[Cite as State v. Ross, 2014-Ohio-1675.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                         C.A. No.       13CA0015

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOSHUA A. ROSS                                        COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   12-CR-0417

                                  DECISION AND JOURNAL ENTRY

Dated: April 21, 2014



        CARR, Judge.

        {¶1}     Appellant Joshua Ross appeals the judgment of the Wayne County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands for resentencing.

                                                 I.

        {¶2}     Ross was indicted on one count of aggravated robbery (count 1), a felony of the

first degree; one count of aggravated burglary (count 2), a felony of the first degree; one count of

robbery (count 3), a felony of the second degree; and one count of having weapons while under

disability (count 4), a felony of the third degree. Each of the four counts included an identical

firearm specification. Pursuant to the indictment, all four counts were alleged to have occurred

on or about November 15, 2012, arising out of the same course of conduct.

        {¶3}     The parties engaged in plea negotiations, resulting in the State’s dismissal of

counts 1 and 3, and its amendment of count 2 to burglary, a felony of the second degree, in

exchange for Ross’ guilty plea to amended count 2 and count 4. After Ross pleaded guilty, he
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requested that the trial court proceed immediately to sentencing.         The assistant prosecutor

informed the court that the parties agreed as part of their plea bargain that amended count 2 and

count 4 constituted allied offenses of similar import and that the sentences for those offenses

would merge. The State then elected to have Ross sentenced on count 2, burglary and its

attendant firearms specification.

        {¶4}    The trial court imposed a sentence of six years for burglary and three years for the

attendant firearm specification, to be served consecutively. The trial court further imposed a

sentence of three years for having weapons while under disability and three years for the

attendant firearm specification, ordering those sentences to be served consecutively to one

another, but concurrently with the nine-year sentence imposed relative to count 2. Ross moved

for leave to file a delayed appeal, and this Court granted leave. Ross raises six assignments of

error for review. Some assignments of error are rearranged and some are consolidated to

facilitate review.

                                                 II.

                                    ASSIGNMENT OF ERROR I

        JOSHUA ROSS’S CHANGE OF PLEA WAS RENDERED UNKNOWING
        AND INVOLUNTARY WHEN THE SENTENCING COURT FAILED TO
        SUBSTANTIALLY   COMPLY WITH CRIM.R. 11(C)’S NOTICE
        REQUIREMENTS REGARDING MAXIMUM PENALTY AND EFFECT OF
        THE PLEA.

        {¶5}    Ross argues that he did not enter his guilty plea knowingly and voluntarily

because the trial court failed to explain the maximum possible penalty associated with the

firearms specification associated with count 4. This Court disagrees.

        {¶6}    “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of
                                                  3


the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”

State v. Engle, 74 Ohio St.3d 525, 527 (1996). Compliance with the mandates of Crim.R. 11(C)

allows for the determination of whether the defendant’s plea was entered in a knowing,

intelligent, and voluntary manner. State v. Nero, 56 Ohio St.3d 106, 107 (1990). The rule

provides:

       In felony cases the court may refuse to accept a plea of guilty or a plea of no
       contest, and shall not accept a plea of guilty or no contest without first addressing
       the defendant personally and doing all of the following:

       Determining that the defendant is making the plea voluntarily, with understanding
       of the nature of the charges and of the maximum penalty involved, and if
       applicable, that the defendant is not eligible for probation or for the imposition of
       community control sanctions at the sentencing hearing.

       Informing the defendant of and determining 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 sentence.

       Informing the defendant and determining that the defendant understands that by
       the plea the defendant is waiving the rights to jury trial, to confront witnesses
       against him or her, to have compulsory process for obtaining witnesses in the
       defendant’s favor, and to require the state to prove the defendant’s guilty beyond
       a reasonable doubt at a trial at which the defendant cannot be compelled to testify
       against himself or herself.

Crim.R. 11(C)(2)(a)-(c).

       {¶7}      While trial courts must strictly comply with the constitutional notifications of the

rule, they need only substantially comply with the nonconstitutional notifications. State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 14, 18. Substantial compliance requires that the

defendant subjectively understand the implications of his plea based on a totality of the

circumstances.     Id. at ¶ 15.     “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 nonconstitutional rights [subject only to

substantial compliance with Crim.R. 11(C)] will not invalidate a plea unless the defendant
                                                 4


thereby suffered prejudice.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12. The test

for prejudice is “whether the plea would have otherwise been made.” Nero, 56 Ohio St.3d at

108, citing State v. Stewart, 51 Ohio St.2d 86, 93 (1977).

       {¶8}       Ross argues that there was no substantial compliance with Crim.R. 11(C)(2)(a)

because the trial court did not inform him of the maximum penalty associated with the firearm

specification relevant to count 4 (having weapons while under disability). Ross concedes that

the issue of maximum penalties implicates a nonconstitutional issue subject only to substantial

compliance with the rule. He argues that the court did not substantially comply with the rule

because it explained the maximum mandatory penalty only for the firearm specification

associated with count 2 (burglary). In addition, Ross argues that, when inquiring as to his plea to

counts 2 and 4, the trial court only mentioned the underlying felonies, not the firearm

specifications.

       {¶9}       Under the totality of the circumstances, however, we conclude that Ross

subjectively understood the nature of the charges against him and the maximum penalties

involved. When the trial court first explained the charges, count 2 as amended and count 4 as

indicted, it explained that there was a firearm specification associated with each felony. Ross

asserted his understanding of the charges. He further asserted his understanding that his guilty

plea to the offenses would constitute a complete admission that he committed the allegations as

explained. The trial court next explained the maximum penalty for burglary and the three-year

mandatory penalty for the firearm arm specification. It then explained the maximum penalty for

having weapons while under disability, although it did not reiterate the penalty for the firearm

specification associated with count 4. Ross further executed a written Plea of Guilty/Criminal

Rule 11(C) document, which reiterated the nature of the two felonies and a firearm specification.
                                                5


His written plea stated that he understood the nature of the charges and maximum penalties and

that he had an opportunity to discuss his case with his attorney. Defense counsel stated on the

record that Ross understood the mandatory prison sentence associated with the firearm

specification. The assistant prosecutor stated on the record that the felony and firearm

specification in count 2 would merge with the felony and firearm specification in count 4, and

that the State would elect for Ross to be sentenced only on count 2. When the trial court inquired

regarding Ross’ plea, it made reference to the charges by count numbers.              Under these

circumstances, Ross had a clear understanding of the nature of the charges and the maximum

penalties he faced. He was aware that each count carried a firearm specification, that the firearm

specification carried a mandatory three-year prison term, and that the two counts would merge

for purposes of sentencing.

         {¶10} Moreover, Ross has not demonstrated prejudice, i.e., that he would not otherwise

have pleaded guilty to the two counts. He alleges two bases for prejudice. First, he argues that it

is prejudicial “to have that second specification sentence on his record, because it should not be

there.” To the extent that he is arguing that the trial court erroneously imposed a sentence on

both felonies and firearm specifications when the parties agreed that the two counts would merge

for sentencing, that is a sentencing issue that this Court will address in a later assignment of

error.   Second, Ross argues that he suffered prejudice because he was “surprised” by the

sentence. He cites no authority for the proposition that surprise constitutes prejudice. Moreover,

he does not assert that he would not have pleaded guilty under these circumstances.

         {¶11} This Court concludes that the trial court substantially complied with the

notification requirements in Crim.R. 11(C)(2) relevant to the nature of the offenses and the
                                                   6


maximum penalties associated with the charges. In addition, Ross has failed to establish that he

was prejudiced by the trial court’s notification. Ross’ first assignment of error is overruled.

                                   ASSIGNMENT OF ERROR V

           IT WAS ERROR TO DENY JOSHUA ROSS’S MOTION TO WITHDRAW HIS
           PLEA.

           {¶12} Ross argues that the trial court abused its discretion by denying his post-sentence

motion to withdraw his guilty plea. This Court disagrees.

           {¶13} As a general matter, the decision to grant or deny a motion to withdraw a guilty

plea lies within the sound discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 264

(1977). An abuse of discretion is more than an error in judgment; it means that the trial court

was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not

substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d

619, 621 (1993).

           {¶14} The law regarding a post-sentence motion to withdraw a guilty plea is well-

settled.

           Pursuant to Crim.R. 32.1, a motion to withdraw a plea of guilty or no contest may
           be made only before sentence is imposed; but to correct manifest injustice the
           court after sentence may set aside the judgment of conviction and permit the
           defendant to withdraw his or her plea. In a post-sentence motion, the burden of
           establishing the existing of a manifest injustice is upon the individual seeking to
           withdraw the plea. A manifest injustice has been defined as a clear or openly
           unjust act. Under the manifest injustice standard, a post-sentence withdrawal
           motion is allowable only in extraordinary cases.

(Internal citations and quotations omitted.) State v. Brown, 9th Dist. Summit No. 24831,

2010-Ohio-2328, ¶ 9.
                                                 7


       {¶15} In support of his motion to withdraw his guilty plea, Ross averred in an affidavit

that he was denied a preliminary hearing on the charges and that counsel was ineffective for

waiving the preliminary hearing, that he was not advised of his right to appeal at sentencing, and

that his constitutional rights were violated.

       {¶16} Crim.R. 5(B) discusses when a preliminary hearing is necessary. The rule states,

in relevant part: “The preliminary hearing shall not be held, however, if the defendant is

indicted.” Crim.R. 5(B)(1). Ross was indicted, and the record contains nothing prior to the

indictment.

       {¶17} Although Ross did not invoke Crim.R. 11(C) by name in either his motion to

withdraw his plea or his accompanying affidavit, that rule does not require notification of the

right to appeal. In addition, Ross executed a written plea of guilty document evidencing that he

understood his limited appellate rights, including the right to appeal a maximum sentence.

Moreover, Ross did not identify the constitutional rights he asserted were violated and which

required withdrawal of his guilty plea. However, a “guilty plea waive[s] any complaint as to

claims of constitutional violations not related to the entry of the guilty plea.” State v. Ketterer,

111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 105. As he did not allege any constitutional violations

related to the entry of his guilty plea, Ross has not demonstrated a manifest injustice requiring

withdrawal of his plea.

       {¶18} For the reasons above, Ross failed to demonstrate that withdrawal of his plea was

necessary to cure a manifest injustice. Under the circumstances, the trial court did not abuse its

discretion by denying his motion to withdraw his plea. Ross’ fifth assignment of error is

overruled.
                                               8


                                ASSIGNMENT OF ERROR II

       THE SENTENCE ON TWO FIREARM SPECIFICATIONS WAS CONTRARY
       TO LAW.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED PLAIN ERROR BY SENTENCING
       JOSHUA ROSS ON BOTH AMENDED COUNT 2 AND COUNT 4, WHEN
       THESE COUNTS SHOULD HAVE MERGED AS ALLIED OFFENSES OF
       SIMILAR IMPORT.

       {¶19} Ross argues that the trial court erred by imposing a sentence on count 4, having

weapons while under disability and the associated firearms specification. This Court agrees.

       {¶20} The Ohio Supreme Court recognizes:

       R.C. 2941.25 “codifies the protections of the Double Jeopardy Clause of the Fifth
       Amendment to the United States Constitution and Section 10, Article I of the
       Ohio Constitution, which prohibits multiple punishments for the same offense.”
       State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. At the heart of R.C.
       2941.25 is the judicial doctrine of merger; merger is “the penal philosophy that a
       major crime often includes as inherent therein the component elements of other
       crimes and that these component elements, in legal effect, are merged in the major
       crime.” State v. Botta, 27 Ohio St.2d 196, 201 (1971).

State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 13.

       {¶21} The high court has explained the application of the merger doctrine as follows:

       When a defendant has been found guilty of offenses that are allied offenses, R.C.
       2941.25 prohibits the imposition of multiple sentences. State v. Whitfield, 124
       Ohio St.3d 319, 2010-Ohio-2, ¶ 12. Therefore, a trial court must merge the
       crimes into a single conviction and impose a sentence that is appropriate for the
       offense chosen for sentencing. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-
       4569, ¶ 41-43.

State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17.

       {¶22} As an initial matter, this Court declines to consider the State’s argument that the

offenses of burglary and having weapons while under disability are not allied offenses of similar

import in this case. The State expressly asserted at the plea/sentencing hearing that the two

counts were allied offenses of similar import and that the State was electing to proceed to
                                                9


sentencing on the burglary count. The parties properly entered into a negotiated plea and the

agreement was stated on the record in open court. See Crim.R. 11(F). The State cannot now be

heard to attempt to modify the terms of that agreement.

       {¶23} In this case, the trial court accepted Ross’ guilty plea and found him guilty of both

count 2 and count 4. Despite the parties’ agreement that the counts were allied offenses and the

State’s election to proceed to sentencing on count 2, the trial court imposed a sentence on both

count 2 and count 4 and ran those sentences concurrently. “The imposition of concurrent

sentences is not the equivalent of merging allied offenses.” Damron at ¶ 17. The trial court,

therefore, improperly imposed a sentence for having weapons while under disability and that

count’s attendant firearms specification. This matter must, therefore, be remanded to the trial

court for resentencing solely on the count elected by the State.        Ross’ second and third

assignments of error are sustained.

                                ASSIGNMENT OF ERROR IV

       IT WAS PLAIN ERROR FOR THE TRIAL COURT TO ASSERT
       JURISDICTION OVER THE CASE, WHEN THE CHARGE WAS DISMISSED
       IN THE MUNICIPAL COURT AFTER JOSHUA ROSS HAD BEEN
       INCARCERATED FOR SEVENTEEN DAYS WITHOUT A PRELIMINARY
       HEARING OVER HIS OBJECTION AND MOTION TO DISMISS WITH
       PREJUDICE.

       {¶24} Ross argues that the common pleas court did not have jurisdiction over this matter

because the charges had to be dismissed for failure of the municipal court to accord him a timely

preliminary hearing. This Court disagrees.

       {¶25} R.C. 2945.73(A) provides that “[a] charge of felony shall be dismissed if the

accused is not accorded a preliminary hearing within the time required by sections 2945.71 and

2945.72 of the Revised Code.” Ross asserts that he was not accorded a preliminary hearing in
                                                10


the municipal court within the statutorily required timeframe. Accordingly, he argues that the

charges would have properly been discharged.

       {¶26} The municipal court record is not before this Court for review. Accordingly, we

have no ability or authority to consider this argument on appeal. The record does however

contain the indictment. As we earlier recognized, Crim.R. 5(B) provides that no preliminary

hearing shall be held if the defendant is indicted. Based on the record before us, there is nothing

to indicate that the common pleas court was divested of jurisdiction to hear the criminal case

before it. Ross’ fourth assignment of error is overruled.

                                ASSIGNMENT OF ERROR VI

       JOSHUA ROSS SUFFERED INEFFECTIVE ASSISTANCE OF COUNSEL IN
       VIOLATION OF U.S. CONST. AMEND. VI, XIV, AND OHIO CONST. ART.
       I, SEC. 10.

       {¶27} Ross argues that his trial counsel was ineffective with regard to (1) sentencing

issues previously raised in this appeal, and (2) the failure to raise jurisdictional issues. This

Court disagrees.

       {¶28} This Court uses a two-step process as set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984), to determine whether a defendant’s right to the effective assistance of

counsel has been violated.

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive
       the defendant of a fair trial, a trial whose result is reliable.

Id.

       {¶29} Based on our resolution of Ross’ second and third assignments of error resulting

in remand to the trial court for resentencing, the majority of Ross’ argument is rendered moot.
                                                 11


We, therefore, decline to address the issue of ineffective assistance of counsel with regard to the

assigned sentencing errors. See App.R. 12(A)(1)(c).

       {¶30} Ross further argues that trial counsel was ineffective for failing to raise the issue

of the common pleas court’s jurisdiction to proceed with the case based on his lack of a

preliminary hearing in the municipal court. This Court reiterates that the record is devoid of

information relevant to the case, if any, before the municipal court. Therefore, we have no

knowledge of whether or not a preliminary hearing occurred. We further reiterate that Crim.R.

5(B) provides that no preliminary hearing shall be held if the defendant is indicted. Ross was

indicted on four felonies and four firearm specifications in this case. Accordingly, there was no

error in trial counsel’s failure to challenge the jurisdiction of the common pleas court on the basis

that the charges must be dismissed for failure to accord Ross a preliminary hearing. In the

absence of any error, we cannot conclude that trial counsel was ineffective.            Ross’ sixth

assignment of error is overruled.

                                                III.

       {¶31} Ross’ first, fourth, fifth, and sixth assignments of error are overruled. His second

and third assignments of error are sustained. The judgment of the Wayne County Court of

Common Pleas is affirmed in part, reversed in part, and the cause remanded for resentencing

consistent with this opinion.

                                                                         Judgment affirmed in part,
                                                                                  reversed in part,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.
                                                12


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



WHITMORE, J.
CONCURS.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

CLARKE W. OWENS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
