[Cite as State v. Johnson, 2018-Ohio-1387.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105424




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                TORRANCE JOHNSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-609073-A

        BEFORE: E.T. Gallagher, P.J., Stewart, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: April 12, 2018
ATTORNEY FOR APPELLANT

Timothy F. Sweeney
The 820 Building, Suite 430
820 West Superior Avenue
Cleveland, Ohio 44113-1800


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Shannon M. Raley
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:

      {¶1} Defendant-appellant, Torrance Johnson, appeals his convictions and sentence.

 He claims the following two errors:

      1. Johnson’s guilty plea to the amended charges was not made knowingly,
      voluntarily, and intelligently, and, as a result, the court’s acceptance of that
      plea was in violation of Johnson’s constitutional rights and Crim.R. 11.

      2. Johnson’s convictions for (1) improperly discharging a firearm into a
      habitation, (2) felonious assault, and (3) discharge of a firearm on or near a
      prohibited premises should have been merged into a single conviction on
      only one of those allied offenses of similar import. The trial court’s failure
      to merge in these circumstances violated Ohio merger law and Johnson’s
      rights to due process and against being subjected to double jeopardy.

      {¶2} We find no merit to the appeal and affirm the trial court’s judgment.

                            I. Facts and Procedural History

      {¶3} Johnson was charged with six counts of improperly discharging a firearm into

a habitation, one count of having a weapon while under disability, one count of aggravated

menacing, one count of receiving stolen property, four counts of felonious assault, and one

count of discharging a firearm on or near a prohibited premises. The discharging a

firearm into a habitation and discharging a firearm on or near a prohibited premises counts

included one- and three-year firearm specifications.

      {¶4} The charges resulted from an incident that occurred in August 2016.

Following an argument, Johnson’s wife locked herself in a bathroom. Johnson, who had

been drinking, took a handgun and fired two rounds above the bathroom door where his

wife was hiding. Still angry, Johnson went outside and fired two more shots into the
house. At the time Johnson fired the shots, his wife, children, and other relatives were

present in the house.

       {¶5} Pursuant to a plea agreement, Johnson pleaded guilty to one count of

discharging a firearm into a habitation with a three-year firearm specification, one count of

having a weapon while under disability, one count of receiving stolen property, and one

count of discharging a firearm on or near a prohibited premises. Johnson also pleaded

guilty to one count of felonious assault, which was amended to change the name of the

victim.

       {¶6} The court sentenced Johnson to six years in prison on the discharging a

firearm into a habitation conviction to be served consecutive to the three-year firearm

specification on that count, for an aggregate nine-year sentence. The court also sentenced

Johnson to 24 months for having a weapon while under disability, 12 months for receiving

stolen property, six years for felonious assault, and 24 months for discharging of a firearm

on or near a prohibited premises conviction, to be served concurrently with the nine-year

sentence on the discharging a firearm into a habitation conviction.

       {¶7} Johnson now appeals his convictions and sentence.

                                  II. Law and Analysis

                                      A. Guilty Plea

       {¶8} In his first assignment of error, Johnson argues his guilty pleas should be

vacated as involuntarily made because the trial court failed to ensure that he understood

the factual basis for the allegations alleged in each count. Johnson also contends that
despite his protestations of innocence with respect to the felonious assault charge, the trial

court failed to comply with the additional requirements established in North Carolina v.

Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), for accepting a guilty plea

accompanied by a genuine claim of innocence.

       {¶9} A guilty plea that is not knowingly, intelligently, and voluntarily made violates

the Ohio and United States Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 660

N.E.2d 450 (1996).      Crim.R. 11(C) sets forth certain constitutional and procedural

safeguards with which the trial court must comply prior to accepting a guilty plea to ensure

the voluntariness of the plea. As relevant here, Crim.R. 11(C)(2) provides that the trial

court shall not accept a guilty plea in a felony case without personally addressing the

defendant and doing all of the following:

       (a) 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.

       (b) 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.

       (c) 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 guilt beyond a reasonable doubt at a trial at which the defendant

       cannot be compelled to testify against himself or herself.
       {¶10} The trial court must strictly comply with those provisions of

Crim.R. 11(C)(2) that relate to the waiver of constitutional rights. State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus. As to the nonconstitutional

aspects of Crim.R. 11(C)(2), which includes a defendant’s right to have an understanding

of the “the nature of the charges” and “the maximum penalty involved” and to be informed

of and understand the effect of a guilty plea, substantial compliance is required. Id. at ¶

14; State v. Moore, 8th Dist. Cuyahoga No. 101658, 2015-Ohio-1026, ¶ 12.

       {¶11} “Substantial compliance means that under the totality of the circumstances

the defendant subjectively understands the implications of his plea and the rights he is

waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If a trial court

fails to substantially comply with one of the nonconstitutional aspects of Crim.R. 11(C)(2),

a determination must be made as to whether the trial court partially complied or

completely failed to comply the requirement at issue. State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. If the trial court partially complied, the plea is

properly vacated only if the defendant demonstrates prejudice. Id. If the trial court

completely failed to comply, the plea must be vacated; a showing of prejudice is not

required. Id.

       {¶12} There is no precise method for determining a defendant’s subjective

understanding of the plea proceedings. State v. Davner, 8th Dist. Cuyahoga Nos. 104745

and 105144, 2017-Ohio-8862, ¶ 43.         However, if a defendant received the proper

information during the plea colloquy, we may presume that he understood it. Id., citing
State v. Cardona, 8th Dist. Cuyahoga No. 75556, 1999 Ohio App. LEXIS 6064, 12 (Dec.

16, 1999). Therefore, where a trial court complies with Crim.R. 11(C)(2) in accepting a

plea, there is a presumption that the defendant’s plea was knowingly, intelligently, and

voluntarily made.     Id., citing State v. Alexander, 8th Dist. Cuyahoga No. 103754,

2016-Ohio-5707, ¶ 11.

       {¶13} It is undisputed that the trial court fully complied with Crim.R. 11(C)(2) with

respect to Johnson’s constitutional rights. Johnson asserts that he did not understand the

nature of the charges against him because he only had a ninth grade education and because

the trial court failed to explain the elements of each offense.

       {¶14} However, neither a detailed recitation of the elements of the charges nor an

inquiry as to whether the defendant understands the elements of the charges is required

unless the totality of the circumstances indicate that the defendant did not understand the

charges. State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶

56; State v. Krcal, 8th Dist. Cuyahoga No. 80061, 2002-Ohio-3634, ¶ 25.

       {¶15} Although Johnson asserts he did not understand the charges due to his limited

education, the record shows that Johnson was endeavoring to obtain his GED, had taken

the test once, and only failed the math section. He indicated that he could read and write

and was not under the influence of alcohol, drugs, or medications that would affect his

ability to understand the proceedings. And Johnson’s competency was never raised as an

issue in this case. Therefore, the record is devoid of any circumstances indicating that

Johnson was unable to understand the proceedings.
       {¶16} Before explaining the charges, the court invited Johnson to ask any questions

he may have during the plea proceedings. In this regard, the court instructed:

       [I]f you have any questions of me about anything I say or, perhaps a question
       I might ask you that you don’t quite understand, let me know and I will clear
       it up.

       Likewise, if you would like to have the opportunity to speak with [your
       lawyer] about something in private, let me know. I will make sure that
       happens as well.

       Does that sound like a plan?

        THE DEFENDANT: Yes, sir.
(Tr. 8.)

       {¶17} During the colloquy, the trial court identified each charge by name with its

felony classification and described the range of potential penalties associated with each

charge, including the maximum penalties. (Tr. at 14-17.) The court also explained the

potential aggregate sentence Johnson could receive, ensured that Johnson understood that

he was forfeiting the firearm and magazine used in the crimes, and explained the terms of

postrelease control. (Tr. 18.) After reviewing the charges and penalties, but before

accepting Johnson’s pleas, the court again asked if Johnson had any questions about

anything the court had discussed up to that point in the proceedings, and Johnson replied:

“No, sir.”   Although Johnson had indicated that he understood all aspects of the

proceedings, the court nevertheless inquired further:

       THE COURT: Do you feel that you have a complete understanding of what
       it is that you are pleading to, what the maximum penalties might be, and all
       the rights that you have that you are giving up or waiving?

       THE DEFENDANT: Yes, sir.
The trial court discussed all the information necessary for Johnson to make an informed

decision regarding his guilty pleas. Therefore, in the absence of any evidence to the

contrary, we may presume that Johnson understood the nature of the charges to which he

pleaded guilty.

       {¶18} Johnson nevertheless argues that his guilty pleas should be vacated because

the trial court failed to comply with the additional requirements of an Alford plea. When

a defendant makes an Alford plea, the trial court has a duty to make further inquiries to

ensure the voluntariness of his plea. State v. Alvelo, 8th Dist. Cuyahoga No. 104422,

2017-Ohio-742; Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. An Alford plea

occurs when a defendant pleads guilty while simultaneously maintaining actual innocence

of the charges. Alvelo at ¶ 23-25.

       {¶19} Johnson contends he asserted his innocence of the felonious assault charge

when he told the court, moments before pleading guilty, that he was “not trying to hurt

anybody.” The state, however, maintains that Johnson never asserted his innocence and

that Johnson’s statement that he did not intend to hurt anyone was an expression of regret

rather than a declaration of innocence that would elicit an Alford inquiry. We must,

therefore, determine whether Johnson’s assertion that he did not intend to hurt anyone

constitutes a protestation of innocence that would give rise to an Alford plea.

       {¶20} In Alford, the defendant stated: “I’m not guilty, but I plead guilty.” Alford at
28. The United States Supreme Court determined that Alford’s assertion that he was not
guilty was sufficient to require the trial court to inquire as to whether Alford had a rational
basis for pleading guilty. In State v. Padgett, 67 Ohio App.3d 332, 586 N.E.2d 1194 (2d
Dist.1990), the Second District held that the following was a protestation of innocence that
required the trial court to conduct an Alford inquiry:

       [Padgett’s attorney]: * * * That is a correct statement of the plea
       negotiations. At this time Mr. Padgett is ready to tender a plea of guilty to
       two counts of aggravated burglary.

          THE COURT: Is this what you want to do?

          THE DEFENDANT: Yeah. I want to go ahead and do that.

          *   *    *

       COURT: And you understand in each case you have a right to face the
       people that accuse you of these charges?

          DEFENDANT: Yeah. She was lying. * * *

          COURT: Do you understand what you are charged with?

          DEFENDANT: Yeah. That’s a lie.

       {¶21} Johnson argues the following exchange demonstrates that he protested his

innocence at the plea hearing in this case:

       THE COURT: As a total aside here, your emotional response to me at this
       point seems genuine, and I mean that.

       What is disappointing for me about that, these are serious charges which
       your response now tells me, anyways, that you are not just some terrible
       monster thug.

       THE DEFENDANT: Can I speak, please?

       THE COURT: Yeah.

       THE DEFENDANT: I understand what I did was wrong. Like, I can’t
       make an excuse what I did because wrong is wrong.
       At the time, I was just angry, and drinking. My wife, we was both having
       problems. Her mother, auntie moving in, we not getting along. It was —
       we were both drinking. I shouldn’t did what I did.
       THE COURT: I get all that.

       THE DEFENDANT: I’m not trying to hurt nobody. I promise I wasn’t.

       THE COURT: I understand that.

       THE DEFENDANT: I didn’t want to leave. I was angry.

       THE COURT: Here. We can talk more about those issues at the time of
       sentencing. I’m just trying to share with you again what I see and what I
       perceive to be a genuine display of emotion.

       I’m disappointed. That’s all that I am compelled to tell you. We will talk
       more about it as we go through. Fair enough?

       THE DEFENDANT: Yes, sir.

       {¶22} However, Johnson pleaded guilty to one count of felonioius assault in

violation of R.C. 2903.11(A)(2), which states, in relevant part, that “[n]o person shall

knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a

deadly weapon.” “Knowingly” is the mens rea element of the offense. R.C. 2901.22(B)

states that “[a] person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such circumstances

probably exist.” (Emphasis added.)

       {¶23} Johnson admitted that he fired gunshots into an occupied structure.

Although he may not have specifically intended to hit a particular person with a bullet, he

knew that by firing a gun into an occupied structure, he was creating a substantial risk that
someone would be hit by a bullet. He knew that his conduct could cause serious physical

harm to someone. Therefore, Johnson never denied the charges; he simply expressed

remorse.

       {¶24} Padgett categorically denied the charges against him, not once, but twice.

Alford’s assertion of innocence was clear and unequivocal.            Indeed, Alford never

wavered from his claim of innocence during a subsequent hearing on his claim of

innocence. Johnson asserted that he never meant to hurt anyone but admitted in the same

breath that his conduct “was wrong,” and that he could “not make an excuse” for it.

Moreover, Johnson never denied committing the offenses. Unlike Alford and Padgett, who

never conceded guilt, Johnson admitted that he committed the crimes and took full

responsibility for them. We agree with the state that Johnson’s remark that he did not

mean to hurt anyone was an expression of remorse rather than an affirmative declaration

of innocence and was, therefore, insufficient to trigger an Alford inquiry.

       {¶25} The first assignment of error is overruled.




                                    B. Allied Offenses

       {¶26} In the second assignment of error, Johnson argues his discharging a firearm

into a habitation, felonious assault, and discharging a firearm on or near a prohibited

premises convictions should have merged for sentencing.
       {¶27} Johnson neither raised the issue of merger nor objected to his sentence in the

trial court. He therefore forfeited all but plain error. State v. Rogers, 143 Ohio St.3d

385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-25. Crim.R. 52(B) provides that, “[p]lain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” To prevail on a claim of plain error, the defendant

must demonstrate that but for the error, the outcome of the proceedings clearly would have

been different. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of

the syllabus; Rogers at ¶ 22.

       {¶28} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio

Constitution, prohibiting multiple punishments for the same offense.           Under R.C.

2941.25(A), when the same conduct by the 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.” However,

R.C. 2941.25(B) provides:

       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.

       {¶29} Multiple offenses do not merge if (1) the offenses are dissimilar in import or

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

committed with a separate animus or motivation. State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892, syllabus. Two or more offenses are dissimilar within the

meaning of R.C. 2941.25(B) “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 syllabus.

       {¶30} Johnson’s discharging a firearm into a habitation, felonious assault, and

discharging a firearm on or near a prohibited premises convictions do not merge because

they were committed against separate victims.

       {¶31} Johnson pleaded guilty to Count 1 of the indictment, which alleges that

Johnson improperly “discharg[ed] a firearm at or into an occupied structure that is a

permanent or temporary habitation of Jamese Johnson.” The indictment identifies Jamese

Johnson’s home as the victim of the offense rather than a person.

       {¶32} Johnson also pleaded guilty to Count 14, which alleges that Johnson

improperly discharged a firearm on or near a prohibited premises.     In State v. James, 8th

Dist. Cuyahoga No. 102604, 2015-Ohio-4987, ¶ 34, we held that because discharging a

firearm on or near a prohibited premises is a strict liability offense, the victim of such an

offense is the public at large. Therefore, while the victim of Johnson’s discharging a

firearm on or near a prohibited premises was the general public, the victim of his

discharging a firearm into a habitation conviction was the occupied home of Jamese

Johnson.    Because these offenses were committed against separate victims, they are

dissimilar in import and not subject to merger under R.C. 2941.25.
       {¶33} Finally, Johnson pleaded guilty to felonious assault in violation of R.C.

2903.11(A)(2), as alleged in Count 10 of the indictment. R.C. 2903.11(A)(2) prohibits a

person from knowingly causing or attempting to cause physical harm “to another.”

Unlike Johnson’s other offenses, which were committed against the an occupied structure

and the public at large, his felonious assault conviction requires a human victim.     Count

10, as amended, alleged that Johnson knowingly caused or attempted to cause physical

harm to a person identified in the indictment as “Bennette Smith.”

       {¶34} As previously stated, the victim of Johnson’s improper discharging of a

firearm into a habitation was the occupied home of Jamese Johnson. Bennette Smith was

the victim of Johnson’s felonious assault conviction, and society at large was the victim of

Johnson’s improper discharging of a firearm on or near a prohibited premises conviction.

Because Johnson committed these offenses against three different victims, they are

dissimilar in import, and the trial court properly sentenced Johnson on all three offenses.

       {¶35} The second assignment of error is overruled.

       {¶36} Judgment 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. Case remanded to the trial court for

execution of sentence.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



EILEEN T. GALLAGHER, PRESIDING JUDGE

SEAN C. GALLAGHER, J., CONCURS WITH
SEPARATE CONCURRING OPINION
MELODY J. STEWART, J., CONCURS WITH MAJORITY
AND SEPARATE CONCURRING OPINION

SEAN C. GALLAGHER, J., CONCURRING:

       {¶37} I concur with the majority decision, but write separately in the hopes of

avoiding an analytical problem inherent in an overly broad reliance on State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, as the standard of review over all

allied-offense issues.   The fact that the state purported to name an individual as the victim

of the discharging into a habitation crime, as demonstrated from the inclusion of separate

charges for discharging into a habitation each naming a different occupant, is noteworthy.

The problem with the state’s position is that not all crimes are committed against

identifiable victims. The discharging into a habitation statute punishes an individual for

discharging a firearm into a habitation to prevent the victimization of those possibly

present.   It is for this reason that the crime is deemed committed against the habitation.

Likewise, discharging a firearm over a road reflects the legislative attempt to prevent

motorists from being harmed. Therefore, and setting aside the issue of multiple shots

being fired for the sake of this discussion, discharging a firearm into a single habitation
with multiple people present cannot lead to multiple convictions for that act — although it

could possibly lead to multiple convictions for felonious assault of those inside.

       {¶38} The state’s charging instrument in this case emphasizes the importance of

recognizing that there is no need to resort to Ruff as the only mechanism to analyze

allied-offense issues.   State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d

603, ¶ 10, citing State v. Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000). The

statute R.C. 2941.25 and the progeny of cases discussing its application are “not the sole

legislative declaration in Ohio on the multiplicity of indictments.” Id. Appellate courts

cannot get bogged down with determining whether separate victims exist for every crime

under the Ruff framework if the legislature has clearly indicated an intent to punish an

offender for the harm caused by his conduct. State v. Grayson, 8th Dist. Cuyahoga Nos.

105081 and 105082, 2017-Ohio-7175, ¶ 31 (S. Gallagher, J., concurring).              As the

majority recognized, the discharging a firearm into a habitation and discharging a firearm

on or near a prohibited premises statutes are intended to punish offenders for the act

regardless of the existence of a named victim.
