State v. Chaney , 2012 Ohio 4934 ( 2012 )

[Cite as State v. Chaney, 2012-Ohio-4934.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97872
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LENA CHANEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-550906
BEFORE: Rocco, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 25, 2012
-i-
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Lena Chaney appeals from her convictions and the
sentences imposed after she entered a guilty plea to charges of felonious assault and
attempted felonious assault.
{¶2} Chaney presents two assignments of error. She claims that the trial court
erred in accepting her guilty plea because the court did not personally inform Chaney of
the maximum penalties for the offenses during the plea hearing and, therefore, did not
properly ascertain whether her plea was knowingly, intelligently, and voluntarily made
under Crim.R. 11(C)(2)(a). Chaney also claims that the trial court erred in failing to
consider whether the counts to which Chaney pled guilty were allied offenses of similar
import under R.C. 2941.25 that should have been merged for sentencing.
{¶3} Upon review of the record, this court finds that Chaney’s assignments of error
have no merit. Chaney’s convictions and sentences are affirmed.
{¶4} In June 2011, Chaney was charged with one count of attempted murder, three
counts of felonious assault, and one count of attempted felonious assault. On December
6, 2011, Chaney pled guilty to Count 2 of the indictment, felonious assault in violation of
R.C. 2903.11(A)(1) with forfeiture specifications, and Count 5 of the indictment,
attempted felonious assault in violation of R.C. R.C. 2923.02 and 2903.11(A)(1) with
forfeiture specifications. The felonious assault and attempted felonious assault counts
involved different victims. In exchange for Chaney’s plea, the State dismissed the
remaining counts of the indictment.
{¶5} During the plea hearing, the assistant prosecutor explained the plea agreement
and outlined the potential penalties for each of the counts, i.e., that felonies of the second
degree carry a potential penalty of two to eight years in prison and a potential fine of up to
$15,000 and that felonies of the third degree carry a potential penalty of nine to 36
months and a potential fine of up to $10,000. The trial court followed with an
explanation of postrelease control. Chaney’s counsel confirmed that the prosecutor had
accurately described the plea agreement.
{¶6} The trial court asked Chaney whether she understood what the prosecutor and
her attorney had said. Chaney replied that she did not understand the counts to which
she was pleading. The trial court explained that she was pleading guilty to Count 2 of
the indictment, felonious assault, a felony of the second degree, and Count 5 of the
indictment, attempted felonious assault, a felony of the third degree.
{¶7} Following the trial court’s explanation, Chaney stated she understood. The
trial court proceeded to explain Chaney’s constitutional trial rights to her and confirmed
she understood and was waiving these rights. Chaney’s counsel indicated that he was
satisfied that the trial court had complied with Crim.R. 11. Finding that her plea was
knowingly, intelligently, and voluntarily made, the trial court accepted Chaney’s guilty
plea to Counts 2 and 5 of the indictment and dismissed the remaining counts.
{¶8} On January 5, 2012, the trial court conducted Chaney’s sentencing hearing.
The court sentenced Chaney to concurrent prison terms of four years on the felonious
assault count and twenty-four months on the attempted felonious assault count.
{¶9} Chaney appeals from her convictions and sentences and presents the
following two assignments of error:
I. Appellant did not enter her guilty plea knowingly, intelligently, or
voluntarily because the trial court failed to properly inform her of the
maximum penalties as required by Crim.R. 11(C)(2)(a).
II. The trial court erred by ordering convictions and a sentence for
separate counts because the offenses are allied offenses pursuant to
R.C. 2941.25 and they are part of the same transaction under R.C.
2929.14 but the trial court failed to undertake any such analysis.
{¶10} In her first assignment of error, Chaney argues that she did not enter her
guilty plea knowingly, intelligently, or voluntarily because the trial judge did not
personally inform her of the maximum penalty involved. Crim.R. 11(C)(2)(a) states
2) In felony cases the court may refuse to accept a plea of guilty or a plea of
no contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and, if applicable, that the defendant is not eligible for probation
or for the imposition of community control sanctions at the sentencing
hearing; * * *
{¶11} In determining whether the trial court has satisfied its duties in accepting a
plea under Crim.R. 11, reviewing courts distinguish between constitutional and
nonconstitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 474, ¶ 14-21. The trial court must strictly comply with the requirements of
Crim.R. 11(C) relating to the waiver of constitutional rights. Id. at ¶ 18.
{¶12} As to the nonconstitutional aspects of Rule 11(C), the trial court must
“substantially comply” with the rule’s requirements. Veney at ¶ 14. “Substantial
compliance means that under the totality of the circumstances the defendant subjectively
understands the implication of his plea and the rights he is waiving.” State v. Nero, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). {¶13} The right to be informed
at the plea hearing of the maximum possible penalty that could be imposed upon
conviction is a nonconstitutional right. State v. McKissic, 8th Dist. Nos. 92332 and
92333, 2010-Ohio-62, ¶ 13, citing State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d
1163 (1977). Accordingly, the trial court’s actions are reviewed for substantial
compliance with Crim.R. 11(C)(2)(a). The record reflects that the trial court
substantially complied with Crim.R. 11(C)(2)(a).
{¶14} The fact that the assistant prosecutor, rather than the trial judge, explained
the maximum penalties applicable to the offenses involved during Chaney’s plea hearing
does not preclude substantial compliance with Crim.R. 11. As this court previously
stated in McKissic:
Although it would have been better for the trial judge himself to have
explained the maximum penalties to the defendant, substantial compliance
with Crim.R. 11(C) suffices with respect to nonconstitutional rights.
Thus, the court may properly determine that the defendant understands
those matters from the totality of the circumstances, without informing him
about them directly.” McKissic at ¶ 17, citing State v. Gibson, 34 Ohio
App.3d 146, 517 N.E.2d 990 (8th Dist.1986); State v. Rainey, 3 Ohio
App.3d 441, 446 N.E.2d 188 (10th Dist.1982). See also State v. Sims, 8th
Dist. No. 95979, 2011-Ohio-4819 (trial court substantially complied with
Crim.R. 11(C) where the prosecutor informed appellant of the potential
maximum sentences for the offenses at issue and the appellant stated on the
record that he understood).
{¶15} In this case, the record adequately demonstrates that Chaney was informed
of the potential maximum penalties for the offenses involved at the outset of the plea
hearing. Although Chaney, a high school graduate who had completed two years of
college, had a question regarding the specific counts as to which she was entering a guilty
plea, which the trial court addressed, she had no questions regarding potential penalties
for the offenses.
{¶16} Based on the totality of the circumstances, the record shows that Chaney
subjectively understood the maximum potential penalties associated with her guilty plea.
The trial court did not violate Crim.R. 11(C)(2)(a) in accepting Chaney’s plea.
Accordingly, Chaney’s first assignment of error is overruled.
{¶17} In her second assignment of error, Chaney complains that the trial court
should not have imposed sentences on both the felonious assault and attempted felonious
assault counts without first undertaking an analysis to determine whether the counts were
subject to merger under R.C. 2941.25. Chaney requests this court to reverse her
sentences and remand for a determination of whether the felonious assault and attempted
felonious assault counts were allied offenses of similar import.
{¶18} Chaney failed to object to the imposition of multiple sentences below and
has therefore waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention
of the court.” An error rises to the level of plain error only if, but for the error, the
outcome of the proceedings would have been different. State v. Harrison, 122 Ohio
St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶61; State v. Long, 53 Ohio St.2d 91, 97,
372 N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution,
under exceptional circumstances, and only to prevent a manifest miscarriage of justice.”
Id.{¶19} The Ohio Supreme Court has held that the imposition of multiple sentences
for allied offenses of similar import is plain error. State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1,
2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.
{¶20} R.C. 2941.25 provides:
(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.
{¶21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
the Ohio Supreme Court redefined the test for determining whether offenses constitute
allied offenses subject to merger pursuant to R.C. 2941.25:
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is 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. * * * If the offenses
correspond to such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other, then the
offenses are of similar import.
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.” * * *
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
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 a separate animus for each
offense, then according to R.C. 2941.25(B), the offenses will not merge.
Id. at ¶ 48-50.
{¶22} Chaney argues that, because the conduct at issue involved a single
transaction, the trial court was required to conduct a factual inquiry under Johnson to
determine whether the felonious assault and attempted felonious assault offenses were
allied. Chaney further claims that, based on the limited facts in the record, the trial
court’s failure to conduct such an inquiry constitutes plain error requiring a remand, citing
State v. Corrao, 8th Dist. No. 95167, 2011-Ohio-2517.
{¶23} In Corrao, the trial court sentenced a defendant on multiple counts of
pandering sexually oriented matter involving a minor and illegal use of a minor in
nudity-oriented material without first inquiring whether those counts were allied offenses
subject to merger. Because the record was devoid of facts necessary for the court to
resolve the allied offense issue, this court remanded the case to the trial court, finding that
“[t]he trial court’s failure to make the necessary inquiry constitutes plain error
necessitating a remand.” Id. at ¶10.1 {¶ 24} In this case, however, sufficient facts
exist in the record from which to resolve the issue Chaney presents. The transcript from
the sentencing hearing indicates that Chaney drove a mini-van into a former boyfriend,
striking and seriously injuring him. The indictment specifies that two victims were
involved in the incident, Martel Thomas and Ashley Chadwick.
{¶ 25} Although both the felonious assault and attempted felonious assault
counts stem from the same course of conduct, it resulted in the commission of offenses
against two victims. “Separate convictions and sentences are permitted [under R.C.
2941.25] when a defendant’s conduct results in multiple victims.” State v. Allen, 8th
Dist. No. 97014, 2012-Ohio-1831, ¶ 59, citing State v. Skaggs, 2d Dist. No. 10-CA-26,
2010-Ohio-5390, ¶ 7.
{¶ 26} Where a defendant commits the same offense against different victims
during the same course of conduct, a separate animus exists for each victim such that the
offenses are not allied, and the defendant can properly be convicted of and sentenced on
multiple counts. State v. Gregory, 90 Ohio App. 3d 124, 129, 628 N.E.2d 86 (12th Dist.
1993) (where appellant was aware of the presence of two potential victims in a car at
1
This court notes that different panels of this court have reached different conclusions as to
whether a trial court’s failure to conduct an allied offense inquiry prior to sentencing constitutes plain
error where the record on appeal contains insufficient facts from which it can be determined whether
an allied offense error occurred. See, e.g., State v. Barrett, 8th Dist. No. 97614, 2012-Ohio-3948;
State v. Lindsey, 8th Dist. No. 96601, 2012-Ohio-804; State v. Corrao, 8th Dist. No. 95167,
2011-Ohio-2517; State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833. This issue is not addressed
here because the facts in the record, albeit limited, are nevertheless sufficient to resolve the allied
offense issue.
which he fired multiple gunshots, he could properly be convicted of two counts of
felonious assault).
{¶ 27} Further, as this court has observed “‘[w]hen an offense is defined in terms
of conduct towards another, then there is dissimilar import for each person affected by the
conduct.’” State v. Snuffer, 8th Dist. Nos. 96480, 96481, 96482, and 96483,
2011-Ohio-6430, ¶ 4, quoting State v. Phillips, 75 Ohio App.3d 785, 790, 600 N.E.2d
825 (2d Dist.1991), citing State v. Jones, 18 Ohio St.3d 116, 118, 480 N.E.2d 408. See
also State v. Logan, 8th Dist. No. 97022, 2012-Ohio-1944, ¶ 53; State v. Johns, 11th Dist.
No. 2011-A-0003, 2012-Ohio-864, ¶ 33.
{¶ 28} Because the felonious assault and attempted felonious assault counts on
which Chaney was sentenced involved different victims, they are not allied offenses. The
trial court’s imposition of a separate sentence on each count therefore does not constitute
plain error.
{¶ 29} Chaney’s second assignment of error is overruled.
{¶ 30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentences.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR