State v. WhiteState v. White
Laurel A. Kendall, for appellant.
DECISION AND JUDGMENT
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Andre J. White, appeals the March 5, 2020 judgment of the Lucas County Court of Common Pleas sentencing him to an aggregate 23-year prison term following his convictions for complicity to involuntary manslaughter and complicity to
A. Facts and Procedural Background
{¶ 2} On February 14, 2019, appellant was indicted on one count of aggravated murder in violation of
{¶ 3} The charges arose from an incident which occurred on November 22, 2018, in Northwood, Lucas County, Ohio. On that evening, appellant and his two codefendants traveled to a hotel parking lot where they saw an individual, with whom they had a previous altercation, entering a vehicle with three passengers. The passengers included two minor children—M.B. and T.B. Appellant and his codefendants decided to follow the individual with the intent of shooting him. As thеy approached an on-ramp to Northbound Interstate Route 75, appellant‘s vehicle pulled alongside the victims’ vehicle and, knowing it was occupied, fired multiple shots at the victim‘s vehiclе and drove
{¶ 4} Following negotiations with the state, appellant appeared for a change of plea hearing on March 4, 2020. Pursuant to a plea agreement, appellant agreed to enter a guilty plea to one amended count of complicity to involuntary manslaughter in violation of
B. Assignments of Error
{¶ 6} Appellant timely appealed and asserts the following errors for our review:
- The trial court committed plain error when it sentencеd defendant separately for the two offenses herein, when the elements of the offenses align such that commission of one offenses (sic) would probably result in the commission of the other, both of which were committed with one animus which arose from one bad act which produced similar harm, and
when the error was both obvious and substantial, and affected the final outcome of the proceeding. - Appellant was denied effective assistance of trial counsel as guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to argue that the offenses herein were allied of (sic.) offenses of similar import, such that appellant should only have been sentenced for one offense.
III. Analysis
A. Appellant‘s conviсtions were not allied offenses of similar import.
{¶ 7} In his first assignment of error, appellant argues that the trial court erred by failing to find that his conviction for complicity to involuntary manslaughter and compliсity to felonious assault were allied offenses of similar import and should have been merged at sentencing. Appellant acknowledges that he did not raise this argument at sentencing nor did he object tо the trial court‘s sentencing him separately for each conviction. “An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a fоrfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.” State v. McKinney, 6th Dist. Lucas No. L-19-1033, 2020-Ohio-3547, ¶ 27, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Therefore, we review the trial court‘s judgment for plain error.
{¶ 9} Here, appellant argues that his convictions are allied offenses because they arose from the same conduct. Specifically, he argues that his conduct in participating in the shooting of M.B. and T.B. arose from a single animus and, therеfore, constitute allied offenses as described in
{¶ 10} It is well-settled that “[w]hen a defendant‘s conduct victimizes more than one person, the harm for each person is separate and distinct, and therеfore, the defendant can be convicted of multiple counts.” Ruff at ¶ 26. See also State v. Jones, 6th Dist. Lucas No. L-13-1193, 2015-Ohio-629, ¶ 75; State v. Mitchell, 6th Dist. Erie No. E-09-064, 2011-Ohio-973; State v. Swiergosz, 6th Dist. Lucas No. L-12-1293, 2013-Ohio-4625. Further, “offenses committed against different victims during the same
{¶ 11} Appellant was convicted of complicity to the felonious assault of T.B. and complicity to the involuntary manslaughter of M.B. Whilе each conviction arose from the same set of operative facts, those facts clearly demonstrate appellant‘s conduct victimized more than one person and resultеd in separate and distinct harm to each. Because the two victims suffered separate and distinct harm as described in Ruff, appellant‘s argument that his convictions were allied offenses of similar import is unsupported. Accordingly, we find no plain error in the trial court‘s judgment and appellant‘s first assignment of error is found not well-taken.
B. Appellant‘s counsel did not offer ineffective assistance.
{¶ 12} In his second assignment of error, appellant argues that his counsel offered ineffective sentence by affirmatively stating that his convictions were not for allied offenses at sentencing. To prove a сlaim of ineffective assistance of counsel, a defendant must show that: (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defense. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs one and two of the syllabus, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appеllant‘s claimed prejudice is that because his convictions were not merged as allied offenses he was sentenced to a longer prison term than he would have otherwise received.
III. Conclusion
{¶ 14} We find appellant‘s first and second assignments of error not well-taken. We affirm the March 5, 2020 judgment of the Lucas County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Gene A. Zmuda, P.J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.