[Cite as State v. Johnson, 2011-Ohio-4954.]




                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 96064



                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  CHARLES JOHNSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-539760

        BEFORE: Stewart, P.J., Sweeney, J., and Rocco, J.
       RELEASED AND JOURNALIZED:                 September 29, 2011



ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, OH 44113-2098


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Carl Sullivan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶ 1} Defendant-appellant, Charles Johnson, pleaded guilty to counts of

attempted intimidation of a crime victim or witness and menacing by stalking. The court

sentenced him to 18 months on each count, to be served consecutively. In this appeal,

Johnson primarily complains that his conviction stemmed from a violation of postrelease

control in a prior case, so his imprisonment on new counts relating to that same conduct

violated his right not to be placed twice in jeopardy. He also raises arguments relating to

the sufficiency of the indictment and his sentencing.
                                                 I

       {¶ 2} Johnson first argues that he was twice placed in jeopardy when he was

sentenced by the court to a term of imprisonment after having been “violated and

sentenced for a post-release control violation for the same offense.” At the time these

offenses were committed, Johnson was serving 120 days for             violating postrelease

control in a different case. During the plea colloquy in this case, the court informed

Johnson that “you understand [the guilty plea] could cause additional bad things to

happen to you in that PRC case number. Understood?” Johnson apparently argues that

the conduct that formed the basis of the postrelease control violation was separately

charged as a new criminal offense.

       {¶ 3} Johnson offers no specifics regarding his prior offense and, in fact, fails to

identify exactly what that offense was or the terms and conditions of his postrelease

control. Instead, he cites to two brief transcript passages (one from the plea colloquy; the

other from the sentencing), but neither passage read in context proves his assertions.

This constitutes a failure of an appellant’s obligation to exemplify a claimed error. See

App.R. 12(A)(2); State v. Stojetz, 84 Ohio St.3d 452, 455, 1999-Ohio-464, 705 N.E.2d

329.

       {¶ 4} To the extent we can apply the record supplied to us in reviewing Johnson’s

argument, it shows that Johnson had been incarcerated for violating the terms of his

postrelease control — terms that required him to refrain from contacting the victim of his

prior crime. While in jail for the postrelease control violation, he again called the victim
and harassed her. The assistant prosecuting attorney told the court that “[t]he reason he

was put back in jail was to have no contact with her. Then he sent all these letters to [the

victim] and contacted her from Lorain Correctional over 900 times.”             These acts

constituted new and independent offenses separate from those acts that violated his

postrelease control. Punishment for the new offense was thus unrelated to the original

punishment. There is no double jeopardy violation.

                                                 II

       {¶ 5} Johnson next argues that the court erred by failing to merge the intimidation

and stalking counts for sentencing because they involved the same conduct.

       {¶ 6} R.C. 2941.25 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.”

       {¶ 7} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the supreme court stated:

       {¶ 8} “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 the offenses correspond to such a degree that the conduct of

the defendant constituting commission of one offense constitutes commission of the

other, then the offenses are of similar import.” Id. at ¶48.
       {¶ 9} The state cites to State v. Wallace, 7th Dist. No. 06 MA 44,

2007-Ohio-6226, for the proposition that intimidation and stalking are not allied offenses.

 Wallace, however, was decided on then-existing precedent that required the court to

consider whether the elements of the crimes when considered in the abstract corresponded

to such a degree that the commission of one crime will result in the commission of the

other. See State v. Rance, 85 Ohio St.3d 632, 636, 1999-Ohio-291, 710 N.E.2d 699.

Rance was overruled in Johnson, so the analysis used in Wallace is no longer valid.

       {¶ 10} The state charged Johnson with intimidation of a crime victim or witness in

violation of R.C. 2921.04(B), which as charged stated that Johnson did knowingly, by

unlawful threat of harm to any person or property, attempted to influence, intimidate, or

hinder the victim of a crime in the filing or prosecution of criminal charges or an attorney

or witness involved in a criminal action or proceeding in the discharge of the duties of the

attorney or witness. There is nothing in the record to show a factual basis for this

charge; however, we assume that it was premised on the victim in the earlier case in

which Johnson violated postrelease control likewise being the same victim in this case.

This assumption is supported by Johnson’s assigned errors.

       {¶ 11} The menacing by stalking offense was filed under R.C. 2903.211(A)(1),

which as charged stated that Johnson engaged in a pattern of conduct to knowingly cause

the victim to believe that he would cause physical harm to her or that he did cause mental

distress to her. During sentencing, defense counsel acknowledged that Johnson made

967 telephone calls to the victim. The state also presented a two-inch stack of papers
that Johnson sent to the victim. The contents of these telephone calls and letters are not

contained in the record. Defense counsel told the court that “the tone of 99 percent of his

letters were not ‘I’m going to get you’ type of letters” but were “‘can we work this out,

please, baby’ types of letters.”

       {¶ 12} The absence of any facts showing the basis for the guilty pleas makes it

impossible for us to conclude that the conduct involved in intimidation was the same as

the conduct involved for menacing by stalking. Given the sheer number of times that

Johnson contacted the victim, both by telephone and in writing, it is highly likely that the

charged offenses were not committed at precisely the same time, so by definition the

offenses could not be allied. Indeed, the act of physically writing something would

suggest that it was not done at the same time the telephone calls were placed. There

being no evidence in the record to suggest otherwise, we conclude that the offenses were

not allied.

                                                III

       {¶ 13} For his third assignment of error, Johnson argues that he was improperly

convicted of attempted intimidation because the offense of intimidation includes an

attempt. According to Johnson, this was a “non-offense because it would be impossible

to attempt to attempt the commission of that offense.”

       {¶ 14} While it is true that a charge of attempted intimidation is not a cognizable

crime because it charges an attempt to commit an attempt, see State v. Harper, 3d Dist.

No 1-05-79, 2007-Ohio-109, there is no error in this case. In State v. Mramor (Oct. 2,
1986), 8th Dist. No. 50976 and State v. Guillem (Dec. 2, 1999), 8th Dist. No. 79995, we

held that defendants who entered guilty pleas to “attempts” in order to lower the degree of

their offenses benefitted from the error, despite their convictions for crimes that were not

cognizable at law. Having received lesser sentences by pleading to an attempt to commit

the predicate attempt offense, they could not demonstrate the “manifest injustice”

required for a successful motion filed pursuant to Crim.R. 32.1.

       {¶ 15} While this case admittedly does not involve a motion to withdraw a guilty

plea, the fact remains that Johnson benefitted from his guilty plea to attempted

intimidation because it lowered the degree of his offense from a third degree felony to a

fourth degree felony, thus reducing his potential sentence. Johnson moreover failed to

object to the indictment at the time of his plea, so we review this assignment for plain

error, under which we can only reverse a judgment to prevent a manifest miscarriage of

justice.   State v. Phillips, 74 Ohio St.3d 72, 83, 1995-Ohio-171, 656 N.E.2d 643.

During the plea colloquy, the court acknowledged that Johnson’s plea bargain lowered the

degree of offense, so the benefit to Johnson is obvious and no manifest miscarriage of

justice occurred.

                                                IV

       {¶ 16} Johnson argues that the case was improperly charged in Cuyahoga County

because the telephone calls and mail directed to the victim were sent from Lorain County.

 We summarily overrule this assignment because Johnson’s guilty plea precludes him
from challenging the factual issue of venue. See State v. McCarty (1988), 55 Ohio

App.3d 170, 563 N.E.2d 350; State v. Fort, 8th Dist. No. 80604, 2002-Ohio-5068, ¶45.

                                                V

       {¶ 17} For his fifth assignment of error, Johnson complains that the court abused

its discretion by sentencing him to consecutive, maximum sentences without first making

any factual findings to support those sentences. We summarily reject this argument on

the authority of State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, in

which the Ohio Supreme Court held that “[t]rial court judges are not obligated to engage

in judicial fact-finding prior to imposing consecutive sentences unless the General

Assembly enacts new legislation requiring that findings be made.” Id. at paragraph three

of the syllabus.

                                                VI

       {¶ 18} Johnson next argues that the court abused its discretion during sentencing

by impermissibly relying on facts outside the indictment to justify the length of the

sentence. The court cited to a newspaper story about a stalker who, despite being the

subject of a protection order against the victim, shot and killed both her and himself.

The court said that it “told that very sad story about what’s happened very recently to help

you [Johnson] appreciate why everybody takes stalking violations very seriously ***.”

       {¶ 19} There is no abuse of discretion. R.C. 2929.11(A) states:

       {¶ 20} “The overriding purposes of felony sentencing are to protect the public

from future crime by the offender and others and to punish the offender. To achieve
those purposes, the sentencing court shall consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the offender,

and making restitution to the victim of the offense, the public, or both.”

       {¶ 21} The court’s reference to news reports of another stalking with a tragic end

simply underscored the seriousness of Johnson’s conduct, the need to protect the public

(or more accurately, the victim), and the need to punish Johnson for his inability to refrain

from stalking the victim despite having previously been convicted of the offense. In fact,

the court told Johnson that the recidivist nature of his stalking makes him “look like a

very scary, unpredictable, dangerous person.”         The court was acting well within its

discretion to reference outside news reports as a basis for incarcerating Johnson.

                                                VII

       {¶ 22} Finally, Johnson argues that defense counsel was ineffective for failing to

raise double jeopardy, for failing to object to venue, for failing to request a merger of

offenses and for failing to object to the court referencing outside material for purposes of

sentencing. In light of our prior analysis of these issues, we overrule this assigned error.

       {¶ 23} We also point out that Johnson fails to separately argue his assertions under

this assignment of error. In fact, apart from a rote citation to Strickland v. Washington

(1984), 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674, there is no

argument as to how these errors affected the outcome of the case. Johnson only states

that “[c]ounsel failed to call to the attention of the court various matters which would

have changed the outcome of the case.” This kind of “catch-all” ineffective assistance of
counsel argument is made in violation of App.R. 16(A)(7), which requires the appellant to

make an argument “containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the contentions

***.”

        Judgment affirmed.

        It is ordered that appellee recover of appellant its 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 Cuyahoga

County 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.




MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
KENNETH A. ROCCO, J., CONCUR
