State v. MillhoanState v. Millhoan
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Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
George J. Conklin, for appellant.
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HANDWORK, J.
{¶ 1} Defendant-appellant, David Millhoan, Sr., appeals his conviction and sentence on multiple sex-related offenses in consolidated cases. He contends that his guilty pleas were not entered knowingly and voluntarily, that the imposition of near-maximum consecutive sentences was unwarranted, and that he was denied effective
I. FACTS
{¶ 2} In February 2010, a Lucas County Grand Jury returned a nine count indictment of appellant in case No. CR0201001265. The charges generally stem from a series of sexual improprieties by appellant with two minor boys, which allegedly occurred during the period of January 1, 2009, through December 28, 2009. Specifically, the indictment charged appellant with two counts of rape in violation of
{¶ 3} On September 21, 2010, appellant withdrew his original pleas of not guilty to the nine charges and entered guilty pleas to counts three through nine of the indictment pursuant to North Carolina v. Alford (1970), 400 U.S. 25. Appellant also entered an Alford plea of guilty to each of the first two counts of rape after they were modified by a
{¶ 4} Prior to accepting appellant‘s guilty pleas, the trial court conducted a thorough plea colloquy pursuant to
{¶ 5} “THE COURT: As I stated, in counts one and two in case 10-2702, and in count five in case 10-1265 you are entering a plea to felonies of the first degree. Do you understand that each of those offenses carries a basic prison term of three to ten years?
{¶ 6} “THE DEFENDANT: Yes.
{¶ 7} “THE COURT: Do you understand that each of those offenses carries a possible fine of up to $20,000?
{¶ 8} “THE DEFENDANT: Yes.
{¶ 9} “THE COURT: And in counts three and four in case 10-1265 you are entering a plea to two felonies of the third degree, and in counts six and seven you are entering a plea to two felonies of the third degree. Do you understand that each of those offenses carries a basic prison term of one to five years?
{¶ 10} “THE DEFENDANT: Yes.
{¶ 11} “THE COURT: Do you understand that each of those carries a possible fine of up to $10,000?
{¶ 12} “THE DEFENDANT: Yes.
{¶ 13} “THE COURT: And in counts eight and nine you are entering a plea to two felonies of the fourth degree. Do you understand that each of those offenses carries a basic prison term of six to 18 months?
{¶ 14} “THE DEFENDANT: Yes.
{¶ 15} “THE COURT: And each of those offenses carries a possible fine of up to $5000? Do you understand that?
{¶ 16} “THE DEFENDANT: Yes.
{¶ 17} “THE COURT: So as you stand here today you‘re facing a total of 53 years in a state institution. Do you understand that?
{¶ 18} “THE DEFENDANT: Yes.
{¶ 19} “THE COURT: And you‘re facing a possible fine of up to $110,000. Do you understand that?
{¶ 20} “THE DEFEDNANT: Yes.”
{¶ 21} With regard to the three rape offenses (counts one and two of the information and count five of the indictment), the trial court further informed appellant:
{¶ 22} “THE COURT: Mr. Millhoan, before the State of Ohio tells me the facts leading up to this plea, with respect to your sentence, as I stated, you are entering a plea to three felonies of the first degree. Do you understand that each of those offenses carries a mandatory sentence, so you are facing a mandatory sentence of nine to 30 years in a state institution?
{¶ 23} “THE DEFENDANT: Yes.”
{¶ 24} On October 13, 2010, the trial court held a combined sentencing hearing with respect to all nine counts pursuant to
{¶ 25} Appellant filed separate notices of appeal as to each of the foregoing judgments. On November 15, 2010, this court ordered that the two appeals be consolidated pursuant to App.R. 3(B). It is in this consolidated appeal that appellant assigns the following errors:
{¶ 26} “FIRST ASSIGNMENT OF ERROR: The Appellant‘s Pleas were not entered knowingly and voluntarily because the trial court failed to inform him that his Guilty Pleas either required the court to impose consecutive sentences or could result in the imposition of consecutive sentences.
{¶ 27} “SECOND ASSIGNMENT OF ERROR: The trial court erred in imposing consecutive sentences.
{¶ 28} “THIRD ASSIGNMENT OF ERROR: The trial court erred in imposing near-maximum consecutive sentences and failing to make findings pursuant to
{¶ 29} “FOURTH ASSIGNMENT OF ERROR: The Appellant was denied effective assistance of counsel.”
II. VOLUNTARINESS OF PLEA
{¶ 30} In support of his first assignment of error, appellant argues that the trial court never informed him that “his sentences could or would be served consecutively as to any of the Counts demanding any mandatory prison term.” According to appellant, his pleas were not entered knowingly or voluntarily because “the issue of the imposition of consecutive mandatory penalties, or even discretionary consecutive penalties, such as those imposed on October 13, 2010 was never explored [by the trial court at his plea hearing].”
{¶ 31}
{¶ 32} As to appellant‘s assertion that the trial court failed to advise him with respect to “discretionary consecutive penalties,” Rule 11 does not require the court to explain that sentences for multiple offenses may be run consecutively. In State v. Johnson (1988), 40 Ohio St.3d 130, syllabus, the Supreme Court of Ohio held, “Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentence imposed consecutively, rather than concurrently, is not a violation of
{¶ 33} Moreover, although not required, the trial court did essentially advise appellant of the maximum consecutive penalty he could receive for all the offenses. After informing appellant of the basic prison terms for each charge, the trial court explained that “as you stand here today you‘re facing a total of 53 years in a state institution.” Fifty-three years, of course, is the sum of the maximum terms for all nine offenses, i.e., (10 years x 3 offenses) + (5 years x 4 offenses) + (1.5 years x 2 offenses) = 53 years. While the trial court did not specifically use the term “consecutively,” it did substantially convey the principle by communicating to appellant that he faced an aggregate or total prison term of 53 years. Instead of conveying information from which appellant could perform his own calculation to arrive at the cumulative total of all his
{¶ 34} In regard to appellant‘s contention that the trial court failed to inform him “of the imposition of consecutive mandatory penalties,” appellant relies on cases that hold a defendant must be advised of consecutive sentences when a statute requires the imposition of consecutive sentences. Appellant does not claim, however, that any statute requiring the imposition of consecutive sentences was actually applied in this case. Instead, appellant frames the issue as whether the trial court, before accepting the pleas, was required to advise him ”of the potential for consecutive mandatory sentencing.” (Emphasis added.) Appellant does not specify the circumstances under which such potential would be realized.
{¶ 35} It is true that appellate courts have eschewed the holding in Johnson when the imposition of consecutive sentences is mandated by law. Several appellate courts, including this court, have held that when consecutive sentences are mandatory as opposed to discretionary, the trial court must advise the defendant of that fact in order to achieve substantial compliance with
{¶ 36} Besides, the trial court in this case was not acting pursuant to any statutory mandate, but was exercising its discretion, when it ordered consecutive prison terms. We fail to see how appellant could have been prejudiced when the asserted potential for mandatory consecutive sentencing never came to fruition. Cf. State v. Flagg, 8th Dist. Nos. 93248, 93249, 2010-Ohio-4247, ¶ 34, 38 (finding that defendant was not prejudiced by the trial court‘s failure to advise him of a potential fine associated with one of his guilty pleas, because the trial court did not ultimately impose a fine for that charge).
{¶ 37} Accordingly, appellant‘s first assignment of error is not well-taken.
III. JUDICIAL FINDINGS UNDER FORMER R.C. 2929.14(E)(4)
{¶ 38} In his second assignment of error, appellant argues against himself in a purported effort to preserve the issue for further review. He first contends that the trial court erred by imposing consecutive sentences without making findings as required by
{¶ 39} Appellant goes on to argue that “the Ohio legislature has from time to time ‘reenacted’
{¶ 40} Finally, appellant maintains that Hodge “may yet be determined by further review by the United States Supreme Court.” Nevertheless, this court is still constrained to follow the dictates of Hodge in the interim and, in any event, the United States Supreme Court has since denied certiorari in Hodge v. Ohio (June 27, 2011), United States Supreme Court case No. 10-9727.
{¶ 41} Accordingly, appellant‘s second assignment of error is not well-taken.
IV. PROPRIETY OF NEAR-MAXIMUM CONSECUTIVE SENTENCES
{¶ 42} In his third assignment of error, appellant generally asserts that the trial court erred in imposing near-maximum consecutive sentences. His supporting arguments are divided into three parts, each presenting a discrete and independent issue. We will consider each contention in turn.
A. Imposition of Near-Maximum Sentences
{¶ 43} First, appellant maintains that the trial court abused its discretion by imposing a near-maximum sentence with respect to the “three (3) felonies underlying this matter.” While conceding that his sentences are “within the individual statutory penalties for the crimes as alleged,” appellant argues that near-maximum prison terms were unwarranted because he “had no previous felony history or history of any sexual offense” and “[n]o drugs were used to impair the minor involved.”
{¶ 44} In reviewing felony sentences, this court has repeatedly followed the two-step procedure outlined by the Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. See State v. Loyd, 6th Dist. Nos. E-10-055, E-10-056, 2011-Ohio-2964, ¶ 35; State v. Mendoza, 6th Dist. No. WD-10-008, 2011-Ohio-1971, ¶ 22; State v. Donald, 6th Dist. No. S-09-027, 2010-Ohio-2790, ¶ 6; and State v. Turner, 6th Dist. No. L-09-1195, 2010-Ohio-2630, ¶ 50. The first step is to “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. The second step is “to review the actual term of imprisonment for an abuse of discretion.” Id. at ¶ 17.
{¶ 45} In this case, the trial court complied with all applicable rules and statutes in sentencing appellant. The court imposed sentences within the permissible statutory range, properly applied postrelease control, and expressly stated that it considered the purposes and principles of sentencing under
{¶ 46} We also find that the trial court did not abuse its discretion in selecting sentences near the high end of the permissible statutory range. Instead, the trial court properly considered the purposes and principles of sentencing under
B. Imposition of Consecutive Sentences: Allied Offenses
{¶ 47} Appellant next contends that “the imposition of consecutive sentences was unwarranted” because “[t]he offenses of Rape as alleged in Counts I and II of the Information and the Rape and Counts of Gross Sexual Imposition in the Original Indictment are allied offenses of similar import * * *.” Appellant argues that rape and gross sexual imposition arising from the same conduct are allied offenses of similar import and that “it cannot be clearly established [from the record] that [these offenses] occurred on different occasions.”
{¶ 48} The state contends that appellant waived this argument by virtue of pleading guilty to separate offenses. In support, the state relies on several cases that were decided between 1976 and 2008, which hold that a defendant who enters a guilty plea to distinct offenses waives any argument that the offenses are, in reality, allied offenses of similar import. However, in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, the Supreme Court of Ohio held that the issue of allied offenses under
{¶ 49} “[A] defendant may not be convicted of both gross sexual imposition and rape when the counts arise out of the same conduct.” State v. Faust, 105 Ohio St.3d 137, 2004-Ohio-7006, ¶ 143. The corollary, of course, is that a defendant may be convicted of both offenses when the counts arise out of separate conduct. Id. at ¶ 144-145. See, also, State v. Hawks, 8th Dist. No. 93582, 2010-Ohio-4345, ¶ 21. In this case, the record clearly shows that the counts of rape and gross sexual imposition were based on separate conduct. In the first place, the record does include evidence that the offenses took place on separate occasions. The presentence investigation report specifically discloses that “the abuse occurred on approximately 10 to 15 occasions * * *.” In any event, the rape and gross sexual imposition counts would not be merged as allied offenses of similar import in this case, even if the underlying conduct did occur during the same encounter.
{¶ 50} Counts one and two of the information (rape) and counts three and four of the indictment (gross sexual imposition) involve offenses against victim M.B., while
{¶ 51} With respect to each victim, the rape count or counts involve the performance of fellatio by appellant upon his victim, while the gross sexual imposition counts involve the rubbing of appellant‘s penis on the victim‘s buttocks (and, except for count three, the additional act of touching the victim‘s penis). These are distinct sexual acts involving different areas of the victim‘s body that were obviously not performed simultaneously and, therefore, constitute separate crimes for which appellant may be convicted and sentenced. See State v. Mason, 10th Dist. Nos. 10AP-337, 10AP-342, 2011-Ohio-3301, ¶ 47; State v. Faust, supra, at ¶ 144-145; State v. Cooper, 2d Dist. No. 23143, 2010-Ohio-5517, ¶ 24-26; State v. Bradley, 3d Dist. No. 15-10-03, 2010-Ohio-5422, ¶ 61-62; State v. Harvey, supra, at ¶ 21; State v. Hawks, supra, at ¶ 21-22; State v. Bunch, 7th Dist. No. 02 CA 196, 2005-Ohio-3309, ¶ 195-196, reversed in part on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109; State v. Hay (Dec. 19, 2000), 3d Dist. No. 14-2000-24; State v. Alexander (Feb. 25, 1993), 8th Dist. No. 61674.
{¶ 52} We also note that a merger of the rape and sexual imposition counts as allied offenses would have no apparent impact on the consecutive prison terms imposed by the trial court. The trial court imposed consecutive sentences for the counts of rape and unlawful sexual conduct with a minor, not for the counts of rape and gross sexual imposition.
C. Imposition of Consecutive Sentences: Judicial Findings Revisited
{¶ 53} Appellant once again asserts that the trial court erred when it sentenced him to consecutive sentences without making the required findings of fact under
{¶ 54} Accordingly, appellant‘s third assignment of error is not well-taken.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 55} In his fourth assignment of error, appellant asserts that his trial counsel was ineffective for failing “to timely correct or object to” the errors stated in his first three assignments of error. In light of our disposition of the foregoing assignments of error, we find that appellant‘s trial counsel was not prejudicially ineffective.
{¶ 56} Accordingly, appellant‘s fourth assignment of error is not well-taken.
{¶ 57} The judgment of the Lucas County Court of Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.
JUDMENT AFFIRMED.
Peter M. Handwork, J.
JUDGE
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, 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.