State v. LayneState v. Layne
{¶1} This is an appeal from a Highland County Court of Common Pleas decision and entry denying Appellant’s post-sentence motion to withdraw his guilty plea to attempted gross sexual imposition, a fourth degree felony in violation of
FACTS
{¶2} On July 27, 2009, Appellant appeared before the trial court and pled guilty to one count of attempted gross sexual imposition and one count of importuning in exchange for the State’s agreement to dismiss two additional charges pending against him, specifically, attempted rape and attempted kidnapping. All of these charges involved the same victim and occurred during a single course of events.1 The written plea agreement which appears in the record simply indicates that in exchange for Appellant’s pleas, the State agreed to recommend five years of incarceration. The sentencing entry issued the same day indicates that the trial court sentenced Appellant to one year on the attempted gross sexual imposition conviction and four years on the importuning conviction, to be served consecutively. There is no indication in the record that Appellant raised the issue of allied offenses of similar import at the plea or sentencing phases.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN SENTENCING HIM ON COUNTS 2 AND 4.”
LEGAL ANALYSIS
{¶4} Appellant has appealed from the trial court’s denial of his post-sentence motion to withdraw his guilty pleas. In the sole assignment of error set forth in support of his appeal, Appellant contends that the trial court erred to his prejudice in sentencing him on both attempted gross sexual imposition and importuning, claiming that the two are allied offenses of similar import. Pursuant to
{¶5} When reviewing a post-sentence motion to withdraw a plea, a trial court may assess the credibility of a movant‘s assertions, Smith, supra, at 264. An evidentiary hearing is not always required in order to do so. State v. Boyd, Montgomery App. No. 18873, 2002-Ohio-1189. “[A]n undue delay between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” Smith at paragraph three of the syllabus. Additionally, a hearing on a post-sentence motion to withdraw a guilty plea is not necessary if the facts alleged by the defendant, even if accepted as true, would not require the court to grant the motion to withdraw the guilty plea. State v. Blatnick (1984), 17 Ohio App.3d 201, 204, 478 N.E.2d 1016.
{¶6} Here, Appellant filed a post-sentence motion to withdraw his guilty plea asserting that the trial court must permit him to withdraw his guilty plea in order to correct a manifest injustice, namely that his sentence
{¶7} Assuming at this juncture that Appellant’s offenses constitute allied offenses of similar import, we must be mindful that the issue of allied offenses can be waived by a defendant. State v. Yost, Meigs App. No. 03CA13, 2004-Ohio-4687 at ¶ 12; citing, State v. Thrower (1989), 62 Ohio App.3d 359, 376, 575 N.E.2d 863 (If a defendant does not raise the issue of allied offenses at trial, the issue is waived for purposes of appeal unless plain error is shown.) As set forth above, Appellant did not raise the issue of allied offenses at the trial court level. Nevertheless, “notice of plain of
{¶8} More specifically, this Court has reasoned that “[f]or a reviewing court to find plain error: (1) there must be an error, i.e., ‘a deviation from a legal rule;’ (2) the error must be plain, i.e., ‘an “obvious” defect in the trial proceedings;’ and (3) the error must have affected ‘substantial rights,’ i.e., it must have affected the outcome of the proceedings.” State v. Spires, Gallia App. No. 10CA10, 2011-Ohio-3661 at ¶ 14; citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Furthermore, the Supreme Court of Ohio has admonished courts that notice of plain error under
{¶9} When determining whether multiple offenses should have merged under
“(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.”
{¶10} The Supreme Court recently revised the test for determining whether multiple offenses should be merged as allied offenses of similar import under
“A new judicial ruling may be applied only to cases that are pending on the announcement date. State v. Evans (1972), 32 Ohio St.2d 185, 186, 61 O.O.2d 422, 291 N.E.2d 466. The new judicial ruling may not be applied retroactively to a conviction that has
become final, i.e., where the accused has exhausted all of his appellate remedies. Id.; State v. Lynn (1966), 5 Ohio St.2d 106, 108, 34 O.O.2d 226, 214 N.E.2d 226; see, also, State v. Gonzalez (2000), 138 Ohio App.3d 853, 859, 742 N.E.2d 710; cf. Transamerica Ins. Co. v. Nolan (1995), 72 Ohio St.3d 320, 323, 649 N.E.2d 1229, quoting Doe v. Trumbull Cty. Children Serv. Bd. (1986), 28 Ohio St.3d 128, 28 OBR 225, 502 N.E.2d 605, paragraph one of the syllabus (‘A subsequent change in the controlling case law in an unrelated proceeding does not constitute grounds for obtaining relief from final judgment under Civ.R. 60 [B] ’ .”
{¶11} Here, rather than coming to this Court by way of direct appeal, or delayed appeal, it has come to us on appeal from the trial court’s denial of Appellant’s motion to withdraw his guilty plea, filed nearly two years after the conclusion of Appellant’s case. Appellant was sentenced on July 29, 2009, and he did not appeal his conviction or sentence. State v. Johnson was released on December 29, 2010. Appellant filed his motion to withdraw his guilty plea on April 6, 2011. Thus, Appellant’s underlying case was closed and there was nothing pending at the time Johnson was released. As such, the reasoning of Johnson, though current law, is inapplicable to the case sub
{¶12} As we observed in State v. Pigge, Ross App. No. 09CA3136, 2010-Ohio-6541, the Supreme Court of Ohio has interpreted
“ ‘In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must proceed to the second step. In the second step, the defendant‘s conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.’ ” Pigge at ¶ 41; quoting, State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, at ¶ 10, quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816; see, also, State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154; State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶ 14.
{¶14} As discussed herein, Appellant pled guilty to attempted gross sexual imposition and importuning.
“(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that if successful, would constitute or result in the offense.”
The relevant sections of
“(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two more persons to have sexual contact when any of the following applies:
* * *
(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.”
Finally, the relevant sections of
“(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 activity2 with the offender when the offender is eighteen years of age or older and either of the following applies:* * *
(2) The other person is a law enforcement officer posing as a person who is less than thirteen years of age, and the offender believes that the other person is less than thirteen years of age or is reckless in that regard.”
{¶15} Here, the trial court denied Appellant’s motion to withdraw his guilty pleas, determining that the offenses of attempted gross sexual imposition and importuning were not allied offenses of similar import. In reaching this decision, the trial court relied upon State v. Mack, Ottawa App. No. OT-05-004, 2005-Ohio-6406, which was decided under the prior
{¶16} After careful review of the elements of both offenses and applying the reasoning of Rance, as modified by Cabrales and Winn, we conclude, as did the trial court, that these offenses are not allied offenses of similar import. Of importance, and as noted in Mack, supra, at ¶ 32, “[i]mportuning requires that an individual solicit sexual activity; this element is not required under attempted gross sexual imposition.” To further support our conclusion, we make mention of the fact that here, Appellant was convicted of importuning, in violation of
{¶17} As such, the trial court’s imposition of consecutive sentences for these offenses was not contrary to law and therefore, no plain error has occurred. Likewise, having found no plain error, we cannot conclude that Appellant demonstrated a manifest injustice. As a result, we cannot conclude that the trial court abused its discretion in denying Appellant’s motion to withdraw his guilty pleas. Accordingly, Appellant’s sole assignment of error is overruled and the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment only.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.