State v. Simpson

2013 Ohio 1695

Opinion

[Cite as State v. Simpson, 2013-Ohio-1695.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

KERON D. SIMPSON

Defendant-Appellant

Appellate Case No. 25202

Trial Court Case No. 2010-CR-4077

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 26th day of April, 2013.

...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 W. Second Street, Suite 2150, P.O. Box 1262, Dayton, Ohio 45402 Attorneys for Defendant-Appellant 2

.............

WELBAUM, J.

{¶ 1} Defendant-Appellant, Keron Simpson, appeals from his prison sentence

following a guilty plea to Aggravated Robbery with a firearm specification. Simpson argues that

the trial court erred by imposing consecutive prison sentences under former R.C. 2929.41(A). He

also argues that his guilty plea was not knowing and voluntary because the trial court failed to

inform him that his sentence in this case could run consecutively to sentences imposed in his other

two criminal cases. We conclude that the trial court properly imposed consecutive prison

sentences and that the trial court was not required to advise Simpson of consecutive sentencing.

The judgment of the trial court will be affirmed.

I. Facts & Course of Proceedings

{¶ 2} On March 22, 2012, Keron Simpson pled guilty to Aggravated Robbery with a

firearm specification, a felony of the first degree. Prior to his plea, the trial court advised

Simpson that it would issue a sentence below ten years, but explained that the sentence “could be

a consecutive sentence.” Transcript, p. 2, ln. 17. After Simpson pled guilty, the trial court

then stated, “the Court has indicated to [Simpson] that each sentence will be a sentence of less

than ten years. But that it could be a consecutive sentence to the sentence that the Court has

already imposed.” Transcript, p. 11, ln. 20-23. Simpson had two other criminal sentences

imposed in separate Montgomery County Common Pleas Case Nos. 2011-CR-1156/1 and

2010-CR-4101.

{¶ 3} At Simpson’s sentencing hearing, defense counsel argued that the trial court

could not impose consecutive sentences, given the plain language of R.C. 2929.41(A). The trial 3

court reviewed the precedent for interpreting R.C. 2929.41(A) and determined that the statute

contained a clerical error. The court further determined that it was authorized to interpret the

statute as intended by the legislature, and thus corrected the error. Under the corrected

interpretation, the trial court found that R.C. 2929.41(A) did not preclude the court from imposing

consecutive sentences. The trial court then sentenced Simpson to a prison term of six years,

(three years for Aggravated Robbery and three years for the firearm specification), and ordered the

sentence to run consecutively with Case No. 2011-CR-1156/1 and counts six and seven of Case

No. 2010-CR-4101, and concurrently to all other counts in Case No. 2010-CR-4101.

{¶ 4} On May 17, 2012, Simpson appealed the trial court’s sentence.

II. Did the Trial Court Err in Imposing Consecutive Prison Sentences?

{¶ 5} Simpson’s First Assignment of Error states that:

The Trial Court Erred in Imposing a Consecutive Sentence Because R.C.

2929.41 Specifically Prohibited Imposition of that Sentence.

{¶ 6} Under this assignment of error, Simpson argues that at the time of his sentencing,

the plain language of R.C. 2929.41(A) prohibited the trial court from issuing consecutive prison

sentences. At the time Simpson was sentenced, R.C. 2929.41(A) stated:

Except as provided in division (B) of this section, division (E) of section 2929.14,

or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail

term, or sentence of imprisonment shall be served concurrently with any other

prison term, jail term, or sentence of imprisonment imposed by a court of this

state, another state, or the United States. Except as provided in division (B)(3) of

this section, a jail term or sentence of imprisonment for misdemeanor shall be 4

served concurrently with a prison term or sentence of imprisonment for felony

served in a state or federal correctional institution. Former R.C. 2929.41(A)

effective as of April 11, 2012.

{¶ 7} This version of the statute provides for concurrent sentences subject to certain

referenced exceptions, one of which was identified as R.C. 2929.14(E). In State v. Hess, 2d Dist.

Montgomery No. 25144, 2013-Ohio-10 we noted that the reference to R.C. 2929.14(E) was a

typographical error. Id. at ¶ 13. The statute was intended to reference R.C. 2929.14(C), which

states:

if a mandatory prison term is imposed upon an offender pursuant to division

(B)(1)(a) of this section for having a firearm on or about the offender's person or

under the offender's control while committing a felony, if a mandatory prison term

is imposed upon an offender pursuant to division (B)(1)(c) of this section for

committing a felony specified in that division by discharging a firearm from a

motor vehicle, or if both types of mandatory prison terms are imposed, the

offender shall serve any mandatory prison term imposed under either division

consecutively to any other mandatory prison term imposed under either division

or under division (B)(1)(d) of this section, consecutively to and prior to any prison

term imposed for the underlying felony pursuant to division (A),(B)(2), or (B)(3)

of this section or any other section of the Revised Code, and consecutively to any

other prison term or mandatory prison term previously or subsequently imposed

upon the offender.

{¶ 8} When applied to this case, R.C. 2929.14(C) requires Simpson’s prison term to run 5

consecutively to any other prison term previously or subsequently imposed. However, the

typographical error in R.C. 2929.41(A) was not corrected by the legislature until five months after

Simpson was sentenced.1 Accordingly, Simpson argues that we must apply R.C. 2929.41(A) as it

was written before the correction, despite the obvious typographical error.

{¶ 9} This exact argument was addressed and rejected in Hess, 2d Dist. Montgomery

No. 25144, 2013-Ohio-10. We concluded in Hess that the trial court was permitted to issue

consecutive sentences because “it is clear that the Ohio legislature intended to reference R.C.

2929.14(C), rather than R.C. 2929.14(E). We will not employ the rule of lenity to defeat the

obvious intention of the legislature.” (Citation omitted.) Id. at ¶ 18.

{¶ 10} In the present case, the trial court found that R.C. 2929.41(A) contained a clerical

error and correctly determined that it was authorized to interpret the statute in a manner that

carries out the manifest intention of the legislature. Transcript, pp. 19-20. Accordingly, the trial

court imposed consecutive sentences as instructed by R.C. 2929.14(C). On the authority of Hess,

which is directly on point, we find no error in the trial court’s ruling.

{¶ 11} Simpson’s First Assignment of Error is overruled.

III. Was Appellant’s Plea Not Made Knowingly, Voluntarily or Intelligently Because

Appellant Was Not Aware of Possible Consecutive Sentences?

{¶ 12} Simpson’s Second Assignment of Error states that:

Appellant’s Plea Was Not Made Knowingly, Voluntarily or Intelligently

Because He Was Not Aware of the Maximum Potential Penalty He Faced Prior

1 “[I]n 2012 Am.Sub.S.B. 337, effective September 28, 2012, the legislature corrected the improper reference to R.C. 2929.14(E) and R.C. 2929.41(A) now refers to R.C. 2929.14(C).” Hess, 2d Dist. Montgomery No. 25144, 2013-Ohio-10 at ¶ 15. 6

to Entering his Plea.

{¶ 13} Under this assignment of error, Simpson admits that the trial court advised him

of the maximum sentence he faced for the charge of Aggravated Robbery with a deadly weapon,

but he claims that his plea was invalid because he was not advised that the sentence could run

consecutively to his sentences in Case Nos. 2010-CR-4101 and 2011-CR-1356/1. Simpson

claims that when he made his plea, he relied on defense counsel’s interpretation of R.C.

2929.41(A), which was that consecutive sentences were prohibited. Simpson, therefore, argues

that the trial court should have specifically explained that his sentence could run consecutively to

his sentences in Case Nos. 2010-CR-4101 and 2011-CR-1356/1. Accordingly, he claims that his

plea was invalid because it was not made knowingly, voluntarily or intelligently.

{¶ 14} “In order for a plea to be given knowingly and voluntarily, the trial court must

follow the mandates of Crim.R. 11(C).” (Citation omitted.) State v. Blessing, 2d Dist. Clark

No. 2011 CA 56, 2013-Ohio-392, ¶ 15. Crim R. 11(C)(2) requires the trial court to do the

following:

(a) determine that the defendant is making the plea voluntarily, with an

understanding of the nature of the charges and the maximum penalty, and, if

applicable, that the defendant is not eligible for probation or for the imposition of

community control sanctions; (b) inform the defendant of and determine that the

defendant understands the effect of the plea of guilty [or no contest] and that the

court, upon acceptance of the plea, may proceed with judgment and sentencing;

and (c) inform the defendant and determine that she understands that, by entering

the plea, the defendant is waiving the rights to a jury trial, to confront witnesses 7

against her, to have compulsory process for obtaining witnesses, and to require the

State to prove her guilt beyond a reasonable doubt at a trial at which she cannot be

compelled to testify against herself. (Citations omitted.) Id. at ¶ 16.

{¶ 15} The Supreme Court of Ohio explained in State v. Johnson, 40 Ohio St. 3d 130,

532 N.E.2d 1295 (1988), that:

[N]either the United States Constitution nor the Ohio Constitution

requires that in order for a guilty plea to be voluntary a defendant must be told

the maximum total of the sentences he faces, or that the sentence could be

imposed consecutively. Therefore, even though the trial court here did not

specifically state that such sentences could run consecutively, but did explain

the maximum sentences possible, there was no deprivation of appellee's

constitutional rights. Id. at 133.

{¶ 16} In Johnson, the Supreme Court relied on Barbee v. Ruth, 678 F.2d 634 (5th Cir.

1982), which found that:

“The Constitution does not require that, in order to understand the

consequences of a plea of guilty, the accused must be informed by the trial court,

or must otherwise know, whether or not sentences imposed for separate crimes

will run consecutively or concurrently.” * * *

The consequences of a guilty plea, with respect to sentencing, mean only

that the defendant must know the maximum prison term and fine for the offense

charged. As long as [the defendant] “understood the length of time he might

possibly receive, he was fully aware of his plea's consequences.” (Citations 8

omitted.) Id. at 635.

{¶ 17} In this case, the trial court did not specifically explain that the sentence for

Aggravated Robbery with a firearm specification could run consecutively to the sentences

imposed in Simpson’s other criminal cases until after Simpson’s guilty plea. The Supreme Court

of Ohio made it clear in Johnson that a trial court is not required to provide this information.

Therefore, in order for Simpson’s plea to be considered knowing and voluntary, the trial court

simply must have followed the mandates of Crim.R. 11(C).

{¶ 18} Here, the record indicates that the trial court’s plea colloquy complied with the

mandates of Crim.R. 11(C). Simpson was advised of the maximum penalty he could serve, and

he indicated that he understood that the charges for Aggravated Robbery and the firearm

specification would be served consecutively. Transcript, p. 7. Simpson stated that he understood

the nature of the offenses with which he was charged, and that he would receive a mandatory

prison sentence without being considered for community control sanctions. Id. at pp. 7-8.

Simpson indicated that he understood that he was waiving his right to a jury trial and his right to

confront witnesses, and that a plea of guilty was a complete admission of guilt. Id. at pp. 9-10.

He further understood that he was giving up his right against self incrimination. Id. at pp. 10-11.

{¶ 19} If Simpson relied on his counsel’s interpretation of R.C. 2929.41(A) when he

pled guilty that would be a matter outside of the record. “‘[T]his court is unable to consider any

evidence not considered by the trial court.’ It is axiomatic that an appellate court will not

consider matters outside of the appellate record.” Dayton v. Turic, 2d Dist. Montgomery No.

20149, 2005-Ohio-131, quoting Alex-Bell Oxford Limited Partnership v. Woods, 2d Dist.

Montgomery No. 16038, 1998 WL 289028 (June 5, 1998), citing State v. Ishmail, 54 Ohio St.2d 9

402, 377 N.E.2d 500 (1978), paragraph one of syllabus.

{¶ 20} Accordingly, Simpson’s plea was knowing and voluntary because the trial court

complied with the mandates of Crim.R.11(C) and the court was not required to inform Simpson

that his Aggravated Robbery and firearm specification sentence would run consecutively with his

sentences in Case Nos. 2010-CR-4101 and 2011-CR-1356/1.

{¶ 21} Simpson’s Second Assignment of Error is overruled.

IV. Conclusion

{¶ 22} Having overruled both of Keron Simpson’s assignments of error, the judgment

of the trial court is affirmed.

FAIN, P.J. and HALL, J., concur.

Copies mailed to:

Mathias H. Heck Kirsten A. Brandt Jon Paul Rion Nicole Rutter-Hirth Hon. Michael Tucker