State v. Morris

• Docket Number: C. A. 29555
• Decision Date: 26 May 2023
• Citation: 2023 Ohio 1765
• Parties: STATE OF OHIO Appellee v. LEON AARON MORRIS Appellant
• Court: Ohio Court of Appeals

1

2023-Ohio-1765

STATE OF OHIO Appellee v. LEON AARON MORRIS Appellant

C. A. No. 29555

Court of Appeals of Ohio, Second District, Montgomery

May 26, 2023

Criminal Appeal from Common Pleas Court Trial Court Case Nos 2020 CR 03962; 2022 CR 01403

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee.

CHRISTOPHER BAZELEY, Attorney for Appellant.

OPINION

WELBAUM, P.J.

{¶ 1} Defendant-Appellant, Leon Aaron Morris, appeals from his convictions and sentences on one count of having weapons under disability, a third-degree felony, and one count of carrying concealed weapons, a fourth-degree felony. After Morris pled guilty to the charges, the trial court imposed concurrent 12-month sentences.

{¶ 2} According to Morris, the trial court erred in failing to consider whether the offenses should be merged for purposes of sentencing. However, Morris did not object to the court's failure to merge his convictions, and a plain error analysis applies. Under applicable case law and the record, the offenses were committed with a separate animus, merger was not warranted, and no plain error occurred. Consequently, Morris's sole assignment of error will be overruled, and the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} The background of this matter involves two cases, Montgomery C.P. No. 2020 CR 03962, and Montgomery C.P. No. 2022 CR 01403. While only one case, Case No. 2022 CR 01403, is under consideration in this appeal, Morris filed a notice of appeal that included both case numbers.

{¶ 4} On March 30, 2021, an indictment was filed in Montgomery County Common Pleas Court and was designated as 2020 CR 03962. The indictment charged Morris with aggravated possession of drugs (methamphetamine) (bulk but less than five times bulk), a third-degree felony, and possession of cocaine (less than five grams), a fifth-degree felony. These crimes occurred on September 12, 2020.

{¶ 5} On August 20, 2021, Morris pled guilty to possession of cocaine, and the State agreed to dismiss the aggravated possession of drugs charge. After accepting the plea and finding Morris guilty, the trial court sentenced Morris to various community control sanctions ("CCSs"). The termination entry was filed on October 15, 2021, and the sanctions included: obtaining a substance abuse assessment and completion of any recommended treatment; refraining from use of illegal drugs or alcohol; and not being in any place or vehicle where Morris knew or had reasonable cause to know that any illegal drugs, stolen property, or firearms were present. The court also placed Morris on a "no breaks" status. Morris did not appeal from that judgment.

{¶ 6} On December 29, 2021, the court issued an entry and order for capias in Case No. 2020 CR 03962 after Morris failed to appear for an assessment as ordered. Less than one month later, on January 28, 2022, a police officer observed Morris's vehicle idling in a parking lot and discovered that the vehicle's owner (Morris) had outstanding warrants in Case No. 2020 CR 03962 and a 2021 municipal court case. See Presentence Investigation Report for 2022 CR 01403 ("PSI 2"), p. 2.^[1]

{¶ 7} When the officer approached the vehicle, Morris gave him the name and driver's license for another person (Morris's brother), but the BMV photo did not match Morris. At that point, the officer discovered Morris's real identity and arrested him. Id. An inventory search of the vehicle after the arrest revealed a loaded firearm, a bag of suspected crack cocaine, and two suspected bags of marijuana that were visible in the center console. Id. Later, a laboratory exam ination confirmed that the suspected drugs included 0.17 grams of cocaine. Id.

{¶ 8} On the day of the arrest, the State filed a notice of CCS revocation in Case No. 2020 CR 03962, alleging seven rule violations. Morris then appeared in court on February 17, 2022, and admitted having violated Rule Five (absconding). The trial court noted that it would not require revocation at that time. Instead, Morris would continue on community control, would go directly to the Nova program, and would be on electronic monitoring. Transcript of Proceedings, Case No. 2020 CR 03962 (Revocation Hearing, Feb. 17, 2022), p. 7 and 9. At that time, an indictment for the January 28, 2022 incident had not yet been filed. Id. at p. 10. Consistent with the hearing, the court filed an order modifying CCS in Case No. 2020 CR 03962 on February 22, 2022. Morris filed a pro se appeal from the court's order on March 2, 2022; the appeal was docketed as 2d Dist. Montgomery No. 29409, and counsel for the appeal was appointed on March 30, 2022. Morris later voluntarily dismissed the appeal. See State v. Morris, 2d Dist. Montgomery No. 29409 (Decision & Final Judgment Entry, Aug. 11, 2022).

{¶ 9} On February 24, 2022, Morris had entered residential treatment in Case No. 2020 CR 03962, but he left on March 3, 2022, against medical advice. PSI 2 at p. 5. On March 4, 2022, another capias was filed in Case No. 2020 CR 03962, noting that Morris had absconded. The State then filed a notice of CCS revocation on June 1, 2022, alleging violations of several rules.

{¶ 10} An indictment was then filed in Montgomery County Common Pleas Court on June 10, 2022, and was designated as Case No. 2022 CR 01403 (the case at issue in this appeal). The indictment charged Morris with four counts arising from the January 28, 2022 incident: (1) having weapons under disability (prior drug conviction), a third-degree felony; (2) carrying concealed weapons (loaded/ready at hand), a fourth-degree felony; (3) improper handling of a firearm in a motor vehicle (loaded/no license), a fourth-degree felony; and (4) possession of cocaine (less than five grams), a fifth-degree felony. By that time, Morris had been arrested and was in the Montgomery County Jail. On June 14, 2022, Morris appeared for arraignment in Case No. 2022 CR 01403 and pled not guilty.

{¶ 11} On July 7, 2022, Morris again appeared in court. This time, his appearance involved both the revocation in Case No. 2020 CR 03962 and the recent indictment in Case No. 2022 CR 01403, which the parties had agreed to resolve. Transcript of Proceedings (Revocation/Plea Hearing) ("Plea Tr.") (July 7, 2020), p. 7-8. During this hearing, the following exchange occurred:

Mr. Suellentrop [defense counsel]: Your Honor, I do believe that we have an agreement, a global agreement to resolve both the revocation matter that's set for this morning, as well as the 2022 new indictment. I have two plea forms in front of me on the 2022 case that would involve a plea of guilty to the Count I, weapons under disability, a third-degree felony, and Count II, carrying concealed weapons. Those would, as I understand them, they would merge. The Counts III and IV, improper handling and possession of cocaine, respectively, F4 and F5 would be dismissed. The State would agree that if prison would be imposed, it would be a cap of 18 months and that this particular sentence would also at least run concurrently or be the same cap in terms of a potential punishment sentence for the revocation matter, for which Mr. Morris would be entering an admission.

The Court: Is that the State's agreement?

Mr. Merrell: That's correct, Judge. Thank you.

The Court: I don't typically enter into agreements with regard to revocation, but I'll honor the State's agreement in this case, but I will make the decision regarding sentence.

Plea Tr. at p. 7-8.

{¶ 12} Following that discussion, the court conducted a Crim.R. 11(C) colloquy, including the fact that Morris's plea in Case No. 2022 CR 01403 would constitute an admission to rule violation number one listed in the notice of community control revocation for Case No. 2020 CR 03962. Id. at p. 9-18. After the colloquy, Morris signed the plea forms and pled guilty to Counts I and II of the indictment in Case No. 2022 CR 01403. Id. at p. 18-19. The court accepted the plea, concluded it had been knowingly, intelligently, and voluntarily made, and found Morris guilty of the charges. Id. at p. 19. The court also found Morris guilty of the revocation violation, ordered a PSI, and set both matters for disposition on July 21, 2022. Id. at p. 19-20.

{¶ 13} The sentencing hearing then took place as scheduled. Relevant to the current appeal, the court sentenced Morris to 12 months in prison for having a weapon under disability and to 12 months in prison for carrying a concealed weapon. Further, the court ordered the terms to be served concurrently. Transcript of Proceedings (Sentencing, Arraignment, Revocation/Sentencing), p. 13-14. The court did not mention merger, nor did the parties make any comment on that subject.

{¶ 14} On July 21, 2022, the trial court filed a termination entry in Case No. 2022 CR 01403, reflecting the 12-month concurrent sentences imposed during the sentencing hearing. The court also filed an entry in Case No. 2020 CR 03962 on July 22, 2022. The court found that the circumstances resulting in suspension did not warrant revocation of community control and restored Morris to active community control for up to five years. In the same entry, the court ordered Morris's probationary status terminated in view of his commitment on subsequent offenses, discharged Morris, suspended all financial obligations, dismissed the capias that had been issued, and closed the case. Entry Reinstatement/Withdrawal of Capias Issued on 3/4/2022/Termination of Community Control (Administrative) (Subsequent Offense) (July 22, 2022).

{¶ 15} On August 17, 2022, Morris filed a combined pro se notice of appeal from the judgment entries in both cases and the appeal was docketed as 2d Dist. Montgomery No. 29555. On the same day, Morris filed a second pro se notice...