State v. Rogers

• Decision Date: 25 July 2013
• Docket Number: 98590.,98586,98584,98585,98587,98589,98588,Nos. 98292,s. 98292
• Citation: 994 N.E.2d 499
• Parties: STATE of Ohio, Plaintiff–Appellee v. Frank ROGERS, Jr., Defendant–Appellant.
• Court: Ohio Court of Appeals

994 N.E.2d 499

STATE of Ohio, Plaintiff–Appellee

v.Frank ROGERS, Jr., Defendant–Appellant.

Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, 98590.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 25, 2013.

Ruth R. Fischbein–Cohen, Cleveland, OH, for Appellant.

Timothy J. McGinty, Cuyahoga County Prosecutor By: Milko Cecez, Kristen L. Sobieski, Assistant Prosecuting Attorneys, Cleveland, OH, for Appellee.

Robert L. Tobik, Cuyahoga County Public Defender By: John T. Martin, Cullen Sweeney, Assistant Public Defenders, Cleveland, OH, for Amicus Curiae.

Before: The En Banc Court

SEAN C. GALLAGHER, J.

{¶ 1} Defendant-appellant Frank Rogers, Jr., pleaded guilty to a series of charges in eight separate cases. He asserts on appeal that the trial court erred by failing to merge certain parts of the sentences in two of the cases, that the court failed to compute jail-time credit, and that the court failed to advise him of the consequences of violating postrelease control.

{¶ 2} Pursuant to App.R. 26 and Loc.App.R. 26, this court determined that a conflict existed between the original panel's decision in this case, released as State v. Rogers, 2013-Ohio-1027, 990 N.E.2d 1085, and previous decisions by this court involving a number of issues related to allied offenses of similar import.

{¶ 3} These issues include determining the duty of a trial court judge under R.C. 2941.25 where a facial question of allied offenses of similar import exists but the trial court fails to inquire; determining the effect of a defendant's failure to raise the allied offenses of similar import issue in the trial court and whether that failure constitutes a valid waiver or forfeiture of the defendant's constitutional right against double jeopardy; determining the effect of a prosecutor's failure to put facts on the record detailing a defendant's conduct in relation to possible allied offenses of similar import at the trial court level; determining the impact of a silent or inconclusive record from the trial court that fails to detail the offender's actual conduct involving allied offenses of similar import; determining the effect of a guilty plea to multiple charges on the allied offenses of similar import analysis; and determining the effect of the absence of a stipulation to the allied offenses of similar import question.

{¶ 4} Accordingly, we sua sponte granted en banc consideration in this matter and convened an en banc conference in accordance with App.R. 26(A)(2), Loc. App.R. 26(D), and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672.

The Allied Offenses of Similar Import Claim in Rogers

{¶ 5} Rogers argues that his convictions in Cuyahoga C.P. No. CR–553806 on two counts of receiving stolen property were allied offenses of similar import and should have been merged at sentencing. Likewise, he asserts his convictions in Cuyahoga C.P. No. CR–545992 on two additional counts of receiving stolen property and one count of possession of criminal tools were also allied offenses of similar import and should have merged at sentencing.

Double Jeopardy

{¶ 6} At the outset, we revisit the significance of the allied offenses of similar import determination. The Fifth Amendment's Double Jeopardy Clause provides a criminal defendant with three protections: “ ‘[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

{¶ 7} In multiple-punishment cases, “[w]ith respect to cumulative sentences imposed in a single trial, 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 question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended * * * to impose multiple punishments, imposition of such sentences does not violate the Constitution.

Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

Ohio and Allied Offenses of Similar Import

{¶ 8} Ohio's criminal statutes generally do not authorize multiple punishments for the same conduct. In 1974, the Ohio legislature enacted R.C. 2941.25. The legislation codified the protections of the Double Jeopardy Clauses of the Ohio and United States Constitutions, which prohibit multiple punishments for the same offense. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923.

R.C. 2941.25. Multiple counts

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of dissimilarimport, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 9} Historically, Ohio courts struggled interpreting the language in R.C. 2941.25. Likewise, determining the type of conduct by the offender that constituted either separate offenses or allied offenses of similar import was equally confusing. Starting in 1975, the Supreme Court of Ohio issued a series of decisions that over the years were met with mixed reviews on how best to address the constitutional protections against multiple punishments. See generally State v. Ikner, 44 Ohio St.2d 132, 339 N.E.2d 633 (1975), adopting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Logan, 60 Ohio St.2d 126, 128, 397 N.E.2d 1345 (1979); State v. Blankenship, 38 Ohio St.3d 116, 526 N.E.2d 816 (1988); State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999); State v. Fears, 86 Ohio St.3d 329, 715 N.E.2d 136 (1999); State v. Adams, 103 Ohio St.3d 508, 2004–Ohio–5845, 817 N.E.2d 29;State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845;State v. Cooper, 104 Ohio St.3d 293, 2004-Ohio-6553, 819 N.E.2d 657;State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181;State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149;State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154;State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882;State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889.

{¶ 10} These cases were followed by a series of decisions that changed the landscape of the merger analysis. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923 (a trial court commits plain error when it fails to merge allied offenses of similar import); State v. Johnson 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 (R.C. 2941.25 instructs courts to look at the defendant's conduct when evaluating whether his offenses are allied); and State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245 (an appellate court should apply a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination).

The Underwood, Johnson, and Williams Decisions

{¶ 11} Prior to Underwood, many trial courts simply imposed concurrent sentences where the merger analysis was too confusing or unworkable. Underwood made it clear that allied offenses of similar import must be merged at sentencing or the sentence is deemed contrary to law. Underwood also made clear that even a defendant's plea to multiple counts does not affect the court's duty to merge allied counts at sentencing. The duty is mandatory, not discretionary. Underwood at ¶ 26. Significantly, Underwood determined that R.C. 2953.08(D) does not bar appellate review of a sentence involving merger even though it was jointly recommended by the parties and imposed by the court. Id. at ¶ 33.

{¶ 12} Johnson then reestablished the focus of the merger analysis on the plain language in the statute. “In determining whether offenses merge, we consider the defendant's conduct.” Johnson at ¶ 44. “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ ” Id. at ¶ 49, quoting Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting). If both questions are answered affirmatively, then the offenses are allied offenses of similar import and will be merged. Johnson at ¶ 50.

{¶ 13} In Johnson, then Justice O'Connor,¹ in a separate concurring opinion, defined the term “allied offenses of similar import”:

In practice, allied offenses of similar import are simply multiple offenses that arise out of the same criminal conduct and are similar but not identical in the significance of the criminal wrongs committed and the resulting harm. R.C. 2941.25 permits a defendant to be charged with, and tried for, multiple offenses based on the same conduct but permits only one conviction based on conduct that results in similar criminal wrongs that have similar consequences.

Id. at ¶ 64 (O'Connor, J., concurring).

{¶ 14} Justice O'Connor further defined the distinction between the phrases “allied offenses” and “allied offenses of similar import.” “[O]ffenses are ‘allied’ when their elements align to such a degree that commission of one offense would probably result in the commission of the other offense. Offenses are of ‘similar...