[Cite as State v. Starr, 2016-Ohio-8179.]


                                         COURT OF APPEALS
                                      ASHLAND 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. 16-COA-019
MARK M. STARR                                   :
                                                :
    Defendant-Appellant                         :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Ashland County
                                                    Court of Common Pleas, Case No. 15-CRI-
                                                    027




JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             December 9, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

EMILY BATES                                         RUTH FISCHBEIN-COHEN
CHRISTOPHER TUNNELL                                 3552 Severn Road #613
110 Cottage Street                                  Cleveland, OH 44118
Third Floor
Ashland, OH 44805
Ashland County, Case No. 16-COA-019                                                        2

Gwin, P.J.

         {¶1}   Appellant Mark Starr [“Starr”] appeals his conviction and sentence after a

negotiated guilty plea in the Ashland County Court of Common Pleas.

                                   Facts and Procedural History

         {¶2}   Starr sold heroin to an undercover police officer. Seated in the back seat

of Starr’s car was his infant child. Starr was indicted on one count of trafficking in heroin

in the vicinity of a juvenile [F3]; one count of possession of marihuana [MM]; one count of

endangering children [M1] and one count of possession of criminal tools [F5].

         {¶3}   In exchange for his plea of guilty to the trafficking count and the child

endangerment count the state dismissed the marihuana count and the criminal tools

count.

         {¶4}   On May 2, 2016, the trial court sentenced Starr to 18 months in prison on

the trafficking count; 120 days in jail on the child endangerment count, concurrent. The

sentences were ordered to be served consecutively to a sentence Starr was serving out

of the Richland County Court of Common Pleas.

                                       Assignments of Error

         {¶5}   Starr raises three assignments of error,

         {¶6}   “I. THE COURT ERRED IN SENTENCING MARK STARR SEPARATELY

FOR TRAFFICKING IN HEROIN AND SEPARATELY FOR CHILD ENDANGERING.

         {¶7}   “II. MARK STARR'S DUE PROCESS WAS VIOLATED WHEN HE MADE

HIS PLEA OF GUILTY NOT KNOWINGLY AND NOT INTELLIGENTLY.

         {¶8}   “III. THE COURT ERRED IN SENTENCING MARK STARR ABSENT

MAKING STATUTORY FINDINGS.”
Ashland County, Case No. 16-COA-019                                                          3


                                                  I.

       {¶9}   Starr argues that his right to be free from double jeopardy was violated when

the trial court sentenced him separately for the offense of trafficking in the vicinity of a

juvenile and child endangerment. Specifically, Starr contends that because the trafficking

charge was elevated from a fourth degree felony to a third degree felony due to the

presence of his child in the car, he has already been punished for the child’s presence

and he cannot be punished a second time via the child endangerment charge. Starr

contends the charges are allied offenses and should have merged for sentencing.

       {¶10} In this case, Starr failed to object to his sentences in the trial court. In State

v. Rogers, the Ohio Supreme Court recently examined a case where the defendant was

convicted of multiple offenses pursuant to a guilty plea. State v. Rogers, 143 Ohio St.3d

385, 2015–Ohio–2459, 38 N.E.3d 860. The defendant appealed and argued for the first

time on appeal that some of the convictions should have merged for sentencing. Id. at ¶

11. The matter was certified as a conflict and presented to the Ohio Supreme Court. In

making its decision, the Court clarified the difference between waiver and forfeiture as it

pertains to allied offenses. Id. at ¶ 19–21. The Court rejected the argument that by

entering a guilty plea to offenses that could be construed to be two or more allied offenses

of similar import, the accused waives the protection against multiple punishments under

R.C. 2941.25. Id. at ¶ 19. The Court held that an accused’s failure to seek the merger

of his or her convictions as allied offenses of similar import in the trial court, the accused

forfeits his or her allied offenses claim for appellate review. Id. at ¶ 21. “[F]orfeiture is

the failure to timely assert a right or object to an error, and * * * ‘it is a well-established

rule that “an appellate court will not consider any error which counsel for a party
Ashland County, Case No. 16-COA-019                                                           4


complaining of the trial court’s judgment could have called but did not call to the trial

court’s attention at a time when such error could have been avoided or corrected by the

trial court.” Rodgers at ¶ 21.

       {¶11} The accused may raise a forfeited claim on appeal through Crim.R. 52(B).

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” The Court held in

Rogers:

              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 error unless it affected the outcome of the proceeding and

       reversal is necessary to correct a manifest miscarriage of justice.

       Accordingly, an accused has the burden to demonstrate a reasonable

       probability that the convictions are for allied offenses of similar import

       committed with the same conduct and without a separate animus; absent

       that showing, the accused cannot demonstrate that the trial court’s failure

       to inquire whether the convictions merge for purposes of sentencing was

       plain error.

143 Ohio St.3d 385, 2015–Ohio–2459, ¶ 3; Accord, State v. Williams, Oh.Sup.Ct.

No. 2015-1478, 2016-Ohio-7658, 2016 WL 6646162(Nov. 10, 2016), ¶25.

       {¶12} The Court in Rogers reaffirmed that even if an accused shows the trial court

committed plain error affecting the outcome of the proceeding, the appellate court is not

required to correct it. Id. at ¶ 23. The Supreme Court stated:
Ashland County, Case No. 16-COA-019                                                   5


             [W]e have “admonish[ed] courts to notice plain error ‘with the utmost

      caution, under exceptional circumstances and only to prevent a manifest

      miscarriage of justice.’” (Emphasis added.) Barnes at 27, 94 Ohio St.3d 21,

      759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

      (1978), paragraph three of the syllabus.

Rogers at ¶ 23.

      {¶13} R.C. 2941.25, Multiple counts 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.

      {¶14} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the

Ohio Supreme Court revised its allied-offense jurisprudence,

             1. In determining whether offenses are allied offenses of similar

      import within the meaning of R.C. 2941.25, courts must evaluate three

      separate factors-the conduct, the animus, and the import.

             2. Two or more offenses of dissimilar import exist within the meaning

      of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
Ashland County, Case No. 16-COA-019                                                      6


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

      separate and identifiable.

Ruff, at syllabus. The Court further explained,

             A trial court and the reviewing court on appeal when considering

      whether there are allied offenses that merge into a single conviction under

      R.C. 2941.25(A) must first take into account the conduct of the defendant.

      In other words, how were the offenses committed? If any of the following is

      true, the offenses cannot merge and the defendant may be convicted and

      sentenced for multiple offenses: (1) the offenses are dissimilar in import or

      significance—in other words, each offense caused separate, identifiable

      harm, (2) the offenses were committed separately, and (3) the offenses

      were committed with separate animus or motivation.

                                           ***

             An affirmative answer to any of the above will permit separate

      convictions.    The conduct, the animus, and the import must all be

      considered.

R.C. 2925.03 (A) provides:

      {¶15} (A) No person shall knowingly do any of the following:

             (1) Sell or offer to sell a controlled substance or a controlled

      substance analog;

                                           ***

             (C) Whoever violates division (A) of this section is guilty of one of the

      following:
Ashland County, Case No. 16-COA-019                                                      7


            (1) If the drug involved in the violation is any compound, mixture,

     preparation, or substance included in schedule I or schedule II, with the

     exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled

     substance analogs, whoever violates division (A) of this section is guilty of

     aggravated trafficking in drugs.      The penalty for the offense shall be

     determined as follows:

                                           ***

            b) Except as otherwise provided in division (C)(1)(c), (d), (e), or (f) of

     this section, if the offense was committed in the vicinity of a school or in the

     vicinity of a juvenile, aggravated trafficking in drugs is a felony of the third

     degree, and division (C) of section 2929.13 of the Revised Code applies in

     determining whether to impose a prison term on the offender.

     {¶16} R.C. 2919.22 Endangering Children provides,

            (A) No person, who is the parent, guardian, custodian, person having

     custody or control, or person in loco parentis of a child under eighteen years

     of age or a mentally or physically handicapped child under twenty-one years

     of age, shall create a substantial risk to the health or safety of the child, by

     violating a duty of care, protection, or support. It is not a violation of a duty

     of care, protection, or support under this division when the parent, guardian,

     custodian, or person having custody or control of a child treats the physical

     or mental illness or defect of the child by spiritual means through prayer

     alone, in accordance with the tenets of a recognized religious body.
Ashland County, Case No. 16-COA-019                                                          8


       {¶17} Relative to the case at bar, endangering children requires that Starr be the

parent of the child and that he, as a parent, create a substantial risk to the health or safety

of the child, by violating a duty of care, protection, or support. Trafficking in heroin does

not require the offender be the parent, guardian or custodian of the child. For example,

if the offender sells heroin on the street corner and a child who is a stranger to the offender

is standing on the opposite street corner, the offender can be convicted of trafficking in

the vicinity of a juvenile; however the offender cannot be convicted of child endangering.

       {¶18} In this case, Starr violated a duty of care, protection, or support by placing

the child in the car with the intent to sell heroin. Starr created a substantial risk to the

health or safety of the child by placing the child into the car and driving to a location to

make a drug deal.

       {¶19} Pursuant to Rodgers, it is Starr’s burden to demonstrate a reasonable

probability that his convictions were for allied offenses of similar import committed with

the same conduct and without a separate animus.             Because the elements of child

endangerment and trafficking in heroin in the vicinity of a juvenile in this case demonstrate

different elements, we find that Starr has failed to demonstrate any probability that he was

convicted of allied offenses of similar import committed with the same conduct and the

same animus. Thus, Starr’s double jeopardy rights were not violated by the trial court’s

sentence.

       {¶20} Starr’s first assignment of error is overruled.
Ashland County, Case No. 16-COA-019                                                        9


                                                 II.

       {¶21} In his second assignment of error, Starr argues that his plea was not

knowing, intelligent and voluntary. Specifically, Starr contends that the trial court did not

insure the he “knew and understood” his rights.

       {¶22} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C).      State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d

115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme

Court noted the following test for determining substantial compliance with Crim.R. 11:

              Though failure to adequately inform a defendant of his constitutional

       rights would invalidate a guilty plea under a presumption that it was entered

       involuntarily and unknowingly, failure to comply with non-constitutional

       rights will not invalidate a plea unless the defendant thereby suffered

       prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

       The test for prejudice is ‘whether the plea would have otherwise been

       made.’ Id. Under the substantial-compliance standard, we review the

       totality of circumstances surrounding [the defendant’s] plea and determine

       whether he subjectively understood [the effect of his plea]. See, State v.

       Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.

       {¶23} It is also well established that a defendant need not have a complete or

technical understanding of each constitutional rights, such as the jury trial right, in order
Ashland County, Case No. 16-COA-019                                                         10

to knowingly and intelligently waive it. State v. Bays, 87 Ohio St.3d 15, 20, 716 N.E.2d

1126 (1999). In State v. Jells, the Ohio Supreme Court held:

              There is no requirement in Ohio for the trial court to interrogate a

       defendant in order to determine whether he or she is fully apprised of the

       right to a jury trial. The Criminal Rules and the Revised Code are satisfied

       by a written waiver, signed by the defendant, filed with the court, and made

       in open court, after arraignment and opportunity to consult with counsel.

53 Ohio St.3d 22, 25–26, 559 N.E.2d 464(1990). This test applies to other constitutional

rights as well. See, State v. Truitt, 10th Dist. Franklin No. 10AP-795, 2011-Ohio-2271

(jury trial and right to remain silent); State v. Ballard, 6th Dist. Lucas No. L-04-1070, L-05-

1027, 2006-Ohio-1863 (right to compel attendance of witnesses).

       {¶24} Further, evidence of a written waiver form signed by the accused is strong

proof that the waiver was valid. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844,

854(1988); see North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758-

1759, 60 L.Ed.2d 286, 293(1979); State v. Dennis, 79 Ohio St.3d 421, 425, 1997-Ohio-

372, 683 N.E.2d 1096, 1102(1997).

       {¶25} In the case at bar, Starr was represented by counsel. A written plea of guilty

form signed by Starr, defense counsel, the prosecutor and the trial judge was filed on

December 30, 2015. A written waiver of constitutional rights is presumed to have been

voluntary, knowing, and intelligent. State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938,

826 N.E.2d 266, ¶25. Further, the trial court conducted a lengthy inquiry concerning each

of Starr’s constitutional rights during the change of plea hearing on December 30, 2015.

       {¶26} We reviewed the transcript of the hearing at which the trial court conducted
Ashland County, Case No. 16-COA-019                                                            11


the plea colloquy required by Crim.R. 11 and determined that the court substantially

complied with Crim.R. 11(C)(2)(a) and (b) and strictly complied with Crim.R. 11(C)(2)(c).

          {¶27} We further note in the case at bar that, Starr through counsel, filed a motion

to withdraw his guilty plea with the trial court before sentencing on February 19, 2016.

The reasons asserted in the motion were that Starr wanted to proceed with a jury trial on

the charges and he desired to preserve a speedy trial argument for appeal. The court

scheduled a hearing on the motion for May 1, 2016 by Judgment Entry filed April 4, 2016.

On April 20, 2016, Starr through counsel filed a written motion to withdraw his motion. By

Judgment Entry filed April 29, 2016, the trial court granted Starr’s motion to withdraw his

previously filed motion to withdraw his guilty plea. Clearly, Starr had an understanding of

his constitutional rights.

          {¶28} Starr’s second assignment of error is overruled.

                                                    III.

          {¶29} In his third assignment of error, Starr argues the trial court failed to set forth

the R.C. 2929.12 sentencing factors that it considered when sentencing Starr in the case

at bar.

          {¶30} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.

We now review felony sentences using the standard of review set forth in R.C. 2953.08.

State v. Marcum, __Ohio St.3d__, 2016–Ohio–1002, __N.E.3d ___, ¶22; State v. Howell,

5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 2953.08(G)(2) provides

we may either increase, reduce, modify, or vacate a sentence and remand for

resentencing where we clearly and convincingly find that either the record does not
Ashland County, Case No. 16-COA-019                                                           12


support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or

(C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v.

Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

       {¶31} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

       {¶32} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.

       {¶33} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
Ashland County, Case No. 16-COA-019                                                      13

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

       {¶34} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,

4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

       {¶35} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its

findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

       {¶36} Prior to sentencing, the trial court stated that it had considered the purposes

and principles of sentencing [R.C. 2929.11] as well as the factors that the court must

consider when determining an appropriate sentence. [R.C. 2929.12]. The trial court has
Ashland County, Case No. 16-COA-019                                                         14


no obligation to state reasons to support its findings. Nor is it required to give a talismanic

incantation of the words of the statute, provided that the necessary findings can be found

in the record and are incorporated into the sentencing entry. The record contains the

statements of counsel, Starr’s allocution and the pre-sentence investigation report.

       {¶37} Starr was sentenced for a felony of the third degree. The sentencing range

for a third degree felony is nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.

R.C. 2929.14(A)(3)(b). Starr was given a sentence of eighteen months, which is within

the statutory range.

       {¶38} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range.       Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and recidivism

factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and

advised Starr regarding post release control.

       {¶39} We find the trial court properly considered the purposes and principles of

sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.

2929.12, along with all other relevant factors and circumstances. While Starr may

disagree with the weight given to these factors by the trial judge, Starr’s sentence was

within the applicable statutory range for a felony of the third degree and therefore, we

have no basis for concluding that it is contrary to law.

       {¶40} Smith’s third assignment of error is overruled.
Ashland County, Case No. 16-COA-019                                       15


      {¶41} The judgment of the Ashland County Court of Common Pleas, Ashland

County, Ohio is affirmed.


By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
