STATE OF OHIO v. CAMERON PUGH
No. 111099
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 1, 2022
2022-Ohio-3038
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-650091-A
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: September 1, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Fallon Kilbane McNally, Assistant Prosecuting Attorney, for appellee.
Flowers & Grube, Louis E. Grube, and Melissa A. Ghrist, for appellant.
SEAN C. GALLAGHER, A.J.:
{¶ 1} Defendant-appellant Cameron Pugh appeals from the judgment of conviction and sentence that was imposed in this case. Upon review, we affirm. However, we remand the matter with instructions for the trial court to issue a nunc
I. Background
{¶ 2} On May 12, 2020, Pugh and three codefendants were charged under a multicount indictment. Pugh was charged under the first five counts.1 Counts 2 and 3 were attempted-murder counts that would later be nolled. Counts 1, 4, and 5 charged Pugh with the following offenses:
Count 1: aggravated burglary in violation of
R.C. 2911.11(A)(2) , a felony of the first degree, with one- and three-year firearm specifications and a forfeiture of a weapon specification. (Victim one and victim two named.)Count 4: felonious assault in violation of
R.C. 2903.11(A)(2) , a felony of the second degree, with one- and three-year firearm specifications and a forfeiture of a weapon specification. (Victim one named.)Count 5: felonious assault in violation of
R.C. 2903.11(A)(2) , a felony of the second degree, with one- and three-year firearm specifications. (Victim two named.)
With respect to those three counts, the indictment generally alleged that on or about March 29, 2020, Pugh and his codefendants trespassed into a structure occupied by two named persons (referred to herein as “K.M.” and “P.G.“) with the purpose to commit attempted murder and/or felonious assault and that the offender
{¶ 3} The case eventually proceeded to a jury trial that commenced on November 8, 2021, on the charges against Pugh. Prior to the start of trial, the state placed a plea offer on the record. At that time, defense counsel indicated that Pugh was rejecting the plea offer.
{¶ 4} The state called seven witnesses to testify. According to the testimony provided, Pugh and P.G. had dated in 2019 and their relationship eventually ended. Pugh stayed at P.G.‘s apartment for a period of time, but he eventually moved out. He did not return a key fob to the apartment and informed P.G. he lost it. P.G. contacted Pugh multiple times about getting items he had left behind. On the night of March 29, 2020, P.G. was sitting in her apartment with K.M., whom she was dating at that time. Pugh was texting P.G. and asking about her dating life and asking to come get his things. The two had an argument, during which Pugh stated “My TV, bed, dresser, all that coming with me this week” and “I have to come and get that shit.” Pugh made other remarks, and P.G. told Pugh not to come to her apartment. Pugh also called P.G. at one point during the argument and he knew P.G. was in her bathroom. P.G. thought something was wrong, and she kept looking out the peephole to her apartment door. Her television began cutting off, and soon after, P.G. and K.M. heard the door unlock. P.G. testified that Pugh entered the apartment, he had a firearm with a red laser that bounced around the room, they had a short exchange of words, and then Pugh began shooting. Another male who
{¶ 5} On November 10, 2021, after the state rested its case in chief and the trial court overruled a
Your Honor, it‘s the State‘s understanding that the Defendant will withdraw his previously entered not guilty [plea] and enter a plea of guilty to an amended indictment of Count 1, [as amended to] burglary, a felony of the second degree, pursuant to
2911.12(A)(2) . This would include forfeiture of a weapon pursuant to2941.1417(A) . All firearm specifications on this count would be nolled.Counts 2 and 3 would be nolled in their entirety. Count 4 is felonious assault, a felony of the second degree, pursuant to
2903.11(A)(2) . This would include a three-year firearm specification pursuant to2941.145(A) * * * [and deleting the one-year firearm specification] * * *. And this would include forfeiture of a weapon pursuant to2941.1417(A) .Count 5 is felonious assault, felony of the second degree, pursuant to
2903.11(A)(2) . All firearm specifications on this would be nolled.
{¶ 6} The state clarified the plea agreement for the court, including that Pugh would be pleading guilty to three second-degree felonies and that there was a single three-year firearm specification, which was associated with Count 4. It was
{¶ 7} The trial court advised Pugh of his constitutional rights, of the maximum sentence that could be imposed on each second-degree felony count, of the mandatory period of postrelease control, and of the Reagan Tokes Law. Pugh retracted his former plea of not guilty and entered a plea of guilty to amended Counts 1, 4, and 5, consistent with the plea agreement. The remaining counts were nolled.
{¶ 8} Relevant hereto, prior to entering his guilty plea on Count 1, the trial court informed Pugh of the amended nature of the charge and the penalty that could be imposed, stating as follows:
THE COURT: Okay. You‘ll be pleading guilty in Count 1 to burglary, amended to get rid of the aggravated part, making it a second-degree felony. Count 1 is punishable by a two- to eight-year prison term, and a fine of up to $15,000, if you plead guilty to that. Do you understand that?
THE DEFENDANT: Yes, sir.
{¶ 9} The trial court explained to Pugh that he would be sentenced indefinitely under the Reagan Tokes Law. Pugh proceeded to enter a guilty plea on Count 1 as amended to “burglary” as reflected on the record as follows:
THE COURT: Okay. Count 1 has been amended to burglary, a second degree felony, the one-year firearm specification has been deleted, how do you plead to burglary, a second-degree felony * * *?2
THE DEFENDANT: Guilty, sir.
{¶ 11} The trial court proceeded with a sentencing hearing on the same day the plea was entered. The trial court properly restated the amended charges to which Pugh pled guilty:
Count 1 amended to burglary, a second-degree felony. He also pled guilty to felonious assault in Count 4 and 5. Count 4 was amended to delete the one-year spec. Count 5 was amended to delete both specs. He pled guilty to Count 4, second degree felony with three-year firearm specification. He also agreed to forfeit his interest in the Taurus nine-millimeter.
{¶ 12} Defense counsel presented mitigating factors to the court, and Pugh‘s parents addressed the court. Pugh also addressed the court, apologized, and stated he went into P.G.‘s apartment to collect items that he claimed were his. The trial court sentenced Pugh as follows:
Therefore, on Count 1, the aggravated burglary, I‘m going to sentence you to four years at Lorain Correctional Institute [sic].
On Count 5, the count of -- the other felonious assault count, I‘m going to sentence you to six years at Lorain Correctional Institute [sic]. On Count 4 I‘m going to sentence you to three years on the firearm specification, to run prior to and consecutive with the six year minimum term on the base count, and a nine year maximum term on the base count.
You‘ll be given credit for time served.
You‘ll be ordered to pay the court costs.
You‘ll be ordered to have no contact with the victim[s] * * *.
{¶ 13} No objection was made to the trial court‘s reference to Count 1 as “aggravated” burglary, which was how the offense was originally charged in the indictment. The transcript reflects the trial court was aware at the time of sentencing that Pugh had pled earlier that day to an amended charge of burglary, a felony of the second degree. The court stated this on the record. Further, the sentencing entry properly reflects the sentence that was imposed on “Count 1: F2, 4 year(s)” and reflects the sentence that was imposed on the other counts. The trial court provided the advisements under the Reagan Tokes Law.
{¶ 14} The trial court also imposed postrelease control and informed Pugh he would “face [a] mandatory minimum post release control of 18 months up to a maximum of three years,” which is applicable to a second-degree felony. Additionally, the court ordered the forfeiture of a weapon and ordered Pugh to have no contact with the victims.
{¶ 15} Pugh timely filed this appeal.
{¶ 16} Pugh raises three assignments of error. He claims the trial court committed plain error by (1) failing to merge all of his convictions at sentencing, (2) convicting and sentencing him for “aggravated burglary” instead of burglary, and (3) sentencing him pursuant to the Reagan Tokes Law. Because all three assignments of error assert plain error, we first address the limits of our review for plain error.
A. Plain-Error Standard
{¶ 17} Generally, “[i]f the defendant failed to raise an error affecting substantial rights at trial, an appellate court reviews the error under the plain error standard in
{¶ 18}
{¶ 19} Under the plain error rule, “the defendant bears the burden of demonstrating that a plain error affected his substantial rights.” (Emphasis sic.) Perry at ¶ 14, citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To have affected substantial rights, the error must have had a prejudicial effect on the outcome of the trial. See Rogers at ¶ 22, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶ 20} Likewise, in the context of allied offenses of similar import, the Supreme Court of Ohio has held
[a]n accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.
Rogers at ¶ 3. “The law require[s] [the defendant] to demonstrate a reasonable probability that his convictions constituted allied offenses of similar import.” Id. at ¶ 29. “[A]bsent the accused‘s showing that there was a reasonable probability that the convictions are in fact for allied offenses of similar import committed with the same conduct and without a separate animus, ‘the accused cannot demonstrate that the trial court‘s failure to inquire whether the convictions merge for purposes of
{¶ 21} The defendant‘s “burden of proving entitlement to relief for plain error ‘should not be too easy.‘” Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22, quoting United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (construing
B. Plain-Error Challenges
{¶ 22} Pugh raises three plain-error challenges. First, Pugh contends that the trial court committed plain error by failing to merge all of his convictions before sentencing. Although the parties reached a plea agreement in this case, we cannot conclude from the record before us that Pugh waived the protections afforded by
{¶ 23} When considering whether two offenses are allied offenses of similar import, as a practical matter, courts must consider “[t]he conduct, the animus, and the import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.4
{¶ 24} Pugh was convicted of a burglary offense under
{¶ 26} Because Pugh has failed to demonstrate a reasonable probability that he has, in fact, been convicted of allied offenses of similar import committed with the same conduct and without a separate animus, he has not met his burden of demonstrating a plain error that affected his substantial rights. Further, this is not
{¶ 27} Second, Pugh claims the trial court committed plain error by convicting and sentencing him for aggravated burglary. However, the record clearly reflects the trial court convicted and sentenced Pugh for the three second-degree felony offenses to which he pled guilty. The record shows that pursuant to the plea agreement, Pugh entered a plea of guilty to three second-degree felonies. The trial court notified Pugh that he would be pleading “guilty in Count One to burglary, amended to get rid of the aggravated part, making it a second-degree felony * * *,” which was “[p]unishable by a two-to-eight-year prison term and a fine of up to $15,000.” At the sentencing hearing, which was conducted later the same afternoon, the trial court restated the amended charges to which Pugh pled guilty, including “Count 1 amended to burglary, a second-degree felony” with the forfeiture of the weapon. Although the trial court referred to the charge as originally indicted of “aggravated burglary” when imposing sentence, the trial court recognized that the four-year sentence imposed was for an “F2” charge, and the court imposed postrelease control of “18 months up to a maximum of three years,” which is applicable to a second-degree felony. The sentencing entry also reflects the sentence that was imposed on “Count 1: F2, 4 year(s).” Thus, Pugh was properly sentenced on the burglary charge to which he pled and no manifest miscarriage of justice occurred. Insofar as the sentencing error has a clerical error in it that stated Pugh
{¶ 28} At best, the sentencing might be described as a little sloppy. However, Pugh has not demonstrated a plain error that affected his substantial rights. Moreover, this mistake easily could have been corrected if it were raised in the trial court and does not warrant us to take notice of plain error, which would thwart judicial economy in this instance. The second assignment of error is overruled.
{¶ 29} Third, Pugh claims the trial court committed plain error by sentencing him pursuant to the Reagan Tokes Law, which he argues violates the constitutional right to due process. No constitutional challenge to the Reagan Tokes Law or objection to the indefinite sentence that was imposed was raised before the trial court.
{¶ 30} The Supreme Court of Ohio has recognized the familiar principle that “‘a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.‘” (Internal quotations omitted.) West, Slip Opinion No. 2022-Ohio-1556, at ¶ 22, quoting Olano, 507 U.S. at 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), in turn quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Accordingly, “the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.” State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), citing State v. Woodards, 6 Ohio St.2d 14, 21, 215 N.E.2d 568 (1966). Nevertheless, we have the discretion to review a forfeited constitutional challenge for plain error. State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7, citing Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 16.
{¶ 31} Pugh claims the Reagan Tokes Law violates his constitutional due process rights. However, this district‘s en banc holding in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), rejected the challenges Pugh advances. Accordingly, Pugh fails to demonstrate a plain error that affected his substantial rights. Accordingly, we overrule the third assignment of error.
{¶ 32} We are not persuaded by any other argument raised.
{¶ 33} Judgment affirmed and case remanded.
It is ordered that appellee recover from 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 common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for further proceedings consistent with this opinion.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
LISA B. FORBES, J., and EILEEN T. GALLAGHER, J., CONCUR
N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 5336 (8th Dist.).
Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that