State v. Anthony
| Decision Date | 11 June 2015 |
| Docket Number | No. 101847.,101847. |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Charles F. ANTHONY, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
David V. Patton, Solon, OH, for appellant.
Timothy J. McGinty, Cuyahoga County Prosecutor, Andrew J. Santoli, Assistant County Prosecutor, Cleveland, OH, for appellee.
Before: BOYLE, P.J., S. GALLAGHER, J., and LASTER MAYS, J.
{¶ 1} Defendant-appellant, Charles Anthony, appeals from a judgment convicting him of involuntary manslaughter and felonious assault. He raises four assignments of error for our review:
{¶ 2} Finding merit to his second assignment of error, we vacate his sentence and remand for resentencing where the state should elect which allied offense on which to proceed for sentencing.
{¶ 3} In August 2013, Anthony was indicted on four counts: one count of aggravated murder and murder and two counts of felonious assault. All counts carried notice of prior conviction and repeat violent offender specifications. Anthony pleaded not guilty to all charges at his arraignment.
{¶ 4} In November 2013, Anthony withdrew his former plea of not guilty and entered a plea of guilty to an amended indictment of involuntary manslaughter with both specifications and one count of felonious assault with the specifications. The remaining counts were nolled.
{¶ 5} The trial court sentenced Anthony to a total of 13 years in prison, 11 years for involuntary manslaughter and two years for felonious assault, to be served consecutive to one another. The trial court further notified Anthony that he would be subject to five years of mandatory postrelease control upon his release from prison. It is from this judgment that Anthony appeals.
{¶ 6} In his first assignment of error, Anthony contends that the trial court erred when it failed to follow Crim.R. 11 when accepting his guilty plea. Specifically, Anthony argues that the trial court did not advise him, as it is required to do under Crim.R. 11(C)(2)(b), that upon acceptance of his plea, it could proceed with judgment and sentence.
{¶ 7} The underlying purpose of Crim.R. 11 is to insure that certain information is conveyed to the defendant that would allow him or her to make a voluntary, knowing, and intelligent decision regarding whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479–480, 423 N.E.2d 115 (1981). In determining whether the trial court has satisfied its duties under Crim.R. 11 in taking a plea, reviewing courts have distinguished constitutional and nonconstitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. With respect to constitutional rights, a trial court must strictly comply with the dictates of Crim.R. 11(C). State v. Colbert, 71 Ohio App.3d 734, 737, 595 N.E.2d 401 (11th Dist.1991). For nonconstitutional rights, the trial court must substantially comply. State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶ 8} Crim.R. 11(C)(2)(b) provides in relevant part that the court shall not accept a guilty plea without first “[i]nforming the defendant of and determining that the defendant understands * * * that the court, upon acceptance of the plea, may proceed with judgment and sentence.”
{¶ 9} The mandate set forth in Crim.R. 11(C)(2)(b) does not involve a constitutional right, and therefore, substantial compliance with the rule is required. State v. Mendez–Lopez, 6th Dist. Huron No. H–06–034, 2007-Ohio-5745, 2007 WL 3120283, ¶ 13. Additionally, a defendant who claims that his plea was not knowingly, intelligently, or voluntarily made must show a prejudicial effect. Nero at 108, 564 N.E.2d 474, citing Stewart at 93, 364 N.E.2d 1163.
{¶ 10} Prior to accepting Anthony's guilty plea, the trial court did not inform him that it could proceed with judgment and sentence upon acceptance of the plea. The record reflects, however, that the trial court did not proceed directly to sentencing but rather referred the matter for a presentence investigation. The sentencing hearing took place approximately one month after Anthony entered into his plea.
{¶ 11} “Where a trial court does not proceed immediately to sentencing upon accepting a guilty plea, the defendant is not prejudiced by the court's failure to warn that it could have done so.” (Emphasis sic.) State v. Boyd, 8th Dist. Cuyahoga No. 98342, 2013-Ohio-30, 2013 WL 118962, ¶ 13, citing State v. Johnson, 11th Dist. Lake No. 2002–L–024, 2004-Ohio-331, 2004 WL 144202, ¶ 20 ; see also State v. Woods, 2d Dist. Clark No. 05CA0063, 2006-Ohio-2325, 2006 WL 1284613, ¶ 7.
{¶ 12} Accordingly, Anthony's first assignment of error is not well taken.
{¶ 13} In his second assignment of error, Anthony argues that the trial court erred when it failed to merge his involuntary manslaughter and felonious assault convictions. At the plea hearing, after Anthony pleaded guilty to both counts and the trial court accepted his pleas, defense counsel stated, “Your Honor, just I would like the obvious to be on the record, if I could, namely, that the Counts 2 and 3 merge for the purposes of sentencing.” The trial court replied, “They certainly appear to me to do so.” The state then stated, At sentencing, the trial court found that the felonious assault was a “separate and distinct act, and it is not subject to merger” with the involuntary manslaughter.
{¶ 14} An appellate court should apply a de novo standard of review in reviewing whether two offenses are allied offenses of similar import. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. Anthony failed to object to the imposition of multiple punishments. Nonetheless, the Ohio Supreme Court has held that 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.
United States Constitution, and the Ohio Constitution, Article I, Section 10, protect a defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7 ; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). But the Double Jeopardy Clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the dispositive issue is “whether the General Assembly intended to permit multiple punishments for the offenses at issue.” State v. Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).
{¶ 16} In Ohio, this constitutional protection is codified in R.C. 2941.25. “R.C. 2941.25 essentially codified the judicial merger doctrine.” State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 23. The Ohio Supreme Court has explained that “[m]erger is ‘the penal philosophy that a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.’ ” Id., quoting Maumee v. Geiger, 45 Ohio St.2d 238, 243–244, 344 N.E.2d 133 (1976).
{¶ 17} R.C. 2941.25 provides:
{¶ 18} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, the Ohio Supreme Court explained:
The legislative history of R.C. 2941.25 demonstrates that “[t]he basic thrust of the section is to prevent ‘shotgun’ convictions.” Legislative Service Commission Summary of Am.Sub.H.B. 511, The New Ohio Criminal Code (June 1973) 69. The summary states: Id. Similarly, the final report of the Technical Committee 1 to Study Ohio Criminal Laws and Procedures reflects the...
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