State v. Novoa , 2021 Ohio 3585 ( 2021 )

[Cite as State v. Novoa, 2021-Ohio-3585.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ARTURO NOVOA,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0073
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 18 CR 850
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Judges and Judge Stephen W. Powell, Judge of the
Twelfth District Court of Appeals, Sitting by Assignment.
JUDGMENT:
Affirmed in part. Reversed in part.
Sentence Vacated. Remanded in part.
Atty. Dave Yost, Ohio Attorney General, and Atty. Daniel Kasaris, Senior Assistant
Attorney General and Special Assistant Mahoning County Prosecutor, 615 West Superior
Ave , 11th Floor, Cleveland Ohio 44113, for Plaintiff-Appellee
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Atty. Louis M. Defabio, 4822 Market Street, Suite 220, Youngstown, Ohio 44512, for
Defendant-Appellant.
Dated: September 30, 2021
WAITE, J.
{¶1} Appellant, Arturo Novoa, a.k.a. Anthony Gonzalez, appeals his convictions
and sentences entered in the Mahoning County Court of Common Pleas. Appellant
contends that his guilty plea was not made in a knowing, intelligent and voluntary fashion
because he claims the trial court failed to inform him of the aggregate maximum sentence
that could be imposed. He also argues his convictions and sentences violate his rights
under the Double Jeopardy Clause of both the Ohio and U.S. Constitutions. Finally,
Appellant argues the trial court erred in imposing consecutive sentences. For the
following reasons, Appellant’s assignments relating to his guilty plea and convictions are
without merit and his convictions are affirmed. However, it was error for the trial court to
sentence Appellant on all offenses, as some offenses merged for sentencing purposes.
Consequently, we remand to the trial court for resentencing on these offenses, for the
state to elect on which offenses Appellant is to be sentenced.
Factual and Procedural History
{¶2} Appellant met the victim, Shannon Graves (“Graves”), in April of 2016. They
moved in together in September, 2016 at a home located on Mahoning Avenue in
Youngstown. Their relationship was tumultuous and Appellant was known to be
physically violent toward Graves. In December of 2016 the relationship ended. Appellant
then moved in with his co-defendant, Katrina Layton (“Layton”). But one week later,
Appellant moved back into the Mahoning Avenue home with Graves.
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{¶3} The relationship continued to be volatile. On February 24, 2017, Appellant
bludgeoned Graves to death in the bathroom of their home. Afterward, Appellant
engaged in a drawn-out and somewhat gruesome attempt at trying to destroy the
evidence of Graves’ murder, involving multiple locations over a period of several months.
He first shaved Graves’ head. He then wrapped Graves’ body in garbage bags and
Appellant and Layton placed Graves in the trunk of her car. They drove the body to
Layton’s home on Shields Road where Appellant and another co-defendant, Andrew
Herrmann (“Herrmann”), dismembered Graves’ body in the garage. Appellant and
Hermann removed Graves’ arms, legs and head from her torso. They placed her arms
and legs in a storage tote or bin and placed her head and torso in a second bin. The bins
were transported back to the Mahoning Avenue property sometime between March 1 and
March 11, 2017. The bins containing Graves’ dismembered body were placed in a freezer
at the Mahoning Avenue home.
{¶4} On March 1, 2017, Appellant contacted a friend who resided on Sherwood
Avenue in Youngstown and asked if he could have a bonfire at his friend’s house.
Appellant and Layton brought Graves’ personal belongings, including clothing, papers,
her hair, and a bracelet with the name “Shannon” on it, and burned them in a large bonfire
at the Sherwood location. At one point, the fire became so large that the fire department
arrived to investigate. The following day, the occupants of the Sherwood address went
out to the area where the fire had been raging. They were concerned because they had
seen Appellant and Layton removing things from bags and totes and putting them in the
fire. They found the bracelet, and then dug the ashes out of the fire pit and put them in a
laundry basket, which was later recovered by the police during the investigation.
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{¶5} Appellant and Layton ordered 12 gallons of sulfuric acid from Wal-Mart
using the name “Chicken Man”. The sulfuric acid was shipped to the Wal-Mart store in
Boardman, Ohio and picked up by Appellant and Layton on March 11, 2017. Because
the order was placed under the name “Chicken Man” instead of a named person, the Wal-
Mart employee refused to tender the acid without identification. Layton showed her
identification and used her credit card to pay for the acid. Appellant and Layton took the
acid back to the Mahoning Avenue home where they poured all 12 gallons into the bin
containing Graves’ head and torso. Most of her torso and skull dissolved in the acid. The
portion of Graves’ skull that remained was placed in the freezer along with her arms and
legs at the Mahoning Avenue home. Her body remained in this freezer until June of 2017.
{¶6} In the intervening months, Graves’ family continued to inquire of Appellant
about Graves’ whereabouts. Appellant, Layton and Layton’s two children moved into the
Mahoning Avenue home and began driving Graves’ car. They also used Graves’ WIC
card several times. Appellant repeatedly told Graves’ family and others that Graves had
moved to Cleveland with one man and then to Columbus with another man. The family
became increasingly suspicious after several months passed and Graves failed to
communicate with her family. The family also discovered that Graves’ dog was still at the
Mahoning Avenue residence which caused alarm, because the family strongly felt that
Graves would never leave her dog.
{¶7} On April 29, 2017, Appellant was seen by an officer of the Youngstown
Police Department committing a traffic offense. When the officer attempted to affect the
traffic stop, Appellant fled in his vehicle. The officer gave chase and Appellant abandoned
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the vehicle and fled on foot. He was tasered, arrested, and charged with fleeing and
eluding. Appellant was released on bond.
{¶8} On June 22, 2017, Graves’ sister, Debbie DePaul, filed a missing person
report with the Youngstown Police Department. DePaul and Graves’ former fiancé began
to look for Graves. Appellant became aware of this and became concerned that police
would search the Mahoning Avenue home. (Sentencing Tr., p. 24.) Layton rented a
bottom floor apartment in a house on Ravenwood Avenue in Youngstown. Appellant
purchased a second freezer at a Wal-Mart store on Belmont Avenue in Youngstown which
they took to the Ravenwood apartment. Appellant removed Graves’ body from the freezer
on Mahoning Avenue, again placed the remainder of her body in the trunk of Graves’ car,
and transported it to the Ravenwood apartment, where he placed the remains in the
second freezer. A short time later, the landlord of the Ravenwood apartment contacted
Layton inquiring as to why no one had moved into the apartment. The only property in
the apartment was the freezer, the warranty booklet for the freezer, and a black suitcase.
{¶9} Around this time the Youngstown Police Department executed a search
warrant at the Mahoning Avenue home. Again becoming nervous about being detected,
Appellant contacted a friend and told him that Appellant’s electricity was out in his home
and that he needed a place to store his freezer full of meat. His friend agreed to store
Appellant’s freezer at his house on Devitt Avenue in Campbell, Ohio. Appellant and two
of his friends took the freezer from the Ravenwood apartment to his friend’s house at
approximately 3:00 a.m. the next morning. A short time later, Appellant’s friend decided
to open the freezer and help himself to some of the meat supposedly contained in the
freezer. A lock had been placed on the freezer, but it was installed upside down, enabling
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the lock to be fairly easily opened. When Appellant’s friend opened the freezer, he found
a bag containing Graves’ remains.
{¶10} On September 21, 2017, Appellant and a number of co-defendants were
indicted by the Mahoning County Grand Jury in Case No. 17 CR 856. Appellant was
indicted on five felony offenses: aggravated murder in violation of R.C. 2903.01(B), an
unclassified felony; murder in violation of R.C. 2903.02(A)(D), an unclassified felony;
tampering with evidence in violation of R.C. 2921.12, a felony of the third degree;
obstruction of justice a violation of R.C. 2921.32, a felony of the third degree; and abuse
of a corpse in violation of R.C. 2927.01, a felony of the fifth degree. Mahoning County
Case No. 17 CR 856 was dismissed on October 24, 2018, after Appellant was reindicted
(in Mahoning County Case No. 18 CR 850) for the offenses that are the subject of the
instant appeal.
{¶11} On August 30, 2018, Appellant and his co-defendants were indicted by the
Mahoning County Grand Jury in Case No. 18 CR 850 on multiple charges. For clarity
and because of the relevance to Appellant’s assignments of error, the charges against
Appellant are set forth in the chart below:
Count Charge Details
1 Aggravated murder (unclassified)
2 Murder (unclassified)
3 Tampering with evidence Placing the body in garbage bags
in trunk of Graves’ car
4 Tampering with evidence Dismembering Graves’ left arm
5 Tampering with evidence Dismembering Graves’ right leg
6 Tampering with evidence Dismembering Graves’ left leg
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7 Tampering with evidence Dismembering Graves’ right arm
8 Tampering with evidence Placing left leg in bag in first
freezer
9 Tampering with evidence Placing right leg in bag in first
freezer
10 Tampering with evidence Placing right arm in bag in the first
freezer
11 Tampering with evidence Placing left arm in bag in first
freezer
12 Tampering with evidence Placing left leg in bag in second
freezer
13 Tampering with evidence Placing right leg in bag in second
freezer
14 Tampering with evidence Placing right arm in bag in second
freezer
15 Tampering with evidence Placing left arm in bag in second
freezer
16 Tampering with evidence Burned torso and head with
sulfuric acid
17 Tampering with evidence Disposing of what remained after
sulfuric acid
18 Tampering with evidence Moving body from location 1 to
location 2
19 Tampering with evidence Moving body from location 2 to
location 3
20 Tampering with evidence Moving body from location 3 to
location 4
21 Tampering with evidence Burned bracelet with name
“Shannon” on it
22 Tampering with evidence Burned Graves’ shoes in a bonfire
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23 Tampering with evidence Burned Graves’ camera in a
bonfire
24 Tampering with evidence Burned Graves’ clothes in a
bonfire
25 Tampering with evidence Burned Graves’ clothes in a
bonfire
26 Tampering with evidence Burned Graves’ clothes in a
bonfire
27 Abuse of a Corpse Placing arms, legs and ½ of
Graves’ skull in first freezer
28 Abuse of a Corpse Placing arms, legs and ½ of
Graves’ skull in second freezer
29 Abuse of a Corpse Burning torso and head with
sulfuric acid
30 Abuse of a Corpse Cut legs and arms off of torso
31 Abuse of a Corpse Placing ½ of Graves’ skull in the
second freezer
32 Abuse of a Corpse Transporting Graves’ body in
trunk of Graves’ car
33 Possession of Criminal Tools Sulfuric acid
34 Possession of Criminal Tools Black garbage bags
35 Possession of Criminal Tools Freezers
36 Theft of WIC Benefits
37 Theft of WIC Benefits
38 Theft of WIC Benefits
39 N/A – Codefendant charged with
Intimidation
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40 N/A – Codefendant charged with
Intimidation
41 N/A – Codefendant charged with
Obstruction of Justice
42 Grand Theft of Motor Vehicle Stealing Graves’ car
43 Drug Trafficking marijuana
44 Drug Trafficking marijuana
45 Drug Trafficking marijuana
46 Drug Trafficking marijuana
47 N/A – Codefendant charged with
Tampering with evidence
48 Engaging in a Pattern of Corrupt
Activity
{¶12} After pretrial negotiations, Appellant entered a plea agreement on May 19,
2019. The State of Ohio agreed to dismiss Count I of the indictment, aggravated murder,
after Appellant pleaded guilty to the remaining 43 counts.
{¶13} A sentencing hearing was held on June 24, 2019. At the outset, the court
heard statements from Graves’ older sister and 18-year-old brother. After considering
the record, the victim impact statements, the statements and recommendation of counsel
and of Appellant, the PSI, the sentencing exhibits, the principles and purposes of
sentencing under R.C. 2929.11, the seriousness and recidivism factors under R.C.
2929.12, and the guidelines contained in R.C. 2929.13, the trial court imposed the
following sentence: Appellant was sentenced to the mandatory 15 years to life in prison
on Count 2, murder. On Count 3, tampering with evidence, Appellant received 36 months;
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Counts 4, 5, 6, and 7, tampering with evidence, 36 months on each; Counts 8, 9, 10, 11,
12, 13, 14, and 15, tampering with evidence, 36 months on each; Counts 16 and 17,
tampering with evidence, 36 months on each; Counts 18, 19 and 20, tampering with
evidence, 36 months on each; Counts 21, 22, 23, 24, 25 and 26, tampering with evidence,
36 months on each; Counts 27, 28, 30 and 32, abuse of a corpse, 11 months on each;
Count 31, abuse of a corpse, 11 months; Counts 33, 34 and 35, possession of criminal
tools, 11 months on each. On Counts 36, 37 and 38, theft of WIC benefits, Appellant was
sentenced to 11 months on each; Count 42, grand theft of a motor vehicle, 17 months;
Counts 43, 44, 45, and 46, drug trafficking, 11 months on each; and finally, on Count 48,
engaging in a pattern of corrupt activity, Appellant received 10 years.
{¶14} The state made the following merger recommendation which was adopted
by the trial court:
Count 3, tampering with evidence to merge with Count 32, abuse of a
corpse;
Counts 4, 5, 6, and 7, tampering with evidence to merge;
Count 5, tampering with evidence, to merge with Count 30, abuse of a
corpse;
Counts 8, 9, 10, 11, 12, 13, 14, 15, tampering with evidence, to merge;
Count 9, tampering with evidence, to merge with Count 27, abuse of a
corpse;
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Count 10, tampering with evidence, to merge with Count 28, abuse of a
corpse;
Count 16, tampering with evidence, merger with Count 29, abuse of a
corpse;
Counts 21, 22, 23, 24, 25, 26, tampering with evidence, to merge together.
{¶15} The trial court ordered the following convictions to be served concurrently:
Count 16, tampering with evidence, concurrent with Count 17, tampering
with evidence;
Counts 18, 19, and 20, tampering with evidence, to be served concurrently;
Counts 33, 34, and 35, possession of criminal tools, to be served
concurrently;
Counts 36, 37, and 38, theft of WIC benefits, to be served concurrently;
Counts 43, 44, 45, and 46, drug trafficking, to be served concurrently.
Finally, the trial court ordered Counts 2, 3, 4, 8, 16, 18, 21, 31, 33, 36, 42, 43, and 48 to
be served consecutively. Ultimately, Appellant was sentenced to a total stated prison
term of 48 years to life in prison.
{¶16} Appellant filed this timely appeal.
ASSIGNMENT OF ERROR NO. 1
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Appellant's guilty plea was not knowing, intelligent and voluntary because
the trial court failed to inform him of the maximum penalties as required by
Crim. R. 11(C)(2)(a).
{¶17} Appellant argues his plea is invalid because the trial court failed to inform
him of the aggregate prison sentence if his offenses were ordered to be served
consecutively. He also argues that this failure by the trial court violated Crim.R. 11(C)(2).
{¶18} “When a defendant enters a guilty plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
Crim.R. 11(C) governs the process of accepting guilty pleas to felony charges and sets
forth the colloquy the trial court must have with the defendant:
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 either in-person or by remote
contemporaneous video in conformity with Crim.R. 43(A) 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.
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(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).
{¶19} Trial courts are required to strictly comply with the constitutional
components of the colloquy, which are set forth in Crim.R. 11(C)(2)(c); State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, at ¶ 18-21. In contrast, the requirements set forth
in Crim.R. 11(C)(2)(a) and (b) require substantial compliance. Veney, ¶ 14-17.
{¶20} Crim.R. 11(C)(2)(a) requires a trial court to “[d]etermine that the defendant
is making the plea voluntarily, with understanding of the nature of the charges and the
maximum penalty involved[.]” As this is not a constitutional requirement only substantial
compliance by the trial court is required. Id. In State v. Johnson, 40 Ohio St.3d 130, 532
N.E.2d 1295 (1988), the Ohio Supreme Court considered whether a defendant is required
to be informed of the aggregate total prison term he or she faces. The Johnson Court
clarified that when a defendant enters a guilty plea to multiple offenses, “neither the United
States Constitution nor the Ohio Constitution requires that in order for a guilty plea to be
Case No. 19 MA 0073
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voluntary a defendant must be told the maximum total of the sentences his faces[.]” Id.
at 133. Further, the Court considered whether the failure to inform a defendant of an
aggregate total prison term violated Crim.R. 11(C). Id. The Johnson Court ultimately
concluded that a trial court properly complies with Crim.R. 11(C) by informing the
defendant of the maximum sentence faced for each of the individual charged crimes.
Johnson, at 134. Specifically, “[f]ailure to inform a defendant * * * that the court may order
him to serve any sentences imposed consecutively, rather than concurrently, is not a
violation of Crim.R. 11(C)(2) and does not render the plea involuntary.” Id. at syllabus.
{¶21} Citing a recent Ohio Supreme Court decision in State v. Bishop, 155 Ohio
St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, Appellant contends the holding in Johnson
was based on the previous version of Crim.R. 11 and is no longer good law due to the
1998 amendments to Crim.R. 11. In Bishop, a three-judge plurality of the Ohio Supreme
Court questioned the applicability of Johnson under the current version of Crim. R. 11(C).
Contrary to Appellant’s assertion, the Court was not reviewing the issue under
consideration in this case. Bishop addressed a specific question: whether a defendant
who pleads guilty to a new felony committed while on postrelease control must also be
informed of the consequences that could result from the postrelease control violation
during the plea colloquy. Bishop, ¶ 14-17. In fact, the plurality was careful to note the
distinction:
[W]hat happened to the defendant in Johnson is a far cry from what
happened to Bishop. Johnson was told of his potential sentences for each
individual offense; the trial court just failed to tell Johnson the sentences for
each offense could run consecutively. Here, the trial court told Bishop that
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he could receive a maximum sentence of 12 months for his fifth-degree-
felony conviction. But the trial court did not tell Bishop that he was also
subject to a separate consecutive 12-month sentence for his postrelease-
control violation.
Id. at ¶ 16.
{¶22} Appellant concedes that many appellate jurisdictions, including this Court,
have continued to follow Johnson. We have held, “[t]he maximum penalty referred to in
Crim.R. 11(C)(2)(a) refers to the sentence for each charge rather than the cumulative
total of all sentences for all charges to which the defendant is pleading.” State v. Magby,
7th Dist. Mahoning No. 17 MA 0006, 2019-Ohio-877, ¶ 25. Our sister districts have
similarly determined the question in Bishop dealt solely with issues of post release control
and the law set forth in Johnson still applies. See State v. Roberts, 9th Dist. Medina No.
19CA0004-M, 2019-Ohio-4393; State v. Nelson, 8th Dist. Cuyahoga Nos. 109072,
109073, 109260, 2020-Ohio-6993; State v. Ellis, 5th Dist. Coshocton Nos. 2019CA0014,
2019CA0015, 2020-Ohio-1130.
{¶23} In the instant matter, the trial court, on the record, ascertained that Appellant
understood the nature of the charges against him in accordance with Crim.R. 11(C).
Further, the court explained to Appellant the maximum penalty involved for each of the
offenses to which he had entered his plea:
THE COURT: Okay. Just to make sure you understand them, I’m going to
go through the penalties with you.
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With respect to murder, a violation of R.C. 2903.02(A)(D), that’s an
unclassified felony. You can be sentenced from 15 years to life in prison
for that, and you can also be fined $15,000 for that offense. Do you
understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. And with regard to tampering with evidence, in
violation of 2921.12(A)(1)(B), that’s a felony of the third degree. You’re
charged with this offense in Counts Three through Twenty-Six. Now, each
one of those counts is a felony of the third degree, and the court can fine
you up to $10,000 as a fine and penalty for each one of those offenses as
well, and you could additionally be sentenced from 9 to 36 months in prison
on each one of those counts, Three through Twenty-Six. Do you
understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Also with respect to the charge of abuse of a corpse,
in violation of 2927.01(B)(C), that’s also a felony of the fifth degree. You
could be sentenced on Count Twenty-Seven, Twenty-Eight, Twenty-Nine,
Thirty, Thirty-One, and Thirty-Two -- they’re all the same charges. On each
one of those charges, since they’re all felony fives, you could be sentenced
from 6 to 12 months in prison on each one of those and be fined $2,500 for
each one of those offenses as well. Do you understand that?
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THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Counts Thirty-Three, Thirty-Four, and Thirty-Five of
the indictment are charges of possession of criminal tools, in violation of
Revised Code 2923.24. Those three counts are also felonies of the fifth
degree. You can be sentenced to each one of those felonies of the fifth
degree from 6 to 12 months in prison and fined $2,500 on each one of those
counts as well. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. In Counts Thirty-Six, Thirty-Seven, and Thirty-Eight
are the charges of illegal use of food stamps, in violation of Revised Code
2913.46. Those, too, are felonies of the fifth degree, all three counts, and
you can be sentenced from 6 to 12 months on each one of those counts as
well as $2,500 on -- as a fine on each one of those counts. Do you
understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Do you further understand that on Count Forty-Two,
which is grand theft of a motor vehicle, a violation of Revised Code
2913.02(A)(1)(B)(5), that’s a felony of the fourth degree, and you can be
charged anywhere from 6 months to 18 months in prison on that count, and
you can be fined $5,000 on that count as well. Do you understand that?
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THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Counts Forty-Three, Forty-Four, Forty-Five, and
Forty-Six are charges of trafficking in drugs, in violation of Revised Code
2925.03(A)(1)(C)(3)(a). Those charges are all felonies of the fifth degree.
You can be sentenced from 6 to 12 months on each one of those counts as
well and fined up to $2,500 for each one of those counts as well. Do you
understand that?
THE DEFENDANT: Yes, Your Honor.
***
THE COURT: And then finally I have Count Forty-Eight, engaging in a
pattern of corrupt activity, in violation of Revised Code 2523.32(A)(1), and
that’s a felony of the first degree, and the sentence on a felony of the first
degree could be potentially anywhere from 3 to 11 years in prison as well
as a fine in the amount of $20,000. That is a non-mandatory sentence.
Counts Forty-Three, Forty-Four, Forty-Five, and Forty-Six are non-
mandatory. Thirty-Three, Thirty-Four, Thirty-Five, Thirty-Six, Thirty-Seven,
Thirty-Eight, and Forty-Two are non-mandatory. Counts Three through
Thirty-Two are also non-mandatory sentences; however, Count Two,
murder, the unclassified felony of the 15 to life, is a mandatory sentence
with no possibility of judicial release.
(5/30/19 Plea Hrg. Tr., pp. 8-13.)
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{¶24} The court further explained the nature of postrelease control before asking
Appellant whether he understood. Appellant responded, “[y]es, Your Honor.” Prior to
accepting Appellant’s guilty plea, the trial court personally addressed Appellant,
explaining all of the constitutional and statutory rights which he was waiving by entering
a plea. Appellant repeatedly expressed his understanding of the implications of each
plea. Appellant entered his guilty plea to all of the charges with no objection from counsel,
and the matter was set for sentencing pending a presentence investigation.
{¶25} The record clearly reflects that the trial court provided Appellant with
information as to the specific maximum penalties which he potentially faced for each
separate count. Appellant argues that the 1998 revisions to Crim.R. 11, occurring after
Johnson was decided, amended the rule so that a single plea can now apply to multiple
charges. By Appellant’s logic, this now means that the “maximum penalty involved” refers
to the aggregate maximum sentence. Appellant cites no authority for this contention.
Regardless, the record clearly establishes that Appellant entered a separate plea of
“guilty” to each count. The trial court, as regards the mandates of Crim.R.11(C)(2)(a),
more than substantially complied in addressing the maximum penalty involved for each
separate plea. Magby, ¶ 25. Appellant’s case is directly on point with the facts in
Johnson, and because postrelease control was not a consideration in this matter, the
plurality holding in Bishop is inapplicable here. Accordingly, Appellant’s argument that
Crim.R. 11(C)(2)(a) required the trial court to inform him of the aggregate maximum
sentence that he possibly faced is not well-taken.
{¶26} Appellant’s first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
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A number of Appellant's convictions and sentences violate the Appellant's
rights under the Double Jeopardy Clauses of the United States and Ohio
Constitutions.
{¶27} Appellant presents two issues within his double jeopardy argument. First,
Appellant argues he was given multiple punishments for the same criminal act in violation
of the Double Jeopardy Clause of both the Ohio and United States Constitutions. Second,
Appellant contends the trial court erred in not properly merging the counts, which resulted
in the trial court imposing multiple sentences for the same conduct in violation of his right
not to be subject to double jeopardy.
{¶28} Ohio has codified certain protections for defendants consistent with the
Double Jeopardy clause of the Ohio and the U.S. Constitution in R.C. 2941.25, which
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.
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{¶29} The merger of allied offenses pursuant to R.C. 2941.25 presents a question
of law that we review de novo. State v. Ursic, 7th Dist. Harrison No. 18 HA 0006, 2019-
Ohio-5088, ¶ 9. The Ohio Supreme Court set forth the test to determine if two offenses
are allied offenses of similar import in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892. In Ruff, the Court established a fact-specific analysis that considers the
defendant’s conduct, the animus, and the import. State v. Williams, 7th Dist. Mahoning
No. 13 MA 125, 2015-Ohio-797, 43 N.E.3d 797, ¶ 17, citing Ruff at ¶ 26. The three-part
analysis requires a review of: (1) whether the offenses are dissimilar in import or
significance; in other words, whether each offense contains a separate and identifiable
harm; (2) whether the offenses were committed separately; and (3) whether the offenses
were committed with separate animus or motivation. Ruff at ¶ 26. If the answer to any
of the three parts is “yes,” then the offenses do not merge. Id. However, when it is
determined that the offenses merge pursuant to R.C. 2941.25(A), the defendant can be
found guilty of all of the charged offenses, but can be punished only on one. Id. There
is no bright-line rule, as the fact-specific nature of the test requires a case-by-case
analysis. Ruff, ¶ 30.
Tampering with Evidence
{¶30} Appellant argues that all of his convictions for tampering with evidence
should have merged for sentencing purposes.
{¶31} Appellant pleaded guilty and was convicted of 24 counts of tampering with
the evidence. As noted in the earlier chart, each count related to different conduct, in
different locations, throughout a time span of several months. After merger, Appellant
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was sentenced on eight counts of tampering with the evidence. Tampering, as defined
by R.C. 2921.12(A)(1), provides:
(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or
investigation[.]
{¶32} There are three elements of the offense of tampering with the evidence: (1)
knowledge of an official proceeding that is in progress or is likely to be; (2) the alteration,
destruction, concealment or removal of potential evidence; and (3) action having the
purpose of impairing the evidence’s availability or value in this proceeding or
investigation. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175,
¶ 11.
{¶33} Appellant does not argue the first element, regarding knowledge of an
official proceeding. Regarding the second element, Appellant contends that there was
only one “thing,” or piece of evidence, that he was convicted of tampering with: “Graves’
body and the clothing/personal effects on her body at the time of her death.” Appellant
contends that Graves’ body and her attendant personal effects are all one item for
purposes of the statute. Contrary to Appellant’s single-evidence argument, by his own
admission these constitute more than one piece of evidence as Graves’ body, clothing
and personal effects are not one item by even the most literal interpretation. Appellant
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also argues that all of the tampering convictions were based on a single animus: “to alter,
conceal, destroy or remove evidence relating to Graves’ death.” (Appellant’s Brf., p. 20.)
{¶34} The state contends that each charge of tampering with the evidence
represented separate incidents that occurred over several months and involved separate
instances where Appellant tampered with evidence of Graves’ murder.
{¶35} In determining whether offenses are allied offenses of similar import, Ruff
requires an appellate court to look beyond the statutory elements and consider the
defendant’s conduct and the manner in which the offenses were committed. Ruff, ¶ 25.
{¶36} Here, after Appellant murdered Graves, he engaged in several distinct acts
having the purpose of concealing any evidence of his murder. First, he wrapped Graves’
body in trash bags and placed it in the trunk of her car. Second, he transported her body
to the garage of Layton’s home. Next, he dismembered her body by removing each of
Graves’ limbs and her head. Then, he transported these body parts back to Graves’
home. Next, Appellant placed each of her limbs in the first freezer in Graves’ home. He
later moved the limbs to a second freezer in the Ravenwood apartment, months after the
murder. Then he burned her torso and head in the second storage tote with sulfuric acid.
Next, he disposed of the remains of Graves’ torso and head after his attempt at dissolving
these in acid and placed them in the freezer with her limbs. Then, he burned Graves’
shoes, clothing, bracelet, and camera in a bonfire at a separate location. Appellant then
moved the second freezer containing Graves’ remains to the Devitt location, where they
were finally discovered.
{¶37} Of the eight counts of tampering with evidence on which Appellant was
sentenced after merger, count 3 related to his act of wrapping Graves’ body in garbage
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bags and putting her remains in the trunk of her car to conceal the body. Count 4 was
based on Appellant dismembering Graves’ limbs, and was merged with counts 5, 6, and
7, which also addressed her dismemberment. Count 8 pertained to Appellant’s
concealment of Graves’ remains in the first freezer and was merged with counts 9, 10,
11, 12, 13, 14 and 15, all of which involved the placing of each limb initially in the first
freezer, and then each limb in the second freezer. Count 16 related to burning Graves’
head and torso in sulfuric acid, and was merged with count 29, abuse of a corpse, which
also related to burning her head and torso with acid. Count 17 addressed Appellant’s
disposal of the remains not consumed by the acid and was not merged for sentencing.
Count 18 involved Appellant’s transportation of Graves’ body from her home to Layton’s
garage. Count 19 addressed Appellant’s transportation of Graves’ dismembered body
from the Mahoning Avenue home to the Ravenwood apartment. Finally, Count 20
involved Appellant’s act of moving Graves’ dismembered body yet again, from the
Ravenwood apartment to his friend’s home on Devitt.
{¶38} Multiple violations of the same statute are not allied offenses of similar
import, and a defendant may be sentenced for each separate violation. State v. Larsen,
89 Ohio App.3d 371, 375-376, 624 N.E.2d 766 (4th Dist.1993). Appellant’s assertion that
he tampered with only one piece of evidence, warranting a single tampering with the
evidence charge, is disingenuous at best. The analogy of a single sheet of paper being
ripped into pieces with the dismemberment of a human body was tone-deaf, at the least.
Regardless, it is clear from this record that the state proved all of the offenses of
tampering with multiple items of evidence. There was not only Graves’ body (both before
and after Appellant’s dismemberment) but also Graves’ clothing, papers, camera, shoes
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and jewelry. The fact that multiple types of evidence existed is further demonstrated by
the fact that Appellant felt the need to utilize several methods in his attempt to destroy or
hide the varying types of evidence. Appellant wrapped and transported Graves’ intact
body away from the scene. Appellant dismembered Graves’ body at a separate location.
Appellant placed Graves’ body parts in different storage containers and freezers, the
locations of which were moved throughout a several month period in order to avoid
detection. Graves’ clothing, papers, camera, shoes, and jewelry were burned in a large
bonfire at a different occasion. Appellant’s conduct abundantly demonstrates that he was
dealing with multiple types of evidence he felt necessary to alter, conceal or destroy in an
attempt to prevent these items of evidence from being discovered during the investigation.
{¶39} It is clear that Appellant tampered with multiple items of evidence to hinder
the investigation, consisting first of Graves' entire body, and later the separate and distinct
body parts, as well as Graves' clothing, shoes, camera, and jewelry. He utilized multiple
methods of tampering, depending on the type of evidence. Appellant admits he engaged
in every type of violation possible pursuant to statute, including altering, concealing and
destroying by means of dismemberment, acid burning, hiding, and fire. Contrary to
Appellant’s assertion, Graves’ body and personal effects do not amount to a single piece
of evidence in this matter, based on this record. As the investigation progressed and he
feared imminent discovery of his initial crime he acquired additional pieces of Graves’
belongings and undertook various means of destruction. Finally, the multiple actions
carried out by Appellant to tamper with the multiple pieces of evidence were motivated by
separate animus related to the progression of the investigation. Although the shared
underlying basis was certainly to avoid detection for committing murder, Appellant
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addressed his growing desperation over a period of several months with a variety of
different behaviors: continuing to relocate the body time and again as well as his repeated
decision to acquire and destroy additional pieces of evidence throughout in order to hinder
the investigation. Thus, because there was separate and distinct conduct to constitute
separate offenses of tampering with multiple pieces of evidence, the trial court did not err
in the manner in which it addressed merger of the tampering with evidence counts.
Possession of Criminal Tools
{¶40} Appellant also argues that all of his convictions for possession of criminal
tools should have merged for sentencing. Appellant pleaded guilty to three counts of
possession of criminal tools. He was sentenced to 11 months on each count to be served
concurrently with each other. Possessing criminal tools is governed by R.C. 2923.24(A)
which reads, “[n]o person shall possess or have under the person’s control any
substance, device, instrument, or article, with purpose to use it criminally.” R.C.
2923.24(A). Appellant was convicted and sentenced as follows: Count 33 referred to the
sulfuric acid Appellant used to burn Graves’ head and torso. Count 34 pertained to the
black garbage bags Appellant used to wrap and store Graves’ body. Count 35 involved
the freezers used by Appellant to store Graves’ body in various locations.
{¶41} Appellant contends that all three items were used in furtherance of the
single crime of disposing of Graves’ body. In comparing each of the offenses, it is clear
from the evidence in the record that Appellant acquired each of the different criminal tools
at a different time, utilized them at differing locations, and acquired each for a separate
untoward purpose. After murdering Graves, Appellant used garbage bags to conceal and
transport her body, continuing to use the bags throughout for storing, concealing and
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transporting her body. Appellant and Layton later ordered the sulfuric acid online, once
the determination was made that they should attempt to destroy and alter Graves’ torso
and head using acid rather than maintain them intact in the freezers. Lastly, Appellant
used one freezer at Graves’ home for storage. Once the missing person report was filed
and the Youngstown Police Department would clearly begin their investigation, Appellant
purchased a second freezer in order to conceal Graves’ remains, ultimately at other
locations. Again, pursuant to Ruff, Appellant’s conduct demonstrates separate and
distinct conduct causing separate, identifiable harm to the evidence in this matter.
Therefore, the trial court did not err in failing to merge the three convictions for possession
of criminal tools convictions at sentencing.
Abuse of a Corpse
{¶42} Appellant also argues that his convictions for abuse of a corpse should have
merged with the convictions for tampering with evidence.
{¶43} Abuse of a corpse is governed by R.C. 2927.01(B) and provides, “[n]o
person, except as authorized by law, shall treat a human corpse in a way that would
outrage reasonable community sensibilities.” R.C. 2927.01(B). Appellant pleaded guilty
and was convicted on six counts of abuse of a corpse. After merger, Appellant was
sentenced to 11 months on a single count of abuse. Count 31 related to Appellant putting
the remaining one-half of Graves’ skull in the second freezer he purchased. As noted
above, Appellant was sentenced on eight counts of tampering with the evidence.
Appellant argues that the single sentence for abuse of a corpse should have merged with
Count 28, relating to Appellant placing Graves’ arms, legs and one-half if her skull in the
second freezer. Count 28 was merged with Count 10 (placing Graves’ right arm in the
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first freezer). However, had all three merged as proposed by Appellant, there would have
been no sentence imposed for placing Graves’ body in the second freezer. None of the
tampering with evidence sentences imposed involved placing Graves’ body in the second
freezer. The single sentence imposed for abuse of a corpse addresses Appellant’s act
of placing Graves’ remains in the second freezer. Ruff holds that courts cannot merge
offenses involving separate conduct. Ruff, ¶ 26. Under the Ruff analysis, the act of
placing Graves’ body in freezer two not only was separate and distinct conduct from
placing her body in the first freezer, but involved separate animus for this conduct, in that
the second freezer was purchased by Appellant months after he committed the murder
only to avoid discovery of Graves’ body in the first freezer. Therefore, the trial court did
not err in failing to merge count 31, abuse of a corpse, at sentencing.
{¶44} Appellant’s second assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
The trial court erred in imposing consecutive sentences.
{¶45} Appellant asserts the trial court’s imposition of consecutive sentences is
contrary to law because the trial court imposed maximum, consecutive sentences on the
non-violent felonies because of the murder conviction.
{¶46} Although not specifically raised in detail in Appellant’s brief, there is another
threshold issue we must address that was raised at oral argument. As stated, the trial
court merged multiple counts of the indictment for sentencing:
Count 3, tampering with evidence to merge with Count 32, abuse of a
corpse;
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Counts 4, 5, 6, and 7, tampering with evidence to merge together;
Count 5, tampering with evidence, merge with Count 30, abuse of a
corpse;
Counts 8, 9, 10, 11, 12, 13, 14, 15, tampering with evidence, to merge
together;
Count 9, tampering with evidence, merge with Count 27, abuse of a
corpse;
Count 10, tampering with evidence, merge with Count 28, abuse of a
corpse;
Count 16, tampering with evidence, merger with Count 29, abuse of a
corpse;
Counts 21, 22, 23, 24, 25, 26, tampering with evidence, to merge together.
{¶47} A “conviction” for purposes of R.C. 2941.25(A) can only be entered on one
offense once two offenses have been merged, and the trial court must memorialize on
which count the state has elected to proceed to sentencing. A court that merges separate
counts may only sentence on one. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,
922 N.E.2d 182, ¶ 13, 24. Thus, when a trial court merges offenses, no sentence is
imposed on the other, merged offenses. Id. at ¶ 17-18. Although the trial court merged
the offenses as discussed, the court entered sentences on all of the offenses, some to
run consecutively and some concurrently. It is clear the imposition of consecutive
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sentences clearly runs afoul of the merger doctrine under any standard. In addition,
merger is not lawfully accomplished even if the court runs the sentences concurrently, as
the state must be allowed to elect on which count the offender is to be sentenced and
there is no sentence imposed on the other, merged, offenses. State v. Damron, 129 Ohio
St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. “Sentencing concurrently on merged
counts does not satisfy the merger doctrine as no sentence at all should be entered on
one of the two merged counts.” State v. Gardner, 7th Dist. Mahoning No. 10 MA 0052,
2011-Ohio-2644, ¶ 24. Sentencing a defendant on a merged count is plain error, as a
defendant is prejudiced by having more convictions on his record than authorized by law.
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.
{¶48} Thus the trial court’s imposition of sentence on the merged counts was plain
error, affecting Appellant’s right to be sentenced on only one of the merged offenses.
Where, as here, a trial court has improperly sentenced on merged counts, the matter must
be remanded for a limited resentencing hearing so the state can select on which of the
merged offenses the court is to enter a conviction and impose sentence. Whitfield, ¶ 21-
22.
{¶49} As we must remand this matter for a limited resentencing of the merged
counts where the trial court improperly imposed concurrent and consecutive sentences,
Appellant’s third assignment of error otherwise addressing the court’s decision to impose
consecutive sentences is moot.
{¶50} Appellant’s guilty pleas and subsequent guilt findings are affirmed.
Because the trial court erred in its decision to sentence Appellant on offenses that the
court merged, Appellant’s sentence is hereby vacated. We remand this matter in order
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to allow the state to determine on which of the merged offenses it wishes the court to
enter a conviction and sentence. All other aspects of the trial court’s judgment is affirmed.
Robb, J., concurs.
Powell, J., concurs.
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For the reasons stated in the Opinion rendered herein, Appellant’s assignments of
error are overruled. However, because we find plain error in the trial court’s decision to
sentence Appellant on offenses that the court merged, Appellant’s sentence is hereby
vacated. It is the final judgment and order of this Court that the judgment of the Court of
Common Pleas of Mahoning County, Ohio, is affirmed in part and reversed in part. We
hereby remand this matter to the trial court for further proceedings according to law and
consistent with this Court’s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 19 MA 0073