State v. Warren, 71196

• Decision Date: 26 January 1998
• Docket Number: No. 71196,71196
• Citation: 125 Ohio App.3d 298,708 N.E.2d 288
• Parties: The STATE of Ohio, Appellee, v. WARREN, Appellant. *
• Court: Ohio Court of Appeals

Page 298

125 Ohio App.3d 298

708 N.E.2d 288

The STATE of Ohio, Appellee, v. WARREN, Appellant. ^*

No. 71196.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided Jan. 26, 1998.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Louis Brodnik, Assistant Prosecuting Attorney, Cleveland, for appellee.

James A. Draper, Cuyahoga County Public Defender, and Jean M. Gallagher, Assistant Public Defender, Cleveland, for appellant.

KARPINSKI, Judge.

Defendant appeals from the judgment of the trial court finding him guilty of theft. On appeal, defendant argues that (1) the indictment failed to charge the prior theft conviction as an element, (2) the court erred by not having the jury render a verdict on whether defendant had a prior conviction, (3) the court erred by giving defendant a harsher sentence because he exercised his right to trial, and (4) defendant's trial counsel was ineffective for not objecting to the trial court's instruction to the jury. Having found merit in the claim that the trial court improperly sentenced defendant based on his refusal to plead guilty, we affirm the judgment of the trial court and remand the matter for resentencing. The relevant facts follow.

Defendant was charged with robbery as a result of his attempt to steal four bags of shrimp from a Finast supermarket. Specifically, the indictment stated as follows:

"The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO, do find and present, that the above named Defendant(s), on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully and in attempting or committing a theft offense as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense against Finast did use or threaten the immediate use of force against another, to-wit: Patrol Officer Ford, Badge 157.

"SPECIFICATION ONE: (Peace Officer) "The Grand Jurors further find and specify that the victim of the offense is a peace officer, as defined in Section 2935.01 of the Revised Code.

"SPECIFICATION TWO: (Aggravated Felony)

"The Grand Jurors further find and specify that the offender has previously been convicted of or pleaded guilty to an aggravated felony, the said Jerrell Warren, with counsel, on or about the 28th day of January, 1992, in the Court of Common Pleas, Cuyahoga County, Ohio, Case No. CR 270815, having been convicted of the crime of Attempt [sic ] Robbery, in violation of Revised Code Section 2923.02/2911.02 of the State of Ohio.

"SPECIFICATION THREE: (Violence)

"The Grand Jurors further find and specify that the offender has previously been convicted of an offense of violence, the said Jerrell Warren, with counsel, on or about the 28th day of January, 1992, in the Court of Common Pleas, Cuyahoga County, Ohio, Case No. CR 270818, having been convicted of the crime of Attempt [sic ] Robbery in violation of Revised Code Section 2923.02/2911.02 of the State of Ohio."

Defendant pled not guilty to the indictment and the case proceeded to trial. At trial, Scott Ford, a Cleveland Police Officer employed at Finast in an off-duty capacity, testified as follows. Ford arrested defendant when he saw him taking plastic bags of shrimp out of his coat. Holding onto the back of defendant's pants, Ford was leading him away when he pushed the officer and moved away for a moment. Other police officers who arrived on the scene then took defendant to the police station.

Defendant took the stand and testified as follows. He admitted he stole four bags of shrimp. When he was handcuffed and walking toward the door, the officer called defendant "a stupid mother fucker" and, punching him several times, gave defendant a bloody nose. A sergeant, noticing this condition, called EMS, who told defendant he had a fractured nose. On cross-examination, defendant admitted to having three felony convictions in the last ten years, including attempted robbery.

The jury found defendant guilty of theft. Defendant timely appeals, raising five assignments of error.

"I. Mr. Warren was denied due process (Ohio Const. Art. I, Sect. 16 and U.S. Const. Amend. XIV) and improperly convicted of a crime without indictment by a grand jury (Ohio Const. Art. I, Sect. 10 and U.S. Const. Amend. V) when the trial court constructively amended robbery to theft, which is not a lesser included offense of robbery."

Defendant withdrew this assignment in his reply brief. Defendant's second assignment states as follows:

"II. Even if felony theft is a lesser included offense of robbery, a prior conviction for a theft offense is an element of felony theft and when the indictment failed to charge the prior conviction for a theft offense as an element, Mr. Warren's rights to due process were denied as he was convicted of an offense for which he was not indicted."

Defendant was indicted with a violation of R.C. 2911.02, robbery. The trial judge instructed the jury on the lesser included offense of theft. The jury returned a guilty verdict on theft. Under R.C. 2913.02(B), a theft violation is increased from a first-degree misdemeanor to a fourth-degree felony if the offender has previously been convicted of a theft offense. In this assignment, defendant argues that the indictment was defective because the prior conviction, which increased the degree of the offense for which defendant was convicted, was listed as a specification and not charged as an element of the offense. Defendant argues that under R.C. 2945.75, if the presence of an element makes the offense one of a more serious degree, the indictment shall allege the additional element. Defendant contends that it is not sufficient for the prior conviction to appear in the specification. Because of the circumstances of this case, we do not agree.

The purpose of the indictment is to put the defendant on notice of the charges so that he may prepare a defense. State v. Cook (1987), 35 Ohio App.3d 20, 519 N.E.2d 419. In the case at bar, defense counsel was aware that the prior conviction would enhance the crime to a felony. At trial defense counsel stated as follows:

"THE COURT: First of all, I'm going to state a stipulation in this particular case. The defendant has been indicted in count 1 with a specification 2, which references a prior aggravated felony conviction, if I'm not mistaken. Mr. Luskin has stipulated--has requested the Court bifurcate that issue and is prepared at this time to stipulate as to specification number 2.

"Is that correct Mr. Luskin?

"MR. LUSKIN: That is correct, your Honor. We had entered into the stipulation prior to and the Court had inquired earlier, with respect to the bifurcation, we stipulate that on or about January 28, 1992 in the Court of Common Pleas in Cuyahoga County in Case No. CR 270815 that my client, Jerrell Warren, had, in fact, been convicted of attempted robbery in violation of Ohio Revised Code Section 2923.02 and 2911.02, all of the Ohio Revised Code. Attempted robbery is defined within the Revised Code as being a theft offense in 2901.01 and we would stipulate that this attempted robbery was, in fact, a prior theft.

"We do this for the purposes of the stipulation so that the Court would instruct on a theft offense, and we realize that would escalate it to a felony of the fourth degree." (Emphasis added.)

Defendant, therefore, was properly on notice. In State v. Davis (Sept. 17, 1992), Cuyahoga App. No. 61076, unreported, 1992 WL 227918, this court held, at 3, that "the including of a prior conviction specification in an indictment places a defendant on notice that if he is convicted of a lesser included offense, the prior conviction specification may be applied to the conviction." Although the Davis case did not involve a prior conviction changing the degree of the offense, the rationale still applies. The indictment in the case at bar is not defective merely because the prior conviction was listed as a specification and not listed as an element. What is important is that defendant was placed on notice. Defendant's second assignment is overruled.

The third assignment states as follows:

"III. Even if felony theft is a lesser included offense of robbery and the indictment charged the prior conviction for a theft offense as an element, when the jury did not render a verdict on that element and Mr. Warren did not waive his right to a jury, Mr. Warren's rights to due process and a jury trial were denied."

In this assignment, defendant argues that his penalty was enhanced to a felony improperly because the jury never found he had a prior theft conviction. Although it is true that the jury never made a specific finding on the prior conviction, this assignment is meritless because defendant specifically stipulated to the prior conviction, as is illustrated in the following comments by defendant's counsel:

"MR. LUSKIN: [W]e stipulate that on or about January 28, 1992 in the Court of Common Pleas in Cuyahoga County in Case Nu. CR 270815 that my client, Jerrell Warren, had, in fact, been convicted of attempted robbery * * *. [A]nd we would stipulate that this attempted robbery was, in fact, a prior theft.

"[A]nd we realize that would escalate it to a felony of the fourth degree."

Because defendant stipulated to the prior conviction, it was not necessary, therefore, for the jury to make that determination. Defendant's third assignment is overruled.

Defendant's fourth assignment states as follows:

"IV. The trial court abused its discretion when it was improperly involved in plea bargaining, punished Mr. Warren for refusing to plead to the indictment and for exercising his right to a trial (and specifically, to a jury trial), and effectively sentenced Mr. Warren on a charge on which he was acquitted."

In this assignment, defendant argues that the trial court punished him for exercising his right to a...