State v. SmithState v. Smith
Rendered on the 25th day of September, 2009.
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Stephen Schumaker, Pros. Attorney; Amy M. Smith, Asst. Pros. Attorney, Atty. Reg. No.0081712, 50 E. Columbia Street, Springfield, OH 45502
Attorneys for Plaintiff-Appellee
John J. Scaccia, Atty. Reg. No. 0022217, 536 West Central Avenue, Second Floor, Springboro, OH 45066
Attorney for Defendant-Appellant
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GRADY, J.:
{¶ 1} Defendant, Virgil Smith, appeals from his convictions and sentences for aggravated robbery and felonious assault.
{¶ 2} This case involves three separate incidents in which victims were robbed and physically assaulted during the late evening hours of December 19, 2005 and early morning hours of
{¶ 3} In the early morning hours of December 20, 2005, Defendant approached Paul Profeta in the parking lot of the Meijer‘s store at 1500 Hillcrest Avenue. Defendant demanded money from Profeta and hit him several times in the head with a bottle, resulting in serious physical harm. This incident relates to the charges in counts one and three of the indictment.
{¶ 4} During the late evening hours of December 19, 2005, Defendant approached Waeshiea Sipes in the parking lot of the Pizza Hut at 2501 E. Main Street. Defendant demanded money and items Sipes had in her possession. Defendant hit Sipes in the head with a bottle and punched her in the face. Defendant fled after taking several items from Sipes. This incident relates to the charges in counts five and six in the indictment.
{¶ 5} During the late evening hours of December 19, 2005, Defendant approached Victoria Kuhn near the intersection of South Limestone Street and Southern Avenue. Defendant demanded money from Kuhn, and when she did not turn her money over to him, Defendant hit her in the head and back with a bottle. Defendant then fled.
{¶ 6} Defendant was subsequently identified from a photographic lineup by Waeshiea Sipes and Victoria Kuhn. Moreover, Defendant‘s two accomplices, Jarred Smith and Curtis
{¶ 7} Defendant was indicted on three counts of aggravated robbery, four counts of felonious assault, and one count of attempted murder. Defendant filed a motion to suppress evidence of his pretrial photographic identifications by the victims and all evidence seized from his residence pursuant to a search warrant. The trial court overruled Defendant‘s motion to suppress the evidence following a hearing.
{¶ 8} Defendant entered pleas of guilty pursuant to a negotiated plea agreement as follows: concerning the attack on Paul Profeta, count one, aggravated robbery in violation of
{¶ 9} We granted Defendant leave to file a delayed appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 10} “THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING BRANCH I OF DEFENDANT‘S MOTION TO SUPPRESS ALL PHOTOIDENTIFICATION AND IN-COURT IDENTIFICATION.”
SECOND ASSIGNMENT OF ERROR
{¶ 11} “THE TRIAL COURT ERRED IN FINDING A SUBSTANTIAL BASIS FOR PROBABLE CAUSE IN THE SEARCH WARRANT.”
{¶ 12} In these assignments of error Defendant challenges the trial court‘s decision overruling his motion to suppress evidence. Defendant argues that the pretrial identification procedure used by police in this case, a photographic lineup, was impermissibly suggestive and resulted in unreliable identifications of him by two of the three victims. Defendant additionally argues that the affidavit submitted in support of the search warrant authorizing a search of Defendant‘s residence, being based largely upon uncorroborated statements of an anonymous informant, without any showing of the informant‘s veracity, reliability or basis of knowledge, failed to establish probable cause for the search.
{¶ 13} By pleading guilty in this case to aggravated robbery and felonious assault, Defendant waived his right to claim error
{¶ 14} Defendant‘s first and second assignments of error are overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES.”
{¶ 16} Defendant argues that, as to each of the three victims, the trial court erred in imposing consecutive sentences for aggravated robbery and felonious assault because those offenses are allied offenses of similar import under
{¶ 17} As to each of his three victims, Defendant pled guilty to aggravated robbery, a first degree felony which carries a potential sentence of three to ten years in prison.
{¶ 18} The State argues that Defendant waived the right to challenge the agreed sentence the court imposed because the component sentences are authorized by law.
{¶ 19} Contrary to Defendant‘s contention, the Ohio Supreme Court in State v. Johnson, 120 Ohio St.3d 320, 2008-Ohio-6247, did not hold that aggravated robbery and felonious assault are allied offenses of similar import. Rather, the Supreme Court held in Johnson that convictions for two counts of felonious assault in violation of
{¶ 20} Felonious assault,
{¶ 21} Defendant‘s third assignment of error is overruled.
SUPPLEMENTAL ASSIGNMENT OF ERROR
{¶ 23} In an amendment to his original brief, Defendant adds this additional assignment of error, in which he argues that the counts in the indictment charging the offense of aggravated robbery, to which he pled guilty (Counts 1, 5, and 7), fail to include the culpable mental state of recklessness, and that defect constitutes “structural error” requiring reversal of his convictions per State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (Colon I), and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749 (Colon II).
{¶ 24} At the outset we note that when a defendant enters a guilty plea and thereby admits that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. State v. Spates (1992), 64 Ohio St.3d 269, 272, quoting Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235.
{¶ 25} Defendant‘s plea of guilty to the aggravated robbery charges waives any defect in the indictment occasioned by the failure to allege any culpable mental state. State v. Gant, Allen App. No. 1-08-22, 2008-Ohio-5406; State v. Morgan, Hamilton App. No. C-080011, 2009-Ohio-1370; State v. Cain, Mahoning App. No. 08MA123, 2009-Ohio-1015; State v. Smith, Lucas App. No. L-07-1346, 2009-Ohio-48; State v. Sadowsky, Cuyahoga App. Nos. 90696, 91796, 2009-Ohio-341. We see nothing in the Colon decisions that indicates the Ohio Supreme Court intended to overrule the longstanding waiver rules with respect to guilty pleas. Smith; Gant; State v. Easter, Montgomery App. No. 22487, 2008-Ohio-6038.
{¶ 26} Alternatively, we note that the Ohio Supreme Court in Colon II stated:
{¶ 27} “In a defective-indictment case that does not result in multiple errors that are inextricably linked to the flawed indictment such as those that occurred in Colon I, structural-error analysis would not be appropriate. As we stated in Colon I, when a defendant fails to object to an indictment that is defective because the indictment did not include an essential element of the charged offense, a plain-error analysis is appropriate. 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 23. Pursuant to
{¶ 28} “Applying structural-error analysis to a defective indictment is appropriate only in rare cases, such as Colon I, in which multiple errors at the trial follow the defective indictment. In Colon I, the error in the indictment led to errors that ‘permeate[d] the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence.’ Id . at ¶ 23, 885 N.E.2d 917, citing State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17. Seldom will a defective indictment have this effect, and therefore, in most defective indictment cases, the court may analyze the error pursuant to
{¶ 29} While we agree with Defendant that the counts in the indictment charging aggravated robbery were defective because they fail to allege any culpable mental state, we nevertheless conclude that plain error analysis is appropriate, rather than structural error analysis, because the defect did not result in multiple errors that are inextricably linked to the flawed
{¶ 30} The facts recited by the prosecutor at the guilty plea proceeding, that Defendant admitted he understood his offenses and was pleading guilty to committing them, clearly support the inference that Defendant purposely,
{¶ 31} Had this case gone to trial, the evidence likely would have established the required culpable mental state of recklessness. The facts of the record to which Defendant pled guilty give rise to an inference that Defendant acted purposely
{¶ 32} Defendant‘s supplemental assignment of error is overruled. The judgment of the trial court will be affirmed.
DONOVAN, P.J., And FAIN, J. concur.
Copies mailed to:
Amy M. Smith, Esq.
John J. Scaccia, Esq.
Hon. Douglas M. Rastatter