No. 05AP-1073. | Ohio Ct. App. | Jun 29, 2006
{¶ 2} On November 5, 1999, C.B.1 was approached by two men as she walked along Refugee Road in Columbus, Ohio. At gunpoint, the men took her behind a nearby grocery store and attempted to rob her. C.B. had nothing for the men to take. The men then forced C.B. to remove her clothes and repeatedly raped her. The men eventually let C.B. go free. As a result of those events, on September 17, 2004, a Franklin County grand jury indicted appellant for one count of kidnapping in violation of R.C.
{¶ 3} On July 28, 2005, appellant withdrew his not guilty plea and entered a no contest plea to all four counts as well as the firearm specifications. The trial court accepted appellant's plea and found him guilty of the charges. The trial court sentenced appellant to a three-year prison term for the kidnapping conviction and eight-year prison terms for each of the rape convictions. The trial court ordered the rape sentences to be served concurrently, but consecutive to the kidnapping sentence. Finally, the trial court sentenced appellant to a prison term of three years for each of the firearm specification convictions. The court ordered the firearm sentences to be served concurrently, but consecutive to the other sentences, for a total prison sentence of 14 years.
{¶ 4} Appellant appeals and assigns the following errors:
1. A TRIAL COURT ABUSES ITS DISCRETION WHEN IT FAILS TO ACKNOWLEDGE AS ALLIED OFFENSES OF SIMILAR IMPORT THE OFFENSE OF RAPE AND THE OFFENSE OF KIDNAPPING, WHERE THE TWO OFFENSES ARE MERELY INCIDENTAL TO EACH OTHER.
2. A TRIAL COURT COMMITS REVERSIBLE ERROR WHERE IT FAILS TO SUFFICIENTLY STATE THE REASONS SUPPORTING A CONSECUTIVE PRISON TERM IMPOSED FOR MULTIPLE SENTENCES.
3. A TRIAL COURT COMMITS REVERSIBLE ERROR WHERE IT IMPROPERLY IMPOSES A MANDATORY SENTENCE ON A CRIMINAL DEFENDANT WITHOUT STATING ITS FINDINGS ON THE RECORD.
{¶ 5} Appellant contends in his first assignment of error that his kidnapping and rape convictions are allied offenses of similar import committed with a single animus and that they should have been merged for sentencing in accordance with R.C.
{¶ 6} The Double Jeopardy Clauses of the United States and Ohio Constitutions protects criminal defendants from multiple punishments for the same offense. State v. Rance (1999),
(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 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 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.
{¶ 7} Accordingly, to decide whether a criminal defendant may be convicted of multiple counts, a trial court must first determine whether the offenses are allied offenses of similar import. Rance, at 636. Rape, in violation of R.C.
{¶ 8} Because the kidnapping and rape charges in this case are allied offenses of similar import, appellant could only be convicted of both offenses if the crimes were committed separately or with a separate animus. Id.; Collins, at ¶ 17. The Supreme Court of Ohio has established the following principles to determine whether kidnapping and an offense of similar import are committed with a separate animus:
Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions.
State v. Logan (1979),
{¶ 9} Appellant entered a no contest plea in this case. The facts of his crimes are obtained from the prosecutor's statements at appellant's plea hearing. As C.B. walked down Refugee Road, appellant and another man grabbed her and stuck a gun in her back. The men took C.B. to the back of a grocery store and attempted to rob her. When she did not have anything for the men to take, they forced her to take off her clothes. The men then forced C.B. to perform various sexual acts against her will. A gun was displayed during the entire incident and also used to rape C.B.
{¶ 10} Appellant and an accomplice stopped the victim on a street, grabbed her, forced her to the back of a store, and attempted to rob her. These acts restrained C.B.'s liberty and were not merely incidental to the restraint appellant used to rape C.B. They were separate and independent of the rape offenses appellant subsequently committed. Under these facts, we find that the kidnapping and rape offenses were committed with a separate animus. State v. Evans, Cuyahoga App. No. 85396,
{¶ 11} Appellant contends in his second and third assignments of error that the trial court erred when it sentenced him to consecutive and non-minimum sentences without making findings or providing its reasons as required by R.C.
{¶ 12} Appellant did not challenge the constitutionality of R.C.
{¶ 13} The Ninth District Court of Appeals has declined to remand cases for new sentencing hearings where the defendant's only claim on appeal concerned a trial court's failure to make findings required by the statutes declared unconstitutional byFoster. See State v. Barry, Medina App. No. 05CA0072-M,
{¶ 14} We agree with the Ninth District's reasoning in these cases. There is a significant difference between an appeal where the defendant claims that his sentence was unconstitutional because it was based on factual findings not proven to a jury or admitted by the defendant in violation of Foster, versus an appeal where the defendant claims that the trial court erred bynot making those findings in the first place. In essence, appellant argues that the trial court erred by not following statutes that have since been declared unconstitutional. The failure to follow an unconstitutional statute is harmless error. Cf. State v. Woods (Mar. 15, 2001), Cuyahoga App. No. 77713 (failure to advise defendant of possible administrative extension of sentence provided for in R.C.
{¶ 15} After Foster, trial courts now have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences. Foster, at ¶ 100; Draughon, at ¶ 9. If we remanded this matter for resentencing, we would instruct the trial court to do what appellant claims it already did: sentence appellant within the statutory range without making factual findings or providing any reasons for its sentence. We decline to remand this case for such a futile act.
{¶ 16} Finally, we note that Foster also declared portions of R.C.
{¶ 17} Appellant's second and third assignments of error are overruled.
{¶ 18} Having overruled appellant's three assignments of error, the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Brown and Travis, JJ., concur.