State v. SawyerState v. Sawyer
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Tanner McFall, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Tiffany Sawyer was convicted on two counts of aggravated assault1 upon guilty pleas. The trial court, without ordering a presentence-investigation report, imposed the maximum, consecutive terms of incarceration that Sawyer had agreed to as part of a plea bargain. On direct appeal, in three assignments of error, Sawyer challenged (1) the voluntariness of her pleas due to judicial participation in the plea process, (2) the legality of her sentence where the court refused to order a presentence investigation (“PSI“), and (3) the legality of separate sentences for what she contended were allied offenses of similar import.
{¶2} We held that Sawyer‘s pleas were voluntary and, therefore, overruled the first assignment of error. We further held that
{¶3} We noted that our narrow definition of the phrase “authorized by law” comported with decisions from several appellate districts, but conflicted with the Second Appellate District‘s holding in State v. Underwood3 that a sentence was not “authorized by law” within the meaning of
{¶4} Sawyer appealed our judgment, and the supreme court accepted jurisdiction over the case as a discretionary appeal,6 holding it for a decision in State v. Underwood. In resolving the conflict, the supreme court adopted a broad definition of “authorized by law” and affirmed the judgment of the Second Appellate District. Specifically, the court held that “[a] sentence is ‘authorized by law’ and is not appealable within the meaning of
{¶5} On the authority of Underwood, the Ohio Supreme Court reversed that part of our judgment holding that we lacked authority to review Sawyer‘s second and third assignments of error.9 The court remanded the cause to this court for further proceedings consistent with its decision in Underwood. In accordance with this mandate, we now review the remaining assignments of error.
{¶6} In her second assignment of error, Sawyer argues that her sentence was not authorized by law because the trial court had refused to order a PSI before imposing
{¶7} At issue is
{¶8} This reading is consistent with the wording of related laws, including
{¶9} To support her argument, Sawyer relies on dicta in a footnote in the Ohio Supreme Court‘s decision in State v. Campbell14 which appears to mandate a PSI in all felony cases. But we are not bound by dicta, especially when our adherence to the dicta would contravene the language of a criminal rule.
{¶10}
{¶11} In her third assignment of error, Sawyer argues that her sentence was not authorized by law because the court punished her twice for the same offense—the aggravated assault on Camella Harris with a box cutter.
{¶12} Before the trial court, Sawyer did not object to her sentence on the ground that the offenses were allied offenses of similar import committed with the same animus. Therefore, we review the assignment of error under a plain-error standard.15
{¶13} In this case, Sawyer was charged initially under both the (A)(1) and the (A)(2) sections of the felonious-assault statute for attacking her victim with a box cutter and inflicting several wounds on May 21, 2007. After negotiations, she entered a guilty plea to two counts of the lesser-included offense of aggravated assault in violation of
{¶14} The offense of aggravated assault is set forth in
{¶15} In this case, Sawyer pleaded guilty to attacking one victim with a box cutter, wounding her several times. The state charged that this one attack, though provoked, violated both subdivisions (A)(1) and (A)(2) of the aggravated-assault statute. The state and Sawyer did not stipulate that Sawyer had committed the offenses with a separate animus or at separate times. Where Sawyer committed the offenses at the same time, with the same animus, against the same victim, she could not have been convicted of both offenses.18
{¶16} The imposition of multiple sentences for allied offenses of similar import is plain error.19 Because Sawyer‘s convictions arose from the same assault committed with the same animus against the same victim, the offenses had to merge into a single conviction.20 Accordingly, we sustain the second assignment of error. Thus, we vacate Sawyer‘s sentences for aggravated assault, and we remand the case to the trial court for resentencing, where the prosecutor must elect which offense to pursue for a conviction—the violation of
Judgment accordingly.
HENDON, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry this date.