[Cite as State v. Fleming, 2022-Ohio-740.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210297 TRIAL NO. B-1903749 Plaintiff-Appellee, :
vs. : O P I N I O N. JOSEPH FLEMING, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 11, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Joseph Fleming appeals the judgment of the trial
court sentencing him to eight years in the Department of Corrections. For the
reasons that follow, we affirm.
Background
{¶2} In 2019, the state indicted Fleming on ten felony counts. In April
2021, Fleming and the state entered into a plea agreement where Fleming agreed to
plead guilty to count 10, aggravated robbery with an accompanying firearm
specification, in exchange for the dismissal of all remaining counts, except count 4,
having weapons while under a disability. Count 4 had previously been severed from
the other counts in the indictment. Fleming and the state agreed to jointly
recommend that the trial court impose a sentence of three years in prison on count
10, to be served consecutively to three years in prison on the underlying firearm
specification. Count 4 would proceed to a bench trial the following day.
{¶3} The next day, Fleming pleaded guilty to count 4, with a potential
sentencing range of nine to 36 months in prison. The trial court accepted Fleming’s
plea and imposed a two-year prison term on count 4, to run consecutively to the
agreed-upon six year sentence on count 10 and its accompanying specification, for a
total of eight years in prison.
{¶4} Fleming appeals.
Unknowing and Involuntary Plea
{¶5} In his first assignment of error, Fleming argues that his pleas were
unknowing and involuntary.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Under Crim.R. 11(C)(2), a trial court must personally address the
defendant and establish that the defendant’s plea is voluntary, and that the
defendant understands the effect of the plea, the nature of the charges, and the
maximum penalty involved. Crim.R. 11(C)(2)(a)-(b). The trial court must
substantially comply with the requirements under Crim.R. 11(C)(2). Substantial
compliance means that “ ‘under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights he is waiving.’ ”
State v. Fannon, 1st Dist. Hamilton No. C-180270, 2019-Ohio-1752, ¶ 6, quoting
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “When a plea is
challenged under the substantial-compliance standard, a defendant must show he
was prejudiced—that is, that he would not have otherwise pled had the court
complied with Crim.R. 11(C).” State v. Littleton, 1st Dist. Hamilton Nos. C-150056
and C-150057, 2015-Ohio-4143, ¶ 9, citing Nero at 108.
{¶7} Here, Fleming argues that he was confused regarding the nature of the
pleas. The record reflects that Fleming agreed to plead guilty to count 10, in
exchange for the dismissal of all remaining counts, except for count 4. Count 4
would then proceed to a bench trial the following day. Fleming indicated that he
understood that count 4 would proceed to a bench trial.
{¶8} The following day, Fleming expressed confusion with regard to the
outstanding nature of count 4. Fleming told the court that he did not understand
that he would be going to trial on count 4 and expressed to the court that he did not
want to go to trial. The trial court permitted Fleming to consult with his attorneys off
the record. After the off-the-record discussions, Fleming then indicated that he
3 OHIO FIRST DISTRICT COURT OF APPEALS
wanted to plead guilty to count 4. The matter then proceeded to sentencing on count
4 without any objection from Fleming.
{¶9} Although the record reflects that Fleming initially expressed confusion
regarding the effect of the plea deal, the trial court gave Fleming the opportunity to
consult with counsel in order to cure any confusion Fleming may have had. The
record supports that Fleming knowingly and voluntary entered his pleas.
{¶10} We overrule Fleming’s first assignment of error.
Ineffective Assistance of Counsel
{¶11} In his second assignment of error, Fleming argues that he received
ineffective assistance of counsel because of his attorneys’ failure to request a
continuance.
{¶12} In order to demonstrate ineffective assistance of counsel, Fleming
must prove that counsel’s performance fell below an objective standard of
reasonableness, and that he was prejudiced by that deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); see also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus.
{¶13} Fleming argues that counsel was ineffective for failing to request a
continuance during the plea hearing so that Fleming and his attorneys could discuss
the ramifications of his pleas. Fleming argues that he did not understand that he still
had an outstanding charge against him—count 4. The record shows that Fleming
had an off-the-record discussion with counsel, and that when the hearing continued
on the record, Fleming expressed no confusion and reiterated his desire to plead
4 OHIO FIRST DISTRICT COURT OF APPEALS
guilty to count 4. The record does not reflect any deficiency by counsel, or that had
counsel requested a continuance, Fleming would not have pleaded guilty.
{¶14} We overrule Fleming’s second assignment of error.
Sentencing
{¶15} In his third and fourth assignments of error, Fleming argues that the
trial court erred in sentencing him. Fleming argues that the trial court erred in
failing to merge the offenses of aggravated robbery and having weapons while under
a disability.
{¶16} R.C. 2941.25 prohibits multiple punishments for allied offenses of
similar import. “[W]hen determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must ask three questions when
the 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?” State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892, ¶ 31. “An affirmative answer to any of the above will
permit separate convictions.” Id.
{¶17} This court has held that aggravated robbery and having weapons while
under a disability are not allied offenses of similar import subject to merger, because
the offenses are of dissimilar import. State v. Dalmida, 1st Dist. Hamilton No. C-
140517, 2015-Ohio-4995, ¶ 33. In Dalmida, this court reasoned that the offense of
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[Cite as State v. Fleming, 2022-Ohio-740.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210297 TRIAL NO. B-1903749 Plaintiff-Appellee, :
vs. : O P I N I O N. JOSEPH FLEMING, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 11, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Joseph Fleming appeals the judgment of the trial
court sentencing him to eight years in the Department of Corrections. For the
reasons that follow, we affirm.
Background
{¶2} In 2019, the state indicted Fleming on ten felony counts. In April
2021, Fleming and the state entered into a plea agreement where Fleming agreed to
plead guilty to count 10, aggravated robbery with an accompanying firearm
specification, in exchange for the dismissal of all remaining counts, except count 4,
having weapons while under a disability. Count 4 had previously been severed from
the other counts in the indictment. Fleming and the state agreed to jointly
recommend that the trial court impose a sentence of three years in prison on count
10, to be served consecutively to three years in prison on the underlying firearm
specification. Count 4 would proceed to a bench trial the following day.
{¶3} The next day, Fleming pleaded guilty to count 4, with a potential
sentencing range of nine to 36 months in prison. The trial court accepted Fleming’s
plea and imposed a two-year prison term on count 4, to run consecutively to the
agreed-upon six year sentence on count 10 and its accompanying specification, for a
total of eight years in prison.
{¶4} Fleming appeals.
Unknowing and Involuntary Plea
{¶5} In his first assignment of error, Fleming argues that his pleas were
unknowing and involuntary.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Under Crim.R. 11(C)(2), a trial court must personally address the
defendant and establish that the defendant’s plea is voluntary, and that the
defendant understands the effect of the plea, the nature of the charges, and the
maximum penalty involved. Crim.R. 11(C)(2)(a)-(b). The trial court must
substantially comply with the requirements under Crim.R. 11(C)(2). Substantial
compliance means that “ ‘under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights he is waiving.’ ”
State v. Fannon, 1st Dist. Hamilton No. C-180270, 2019-Ohio-1752, ¶ 6, quoting
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “When a plea is
challenged under the substantial-compliance standard, a defendant must show he
was prejudiced—that is, that he would not have otherwise pled had the court
complied with Crim.R. 11(C).” State v. Littleton, 1st Dist. Hamilton Nos. C-150056
and C-150057, 2015-Ohio-4143, ¶ 9, citing Nero at 108.
{¶7} Here, Fleming argues that he was confused regarding the nature of the
pleas. The record reflects that Fleming agreed to plead guilty to count 10, in
exchange for the dismissal of all remaining counts, except for count 4. Count 4
would then proceed to a bench trial the following day. Fleming indicated that he
understood that count 4 would proceed to a bench trial.
{¶8} The following day, Fleming expressed confusion with regard to the
outstanding nature of count 4. Fleming told the court that he did not understand
that he would be going to trial on count 4 and expressed to the court that he did not
want to go to trial. The trial court permitted Fleming to consult with his attorneys off
the record. After the off-the-record discussions, Fleming then indicated that he
3 OHIO FIRST DISTRICT COURT OF APPEALS
wanted to plead guilty to count 4. The matter then proceeded to sentencing on count
4 without any objection from Fleming.
{¶9} Although the record reflects that Fleming initially expressed confusion
regarding the effect of the plea deal, the trial court gave Fleming the opportunity to
consult with counsel in order to cure any confusion Fleming may have had. The
record supports that Fleming knowingly and voluntary entered his pleas.
{¶10} We overrule Fleming’s first assignment of error.
Ineffective Assistance of Counsel
{¶11} In his second assignment of error, Fleming argues that he received
ineffective assistance of counsel because of his attorneys’ failure to request a
continuance.
{¶12} In order to demonstrate ineffective assistance of counsel, Fleming
must prove that counsel’s performance fell below an objective standard of
reasonableness, and that he was prejudiced by that deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); see also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus.
{¶13} Fleming argues that counsel was ineffective for failing to request a
continuance during the plea hearing so that Fleming and his attorneys could discuss
the ramifications of his pleas. Fleming argues that he did not understand that he still
had an outstanding charge against him—count 4. The record shows that Fleming
had an off-the-record discussion with counsel, and that when the hearing continued
on the record, Fleming expressed no confusion and reiterated his desire to plead
4 OHIO FIRST DISTRICT COURT OF APPEALS
guilty to count 4. The record does not reflect any deficiency by counsel, or that had
counsel requested a continuance, Fleming would not have pleaded guilty.
{¶14} We overrule Fleming’s second assignment of error.
Sentencing
{¶15} In his third and fourth assignments of error, Fleming argues that the
trial court erred in sentencing him. Fleming argues that the trial court erred in
failing to merge the offenses of aggravated robbery and having weapons while under
a disability.
{¶16} R.C. 2941.25 prohibits multiple punishments for allied offenses of
similar import. “[W]hen determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must ask three questions when
the 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?” State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892, ¶ 31. “An affirmative answer to any of the above will
permit separate convictions.” Id.
{¶17} This court has held that aggravated robbery and having weapons while
under a disability are not allied offenses of similar import subject to merger, because
the offenses are of dissimilar import. State v. Dalmida, 1st Dist. Hamilton No. C-
140517, 2015-Ohio-4995, ¶ 33. In Dalmida, this court reasoned that the offense of
having weapons while under a disability “ ‘manifests a legislative purpose to punish
the act of possessing a firearm while under a disability separately from any offense
committed with the firearm.’ ” Id. at ¶ 32, quoting State v. Bates, 1st Dist. Hamilton
No. C-140033, 2015-Ohio-116, ¶ 30.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Because the offenses of aggravated robbery and having weapons while
under a disability are of dissimilar import, the trial court did not err in failing to
merge counts 4 and 10.
{¶19} Fleming also argues that the trial court erred in imposing consecutive
sentences. R.C. 2929.14(C)(4) requires the trial court to make certain findings before
imposing nonmandatory consecutive sentences. State v. Beasley, 153 Ohio St.3d
497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
6 OHIO FIRST DISTRICT COURT OF APPEALS
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶20} This court reviews the trial court’s consecutive-sentencing findings
under R.C. 2953.08(G), and this court may modify or vacate the sentence only if we
clearly and convincingly find that the record does not support the findings. State v.
Roland, 1st Dist. Hamilton Nos. C-210299 and C-210300, 2021-Ohio-4077, ¶ 37.
{¶21} Fleming argues that concurrent time would have been sufficient
punishment given his background and mental-health issues. The record shows that
the trial court considered defense counsel’s arguments with regard to Fleming’s
mental-health issues. Nevertheless, the court found that consecutive sentences were
appropriate: Fleming had an outstanding warrant at the time of these offenses and
had a criminal history of drug trafficking; moreover, during the course of the
aggravated robbery, Fleming shot the victim in the leg. The trial court did not err in
imposing consecutive sentences.
{¶22} We overrule Fleming’s third and fourth assignments of error.
Conclusion
{¶23} We affirm the judgment of the trial court. Judgment affirmed.
BERGERON, P.J., and BOCK, J., concur.
Please note:
7 OHIO FIRST DISTRICT COURT OF APPEALS
The court has recorded its own entry on the date of the release of this opinion.