State v. Wilson

• Decision Date: 25 April 1979
• Docket Number: No. 78-931,78-931
• Citation: 58 Ohio St.2d 52,388 N.E.2d 745,12 O.O.3d 51
• Parties: , 12 O.O.3d 51 The STATE of Ohio, Appellee, v. WILSON, Appellant.
• Court: Ohio Supreme Court

Page 52

58 Ohio St.2d 52

388 N.E.2d 745, 12 O.O.3d 51

The STATE of Ohio, Appellee, v. WILSON, Appellant.

No. 78-931.

Supreme Court of Ohio.

April 25, 1979.

Syllabus by the Court

1. While a counseled plea of guilty is an admission of factual guilt which removes issues of factual guilt from the case, a defendant is not precluded from raising on appeal other issues which attack the constitutionality of the statute under which he has been convicted.

2. R.C. 2911.11(A)(3) violates neither the Equal Protection Clause nor the Due Process Clause of the United States Constitution.

Ronald Wilson, appellant herein, was indicted by the grand jury on two counts of aggravated burglary under R.C. 2911.11(A)(3). He pleaded guilty to both counts. At his sentencing hearing, however, appellant requested that he be sentenced under the burglary statute, R.C. 2911.12, because of an alleged duplication between R.C. 2911.11(A)(3) and the basic proscription embodied in R.C. 2911.12. Appellant argued that, due to this duplication and the differing penalties imposed, the court was constitutionally required to sentence him pursuant to the lesser of the two penalties.

The trial court rejected appellant's request and sentenced him under the aggravated burglary statute. Appellant then appealed to the Court of Appeals, which, in a split decision, affirmed the conviction.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., Ann Rowland, Cleveland Heights, and George J. Sadd, Cleveland, for appellee.

Rick Drake and Jeffrey H. Olson, Cleveland, for appellant.

LOCHER, Justice.

I.

Appellant raises two constitutional issues for this court's consideration. Briefly stated, appellant contends that R.C. 2911.11(A)(3), Ohio's aggravated burglary statute, violates the Equal Protection and Due Process Clauses of the United States Constitution. The state of Ohio, however, maintains, in effect, that appellant should not be permitted to raise these issues because his guilty plea precludes any constitutional attack on the statute under which he was convicted.

Appellee relies upon a trilogy of a United States Supreme Court cases in support of its position, namely, Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; and Tollett v. Henderson (1973), 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. The last of the trilogy, Tollett, which cites the other two, held that, where a defendant pleads guilty upon the advice of counsel, he cannot later claim a violation of constitutional rights which antedate the plea, but may only attack the voluntary and intelligent character of the guilty plea. Appellee argues that, because the constitutional issues raised by the appellant antedate his guilty plea, he is similarly precluded.

We disagree and hold that appellant is not precluded from raising these issues. In so holding, we rely on Menna v. New York (1975), 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195. In Menna, a Per curiam opinion, the petitioner's guilty plea to a charge of refusing to testify before a grand jury, after having been granted immunity, was held not to bar his later claim that the Double Jeopardy Clause precluded the state from indicting him on that charge after he had been sentenced to a jail term for contempt of court for his failure to testify before the grand jury. The New York Court of Appeals had declined to address the double jeopardy claim on the merits, relying, Inter alia, on Tollett v. Henderson, supra, holding that the constitutional claim had been "waived" by petitioner's counseled plea of guilty.

The United States Supreme Court, in reversing the New York Court of Appeals, stated: " * * * Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty. Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974). 2 * * * " 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195. In the accompanying footnote the court addressed the trilogy relied upon by the state, stating:

"Neither Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), nor our earlier cases on which it relied, E. g., Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), stand for the proposition that counseled guilty pleas inevitably 'waive' all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 U.S., at 266, 93 S.Ct. 1607. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it Quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore does not bar the claim." (Emphasis Sic.)

Thus, the United States Supreme Court distinguished constitutional violations which go to factual guilt from constitutional violations which pertain to the validity of the statute relied upon by the state to convict the defendant. Therefore, those constitutional violations which go to the ability of the state to prosecute, regardless of factual guilt, may be raised on appeal from a guilty plea.

II.

Turning to the equal protection argument, appellant contends that the trial court erred by sentencing him pursuant to R.C. 2911.11(A)(3), because it prohibits the same activity as R.C. 2911.12, the burglary statute. He then argues that, because R.C. 2911.11(A)(3) carries a heavier penalty than R.C. 2911.12, ¹ the former violates the Equal Protection Clause.

The issue here is not whether the prosecutor abused his discretion in charging appellant under the aggravated burglary statute. The Equal Protection Clause is not violated when, based upon prosecutorial discretion, a person may be charged under more than one statute and thereby receive different penalties. The use of prosecutorial discretion, in and of itself, does not violate equal protection. ² See Roush v. White (N.D.Ohio, 1975), 389 F.Supp. 396, 402.

The issue here is whether both statutes require the state to prove identical elements while prescribing different penalties. Judge Jackson, writing for the majority of the appellate court below, clearly stated that the test is "whether, if the defendant is charged with the elevated crime, the state has the burden of proving an additional element beyond that required by the lesser offense." Therefore, if the statutes prohibit identical activity, require identical proof, and yet impose different penalties, then sentencing a person under the statute with the higher penalty violates the Equal Protection Clause.

Appellant's argument hinges on whether R.C. 2909.01, which defines the term "occupied structure" used in both the aggravated burglary and the burglary statutes, is to be read conjunctively or disjunctively. R.C. 2909.01 states, in part:

" * * * (A)n 'occupied structure' is any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:

"(A) Which is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied, and whether or not any person is actually present;

"(B) Which at the time is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present;

"(C) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present;

"(D) In which at the time any person is present or likely to be present."

If definitions (A) through (D) are read cumulatively, then appellant is correct in his contention. However, if the definitions are read separately, then no constitutional violation exists.

We hold that the definitions of an "occupied structure" contained in R.C. 2909.01 are to be read disjunctively. In so doing, we apply the well established principle that " 'courts will refrain from declaring legislation unconstitutional unless the posture of the cause leaves no logical alternative thereto.' " Washington Court House v. McStowe (1976), 45 Ohio St.2d 228, 230, 343 N.E.2d 109, 110, quoting Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211, 212, 267 N.E.2d 802. See, also, R.C. 1.47, 1.49 and 1.50.

The statute provides that an " 'occupied structure' is any * * * structure * * * to which Any of the following Applies * * *." (Emphasis added.) As the majority opinion of the Court of Appeals so aptly pointed out, "(w)hile 'any' may be used as either a singular or plural pronoun, the use of the verb 'applies' leaves no doubt but that the word 'any' is intended to carry a singular meaning in this statute." ³

Applying the definitions separately, the state, in a prosecution pursuant to R.C. 2911.12(A), ⁴ burglary, would have to prove the following elements: (1) that the person trespassed by force, stealth, or deception; (2) in an occupied structure as defined in R.C. 2909.01 or in a separately occupied portion thereof; and (3) with the purpose to commit therein a theft offense as defined in R.C. 2913.01...