Court Decides Allied Offenses Case
Burden of Proof and Plain Error Standard Reviewed
A defendant who fails to object to a sentence in the trial court forfeits all but plain error review of that sentence, including claims that the crimes sentenced were allied offenses and should have been merged, the Ohio Supreme Court ruled today.
Concluding that Frank Rogers forfeited the argument that he was sentenced for allied offenses, the Supreme Court stated that a trial court does not have a duty to inquire about whether the offenses may have been allied if the defense does not raise the issue at sentencing. To establish plain error in a case involving multiple offenses, a defendant has the burden to show a “reasonable probability” that his convictions were for allied offenses, Justice Terrence O’Donnell, writing for the court, stated. The court concluded that Rogers did not carry that burden.
The court added that the trial court properly sentenced Rogers for two counts of receiving stolen property because the separate crimes involved two different victims.
The decision affirmed in part and reversed in part the judgment of the Eighth District Court of Appeals. The ruling also addressed a conflict among appellate courts in the state.
Defendant Receives Eight-Year Sentence for Several Crimes
After Rogers fled from Cleveland police officers during an attempted traffic stop in January 2011, the officers arrested him and searched his van. They discovered four tires and rims, which had been taken from a stolen Ford pickup truck found sitting on cinder blocks. While those charges were pending, Rogers was rearrested for selling stolen jewelry and other items to a pawn shop.
The state charged him with four counts of receiving stolen property (RSP) related to the truck, tire and rims, and the jewelry, and one count of possessing criminal tools for having a jack, a tow chain, and a lug-nut wrench. The state also brought charges for offenses in six other cases.
Rogers pled guilty to the crimes. The trial court imposed consecutive sentences totaling eight years for all his offenses – including 12 months for receiving the stolen truck, six months for receiving the tires and rims, 12 months for receiving the first victim’s stolen jewelry, six months for receiving the second victim’s stolen jewelry, and six months for possessing criminal tools. He did not assert in the trial court that he had been convicted of allied offenses of similar import and did not object to the sentence.
Review by Appeals Court
During an en banc review, the Eighth District concluded that the information available to the trial court suggested that the offenses related to the stolen truck may have been allied, and it determined that the trial court committed plain error by failing to inquire into or address the allied offenses issue. The en banc court upheld the separate sentences for the RSP convictions involving the stolen jewelry, because those counts involved property taken from two victims.
The court recognized that its decision conflicted with rulings from the Sixth District Court of Appeals and Ninth District Court of Appeals.
Supreme Court’s Reasoning
The Supreme Court first noted that the record did not show Rogers intended his guilty pleas to waive his right to argue that some of his crimes were allied offenses of similar import that should be merged for sentencing. However, Justice O’Donnell noted, by not seeking the merger of his convictions as allied offenses of similar import in the trial court, Rogers forfeited the allied offenses claim for appellate review.
Even so, an appellate court may correct plain errors when the accused has not brought the error to the attention of the trial court, Justice O’Donnell explained. But the burden of proof rests with the accused to demonstrate plain error on the record, he added.
“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,” Justice O’Donnell wrote. “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; and, 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.”
“There may be instances when a court’s failure to merge allied offenses can constitute plain error, but this case does not present one of those instances,” he continued. “Rogers failed to demonstrate any probability that he has, in fact, been convicted of allied offenses of similar import committed with the same conduct and with the same animus, and he therefore failed to show any prejudicial effect on the outcome of the proceeding.”
Justice O’Donnell noted that the trial court could reasonably infer that Rogers received the stolen truck and then removed the tires and rims to dispose of them – separate acts accounting for the two distinct RSP counts. Pointing out that Rogers did not argue he committed these crimes with the same conduct and animus, the Supreme Court concluded that the trial court reasonably imposed separate sentences for each of these convictions.
The court also held that the trial court did not commit plain error by imposing separate sentences for the two counts of RSP involving the jewelry and other items taken from different victims. Justice O’Donnell cited the court’s decision in State v. Ruff (2015), which stated that when a defendant’s conduct results in offenses involving separate victims, the offenses are not allied and the sentences do not merge. In this case then, the court did not err by imposing separate sentences for these crimes involving two victims, Justice O’Donnell concluded.
Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French. Justice Paul E. Pfeifer concurred in the court’s judgment only.
Justice William M. O’Neill agreed with the court’s decision that Rogers forfeited the right to have the appeals court review the allied offenses claim by not raising it to the trial court. Justice O’Neill also concurred in the court’s ruling affirming separate sentences for the jewelry offenses.
Justice Dissents Only on Trial Court’s Obligation
In Justice O’Neill’s view, though, the trial court had a mandatory duty to consider whether the convictions related to the stolen truck should have been merged.
“The trial court’s glaring failure to even consider merging the receiving-stolen-property … offenses was plain error standing all alone,” he wrote. “The reality that these offenses were allied jumps out from the record. R.C. 2941.25(A) limits a court’s sentencing authority by imposing a duty to merge offenses when a defendant’s actions ‘can be construed to constitute two or more allied offenses of similar import.’ (Emphasis added.)”
“I believe that a trial court plainly deviates from the requirements of R.C. 2941.25 when it fails to address the issue of allied offenses — even if the issue is not raised by a party — when the record clearly shows a possibility that some offenses may be allied offenses of similar import,” he added.
Justice O’Neill reasoned that Rogers showed a reasonable probability that he was punished more than the legislature allows in the allied offenses statute because the trial court did not consider merging the RSP offenses for the truck and the tires and rims. Yet Rogers only had to demonstrate, based on the record, a possibility that the trial court should have considered merging the sentences, which he did, and “that possibility is enough to undermine confidence that his sentence was lawful,” Justice O’Neill concluded.
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