796 N.E.2d 578 | Ohio Ct. App. | 2003
{¶ 2} On March 11, 2002, then fifty-year-old Watson was arrested after stealing lotion from a Rite Aid pharmacy in Cleveland. He pushed aside a security officer who attempted to stop him as he was leaving the store, although he was chased and caught by other store personnel shortly thereafter. He was indicted on a single count of robbery through the threat, attempt, or infliction of physical harm.1
{¶ 3} At trial the security officer testified that Watson did not injure him, but lowered his shoulder and "kind of bumped me to get me out of his way." After hearing all the evidence, the judge found that Watson did not attempt, threaten, or inflict physical harm and he could not be convicted of robbery *152 as charged in the indictment. The judge found, however, that robbery through the use of force2 was a lesser included offense, found Watson guilty of that crime, and sentenced him to four years of community control sanctions.
{¶ 4} Watson contends that theft3 was the most serious offense for which he could be convicted. R.C.
{¶ 5} "(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
{¶ 6} "(1) Have a deadly weapon on or about the offender's person or under the offender's control;
{¶ 7} "(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
{¶ 8} "(3) Use or threaten the immediate use of force against another."
{¶ 9} A violation of division (A)(2) is a second degree felony, while a violation of division (A)(3) is a third degree felony.4 The State argues that R.C.
{¶ 10} "(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense."6
{¶ 11} The parties agree that robbery through the use or threat of immediate force carries a lesser penalty than robbery through the attempt, infliction, or threat of physical harm, and that the attempt, threat, or infliction of physical harm is not required to commit a robbery by the use or threat of immediate force. Here, the only issue is whether robbery under R.C.
{¶ 12} The parties have focused on whether the element of physical harm in R.C.
{¶ 13} R.C.
{¶ 14} Our analysis cannot stop there, however, because the United States Supreme Court, in Whalen v. United States,9 held that although federal statutes must be analyzed in the abstract to determine whether Congress authorized multiple punishments, the determination must include separate analysis of statutory alternatives where a single offense can be committed in different ways.10 Using this analysis the Whalen Court found that rape was a lesser included offense of a felony murder committed during the course of the rape even though the statute at issue listed several other offenses that could serve as the underlying felony.11 *154
{¶ 15} The Ohio Supreme Court did not engage in this analysis, however, in State v. Richey12 and State v. Grant,13 both of which held that felony murder and its underlying felony were not allied offenses of similar import because Ohio's aggravated murder statute lists nine separate felonies that can serve as the underlying offense.14 Moreover, the Rance court agreed with Whalen's dissenting opinion and adopted it as the law in Ohio, rejecting the United States Supreme Court's analysis of statutory alternatives.15
{¶ 16} Multiple punishments for included offenses are constitutionally allowable if a legislature has clearly expressed an intent to allow such punishments.16 If the legislative intent is not clear, however, multiple punishments are constitutionally impermissible because "the question of what punishments are constitutionally permissible is not different from the questions of what punishments the Legislative Branch intended to be imposed."17 Therefore, the Ohio Supreme Court's analysis of Whalen applies only to issues of state law that do not affect a defendant's rights under the United States Constitution.18
{¶ 17} The case at bar concerns federal constitutional rights. The offense stated in the indictment along with the lesser included offenses that can be contained within the charged offense implicates the basic constitutional due process rights to notice of the charged offense.19 Because lesser included offense analysis affects whether Watson received constitutionally proper notice, Whalen states a federal due process standard that must be followed in state courts, regardless of whether that standard is used in multiple punishment determinations.
{¶ 18} In this case, application of the Whalen standard works to Watson's detriment, but failure to apply that standard would give him rights greater than those found in the United States Constitution. While a state, through its legislature or its constitution, can provide due process rights that go beyond *155 federal guarantees, there is no indication that the Ohio Supreme Court intended to grant defendants such rights. The decisions in Rance, Richey, and Grant are quite clear on this matter. Although the Ohio Supreme Court could reject Whalen for indictment purposes and require express charges on all included offenses, the rejection of Whalen by the Rance, Richey, and Grant decisions indicates an attempt to do the opposite, denying rights to Ohio defendants rather than providing more protection.
{¶ 19} Because this case involves federally guaranteed rights and the Ohio Supreme Court has not indicated any rational intent to grant defendants greater rights than those provided in the United States Constitution, our decision is, therefore, controlled by Whalen. We recognize, however, that our decision here threatens conflicting results that harm defendants both ways — in this case Watson is denied relief because he was convicted of a lesser included offense, whileRance, Richey, and Grant maintain the possibility that, for a single incident, a defendant could be charged, convicted, and punished for robbery under both R.C.
{¶ 20} The offense of robbery under R.C.
{¶ 21} As noted, only the third alternative states a circumstance in which the defendant will not also commit robbery under R.C.
Judgment affirmed.
DIANE KARPINSKI, J., AND TIMOTHY E. MCMONAGLE, J., CONCUR
