[Cite as State v. Szidnik, 2011-Ohio-4093.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95644




                                         STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.


                                        EDWARD SZIDIK

                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-534819

        BEFORE: Kilbane, A.J., Cooney, J., and S. Gallagher, J.
       RELEASED AND JOURNALIZED: August 18, 2011

ATTORNEYS FOR APPELLANT

Margaret Amer Robey
Gregory S. Robey
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Ronni Ducoff
Mark J. Mahoney
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} Defendant-appellant, Edward Szidik (Szidik), appeals his gross

sexual imposition convictions and sentence following his guilty plea. Finding

no merit to the appeal, we affirm.

       {¶ 2} In March 2010, Szidik was charged with ten counts of gross

sexual imposition (GSI), with each count carrying a sexually violent predator

specification.     Pursuant to a plea agreement, Szidik pled guilty to two
amended counts of GSI (the State deleted the sexually violent predator

specification on each count). The remaining eight counts were nolled. The

trial court sentenced him to four years in prison on each count, to be served

consecutively, for an aggregate of eight years in prison.

      {¶ 3} Szidik now appeals, raising two assignments of error for review.

      ASSIGNMENT OF ERROR ONE

      “Because [Szidik] was indicted with ten carbon copy
      counts that were never distinguished from one another,
      due process and double jeopardy preclude his conviction
      on more than one; the remaining counts must be vacated.”

      {¶ 4} Szidik argues his constitutional rights were violated when he was

indicted with ten “carbon copy” counts of GSI.       He relies on Valentine v.

Konteh (C.A.6, 2005), 395 F.3d 626; State v. Ogle, Cuyahoga App. No. 87695,

2007-Ohio-5066; and State v. Hemphill, Cuyahoga App. No. 85431,

2005-Ohio-3726, in support of his assertion that the carbon copy indictment

failed to provide him adequate notice of the charges against him and the right

to protection against double jeopardy.

      {¶ 5} However, these cases are easily distinguishable from the matter

before us. In the instant case, Szidik pled guilty to the indictment, whereas

in Valentine, Ogle, and Hemphill, the defendants were convicted after jury

trials. A defendant who pleads guilty is generally limited on appeal. The

defendant may only attack the voluntary, knowing, and intelligent nature of
the plea, and may not raise independent claims relating to the deprivation of

constitutional rights that occurred prior to pleading guilty.     See State v.

Clay, Cuyahoga App. Nos. 89339-89341, 2008-Ohio-314; State v. Sadowsky,

Cuyahoga App. Nos. 90696 and 91796, 2009-Ohio-341.

      {¶ 6} “‘[A] guilty plea represents a break in the chain of events which

has preceded it in the criminal process.     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. He may only attack the voluntary and intelligent character

of the guilty plea by showing that the advice he received from counsel was not

within the standards set forth in McMann [v. Richardson (1970), 397 U.S.

759, 90 S.Ct. 1441, 25 L.Ed.2d 763].’” State v. Spates, 64 Ohio St.3d 269,

272, 1992-Ohio-130, 595 N.E.2d 351, quoting Brady v. United States (1970),

397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. Thus, Szidik’s reliance on these

cases is unpersuasive.

      {¶ 7} Moreover, under Crim.R. 12(C)(2) “[d]efenses and objections

based on defects in the indictment” must be raised before trial. According to

the Ohio Supreme Court, the “failure to timely object to the allegedly

defective indictment constitutes a waiver of the issues involved.” State v.

Biros, 78 Ohio St.3d 426, 436, 1997-Ohio-204, 678 N.E.2d 891, citing State v.
Joseph, 73 Ohio St.3d 450, 1995-Ohio-288, 653 N.E.2d 285. Furthermore,

this court has held that “‘by voluntarily entering a guilty plea, a defendant

waives the right to contest non-jurisdictional defects that occurred before the

plea was entered.    More specifically, by voluntarily entering a guilty plea

[the defendant] waived his right to a direct appeal of any alleged defects in

the indictment.’” State v. Moree, Cuyahoga App. No. 90894, 2009-Ohio-472,

¶21, quoting State v. Salter, Cuyahoga App. No. 82488, 2003-Ohio-5652.

(Internal citations omitted.)

      {¶ 8} In the instant case, Szidik failed to object to the indictment at the

trial court and pled guilty under a plea agreement to two separate counts of

GSI. Based on these facts, we find that he waived any alleged defect in the

indictment.

      {¶ 9} Accordingly, the first assignment of error is overruled.

      ASSIGNMENT OF ERROR TWO

      “The trial court erred in failing to merge the sentences for
      the two identical counts, which were indistinguishable
      and therefore allied offenses.”

      {¶ 10} Szidik argues the two GSI counts were identical and thus allied

offenses. As a result, he contends the trial court should have merged them

for purposes of sentencing.

      {¶ 11} Here, Szidik entered into a plea agreement where the State

nolled eight counts of GSI and removed the sexually violent predator
specifications from all counts on the condition that he plead guilty to two

separate counts of GSI. Szidik then proceeded to voluntarily enter a guilty

plea to each count.

      {¶ 12} The Ohio Supreme Court recently held that the failure to merge

allied offenses of similar import constitutes plain error. State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31, citing State v.

Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845.             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.”

      {¶ 13} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, the Ohio Supreme Court redefined the test for determining

whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25.1 The Johnson court expressly overruled State v. Rance,

85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699, which required a


      1R.C.   2941.25 governs allied offenses 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 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.”
“comparison of the statutory elements in the abstract” to determine whether

the statutory elements of the crimes correspond to such a degree that the

commission of one crime will result in the commission of the other.

      {¶ 14} The Johnson court held that rather than compare the elements of

the crimes in the abstract, courts must consider the defendant’s conduct. Id.

at syllabus. The court found:

      “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 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.’ [State]
      v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d
      149, at ¶50, (Lanzinger, J., dissenting).

      If the answer to both questions is yes, then the offenses
      are allied offenses of similar import and will be merged.

      Conversely, if the court determines that the commission of
      one offense will never result in the commission of the
      other, or if the offenses are committed separately, or if the
      defendant has separate animus for each offense, then,
      according to R.C. 2941.25(B), the offenses will not merge.”
      Id. at ¶48-50.

      {¶ 15} Szidik argues the two counts of GSI are allied offenses because

the offenses have never been distinguished from each other. We disagree.

      {¶ 16} Here, the four-year-old victim described that Szidik (victim’s
71-year-old step-grandfather) would play the “pee place game” with her,

which meant that she would have to touch Szidik’s penis. This “game” took

place when her grandmother was doing the laundry or cooking. Szidik told

the victim not to tell grandma because it was their secret. Furthermore, the

State advised the trial court that Szidik “committed two counts of [GSI] on

different dates.” The parties considered this case as a pattern of abuse that

took place over a period of time involving multiple incidents. As such, Szidik

pled guilty to two separate counts of GSI in exchange for the dismissal of

eight GSI counts and the deletion of the sexually violent predator

specifications.

      {¶ 17} Based on these facts, we find the offenses distinguishable as

separate incidents.   Thus, these crimes are not allied offenses of similar

import.

      {¶ 18} Accordingly, the second assignment of error is overruled.

      {¶ 19} Judgment is affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR
