State v. Bradley

2012 Ohio 5176

Opinion

[Cite as State v. Bradley, 2012-Ohio-5176.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98048

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JAMES BRADLEY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-543162

BEFORE: E. Gallagher, J., Sweeney, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: November 8, 2012 ATTORNEY FOR APPELLANT

Paul A. Daher Paul A. Daher & Associates, L.L.C. 700 West St. Clair Avenue Suite 218 Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Ronni Ducoff Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} James Bradley appeals his sentence from the Cuyahoga County Court of

Common Pleas propounding one assignment of error:

The trial court committed plain error when it failed to merge Bradley’s gross sexual imposition convictions as allied offenses of similar import.

{¶2} Appellant was charged in a 40-count indictment with 12 counts of rape of a

person under 13 years of age, causing serious physical harm to the victim and purposely

compelling the victim to submit by force or threat of force. Attendant to those charges

of rape were sexually violent predator specifications. Appellant was also charged with

18 counts of kidnapping of a person under 13 years of age with sexual motivation

specifications and six counts of gross sexual imposition of a person under 13 years of

age.

{¶3} The remaining four counts of the indictment did not name appellant.

{¶4} These crimes, according to the indictment, were committed on or about

August 18, 2008, to August 17, 2009.

{¶5} Appellant pled guilty on February 2, 2011, to two counts of gross sexual

imposition as charged in Counts 13 and 15.

{¶6} At the plea hearing, the assistant prosecuting attorney clearly stated, on the

record, that those counts “represent different acts of gross sexual imposition” (tr. 5) and that those crimes “really represented his penis on her buttocks; hands on her vagina * *

*.” (Tr. 26.)

{¶7} The appellant was referred for a presentence investigation report and

returned to the trial court for sentencing on February 24, 2011. Appellant was

sentenced to four years on each count, to be served consecutively. He was advised by

the trial court that, upon his release from custody, he would serve a mandatory five year

period of postrelease control and he was adjudicated a Tier II sex-offender. The trial

court advised him of the duties associated with that classification.

{¶8} Appellant argues that the trial court committed plain error by failing to

hold an allied offense hearing and failing to merge Counts 13 and 15 at sentencing.

{¶9} Appellant failed to object to the court’s imposition of multiple sentences

and has, therefore, waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” However, plain error exists only when it is obvious on the

record. State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496, ¶ 28; State

v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995).

{¶10} The Ohio Supreme Court established the proper analysis for determining

whether offenses qualify as allied offenses subject to merger pursuant to R.C. 2941.25 in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50, and

has held that:

In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.

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.”

If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. (Internal citations omitted.) Id.

{¶11} A review of the record in this case reveals that appellant cannot establish

plain error.1 The presentence investigation report was not made part of the record in

this case. However, a review of the state’s Amended More Particularized Bill of

Particulars that was filed on January 21, 2011, reflects that Count 13 is reflective of the

rubbing of the victim’s leg near her vagina on Charters Road and that Count 15

references the rubbing of her vagina in Euclid, Ohio. Additionally, as mentioned

above, the prosecutor noted on the record prior to appellant’s plea that the two counts

represented two different acts of gross sexual imposition. This court has previously

1We note that the case sub judice is distinct from the recent line of cases where this court has been called upon to address instances where the record is devoid of any indication that the challenged offenses are (or are not) allied offenses, and different panels have reached different results on the application of the plain error doctrine. See State v. Masters, 8th Dist. No. 95120, 2011-Ohio-937; State v. Lindsey, 8th Dist. No. 96601, 2012-Ohio-804; State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833; State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496; State v. Barrett, 8th Dist. No. 97614, 2012-Ohio-3948, 974 N.E.2d 185. The record in the present case is not such that there are insufficient facts in the record for this court to find whether the offenses are allied. referenced the bill of particulars as “an opportunity to establish a record to resolve the

allied offense issue.” State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833, ¶ 23; State

v. Wulff, 8th Dist. No. 94087, 2011-Ohio-700, ¶ 19, 27; see also Barrett, 8th Dist. No.

97614, 2012-Ohio-3948, 974 N.E.2d 185, ¶ 60 (S. Gallagher, J., dissenting); State v.

Harshman, 3d Dist. Nos. 13-12-02,13-12-03, 13-12-04, 2012-Ohio-3901, ¶ 9.

{¶12} Clearly, these are separate and distinct crimes because they were

committed in different locations. Although the dates of these offenses, as are all the

charges in the indictment identical, the presentence investigation report may have

provided us with specific dates for these crimes. Unfortunately, it was not provided in

the record.

{¶13} Appellant’s sole assignment of error is overruled.

{¶14} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and COLLEEN CONWAY COONEY, J., CONCUR