grand theft of a motor vehicle, and three counts of breaking and
I. Background
{¶ 2} On April 1, 2016, a number of storage units were broken into on Tractor Road in Toledo, Ohio. DNA found at the scene linked Jason Darnell Duhart to the crimes. On Junе 29, 2016, he was indicted on one count of vandalism, a violation of
{¶ 3} On October 19, 2016, the state entered into an agreement with Duhart whereby he would enter a plea of guilty to counts one, two, sеven, nine, and sixteen, in exchange for dismissal of the remaining counts. The trial court accepted Duhart‘s plea, made a finding of guilty, ordered a presentence investigation report (“PSI“), and continued the matter for sentencing on November 2, 2016. At that time, the court imposed a sentence of 17 months in prison on counts one and two, and ten mоnths on counts seven, nine, and sixteen, all to be served consecutively for a total prison term of 64 months. The court also ordered restitution of $450.00 to one of the victims,1 and imposed the costs of supervision, confinement, assigned counsel, and prosecution.
{¶ 4} Duhart appealed the judgment of the trial court, and he assigns the following errors for our review:
II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO FIND THE MULTIPLE CONVICTIONS FOR BREAKING AND ENTERING WERE ALLIED OFFENSES OF SIMILAR IMPORT[.]
III. THE TRIAL COURT ERRED IN ORDERING DEFENDANT TO PAY COSTS AND REIMBURSE THE STATE[.]
II. Law and Analysis
{¶ 5} Duhart raises challenges to the trial court‘s acceptance of his plea and to the sentence imposed by the court. More specifically, he argues that
A. The Plea
{¶ 6} In his first assignment of error, Duhart contends that his guilty pleas were not entered knowingly and voluntarily as required by
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(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 defendant understands the effect of the plea of guilty оr 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 require 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.
{¶ 8} The purpose of
{¶ 9} A “plea of guilty is a complete admission of the defendant‘s guilt.”
{¶ 11} Here, the trial court addressed Duhart personally and confirmed that he speaks English, was not under the influence of medication, drugs, or alcohol at the time of entering his plea, did not suffer from mental illness, and was not threatened or promised anything to enter his plea. It inquired whether he had had sufficiеnt time to talk to his lawyer, whether his lawyer went over evidence, discussed potential defenses, and answered his questions, and whether he was satisfied with the advice and representation of counsel. Duhart answered “yes” to all questions.
{¶ 12} The court explained to Duhart that it was not required to accept any sentencing recommendation. It identified each of the offenses by their revised code section numbers, specified the degree of the offenses, and made reference to the particular counts in the indictment to which Duhart was entering his pleas. The court specifically asked: “Do you understand the nature of those charges?” to which Duhart replied, “Yes, sir.”
{¶ 13} The court went over the penalties of each charge. It explained that counts one and two carry a prison term of up to 18 months and a fine of up to $5,000, and counts seven, nine, and 16 carry a prison term of up to 12 months and a fine of up to $2,500.
{¶ 14} The trial court went ovеr the constitutional rights that Duhart was waiving by entering his plea, including the right to a trial by a jury of his peers who must render a unanimous verdict; the right to have the state prove his guilt beyond a reasonable doubt as to each element of each crime; the right to have the case tried to the bench instead of to a jury; the right to confront witnesses; and the right tо compel attendance of witnesses at trial. The court also informed Duhart that if he exercised his right to a trial, he could not be forced to testify against himself and his silence could not be used against him, and it explained his limited appeal rights following the entry of a plea of guilty. Duhart answered “yes” when asked if he understood these rights.
{¶ 15} Finally, the triаl court asked Duhart if he had questions for his lawyer or questions for the court. Duhart responded “no.” The court confirmed with Duhart that his attorney had read him the charges to which he was entering his pleas, and that he understood the nature of the charges and the potential penalties involved. Duhart identified that he had signed the plea forms, that he had enough time to go over the forms with his attorney, and that he had no questions about the forms. The court asked if he was entering his plea voluntarily, and Duhart responded “yes, sir.”
{¶ 17} We find Duhart‘s first assignment of error not well-taken.
B. Allied Offenses
{¶ 18} In his second assignment of error, Duhart argues that the trial court committed error by failing to merge his three breaking and entering convictions. The state responds that each count to which Duhart entered a pleа involved a separate victim, thus the offenses were of dissimilar import and not subject to merger.
{¶ 19} Both Duhart and the state observe that this issue was not raised in the trial court. The Ohio Supreme Court held in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3, that “[a]n accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error.” It recognized that “a fоrfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.” Id. It explained that to establish plain error in a trial court‘s failure to inquire whether convictions should merge for purposes of sentencing, “an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import.” Id. See also State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 25.
{¶ 21}
(A) Where the same conduct by defendant can be construed tо 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.
{¶ 22} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 23, the Ohio Supreme Court specifically recognized that offenses are of dissimilar import “when the defendant‘s conduct constitutes offensеs involving separate victims or if the harm that results from each offense is separate and identifiable.”
{¶ 23} We have reviewed the entire record here, and contrary to Duhart‘s assertion, it is clear that the offenses at issue were of dissimilar import because each
[The state]: Your Honor, the State would just note that these charges do involve eleven separate and distinct would-be victims, though some suffered no loss other than broken locks.
The Court: And these five felonies represent individuals, separate victims?
[The state]: Each one represents an individual * * *.
{¶ 24} In addition to this, with respect to each of the five counts to which Duhart entered pleas, the PSI specifically identified the owner of the storage unit, the number assigned to the unit, and whаt was taken from the unit. The court made clear at sentencing that it had reviewed the PSI, and this was apparent from the statements it made at sentencing.
{¶ 25} Because the record is clear that Duhart was convicted of five separate offenses representing harm to five separate victims, Duhart is unable to demonstrate a reаsonable probability that his convictions are for allied offenses of similar import. He has, therefore, failed to show any prejudicial effect on the outcome of the proceeding and cannot establish plain error.
{¶ 26} We find Duhart‘s second assignment of error not well-taken.
{¶ 27} In his third assignment of error, Duhart argues that the trial court errеd when it ordered him to pay the costs of prosecution, court costs, costs of supervision, and costs of confinement because the record lacks evidence that the trial court considered his present and future ability to pay. He insists that there was no discussion of his employment history, his level of education, or “the type of employment, if any, the appellant had prior to the incident.”
{¶ 28} The state counters that
{¶ 29} Under
{¶ 31} The court specifically found that “given his employability,” Duhart has “or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision [and] confinement.” We find that the record supports the court‘s finding.
{¶ 32} For one, defense counsel made the following statement to the court at sentencing:
[Duhart‘s] girlfriend * * * has helped him with—towards working toward getting a GED. He does have employment lined up. I know that the court does hear that very often. However, I‘ve had contact, information regarding his emplоyment. For any individual to make $500 a week is a pretty good job.
{¶ 33} In addition to this, the trial court made repeated references to having reviewed the PSI. The PSI indicates that before his incarceration, Duhart was employed by the same company for three-and-a-half years earning $600 per week. It also indicates
{¶ 34} We will reverse a trial court‘s decision to impose costs and financial sanctions if it is contrary to law.
{¶ 35} We, therefore, find Duhart‘s third assignment of error not well-taken.
III. Conclusion
{¶ 36} We find that Duhart‘s entered his pleas of guilty knowingly and voluntаrily. We find no error in the trial court‘s failure to merge Duhart‘s three breaking and entering convictions. And we find no error in the court‘s imposition of costs. We, therefore, find Duhart‘s three assignments of error not well-taken, and we affirm the November 3, 2016 judgment of the Lucas County Court of Common Pleas. The costs of this appeal are assessed to Duhart under
Judgment affirmed.
Arlene Singer, J.
JUDGE
James D. Jensen, P.J.
JUDGE
Christine E. Mayle, J.
CONCUR.
JUDGE