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State v. Rogers

Court of Appeals of Ohio, Eighth District

July 25, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
FRANK ROGERS, JR. DEFENDANT-APPELLANT

Criminal Appeals from the Cuyahoga County Court of Common Pleas Case Nos. CR-552699, CR-544682, CR-545992, CR-553547, CR-553806, CR-556821, CR-555183, and CR-557079

ATTORNEY FOR APPELLANT Ruth R. Fischbein-Cohen

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor

Milko Cecez Kristen L. Sobieski Assistant Prosecuting Attorneys

Also listed:

Amicus Curiae, Robert L. Tobik Cuyahoga County Public Defender

John T. Martin Cullen Sweeney Assistant Public Defenders

The En Banc Court

SEAN C. GALLAGHER, J.

{¶ 1} Defendant-appellant Frank Rogers, Jr., pleaded guilty to a series of charges in eight separate cases. He asserts on appeal that the trial court erred by failing to merge certain parts of the sentences in two of the cases, that the court failed to compute jail-time credit, and that the court failed to advise him of the consequences of violating postrelease control.

{¶ 2} Pursuant to App.R. 26 and Loc.App.R. 26, this court determined that a conflict existed between the original panel's decision in this case, released as State v. Rogers, 8th Dist. Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590, 2013-Ohio-1027, and previous decisions by this court involving a number of issues related to allied offenses of similar import.

{¶ 3} These issues include determining the duty of a trial court judge under R.C. 2941.25 where a facial question of allied offenses of similar import exists but the trial court fails to inquire; determining the effect of a defendant's failure to raise the allied offenses of similar import issue in the trial court and whether that failure constitutes a valid waiver or forfeiture of the defendant's constitutional right against double jeopardy; determining the effect of a prosecutor's failure to put facts on the record detailing a defendant's conduct in relation to possible allied offenses of similar import at the trial court level; determining the impact of a silent or inconclusive record from the trial court that fails to detail the offender's actual conduct involving allied offenses of similar import; determining the effect of a guilty plea to multiple charges on the allied offenses of similar import analysis; and determining the effect of the absence of a stipulation to the allied offenses of similar import question.

{¶ 4} Accordingly, we sua sponte granted en banc consideration in this matter and convened an en banc conference in accordance with App.R. 26(A)(2), Loc.App.R. 26(D), and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672.

The Allied Offenses of Similar Import Claim in Rogers

{¶ 5} Rogers argues that his convictions in Cuyahoga C.P. No. CR-553806 on two counts of receiving stolen property were allied offenses of similar import and should have been merged at sentencing. Likewise, he asserts his convictions in Cuyahoga C.P. No. CR-545992 on two additional counts of receiving stolen property and one count of possession of criminal tools were also allied offenses of similar import and should have merged at sentencing.

Double Jeopardy

{¶ 6} At the outset, we revisit the significance of the allied offenses of similar import determination. The Fifth Amendment's Double Jeopardy Clause provides a criminal defendant with three protections: '"[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

{¶ 7} In multiple-punishment cases, "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended * * * to impose multiple punishments, imposition of such sentences does not violate the Constitution.

Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

Ohio and Allied Offenses of Similar Import

{¶ 8} Ohio's criminal statutes generally do not authorize multiple punishments for the same conduct. In 1974, the Ohio legislature enacted R.C. 2941.25. The legislation codified the protections of the Double Jeopardy Clauses of the Ohio and United States Constitutions, which prohibit multiple punishments for the same offense. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-l, 922 N.E.2d 923.

R.C. 2941.25. Multiple counts

(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.

{¶ 9} Historically, Ohio courts struggled interpreting the language in R.C. 2941.25. Likewise, determining the type of conduct by the offender that constituted either separate offenses or allied offenses of similar import was equally confusing. Starting in 1975, the Supreme Court of Ohio issued a series of decisions that over the years were met with mixed reviews on how best to address the constitutional protections against multiple punishments. See generally State v. Ikner, 44 Ohio St.2d 132, 339 N.E.2d 633 (1975), adopting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Logan, 60 Ohio St.2d 126, 128, 397 N.E.2d 1345 (1979); State v. Blankenship, 38 Ohio St.3d 116, 526 N.E.2d 816 (1988); State v. Ranee, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999); State v. Fears, 86 Ohio St.3d 329, 715 N.E.2d 136 (1999); State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29; State v. Yarborough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845; State v. Cooper, 104 Ohio St.3d 293, 2004-Ohio-6553, 819 N.E.2d 657; State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181; State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154; State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882; State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889.

{¶ 10} These cases were followed by a series of decisions that changed the landscape of the merger analysis. Underwood, 124 Ohio St.3d 365, 2010-Ohio-l, 922 N.E.2d 923 (a trial court commits plain error when it fails to merge allied offenses of similar import); State v. Johnson 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 (R.C. 2941.25 instructs courts to look at the defendant's conduct when evaluating whether his offenses are allied); and State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245 (an appellate court should apply a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination).

The Underwood, Johnson, and Williams Decisions

{¶ 11} Prior to Underwood, many trial courts simply imposed concurrent sentences where the merger analysis was too confusing or unworkable. Underwood made it clear that allied offenses of similar import must be merged at sentencing or the sentence is deemed contrary to law. Underwood also made clear that even a defendant's plea to multiple counts does not affect the court's duty to merge allied counts at sentencing. The duty is mandatory, not discretionary. Underwood at ¶ 26. Significantly, Underwood determined that R.C. 2953.08(D) does not bar appellate review of a sentence involving merger even though it was jointly recommended by the parties and imposed by the court. Id. at 133.

{¶ 12} Johnson then reestablished the focus of the merger analysis on the plain language in the statute. "In determining whether offenses merge, we consider the defendant's conduct." Johnson at ¶ 44. "If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., 'a single act, committed with a single state of mind.'" Id. at 49, quoting Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting). If both questions are answered affirmatively, then the offenses are allied offenses of similar import and will be merged. Johnson at 50.

{¶ l3} In Johnson, then Justice O'Connor, [1] in a separate concurring opinion, defined the term "allied offenses of similar import":

In practice, allied offenses of similar import are simply multiple offenses that arise out of the same criminal conduct and are similar but not identical in the significance of the criminal wrongs committed and the resulting harm. R.C. 2941.25 permits a defendant to be charged with, and tried for, multiple offenses based on the same conduct but permits only one conviction based on conduct that results in similar criminal wrongs that have similar consequences.

Id. at ¶ 64 (O'Connor, J., concurring).

{¶ 14} Justice O'Connor further defined the distinction between the phrases "allied offenses" and "allied offenses of similar import." "[0]ffenses are 'allied' when their elements align to such a degree that commission of one offense would probably result in the commission of the other offense. Offenses are of 'similar import' when the underlying conduct involves similar criminal wrongs and similar resulting harm." Id. at ¶ 66-67.

{¶ 15} While many focus on the plurality decision in Johnson that abandoned the Ranee test, we note that Justice O'Connor maintained in her concurring opinion in Johnson that Ranee was overruled only "inasmuch as it requires a comparison of the elements of the offenses solely in the abstract." (Emphasis added.) Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 68. See also Ranee, 85 Ohio St.3d 632, 710N.E.2d699.

{¶ 16} The Johnson test did not completely eliminate consideration of the legal elements; it simply made the offender's conduct the lynchpin of that analysis. Thus, the court uses the elements of the offenses as guideposts to measure the defendant's conduct as it relates to the offenses in determining whether multiple offenses could have been committed by the same conduct. State v. Hicks, 8th Dist. No. 95169, 2011-Ohio-2780, ¶ 9. This is important in situations, as here, where the legal elements of the offenses present a facial question of merger. This initial comparison often establishes or eliminates the need for subsequent allied offenses of similar import analysis.

{¶ 17} The Supreme Court revisited the Johnson test and again described its workings in Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245. The court again referenced considering the elements of the crimes in citing back to Blankenship, 38 Ohio St.3d at 117, 526 N.E.2d 816:

This court established a two-part test for analyzing allied-offense issues in State v. Blankenship, 38 Ohio St.3d 116, 117, 526 N.E.2d 816 (1988).
"In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses."

(Emphasis sic.)

Williams at ¶ 17, quoting Blankenship at 117.

{¶ 18} Significantly, the decision in Williams stressed how important the facts in the record were to the merger analysis on appeal:

Appellate courts apply the law to the facts of individual cases to make a legal determination as to whether R.C. 2941.25 allows multiple convictions. * * * "[A] review of the evidence is more often than not vital to the resolution of a question of law. * * * " O 'Day v. Webb, 29 Ohio St.2d 215, 219, 280 N.E.2d 896 (1972).
As in cases involving review of motions to suppress, "the appellate court must * * * independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d71, ¶8.

Williams at ¶ 25-26. Further, "[a]n appellate court should apply a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination." Id. at ¶ 28.

The Rogers Case

{¶ 19} The record before us reveals that no discussion took place in the trial court about merger of the counts in either of the underlying cases. While we can resolve the issue of merger in CR-553806 based on a facial review of the convictions, nothing in the documents that comprise the record in CR-545992 contains sufficient factual information that would permit an allied offenses of similar import analysis.

Receiving Stolen Property Convictions in CR-553806

{¶20} In CR-553806, the two counts of receiving stolen property in the indictment revealed property taken from two distinct victims from two separate houses apparently taken during burglaries that occurred the same day. Rogers argued on appeal that these acts were identical, so they should have been merged at sentencing.

{¶ 21} Even without facts to analyze Rogers's conduct, we can determine from the face of these convictions that these offenses were not subject to merger. A review of the elements of the receiving stolen property charges shows an offender must have "receive[d], retain[ed], or disposed of property of another, knowing or having reasonable cause to believe that it has been obtained through commission of a theft offense." (Emphasis added.) R.C. 2913.51.

{¶22} Separate victims alone established a separate animus for each offense. Even if the defendant cannot distinguish one victim's goods from another's does not mean his conduct did not impact multiple victims. Each victim has a specific and identifiable right to redress against the conduct of the defendant. The defendant's conduct in receiving goods he knows to be stolen inherently implies that they may be from multiple owners or locations. "[M]ultiple sentences for a single act committed against multiple victims is permissible where the offense is defined in terms of conduct toward 'another as such offenses are of dissimilar import; the import being each person affected.'" State v. Tapscott, 7th Dist. No. 11 MA 26, 2012-Ohio-4213, quoting State v. Jones, 18 Ohio St.3d 116, 118, 480 N.E.2d 408 (1985). See also State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48; State v. Phillips, 8th Dist. No. 98487, 2013-Ohio-1443, ¶ 8-10.

{¶ 23} For this reason, we affirm the trial court's imposition of separate sentences in CR-553806.

Receiving Stolen Property and Possession of Criminal Tools Convictions in CR-545992

{¶ 24} Central to our analysis of the convictions in CR-545992 and the primary focus of this en banc review is the effect of a trial court's failure to inquire or address an allied-offense question where it is clear from a facial review of the charges that the offenses may be allied, even when facts necessary to determine the conduct of the offender are missing.

{¶ 25} In this case, Rogers was convicted of two separate counts of receiving stolen property. One offense involved a "stolen pickup truck." The second offense involved "tires and rims." The possession of criminal tools offense involved "a tire jack and/or tow chain and/or lug nut wrenches." Although the receiving stolen property offenses involved the same victim and the possession of criminal tools offense occurred on the same date as the receiving stolen property offenses, we are unable to determine if these offenses were allied offenses of similar import. It is unclear if the "tires and rims" are from the same "stolen pickup truck" or from another vehicle. Likewise, it is unclear how the tools involved were related to either of the receiving stolen property offenses. There are simply no facts in the record to aid in our mandated de novo review of the issue.

{¶ 26} At the outset of our analysis, we note that not every case involving multiple convictions with a silent record will require an allied-offense determination by the trial court. Even where specific facts of the case are unknown, an appellate court can assess whether a claim requires a return to the trial court. For example, cases that assert a claim that the allied-offense issue was not addressed in a silent record may nevertheless fail where the indictment shows the offenses were committed on separate dates or involved separate victims or involve statutes that would require completely separate conduct. Conversely, cases that involve offenses that facially present a question of intertwined conduct, such as kidnapping and rape, or aggravated robbery and kidnapping, or gross sexual imposition and rape, create an allied-offense challenge that can result in the finding of error for failing to address the merger issue.

The Role of the Trial Judge

{¶ 27} Underwood placed the duty squarely on the trial court judge to address the merger question. Underwood, 124 Ohio St.3d 365, 2010-Ohio-l, 922 N.E.2d 923. Likewise, the merger statute imposes the same duty. R.C. 2941.25. Ultimately, it is the trial judge who imposes the sentence in a case. While the judge cannot be an advocate for either position, the trial court must address the potential allied-offense issue when the charges facially present a question of merger. A defendant's conviction on multiple counts, regardless of how achieved, does not affect the court's duty to merge allied offenses of similar import at sentencing.

{¶ 28} When a facial review of the charges and the elements of the crimes present a viable question of merger, the court must apply the Johnson test.

{¶ 29} Under the first prong, the court determines "whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other." Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 48, citing Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J, concurring). ("It is not necessary that both crimes are always committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct. It is a matter of possibility, rather than certainty, that the same conduct will constitute commission of both offenses.")

{¶30} If the court's answer in the first prong is yes, then the second prong requires the trial court to determine if, in fact, the offenses were actually committed by the same conduct, i.e., '"a single act, committed with a single state of mind.'" Johnson at ¶ 49, quoting Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting). If the answer to both questions in both prongs is yes, then the offenses are allied offenses of similar import and they must be merged. Johnson at ¶ 50.

{ΒΆ31} "Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. ...


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