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State v. McBride

Court of Appeals of Ohio, Seventh District, Mahoning

December 12, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CHRISTOPHER McBRIDE DEFENDANT-APPELLANT

         Appellant's Motion to Certify a Conflict.

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Christopher McBride, Pro se

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} On June 9, 2017, we released our Opinion in State v. McBride, 7th Dist. No. 16 MA 0002, 2017-Ohio-4281. On July 5, 2017, Appellant Christopher McBride filed a motion to certify a conflict to the Ohio Supreme Court, pursuant to App.R. 25(A). For the following reasons, no conflict exists between our Opinion and the cases cited by Appellant in his motion. Accordingly, Appellant's motion to certify a conflict is overruled.

         {¶2} Motions to certify a conflict are governed by Section 3(B)(4), Article IV of the Ohio Constitution. It provides:

Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the Supreme Court for review and final determination.

         {¶3} Under Ohio law, "there must be an actual conflict between appellate judicial districts on a rule of law before certification of a case to the Supreme Court for review and final determination is proper." Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613 N.E.2d 1032 (1993), paragraph one of the syllabus. We have adopted the following requirements from the Supreme Court:

[A]t least three conditions must be met before and during the certification of a case to this court pursuant to Section 3(B)(4), Article IV of the Ohio Constitution. First, the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be "upon the same question." Second, the alleged conflict must be on a rule of law-not facts. Third, the journal entry or opinion of the certifying court must clearly set forth that rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals.

Id. at 596.

         {¶4} Appellant alleges that our Opinion conflicts with State v. Taylor, 4th Dist. No. 07CA29, 2008-Ohio-484 and State v. Manus, 8th Dist. No. 94631, 2011-Ohio-603. Appellee contends that the respective courts of appeal held in these two cases that the failure to have determined whether the offenses in question should be merged prior to accepting the defendant's guilty plea rendered the pleas invalid and the pleas were vacated.

         {¶5} In his appeal, Appellant alleged that he was sentenced on multiple counts which should have merged as allied offenses of similar import pursuant to R.C. 2941.25(A). Appellant claims that our determination that the trial court informed Appellant about his other nonconstitutional rights, including the maximum potential penalty and fine that could be imposed, conflicts with the law in Taylor and Manus.

         {¶6} In our holding we noted, "if neither the parties nor the trial court raise the issue of allied offenses of similar import and the court does not find that the convictions should merge for purposes of sentencing, the imposition of separate sentences is not contrary to law." McBride, supra, at ¶ 29, citing State v. Rogers,143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860. As Appellant failed to raise the issue of allied offenses of similar import at trial, we conducted a plain error analysis and concluded that as the trial court made no finding regarding merger and Appellant ...


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