State v. Lee , 2020 Ohio 944 ( 2020 )

[Cite as State v. Lee, 2020-Ohio-944.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190149
TRIAL NO. 18CRB-19713
Plaintiff-Appellee, :
vs. : O P I N I O N.
RICARDO G. LEE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 13, 2020
Paula Boggs Muething, City Solicitor, William T. Horsley, Interim City Prosecutor,
and Jon Vogt, Assistant City Prosecutor, for Plaintiff-Appellee,
The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Ricardo G. Lee appeals his sentences, after his no-contest pleas, for
criminal trespassing and public indecency, both misdemeanors of the fourth degree.
In two related assignments of error, Lee contends that the trial court erred by failing
to merge his convictions for sentencing, and that he was denied the effective
assistance of counsel because his trial counsel did not inform the court that the
offenses were allied. Finding no merit to his assignments of error, we affirm the
judgment of the trial court.
Factual Background
{¶2} Ricardo G. Lee was charged with criminal trespassing and public
indecency for entering a Domino’s Pizza, after being banned from the restaurant by
the store manager and a police officer. Lee entered the restaurant, and when the
employees refused to serve him, he exposed himself to the employees. He pled no
contest to the charges and was found guilty.
{¶3} On the public-indecency conviction, the trial court sentenced Lee to 30
days in jail, suspended one day, gave him credit for the 29 days he had already
served, ordered him to pay a $100 fine plus court costs, and placed him on probation
for one year. On the criminal-trespassing conviction, Lee was sentenced to 30 days
in jail, with 30 days suspended, and a $100 fine plus court costs. The trial court also
ordered Lee to stay away from the Domino’s Pizza.
Standard of Review
{¶4} In his first assignment of error, Lee argues that the trial court
committed plain error by failing to merge the offenses for purposes of sentencing. As
Lee concedes, his trial counsel did not raise the allied-offenses issue to the trial court,
so we review the failure to merge for plain error. See State v. Rogers, 143 Ohio St. 3d
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385, 2015-Ohio-2459, 38 N.E.3d 860; State v. Thompkins, 1st Dist. Hamilton No. C-
160384, 2017-Ohio-1061, ¶ 35. 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.
Law and Analysis
{¶5} Under R.C. 2941.25, a trial court must merge offenses if the conduct of
the defendant can be construed to constitute two or more allied offenses of a similar
import, and this conduct shows that the offenses were not committed separately or
with a separate animus. See State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-
Ohio-2997, ¶ 74. The determination of whether offenses are allied contemplates
“three separate factors-the conduct, the animus, and the import.” State v. Ruff, 143
Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus.
{¶6} Offenses of dissimilar import exist when the conduct involves separate
victims or if the resulting harm is separate and identifiable. Id. at paragraph two of
the syllabus. Separate convictions are permitted for allied offenses if the offenses
were (1) dissimilar in import or significance, (2) committed separately, or (3)
committed with a separate animus or motivation. Id. at paragraph three of the
syllabus. A reviewing court may end its analysis upon finding that any one of the
three applies. Bailey at ¶ 83.
{¶7} Lee was convicted of criminal trespass in violation of R.C.
2911.21(A)(1) which states: “No person, without privilege to do so, shall do any of the
following: (1) Knowingly enter or remain on the land or premises of another.” As
soon as Lee entered the Domino’s Pizza, the criminal trespass was complete. Lee
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OHIO FIRST DISTRICT COURT OF APPEALS
committed the public-indecency offense after he was refused service by the
employees of Domino’s Pizza. Thus the offenses were committed separately because
they did not arise from the same act. See State v. Jackson, 149 Ohio St. 3d 55, 2016-
Ohio-5488, 73 N.E.2d 414, ¶ 129 (concluding that aggravated burglary and
aggravated robbery were not allied offenses because the burglary was complete when
the defendant entered the home with the intent to commit murder, theft, or
kidnapping, and the aggravated robbery was complete when the defendant stole the
victim’s car after murdering him). Accordingly, we overrule the first assignment of
error.
{¶8} In his second assignment of error, Lee claims he was denied the
effective assistance of counsel because his trial counsel did not raise the allied-
offense issue to the trial court. To establish ineffective assistance of counsel, an
accused must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the accused. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The failure to make either showing
is fatal to the claim. Id. at 697. A defendant is only prejudiced by counsel’s
performance if there is a reasonable probability that the outcome of the proceedings
would have been different but for the complained-of conduct. Id. at 694.
{¶9} Given our resolution of his first assignment of error that the
convictions were not allied offenses, trial counsel’s failure to argue that the
convictions should merge did not constitute ineffective assistance of counsel. See
State v. White, 12th Dist. Clermont No. CA2018-12-087, 2019-Ohio-3053, ¶ 21. We
overrule the second assignment of error.
Conclusion
{¶10} Having overruled Lee’s two assignments of error, we affirm the
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment of the trial court.
Judgment affirmed.
MYERS and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
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