State v. Rogers, s. 2013–1255

• Court: United States State Supreme Court of Ohio
• Writing for the Court: O'DONNELL, J.
• Citation: 143 Ohio St.3d 385,38 N.E.3d 860,2015 Ohio 2459
• Parties: The STATE of Ohio, Appellant and Cross–Appellee, v. ROGERS, Appellee and Cross–Appellant.
• Docket Number: 2013–1501.,Nos. 2013–1255,s. 2013–1255
• Decision Date: 24 June 2015

143 Ohio St.3d 385
38 N.E.3d 860
2015 Ohio 2459

The STATE of Ohio, Appellant and Cross–Appellee,
v.
ROGERS, Appellee and Cross–Appellant.

Nos. 2013–1255
2013–1501.

Supreme Court of Ohio.

Submitted June 25, 2014.
Decided June 24, 2015.

38 N.E.3d 861

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Adam M. Chaloupka, Assistant Prosecuting Attorney, for appellant and cross-appellee.

Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellee and cross-appellant.

O'DONNELL, J.

143 Ohio St.3d 386

{¶ 1} The Eighth District Court of Appeals, sitting en banc, concluded that "where it is clear from a facial review of the charges that the offenses may be allied, even when facts necessary to determine the conduct of the offender are missing," 2013-Ohio-3235, 994 N.E.2d 499, ¶ 24 (8th Dist.), a trial court has "a duty to inquire and determine under R.C. 2941.25 whether those offenses should merge" for

38 N.E.3d 862

sentencing purposes, id. at ¶ 63. The en banc court recognized that its decision conflicted with State v. Wallace, 6th Dist. Wood No. WD–11–031, 2012-Ohio-2675, 2012 WL 2196290, and certified the following two issues for our resolution:

(1) Whether a trial court commits plain error where multiple offenses present a facial question of allied offenses of similar import, yet the trial court fails to determine whether those offenses should merge under R.C. 2941.25 at sentencing; and

(2) Whether the failure of a defendant to raise an allied-offense issue or to object in the trial court can constitute an effective waiver or forfeiture of a defendant's constitutional rights against double jeopardy and a bar to appellate review of the issue when the record is silent on the defendant's conduct.

The en banc court subsequently recognized that its decision also conflicted with the decision of the Ninth District in State v. Wilson, 21 Ohio App.3d 171, 486 N.E.2d 1242 (9th Dist.1985), and certified a third issue for our review:

[3] Whether an offender who receives, retains, or disposes of the property of two or more other persons in a single transaction may be convicted and sentenced for more than one count of receiving stolen property?

{¶ 2} We determined that the conflicts exist, and the parties have briefed the issues.

143 Ohio St.3d 387

{¶ 3} We answer the first two questions in the negative. An accused's failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice. Accordingly, an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; absent that showing, the accused cannot demonstrate that the trial court's failure to inquire whether the convictions merge for purposes of sentencing was plain error.

{¶ 4} We answer the third question in the affirmative. As we recently decided in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, allied offenses are not offenses of similar import if the offender's conduct constitutes offenses against different victims or if the harm that results from each offense is separate and identifiable.

{¶ 5} In this case, it is undisputed that Frank Rogers failed to object to his sentences in the trial court; thus, he forfeited appellate review of the argument that he had been sentenced for allied offenses of similar import. And because he has failed to demonstrate that he has, in fact, been sentenced for allied offenses of similar import committed with the same conduct and without separate animus, his claim that the trial court committed plain error fails.

{¶ 6} We therefore reverse the judgment of the court of appeals that is based on its holding that a trial court has a duty to inquire about allied offenses if the defense fails to raise it at sentencing, and we reinstate the sentences imposed by the trial court.

Facts and Procedural History

{¶ 7} The Cuyahoga County Grand Jury returned indictments against Rogers alleging offenses in eight cases. This appeal

38 N.E.3d 863

concerns only the sentences imposed by the trial court in Cuyahoga County Court of Common Pleas case Nos. CR–545992 and CR–553806.

{¶ 8} On January 5, 2011, Rogers fled from Cleveland police officers who attempted a traffic stop. Upon his arrest and subsequent search of his van, the officers discovered four tires and rims, which had been taken from a stolen Ford F–150 pickup truck found sitting on cinder blocks. The grand jury indicted Rogers in case No. CR–545992 on two counts of receiving stolen property ("RSP")—one count for the truck and the other for the tires and rims—and one count of possessing criminal tools ("PCT")—a jack, a tow chain, and a lug-nut wrench.

{¶ 9} While those charges were pending, officers subsequently rearrested Rogers for selling stolen jewelry and other items to a pawn shop.

143 Ohio St.3d 388

A grand jury indicted Rogers in case No. CR–553806 for two additional counts of RSP involving two separate victims.

{¶ 10} Rogers entered guilty pleas to these counts. In case No. CR–545992, the court sentenced him to a term of 12 months in prison for receiving the stolen truck, six months for receiving the tires and rims, and an additional six months for possessing the criminal tools. In case No. CR–553806, the court sentenced Rogers to a term of 12 months for receiving the stolen property belonging to the first victim, and six months for receiving the property belonging to the second victim. The trial court then imposed sentences for offenses in the other six cases, and it ordered all sentences to be served consecutively, for an aggregate eight-year term of imprisonment. Rogers did not assert that he had been convicted of allied offenses of similar import, nor did he object to the sentence imposed by the trial court.

{¶ 11} On appeal, Rogers argued for the first time that some of his convictions should have merged for sentencing. The appellate court applied a plain error analysis, rejected the argument that the trial court had errantly imposed sentences for allied offenses of similar import, and affirmed Rogers's convictions and sentences, stating that it could not find plain error when it was not clear from the record whether an error had occurred. 2013-Ohio-1027, 990 N.E.2d 1085, ¶ 5, 17, 19, 21 (8th Dist.). The court stated, "There is no plausible interpretation of the plain error doctrine that would allow an appellate court to find error simply because there are no facts to show whether any error occurred." Id. at ¶ 8.

{¶ 12} The appellate court then sua sponte granted en banc consideration. The en banc court upheld the separate sentences imposed in the case involving the stolen jewelry, explaining that the existence of two different victims established a separate animus for each of the two convictions. The court concluded, however, that the fact that the two RSP offenses related to the truck and the tires and rims involved the same victim and the fact that the PCT offense for having tools to remove the wheels from a vehicle had occurred on the same day as the RSP offenses suggested that the offenses may be allied, and it held that the trial court had committed plain error by failing to inquire into or address the allied-offense question. 2013-Ohio-3235, 994 N.E.2d 499, ¶ 24, 25, 33, 34 (8th Dist.). The opinion of the en banc court states:

Where a facial question of allied offenses of similar import presents itself, a trial court judge has a duty to inquire and determine under R.C. 2941.25 whether those offenses should merge. A trial court commits

38 N.E.3d 864

plain error in failing to inquire and determine whether such offenses are allied offenses of similar import.

143 Ohio St.3d 389

Id. at ¶ 63. The en banc court further recognized that it was "unable to determine if these offenses were allied offenses of similar import," id. at ¶ 25, but it nonetheless reversed the judgment and remanded the matter to the trial court "to establish the underlying facts of Rogers's conduct in CR–545992 and for the trial court to determine whether the subject crimes should merge for sentencing purposes," id. at ¶ 64.

{¶ 13} The en banc court certified conflicts between its decision and the Sixth District Court of Appeals' decision in State v. Wallace, 2012-Ohio-2675, 2012 WL 2196290, and the Ninth District Court of Appeals' decision in State v. Wilson, 21 Ohio App.3d 171, 486 N.E.2d 1242. We determined that the conflicts existed and sua sponte consolidated the cases. 137 Ohio St.3d 1456, 2013-Ohio-4657, 1 N.E.3d 423 ; 137 Ohio St.3d 1458, 2013-Ohio-4657, 1 N.E.3d 424.

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