STATE OF OHIO, Plaintiff-Appellee, vs. CHRISTOPHER HODGES, Defendant-Appellant.
APPEAL NO. C-110630; TRIAL NO. B-1006698
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 29, 2013
[Cite as State v. Hodges, 2013-Ohio-1195.]
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause Remanded
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Scott A. Rubenstein, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Christopher Hodges was convicted of one count of attempt to commit felonious assault with a firearm specification, one count of having weapons while under disability, and two counts of attempt to commit improper discharge of a firearm at or into a habitation. Hodges now appeals, raising three assignments of error. For the following reasons, we vacate his prison terms for each attempt offense, and remand this cause for the trial court to merge those offenses and to impose one sentence under
Background
{¶2} In October 2010, the grand jury returned an indictment charging Hodges with several offenses stemming from an altercation between Hodges and Demetrius Elliott. According to the bill of particulars,
On 9/24/10, 11:21 am, at 5418 Winneste Ave., Defendant and Victim engaged in a verbal altercation. This escalated to the point when Defendant pulled a weapon and fired several shots at Victim striking him once and critically injuring him. Victim fired a shot back striking Defendant in the side. Defendant, while firing shots at Victim shot in the direction of an apartment building. Bullets were recovered in from [sic] 5417 Winneste and a bullet hole was discovered at 5411 Winneste. Because Defendant was convicted of Drug Trafficking in 2007, he
was under disability and precluded from possessing a firearm.
{¶3} Pursuant to a plea agreement, Hodges pleaded guilty to one count of attempt to commit felonious assault as defined by
{¶4} Previously-appointed counsel for Hodges filed a no-error brief stating that no meritorious issues existed to support Hodges‘s appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Contrary to that assertion, this court found that legal points arguable on the merits existed, particularly whether the trial court erred in imposing separate sentences on each attempt offense under
{¶5} In his first assignment of error, Hodges argues that the trial court erred in sentencing him separately for each attempt offense under Ohio‘s multiple-count statute,
(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.
{¶6} In light of the Ohio Supreme Court‘s syllabus holding in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, we have held that under
{¶7} In applying
{¶8} Although our record is not particularly well developed, it does reflect that during a verbal altercation, Hodges fired several gunshots at Demetrius Elliott “in a quick manner,” and that while doing so, he shot in the direction of an apartment building. Thus, Hodges committed each attempt offense during the same shooting
{¶9} We are not without guidance. Since Johnson, courts have identified the discharge of multiple gunshots in quick succession as the “same conduct” under the multiple-count statute. For instance, in State v. McClendon, 2d Dist. No. 23558, 2011-Ohio-5067, the Second Appellate District rejected the state‘s argument that the defendant had “engaged in five separate acts” where he shot the same victim five times. Id. at ¶ 28. The court concluded that “there was but one criminal act/incident in which Defendant fired five shots at the same victim * * * all at the same time in rapid succession,” and that, therefore, the felony-murder offenses “[arose] from and were committed by the same conduct.” (Internal quotation marks and citations omitted.) Id. at ¶ 31-32; see also State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356 (defendant committed voluntary manslaughter and felonious assault during a single course of conduct where he “fired three shots in rapid succession” at the victim).
{¶10} Courts have further held that similar offenses can be committed with the same conduct. For example, the Eighth Appellate District concluded that the offenses of felonious assault and the discharge of a firearm at or near a prohibited premises in violation of
{¶11} In this case, by quickly firing multiple shots towards Elliott and an apartment building at the same time, Hodges committed each attempt offense with the “same conduct.” Consequently, our analysis turns to whether he committed these offenses separately or with a separate animus as to each. See Anderson, 2012-Ohio-3347, 974 N.E.2d 1236 at ¶ 23.
{¶12} We first consider whether the offenses were committed separately. In Anderson, we held that the defendant‘s aggravated robbery of a bank and kidnapping of a bank employee to facilitate that robbery were not committed separately because they occurred during one sustained, continuous act that began and ended within 90 seconds. Id. at ¶ 24. Given the temporal and spatial proximity of the attempt offenses in this case, we come to the same conclusion here.
{¶13} We, therefore, finally examine whether the offenses were each committed with a separate animus. “The Ohio Supreme Court interprets the term ‘animus’ to mean ‘purpose or, more properly, immediate motive,’ and infers animus from the surrounding circumstances.” State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). Although animus is often difficult to prove directly, “the manner in which a defendant engages in a course of conduct may indicate distinct purposes.” State v. Whipple, 2012-Ohio-2938, 972 N.E.2d 1141, ¶ 38 (1st Dist.).
{¶14} In Whipple, we identified a separate animus as to three counts of felonious assault and one count of improper discharge of a firearm at or into a habitation where the evidence adduced at trial indicated that the defendant and his
Police recovered 28 shell casings from the crime scene. The casings were found in the street spread across the length of the property, on the sidewalk, in the driveway, in the yard, on the porch, and three were found actually inside the home. Most of the windows of the van the victims had been riding in, which was parked on the street, had also been shot out. The investigating officer testified that “there were casings everywhere. The house had been shot up.” Based on where the casings were found, the shooters had been in the street and had advanced through the yard and onto the porch.
{¶15} On those facts, we held that the “level of destruction unleashed by Whipple upon the home demonstrated that he sought to do more than commit felonious assault,” and that, therefore, he had committed the improper-discharge offense with an animus separate from each of the felonious assaults. Id. at ¶ 37. See also State v. Kelly, 5th Dist. No. 2012CA00067, 2012-Ohio-5875, ¶ 26 (following Whipple); but see Whipple at ¶ 53 (Fischer, J., concurring in part and dissenting in part) (concluding that the defendant had committed the improper-discharge offense with the immediate motive only to injure those inside).
{¶16} In Anderson, however, we held that the defendant had committed aggravated robbery and kidnapping with the same animus where the bank-employee victim was detained for a brief period, moved only a short distance to the common area
{¶17} In this case, although Hodges was aware that his conduct would probably result in physical harm to Elliott and shots fired at or into two separate apartments, the record does not reflect that Hodges intended to “shoot up” the dwellings. Indeed, his immediate motive was clearly to injure Elliott after their verbal altercation had escalated. We, therefore, cannot say that Hodges committed his attempt offenses with a separate animus as to each offense. Having also determined that the offenses were committed with the same conduct and not separately, we hold that they should have been merged under
Additional Matters
{¶18} In his second assignment of error, Hodges argues that his pleas were not entered knowingly, voluntarily, and intelligently because his trial counsel had advised him that the trial court would not impose a prison term longer than six years. The trial court ultimately imposed an aggregate term of 11 years. And in his third assignment of error, Hodges maintains that he was denied the effective assistance of counsel for the same reason.
{¶19} For support, Hodges refers only to an affidavit that he signed and attached to a motion to withdraw his guilty pleas under
{¶20} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, voluntarily, and intelligently. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 9, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). To ensure that a defendant‘s pleas are made knowingly, voluntarily, and intelligently, the trial court must engage the defendant in a colloquy pursuant to
{¶21} Upon our review of the record, we conclude that the trial court fully complied with
{¶22} Consequently, we turn to his final assignment of error, alleging ineffective assistance of trial counsel. We reverse on such grounds only where the defendant shows that counsel‘s performance was deficient and that this deficient performance prejudiced the defense. E.g., State v. Miller, 1st Dist. No. C-120109, 2012-Ohio-5964, ¶ 19, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the proceeding would have been different.” Id.
{¶23} Again based on the record now before us, we cannot say that the defendant has demonstrated either deficient performance or prejudice. The third assignment of error is, therefore, overruled.
Conclusion
{¶24} Having determined that the trial court erred in imposing separate sentences on each of Hodges‘s three attempt offenses, we vacate those sentences and remand this cause for resentencing pursuant to the state‘s election. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus. In all other respects, we affirm the judgment of the trial court.
Judgment accordingly.
HENDON, P.J., concurs.
DINKELACKER, J., concurs in part and dissents in part.
DINKELACKER, J., concurring in part and dissenting in part.
{¶25} Based on my review of the record, Christopher Hodges has failed to demonstrate that his three attempt offenses should merge under
{¶27} Because I concur with the majority‘s disposition of the second and third assignments of error, I would affirm the judgment of the trial court.
Please note:
The court has recorded its own entry this date.