State v. Mayfield , 2015 Ohio 5375 ( 2015 )


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  • [Cite as State v. Mayfield, 
    2015-Ohio-5375
    .]
    STATE OF OHIO                     )                 IN THE COURT OF APPEALS
    )ss:              NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                       C.A. No.      27655
    Appellee
    v.                                          APPEAL FROM JUDGMENT
    ENTERED IN THE
    EDRICK MAYFIELD                                     COURT OF COMMON PLEAS
    COUNTY OF SUMMIT, OHIO
    Appellant                                   CASE No.   CR 07 01 0186 (B)
    DECISION AND JOURNAL ENTRY
    Dated: December 23, 2015
    MOORE, Judge.
    {¶1}     Defendant-Appellant, Edrick M. Mayfield, appeals from his convictions in the
    Summit County Court of Common Pleas. We affirm in part, vacate in part and remand the
    matter for a limited resentencing.
    I.
    {¶2}     Mr. Mayfield and two co-defendants were indicted on a 31-count indictment
    based upon a home invasion that happened on January 12, 2007, and involved multiple victims.
    The indictment was later supplemented to add body armor specifications to certain charges.
    Ultimately, Mr. Mayfield pleaded guilty to several counts and two specifications; as part of the
    plea, there was an agreement that the four kidnapping counts would merge into one count, the
    four aggravated robbery counts would merge into one count, and the two felonious assault
    charges would merge into one count. The remaining charges and specifications were dismissed.
    Mr. Mayfield was sentenced on one count of kidnapping in violation of R.C.
    2
    2905.01(A)(2)/(A)(3), along with accompanying firearm and body armor specifications, one
    count of aggravated robbery in violation of R.C. 2911.01(A)(1)/(A)(3), one count of felonious
    assault in violation of R.C. 2903.11(A)(1)/(A)(2), and one count of having weapons while under
    disability in violation of R.C. 2923.13(A)(2). Mr. Mayfield was sentenced to an aggregate term
    of 23 years in prison.
    {¶3}    In 2015, Mr. Mayfield moved for leave to file a delayed appeal, which this Court
    granted. Mr. Mayfield raises a single assignment of error for our review.
    II.
    {¶4}    Initially, we note that our review of the sentencing entry and transcript of the
    plea/sentencing hearing has revealed an error in the imposition of post-release control. Mr.
    Mayfield was sentenced on two first-degree felonies and thus was subject to a term of five years
    of post-release control upon his release from prison. See R.C. 2967.28(B)(1). Mr. Mayfield’s
    sentencing entry indicates that he will be subject to post-release control “for up to Five (5) years
    as determined by the Adult Parole Authority.” (Emphasis added.) Moreover, the trial court did
    not inform Mr. Mayfield of the length of the term of post-release control at the plea/sentencing
    hearing and did not mention post-release control during the sentencing phase of that hearing.
    “[W]hen a judge fails to impose statutorily mandated post[-]release control as part of a
    defendant’s sentence, that part of the sentence is void and must be set aside.” State v. Taylor, 9th
    Dist. Lorain No. 14CA010583, 
    2015-Ohio-2194
    , ¶ 9, quoting State v. Keyes, 9th Dist. Lorain
    No. 14CA010561, 
    2015-Ohio-1757
    , ¶ 10, quoting State v. Fischer, 
    128 Ohio St.3d 92
    , 2010-
    Ohio-6238, ¶ 26. Thus, the portion of Mr. Mayfield’s sentencing entry which improperly
    imposed post-release control is vacated, and Mr. Mayfield is entitled to a new sentencing hearing
    3
    limited to the proper imposition of post-release control. See State v. Rini, 9th Dist. Medina No.
    12CA0045-M, 
    2013-Ohio-745
    , ¶ 30.
    ASSIGNMENT OF ERROR
    THE TRIAL COURT FAILED TO CONDUCT THE ANALYSIS REQUIRED
    TO DETERMINE WHETHER THE CRIMES OF AGGRAVATED ROBBERY
    AND KIDNAPPING WERE ALLIED OFFENSES OF SIMILAR IMPORT.
    {¶5}    Mr. Mayfield asserts in his sole assignment of error that the trial court erred in
    failing to analyze whether certain offenses were allied and subject to merger. Mr. Mayfield
    argues that this Court should follow its precedent in State v. Copeland, 9th Dist. Summit No.
    27009, 
    2014-Ohio-5780
     and State v. Lockhart, 9th Dist. Summit No. 26799, 
    2015-Ohio-856
    , and
    remand the matter for the trial court to determine whether the offenses merge in the first
    instance. While the State has conceded the matter should be remanded, we disagree. Because
    we determine that our decision is dictated by the recent Ohio Supreme Court case, State v.
    Rogers, 
    143 Ohio St.3d 385
    , 
    2015-Ohio-2459
    , we overrule Mr. Mayfield’s argument.
    {¶6}    In Rogers, a certified conflict case, the Supreme Court was faced with deciding
    “[w]hether a trial court commits plain error where multiple offenses present a facial question of
    allied offenses of similar import, yet the trial court fails to determine whether those offenses
    should merge under R.C. 2941.25 at sentencing[.]” Id. at ¶ 1. The Supreme Court answered the
    question in the negative. Id. at ¶ 3. The Supreme Court specified that, “[a]n accused’s failure to
    raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and
    a forfeited error is not reversible error unless it affected the outcome of the proceeding and
    reversal is necessary to correct a manifest miscarriage of justice.” Id. “Accordingly, an accused
    has the burden to demonstrate a reasonable probability that the convictions are for allied offenses
    of similar import committed with the same conduct and without a separate animus; absent that
    4
    showing, the accused cannot demonstrate that the trial court’s failure to inquire whether the
    convictions merge for purposes of sentencing was plain error.” Id.
    {¶7}    Here, Mr. Mayfield asserts that the trial court erred in failing to consider whether
    certain offenses were allied. Mr. Mayfield did not raise this issue below, and, thus, he has
    forfeited all but plain error. See id. Mr. Mayfield has not argued plain error on appeal and has
    not demonstrated “a reasonable probability that the convictions are for allied offenses of similar
    import committed with the same conduct and without a separate animus[.]” Id.; see also State v.
    Wallace, 9th Dist. Lorain No. 14CA010609, 14CA010610, 
    2015-Ohio-4222
    , ¶ 20, quoting State
    v. Thomas, 9th Dist. Summit No. 27266, 
    2015-Ohio-2935
    , ¶ 15 (“[T]his Court ‘generally will not
    undertake a plain-error analysis if a defendant fails to do so.’”) In fact, Mr. Mayfield has made
    no argument explaining why these offenses are allied offenses subject to merger. See App.R.
    16(A)(7). Accordingly, Mr. Mayfield “cannot demonstrate that the trial court’s failure to inquire
    whether the convictions merge for purposes of sentencing was plain error.” Rogers at ¶ 3.
    {¶8}     Mr. Mayfield’s assignment of error is overruled.
    III.
    {¶9}    Mr. Mayfield’s sole assignment of error is overruled. However, the portion of the
    sentencing entry which improperly imposed post-release control is vacated and the matter is
    remanded for the trial court to conduct a new sentencing hearing limited to the proper imposition
    of post-release control.
    Judgment affirmed in part,
    vacated in part,
    and cause remanded.
    There were reasonable grounds for this appeal.
    5
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    CARLA MOORE
    FOR THE COURT
    HENSAL, P. J.
    CARR, J.
    CONCUR.
    APPEARANCES:
    PAUL F. ADAMSON, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RACHEL M. RICHARDSON, Assistant
    Prosecuting Attorney, for Appellee.