STATE OF OHIO v. WILLIAM J. WHITAKER
CASE NO. CA2012-10-013
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY
10/7/2013
2013-Ohio-4434
M. POWELL, J.
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 11CR010835
James Vanzant, P.O. Box 161, Eaton, Ohio 45320, for defendant-appellant
M. POWELL, J.
{1} Defendant-appellant, William Whitaker, appeals his conviction and sentence in the Preble County Court of Common Pleas for kidnapping, felonious assault, and a repeat violent offender specification.
{2} Appellant was indicted in January 2012 on two counts of kidnapping in violation of
{3} The state alleged that on November 28, 2011, and again on December 3, 2011, appellant kidnapped the victim and inflicted serious physical harm on her. The victim was able to escape during the November incident. She was not so fortunate with regard to the December incident. However, the police were able to track the whereabouts of appellant and the victim after appellant called his mother and the victim‘s mother during the incident (and told the latter she would not see her daughter again), and in turn, both women called the police multiple times. As a result of the December incident, the victim suffered multiple severe injuries, including several deep and significant lacerations, broken bones, and bruising and swelling.
{4} On July 20, 2012, appellant entered a guilty plea to both counts of kidnapping, both counts of felonious assault, and the coercion count, and entered a plea of admit to the RVO specification. The trial court accepted appellant‘s pleas and found him guilty as charged. The trial court subsequently sentenced appellant to 43 years in prison as follows: 8 years on each of the felonious assault charges, 11 years on each of the kidnapping charges, and 5 years on the RVO specification, all to be served consecutively, and 90 days on the coercion charge to be served concurrently.
{5} Appellant appeals, raising three assignments of error which will be addressed out of order.
{6} Assignment of Error No. 1:
{7} THE TRIAL COURT, IN ACCEPTING APPELLANT‘S PLEA OF GUILTY (ADMIT) TO THE REPEAT VIOLENT OFFENDER SPECIFICATION (RVOS), ERRED TO THE PREJUDICE OF APPELLANT BECAUSE THE PLEA COLLOQUY WAS INSUFFICIENT TO ESTABLISH THAT APPELLANT MADE A KNOWING, VOLUNTARY
{8} Appellant argues his plea of admit to the RVO specification was not knowingly, intelligently, and voluntarily made because during the Crim.R. 11 colloquy, the trial court (1) failed to advise him of his constitutional rights when addressing his plea to the RVO specification, (2) failed to properly advise him as to the definition of a repeat violent offender and instead relied upon the state‘s reference to the statutory definition, and (3) never informed him that his sentence for the RVO specification was not only mandatory, but that it would also have to be served prior to and consecutively to the prison term imposed for the underlying offenses.
{9} When a defendant enters a guilty plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. See State v. Engle, 74 Ohio St.3d 525 (1996). Before a trial court can accept a guilty plea in a felony case, it must conduct a colloquy with the defendant to determine that he understands the plea he is entering and the rights he is voluntarily waiving. Crim.R. 11(C)(2); State v. Butcher, 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-3081, ¶ 8.
{10} The rights found in Crim.R. 11 are divided into nonconstitutional and constitutional rights. The latter include the right to a jury trial, the right to confront one‘s accusers, the right to compulsory process to obtain witnesses, the right to require the state to prove guilt beyond a reasonable doubt, and the privilege against compulsory self-incrimination. Crim.R. 11(C)(2)(c). With regard to constitutional rights, a trial court must strictly comply with Crim.R. 11 or the defendant‘s plea is invalid. State v. Bullard, 12th Dist. Clermont No. CA2012-09-064, 2013-Ohio-3313, ¶ 10.
{11} With regard to nonconstitutional rights, found in Crim.R. 11(C)(2)(a) and (b), a trial court‘s substantial compliance during the plea colloquy is sufficient for a valid plea. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 22; Butcher at ¶ 9. Substantial compliance
{12} Appellant first argues his plea of admit to the RVO specification was not knowingly, intelligently, and voluntarily made because the trial court failed to advise him of his constitutional rights when addressing his plea to the RVO specification.
{13} We find no merit to appellant‘s argument. Appellant entered guilty pleas to felonious assault, kidnapping, and coercion and subsequently a plea of admit to the RVO specification during the same plea hearing. The record shows that the trial court advised appellant of his constitutional rights, in strict compliance with Crim.R. 11(C), at the outset of the plea hearing. The trial court was not required to advise appellant again of his constitutional rights when addressing his plea to the RVO specification.
{14} Appellant next argues his plea of admit to the RVO specification was not knowingly, intelligently, and voluntarily made because the trial court failed to properly advise him as to the definition of a repeat violent offender and instead relied upon the state‘s reference to the statutory definition.
{15} We find no merit to appellant‘s argument. During the plea hearing, the state provided the trial court with the definition of a repeat violent offender as follows: “the definition of the RVO spec is that the Defendant is now being convicted of what‘s considered to be felonies offenses of violence, and has previously been convicted [ ] of two or more prior felony offenses of violence.”1 Satisfied with the state‘s definition, the trial court asked
appellant if he understood the RVO specification as provided by the state. Appellant replied he did. Appellant does not claim that the state‘s definition was incorrect. We find that the definition of a repeat violent offender as provided to appellant during the plea hearing substantially complied with Crim.R. 11(C).
{16} Finally, appellant argues his plea of admit to the RVO specification was entered in violation of Crim.R. 11(C)(2)(a) because the trial court never informed him that the sentence for the RVO specification was mandatory and that it would have to be served prior to and consecutively to the prison term imposed for the underlying offenses.
{17} Pursuant to
{18} Before accepting appellant‘s plea of admit to the RVO specification, the trial court informed appellant that the sentence for the RVO specification would be “up to ten year mandatory sentence, and the Court, whatever the Court orders for that repeat violent offender spec will be mandatory.” Thus, contrary to appellant‘s assertion, the trial court informed appellant that his sentence for the RVO specification was mandatory. However,
{19} Crim.R. 11(C)(2)(a) provides that in felony cases, the trial court “shall not accept a plea of guilty * * * without first addressing the defendant personally and determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved[.]” Crim.R. 11(C)(2)(a) thus requires a trial court to determine that a defendant understands the “maximum penalty involved” when he enters a guilty plea. See State v. Gibson, 34 Ohio App.3d 146 (8th Dist.1986). Notification of the maximum penalty is a nonconstitutional right. Butcher, 2013-Ohio-3081 at ¶ 9.
{20} The Ohio Supreme Court has held that “failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the plea involuntary.” State v. Johnson, 40 Ohio St.3d 130 (1988), syllabus.
{21} In reaching its holding, the supreme court noted that “the decision of whether the criminal defendant is to serve the sentences for all his crimes consecutively or concurrently is a matter of sentencing discretion, the exercise of which is committed to the trial court.” Id. at 133-134. In addition,
Crim.R. 11 applies only to the entry and acceptance of the plea. It has no relevance to the exercise of the trial court‘s sentencing discretion at that stage other than directing the court to proceed with or impose sentencing. Thus, it can hardly be said that the rule imposes upon a trial judge a duty to explain what particular matters he may, at a later date, determine are significant to the exercise of his discretion.
Id. at 134. The supreme court “concluded that because whether to impose consecutive sentences was a matter within the trial court‘s discretion, it need not be addressed at a plea hearing.” State v. Bragwell, 7th Dist. Mahoning No. 06-MA-140, 2008-Ohio-3406, ¶ 56.
{22} Following Johnson, several Ohio appellate courts held that: (1) the supreme court‘s holding did not apply when a consecutive sentence was statutorily required to be part of the maximum penalty a defendant faced; (2) thus, a trial court‘s failure to inform a pleading defendant that he faced statutorily required consecutive sentences did not substantially comply with Crim.R. 11(C)(2)(a); and (3) accordingly, the plea was invalid.
{23} Thus, in State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, the Eighth Appellate District held that the supreme court‘s decision in Johnson
is not dispositive because its use of the word “may” shows that it concerns the discretionary imposition of consecutive sentences. When consecutive sentences are mandatory, the consecutive sentence directly affects the length of the sentence, thus becoming a crucial component of what constitutes the “maximum” sentence, and the failure to advise a defendant that a sentence must be served consecutively does not amount to substantial compliance with Crim.R. 11(C)(2).
Id. at ¶ 7. Accordingly, “compliance with the ‘maximum’ penalty provision of Crim.R. 11(C)(2) requires the court to inform the defendant, prior to taking a guilty plea, that a charge carries a mandatory consecutive sentence.” Id. at ¶ 12. The appellate court found that the trial court‘s failure to inform Norman that any sentence for failure to comply would have to be served consecutively to sentences imposed on other counts to which Norman pled guilty “constituted a lack of substantial compliance with Crim.R. 11(C)(2)(a) and requires a reversal of Norman‘s guilty plea.” Id. at ¶ 13.
{24} Likewise, the Seventh Appellate District noted in Bragwell that the consecutive sentences ordered in Johnson were discretionary, not mandatory:
Here the trial court did not simply fail to inform [Bragwell] that it might order him to serve his sentences consecutively. Instead it completely neglected to inform him that he was required to serve his sentences consecutively. Whether [Bragwell] was to serve his sentences consecutively or concurrently was not up to the trial court‘s discretion as was the case in Johnson, supra.
R.C. 2929.13(G)(2) directs that the court impose a mandatory prison term for the repeat offender specification prior to and
consecutive to the sentence on the underlying DUI. Unlike Johnson, in this case a mandatory, consecutive prison term was a guaranteed consequence of [Bragwell‘s] guilty plea.
Bragwell, 2008-Ohio-3406 at ¶ 57. The appellate court vacated Bragwell‘s plea on the ground the trial court did not substantially comply with Crim.R. 11(C)(2)(a), thus, Bragwell‘s plea was not knowingly and intelligently made. Id. at ¶ 58.
{25} Other appellate courts have likewise held that when sentences are mandated to be served consecutively, a trial court‘s failure to so inform a pleading defendant does not constitute substantial compliance with Crim.R. 11(C)(2). See State v. Millhoan, 6th Dist. Lucas Nos. L-10-1328 and L-10-1329, 2011-Ohio-4741 (noting that holdings in Norman and Bragwell apply when the imposition of consecutive sentences is a foregone conclusion at the time the plea is entered and accepted, that is, where a mandatory consecutive prison term is a guaranteed consequence of the defendant‘s plea); State v. Pitts, 159 Ohio App.3d 852, 2005-Ohio-1389 (6th Dist.) (finding that because a consecutive sentence was part of the maximum penalty Pitts faced, the trial court erred by failing to so inform him at the plea hearing). See also State v. Hankison, 4th Dist. Scioto No. 01CA2792, 2002-Ohio-6161 (finding that Hankison‘s guilty plea to failure to comply was not knowingly and intelligently made where the trial court did not advise him that by pleading guilty, it was mandatory that his sentence be served consecutively to any other sentence).
{26} This court has “tap danced” around the issue in State v. Hogg, 12th Dist. Warren No. CA87-02-018, 1987 WL 12763 (July 20, 1987), a pre-Johnson decision. In Hogg, the defendant argued his guilty plea to two counts was not knowingly made because the trial court did not inform him the sentences he might receive could run consecutively or concurrently, and cited State v. Ricks, 53 Ohio App.2d 244 (9th Dist.1977), in support of his argument. This court found that Hogg‘s guilty plea did not violate Crim.R. 11(C)(2)(a) because:
As we read Ricks, it stands for the proposition that where, according to
R.C. 2929.41(B)(3) , a new sentence must be served consecutively to some other sentence, the pleading defendant must be informed of the statutory requirement that this new sentence must be served consecutively to his other sentence. Otherwise, the defendant has not been properly informed of the maximum sentence involved as required by Crim. R. 11(C)(2)(a). A close reading of Ricks, supra, shows that the appellate court placed heavy emphasis on the fact that Ricks faced statutorily required consecutive sentences. It was these statutorily required consecutive sentences which caused the court to conclude Ricks had not been informed of the maximum penalty involved.Here, on the other hand, appellant‘s consecutive sentences were not mandatory. Instead, appellant received consecutive terms when the trial court exercised its sentencing discretion under
R.C. 2929.41(B)(1) . On the basis of this statutory distinction, the cases cited by appellant are distinguishable and are inapplicable to the case at bar.
Id. at *3.
{27} Upon reviewing the supreme court‘s decision in Johnson as well as the foregoing appellate decisions, we find the reasoning in Norman and Bragwell persuasive and therefore adopt their reasoning. In the case at bar, the trial court failed to inform appellant he would be required to serve his sentence for the RVO specification prior to and consecutively to the sentences for the underlying offenses. Whether appellant was to serve his sentence for the RVO specification consecutively or concurrently was not up to the trial court‘s discretion as was the case in Johnson. Rather,
{28} We accordingly find that because the trial court never informed appellant that any prison sentence imposed for the RVO specification would have to be served prior to and consecutively to the sentences imposed for the kidnapping and felonious assault, the trial court failed to substantially comply with Crim.R. 11(C)(2)(a) and appellant did not enter a
{29} Appellant‘s plea of admit to the RVO specification is therefore vacated and the cause is remanded to the trial court for appellant to plead anew with regard to the RVO specification. Were appellant to deny the specification on remand, the trial court shall conduct further proceedings as are necessary.
{30} Appellant‘s first assignment of error is sustained in part and overruled in part.
{31} Assignment of Error No. 3:
{32} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY CONVICTING AND SENTENCING HIM OF BOTH KIDNAPPING AND FELONIOUS ASSAULT WHEN, ON THE FACTS OF THIS CASE, KIDNAPPING AND FELONIOUS ASSAULT AS CHARGED ARE ALLIED OFFENSES OF SIMILAR IMPORT.
{33} Appellant argues the trial court erred in sentencing him on both kidnapping and felonious assault with regard to the November 28, 2011 incident because the offenses are allied offenses of similar import under
{34} At the close of the sentencing hearing, defense counsel briefly argued that the kidnapping and felonious assault offenses should merge for purposes of sentencing because “you cannot commit felonious assault without the kidnapping,” and asked the trial court if it would entertain a brief or motion on the issue. The trial court asked defense counsel whether he had a case in support of his claim. Defense counsel acknowledged he did not but asked the court to accept a brief on the issue. A tangential discussion ensued between defense counsel and the trial court as to the timing of a previous sentencing memorandum submitted by defense counsel and his access or lack thereof to a sentencing memorandum submitted by the state.3
{35} The trial court then advised defense counsel: “You can file your brief to argue with the Court that these are allied offenses of similar import or otherwise the Court is required to merge. Off the top of my head, I don‘t believe that‘s the case. But I could be wrong.” The sentencing hearing then concluded, and a sentencing entry was filed the same day. The felonious assault and kidnapping offenses were not merged for either incident and the sentences for the offenses were ordered to be served consecutively. It does not appear defense counsel filed a memorandum on the allied offenses issue after the sentencing hearing.
{36} Notwithstanding the state‘s argument to the contrary, we find that defense counsel raised the issue of allied offenses in the trial court. An appellate court applies a de novo standard of review in reviewing a trial court‘s
{37}
(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.
{38} In Johnson, the Ohio Supreme Court clarified the test used to determine whether offenses are allied offenses of similar import under
{39} If it is possible to commit both offenses with the same conduct, courts must next determine whether the offenses were in fact committed by the same conduct, that is, by a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the offenses are committed separately or with a separate animus, the offenses will not merge. Id. at ¶ 51.
{41} Appellant was also charged with felonious assault in violation of
{42} We next determine whether the offenses of kidnapping and felonious assault were in fact committed by way of a single act with a single state of mind on either November 28, 2011, or December 3, 2011. We first address the November 2011 incident.
{43} We find we are unable, under the second prong of the Johnson test, to determine from the record before us whether appellant committed the kidnapping and felonious assault separately or with a separate animus on November 28, 2011. As appellant pled guilty to the offenses, there was no witness testimony at the plea hearing. The state did not otherwise offer any facts establishing appellant‘s conduct on November 28, 2011. The indictment simply recites the statutory elements of both offenses and does not identify the facts supporting each offense. The bill of particulars is nothing more than a recitation of the indictment and offers no separate basis to determine the allied offenses issue.
{44} In sentencing appellant for the November 28, 2011 offenses, the trial court noted that the victim was held, cut, and hit on that day, and that she was able to escape. Thereafter, without holding a hearing on the issue, without engaging in any analysis, without considering any evidence, and without invoking the Johnson test, the trial court cursorily
{45} The Johnson decision clearly states that “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under
{46} The Ohio Supreme Court has further held that “allied offenses of similar import are to be merged at sentencing. Thus, a trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import.” (Internal citations omitted.) State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 26. “Under
{47} The Eighth Appellate District recently addressed a similar situation to the case at bar. State v. Rogers, 8th Dist. Cuyahoga Nos. 98292 and 98584 through 98590, 2013-Ohio-3235. In that case, Rogers pled guilty to several charges and was sentenced on all of the offenses. The sentences were not merged; no discussion took place in the trial court about merger. Finding itself in conflict between the original panel‘s decision in the case and previous decisions by the appellate court, the Eighth Appellate District considered the issue
{48} The appellate court first addressed Rogers’ sentences for receiving stolen property. Despite the lack of facts to analyze Rogers’ conduct, the appellate court found it could determine “from the face of these convictions” that the offenses were not subject to merger because they involved separate victims, and thus separate animus. Id. at ¶ 21-22. Accordingly, the appellate court upheld the trial court‘s imposition of separate sentences.
{49} The appellate court then addressed Rogers’ sentences for receiving stolen property and possession of criminal tools. The court noted its inability to determine whether the offenses were allied offenses of similar import as there were “simply no facts in the record” to help the court in its review of the issue. After reviewing the role of the trial judge, the Eighth Appellate District held that when multiple charges facially present a question of merger under
{50} In so holding, the court found that (1)
{52} In light of the foregoing, the appellate court reversed the trial court‘s judgment in part and remanded the case to the trial court “to establish the underlying facts of Rogers’ conduct [regarding his receiving stolen property and possession of criminal tools offenses] and for the trial court to determine whether the subject crimes should merge for sentencing purposes.” Id. at ¶ 64.
{53} In 1993, this court addressed a similar situation to the case at bar. State v. Mangrum, 86 Ohio App.3d 156 (12th Dist.1993). In that case, Mangrum pled guilty to two counts of sexual battery, one count of gross sexual imposition, and one count of disseminating matter harmful to juveniles. Before sentencing Mangrum separately on all counts, the trial court did not make a finding as to whether any of the offenses were allied offenses. The decision does not indicate whether the allied offenses issue was raised below. This court generally held that “[w]hen a defendant pleads guilty to multiple offenses of similar import and the trial court accepts the pleas, the court has a duty to conduct a hearing and to
{54} Then, turning to the particular offenses at issue, this court found that the offenses of sexual battery and gross sexual imposition were not allied offenses because they did not meet the first prong of the applicable allied offenses test. Hence, “there was no need for the court to conduct a hearing to determine whether [Mangrum‘s] actions resulting in [these convictions] were committed separately or whether there was a separate animus for each crime.” Id. at 160. Likewise, this court found that disseminating matter harmful to juveniles was not an allied offense to either sexual battery or gross sexual imposition. Hence, no hearing was necessary. Id.
{55} By contrast, this court found that Mangrum‘s convictions for each count of sexual battery met the first prong of the test. Consequently,
the trial court had a duty to hold a hearing to determine whether each count of sexual battery was committed separately or with a separate animus prior to sentencing [Mangrum]. Because we are unable to make such a determination from the record before us, we must remand this case to the trial court to hear evidence on this question in order to determine whether [Mangrum] can be sentenced for both counts of sexual battery pursuant to
R.C. 2941.25 .
Id. This court subsequently remanded the case for the trial court “to determine whether [Mangrum‘s] actions resulting in the sexual battery convictions occurred separately or with a separate animus for each crime and thereafter to resentence [him] in accordance with
{56} In State v. Philpot, 145 Ohio App.3d 231 (12th Dist.2001), Philpot was convicted by a jury of one count each of aggravated robbery, theft, and theft of drugs. During the sentencing hearing, Philpot moved the trial court to merge the theft counts with the aggravated robbery count. The trial court implicitly overruled Philpot‘s motion by sentencing
Although the trial court sentenced [Philpot] on all three counts, thereby implicitly overruling [his] motion to merge * * *, it made no finding as to whether [Philpot] committed the [offenses] separately or with a separate animus. Absent such finding, we find that the trial court erred by separately sentencing [Philpot] for the three offenses.
Id. at 240. This court subsequently remanded the matter to the trial court “for a resentencing hearing solely for the purpose of determining whether [Philpot] committed the [three offenses] separately or with a separate animus.” Id.
{57} This court also recently decided State v. Davis, 12th Dist. Butler No. CA2012-09-194, 2013-Ohio-2637. In that case, Davis pled guilty to drug trafficking and importuning. Prior to imposing sentence, the trial court considered whether the offenses merged. Davis asserted his position that “the offenses are allied offenses” but ultimately “defer[red] to the Court‘s knowledge and understanding and interpretation of the law.” Id. at ¶ 3. The state similarly deferred to the court as to allied offenses. In an analysis spanning several paragraphs and supported by references to the record, the trial court determined that the drug trafficking and importuning offenses did not merge.
{58} On appeal, this court noted that a “defendant bears the burden of establishing his entitlement to the protection provided by
{59} In the case at bar, because the first prong of the allied offenses test is met, and because both the offenses of kidnapping and felonious assault were committed on November 28, 2011, against the same victim, the charges facially present a question of merger. However, as explained earlier, the record before us is insufficient to determine whether the offenses were committed separately or with a separate animus, and thus whether the offenses are allied offenses of similar import.
{60} As in Mangrum and Philpot, and unlike in Davis, the trial court made no finding as to whether the two offenses were committed separately or with a separate animus, and in fact, did not engage in an allied offenses analysis at all. Rather, the trial court essentially overruled appellant‘s request to merge the two counts by sentencing him on both counts. Unlike in Davis, appellant did not simply assert his position at the sentencing hearing or subsequently defer to the trial court. Rather, appellant tried to argue at the hearing why the offenses were allied offenses, however his attempt was cut off when the trial court asked if he had a case to support his argument. Following a tangential discussion between appellant and the trial court, the latter allowed appellant to file a brief on the issue. As stated earlier, it is not clear whether appellant did so. Nevertheless, the record shows that the trial court‘s sentencing entry was issued on the same day as the sentencing hearing.
{61} Accordingly, in light of the foregoing, we find that the trial court erred in sentencing appellant separately for the November 28, 2011 offenses of kidnapping and felonious assault without first sufficiently addressing the basis for refusing to merge these offenses. We reverse the sentences imposed for those offenses and remand the matter to
{62} We note that any allied offenses proceedings conducted by a trial court, whether in general or on remand in the case at bar, do not have to involve long or complicated hearings or witnesses. Rogers, 2013-Ohio-3235 at ¶ 45. As the Eighth Appellate District stated, because merger of offenses is part of the sentencing process, which itself is less exacting than the process of establishing guilt, “this process can easily be satisfied by a brief recitation of facts or circumstances by the prosecutor to aid the trial court in its determination. Nothing more should be required.” Id. Furthermore, a trial court may require the parties to submit sentencing memoranda if the parties otherwise fail to adequately address the issue. Finally, an evidentiary hearing, while permissible in a trial court‘s discretion, is not required since merger of offenses is part of the sentencing process and is therefore not subject to the rules of evidence.
{64} Further, because a defendant “bears the burden of establishing his entitlement” to the merger of offenses under
{65} We next address the December 3, 2011 incident and determine whether the offenses of kidnapping and felonious assault were committed by way of a single act with a single state of mind during that incident.
{66} As it did with the offenses committed on November 28, 2011, the trial court, without analysis, a hearing on the issue, or consideration of any evidence, and without invoking the JohnsonRogers, 2013-Ohio-
{67} In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus, the Ohio Supreme Court adopted the following guidelines:
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;
Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.
State v. Logan, 60 Ohio St.2d 126 (1979), syllabus. These guidelines appear to remain valid in the wake of Johnson. State v. Ozevin, 12th Dist. Clermont No. CA2012-06-044, 2013-Ohio-1386, ¶ 13.
{68} Although the bill of particulars recited the indictment with regard to the elements of the December 3, 2011 offenses of kidnapping and felonious assault, it also specified that:
upon arriving at the scene, * * * inside the bedroom of the trailer was [the victim]; [the victim] had multiple and severe injuries including * * * multiple deep and significant lacerations, broken bones, and miscellaneous bruising and swelling; [the victim] reported that she had been restrained in the bedroom of the trailer for a considerable period of time by William Whitaker and that Whitaker inflicted the injuries in question; [and] a pair of handcuffs used in the crime was found in the bedroom and that multiple knives were found on the person of Mr. Whitaker upon his arrest.
{69} Additionally at sentencing, the prosecutor noted that the victim “survive[d] hours
{70} We therefore find that the December 3, 2011 kidnapping and felonious assault are not allied offenses of similar import. See State v. Harmon, 9th Dist. Summit No. 26502, 2013-Ohio-1769 (holding that the trial court did not err by declining to merge kidnapping and felonious assault offenses where the kidnapping occurred over an extended period of time and was, thus, not merely incidental to the felonious assault). The trial court, therefore, properly sentenced appellant for both kidnapping and felonious assault under Johnson, 2010-Ohio-6314, and
{71} Appellant‘s third assignment of error is sustained in part and overruled in part.
{72} Assignment of Error No. 2:
{73} THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES ON TWO COUNTS EACH OF KIDNAPPING AND FELONIOUS ASSAULT.
{74} Appellant argues the trial court erred in imposing consecutive sentences for the felony offenses of kidnapping and felonious assault because the trial court failed to make the required statutory findings under
{75} As we recently noted in State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, “‘the standard of review set forth in
{76} In 2011 Am.Sub.H.B. No. 86 (“H.B.86“), the General Assembly revived the requirement that a trial court make certain factual findings before imposing consecutive sentences. State v. Dillon, 12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 8. A trial court must now engage in a three-step analysis and make certain findings before imposing consecutive sentences pursuant to
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{77} “A trial court satisfies the statutory requirement of making the required findings when the record reflects that the court engaged in the required analysis and selected the appropriate statutory criteria.” State v. Smith, 12th Dist. Clermont No. CA2012-01-004, 2012-Ohio-4523, ¶ 26. In imposing consecutive sentences, “the trial court is not required to state any talismanic language” or otherwise give reasons explaining its findings. State v. Oren, 12th Dist. Madison No. CA2012-05-010, 2013-Ohio-531, ¶ 25; Williams, 2013-Ohio-3410 at ¶ 45. Nevertheless, the record must reflect that the court made the requisite findings. Williams at id.
{78} The record indicates that the trial court engaged in the required analysis before imposing consecutive sentences and that its findings comport with the statutory requirements. During the sentencing hearing, the trial court stated it was imposing consecutive sentences “because of the seriousness of the offense. Concurrent sentences simply would demean the seriousness of the offense and would not amply protect the public from future crime by the Defendant.”
{79} The trial court also stated during the sentencing hearing that the offenses consisted of two separate incidents of kidnapping and assaulting the same victim, the two incidents were approximately a week apart and thus did not “just happe[n] at the spur of the moment,” the offenses were not isolated offenses but rather were “one of many offenses, at least four in the last twenty years,” and in fact, appellant had “spent quite a bit of time in
{80} The trial court also stated this was “the worst” case it had ever seen in 30 years of being on the bench, appellant came close to killing the victim during the December 3, 2011 incident, and based on the two 2011 incidents and appellant‘s criminal history, appellant was a “very dangerous person.” The trial court noted that when appellant was released in 2006 or 2007 after serving prison time for a previous offense, he was released against the will of the prosecutors that had handled the case, and “it wasn‘t that long after his release that these offenses were committed.”
{81} After reviewing the record, we find that the trial court made the essential statutory findings under
{82} We therefore find that the trial court properly sentenced appellant to consecutive sentences for the December 3, 2011 offenses of kidnapping and felonious assault. Appellant‘s second assignment of error is overruled.
{83} The judgment of the trial court is affirmed in part and reversed in part. We vacate appellant‘s plea of admit to the RVO specification and remand the matter to the trial court for appellant to plead anew regarding the specification. We also reverse appellant‘s sentences for the November 28, 2011 offenses of kidnapping and felonious assault and remand the matter for the trial court to conduct a hearing as to those offenses and determine whether those offenses were committed separately or with a separate animus, and thus
{84} Judgment affirmed in part, reversed in part, and cause remanded to the trial court for further proceedings consistent with this opinion.
S. POWELL, P.J., and PIPER, J., concur.