State v. KeefeState v. Keefe
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.
Brian J. Darling, for appellant.
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SINGER, P.J.
{¶ 1} Appellant appeals a judgment of conviction for two counts of unlawful sexual conduct with a minor, entered on a guilty plea in the Erie County Court of Common Pleas. Because we conclude that the offenses are not allied offenses of similar
{¶ 2} Appellant is John J. Keefe. Appellant was indicted for two counts of rape and one count of unlawful sexual conduct with a minor. The indictment charged that on October 14, 2010, appellant, then age 25, engaged in unlawful sexual conduct with two 15-year-old girls.
{¶ 3} Appellant initially entered a not guilty plea to all counts, but following negotiations with the state, agreed to plead guilty to two counts of unlawful sexual conduct with a minor; one count as a third degree felony and the other as a fourth degree felony.
{¶ 4} On November 15, 2011, following a plea colloquy pursuant to
{¶ 5} Appellant sets forth the following two assignments of error:
- The imposition of consecutive sentences was unlawful due to the allied offense nature of the crime.
- The trial court‘s use of another jurisdiction‘s pre-sentence report in sentencing Mr. Keefe violated Due Process.
{¶ 6} In his first assignment of error, appellant asserts that the trial court erred in imposing consecutive sentences, because the two offenses for which he was convicted should have merged as allied offenses of similar import.
{¶ 7}
(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.
{¶ 8}
{¶ 9} The test to determine if multiple charges should be classified as allied offenses is two-pronged: (1) “[W]hether it is possible to commit one offense and commit the other with the same conduct” and (2) “whether the offenses were committed by the
{¶ 10} If the same offense is committed against more than one victim, the animus is separate and merger is not required. State v. Smith, 2d Dist. No. 24402, 2012-Ohio-734, ¶ 19. “[A] thief who commits theft on three separate occasions or steals different property from three separate victims in the space, say, of 5 minutes, can be charged with and convicted of all three thefts.” Johnson at ¶ 15, fn. 2. (Additional citations omitted.) See also State v. Alcala, 6th Dist. No. S-11-026, 2012-Ohio-4318, ¶ 37.
{¶ 11} Appellant purports that the conduct with both minors was committed through a single action and animus. The encounters were at the same time and place. However, this argument is unpersuasive. These were offenses against separate persons and not subject to merger. Accordingly, appellant‘s first assignment of error is not well-taken.
II. Use of Another Jurisdiction‘s Presentence Investigation Report
{¶ 12} In his second assignment of error, appellant contends that the trial court‘s use of another jurisdiction‘s presentence investigation report (“PSI“), on unrelated offenses, was improper.
{¶ 14} “A proper objection must be raised at trial to preserve error.” State v. Brown, 38 Ohio St.3d 305, 306, 528 N.E.2d 523 (1988). When an objection is not timely, the purpose wherein may only be evaluated for plain errors that would affect “substantial rights.”
{¶ 15} While, in our experience, it is unusual for a court to consider a presentence investigation report from a different jurisdiction, appellant has directed us to no authority which would prevent such a practice. Indeed there is no requirement that the court order a presentence investigation at all unless the court intends to place the offender under a community control sanction. See
{¶ 16} Appellant also failed to preserve error by objection during trial and failed to articulate the manner in which he might be prejudiced by this purported error. Accordingly, appellant‘s second assignment of error is not well-taken.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, P.J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.