THE STATE OF OHIO, APPELLANT, v. FENWICK, APPELLEE.
No. 00-966
Supreme Court of Ohio
Decided May 2, 2001
91 Ohio St.3d 1252 | 2001-Ohio-51
Submitted February 27, 2001. CERTIFIED by the Court of Appeals for Erie County, No. E-98-031.
Certification of conflict dismissed as improvidently certified—Court of appeals’ opinion not to be published in Ohio Official Reports.
{¶ 1} The certification of conflict is dismissed, sua sponte, as having been improvidently certified.
{¶ 2} The court orders that the court of appeals’ opinion not be published in the Ohio Official Reports, and that it may not be cited as authority except by the parties inter se.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs separately.
MOYER, C.J., dissents.
COOK, J., concurring.
{¶ 3} I agree with the decision to dismiss this cause as improvidently certified. I write separately to explain my decision in light of Chief Justice Moyer‘s dissenting opinion.
{¶ 4} The Chief Justice believes that even if the court of appeals may have failed to clearly set forth the rule of law upon which the alleged conflict exists, this court should overlook any deficiency in the certification order so that we may now resolve what appears to be an actual conflict among the districts on a purely legal issue. If I shared the Chief Justice‘s view that the only procedural deficiency in
{¶ 5} As the Chief Justice notes, the Erie County Court of Appeals determined that “[t]he court‘s failure to vacate appellant‘s [Fenwick‘s] convictions for gross sexual imposition and attempted sexual battery left him convicted of six felonies when he committed only four criminal acts.” (Emphasis added.) Based on this determination, the court of appeals applied the plain-error analysis that ultimately became the subject of its certification order. But this determination—that the trial court violated
{¶ 6} As the appellate court described, after the jury found Fenwick guilty of all six charged offenses, “[t]he court then proceeded to sentence appellant. Finding that appellant‘s convictions for rape (Count 1) and gross sexual imposition (Count 3) were allied, the court determined that for purposes of sentencing those convictions must merge. The court then sentenced appellant to nine years’ incarceration on the rape conviction. Finding further that appellant‘s convictions for sexual battery (Count 2) and attempted sexual battery (Count 5) were also allied, the court merged those convictions and sentenced appellant to four years’ incarceration on the sexual battery conviction.” (Emphasis added.)
{¶ 7} As the court of appeals itself noted, the trial court only imposed sentence “on the rape conviction” that remained after the explicit merger of Counts 1 and 3, and only imposed sentence “on the sexual battery conviction” that remained after the explicit merger of Counts 2 and 5. For purposes of
{¶ 8} If and when this court resolves what appears to be a conflict among the districts as to whether a trial court commits plain error in entering “convictions” on allied offenses of similar import, we should do so in a case in which the trial court actually erred in its application of
{¶ 9} For the foregoing reasons, I join the majority‘s decision to dismiss this cause as having been improvidently certified.
{¶ 10} The Court of Appeals for Erie County certified the record of this case to us for review and final determination, finding its judgment to be in conflict with judgments pronounced upon the same question by other courts of appeals of the state.
{¶ 11} I respectfully dissent from the dismissal of this case as having been improvidently certified. The cases discussed by the court of appeals in its certification order demonstrate a clear “conflict between appellate judicial districts on a rule of law.” Whitelock, paragraph one of the syllabus. We should resolve that conflict now.
{¶ 12} I acknowledge that the issue as framed by the court of appeals might be deemed as failing to clearly set forth the rule of law upon which an alleged conflict exists, as mandated by
{¶ 13} It is apparent, however, that a conflict exists among the districts on a purely legal issue. That issue of general applicability might alternatively be stated as follows: “Where a jury finds a defendant guilty of multiple criminal offenses, some of which are subsequently merged as being allied offenses of similar import, does a
{¶ 14}
{¶ 15} In the case at bar the appellee took the fifteen-year-old daughter of his girlfriend in a car, held a knife to her neck, and unsuccessfully attempted penile rape. He did, however, penetrate her digitally. The jury returned guilty verdicts on all six offenses charged as a result of these events: rape, sexual battery, gross sexual imposition, attempted rape, attempted sexual battery, and intimidation.
{¶ 16} The trial court held, “for purposes of sentencing, that Count Nos. 1 [rape] and 3 [gross sexual imposition] shall merge and Count Nos. 2 [sexual battery] and 5 [attempted sexual battery] shall merge.” It sentenced appellee, “having been found guilty as to Count Nos. 1 and 3, for the offenses of RAPE * * * and GROSS SEXUAL IMPOSITION * * * for the term of nine (9) years; defendant having been found guilty as to Count Nos. 2 and 5, for the offenses of SEXUAL BATTERY * * * and ATTEMPTED SEXUAL BATTERY * * * for the term of four (4) years.” The court ordered those sentences to be served consecutively to each other and to additional sentences imposed for the remaining crimes of attempted rape and intimidation.
{¶ 17} The court of appeals reversed, deeming it plain error to convict appellee of six crimes when only four criminal acts had occurred. Accordingly, it ordered that the convictions for gross sexual imposition and attempted sexual battery
{¶ 18} In its order certifying the conflict in the case at bar, the Court of Appeals for the Sixth District determined that its judgment conflicts with judgments issued by the Fifth, Eighth, and Eleventh Districts in Millersburg v. Miller (Dec. 5, 1990), Holmes App. No. CA-427, unreported, 1990 WL 200366; State v. Styles (Oct. 9, 1997), Cuyahoga App. No. 71052, unreported, 1997 WL 626058; and State v. New (Jan. 24, 1992), Lake App. No. 90-L-15-112, unreported, 1992 WL 25278. Moreover, in certifying the case to us, the Sixth District cited State v. Martin (Feb. 9, 1999), Summit App. No. 18715, unreported, 1999 WL 66211, in which the Ninth District, in a split decision, failed to notice plain error where a defendant had been sentenced to concurrent sentences for allied offenses of similar import. The Sixth District pointed out that Judge Donna Carr, dissenting in Martin, had discerned three schools of thought in Ohio appellate case law as to the application of the doctrine of plain error in similar circumstances. In her dissent, Judge Carr identified the disparity of approaches as follows:
“The issue of whether it is plain error for a trial court to impose concurrent sentences for the same offense has not been clearly resolved by Ohio appellate courts. Two districts have held that there is no plain error in these circumstances. See State v. Styles (Oct. 9, 1997), Cuyahoga App. No. 71052, unreported [1997 WL 626058]
(Eighth Appellate District); State v. New (Jan. 24, 1992), Lake App. No. 90-L-15-112, unreported [1992 WL 25278] (Eleventh Appellate District). Additionally, the Fifth District has said that no prejudice arises from these circumstances. State v. Miller (Dec. 5, 1990), Holmes App. No. CA-427, unreported [1990 WL 200366] (applying the concept of harmless error). However, three appellate districts have concluded that this does constitute plain error. See State v. Fields (1994), 97 Ohio App.3d 337, 347, 646 N.E.2d 866 [873] (First Appellate District); State v. Fischer (1977), 52 Ohio App.2d 53, 55 [6 O.O.3d 40, 41], 368 N.E.2d 332 [334] (Twelfth Appellate District); State v. Jones (Oct. 22, 1998), Franklin App. No. 98AP-129, unreported [1998 WL 849371] (Tenth Appellate District). “This Court in particular has addressed the issue inconsistently. Although this Court has recently held that there is no plain error under these circumstances, State v. Blondheim (May 27, 1998), Summit App. No. 18594, unreported [1998 WL 281917], that case failed to address a prior holding to the contrary in State v. Austin (Feb. 16, 1984), Summit App. No. 11298, unreported [1984 WL 4764].
“The Second District Court of Appeals has also been inconsistent in its approach to this issue. In State v. Burch (Sept. 29, 1995), Montgomery App. No. 14488, unreported [1995 WL 570567], the Second District found that there was no plain error under these circumstances. Nevertheless, in State v. Puckett (Mar. 27, 1998), Greene App. No. 97 CA 43, unreported, the Second District vacated a sentence that was set to run concurrently with another sentence of equal length, noting that a conviction based on an allied offense of similar import was plain error.
“This issue is also not clearly settled in the Eleventh District. New was authored by Judge Baird of this Court, who was sitting by assignment. Judge Baird authored Blondheim for this Court and dissented in the Austin decision. Judge Mahoney, also of this Court and also sitting by assignment, concurred in judgment only in New. The only judge from the Eleventh District who actually participated in the New decision, Presiding Judge Nader, dissented from the opinion. In his dissent,
Judge Nader did not directly address this issue; however, he did proceed to address the prosecution‘s substantive arguments concerning the propriety of the defendant‘s sentence. It has yet to be determined whether the Eleventh District will actually apply New under these circumstances.”
{¶ 19} In Whitelock, I issued the following caution:
“Generally, the judges of the courts of appeals are as able as are the justices of this court to identify legal issues that require resolution by the Supreme Court in view of disparate opinions among the courts of appeals. The case before us is an extreme example of noncompliance with S.Ct.Prac.R. III(6).
“Recognizing that it is possible to distinguish virtually any case and opinion from any other case and opinion, our opinion here should not be construed to so delimit our acceptance of certified cases as to cause courts of appeals to err in favor of noncertification of conflicts between the districts.” Id., 66 Ohio St.3d at 599-600, 613 N.E.2d at 1036 (Moyer, C.J., concurring).
{¶ 20} In my view, the procedural deficiencies present in the case at bar do not represent an “extreme example” of an appellate court‘s noncompliance with
{¶ 21} Moreover, in dismissing this case as improvidently certified, we are effectively reversing the finding of the court of appeals that its judgment is in conflict with judgments pronounced upon the same question by other courts of appeals of the state, even though the Constitution appears to entrust that determination, at least initially, to the appeals courts.
{¶ 22} Judge Carr‘s dissent in State v. Martin, supra, clearly illustrates that there is indeed an actual conflict between appellate judicial districts and among appellate judges. I believe that this court would be acting most consistently with the purpose underlying the conflict certification procedure established by the Ohio
{¶ 23} I therefore respectfully dissent.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellant.