STATE OF OHIO, PLAINTIFF-APPELLEE, v. CALEB M. JONES, DEFENDANT-APPELLANT.
CASE NO. 3-19-11
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
August 3, 2020
2020-Ohio-3919
ZIMMERMAN, J.
Appeal from Crawford County Common Pleas Court Trial Court No. 19-CR-0054
Judgment Affirmed
Date of Decision: August 3, 2020
APPEARANCES:
Howard A. Elliott for Appellant
Matthew E. Crall and Ryan M. Hoover for Appellee
{1} Defendant-appellant, Caleb M. Jones (“Jones“), appeals the August 29, 2019 judgment entry of sentence of the Crawford County Court of Common Pleas. We affirm.
{2} On February 5, 2019, the Crawford County Grand Jury indicted Jones on three counts: Count One of importuning in violation of
{3} On February 25, 2019, Jones filed a motion for a competency evaluation, which the trial court granted on March 12, 2019. (Doc. Nos. 11, 12). Following a competency hearing on April 18, 2019, the trial court determined that Jones was competent to stand trial. (Apr. 18, 2019 Tr. at 5-6).
{4} On August 29, 2019, Jones withdrew his pleas of not guilty and entered guilty pleas, under a written plea agreement, to Counts One and Two. (Doc. No. 23). In exchange for his change of pleas, the State agreed to dismiss Count Three of the indictment. (Id.). Further, as part of the agreement, the State recommended that Jones serve a sentence of 13 years to life in prison. (Id.). The trial court accepted Jones‘s guilty pleas, found him guilty of Counts One and Two, and dismissed Count Three. (Id.). That same day, the trial court sentenced Jones to 36
{5} On September 27, 2019, Jones filed a notice of appeal. (Doc. No. 28). He raises two assignments of error for our review.
Assignment of Error No. I
When a trial court takes a guilty plea to offenses by the Defendant-Appellant, and fails to advise the Defendant-Appellant of all of the matters as set forth in Criminal Rule 11(C)(2), a proper plea of guilty has not taken place, and the Defendant-Appellant‘s finding of guilty must be vacated.
{6} In his first assignment of error, Jones argues that his guilty pleas were not made knowingly, intelligently, and voluntarily. In response, the State argues that such argument is not subject to appellate review under
Standard of Review
{7} “All guilty pleas must be made knowingly, voluntarily, and intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “““Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.““” State v. Montgomery, 3d Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 10, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting Engle at 527.
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 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 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} “A trial court must strictly comply with
{9} “An appellate court reviews the substantial-compliance standard based upon the totality of the circumstances surrounding the defendant‘s plea and determines whether he subjectively understood the implications of his plea and the rights he waived.” Id. at ¶ 12, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 20. “Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. * * * The test is whether the plea would have otherwise been made.” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).
{10} On appeal, Jones argues that his guilty pleas were not knowing, intelligent, or voluntary because the trial court did not strictly comply with the notifications required by
{11} Contrary to Jones‘s argument, a trial court is not required to strictly comply with the non-constitutional notifications in
{12} ”
{13} Here, the trial court substantially complied (orally and in writing) with the notification required by
{14} Likewise, Jones was notified that his guilty pleas constituted a complete admission of guilt and that the trial court could proceed to judgment and sentence after accepting his guilty plea in the written-plea agreement. See State v. Miller, 2d Dist. Montgomery No. 27079, 2017-Ohio-478, ¶ 13; State v. Chance, 7th Dist. Mahoning No. 11-MA-27, 2012-Ohio-1266, ¶ 14; State v. Summerall, 10th Dist. Franklin No. 02AP-321, 2003-Ohio-1652, ¶ 12. Specifically, the written-plea agreement reflects that Jones acknowledged that “[b]y pleading, [he] admit[s] the truth of the facts and circumstances alleged” and that he was aware that “the judge may either sentence [him] today or refer [his] case for a presentence report.” (Doc. No. 23).
{16} Jones‘s first assignment of error is overruled.
Assignment of Error No. II
The offenses of importuning and rape must be merged for sentencing when the record fails to demonstrate a significant separation in time between the act of soliciting and the act of sexual conduct.
{17} Jones argues under his second assignment of error that the trial court erred by failing to merge his rape and importuning convictions. Specifically, Jones contends that “without separation between the conduct and for that matter the harm associated with the conduct, the offenses must merge * * * .” (Appellant‘s Brief at 11).
{18} Similar to its response to Jones‘s first assignment of error, the State proposes that Jones‘s allied-offense argument is precluded from appellate review by virtue of
{19}
{20} Whether offenses are allied offenses of similar import is a question of law that this court reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36. ”De novo review is independent, without deference to the lower court‘s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
Analysis
{21}
(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.
{22} The Supreme Court of Ohio directs us to apply a three-part test to determine whether a defendant can be convicted of multiple offenses:
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must ask three questions when defendant‘s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any ofthe above will permit separate convictions. The conduct, the animus, and the import must all be considered.
State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, ¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 12 and Ruff at paragraphs one, two, and three of the syllabus.
{23} “As explained in Ruff, offenses are of dissimilar import ‘when the defendant‘s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.‘” State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 77, quoting Ruff at paragraph two of the syllabus. “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{24} “The term ‘animus’ means “‘purpose or, more properly, immediate motive.‘“” State v. Ramey, 2d Dist. Clark No. 2014-CA-127, 2015-Ohio-5389, ¶ 70, quoting State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 40, quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979).2 ““Where an individual‘s
{25} “‘Like all mental states, animus is often difficult to prove directly, but must be inferred from the surrounding circumstances.‘” Id. at ¶ 71, quoting Logan at 131. “‘Thus the manner in which a defendant engages in a course of conduct may indicate distinct purposes.‘” Id., quoting State v. Whipple, 1st Dist. Hamilton No. C-110184, 2012-Ohio-2938, ¶ 38. “‘Courts should consider what facts appear in the record that “distinguish the circumstances or draw a line of distinction that enables a trier of fact to reasonably conclude separate and distinct crimes were committed.“‘” Id., quoting Whipple at ¶ 38, quoting State v. Glenn, 8th Dist. Cuyahoga No. 94425, 2012-Ohio-1530, ¶ 9.
{26} Jones was convicted of rape in violation of
{27}
(C) No person shall solicit another by means of a telecommunications device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity with the offender when the offender is eighteen years of age or older and either of the following applies:
(1) The other person is less than thirteen years of age, and the offender knows that the other person is less than thirteen years of age or is reckless in that regard.
{28} Although the record is largely devoid of any evidence describing Jones‘s conduct underlying his findings of guilt, we conclude that Jones‘s rape and importuning convictions do not merge because Jones‘s conduct in luring the victim by text message to leave school “out a side door, where [Jones] was ready to pick
{29} Jones‘s second assignment of error is overruled.
{30} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.