State of Ohio v. Major C. McCormick
Court of Appeals No. L-13-1147, L-13-1148
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
June 6, 2014
[Cite as State v. McCormick, 2014-Ohio-2433.]
Trial Court No. CR0201301028, CR0201301204
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Julia R. Bates, Lucas County Prosecuting Attorney, Brenda J. Majdalani and Lindsay Navarre, Assistant Prosecuting Attorneys, for appellee.
Kent Sobran, for appellant.
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SINGER, J.
{¶ 1} Appellant appeals the sentence imposed on him after having been found guilty of abduction and felonious assault on an Alford plea in the Lucas County Court of Common Pleas. For the reasons that follow, we affirm.
{¶ 3} At approximately 7:30 a.m. that morning, she reported, appellant became enraged when she received a telephone call from a boyfriend. The woman told police that appellant tackled her onto a bed and climbed on top of her. He then choked her with one hand while pulling her hair with the other. At one point, the woman reported, appellant used the pillow from a couch to smother her until she lost consciousness.
{¶ 4} Later, the woman stated, appellant allowed her to use the bathroom, but insisted that she keep the door open lest she try to escape. While in the bathroom, the woman noted that a large clump of her hair was missing and that her scalp was bleeding. According to the victim, when she left the bathroom and angled toward an outside door, appellant hit her with a couch cushion, knocking her to the floor. When she screamed for help, appellant told her everyone else was at work and no one would hear her, she reported.
{¶ 5} The woman told police that, after four hours of attacking her, appellant fell asleep. At that point she fled the house and called for help from a convenience store. She required medical assistance.
{¶ 7} Appellant initially pled not guilty to all charges, but, following negotiations with the state, agreed to amend his plea in return for the state dismissing one of the kidnapping charges and amending the other count to abduction, a third degree felony.
{¶ 8} On April 8, 2013, appellant pled guilty to the amended counts pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court conducted a plea colloquy pursuant to
{¶ 9} From the judgment of conviction, appellant now brings this appeal. Appellant sets forth a single assignment of error:
The trial court abused its discretion when it sentenced appellant to maximum and consecutive sentences.
{¶ 10} Appellant posits his argument in two parts. First he asserts that felonious assault and abduction are allied offenses of similar import and should have merged pursuant to
{¶ 11}
(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.
{¶ 12} The provision prevents multiple convictions of a single defendant arising out of the same occurrence. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 43. The statute limits legal exposure on acts which naturally arise from similar criminal acts when committed in a single transaction.
{¶ 13} The test to determine if multiple charges should be classified as allied offenses is two-pronged: (1) whether it is possible to commit one offense and commit the other with the same conduct and (2) whether the offenses were committed by the same conduct, i.e., a single act, committed with a single state of mind. Id. at ¶ 48-49, quoting State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. [I]f the court determines that the commission of one offense will never result in the
{¶ 14} The offenses to which appellant pled were felonious assault, in violation of
{¶ 15} The state argues that felonious assault and abduction are offenses by which the conduct for the commission of one offense may never result in commission of the other. We disagree. Both offenses must be committed knowingly. The force necessary for restraint could be the same force by which serious physical harm is caused. Thus it would seem that it would be possible to commit felonious assault in the process of abduction.
{¶ 16} The state cites State v. Simmons, 8th Dist. Cuyahoga No. 96208, 2011-Ohio-6074, ¶ 62-63, which it asserts holds the opposite, but a careful examination of this
{¶ 17} Simmons, nonetheless, is instructive for the second prong of the Johnson test, because Simmons, like appellant, beat and choked his victim into unconsciousness, then, after she regained consciousness, took her cell phone and restrained her until the next morning, when she escaped. Id. at ¶ 4-5. These facts are remarkably similar to those before us.
{¶ 18} Here appellant beat and choked his victim into unconsciousness on more than one occasion over a four hour period. When she regained consciousness each time appellant physically prevented her from leaving the house. From these facts, we can only conclude that the offenses of which appellant was convicted were committed at different times and with separate animus. The trial court did not err in denying appellant‘s request to merge the offenses.
II. Sentencing
{¶ 19} In the second prong of appellant‘s argument, he maintains that the trial court abused its discretion when it sentenced him to consecutive maximum sentences.
{¶ 20} Both appellant and the state cite State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, for the standard of review for criminal sentencing. This standard has been superseded by statute. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.
(a) That the record does not support the sentencing court‘s findings under [
R.C. 2929.13 (B) or(D) ], [R.C. 2929.14 (B)(2)(e) or(C)(4) ], or [R.C. 2929.20 (I) ], whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2) .
{¶ 22} The standard of review for an appeal of a sentence is not abuse of discretion. Tammerine at ¶ 11. If a sentencing court is statutorily required to make findings or state findings on the record concerning the imposition of a sentence and fails to do so, the appeals court is directed to remand the case and instruct the sentencing court to state, on the record, the required findings.
{¶ 23} There is a presumption that a sentence of imprisonment is to be imposed for a second degree felony. The court need make no findings unless it elects not to impose imprisonment.
to protect the public from future crime or to punish the defendant, and not disproportionate to the seriousness of the defendant‘s conduct or the danger the defendant poses, the Court further finds the harm caused was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflect the seriousness of the offender‘s conduct and the defendant‘s criminal history requires consecutive sentences.
{¶ 25} These findings are consistent with those required for the imposition of consecutive sentences by
{¶ 26}
{¶ 27} With respect to the imposition of maximum sentences, felonious assault, as charged, is a second degree felony. A second degree felony is punishable by a prison term of “two, three, four, five, six, seven, or eight years.”
{¶ 28} Appellant‘s offenses were not allied offenses of similar import and, therefore, were not subject to merger. The court‘s requisite findings were supported by
{¶ 29} On consideration, the judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J. _______________________________ JUDGE
Stephen A. Yarbrough, P.J. _______________________________ JUDGE
James D. Jensen, J. _______________________________ JUDGE CONCUR.
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.