State v. Dickinson

2024 Ohio 1487, 239 N.E.3d 1171

• Court: Ohio Court of Appeals
• Decided: April 18, 2024
• Docket: CT2023-0075
• Status: Published

Opinion

[Cite as State v. Dickinson, 2024-Ohio-1487.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2023-0075 PAUL E. DICKINSON, JR. : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from Muskingum County Court of Common Pleas, Case No. CR2023-0285

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 18, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH APRIL F. CAMPBELL Prosecuting Attorney 545 Metro Place South, Suite 100 BY: JOHN CONNOR DEVER Dublin, OH 43017 Assistant Prosecutor 27 N. 5th St. #201 Zanesville, OH 43701 [Cite as State v. Dickinson, 2024-Ohio-1487.]

Gwin, P.J.

{¶1} Appellant Paul E. Dickinson, Jr. appeals the September 7, 2023 judgment

entry of the Muskingum County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On May 4, 2023, the Muskingum County Grand Jury indicted appellant on

the following charges: illegal possession of a firearm in a liquor permit premises in

violation of R.C. 2923.121(A) and (E), carrying a concealed weapon in violation of R.C.

2923.12(A)(2) and (F)(1), and having weapons while under disability in violation of R.C.

2923.13(A)(4) and (B).

{¶3} The trial court held a plea hearing on July 18, 2023. The following facts

were adduced from the plea hearing. An individual reported to the Muskingum County

Sheriff’s Office that two individuals “pulled guns” at the Lazy River Lounge on April 24,

2022, at approximately 1:46 a.m. Security footage captured the incident. Appellant’s co-

defendant pulled out a handgun and began pursuing a female. Appellant pulled a gun

out of his waistband in reaction to the co-defendant pulling the gun. No shots were fired.

Appellant was captured on the video consuming alcohol before the incident, and the

firearm was concealed on appellant’s person.

{¶4} Approximately one week prior to the incident at the Lazy River Lounge,

there was a traffic stop during which appellant was apprehended due to a warrant issued

for the failure to pay child support. Police recovered a firearm during the traffic stop. The

firearm was operable and visually similar to the firearm in the video.

{¶5} At the plea hearing, appellee moved to amend the weapons under disability

count to a third-degree felony pursuant to the plea agreement. Both appellant and his Muskingum County, Case No. CT2023-0075 3

counsel confirmed their understanding of the plea agreement was that appellant would

plead guilty to the illegal possession of a firearm in a liquor permit premises count, and

the amended having weapons while under disability count. Appellee agreed to dismiss

the carrying a concealed weapon count, and also agreed to a joint recommendation of

sentence of three years of community control. The parties also agreed that the offenses

did not merge. The trial judge specifically asked appellant, “you also understand when

there are multiple offenses that don’t merge, the sentences could be served

consecutively, which means one after the other?” Appellant responded, “yes, your

honor.”

{¶6} Appellant signed a “plea of guilty” form on July 18, 2023. The form provides

as follows, “upon a plea of ‘guilty’ to Count Six, as contained in the indictment, and Count

Eight, as amended, the parties agree to a joint recommendation the Defendant be placed

on Community Control. The State agrees to dismiss Count Seven of the indictment at

the time of sentencing. The Defendant agrees to forfeit the firearm seized in this matter

* * * the parties stipulate the counts herein do not merge.”

{¶7} The trial court issued a judgment entry on July 21, 2023, finding appellant

guilty, ordering a pre-sentence investigation, and setting a sentencing hearing. Prior to

the sentencing hearing, appellee filed a motion to dismiss the carrying a concealed

weapon count. The trial court granted the motion.

{¶8} At a sentencing hearing on September 6, 2023, the trial court sentenced

appellant to community control pursuant to the plea agreement. The trial court issued an

entry on September 7, 2023, sentencing appellant to three years of community control. Muskingum County, Case No. CT2023-0075 4

{¶9} Appellant appeals the September 7, 2023 judgment entry of the Muskingum

County Court of Common Pleas and assigns the following as error:

{¶10} “I. THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT’S

TWO OFFENSES.”

I.

{¶11} Appellant contends the having weapons while under disability and illegal

possession of a firearm in a liquor permit premises counts are allied offenses of similar

import, and argues the trial court committed error when it refused to merge the charges

and sentenced him separately on each count.

{¶12} Appellate review of an allied-offense question is de novo. State v. Miku, 5th

Dist. Stark No. 2017-CA000057, 2018-Ohio-1584, citing State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245.

{¶13} Appellant contends he did not waive the merger issue because a

“stipulation” is not sufficient, and there must be specific language contained in the plea

agreement stating that the “offenses were committed with separate animus.”

{¶14} However, this Court has held the issue of allied offenses is waived when

the plea agreement contains a stipulation that the offenses do not merge. State v. Haser,

5th Dist. Muskingum No. CT2020-0029, 2021-Ohio-460 (language stating “counts do not

merge” in plea form sufficient for waiver); State v. McConnell, 5th Dist. Muskingum No.

CT2021-0063, 2022-Ohio-2902 (language in the plea agreement stating “the counts

herein do not merge” was sufficient to waive the allied offenses issue).

{¶15} Other courts have agreed with this Court’s holding. State v. Yokings, 8th

Dist. Cuyahoga No. 99463, 2013-Ohio-4910 (when transcript demonstrates the state and Muskingum County, Case No. CT2023-0075 5

defense counsel specifically agreed the offenses were not allied, the issue of allied

offenses is waived); State v. Pagan, 10th Dist. Franklin No. 19AP-216, 2019-Ohio-4954

(defendant waived any merger argument by stipulating in his plea agreement that “counts

do not merge”); State v. Conner, 8th Dist. Cuyahoga No. 111889, 2023-Ohio-1220

(language “offenses were committed with separate animus” was not required for waiver

because waiving rights under R.C. 2941.25 arises in a variety of ways); State v. Thomas,

2nd Dist. Champaign No. 2015-CA-33, 2016-Ohio-5057 (plea agreement need not

specifically stipulate to there being a separate animus in order to waive the allied offense

issue).

{¶16} In this case, appellant did not seek merger at the trial court level. Rather,

appellant and appellee entered into a negotiated plea agreement, wherein appellee

agreed to dismiss one count in exchange for pleas of guilty to the remaining counts.

Appellant stipulated in his plea agreement that the counts do not merge. The language

used in the written plea agreement states, “* * the parties stipulate the counts herein do

not merge.”

{¶17} Further, during the plea hearing, defense counsel confirmed the statements

made by the prosecutor were correct, the plea form was accurate, and he was able to

answer any and all of appellant’s questions about the plea form prior to coming to the

hearing. At the plea hearing, appellant himself confirmed he understood he was pleading

to two separate counts, as the trial judge specifically asked appellant, “you also

understand when there are multiple offenses that don’t merge, the sentences could be

served consecutively, which means one after another?” Appellant responded, “yes, your

honor.” Muskingum County, Case No. CT2023-0075 6

{¶18} The parties had an agreement the offenses would not merge, and appellant

received the benefit of the bargain by the dismissal of the carrying concealed weapon

charge. “[The Ohio Supreme Court] does not require the trial court to determine whether

the offenses actually merge before accepting the plea when the parties have specifically

entered into an agreement that they do not merge. It is when the parties failed to discuss

the merger that the trial court is obligated to determine if the offenses are allied offenses.”

State v. Haser, 5th Dist. Muskingum No. CT2020-0029, 2021-Ohio-460.

{¶19} We find the trial court did not commit error in finding appellant’s offenses

were not allied offenses of similar import, as the trial court’s decision was based on the

stipulation in the plea agreement, which appellant indicated he understood.

{¶20} Further, we find the trial court did not commit error even if the language

used in the plea agreement was insufficient to waive the issue.

{¶21} R.C. 2941.25 protects a criminal defendant’s rights under the Double

Jeopardy Clause of the United States and Ohio Constitutions by prohibiting convictions

of allied offenses of similar import and provides:

(A) 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.

(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more separate

offenses of the same or similar kind committed separately or with a separate Muskingum County, Case No. CT2023-0075 7

animus as to each, the indictment or information may contain counts for all

such offenses, and the defendant may be convicted of all of them.

{¶22} The application of R.C. 2941.25 requires a review of the subjective facts of

the case in addition to the elements of the offenses charged. State v. Hughes, 5th Dist.

Coshocton No. 15CA0008, 2016-Ohio-880. The Ohio Supreme Court has directed that

we ask three questions to determine whether a defendant’s conduct supports multiple

offenses: (1) were the offenses dissimilar in import or significance? (2) were they

committed separately? and (3) were they committed with separate animus or motivation?

An affirmative answer to any of the questions will permit separate convictions. “The

conduct, the animus, and the import must all be considered.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892.

{¶23} Appellant did not argue at the trial court level that the counts should merge.

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 unless it affected the

outcome of the proceedings and a reversal is necessary to correct a manifest miscarriage

of justice. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860.

Accordingly, an accused has the burden to demonstrate a reasonable probability the

convictions are for allied offenses of similar import committed with the same conduct and

without a separate animus. Id. Absent such a showing, the accused cannot demonstrate

the trial court’s failure to inquire whether the convictions merge for purposes of sentencing

was plain error. Id.

{¶24} Courts who have examined whether having a weapon while under disability

and illegal possession of a firearm in a liquor permit premises are allied offenses have Muskingum County, Case No. CT2023-0075 8

held these counts do not merge because the act of possessing the gun and the act of

entering a liquor permit establishment with that gun are separate acts. State v. Bray, 2nd

Dist. Clark No. 2010 CA 14, 2011-Ohio-4660 (holding trial court did not commit error in

convicting and sentencing the defendant separately for illegal possession of firearm in

liquor permit premises and having weapon while under disability); State v. Young, 2nd

Dist. Montgomery No. 23642, 2011-Ohio-747.

{¶25} In this case, it may reasonably be concluded that the gun involved was

appellant’s, and appellant procured the gun in question some time prior to the incident

involved here. The animus required for having a weapon while under disability is to

knowingly acquire, have, carry, or use the weapon while under a legal disability. State v.

Young, 2nd Dist. Montgomery No. 23642, 2011-Ohio-747. Accordingly, the elements of

proof for that count were satisfied when appellant acquired the firearm. Id. Appellant’s

“subsequent conduct of bringing the weapon into a bar constituted a separate and distinct

act from acquiring it.” Id. The conduct under the weapons-under-disability offense is the

mere act of possession, while the conduct under the illegal possession of a firearm in a

liquor permit premises offense is the act of bringing the firearm into the bar. With separate

conduct, merger is inappropriate.

{¶26} It is evident from the facts of the case that appellant committed the weapon

while under disability offense prior to entering the liquor permit establishment. Appellant

committed only one offense up until the time he entered the Lazy River Lounge. When

he entered the bar, with the gun in his possession, he committed the second offense.

See State v. Evans, 5th Dist. Guernsey No. 22CA000021, 2023-Ohio-1357. The offenses Muskingum County, Case No. CT2023-0075 9

were committed separately by different conduct of appellant. Accordingly, the record

does not reflect plain error.

{¶27} Further, since appellant stipulated the offenses do not merge, it was not

error, let alone plain error, for the trial court to fail to merge the convictions.

{¶28} Based on the foregoing, appellant’s assignment of error is overruled. The

September 7, 2023 judgment entry of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur