STATE OF OHIO, Plаintiff-Appellee, vs. RICARDO G. LEE, Defendant-Appellant.
APPEAL NO. C-190149
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 13, 2020
2020-Ohio-944
TRIAL NO. 18CRB-19713; Criminal Appeal From: Hamilton County Municipal Court; Judgmеnt Appealed From Is: Affirmed
Paula Boggs Muething, City Solicitor, William T. Horsley, Interim City Prosecutor, and Jon Vogt, Assistant City Prosecutor, for Plaintiff-Appellee,
The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for Defendant-Appеllant.
{¶1} Ricardo G. Lee appeals his sentences, after his no-contest pleas, for сriminal trespassing and public indecency, both misdemeanors of the fourth degree. In two related assignments of error, Lee contends that the trial court erred by failing to merge his convictions fоr sentencing, and that he was denied the effective assistance of counsel because his trial counsel did not inform the court that the offenses were allied. Finding no merit to his assignments of error, we affirm the judgment of the trial court.
Factual Background
{¶2} Ricardo G. Lee was charged with criminal trespassing and public indecency for entering a Domino‘s Pizza, after being banned from the restaurant by the store manager and a police officer. Lee entered the restaurant, and when the employеes refused to serve him, he exposed himself to the employees. He pled no contest to the charges and was found guilty.
{¶3} On the public-indecency conviction, the trial court sentenсed Lee to 30 days in jail, suspended one day, gave him credit for the 29 days he had already servеd, ordered him to pay a $100 fine plus court costs, and placed him on probation for onе year. On the criminal-trespassing conviction, Lee was sentenced to 30 days in jail, with 30 days suspendеd, and a $100 fine plus court costs. The trial court also ordered Lee to stay away from the Domino‘s Pizza.
Standard of Review
{¶4} In his first assignment of error, Lee argues that the trial court committed plain error by failing to merge the offenses for purposes of sentencing. As Lee concedes, his trial counsel did nоt raise the allied-offenses issue to the trial court, so we review the failure to merge for plain error. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860; State v. Thompkins, 1st Dist. Hamilton No. C-160384, 2017-Ohio-1061, ¶ 35. The “imposition of multiple sentences for allied offenses of similar impоrt is plain error.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.
Law and Analysis
{¶5} Under
{¶6} Offenses of dissimilar import exist when the conduct involves separate victims or if the resulting hаrm is separate and identifiable. Id. at paragraph two of the syllabus. Separate convictions are permitted for allied offenses if the offenses were (1) dissimilar in import or significance, (2) committed separately, or (3) committed with a separate animus or motivation. Id. at paragraph three of the syllabus. A reviewing court may end its analysis upon finding that аny one of the three applies. Bailey at ¶ 83.
{¶7} Lee was convicted of criminal trespass in violation of
{¶8} In his second assignment of error, Lee claims he was denied the effective assistance of counsel because his trial counsel did not raise the allied-offense issue to the trial court. To establish ineffective assistance of counsel, an accused must demonstrate that counsel‘s performance was deficient and that the deficient performance рrejudiced the accused. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure to make either showing is fatal to the claim. Id. at 697. A defendant is only prejudiced by counsel‘s performance if there is a reasonable probability that the outcome of the proceedings would have been different but for the complained-of conduct. Id. at 694.
{¶9} Given our resolution of his first assignment of error that the convictions were not allied offenses, trial counsel‘s failure to argue that the convictions should merge did not constitute ineffective assistance of counsel. See State v. White, 12th Dist. Clermont No. CA2018-12-087, 2019-Ohio-3053, ¶ 21. We overrule the second assignment of error.
Conclusion
{¶10} Having overruled Lee‘s two assignments of error, we affirm the
Judgment affirmed.
MYERS and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.