Ninth Appellate District Decisions Released on 3.29.2013

The Ninth District Court of Appeals released 12 opinions on Friday, March 29, 2013. There were two decisions from Medina County appeals, five decisions from Lorain County appeals, and five decisions from Summit County appeals.

The decisions released from Medina County appeals were:

State v. Evans, 2013-Ohio-1216, which involved a petition for post-conviction relief. Mr. Evans appealed from a denial of his petition for post-conviction relief by the trial court. In his petition he claimed that his trial counsel was ineffective in failing to call a witness, in failing to use information to impeach the State's witnesses, and in failing to inform him of plea negotiations. At a hearing scheduled on his petition, Mr. Evans failed to produce witnesses that he claimed would support his allegations. The trial court overruled his petition for post-conviction relief. The Court of Appeals applied an abuse of discretion standard to the appeal and affirmed the trial court's ruling.

State v. Schmolz, 2013-Ohio-1220, which involved the issue of whether the trial court erred by allowing the State to amend the indictment during trial. The indictment charged Ms. Schmolz with receiving stolen property. The property was described as a "license plate". During trial the State established that the property was a "temporary license placard". Both kinds of property are covered by R.C. 2913.71(C), which makes theft offenses involving such property felonies of the fifth degree. The Court of Appeals found that the amendment did not change the identity of the offense, which was receiving stolen property, nor the penalty, since theft offenses involving both "license plates" and "temporary license placards" are fifth degree felonies. Therefore the Court of Appeals affirmed Ms. Schmolz's conviction.

The decisions released from Lorain County appeals were:

Billi v. Moyse-Morgan Ents. Inc., 2013-Ohio-1214, which involved an appeal from the granting of a motion for summary judgment. The Plaintiff, who was the appellant, alleged two claims of negligence against the Defendants, who were owners and employees of a bar. The first claim was for negligence and the second was for a violation of Ohio's Dram Shop Act. The Court of Appeals affirmed the trial court's granting of the motion for summary judgment on the negligence claim, but reversed the trial court's granting of the summary judgment motion on the Dram Shop Act claim.

Gargasz v. Lorain Cty., 2013-Ohio-1218, concerned an appeal from a declaratory judgment. The Court of Appeals reversed the trial court finding that the trial court's judgment entry did not declare the "rights and responsibilities of the parties". Since the trial court's entry did not make such declarations, the judgment was not a final and appealable order. The trial court's judgment entry was an entry that stated that it was granting the Defendants' motion for summary judgment and denying the Plaintiffs' motion for summary judgment. The Court of Appeals held that such an entry did not comply with R.C. R.C. 2721.02(A) which expressly provides that a “declaration has the effect of a final judgment or decree[]” and that a declaration is “either affirmative or negative in form[.]”

Strickler v. First Ohio Banc & Lending, Inc.,2013-Ohio-1221, which was an interlocutory appeal from an order by the Lorain County Common Pleas Court granting class certification. The Court of Appeals affirmed the class certification made by the Lorain County Common Pleas Court. The class action is based on allegations that First Ohio had failed to provide buyers with disclosure statements that complied with R.C. 1322.062. The class action is directed at First Banc and at the sureties who had issued mortgage broker bonds to First Ohio and its employees. The decision contains a discussion on what the role of a trial court is in determining whether to grant class certification.

Young v. Conry, 2013-Ohio-1223 which was an appeal from a decision of the Lorain County Probate Court granting summary judgment to the defendants in a will contest case. The appellants argued that the Probate Court abused its discretion by enforcing a discovery cut-off date and by granting the summary judgment motion. The Court of Appeals affirmed the actions of the Probate Court regarding both allegations of error.

State v. Zepeda-Ramires, 2013-Ohio-1224 which was an appeal from an order of the Lorain County Common Pleas Court requiring payment of a forfeited bond issued by a bonding company in a criminal case. The Court of Appeals noted that the appellants were objecting to what the appellants called the trial court's failure to comply with the statutory requirements for bond forfeiture. The Court of Appeals also noted that the appellants failed to attend hearings that were scheduled on the State's motion to revoke bond and declare the bond forfeited. Since the appellants could have raised these issues at those hearings, the Court of Appeals considered those issues were forfeited on appeal. If an appellate issue is forfeited, then the Court of Appeals can only review under a "plain error" standard, but, in this case, the appellants did not allege "plain error." Therefore the trial court was affirmed.

The decisions released from Summit County were:

Akron v. State Emp. Relations Bd., 2013-Ohio-1213, which was an appeal from a decision of the Summit County Court of Common Pleas that the City of Akron engaged in an unfair labor practice in its dealings with the Fraternal Order of Police during labor negotiations. The Order represents Akron's police officers. Originally the allegation was heard by the State Employment Relation Board, S.E.R.B., which found that the City had engaged in an unfair labor practice. The Common Pleas Court affirmed the order of the S.E.R.B. on an administrative appeal. The Court of Appeals affirmed the Common Pleas Court.

State v. Castagnola, 2013-Ohio-1215, was an appeal from Mr. Castagnola's convictions for multiple offenses in two separate cases. The offenses were described as "criminal damaging, vandalism, criminal trespass, possession of criminal tools, two counts of retaliation, and multiple forfeiture specifications" in one case and "pandering sexually oriented matter involving a minor" in the other case. He was convicted by a jury in the first case and by the trial court in the second case. On appeal he alleged error by the trial court in not suppressing a search and seizure of his computer, by convicting him of the pandering charge on insufficient evidence, by not merging offense, and by imposing consecutive sentences without making required findings. The Court of Appeals affirmed the trial court on the first two assignments of error, reversed and remanded on the merger issue, and, because his sentence may change following the merger, did not address the assignment of error involving the consecutive sentences.

Flaughers v. Thomas, 2013-Ohio-1217 reversed a decision of the Summit County Probate Court that entered a judgment in favor of the defendants/appellees following a jury trial. The issue on appeal involved whether the trial court erred by not granting a motion for summary judgment filed by the plaintiff-appellant. The appellant argued that the United States Bankruptcy Court had determined that the appellees had embezzled assets from the decedent's estate. The appellant had been appointed the administrator of the estate. The Court of Appeals found that the issue of whether the appellees had embezzled or concealed the estate's assets had been determined by the Bankruptcy Court and that determination was res judicata on the Probate Court. The Court of Appeals held that while the issue of liability had been determined, the issue of damages was not reached by the Bankruptcy Court. It remanded the case to the Probate Court for a determination on that issue.

State v. Lamp, 2013-Ohio-1219 reversed a decision of the Summit County Common Pleas Court which had granted the defendant's motion to dismiss the case on grounds of double jeopardy. Mr. Lamp had been charged with breaking and entering in the Common Pleas Court, a fifth degree felony, and with theft in a municipal court, a first degree misdemeanor. After pleading guilty to the theft charge, he filed the motion for dismissal on double jeopardy grounds. The trial court granted the motion, but the Court of Appeals reversed. The appellate court found that when determining whether there is a double jeopardy violation for successive prosecutions, the trial court must examine the elements of each offense. In this case the trial court did not conduct an examination of the elements of each offense, but focused on whether there was a merger of the two offenses. The Court of Appeals reversed and remanded so that the trial court could conduct an examination of the elements to determine if either statute required proof of a fact that the other statute did not require.

Rivers v. Cashland, 2013-Ohio-1225 was an appeal from a decision of the Summit County Court of Common Pleas granting summary judgment on several claims raised by the plaintiff-appellant. The claims included disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, retaliation for making a discrimination complaint, negligent supervision and training, and intentional infliction of emotional distress. The Court of Appeals reversed the trial court on the claims regarding disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, and negligent supervision and training. It affirmed the trial court on the granting of summary judgment on the issues of retaliation for making a discrimination claim and for intentional infliction of emotional distress. The case was then remanded for further proceedings.

Entry Correcting Clerical Omission in Court's Journal Does Not Provide Defendant With New Right to Appeal

Court Holds That Correction Does Not Create a New 'Final Order' In Case

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

State v. Lester, Slip Opinion No. 2011-Ohio-5204.
Auglaize App. No. 2-10-20. Judgment affirmed.
O'Connor, C.J., and Pfeifer and McGee Brown, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., concur in part and dissent in part.
Lanzinger, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-5204.pdf

(Oct. 13, 2011) The Supreme Court of Ohio ruled today that when a trial court makes a “nunc pro tunc” (now for then) entry in its journal to correct a clerical omission in a prior judgment entry recording a criminal conviction, the correcting entry is not a new “final order” in the case that triggers a new right of appeal by the defendant.

In arriving at its decision, the Court modified its 2008 holding in State v. Baker and held that a judgment of conviction is a final order subject to appeal when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating that the judgment has been entered in the court’s journal.

The Court’s 4-3 majority opinion, authored by Justice Robert R. Cupp, affirmed a ruling by the 3rd District Court of Appeals.

The case involved Steven Lester of Auglaize County, who was convicted of multiple offenses in a 2006 jury trial and sentenced to a prison term to be followed by a term of postrelease control. In its journal entry recording that judgment, the trial court listed the offenses for which Lester had been convicted and the sentence imposed, but did not indicate whether the convictions were based on a guilty or no-contest plea, findings after a bench trial, or a verdict after a jury trial.

Lester appealed. The 3rd District Court of Appeals vacated part of his sentence because of an error in the postrelease control portion of the sentence. On remand, the trial court imposed the same prison term it had previously imposed and corrected the postrelease control portion of the sentence. In its revised sentencing entry, the court listed the offenses for which Lester had been convicted and the corrected sentence, but again did not indicate what type of court proceeding had resulted in his convictions. Lester filed a new appeal. The court of appeals affirmed the trial court’s sentence.

In April 2010 the trial court, on its own initiative, made a nunc pro tunc entry in its journal adding the information that Lester’s convictions were “pursuant to a verdict at Jury Trial returned on May 16, 2006.”

Lester filed a new notice of appeal, asserting that the insertion of the nunc pro tunc correcting entry in the court’s journal had created a “final order” in his case that triggered a new right of appeal. Prior to briefing, the 3rd District dismissed the appeal based on a finding that, because the nunc pro tunc entry had been made for the sole purpose of correcting a clerical omission to make the trial court’s journal accurately reflect what had actually occurred at trial, the correcting entry did not constitute a final order from which Lester had a right of appeal. Lester sought Supreme Court review of the case, and obtained certification of a conflict between the 3rd District’s ruling in his case and a 2010 decision of the 6th District, State v. Lampkin. The Supreme Court recognized the conflict and accepted Lester’s discretionary appeal.

Writing for the majority in today’s decision, Justice Cupp cited the requirement in Ohio Criminal Rule 32(C) that “(a) judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence.” He noted that in State v. Baker, a 2008 decision applying Crim.R. 32(C), the Court included language suggesting that a judgment entry should include “the manner of conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.”

“(T)his foregoing sentence appears to have created confusion and generated litigation regarding whether a trial court’s inadvertent omission of a defendant’s ‘manner of conviction’ affects the finality of a judgment entry of conviction,” wrote Justice Cupp.

“(W)e begin by observing that the purpose of Crim.R. 32(C) is to ensure that a defendant is on notice concerning when a final judgment has been entered and the time for filing an appeal has begun to run. ... We further observe that Crim.R. 32(C) clearly specifies the substantive requirements that must be included within a judgment entry of conviction to make it final for purposes of appeal and that the rule states that those requirements ‘shall’ be included in the judgment entry of conviction. These requirements are the fact of the conviction, the sentence, the judge’s signature, and the entry on the journal by the clerk. All of these requirements relate to the essence of the act of entering a judgment of conviction and are a matter of substance, and their inclusion in the judgment entry of conviction is therefore required. Without these substantive provisions, the judgment entry of conviction cannot be a final order subject to appeal under R.C. 2505.02. A judgment entry of conviction that includes the substantive provisions places a defendant on notice that a final judgment has been entered and the time for the filing of any appeal has begun.

“In contrast, when the substantive provisions of Crim.R. 32(C) are contained in the judgment of conviction, the trial court’s omission of how the defendant’s conviction was effected, i.e., the ‘manner of conviction,’ does not prevent the judgment of conviction from being an order that is final and subject to appeal. Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of conviction as a matter of substance, but it does require the judgment entry of conviction to recite the manner of conviction as a matter of form. In this regard, the identification of the particular method by which a defendant was convicted is merely a matter of orderly procedure rather than of substance. A guilty plea, a no-contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial explains how the fact of a conviction was effected. Consequently, the finality of a judgment entry of conviction is not affected by a trial court’s failure to include a provision that indicates the manner by which the conviction was effected, because that language is required by Crim.R. 32(C) only as a matter of form, provided the entry includes all the substantive provisions of Crim.R. 32(C).”

Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, and Evelyn Lundberg Stratton.

Justice Terrence O’Donnell entered a separate opinion, joined by Justice Yvette McGee Brown, in which he concurred with the Court’s holding that a judgment entry of conviction qualifies as a final order under Crim.R. 32(C) without stating the manner of a defendant’s conviction. He disagreed, however, with the majority’s further holding that Crim.R. 32(C) requires that such entries include the manner of a defendant’s conviction as a non-substantive “matter of form.”

Justice O’Donnell wrote: “The plain language of Crim.R. 32(C) requires only that ‘[a] judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence’; it does not direct a sentencing court to specify the manner of conviction. Rather, our decision in State v. Baker .... inadvertently added the requirement to specify the manner of conviction to Crim.R. 32(C). The majority makes an effort to sidestep this problem but unnecessarily complicates and compounds the error introduced in Baker by retaining a duty on the part of the sentencing court to specify the manner of conviction as a formal requirement. In my view, we should strike that part of Baker requiring sentencing courts to indicate the manner of conviction in the judgment of conviction and bring an end to the needless and meaningless litigation that ithas spawned, requiring appeals and rehearings all over the state.”

Justice Judith Ann Lanzinger entered a separate dissenting opinion in which she wrote: “Crim.R. 32(C) states what a judge shall do to enter a judgment of conviction that is subject to appeal. (In Baker) (w)e explained this rule and held pursuant to its clear wording: ‘A judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.’ ... Lester’s sentencing entry did not contain the first required element. His judgment entry did not state the manner of his conviction − whether obtained through ‘a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.’”

“ ... (U)nless Crim.R. 32(C) is amended to change ‘the plea, the verdict, or findings, upon which each conviction is based’ to ‘the fact of the conviction,’ the majority’s conclusion that the current phrase is a merely ‘a matter of form’ contradicts the rule. Plainly, it is as much of a requirement as the other elements. Either Crim.R. 32(C) means what it says or it does not.”

Contacts
Amy Otley Beckett: 419.739.6785, for the state and Auglaize County prosecutor's office.

Alexandra T. Schimmer, 614.995.2273, for the Ohio Attorney General.

Jon W. Oebker, 216.696.4884, for Stephen Lester.

Preserving the Record & Motions in Limine

By Judge James L. Kimbler

A recent decision from the Court of Appeals for the Ninth Appellate District illustrates two important points. The first is the need to preserve the record when trying a case. The second is that pre-trial rulings on motions in limine are not reviewable on appeal unless there is an objection made when the ruling is implemented during the trial itself.

The issue that the Lorain County Court of Appeals faced was whether or not a defendant in a personal injury case could introduce evidence of the amount of the plaintiff's medical bills that were "written off" by the plaintiff's medical insurers. The Court of Appeals put the issue this way in paragraph 3 of the opinion:

"Defendant filed a notice of her intent to introduce medical billing information, specifically evidence of medical bills which were “written off,” for the jury’s consideration in determining the fair and reasonable value of medical expenses incurred by Plaintiff. Defendant argued that both the Ohio Supreme Court’s decision in Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, and R.C. 2315.20 support the admission of such evidence for that purpose. Plaintiff filed a motion in limine to exclude collateral source evidence, specifically the amounts of contractual write-offs or adjustments. Plaintiff argued that Defendant’s reliance on the Robinson decision is misplaced because the provisions of R.C. 2315.20 are controlling in a case where a health insurance company who paid Plaintiff’s medical bills has a contractual right of subrogation. On June 1, 2009, the trial court granted Plaintiff’s motion in limine to exclude collateral source evidence for the reason that Plaintiff’s cause of action accrued after the effective date of R.C. 2315.20, rendering the statute controlling. The trial court ordered that “[D]efendant and defense counsel are ordered not to inquire, reference or mention at any phase of the trial any thing to suggest that the medical bill amounts should be reduced by any contractual write-offs or adjustments to medical bills.”"

At trial, the jury returned a verdict of $34,809.00 in economic damages, and $50,000.00 in noneconomic damages, for a total of $84,809.00. After the verdict was reduced to a judgment, the defendant appealed, raising one issue on the appeal. The issue was whether the trial court had erred in excluding the evidence of the amount "written off" or adjusted by the plaintiff's medical insurers.

The Court of Appeals affirmed the judgment of the trial court, but did not reach the issue of whether Robinson v. Bates is still good law after the enactment of R.C. 2315.20. The reason why the Court of Appeals didn't reach that issue was because the defendant didn't preserve the record on appeal.

In paragraph 8 of the appellate decision, the following language appeas:

"On September 11, 2009, Defendant filed a motion in the trial court to correct, supplement and certify the record with an agreed statement. Defendant conceded therein that she had earlier filed an agreed statement pursuant to App.R. 9(D) directly with the appellate court without first obtaining approval by the trial court. Plaintiff timely responded in opposition. The trial court granted the motion to correct or supplement the record and ordered the clerk of courts to certify the parties’ agreed statement and transmit it as part of the record on appeal. On September 22, 2009, the parties filed an agreed statement as the record on appeal pursuant to App.R. 9(D) in the trial court. However, there is no record that the agreed statement was ever filed with this Court. The record contains no agreed statement bearing a time-stamp from the appellate clerk. Nor does the appellate docket indicate that the agreed statement was filed with this Court. The record in this case consists solely of the original papers, exhibits, a certified copy of the docket and journal entries, and any transcripts of proceedings that were filed in the trial court prior to final judgment. It does not, however, contain a valid App.R. 9(D) agreed statement."

As a result of not fining the App. R. 9 (D) agreed statement, the Court of Appeals had noting to review. This is because the decision of a trial court on a motion in limine is not a reviewable order unless the losing party objects at trial when the trial court implements its order in limine. The following language appears in paragraph 10 of the appellate decision:

“A motion in limine is a request for a preliminary order regarding the admissibility of evidence that a party believes may be improper or irrelevant. Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 310. The purpose of a motion in limine is to alert the court and counsel of the nature of the evidence in order to remove discussion of the evidence from the presence of the jury until the appropriate time during trial when the court makes a ruling on its admissibility. Id. An appellate court need not determine the propriety of an order granting or denying a motion in limine, unless the claimed error is preserved by an objection, proffer, or ruling on the record at the proper point during the trial. State v. Maurer (1984), 15 Ohio St.3d 239, 259-260. In order for an appellate court to review the propriety of the exclusion of evidence, the party claiming prejudice must proffer into the record the substance of the excluded evidence.State v. Tait (Jan. 29, 1997), 9th Dist. No. 96CA006339. See, also, Evid.R.103(A)(2). This enables the reviewing court to ‘determine whether or not the [ruling] of the trial court [was] prejudicial.’ Smith v. Rhodes (1903), 68 Ohio St. 500, 505.” State v. Keenan (Feb. 20, 2002), 9th Dist. No. 20528."

Since there was no record filed showing the alleged error, the Court of Appeals had nothing to review. Since it is the responsibility of the appellant to transmit the record necessary for the appeal, the Court of Appeals had no option other than to affirm the trial court's judgment.

The decision is captioned Carreon v. Duncan, 2010-Ohio-703. It was issued on March 1, 2010, and was written by Judge Donna Carr. It can be read here: http://www.sconet.state.oh.us/rod/docs/pdf/9/2010/2010-ohio-703.pdf
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Ohio Supreme Court Clarifies Process for Correcting Sentence Where Multiple Punishments Imposed for ‘Allied Offenses’

State v. Whitfield, Slip Opinion No. 2010-Ohio-2.
Cuyahoga App. No. 90244, 2008-Ohio-3150. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2.pdf

(Jan. 5, 2010) In a 5-2 decision announced today, the Supreme Court of Ohio clarified the procedures to be followed by Ohio courts in correcting criminal sentences in which a defendant has improperly received multiple punishments for convictions that should have been merged as “allied offenses of similar import.”

The majority opinion, authored by Justice Maureen O’Connor, held that when a court of appeals finds reversible error in the imposition of multiple punishments for allied offenses:

The state retains the right to choose which of the allied offenses to pursue on a remand to the trial court.
A court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must choose which allied offense it will pursue against the defendant.
Because R.C. 2941.25(A) protects a defendant only from receiving multiple punishmentsfor allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the allied offenses have been merged for sentencing.
NOTE: This is one of two separate decisions announced today addressing the proper application of R.C. 2941.25, Ohio’s “allied offense statute.” See also Case Nos. 2008-2133 & 2008-2228, State v. Underwood.

Darnell Whitfield of Cleveland was indicted on multiple charges and found guilty of possession of illegal drugs, drug trafficking, having a weapon while under a disability and carrying a concealed weapon, with a firearm specification attached to each of those charges. The trial court entered convictions on all charges and specifications, and sentenced Whitfield to concurrent three-year prison terms on all counts, plus an additional one year for the firearm specifications.

Whitfield appealed, arguing that drug possession and drug trafficking are “allied offenses of similar import,” and that under Ohio’s multiple-count statute, R.C. 2941.25(A), a trial court must merge guilty verdicts for allied offenses into a single conviction and impose a single sentence for that conviction. The court of appeals agreed and entered a judgment in which it reversed Whitfield’s conviction for drug possession and remanded the case to the trial court with instructions to vacate the drug possession conviction and the sentence imposed for it. The state sought and was granted Supreme Court review of the court of appeals’ decision.

In today’s majority opinion, Justice O’Connor wrote: “This appeal poses two questions: (1) What exactly does R.C. 2941.25(A) prohibit when it states that a defendant may be ‘convicted’ of only one of two allied offenses? and (2) When a sentencing court violates this prohibition, what is the proper procedure on remand? We have little trouble with the first question. Our past decisions make clear that for purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty ... We now turn to the second question: When a sentencing court violates R.C. 2941.25(A) by convicting a defendant of two allied offenses and then sentencing the defendant on both, what is the proper procedure on remand?”

“ … (O)ur precedent, including cumulative-punishment cases that predate the 1972 enactment of R.C. 2941.25(A), makes clear that a defendant may be found guilty of allied offenses but not sentenced on them. ... In cases in which the imposition of multiple punishments is at issue, R.C. 2941.25(A)’s mandate that a defendant may only be ‘convicted’ of one allied offense is a protection against multiple sentences rather than multiple convictions. ... In this case, the court of appeals properly corrected the trial court’s error in sentencing Whitfield for the allied offenses of drug possession and drug trafficking. But the court of appeals erred in ordering that this case be ‘remanded to the trial court with instructions to vacate the conviction and sentence for drug possession only.’

“The General Assembly has made clear that it is the state that chooses which of the allied offenses to pursue at sentencing, and it may choose any of the allied offenses. ... In conferring that right on the state, the legislature did not specify when the state must make that election. The Legislative Service summary states that ‘the prosecution sooner or later must elect as to which offense it wishes to pursue,’ ... thereby implying that the state has latitude in determining when to decide which offense to pursue at sentencing. In light of the legislative history, we concluded previously that the statute does not require the state to make its election prior to trial ... We see nothing in the language of R.C. 2941.25(A) that would deny the state the same right on remand. ... As the state asserts, by enacting R.C. 2941.25(A), the General Assembly condemned multiple sentences for allied offenses, not the determinations that the defendant was guilty of allied offenses. Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing. Thus, the trial court should not vacate or dismiss the guilt determination. ... For the reasons set forth herein, we reverse the decision of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.”

Justice O’Connor’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered an opinion, joined by Justice Paul E. Pfeifer, in which she dissented from the majority holding that R.C. 2941.25(A) does not mandate vacating both the separate determination of guilt and the separate sentence imposed on a defendant for separate counts that qualify as allied offenses.

She wrote: “In State v. Brown (2008) … this court acknowledged that R.C. 2941.25 is a legislative attempt to codify the judicial doctrine of merger, i.e., the principle that ‘a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.’ … Although the majority acknowledges the merger doctrine, it inexplicably holds that the separate determination of the defendant’s guilt on each allied offense remains intact, both before and after merged sentencing. This holding contradicts the concept of merger. … Once the state elects which allied offense it will pursue, that decision should be final, and the trial court should dismiss the other allied count. If the court of appeals reverses the judgment of conviction, the state should not be given a second chance to convict on the charge merged. By holding that the determination of guilt remains undisturbed after the merger of the allied offenses, the majority focuses on the prohibition against multiple punishments for the same offense, but ignores the equally important double jeopardy protection against successive prosecutions for the same conduct. I respectfully dissent.”

Contacts
Lisa Williamson, 216.348.4460, for the state and Cuyahoga County prosecutor’s office.

Spencer Cahoon, 614.466.5394, for Darnell Whitfield.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions

Ohio Supreme Court Rules That Jointly Recommended Sentence May be Appealed If It is Not ‘Authorized by Law’

State v. Underwood, Slip Opinion No. 2010-Ohio-1.
Montgomery App. No. 22454, 2008-Ohio-4748. Certified question answered in the negative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O'Donnell, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1.pdf

(Jan. 5, 2010) The Supreme Court of Ohio ruled today that R.C. 2953.08(D)(1), which bars a criminal defendant from appealing a jointly recommended sentence that is “authorized by law,” does not bar appellate review in cases where the sentence imposed by a trial court is contrary to a mandatory provision of the state’s criminal sentencing statutes.

Applying that rationale to a Montgomery County case, the Court held that R.C. 2953.08(D)(1) does not bar appellate review of a sentence that has been jointly recommended by the parties and imposed by the court when that sentence includes multiple convictions for offenses that are “allied offenses of similar import,” which by law must be merged into a single conviction subject to a single sentence under R.C. 2941.25.

The Court’s 4-3 majority opinion was authored by Justice Judith A. Lanzinger.

NOTE: This is one of two separate decisions announced today addressing the proper application of R.C. 2941.25, Ohio’s “allied offense statute.” See also Case No. 2008-1669, State v. Whitfield.

The case involved Richard Underwood of Dayton, a construction contractor who was charged with aggravated theft of more than $100,000 when he failed to perform contracts to build or remodel homes and retained the customers’ advances. Underwood was also charged with theft for a separate incident in which he stole more than $500 from his employer. As part of a plea bargain with the state, Underwood entered no contest pleas to two counts of aggravated theft and two counts of theft. In exchange, the state agreed to a recommended sentence of no more than two years’ imprisonment with no objection to early judicial release. The trial court found Underwood guilty on all four counts and sentenced him to prison terms of one year on the first count of aggravated theft, two years on the second count of aggravated theft, and six months on each of the two theft counts, with all terms to be served concurrently (at the same time). The result was an aggregate prison term of two years.

On appeal, appointed counsel filed an Anders brief (a brief asserting the attorney’s belief that there were no meritorious issues to argue). In its independent review , the 2nd District Court of Appeals identified and ordered briefing on whether the trial court’s sentencing of Underwood for two aggravated theft convictions based on his dealings with customers and for two theft convictions based on his theft from his employer was contrary to R.C. 2941.25. That statute requires that when the same conduct by a criminal defendant may support his conviction for two crimes that are “allied offenses of similar import,” the defendant may be indicted and tried for both of the allied offenses, but if he is found guilty on both counts, the allied offenses must be consolidated into a single conviction punishable by a single sentence.

In briefs filed with the court of appeals, the state argued that Underwood waived any claim of error with regard to allied offenses when he failed to raise the issue to the trial court and that because Underwood had agreed to the two-year sentence and because the two-year sentence imposed by the court was within the statutory range for the offenses he plead to, R.C. 2953.08(D) applied and the court of appeals was barred from reviewing his sentence.

The court of appeals held that because R.C. 2941.25 mandates that allied offenses of similar import must be merged into a single conviction, the separate sentences imposed on Underwood by the trial court for the two allied offense counts that should have been merged were not “authorized by law,” and therefore appellate review of his sentence was not precluded by R.C. 2953.08(D). Accordingly, the 2nd District vacated one of Underwood’s aggravated theft convictions and one of his theft convictions along with the sentences imposed for those counts.

The 2nd District certified that its ruling on the appealability of a jointly recommended sentence was in conflict with decisions in several other appellate districts. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

Writing for the majority in today’s decision, Justice Lanzinger affirmed the holding of the 2nd District that the sentence imposed on Underwood by the trial court was not “authorized by law” and therefore was not excluded from appellate review.

She wrote: “The state argues that R.C. 2953.08(D)(1) bars appellate review of sentences jointly recommended by the state and defendant even if the agreed sentence includes convictions for offenses that are allied offenses of similar import. The issue is whether Underwood’s sentence is ‘authorized by law.’ If it is not, then R.C. 2953.08(D)(1)’s exception to appealability does not apply. ... Several courts of appeals have held that a sentence is authorized by law within the meaning of the statute simply if the sentence falls within the statutory range for the offense. ... We do not agree with such a narrow interpretation of ‘authorized by law.’ Adopting this reasoning would mean that jointly recommended sentences imposed within the statutory range but missing mandatory provisions, such as postrelease control (R.C. 2929.19(B)(3)(c)) or consecutive sentences (R.C. 2929.14(D) and (E)), would be unreviewable. Our recent cases illustrate that sentences that do not comport with mandatory provisions are subject to total resentencing. ... Nor can agreement to such sentences insulate them from appellate review, for they are not authorized by law. We hold that a sentence is ‘authorized by law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions. A trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory provisions.”

“Because a sentence is authorized by law only if it comports with all mandatory sentencing provisions, we must now determine whether the directive in R.C. 2941.25 contains such a provision,” wrote Justice Lanzinger. “The statute states: ‘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.’ ... R.C. 2941.25(A) clearly provides that there may be only one conviction for allied offenses of similar import. Because a defendant may be convicted of only one offense for such conduct, the defendant may be sentenced for only one offense. This court has previously said that allied offenses of similar import are to be merged at sentencing. ... Thus, a trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import. A defendant’s plea to multiple counts does not affect the court’s duty to merge those allied counts at sentencing. This duty is mandatory, not discretionary. Therefore, we conclude that when a sentence is imposed on multiple counts that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D) does not bar appellate review of that sentence even though it was jointly recommended by the parties and imposed by the court.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.

Justice O’Connor also entered a concurring opinion, joined by Chief Justice Moyer, in which she agreed with the majority holding that R.C. 2953.08(D) does not bar appellate review of Underwood’s sentence but added: “I write separately to emphasize my view that allied offenses are merged at sentencing solely for the purpose of sentencing.”

Justice Terrence O’Donnell entered a dissent that was joined by Justices Evelyn Lundberg Stratton and Robert R. Cupp. Justice O’Donnell wrote that in his view the “authorized by law” language in R.C. 2953.08(D) precludes a defendant from seeking appellate review of a jointly recommended sentence so long as the agreed-upon sentence falls within the statutory sentencing guidelines for the offense(s) of which that person was convicted. In this case, he noted, if the allied offenses had been merged pursuant to R.C. 2941.25(A), and Underwood had been sentenced for only single counts of theft and aggravated theft, he would still have been subject to up to six years of imprisonment – as opposed to the two-year term he was able to obtain by entering into a plea bargain.

“Underwood entered into a plea-bargained arrangement with the state and received exactly what he bargained for. Furthermore, he neither asked the court to merge the sentences as allied offenses nor objected at the time of sentencing on that basis and has now forfeited that right,” wrote Justice O’Donnell. “He bargained with the state to achieve a desired outcome, avoided a potentially longer term of imprisonment, and is now precluded from challenging his convictions for allied offenses.”

Justice Cupp also entered a dissent that was joined by Justice Stratton. In addition to endorsing Justice O’Donnell’s view that any sentence within the statutory range for a defendant’s crime is a sentence “authorized by law,” Justice Cupp also cited prior court decisions holding that a defendant’s failure to timely object to a trial court’s failure to merge allied offenses waives any future right to raise such objections on appeal. He wrote: “Underwood’s agreement to the sentence here should be characterized as a specific waiver of the ability to challenge the sentence. ... A defendant who specifically bargains for and agrees to a sentence does more than fail to preserve an objection to the sentence, and therefore rather than forfeiting any objection, he affirmatively waives it.”

Contacts
Kelly D. Madzey, 937.225.5775, for the state and Montgomery County prosecutor’s office.

Claire R. Cahoon, 614.466.5394, for Richard Underwood.

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