STATE OF OHIO, Plaintiff-Appellee, vs. CASEY L. PIGGE, Defendant-Appellant.
Case No. 09CA3136
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
Released: December 21, 2010
[Cite as State v. Pigge, 2010-Ohio-6541.]
McFarland, P.J.
APPEARANCES:
Peter Galyardt, Columbus, Ohio, for Appellant.
Michael M. Ater, Ross County Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
McFarland, P.J.:
{¶1} Defendant-Appellant, Casey Pigge, appeals the Ross County Court of Common Pleas’ judgment that found him guilty of the following criminal offenses: (1) two counts of aggravated murder, in violation of
{¶2} Appellant additionally argues that the trial court wrongly sentenced him for both aggravated arson and tampering with evidence. He contends that the two offenses constitute allied offenses of similar import and, thus, that he may be sentenced for only one of those offenses. Because the two offenses do not correspond to such a degree that the commission of one necessarily results in the commission of the other, the two offenses are not allied offenses of similar import. Consequently, the trial court did not improperly sentence appellant for these two offenses.
{¶3} Accordingly, we overrule appellant‘s two assignments of error and affirm the trial court‘s judgment.
I.
FACTS
{¶4} On September 5, 2008, appellant violently murdered Rhonda Summer. As the prosecutor recited: “[Appellant] pulled out a knife and at least five times he ripped it across [Summer‘s] throat. It caused at least eight inch lacerations, severed her carotid artery and jugular veins. He then sat on the couch and watched her die. He went upstairs to wash the blood off of himself. He went downstairs to stole [sic] some of her money then set the house on fire.”1
{¶5} On September 12, 2008, the Ross County Grand Jury returned an indictment that charged appellant with: (1) two counts of aggravated murder, in violation of
{¶6} On August 25, 2009, at a pre-trial hearing, the state requested the court to dismiss the death penalty specifications due to the state‘s expert‘s opinion that appellant suffers from mental retardation. Apparently, the dismissal of the death penalty specifications prompted appellant to decide to engage in plea negotiations with the state, which ultimately resulted in his decision to plead guilty.
{¶7} On October 27, 2009, the court held a change of plea hearing and engaged in a
” * * * You have the right to a speedy and public trial by trial [sic] or if you choose, by a judge[;] by pleading guilty you are giving up that right. Do you understand that?
[Appellant]: Yes your honor.
The Court: [Appellant], all twelve jurors, if it is a jury trial, or the judge if it is a trial to court, must be convinced that the state has proved each and every element of the charges against you beyond a reasonable doubt before you can be convicted of those charges. By pleading guilty you are giving up that right. Do you understand that?
[Appellant]: Yes your honor.
The Court: * * * You have the right not to be forced to testify at trial in these cases. That means that you can not [sic]
be called to the witness stand if you do not wish to go; your decision not to testify can not [sic] be used against you[;] in fact if it‘s a jury trial and you ask me to I have to instruct the jury the can not [sic] consider your decision not to testify for any purpose. By pleading guilty you are giving up that right. Do you understand that? [Appellant]: Yes your honor.
The Court: You also have the right to confront any witnesses the state of Ohio might have against you at trial. That means you have the right to be here in court when those witnesses testify; you have the right for your attorneys to ask questions of those witnesses on cross-examination. By pleading guilty you are giving up that right. Do you understand that?
[Appellant]: Yes your honor.
The Court: You also have the right to a compulsory process. That means you have the right to have subpoena‘s [sic] issued for any witness that you want to appear on your behalf in court. B[y] pleading guilty you are giving up that right. Do you understand that?
[Appellant]: Yes your honor.
* * * *”
{¶8} The court asked appellant if he reviewed the guilty plea petition with his attorneys. He stated that he had and indicated that he understood it. Appellant further stated that he had signed the plea form. With respect to appellant‘s right to compulsory process, the form advised appellant that he has “the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor.”
{¶9} The court asked: “Do you have any questions about anything we have just been over in these matters that I can answer for you? Please don‘t
{¶10} On November 16, 2009, the court sentenced appellant. The court observed that: (1) the two counts of aggravated murder merged and that the state elected to proceed to sentencing on the first count; and (2) counts four (aggravated burglary) and six (burglary) merged with count three (aggravated robbery). The court then sentenced appellant to: (1) life with parole eligibility after thirty years for the aggravated murder offense; (2) six years for the aggravated robbery offense; (3) six years for the aggravated arson offense; and (4) two years for the tampering with evidence offense. The court ordered that appellant serve the aggravated murder and aggravated robbery sentences consecutively and that he serve the aggravated
II.
ASSIGNMENTS OF ERROR
{¶11} Appellant timely appealed the trial court‘s judgment and raises two assignments of error.
First Assignment of Error:
Mr. Pigge was deprived of his right to due process under the Fourteenth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution when the trial court accepted an unknowing, unintelligent, and involuntary guilty plea.
Second Assignment of Error
The trial court erred when it convicted Mr. Pigge of both aggravated arson under
R.C. 2909.02(A)(2) , and tampering with evidence underR.C. 2921.12(A)(1) , as those offenses are allied offenses of similar import, and the record is silent as to whether the offenses were committed with a separate animus.
III.
GUILTY PLEA
{¶12} In his first assignment of error, appellant argues that the trial court erred by accepting his guilty plea when he did not knowingly, intelligently, and voluntarily enter it. In particular, appellant contends that
{¶13} The ultimate inquiry when reviewing a trial court‘s acceptance of a guilty plea is whether the defendant entered the plea in a knowing,
{¶14}
{¶15} When a trial court engages in a plea colloquy with the defendant, it must strictly comply with
{¶16} “The best way to ensure that pleas are entered knowingly and voluntarily is to simply follow the requirements of
{¶17} A trial court “may not relieve itself of the requirement of
{¶18} In State v. Saaty (Mar. 4, 1997), Franklin App. No. 96APA06-777, the court applied this principle and concluded that although a defense counsel‘s representation that counsel advised the defendant of his rights may constitute additional evidence that the court explained the right in a manner reasonably intelligible to the defendant, it cannot substitute for the court‘s
“* * * [W]hile defense counsel advised the trial court he read aloud the plea forms to defendant and in his opinion defendant understood them, counsel‘s actions cannot excuse the trial court‘s failure to specifically inform defendant he was waiving his right to a jury trial. In response to questioning from the trial court, defense counsel in Ballard stated he had explained to defendant his constitutional rights, and he believed defendant understood them. The Ballard court considered defense counsel‘s representations as additional proof that the trial court had meaningfully informed defendant of his right to a jury trial, stating, ‘[a]lthough the trial court may not relieve itself of the requirement of Crim.R. 11(C) by exacting comments or answers by defense counsel as to the defendant‘s knowledge of his rights, such a colloquy may be looked to in the totality of the matter.’ Ballard, supra, at 481.
Thus, where the trial court makes only an indirect or ‘glancing’ reference to a constitutional right, a defense counsel‘s representation that he informed a defendant of his constitutional rights can be ‘looked to in the totality of the matter’ in determining whether the trial court explained or referred to a constitutional right in a manner reasonably intelligible to that defendant. However, where the trial court has completely omitted mentioning a right specified in Boykin and Ballard, defendant‘s counsel‘s representation is not sufficient; defendant‘s plea is invalid and must be vacated. See [State v.] Sturm[ (1981), 66 Ohio St.2d 483, 422 N.E.2d 853]. Here, the trial court did not refer to the right to a jury trial in any manner. As Ballard dictates, the trial court‘s exacting comments or answers from defendant‘s attorney did not relieve it from the mandate of Crim.R. 11(C). Id.”
{¶19} With the foregoing principles in mind, we turn to appellant‘s specific argument—that the trial court failed to adequately advise him of his constitutional right to compulsory process. We recently considered the
{¶20} We further observed that some Ohio courts “have required the trial court to specifically inform the defendant of the power to compel the attendance of witnesses.” Id. at ¶18, citing State v. Gardner, Lorain App. No. 08CA009520, 2009-Ohio-6505, at ¶9 (court failed to reasonably apprise defendant of compulsory process right because it did not inform him that he could use the court‘s subpoena power to compel witnesses’ attendance); State v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, at ¶17 (stating that trial court “clearly informed” defendant of compulsory process right by stating that defendant had a right to subpoena witnesses); State v. Wilson, Cuyahoga App. No. 82770, 2004-Ohio-499, at ¶16 (“The trial court must inform a defendant that it has the power to force, compel, subpoena, or otherwise cause a witness to appear and testify on the defendant‘s behalf. Otherwise, the logical import of the court‘s notice is that the defendant could present such witnesses as he could only secure through his own efforts.“) (emphasis sic); see, also, State v. Rosenberg, Cuyahoga App. No. 84457, 2005-Ohio-101, at ¶14 (stating that “strict compliance with Crim.R. 11(C) requires the trial court to inform the defendant that witnesses could be ‘forced,’ ‘subpoenaed,’ ‘compelled,’ ‘summoned,’ or ‘required’ to appear”
{¶21} We declined to specifically adopt either view, but instead, determined that “even under the more restrictive cases, the trial court‘s statement is satisfactory because the statement indicates that [the defendant] could have had the court issue subpoenas to ensure the presence of witnesses. The gist of the trial court‘s statement was that [the defendant] had the right to subpoena witnesses to testify at any potential trial. We find that this would reasonably apprise an individual of the nature of his constitutional right to compulsory process.” Id. at ¶19.
{¶22} In the case at bar, the trial court‘s statement adequately advised appellant of his right to compulsory process by using the literal language of the rule and by explaining the term in reasonably intelligible terms. The trial court explained to appellant that he has “the right to a compulsory process. That means you have the right to have subpoena‘s [sic] issued for any witness that you want to appear on your behalf in court.” The trial court‘s
{¶23} Not only did the court literally comply with the rule, it went a step further and explained the compulsory process right in terms that were at least reasonably intelligible to appellant. While slight nuances exist between the trial court‘s statement in the case at bar and the trial court‘s statement in McDaniel, both statements advised that pleading guilty waives the right to have subpoenas issued. We agree with those cases holding that a trial court‘s statement to the effect that a guilty plea waives the right to subpoena witnesses sufficiently advises a defendant in a reasonably intelligible manner of his compulsory process right. See State v. Moulton, Cuyahoga App. No. 93726, 2010-Ohio-4484, at ¶12 (concluding that trial court “clearly informed” defendant of compulsory process right by stating that defendant had a right to “subpoena and call witnesses“); State v. Thomas, Franklin App. No. 04AP-866, 2005-Ohio-2389, at ¶9 (finding trial court‘s statement that defendant had the “right to have your witnesses, should you have any, subpoenaed to the courtroom” sufficient explained compulsory process right); State v. Moorefield (Oct. 8, 1999), Champaign App. No. 99CA4 (stating that trial court‘s explanation that defendant‘s plea would waive his “right to make witnesses attend and testify” explained compulsory process right “in a functional sense” so as to be “fully sufficient to make [it] reasonably intelligible” to defendant); State v. Lelux (Mar. 4, 1997), Franklin App. No. 96APA08-1018 (noting that term “subpoena” is so frequently used that its meaning is commonly known and understood by laypeople and holding that trial court‘s explanation of compulsory process right as “the right to subpoena witnesses for the trial” reasonably informed defendant of his constitutional right).
{¶24} Moreover, when the court asked appellant whether he understood that pleading guilty waives his right to compulsory process, i.e., the right to have subpoenas issued, appellant stated that he did. Although determining what a defendant subjectively understands is not an exact science, “if the defendant receives the proper information, then [a court] can ordinarily assume that [the defendant] understands that information.” State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. We already
{¶25} As additional evidence that the trial court adequately advised appellant of his compulsory process right, we point out that appellant stated that he had reviewed the plea petition with his attorneys. See Ballard (approving the idea that a court may look to defense counsel‘s representations as additional evidence that defendant understood
{¶26} To the extent appellant argues that the trial court possessed some heightened duty to further define the concept of compulsory process, a term not commonly understood by a layperson,3 we note that at least one other court has rejected this exact argument. See State v. Mundy (Oct. 18, 1996), Greene App. No. 96CA1. In Mundy, the defendant asserted that he could not have entered his plea in a knowing and voluntary manner because the phrase “compulsory process” is not known to the average layperson. In
{¶27} The case at bar is quite similar to Mundy. In both cases, the courts used the language set forth in
{¶28} Moreover, to the extent appellant‘s argument might be construed as asserting that he was not competent to enter a guilty plea,4 we disagree. Without question, the conviction of a defendant who is not competent to enter a plea violates due process of law. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, at ¶155, citing Drope v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103, and State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433. However, in the absence of evidence to the contrary, a criminal defendant is rebuttably presumed competent to enter a guilty plea. See
{¶29} In the case at bar, we believe that the record demonstrates that appellant was competent to plead guilty and that the record does not contain sufficient indicia of incompetence to have required the court to ascertain, sua sponte, appellant‘s competency. Throughout the plea proceedings, appellant clearly answered all of the court‘s questions and indicated his understanding of all the information that the court relayed. When the court asked appellant whether he suffered from any mental disability, appellant responded that he did not. Although the record contains evidence that appellant has been identified as mentally retarded since he was a young child, mental retardation alone does not constitute a sufficient indicia of incompetency to require a trial court to sua sponte conduct a competency inquiry.5 See State v. Beck, Hamilton App. Nos. C-020432, C-020449, and C-030062, 2003-Ohio-5838, at ¶12 (citations omitted). As the United States Supreme Court has recognized, a mentally retarded individual may be competent to enter a guilty plea. See Atkins, supra; see, also, Were at ¶48. The Court has
{¶30} We reiterate that in the case at bar, nothing in the record raises sufficient indicia of incompetency to suggest that appellant was not competent to enter a guilty plea. As such, appellant was competent to understand the plea proceeding, including his right to compulsory process, and to speak up if he did not. If appellant did not understand what the court meant by the words “compulsory process” and “subpoena,” he should have said so. Instead, he affirmatively indicated that he understood. Unless a defendant indicates in some way that he is confused or does not understand the meaning of “compulsory process” or “subpoena,” we do not believe that a trial court possesses an independent duty to engage in a lengthy dissertation of the meaning of the court‘s subpoena power and the constitutional right to compulsory process—even when the defendant is mentally retarded. Furthermore, appellant informed the court that he did not suffer from any mental disability, that he understood everything the court stated, and that he had reviewed the plea petition with his attorneys.
{¶31} We find the case at bar similar to State v. Bennett (July 18, 1991), Montgomery App. No. 12208. In Bennett, the defendant asserted that he did not understand the effect of his plea when he could not “adequately read or write” and when “his mental capacity is quite diminished, even to the point of having been labeled ‘mentally retarded’ while in school.” The court rejected the defendant‘s argument, explaining that the defendant “failed to point out how these matters, if true, impaired his ability to understand the effect of his plea. A criminal defendant may very well understand the effect of his plea, after proper explanation, even though he is subject to those limitations.” The court further observed that the trial court asked the defendant “several times” whether he understood, and each time, appellant responded that he did.
{¶32} Similarly, in the case sub judice, the record does not support any finding that appellant‘s status as a mentally retarded individual precluded him from understanding the consequences of his guilty plea, including that he would waive his right to compulsory process. We emphasize, again, that appellant never gave any indication that he failed to comprehend the proceedings or what the court meant by the terms “compulsory process” and “subpoena.” Had he done so, then the trial court should have inquired further and possibly further explained the concepts. In
{¶33} Furthermore, allowing a defendant to state in open court that he understood a
“Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.”
Id., quoting United States v. Smith (C.A.7, 1971), 440 F.2d 521, 528-529 (Stevens, J., dissenting); see, also, Hill v. Lockhart (1985), 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203. Because “[a] plea of guilty is a complete admission of guilt,” State v. Stumpf (1987), 32 Ohio St.3d 95, 104, 512 N.E.2d 598, “absent some assertion that a conviction is inherently erroneous, courts should be reluctant to disturb the finality of convictions based on
{¶34} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
IV. ALLIED OFFENSES OF SIMILAR IMPORT
{¶35} In his second assignment of error, appellant argues that the trial court erred by convicting him of aggravated arson and tampering with evidence when those two offenses constitute allied offenses of similar import. He contends that the commission of aggravated arson necessarily results in commission of tampering with evidence.
A. WAIVER ISSUES
{¶36} Before considering the merits of appellant‘s assignments of error, we address the state‘s arguments that (1) appellant waived any alleged error by failing to object at the sentencing hearing, and (2) he cannot appeal the sentence because he received the sentence for which he negotiated. We reject both of the state‘s arguments.
{¶37} When a defendant fails to object to the imposition of multiple sentences for allied offenses of similar import, we may recognize the error if it constitutes plain error. It is well settled that we may notice plain errors or defects affecting substantial rights, despite an appellant‘s failure to bring them to the attention of the trial court.
2. EFFECT OF NEGOTIATED SENTENCE ON APPEALABILITY OF ALLIED OFFENSE ISSUE
{¶38} A criminal defendant has the right to appeal the issue of allied offenses under
{¶39} Based upon the clear holding of Underwood, we reject the state‘s argument that appellant is prohibited from appealing the multiple sentences for allied offenses when the sentence resulted from a plea negotiation.
B. ALLIED OFFENSE ANALYSIS
{¶40}
(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 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.
{¶41} 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.‘”
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,
{¶42} To determine whether offenses are allied offenses of similar import under
{¶44} The aggravated arson statute,
(A) No person, by means of fire or explosion, shall knowingly do any of the following:
(1) Create a substantial risk of serious physical harm to any person other than the offender;
(2) Cause physical harm to any occupied structure;
* * * *
The tampering with evidence statute,
(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation
{¶45} When we compare the elements of these two offenses in the abstract, we do not find that they correspond to such a degree that commission of the one necessarily results in the commission of the other. The elements we must compare are (1) fire or explosion, (2) knowingly, (3) (a) create substantial risk of serious physical harm, or (b) cause physical harm to occupied structure (aggravated arson); and (1) knowing, (2) official proceeding or investigation, (3) alter, destroy, conceal, remove, (4) purpose to impair, (5) value or availability as evidence (tampering with evidence). One can commit the offense of tampering with evidence without necessarily
{¶47} In Moore, the court determined that arson (not aggravated) and tampering with evidence constitute allied offenses. The court found that the commission of arson will result in the commission of tampering with evidence. At the time Moore was decided, the arson statute,
{¶49} Because we determined that the commission of aggravated arson does not necessarily result in the commission of tampering with evidence, or vice versa, we have no need to consider whether appellant committed the offenses separately or with the same animus.
{¶50} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
Kline, J., concurring.
{¶51} I concur in judgment and opinion. I write separately to explain how I distinguish State v. Moore (Oct. 21, 1987), Hamilton App. No. C-860814, which the appellant relies on in his argument that the offenses of
{¶52} Moore relies on the assumption that arson involves an attempt to destroy property with fire or explosion. And since arson involves an attempt to destroy property, it is an allied offense to tampering because tampering also prohibits the destruction of property where the malefactor knows that the property is likely to be evidence in an official investigation. Id. at 46-49.
{¶53} In my view, the Moore analysis fails because the use of fire or explosion does not destroy evidence related to arson. That is, even if the property is entirely consumed, the resulting ashes are, in fact, evidence of arson. The fire may or may not consume evidence of another crime or other evidence related to arson but the fire does not necessarily destroy evidence of arson because the use of fire is an element of arson. Therefore, an offender may commit the crime of aggravated arson without necessarily committing the crime of tampering with evidence. It is, of course, easy to see that an individual may tamper with evidence without committing arson. Therefore these offenses “are not allied offenses because the commission of one will not automatically result in commission of the other.” State v. Rance, 85 Ohio St.3d 632, 639, 1999-Ohio-291, citing State v. Preston (1986), 23 Ohio St.3d 64, 65.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Ross 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.
Harsha, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion with Opinion.
For the Court,
BY:
Matthew W. McFarland
Presiding 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.