State v. Rogers

• Decision Date: 21 March 2013
• Docket Number: 98589,98590.,98587,98584,98586,98585,98588,Nos. 98292,s. 98292
• Citation: 990 N.E.2d 1085
• Parties: STATE of Ohio, Plaintiff–Appellee v. Frank ROGERS, Jr., Defendant–Appellant.
• Court: Ohio Court of Appeals

990 N.E.2d 1085

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.

March 21, 2013.

[990 N.E.2d 1086]

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

Timothy J. McGinty, Cuyahoga County Prosecutor By: Milko Cecez Assistant County Prosecutor, Cleveland, OH, for Appellee.

Before: STEWART, A.J., JONES, J., and BLACKMON, J.

MELODY J. STEWART, A.J.

{¶ 1} Defendant-appellant Frank Rogers, Jr. pleaded guilty in eight different cases to counts of breaking and entering; receiving stolen property; possession of criminal tools; burglary; and drug possession. He complains on appeal that the 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.

I

{¶ 2} Rogers first argues that in CR–553806 and CR–545992, the counts in each case were allied offenses of similar import that should have merged for sentencing.

A

{¶ 3} When a defendant's conduct results in the commission of two or more “allied” offenses of similar import, that conduct can be charged separately, but the defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A). Offenses are “allied” and must be merged for sentencing if the defendant's conduct is such that a single act could lead to the commission of separately defined offenses, but those separate offenses were committed with a state of mind to commit only one act. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48–50.

{¶ 4} When reviewing sentencing errors, the Supreme Court has consistently held that a failure to object waives all but plain error. See, e.g., State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990) (allied offenses issue was forfeited on appeal because the defendant did not raise it in the trial court); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152 (failure to object to imposition of

[990 N.E.2d 1087]

consecutive sentences waives all but plain error); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, (failure to request merger of felony-murder/burglary specification and the witness-murder specification waived all but plain error); State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 11 (failure to raise Foster errors at sentencing constitutes a forfeiture of the issue necessitating application of the plain-error doctrine by reviewing courts).

{¶ 5} Rogers did not object to his sentence, so we review it for plain error. State v. Snuffer, 8th Dist. Nos. 96480, 96481, 96482, 96483, 2011-Ohio-6430, 2011 WL 6245774, ¶ 9;State v. Lindsey, 8th Dist. No. 96601, 2012-Ohio-804, 2012 WL 682134, ¶ 13.Crim.R. 52(B) allows us to correct “[p]lain errors or defects affecting substantial rights” that were not brought to the attention of the trial court. In State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, the Supreme Court set forth very strict limitations on what constitutes “plain” error:

We have previously explained that this rule “places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial”: (1) “there must be an error, i.e., a deviation from a legal rule,” (2) “the error must be plain,” which means that it “must be an ‘obvious' defect in the trial proceedings,” and (3) “the error must have affected ‘substantial rights,’ ” which means that “the trial court's error must have affected the outcome of the trial.” [ State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240]. Further, the decision to correct a plain error is discretionary and should be made “ ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” Id., 94 Ohio St.3d 21, 759 N.E.2d 1240, quoting State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.

Id. at ¶ 45 (footnote omitted).

{¶ 6} Some panels of this court have held that plain error in sentencing occurs when a sentencing judge fails to inquire into the possibility of an allied offenses sentencing issue, regardless of whether the issue is raised by the defendant. See, e.g., State v. Corrao, 8th Dist. No. 95167, 2011-Ohio-2517, 2011 WL 2112721, and State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833, 2012 WL 1454588. These panels rely on State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, which held that “imposition of multiple sentences for allied offenses of similar import is plain error.” Id. at ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96–102. In other words, the panels have found the court's failure to inquire into allied offenses at sentencing to be a form of per se error that requires reversal regardless of any showing of actual error or prejudice in sentencing.

{¶ 7} We readily agree that a failure to merge clearly allied offenses is plain error. But it is one thing to say that an error exists because it is plain on the record as it was in Underwood (the state conceded in that case that the offenses at issue were allied and should merge for sentencing), and another thing to say that we must reverse a case because we do not know if an error occurred. In Underwood, the error was plain on the record, so the court was required to merge allied offenses. And courts have found the existence of plain error in cases where the facts offered at trial show that offenses are allied and should merge. See, e.g., Johnson at ¶ 53–56. They have not, however, found plain error when there were no facts

[990 N.E.2d 1088]

in the record to show that an error occurred.

{¶ 8} It is not hyperbole to say that Baker and Corrao rest on the theory that plain error existed on nothing more than the possibility of error: in Baker, the court noted that “[t]he record is nearly devoid of any facts,” id. at ¶ 1; in Corrao, the court noted that “[t]he record of Corrao's plea does not contain the necessary details as to the timing and circumstances of the various criminal acts from which we can make such a determination.” Id. at ¶ 10. As we earlier noted, the Supreme Court has consistently applied a plain error analysis when the defendant has failed to object to a claimed sentencing error. 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. An error is plain only when it is “obvious” from the record. If there are no facts in the record or no concession to show that an error occurred, by definition, there is no plain error.

{¶ 9} The common thread in this case, Baker, and Corrao is that they are the product of guilty pleas. It is the very nature of a guilty plea that the facts are limited to those stated in the indictment. As we noted in Snuffer, “a guilty plea constitutes a full admission of factual guilt that obviates the need for a fact-finding trial on the charges.” Id. at ¶ 10, citing State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), paragraph one of the syllabus. By their very nature, guilty plea proceedings are necessarily devoid of facts to prove the underlying offenses. If a defendant who pleads guilty wishes to make an allied offenses argument at sentencing, that defendant has the responsibility in the first instance to ensure that the record...