State v. Taylor, 07ca29 (2-4-2008)State v. Taylor, 07ca29 (2-4-2008)
Lead Opinion
DECISION AND JUDGMENT ENTRY
{¶ 1} Jeremy L. Taylor appeals his three felony convictions and sentences from the Washington County Court of Common Pleas. Pursuant to a plea agreement, Taylor pled guilty to three offenses in exchange for the state dismissing two specifications. On appeal, Taylor contends that the trial court erred when it found that a
I.
{¶ 2} Marietta police responded to a report of an attempted rape. They described the sixteen-year-old (hereinafter “victim“) as extremely upset and scared. She advised an officer that as she walked in a park, an unknown male followed her; pushed her to the ground; got on top of her; bit her right breast; grabbed her vaginal area after forcing his hand up her shorts; and dry humped her. She described the dry humping as the man moving his genitals on top of her in such a way that they would be having sex if they were unclothed. She begged the man to stop. Once she got away, she ran to her boyfriend‘s house, which is where the officers took her report.
{¶ 3} The police investigation eventually led them to Taylor, who was twenty-six-years-old. The victim then identified Taylor as the man who attacked her in the park. The police interrogated Taylor. During the interview, he admitted to the attack but did not rеmember biting the victim on her breast.
{¶ 4} The interview led the police to solving another attack that occurred about four years earlier. Another sixteen-year-old (hereinafter “earlier victim“) had reported that an unknown man, between the ages of 15 and 20, came from behind her on his bike while she walked/jogged; grabbed her around her neck; and pulled her a little ways. She got away; reported the incident to police; and described her assailant. When police confronted Taylor with the earlier attack, he admitted that he was the person involved.
{¶ 5} A Washington County Grand Jury issued a three-count indictment against Taylor for kidnapping (with two specifications), gross sexual imposition, and attempted abduction. The first kidnapping and gross sexual imposition counts involved the recent victim and the attempted abduction involved the earlier victim.
{¶ 6} Taylor entered not guilty pleas. Eventually, the state and Taylor reached a plea agreement whereby he would plead guilty to all three counts of the indictment in exchange for the state dismissing the two specifications (which included a life sentence) included with the kidnapping offense. The plea agreement did not address (1) the allied offense issue or (2) sentencing recommendations.
{¶ 7} At the change of plea hearing, just after the court explained the penalties involved in each of the three offenses, and before the court heard the explanation of facts, the following dialogue occurred between the court and the state:
THE COURT: Okay. Attorney Rings, are any of them alike and allied?
MR. RINGS: No, Judge. Count 2 — 1 and 2 are on the same incident, but it‘s a kidnapping and a —
THE COURT: Yeah, they are not alike and allied.
MR. RINGS: — sex — I do not believe they are. And then, of course,
Count 3 relates to an incident that took place four years prior.
{¶ 8} Later in the hearing, Taylor entered guilty pleas to the three offenses and then the parties stipulated to the factual basis for the pleas. The cоurt then had the state make a statement of the facts. Afterwards, Taylor responded that the state‘s statement of the facts were true. The court convicted Taylor of all three offenses and ordered a pre-sentence investigation.
{¶ 9} At the sentencing hearing, the state recommended a concurrent sentence for the kidnapping and gross sexual imposition sentences “in the neighborhood of seven years” but consecutive to a recommended three year prison term for the attempted abduction offense. In sum, the state recommended a total sentence of ten years.
{¶ 10} At the same hearing, Taylor‘s counsel stated: “With respect to the sentence in this case, Judge, I know at the time of plea, he plead to all cоunts, they dismissed the spec, but the State had thought that — or it alleged that the gross sexual imposition and the kidnapping were not allied offense[s] or alike and allied, so that put a light bulb in my head to do some research.” He stated that he found a 2004 Supreme Court of Ohio case, ”State versus Foust[,]” which involved a kidnapping and a rape, that set forth “the test for determining whether kidnapping and rape werе committed with a separate
{¶ 11} At the end, instead of asking the court to merge the two offenses into one conviction, Taylor‘s counsel asked the court to impose concurrent sentences for the twо offenses but with considerably less time than the state‘s recommendation. Specifically, he recommended that the court impose a 2-year sentence for the kidnapping to run concurrent to a 1-year sentence for the gross sexual imposition, but consecutive to a 2-year sentence for the attempted abduction. In sum, he recommended a total sentenсe of four years.
{¶ 12} The court never responded to Taylor‘s “allied offenses” argument. However, the court, after classifying Taylor as a habitual sexual offender, imposed an 8-year sentence for the kidnapping; an 18-month sentence for the gross sexual imposition; and a 4-year sentence for the attempted abduction. The court ordered the kidnapping and gross sеxual imposition sentences to run concurrently to each other and consecutive to the attempted abduction for an aggregate sentence of 12-years.
{¶ 13} Taylor appeals his convictions and sentences and asserts seven assignments of error: I. “The trial court erred by entering convictions for the 2006 offenses against Jeremy Taylor for allied offenses of similаr import, kidnapping and gross sexual imposition, in violation of R.C. 2941.25(A).” II. “The trial court erred by imposing non-minimum and consecutive sentences in violation of the Due Process and Ex Post Facto Clauses of the United States Constitution.” III. “The trial court committed plain error and denied Mr. Taylor due process of law by imposing non-minimum and consecutive
II.
{¶ 14} Taylor contends in his first assignment of error that the trial court erred when it entered two convictions for the kidnapping and gross sexual imposition offenses. He claims that the court, pursuant to
{¶ 15} “[A] defendant who * * * voluntarily, knowingly, and intelligently enters a guilty plea with the assistance of counsel `may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.‘” (Cite omitted.) State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 78.
{¶ 16} Hоwever, the crux of Taylor‘s contention is that, before he entered his guilty pleas, the court erred when it concluded that the kidnapping and gross sexual imposition offenses were not allied offenses of similar import. First, we must decide if the court reached the wrong conclusion. Second, if the court did err, then did Taylor voluntarily, knowingly, and intelligently enter his guilty pleas.
{¶ 17} “Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment * * * may contain counts for all such offenses, but the defendant may be convicted of only one.”
{¶ 18} The elements of the kidnapping offense, as stated in
{¶ 19} The elements of the gross sexual imposition offense, as stated in
{¶ 20} Here, we find that when the elements of each crime are aligned, the offenses “`correspond to such a degree that the commission of one crime‘” resulted “`in the commission of the other.‘” Rance, supra, at 638, quoting State v. Jones (1997), 78 Ohio St.3d 12, 14. Specifically, the commission of a
{¶ 21} Therefore, based on the above analysis, the trial court erred when it concluded that the offenses of kidnapping and gross sexual imposition are not allied offenses of similar import under
{¶ 22} The state contends that Taylor waived the allied offense issue because he never raised it at the time he entered his guilty pleas. The reason a defendant needs to object is so that the trial court can correct its error. Generally, see, State v. Johnson, 112 Ohio St.3d 210, ¶ 31 (failure to оbject so that the court can correct its error results in defendant waiving all but plain error). In addition, a defendant may waive the allied offense issue by a plea agreement. State v. Yost, Meigs App. No. 03CA13, 2004-Ohio-4687, ¶ 12, citing State v. Yeager, Carroll App. No. 03CA786, 2004-Ohio-3640, ¶ 60.
{¶ 23} Here, the state agrees that the plea agreement did not address the issue. Instead, at the time, the state concedes that it thought that the offenses were not allied. The court, not the partiеs, raised the issue before Taylor entered his guilty pleas. The state told the court at the
{¶ 24} The state further contends that Taylor invited the court‘s error when it asked for concurrent sentences and the court imposed the same. See State ex rel. Smith v. O‘Connor (1995), 71 Ohio St.3d 660, 663 (a party cannot take advantage of an error he or she invited or induced the court to make). We are not persuaded. Taylor asked for a concurrent total sentence of 2-years and the court imposed a concurrent total sentence of 8-years, i.e., 8-years for the kidnapping and 18-months for the gross sexual imposition. Therefore, we find that the court did not impose the concurrent sentence that Taylor requested.
{¶ 25} Accordingly, we find that Taylor did not invite or induce the error.
{¶ 26} We now proceed to determine if Taylor voluntarily, knowingly, and intelligently entered his guilty pleas.
{¶ 27} In determining whеther to accept a guilty plea, the trial court must determine whether the defendant knowingly, intelligently, and voluntarily entered the plea. State v. Johnson (1988), 40 Ohio St.3d 130, syllabus;
{¶ 28} Strict compliance with
{¶ 29} Here, we find that the trial court‘s error affected Taylor‘s substantial rights because the court convicted and sentenced him for both the kidnapping and the gross sexual imposition offensеs. See, e.g., Yarbrough, supra, at ¶ 102 (convicting and sentencing the defendant for theft and receiving stolen property violated
{¶ 30} Accordingly, we sustain Taylor‘s first assignment of error as it relates to
III
{¶ 31} Taylor contends in his remaining assignments of error that the trial court erred for various reasons when it sentenced him. Based on our resolution of Taylor‘s first assignment of error, we find that these issues are not yet ripe for consideration.1 Therefore, we do not address them.
IV.
{¶ 32} In conclusion, we sustain Tаylor‘s first assignment of error as it relates to
JUDGMENT VACATED IN PART AND CAUSE REMANDED.
Dissenting Opinion
{¶ 33} I agree that Taylor did not waive the allied offenses issue, but at the sentencing hearing he expressly invited the error that he now contests. Taylor‘s counsel did not ask for merger at the sentencing hearing; he asked for concurrent sentencing. The court complied, albeit with a different term of imprisonment. This does not negate the invitation to impose concurrent sentences in my view. While this request may have resulted in ineffeсtive assistance of counsel, that is not the issue before us. Thus, I dissent.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE VACATED IN PART, i.e., Taylor‘s conviction and sentence for gross sexual imposition, AND THIS CAUSE REMANDED to the trial court for further proceedings consistent with this opinion. Appellee shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandatе issue out of this Court directing the Washington County Court of Common Pleas 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 continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Cоurt an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty day period.
The stay shall terminate earlier if the appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to
A certified copy of this entry shall constitute the mandate pursuant to
Abele, P.J.: Concurs in Judgment Only.
Harsha, J.: Dissents with Dissenting Opinion.