State v. Bradley , 2012 Ohio 5176 ( 2012 )

[Cite as State v. Bradley, 2012-Ohio-5176.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98048
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES BRADLEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-543162
BEFORE: E. Gallagher, J., Sweeney, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: November 8, 2012
ATTORNEY FOR APPELLANT
Paul A. Daher
Paul A. Daher & Associates, L.L.C.
700 West St. Clair Avenue
Suite 218
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Ronni Ducoff
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} James Bradley appeals his sentence from the Cuyahoga County Court of
Common Pleas propounding one assignment of error:
The trial court committed plain error when it failed to merge Bradley’s
gross sexual imposition convictions as allied offenses of similar import.
{¶2} Appellant was charged in a 40-count indictment with 12 counts of rape of a
person under 13 years of age, causing serious physical harm to the victim and purposely
compelling the victim to submit by force or threat of force. Attendant to those charges
of rape were sexually violent predator specifications. Appellant was also charged with
18 counts of kidnapping of a person under 13 years of age with sexual motivation
specifications and six counts of gross sexual imposition of a person under 13 years of
age.
{¶3} The remaining four counts of the indictment did not name appellant.
{¶4} These crimes, according to the indictment, were committed on or about
August 18, 2008, to August 17, 2009.
{¶5} Appellant pled guilty on February 2, 2011, to two counts of gross sexual
imposition as charged in Counts 13 and 15.
{¶6} At the plea hearing, the assistant prosecuting attorney clearly stated, on the
record, that those counts “represent different acts of gross sexual imposition” (tr. 5) and
that those crimes “really represented his penis on her buttocks; hands on her vagina * *
*.” (Tr. 26.)
{¶7} The appellant was referred for a presentence investigation report and
returned to the trial court for sentencing on February 24, 2011. Appellant was
sentenced to four years on each count, to be served consecutively. He was advised by
the trial court that, upon his release from custody, he would serve a mandatory five year
period of postrelease control and he was adjudicated a Tier II sex-offender. The trial
court advised him of the duties associated with that classification.
{¶8} Appellant argues that the trial court committed plain error by failing to
hold an allied offense hearing and failing to merge Counts 13 and 15 at sentencing.
{¶9} Appellant failed to object to the court’s imposition of multiple sentences
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.” However, plain error exists only when it is obvious on the
record. State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496, ¶ 28; State
v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995).
{¶10} The Ohio Supreme Court established the proper analysis for determining
whether offenses qualify as allied offenses subject to merger pursuant to R.C. 2941.25 in
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50, and
has held that:
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. (Internal citations omitted.) Id.{¶11} A review of the record in this case reveals that appellant cannot establish
plain error.1 The presentence investigation report was not made part of the record in
this case. However, a review of the state’s Amended More Particularized Bill of
Particulars that was filed on January 21, 2011, reflects that Count 13 is reflective of the
rubbing of the victim’s leg near her vagina on Charters Road and that Count 15
references the rubbing of her vagina in Euclid, Ohio. Additionally, as mentioned
above, the prosecutor noted on the record prior to appellant’s plea that the two counts
represented two different acts of gross sexual imposition. This court has previously
1We note that the case sub judice is distinct from the recent line of cases
where this court has been called upon to address instances where the record is
devoid of any indication that the challenged offenses are (or are not) allied offenses,
and different panels have reached different results on the application of the plain
error doctrine. See State v. Masters, 8th Dist. No. 95120, 2011-Ohio-937; State v.
Lindsey, 8th Dist. No. 96601, 2012-Ohio-804; State v. Baker, 8th Dist. No. 97139,
2012-Ohio-1833; State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496;
State v. Barrett, 8th Dist. No. 97614, 2012-Ohio-3948, 974 N.E.2d 185. The record
in the present case is not such that there are insufficient facts in the record for this
court to find whether the offenses are allied.
referenced the bill of particulars as “an opportunity to establish a record to resolve the
allied offense issue.” State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833, ¶ 23; State
v. Wulff, 8th Dist. No. 94087, 2011-Ohio-700, ¶ 19, 27; see also Barrett, 8th Dist. No.
97614, 2012-Ohio-3948, 974 N.E.2d 185, ¶ 60 (S. Gallagher, J., dissenting); State v.
Harshman, 3d Dist. Nos. 13-12-02,13-12-03, 13-12-04, 2012-Ohio-3901, ¶ 9.
{¶12} Clearly, these are separate and distinct crimes because they were
committed in different locations. Although the dates of these offenses, as are all the
charges in the indictment identical, the presentence investigation report may have
provided us with specific dates for these crimes. Unfortunately, it was not provided in
the record.
{¶13} Appellant’s sole assignment of error is overruled.
{¶14} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution. The defendant’s conviction having been affirmed, any bail
pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR