State v. MoultonState v. Moulton
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-519027
Robert L. Tobik
Cuyahoga County Public Defender
BY: David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: James D. May
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Defendant-appellant, Angela Moulton (Moulton) appeals her conviction. Finding some merit to her appeal, we affirm in part and reverse in part.
{¶ 2} In 2008, Moulton was charged in an 80-count indictment with one сount of engaging in a pattern of corrupt activity, 49 counts of forgery, four counts of identity fraud, ten counts of receiving stolen property, seven counts of theft, and
{¶ 3} Moulton entered pleas of no contest to all 80 charges and the trial court sentenced her to an aggregate sentence of ten years in prison.
{¶ 4} Moulton now appeals, raising the following three assignments of errоr for our review:
I. The trial court erred when it did not advise Angela Moulton she was waiving certain constitutionally guaranteed trial rights by pleading guilty in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and
Article I Section 10 of the Ohio Constitution andCrim.R. 11 .II. The court erred in finding Ms. Moulton guilty and sentencing her under offense[s] for which she was not under indictment.
III. The offenses of tаmpering with records are allied offenses of similar import with the offense of engaging in a pattern of corrupt activity and thus should have been merged into a single count of conviction.
No Contest Plea
{¶ 5} In the first assignment of error, Moulton argues the trial court did not properly advise her of the constitutional rights she was waiving by pleading no contest.
{¶ 6}
(2) In felony cases the court may refuse to accept a plea of guilty or no contest, and shall not accept a pleа of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which thе defendant cannot be compelled to testify against himself or herself.
{¶ 7} The duties of the trial court pursuant to
{¶ 8} To comply with the duties on
{¶ 9} In the instant case, the trial court informed Moulton of her rights to counsel and a jury trial, and that the state had to prove her guilt beyond a reasonable doubt at a trial at which she could not be compelled to testify against herself. The court also determined that she had not been induced, forced, or threatened to plead no contest.
{¶ 10} Moulton‘s specific complaint is that the trial court did not adequately inform her of her constitutional rights to confront witnesses against her and to have compulsory process for obtaining witnesses in her favor.
{¶ 11} In State v. Cummings, Cuyahoga App. No. 83759, 2004-Ohio-4470, we stated that [a]lthough a trial court need not specifically tell a defendant that he has the right to compulsory process, it must nonetheless inform a defendant that it has the pоwer to force, compel, subpoena, or otherwise cause a witness to appear and testify on the defendant‘s behalf. Id. quoting State v. Wilson, Cuyahoga App. No. 82770, 2004-Ohio-499, at ¶16, appeal not allowed, 102 Ohio St.3d 1484, 2004-Ohio-3069, 810 N.E.2d 968.
{¶ 12} In this case, the trial court told Moulton that she had a right to subpoena and call witnesses. We have previously held that the use of the word subpoena adequately informs the dеfendant of his right to compulsory process. State v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, appeal not allowed by 110 Ohio St.3d 1443, 2006-Ohio-3862, 852 N.E.2d 190; State v. Senich, Cuyahoga App. No. 82581, 2003-Ohio-5082; State v. Gurley (June 5, 1997), Cuyahoga App. No. 70586. Therefore, by stating Moulton had a right to subpoena witnesses, the trial court clearly informed her at the time of her plea of her right to compulsory process.
{¶ 13} We find that the trial court strictly complied with the requirements of
Theft Convictions
{¶ 14} In the second assignment of error, Moulton argues that the trial court incorrectly convicted her of two felony theft counts that, as indicted, were first-degree misdemeanors. The state concedes this assignment of error, but argues that any error was harmless becausе her sentences for these charges were suspended.
{¶ 15} Although not stated as such in her brief, Moulton is alleging a violation of her nonconstitutional rights. Ohio courts have determined that although literal compliance with
{¶ 16} Substantial compliance has been defined as whether under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Nero; see, also, State v. Veney, 120 Ohio St.3d 176, 179-180, 2008-Ohio-5200, 897 N.E.2d 621. In other words, when reviewing the totality of the circumstances, a court must determine whether the defendant understood the consequences of waiver. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51.
{¶ 17} A defendant who challenges her guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Nero. To demonstrate prejudice in the context of this case, Moulton must show that her guilty plea would otherwise not have been entered if the trial court had not erred. Id.
{¶ 18} Ohio requires the court to satisfy itself that the defendant knows the maximum penalty applicable to the offense involved. State v. Wilson (1978), 55 Ohio App.2d 64, 65-66, 379 N.E.2d 273. Although the trial court erred when it did not inform Moulton of the range of sentence for a first-degree misdemeanor, we find that Moulton has failed to show that she was prejudiced by the court‘s
{¶ 19} In counts 25 and 35 of the indictment, Moulton was charged with theft, in violation of
{¶ 20} The second assignment of error is sustained.
Allied Offenses
{¶ 21} In the third assignment of error, Moulton argues that tampering with records and engaging in a pattern of corrupt aсtivity are allied offenses of similar import. For the following reasons, we disagree.
{¶ 22} The Ohio legislature has set forth its statement of when punishments for multiple offenses arising from the same conduct may be imposed in
(A) Where the same conduct by defendant can be construed to constitute two or more allied offеnses 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 sеparately 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.
{¶ 23} In 1999, the Ohio Supreme Court issued its opinion in State v. Rance, 85 Ohio St.3d 632, 634, 1999-Ohio-291, 710 N.E.2d 699, forming a two-part test to determine whether crimes are allied offenses of similar import and holding that offenses were of similar import if the offenses correspond to such a degree that the commission of one crime will result in the commission of the other. The first part of the test is to compare the elements of the two crimes to determine if the offenses are allied offenses of similar import under
{¶ 24} Within the last few years, the Ohio Supreme Court has issued multiple opinions to clarify its holding in Rance. See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, and State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154.
{¶ 25} In Cabrales, the Court clarified that courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import. Id. at paragraph one of the syllabus.
{¶ 26} In Brown, the Court addressed the additional factor of societal interests, i.e., whether the legislature manifested an intention to serve two different interests in enacting the two statutes. Brown at ¶35, quoting Whalen v. United States (1980), 445 U.S. 684, 709-711, 100 S.Ct. 1432, 63 L.Ed.2d 715.
{¶ 27} By way of example, the Brown court noted that statutes prescribing the offenses of theft and aggravated burglary served different purposes. While thе theft statute is intended to prevent the non-consensual taking of another‘s property; aggravated burglary, with its focus on a trespass in an occupied structure, is intended to prevent harm to persons. State v. White, Cuyahoga App. No. 92972, 2010-Ohio-2342, citing Brown at ¶36. Because aggravated burglary and theft served different societal purposes, they could be punished separately. Id.
{¶ 29} In Winn, the Ohio Supreme Court found aggravated robbery and kidnapping to be allied offenses of similar import under the Cabrales test, but the Court did not consider the societal interests underlying the statutes to determine legislative intent as it had in Brown. See State v. Minifee, Cuyahoga App. No. 91017, 2009-Ohio-3089, appeal not allowed by 123 Ohio St.3d 1426, 2009-Ohio-5340, 914 N.E.2d 1065.
{¶ 30} In considering whether the crimes of domestic violence and kidnapping are allied offenses, wе relied on Brown in State v. Mosley, 178 Ohio App.3d 631, 2008-Ohio-5483, 899 N.E.2d 1021, appeal not allowed by 121 Ohio St.3d 1427, 2009-Ohio-1296, 903 N.E.2d 326. We stated that the Brown court illuminated that the [Rance] two-tiered test is merely a tool, not a requirement, used to determine the legislature‘s intentions regarding whether to permit cumulative sentencing. Id. By asking whether two separate statutes each include an element the other does not, a court is really asking whether thе legislature manifested an intention to serve two different interests in enacting the two statutes. Mosley quoting Brown at ¶35, quoting Whalen v. United States
{¶ 31} We now turn to the case at bar. Moulton argues that the offenses of tampering with records and engaging in a pattern of corrupt activity are allied because the predicate offense of tampering with reсords is subsumed into the pattern of corrupt activity violation. This is so, Moulton claims, because one cannot be convicted of the pattern of corrupt activity violation if one did not commit the underlying offense of tampering with records.
{¶ 32} The state claims that the underlying offense of tampering with records should not be considered an allied offense because a violation of Ohio‘s RICO statute depends on the existence of a pattern of criminal activity that is independent from the predicate offenses.
{¶ 33} We find the Ohio Supreme Court‘s holding in Brown instructive and now turn to determine whether the Ohio legislature manifested an intention to permit separate punishments for the commission of the pattern of corrupt activity crime and the predicate crimes. As in Brown and Mosley, we compare the societal interests protected by the relevant statues and conclude that the societal interests the statutes intend to protect are different.
{¶ 34} Tampering with records, in violation of
{¶ 35} Ohio‘s RICO statute, on the other hand, criminalizes a pattern of cоrrupt activity and imposes liability for a criminal enterprise. In State v. Schlosser (1997), 79 Ohio St.3d 329, 1998-Ohio-716, 681 N.E.2d 911, the Ohio Supreme Court noted that Ohio‘s RICO statute was based on the federal RICO statute,
It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime. Organized Crime Control Act of 1970, Statement of Findings and Purpose, 84 Stat. 922, reprinted in 1970 U.S.Code Cong. & Adm. News at 1073.
{¶ 36} In State v. Dudas, Lake App. Nos. 2008-L-109 and 2008-L-110, 2009-Ohio-1001, the Eleventh District court discussеd the very issue of whether a violation of Ohio‘s RICO statute and a violation of the predicate act were allied offenses and found that [a] violation of
{¶ 37} We agree with the Dudas court that Ohio‘s RICO statute was enacted to criminalize the pattern of criminal activity and is not similar to the underlying
{¶ 38} Moreover, we note that state and federal courts around the country have uniformly found that a RICO violation is a discrete offense that can be prosecuted and punished separately from its underlying predicate offenses.1
{¶ 39} The third assignment of error is overruled.
{¶ 40} Accordingly, the convictions for theft in counts 25 and 35 are reversed and the case is remanded for proceedings consistent with this opinion.
It is ordered that appellant and appellant share 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 common pleas court to carry this judgment into execution.
LARRY A. JONES, JUDGE
CHRISTINE T. MCMONAGLE, P.J., and ANN DYKE, J., CONCUR