State v. Revere , 2020 Ohio 572 ( 2020 )

[Cite as State v. Revere, 2020-Ohio-572.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO :
Plaintiff-Appellee, :
No. 108386
v. :
AUTO REVERE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 20, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626296-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Eben O. McNair, and Sean M. Kilbane, Assistant
Prosecuting Attorneys, for appellee.
Edward M. Heindel, for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Auto Revere (“Revere”) appeals his convictions
and sentence for felonious assault, R.C. 2903.11(A)(1), a second-degree felony, with
a one-year firearm specification; kidnapping, R.C. 2905.01(A)(3), a first-degree
felony, and possession of a dangerous ordnance, R.C. 2923.17(A), with forfeiture
specifications. We affirm.
I. Background and Facts
Revere pleaded guilty to the cited charges arising from indictments
for assaulting his 64-year-old mother who was strangled until she lost consciousness
and then chained to a chair. Revere continued to terrorize his mother when she
regained consciousness to the extent that she suffered incontinence. Revere’s
mother jumped from the second floor porch to escape. Defense counsel conceded
that Revere had a prior violent felony.
Revere’s mother was the only victim. The mother stated at the
sentencing hearing that she forgives her son and that he is a good person who is
loving and kind. “He did do some bad things to me. But my son snapped, and he
lost control of his anger.” (Tr. 124.) His mother explained that Revere’s anger issues
stem from parental child abuse that Revere believes his mother should have
prevented.
Revere received a ten-year aggregate prison sentence. In its journal
entry, the trial court determined:
The court considered all required factors of the law. The court finds
that prison is consistent with the purpose of R. C. 2929.11. The court
imposes a prison sentence at the Lorain Correctional Institution of 10
year(s). State and defense argue merger of counts. In consideration of
the arguments of both state and defense, and the facts of this case, the
court rules that none of the counts shall merge for sentencing purposes.
The defense objects to the court’s ruling.
Count 1 — 1 year prison sentence for the firearm specification and 8
year prison term for the underlying offense. 1 year prison sentence for
the firearm specification shall run prior to and consecutive with the
underlying offense for a total of 9 years on Count 1.
Counts 2 — 8 year prison sentence.
Counts 4 — 12 month prison sentence.
Counts 1 and 4 shall run consecutive to each other for a total prison
sentence of 10 years.
Count 2 shall run concurrent to counts 1 and 4 for a total aggregate
prison sentence of 10 years.
Journal entry No. 107923147 (Mar. 20, 2019).
Revere appeals the trial court’s determination.
II. Assignments of Error
Revere presents three assigned errors:
I. The trial court erred when it failed to merge the kidnapping and
felonious assault convictions as allied offenses of similar import.
II. The trial court erred when it imposed maximum and consecutive
sentences on the felonious assault and possessing a dangerous
ordnance.
III. The trial court erred when it accepted a guilty plea when the
defendant was unable to answer basic questions such as “are you
an American citizen?” The guilty plea was not made knowingly,
intelligently, and voluntarily.
III. Analysis
A. Merger
“When determining whether two offenses are allied offenses of
similar import, we apply a de novo standard of review.” State v. Copeland, 8th Dist.
Cuyahoga No. 106988, 2019-Ohio-1370, ¶ 62, citing State v. Williams, 134 Ohio St.
3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
In State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892,
the Ohio Supreme Court explained that:
When the defendant’s conduct constitutes a single offense, the
defendant may be convicted and punished only for that offense. When
the conduct supports more than one offense, however, a court must
conduct an analysis of allied offenses of similar import to determine
whether the offenses merge or whether the defendant may be convicted
of separate offenses. R.C. 2941.25(B).
Id. at ¶ 24.
To determine whether the offenses merge under R.C. 2941.25(A), a
court must ask
how were the offenses committed? If any of the following is true, the
offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses: (1) the offenses are dissimilar in
import or significance — in other words, each offense caused separate,
identifiable harm, (2) the offenses were committed separately, or
(3) the offenses were committed with separate animus or motivation.
Id. at ¶ 25.
Since the defendant’s conduct is pivotal, we focus on the evidence
adduced during trial, plea, and sentencing.
When a defendant’s conduct victimizes more than one person, the
harm for each person is separate and distinct, and therefore, the
defendant can be convicted of multiple counts. Also, a defendant’s
conduct that constitutes two or more offenses against a single victim
can support multiple convictions if the harm that results from each
offense is separate and identifiable from the harm of the other offense.
We therefore hold that two or more offenses of dissimilar import exist
within the meaning of R.C. 2941.25(B) when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
Id. at ¶ 26.
Revere argues that the trial court should have merged his convictions
for felonious assault and kidnapping. His mother was the only victim. In order to
determine whether the offenses should merge, we must first determine whether
each offense caused separate or identifiable harm, was committed separately, or was
committed with separate animus or motivation.
R.C. 2903.11(A)(1) provides that “[n]o person shall knowingly * * *
[c]ause serious physical harm to another.” Id. “A person acts knowingly, regardless
of purpose, when the person is aware that the person’s conduct will probably cause
a certain result or will probably be of a certain nature.” R.C. 2901.22(B). Revere
strangled his mother until she was unconscious. Strangulation that reduced the
mother’s breathing until she lost consciousness and was unresponsive for an
unknown period of time meets the mens rea and physical harm requirements of R.C.
2903.11(A)(1). State v. Chambers, 8th Dist. Cuyahoga No. 99864, 2014-Ohio-390,
¶ 23, citing State v. Sales, 9th Dist. Summit No. 25036, 2011-Ohio-2505, ¶ 19.
Kidnapping under R.C. 2905.01(A)(3) provides in pertinent part that
[n]o person, by force, threat, or deception * * * shall remove another
from the place where the other person is found or restrain the liberty of
the other person * * * [t]o terrorize, or to inflict serious physical harm
on the victim.”
Revere’s mother told police that she called to tell her sister that she
was going to Revere’s home in case she could not be contacted. A discussion
between Revere and his mother escalated. Revere put the mother in a “sleeper hold”
and strangled her until she lost consciousness. (Tr. 128.) Revere’s mother corrected
the state’s advisement that she awakened to find her wrists and ankles tied up in
metal chains to “[j]ust one ankle in a chain.” (Tr. 128.)
Police were also told that Revere headed downstairs with a gun when
the sister arrived and honked her car horn. His mother was able to release the
chains, jumped from the second-floor balcony into the front yard, and ran to her
sister’s car. They flagged down a police officer. Revere was arrested after a 45-
minute stand-off with police. Metal chains with locks, a loaded revolver, and a
sawed-off shotgun with ammunition were discovered during the police search.
Medical reports documented swelling to the mother’s face and wrists along with
shoulder and hip pain.
Revere’s mother admitted that Revere strangled her and that she lost
consciousness. The trial court asked her what happened after that. She responded
“I don’t want to talk about that over again. I made a statement.” (Tr. 125.)
The trial court ruled over the defense objections that the offenses did
not merge:
So in light of the arguments made by both the State and the Defense
and in light of the facts of this case, it is this Court’s position that none
of the counts will merge for purposes of sentencing. Based on the
arguments of both the State and the Defense, the Court finds that there
were 3 separate offenses that occurred on February 8th of 2018. So my
ruling is that Count 1, Count 2, and Count 4 will not merge for
sentencing purposes.
(Tr. 140.)
Revere cites this court’s opinion in State v. Florencio, 8th Dist.
Cuyahoga No. 107023, 2019-Ohio-104, to support his argument that the
strangulation and restraint of his mother constituted one continuous stream of
conduct with the same animus.
Florencio argued that the felonious assault and kidnapping charges
should merge. This court found merit to the argument because
the same acts constituted the commission of both the kidnapping and
the felonious assault, which were committed against a single victim
with no separate identifiable harm, and the offenses were not
committed separately or with a separate animus. The offenses should
have merged.
Id. at ¶ 18.
Florencio is factually distinguishable for purposes of a Ruff analysis:
Florencio and the victim were divorced. Florencio’s son rented a
neighboring house from the victim. Florencio came to the victim’s
house complaining that the water heater in the basement of the rental
unit was not working. The victim [Florencio’s former wife] tentatively
followed Florencio toward the stairway leading into the basement of
the rental unit. Sensing danger, the victim turned to leave when
Florencio grabbed her arm and neck, stuck his thumb in her mouth,
and held a gun to the victim’s head. It is unclear whether the gun was
loaded. Hearing the victim’s screams for help, and thinking her
mother’s life was in danger, the victim’s daughter grabbed her mother’s
handgun and went outside to confront Florencio. Florencio’s son and
another neighbor also arrived. Everyone told Florencio to drop his
weapon, and the victim’s daughter fired a shot into the air to that end.
Florencio released the victim and fled when police were called.
Id. at ¶ 2.
In contrast to the continuous, contemporaneous flow of events in
Florencio, Revere strangled his mother until she lost consciousness. The mother did
not know exactly how long she was unconscious. At some point thereafter, Revere
placed his mother into a chair and chained her wrists and at least one ankle to the
chair to restrain her liberty.1 The mother told police that Revere planned to kill her
and then drive over to the father’s house and kill the father. (Tr. 129.)
The elements of felonious assault were met when Revere strangled
his mother, rendering her unconscious. The loss of consciousness constituted
“temporary, substantial incapacity.” Chambers, 8th Dist. Cuyahoga No. 99864,
2014-Ohio-390, ¶ 23. The kidnapping elements were established when Revere
decided to place his unconscious mother into the chair, restrain her with chains, and
terrorize her to the point that she urinated on her clothing. State v. Wright, 8th
Dist. Cuyahoga No. 92344, 2009-Ohio-5229.
Based on our de novo review of the evidence, we cannot say that the
trial court erred when it determined that the offenses were committed with separate
animus and harm pursuant to Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d
892, at ¶ 26.
The first assignment of error is overruled.
B. Sentencing
R.C. 2953.08 sets forth the parameters of an appellate court’s review
of felony sentences. It includes categories of sentences that may be appealed such
as consecutive sentences under R.C. 2953.08(C)(1) or a maximum sentence under
R.C. 2953.08(A).
1 According to the presentence-investigation report read by the trial court at the
sentencing hearing, the mother said Revere began acting crazy and she believed he was
going to kill her and steal her car. However, in that report the mother claimed that she
talked Revere into releasing the chains and she ran out of the home.
The Ohio Supreme Court prescribed the current standard for
appellate review of felony sentences:
Applying the plain language of R.C. 2953.08(G)(2), we hold that an
appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does
not support the trial court’s findings under relevant statutes or that the
sentence is otherwise contrary to law. In other words, an appellate
court need not apply the test set out by the plurality in State v. Kalish,
120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. If an
appellate court finds in the defendant’s favor, the appellate court “may increase,
reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand
the matter to the sentencing court for resentencing.” State v. Pluhar, 8th Dist.
Cuyahoga No. 102012, 2015-Ohio-3344, ¶ 13.
For a sentence to be contrary to law, the sentence must fall “outside
the statutory range” for the offense or the record must reflect a failure by the trial
court to “consider the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the sentencing factors in R.C. 2929.12.” State v. Lee, 8th Dist.
Cuyahoga No. 104190, 2016-Ohio-8317, ¶ 9, citing State v. Hinton, 8th Dist.
Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist.
Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
There is no mandatory duty for a trial court to explain its analysis of
the statutory sentences pursuant to our holding in State v. Kronenberg, 8th Dist.
Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 27. A trial court is only required to
indicate that the statutory factors have been considered. Id., citing State v. Wright,
8th Dist. Cuyahoga No. 100283, 2014-Ohio-3321, ¶ 10.
Revere argues that the trial court should have considered his mental
health issues and that his mother said he snapped at the time of the incident in
rendering a sentence. As a result, Revere posits that a three-year term is sufficient
to “accomplish the purposes and principles of sentencing, and to satisfy the
seriousness and recidivism factors.” Appellant’s brief, p. 13. Revere also offers that
consecutive sentences are not supported by the record.
The trial court gave due consideration to Revere’s mental health
issues and history. At the time Revere entered his guilty plea, the trial court referred
him to the court psychiatric clinic pursuant to R.C. 2947.06(B) for examination and
recommendations regarding disposition.
Defense counsel spoke at length at the sentencing to request
consideration of Revere’s history of abuse as a child, mental health issues and
substance abuse, and the fact that Revere had been incarcerated for over a year to
receive mental health attention until he was declared competent to move forward.
Counsel also asked that the court consider the mother’s plea for her son to receive
treatment.
[W] e are asking the Court to consider all the multiple factors prior to
imposing a sentence in this case, the fact that he has taken
responsibility for his actions, the fact that he has shown genuine
remorse for his conduct, the history of abuse and trauma to his head,
the history of abusing drugs all caused Mr. Revere, your Honor, to
spiral out of control.
(Tr. 115.) Revere also addressed the trial court at length about the challenges he has
faced throughout his life.
The trial court stated its findings:
I have had an opportunity to hear from you, Mr. Revere, hear from your
lawyer, from the State, hear from the victim. I have had an opportunity
to review the presentence investigation report and the mitigation of
penalty report as well.
I have also outlined the Defendant’s history, and the Defendant does
have, prior to this offense, a crime of violence in his past, and it appears
more than one because he has a misdemeanor assault. So my job is not
just to punish you, but it’s to protect the community as well. This is a
crime that is against your own mother, and while the victim disputes
some of the facts of what occurred, it appears to me what is not
disputed, and based on the questions that I asked, is that you did
strangle her or choke her or put her in a choke hold to the point where
she lost consciousness. When she woke from being unconscious, you
had her tied up in chains. What I don’t believe is disputed is that you
were extremely violent, and I believe that she was in fear for her life.
Now, maybe today she says she wasn’t in fear and that she feels you
snapped and you need help to address your violence and the violence
that you displayed to her, but this is your own mother that you
displayed this violence. I find it’s extremely violent to the point where
she had to jump out of a window to get away from you?
That’s horrible.
(Tr. 140-142.)
We find that the record reveals that the trial court considered all
required factors of the law and determined that prison is consistent with the purpose
of R.C. 2929.11. Journal entry No. 107923147 (Mar. 20, 2019). The sentence is
within the statutory range. “[A] maximum sentence is not contrary to law when it is
within the statutory range and the trial court considered the statutory principles and
purposes of sentencing as well as the statutory seriousness and recidivism factors.”
State v. Martin, 2d Dist. Clark No. 2014-CA-69, 2015-Ohio-697, ¶ 8, citing State v.
Walker, 2d Dist. Montgomery No. 25741, 2014-Ohio-1287, ¶ 17-19.
The trial court further ruled:
I find that a consecutive prison sentence is necessary to protect the
community and to punish you. It’s not disproportionate. I find that
the harm is so great or unusual that a single term does not adequately
reflect the seriousness of your conduct, and your criminal history
shows that a consecutive sentence is necessary to protect the public.
And I also find that your multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed, as part of any of
the forces of conduct, adequately reflects the seriousness of your
conduct. That is based on the facts that I placed into the record as to
what occurred on that date, your mother being the victim of this crime
and you displaying such violence in choking her, strangling her,
however you want to describe it with that word, to the point she lost
consciousness. She doesn’t know how long she was unconscious. Then
you tied her up with chains. Whether you released her or she escaped
from the chains, I am not sure, but to get away from you she had to
jump from a second floor window.
So for all those reasons, I find that the consecutive sentence is
necessary.
(Tr. 143-144.)
The journal entry mirrors the findings:
The court imposes prison terms consecutively finding that consecutive
service is necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to
the seriousness of defendant’s conduct and to the danger Defendant
poses to the public; and that, at least two of the multiple offenses were
committed in this case as part of one or more courses of conduct, and
the harm caused by said multiple offenses was so great or unusual that
no single prison term for any of the offenses committed as part of any
of the courses of conduct adequately reflects the seriousness of
Defendant’s conduct, or defendant’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crime by Defendant. Defendant to receive jail time
credit for 404 day(s), to date.
Journal entry No. 107923147 (Mar. 20, 2019).
The second assigned error is overruled.
C. Guilty Plea
Revere’s final error is that his guilty plea was not knowingly,
intelligently, and voluntarily made. We disagree.
A defendant has a constitutional right to understand the nature of his
plea and the rights that he will be waiving.
In considering whether a plea was entered knowingly, intelligently and
voluntarily, “an appellate court examines the totality of the
circumstances through a de novo review of the record.” State v. Spock,
8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7; see also State v.
Jackson, 8th Dist. Cuyahoga No. 99985, 2014-Ohio-706, ¶ 6. Where a
defendant enters a guilty plea without asserting innocence, it is
presumed that the defendant understands that he or she has admitted
his or her guilt. State v. Griggs, 103 Ohio St. 3d 85, 2004-Ohio-4415,
814 N.E.2d 51, ¶ 19; State v. Reeves, 8th Dist. Cuyahoga No. 100560,
2014-Ohio-3497, ¶ 12.
State v. Alvelo, 2017-Ohio-742, 85 N.E.3d 1032, ¶ 21 (8th Dist.).
Crim.R. 11(C)(2) governs the acceptance of guilty pleas in felony
cases. It provides:
(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.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require
the state to prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.
Crim.R. 11(C)(2).
Revere concedes that the trial court complied with Crim.R. 11(C)(2)
but argues that Revere’s response to the citizenship inquiry indicated that he did not
understand the proceedings or was unwilling to cooperate, rendering his plea
involuntary, unknowing, and unintelligent.
Revere responded appropriately to the other components of the
Crim.R. 11(C)(2) inquiry but entered into an extended exchange with the trial court
regarding his citizenship. Revere initially stated that he is a “Moorish American.
Which means I am not under all your rules.” (Tr. 93.) “I’m a descendant of North
Africa.” (Tr. 94.) Revere admitted that he was born in the United States as a dual
citizen “Moorish American.” (Tr. 95.)
Revere has been pronounced competent to stand trial and was
diagnosed as malingering. We find that Revere’s responses are actually lucid, logical,
and clearly stated. We do not find that Revere’s Moorish American citizenship claim
renders his plea invalid.
The third assigned error is overruled.
IV. Conclusion
The trial court’s judgment is 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR