State v. McQueen

2025 Ohio 1123

• Court: Ohio Court of Appeals
• Decided: March 31, 2025
• Docket: CA2024-07-087
• Status: Published

Opinion

[Cite as State v. McQueen, 2025-Ohio-1123.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2024-07-087

: OPINION - vs - 3/31/2025 :

LUCAS W. McQUEEN, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2024-01-0057

Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant Prosecuting Attorney, for appellee.

Engel & Martin, LLC, and Joshua A. Engel, for appellant.

HENDRICKSON, P.J.

{¶ 1} Appellant, Lucas W. McQueen, appeals from the sentence he received in

the Butler County Court of Common Pleas following his guilty plea to strangulation and

abduction. For the reasons discussed below, we affirm his sentence.

{¶ 2} On February 21, 2024, appellant was indicted on one count of felonious

assault in violation of R.C. 2903.11(A)(1), a felony of the second degree; one count of Butler CA2024-07-087

strangulation in violation of R.C. 2903.18(B)(2), a felony of the third degree; one count of

abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree; and one count

of resisting arrest in violation of R.C. 2921.33(A), a misdemeanor of the second degree.

The charges arose out of an incident that occurred on January 6, 2024 between appellant

and his girlfriend, M.P., in appellant's sister's apartment in Hamilton, Butler County, Ohio.

On this date, appellant held M.P. captive in a bedroom for an extended period of time

during which he intermittently beat and choked her.

{¶ 3} On May 20, 2024, following plea negotiations, appellant agreed to plead

guilty to strangulation and abduction in exchange for the remaining charges being

dismissed. The trial court engaged appellant in a Crim.R. 11(C) plea colloquy. At the

conclusion of the colloquy, appellant pled guilty to the offenses after the state's recitation

of the following facts:

[Prosecutor]: With regard to count II, strangulation, the State's prepared to prove, beyond a reasonable doubt, this defendant now before the Court, Lucas McQueen, on or about January 6, 2024, at . . . Edison Avenue, apartment 2, in the city of Hamilton, here in Butler County, Ohio, he did knowingly create a substantial risk of serious physical harm to another by means of strangulation in that he did strike his girlfriend. . . in the face, and choked her, which caused bruising on her neck and broke her jaw, constituting the offense of strangulation, a third degree felony, in violation of section 2903.18(B)(2) of the Ohio Revised Code.

With regard to count III, abduction, this defendant also, on or about January 6, 2024, at . . . Edison Avenue, apartment 2, city of Hamilton, here in Butler County, Ohio, without privilege to do so, knowingly, by force or threat, restrained the liberty of another person under circumstances which created a risk of physical harm to the victim or placed her in fear. And that is commiserate with the assault and strangulation. He also refused to allow his girlfriend. . . from the bedroom, which also constitutes the offense of abduction, a third-degree felony, in violation of section 2905.02(A)(2) of the Ohio Revised Code.

The trial court accepted appellant's plea and found him guilty. The court ordered a

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presentence-investigative report (PSI) and scheduled sentencing for June 17, 2024.

{¶ 4} At the sentencing hearing, the court heard from defense counsel, appellant,

and the state. The court indicated that it had received and reviewed the PSI and a "very

lengthy victim impact statement from the victim in the case," which was an "eight page,

single typed—single spaced, typed victim impact statement." After referencing appellant's

criminal history, which included a prior conviction for a felony offense of violence, the court

focused on the serious nature of the offenses committed against M.P. and the serious

harm she suffered at appellant's hands. The court noted that in addition to suffering

fractured ribs, M.P.'s lower jawbone had been shattered on one side and fractured on the

other side, she suffered a corneal abrasion to her right eye, had to have metal plates or

bars put in her jaw, and required facial reconstruction surgery. The court opined, "I have

zero doubt in my mind that were it not for some intervention, you would have killed this

woman." The court determined that a prison sentence, rather than a community control

sanction, was warranted. Defense counsel argued that the strangulation and abduction

offenses were allied, but the trial court found that the offenses did not merge. The court

imposed 36-month prison terms on each offense and ran them consecutively to one

another, for an aggregate six-year prison term.

{¶ 5} Appellant appealed his sentence, raising the following as his sole

assignment of error:

{¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW IN IMPOSING

SEPARATE SENTENCES FOR THE ALLIED OFFENSES IN VIOLATION OF THE

DOUBLE JEOPARDY CLAUSE OF THE 5TH AMENDMENT TO THE CONSTITUTION

AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION.

{¶ 7} Appellant argues the trial court erred by failing to merge his convictions for

strangulation and abduction as allied offenses of similar import. Appellant maintains that

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the offenses merge as "there is not separate identifiable harm created by the two separate

offenses" and the abduction offense was merely incidental to the strangulation offense.

In response to appellant's arguments, the state argues appellant waived his right to

challenge merger of the offenses by entering into a plea agreement and by "not objecting"

during plea proceedings when the trial court advised appellant that he could face

consecutive sentences. The state further argues our review of whether the offenses

should have been merged as allied offenses is limited to plain error, as defense counsel

only made a "perfunctory argument" that the offenses were allied.

{¶ 8} As an initial matter, we find that appellant did not waive his right to make an

allied offense argument by entering a guilty plea to the charges of abduction and

strangulation. "'When a criminal defendant has solemnly admitted in open court that he is

in fact guilty of the offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior

to the entry of the guilty plea.'" (Emphasis added.) State v. Spates, 64 Ohio St.3d 269,

272 (1992), quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973). The issue of merger

of allied offenses did not occur prior to the entry of the guilty plea. Neither the written plea

agreement nor the plea proceedings addressed the issue of merger.

{¶ 9} The fact that appellant "did not object" to the trial court's advisement during

plea proceedings that he faced possible consecutive prison terms for the abduction and

strangulation offenses does not equate to appellant waiving his allied offense argument.

Whether offenses are allied is a sentencing issue. See R.C. 2941.25 and State v.

Williams, 2016-Ohio-7658, ¶ 17 (noting that a "conviction" consists of a guilty verdict and

the imposition of a sentence or penalty and 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 convictions"). The cases relied on by the state in support of its waiver

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argument, State v. Thomas, 2016-Ohio-5057 (2d Dist.) and State v. Conner, 2023-Ohio-

3485 (8th Dist.), are distinguishable from the facts in the present case. In both Thomas

and Conner, the defendants agreed as part of their respective plea agreements that

certain offenses they were pleading guilty to were not allied offenses of similar import.

Thomas at ¶ 2-3; Conner at ¶ 7. In Thomas, the stipulation was recorded in the written

plea agreement signed by the parties and was also discussed by the parties at the plea

and sentencing hearings. Thomas at ¶ 3-4. In Conner, the state and defense counsel

specifically agreed on the record that "part and parcel of this plea agreement" was that

the offenses of involuntary manslaughter and felonious assault did not merge for

purposes of sentencing. Conner at ¶ 7. Unlike in Thomas and Conner, the plea agreement

in the present case did not include a stipulation that the abduction and strangulation

offenses would not merge. Neither the written plea agreement nor the parties' statements

during the plea hearing indicated they had reached an agreement on merger of allied

offenses.

{¶ 10} Statements made by the trial court and the parties at the sentencing hearing

further indicate there had not been a stipulation regarding merger of the offenses. During

sentencing, the trial court inquired about the issue of merger and defense counsel

asserted that the offenses were allied offenses.1 Notably, the prosecutor did not interject

1. At sentencing, the following discussion occurred regarding the issue of merger:

THE COURT: And [defense counsel], you've not mentioned any issues about merger for allied offenses. I will go ahead on the record, state that these would not be allied offenses. Obviously, you could have one without the other. I don't know if – [defense counsel], if you wish to preserve any type of argument otherwise or - -

[Defense Counsel]: Just for the record, I'd argue that they would be allied offenses, Your Honor.

THE COURT: Yeah. So denying your argument, I'm finding that they are not allied offenses.

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that there had been an agreement that the offenses would not merge. Accordingly, we do

not find that appellant waived his right to challenge whether the offenses were allied

offenses subject to merger.

{¶ 11} We further find, contrary to the state's contentions, that the appropriate

standard of review for appellant's allied offense argument is de novo, rather than plain

error. "Where a defendant fails to raise the issue of allied offenses of similar import in the

trial court, the accused 'forfeits all but plain error, and the 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.'" State v. Flack, 2024-Ohio-4622, ¶ 39, quoting State v.

Rogers, 2015-Ohio-2459, ¶ 3. However, where a party has raised the issue of merger of

allied offenses with the trial court, the question is one of law that appellate courts review

de novo. State v. Williams, 2012-Ohio-5699, ¶ 28. As appellant raised the issue of merger

with the trial court, de novo review is appropriate.

{¶ 12} "Pursuant to R.C. 2941.25, Ohio's allied-offenses statute, the imposition of

multiple punishments for the same criminal conduct is prohibited." State v. Flack, 2024-

Ohio-4622, ¶ 40 (12th Dist.). R.C. 2941.25 states:

(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 offenses of the same or similar kind committed separately or with a separate 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.

{¶ 13} In determining whether offenses are allied and should be merged for

sentencing, courts are instructed to consider three separate factors—the conduct, the

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animus, and the import. State v. Ruff, 2015-Ohio-995, paragraph one of the syllabus.

Offenses do not merge and a defendant may be convicted and sentenced for multiple

offenses if any of the following are true: (1) the offenses are dissimilar in import or

significance, (2) the conduct shows that the offenses were committed separately, or (3)

the offenses were committed with separate animus or motivation. Id. at ¶ 25. Two or more

offenses of dissimilar import exist "when the defendant's conduct constitutes offenses

involving separate victims or if the harm that results from each offense is separate and

identifiable." Id. at paragraph two of the syllabus.

{¶ 14} As the Ohio Supreme Court has recognized, application of the allied offense

test "'may result in varying results for the same set of offenses in different cases. But

different results are permissible, given that the statute instructs courts to examine a

defendant's conduct—an inherently subjective determination.'" Id. at ¶ 32, quoting State

v. Johnson, 2010-Ohio-6314, ¶ 52.

{¶ 15} "The defendant bears the burden of establishing his entitlement to the

protection provided by R.C. 2941.25 against multiple punishments for a single criminal

act." State v. Lewis, 2012-Ohio-885, ¶ 14 (12th Dist.). "A court will look to the information

contained in the record to make its allied offense determination, including the indictment,

bill of particulars, and the presentence investigation report." State v. Campbell, 2015-

Ohio-1409, ¶ 18 (12th Dist.), citing State v. Tannreuther, 2014-Ohio-74, ¶ 16 (12th Dist.).

{¶ 16} Appellant was convicted of strangulation in violation of R.C. 2903.18(B)(2),

which provides that "[n]o person shall knowingly . . . [c]reate a substantial risk of serious

physical harm to another by means of strangulation or suffocation." He was also convicted

of abduction in violation of R.C. 2905.02(A)(2), which provides that "[n]o person, without

privilege to do so, shall knowingly . . . [b]y force or threat of force, restrain the liberty of

another person under circumstances that create a risk of physical harm to the victim or

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place the other person in fear."

{¶ 17} Utilizing the information set forth in the record, which includes the

indictment, bill of particulars, the state's recitation of facts from the plea proceeding, the

PSI, and the victim-impact statement, we find that the offenses of abduction and

strangulation do not merge. Though the offenses occurred close in time to one another,

they were committed separately. As this court has previously recognized, "if one offense

is completed before the other begins, the offenses are considered separately for

sentencing purposes even though the two offenses may have been committed in close

proximity in time." State v. Fields, 2015-Ohio-1345, ¶ 18 (12th Dist.), citing State v. Lane,

2014-Ohio-562, ¶ 16 (12th Dist.).

{¶ 18} Taken together, the indictment, bill of particulars, state's recitation of facts,

PSI, and victim-impact statement indicate that on January 6, 2024, appellant and M.P.

were living together in his sister's apartment. Appellant held M.P. captive in their bedroom,

refusing to let her leave the room. When M.P. tried to leave, he punched and kicked her.

Appellant's sister gained entry into the bedroom and tried to intervene in the altercation.

Appellant forced his sister out of the room and engaged in an argument with her outside

the bedroom door. He returned to the bedroom, locked the door, and punched M.P. in the

face, breaking her jaw. He then strangled her, lifting her off the ground as he choked her.

{¶ 19} When M.P. broke free and again tried to escape the room, appellant

prevented her from leaving. He barricaded the already-locked door with a dresser and

other objects. He refused to free M.P., who was in need of medical help, and he ignored

his sister's repeated calls to open the door. When police officers eventually arrived on

scene, appellant still had M.P. barricaded in the bedroom. It took several minutes of the

police pounding on the locked, barricaded door before appellant eventually released M.P.

{¶ 20} Given these facts, we find that the abduction offense was committed

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separately from the strangulation offense and the offenses caused separate and distinct

identifiable harm. The strangulation offense was complete after appellant choked M.P.,

lifting her off the ground. Appellant separately committed the abduction offense by using

force to restrain M.P.'s liberty. He restrained her liberty independently from his act of

choking her. Appellant not only locked M.P. in the bedroom, but he also barricaded the

door after assaulting her. M.P. suffered separate identifiable harm by being held against

her will and denied the medical attention she needed. Based on these facts, we find that

the offenses were not allied offenses as they were committed separately and created

separate and identifiable harm to M.P. The trial court, therefore, did not err in imposing

separate sentences for the strangulation and abduction convictions. Appellant's sole

assignment of error is overruled.

{¶ 21} Judgment affirmed.

M. POWELL and BYRNE, JJ., concur.

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