[Cite as State v. Mullen, 191 Ohio App.3d 788, 2011-Ohio-37.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY



The STATE OF OHIO,                                              CASE NO. 7-10-08

   APPELLEE,

  v.

MULLEN,                                                           OPINION

   APPELLANT.



                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 07 CR 036

       Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: January 10, 2011




APPEARANCES:

        John H. Hanna, for appellee.

        Kenneth J. Rexford, for appellant.



        ROGERS, Presiding Judge.
Case No. 7-10-08



       {¶ 1} Defendant-appellant, Jeffrey S. Mullen, appeals the judgment of the

Court of Common Pleas of Henry County finding him guilty of one count of

aggravated burglary, two counts of abduction, and one count of felonious assault.

On appeal, Mullen asserts that the trial court erred in finding him guilty of

felonious assault and both counts of abduction, and that the convictions of

felonious assault and abduction were imposed in violation of his due process

rights. Based upon the following, we affirm in part, and reverse in part, the

judgment of the trial court.

       {¶ 2} In August 2007, the Henry County Grand Jury indicted Mullen on

Count One, attempted murder in violation of R.C. 2903.02(A), a felony of the first

degree with a firearm specification under R.C. 2941.145; Count Two, attempted

murder in violation of R.C. 2903.02(A), a felony of the first degree with a firearm

specification under R.C. 2941.145; Count Three, aggravated burglary in violation

of R.C. 2911.11(A)(1) and/or (2), a felony of the first degree with a firearm

specification under R.C. 2941.145; Count Four, abduction in violation of R.C.

2905.02(A)(2), a felony of the third degree with a firearm specification under R.C.

2941.145; Count Five, abduction in violation of R.C. 2905.02(A)(2), a felony of

the third degree with a firearm specification under R.C. 2941.145; Count Six,

abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree with a

firearm specification under R.C. 2941.145; Count Seven, abduction in violation of



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R.C. 2905.02(A)(2), a felony of the third degree with a firearm specification under

R.C. 2941.145; and Count Eight, felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree with a firearm specification under

R.C. 2941.145.

       {¶ 3} In August 2007, Mullen entered a plea of not guilty by reason of

insanity, and the trial court ordered a competency evaluation.

       {¶ 4} In October 2007, the trial court found that Mullen was competent to

stand trial.

       {¶ 5} In April 2008, Mullen withdrew his pleas of not guilty and entered

pleas of no contest to Count Three with the gun specification, and Counts Four,

Five, and Eight, on which the trial court found him guilty. As part of the plea

agreement, the state agreed to recommend dismissal of Counts One, Two, Six, and

Seven. At the plea hearing, the state recited the factual basis for the offenses:

              [A]s to Count 3, the defendant did by force trespass in an
       occupied structure in which Elizabeth Walters and Sarah McCorkle
       and children of them and of the occupants of that residence were
       present and he did so with purpose to commit a criminal offense
       having fired into the residence before he came in and while in the
       house he threatened to inflict physical harm to the two women and
       also was in possession of a deadly weapon, to wit, a firearm. As to
       the specification, he did display the firearm, brandish it and indicate
       that he possessed the firearm and used it to facilitate the offense.
              As to Count 4, while in the home he held Elizabeth Walters
       against her will and restrained her of her liberty refusing her the
       opportunity to leave in fact, threatening to kill her if she attempted
       to, and the same thing happened as to Count 5, just with a different
       victim – they were in separate rooms, he went into one room, held


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        the gun to Elizabeth’s head and told her if she didn’t shut up and if
        she attempted to leave he would kill her. He did the same thing in
        County [sic] 5 with Sarah McCorkle in a totally separate room of the
        house and as to Count 8 Your Honor, he did knowingly cause or
        attempt to cause physical harm to Elizabeth Walters by means of a
        deadly weapon holding the firearm to her head threatening to blow
        her brains out if she didn’t shut up.

        {¶ 6} In June 2008, the trial court sentenced Mullen to a seven-year prison

term on Count Three and a three-year prison term on the gun specification; to a

three-year prison term on Count Four; to a three-year prison term on Count Five;

and to a five-year prison term on Count Eight. The trial court ordered all terms to

be served consecutively, for an aggregate 21-year prison term. Additionally, the

trial court dismissed Counts One, Two, Six, and Seven and the remaining

specifications. The trial court further ordered Mullen to pay restitution of $620.

        {¶ 7} In November 2009, Mullen filed a motion to withdraw his plea

pursuant to Crim.R. 32.1 because his judgment entry of conviction lacked

notification of postrelease control, rendering his convictions void.

        {¶ 8} In February 2010, the trial court denied Mullen’s motion to

withdraw his plea because he was advised of the mandatory term of postrelease

control at the time of his plea, but the court ordered that Mullen be resentenced

because postrelease control was not addressed in the trial court’s June 2008

sentencing entry. The trial court scheduled Mullen’s resentencing for March 30,

2010.



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       {¶ 9}   On March 8, 2010, Mullen filed a “Pre-Sentence Motion to

Withdraw Plea.”

       {¶ 10} In April 2010, the trial court denied Mullen’s motion to withdraw his

plea. Additionally, the trial court resentenced Mullen to the same prison term

imposed in June 2008, and specifically stated that he would be subject to a five-

year term of postrelease control.

       {¶ 11} It is from the trial court’s April 2010 judgment entry that Mullen

appeals, presenting the following assignments of error for our review.

                                Assignment of Error No. I

              The trial court erred in finding Mr. Mullen guilty of felonious
       assault.

                                Assignment of Error No. II

               The trial court erred in finding Mr. Mullen guilty of abduction
       as alleged in Count IV.

                               Assignment of Error No. III

               The trial court erred in finding Mr. Mullen guilty of abduction
       as alleged in Count V.

                               Assignment of Error No. IV

              The convictions as to Counts IV, V, and VIII each were imposed in
       violation of the right of the accused to due process of law.

       {¶ 12} Initially, we note that although Mullen has appealed from an entry

that resentenced him and denied his motion to withdraw his plea, his arguments



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and request for relief concern only the entry of resentencing and do not dispute the

denial of his motion to withdraw his plea. Additionally, due to the nature of

Mullen’s arguments, we elect to address his second and third assignments of error

together.

                             Assignment of Error No. I

       {¶ 13} In his first assignment of error, Mullen argues that the trial court

erred in finding him guilty of felonious assault. Specifically, Mullen contends that

the trial court was required to consider the prosecutor’s statement of facts in

conjunction with his no-contest plea and to ensure that the stated facts did not

negate the charged offense, and further that the prosecutor’s statement of facts

alleged a threat of force without any actual attempt or assault, which negated the

charge of felonious assault. In support, Mullen cites State v. Wooldridge, 2d Dist.

No. 18086, 2000 WL 1475699; State v. Edward Joseph Lowe, M.D., Inc., 2d Dist.

Nos. 93-CA-54 and 93-CA-55, 1995 WL 127890, and State v. Cohen (1978), 60

Ohio App.2d 182.

       {¶ 14} Crim.R. 11(B)(2) provides, “The plea of no contest is not an

admission of defendant’s guilt, but is an admission of the truth of the facts alleged

in the indictment.” Additionally, it is well settled that if a charging instrument

contains the elements of the offense charged and fairly informs the defendant of

the charge against which he must defend, it will satisfy federal and state



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requirements. State v. Reinhart, 3d Dist. No. 15-06-07, 2007-Ohio-2284, ¶ 14,

citing State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶ 9. Initially, we

note that the indictment for felonious assault, to which Mullen entered his no-

contest plea, contains all elements of the offense and properly tracks the language

of the statute. See R.C. 2903.11(A)(2).

       {¶ 15} In Cohen, 60 Ohio App.2d 182, the First Appellate District

examined a situation in which a defendant pleaded no contest to a properly

indicted charge of robbery pursuant to the 1977 version of R.C. 2911.02(A),

which, at that time, required that the perpetrator “[u]se or threaten the immediate

use of force against another.” However, the state’s uncontroverted statement of

facts provided that the victim was sleeping during the entire commission of the

offense. On appeal, the First District determined that the element of force or threat

of immediate use of force could not be present when the victim was sleeping.

Consequently, the court set aside the no-contest plea because “the uncontroverted

statement of facts recited to the court below not only failed to include, but

[a]bsolutely negatived the existence of, an essential element of the offense charged

in the indictment.” Id. at 184.

       {¶ 16} In Edward Joseph Lowe, M.D., Inc., 1995 WL 127890, the Second

Appellate District examined a situation in which a doctor had pleaded no contest

to a multicount indictment for illegal processing of drug documents. At the plea



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hearing, the state recited facts including that the majority of the indictments for

illegal processing of drug documents under R.C. 2925.23(A) were based on the

defendant’s acts of falsifying patients’ medical charts.      However, the Second

District concluded that patients’ medical charts were not included under R.C.

2925.23(A) as a matter of law. Consequently, the reviewing court held that the

trial court erred in entering a finding of guilty as to these charges, concluding that

“ ‘[w]here the facts presented to the trial court unequivocally negate an essential

element of the offense charged in the indictment, it is an abuse of discretion for the

court to accept the no contest plea of the defendant.’ ” Id. at * 10, quoting State v.

Mehozonek (1983), 8 Ohio App.3d 271, 273-274, citing Cohen, 60 Ohio App.2d at

184.

       {¶ 17} In Wooldridge, 2000 WL 1475699, the Second District similarly

held that “although the omission of a fundamental fact is permissible, the trial

court may not find a defendant guilty based on his no contest plea if the state’s

statement of facts absolutely negates the existence of an essential element of the

offense.” (Emphasis sic.) On that basis, the Second District declined to vacate the

defendant’s plea because the state’s recitation of facts did not absolutely negate an

essential element of the offense, but merely raised the possibility that the offense

at issue had been committed in a county different from that alleged in the

indictment.



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       {¶ 18} Here, Mullen was convicted of felonious assault in violation of R.C.

2903.11(A)(2), which provides, “No person shall knowingly do either of the

following: * * * (2) Cause or attempt to cause physical harm to another * * * by

means of a deadly weapon or dangerous ordnance.” Mullen contends that the facts

recited by the state, that he had held a gun to the victim’s head and threatened her,

negated the element that he had caused or attempted to cause harm to another.

Consequently, Mullen requests that this court remand the matter to the trial court

with instructions to vacate his conviction for felonious assault and enter a

judgment of conviction for the lesser offense of aggravated menacing.

       {¶ 19} We disagree with Mullen’s contentions. Although he is correct that

the prosecutor stated that Mullen had held a gun to the victim’s head and

threatened her, we do not find that this statement absolutely negates the element

that he had caused or attempted to cause harm to the victim. Conversely, we find

that similar to Wooldridge, 2000 WL 1475699, the prosecutor’s statement merely

omitted a fundamental fact. It is not clear from the prosecutor’s statement whether

Mullen only held a gun to the victim’s head and threatened her, or whether other

facts involving causing harm to or attempting to cause harm to the victim may also

have been present, yet omitted from the statement.

       {¶ 20} Accordingly, we overrule Mullen’s first assignment of error.

                        Assignment of Error Nos. II and III



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       {¶ 21} In his second and third assignments of error, Mullen argues that the

trial court erred in finding him guilty on the two counts of abduction. Specifically,

he argues that because he entered a plea of no contest, the trial court was required

to review the indictment to determine that it alleged all necessary elements of the

charged offense and that the omission of the element of “circumstances that create

a risk of physical harm to the victim or place the other person in fear” from both

counts rendered the indictments for abduction sufficient to charge only the lesser

included offense of unlawful restraint.

       {¶ 22} R.C. 2905.02 governs abduction and provides:

       (A) No person, without privilege to do so, shall knowingly do any of
       the following:

       ***

       (2) By force or threat, restrain the liberty of another person under
       circumstances that create a risk of physical harm to the victim or
       place the other person in fear.

       {¶ 23} Here, Counts Four and Five of the indictment, charging abduction in

violation of R.C. 2905.02(A)(2), provided that “JEFFREY S. MULLEN, did,

without privilege to do so, knowingly by force or threat, restrain the liberty of

another person.” The indictment contained no assertion that Mullen created a risk

of physical harm to the victims or placed the victims in fear.

       {¶ 24} The Supreme Court of Ohio has emphasized the following:




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      While a plea of guilty is a complete admission of the defendant’s
      guilt, a plea of no contest is not an admission of guilt, but is an
      admission of the truth of the facts alleged in the indictment,
      information, or complaint. Crim.R. 11(B)(1) and (2). The trial court
      thus possesses discretion to determine whether the facts alleged in
      the indictment, information, or complaint are sufficient to justify
      conviction of the offense charged. State v. Thorpe (1983), 9 Ohio
      App.3d 1, 3, 9 OBR 1, 3, 457 N.E.2d 912, 915 (Markus, J.,
      concurring). If the court determines that the alleged facts are
      insufficient to state the charged offense, it may find the defendant
      guilty of a lesser included offense, State ex rel. Leis v. Gusweiler
      (1981), 65 Ohio St.2d 60, 61, 19 O.O.3d 257, 418 N.E.2d 397, 398,
      or dismiss the charge.

State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 423. Additionally, this

court has previously held, “There being no admission of guilt by a no contest plea

and such plea only admitting the truth of the facts alleged in the indictment, if

those facts do not, in and of themselves, constitute the allegation of an offense

under the statute, or statutes, involved, the defendant has admitted to nothing upon

which the court can base a conviction.” State v. Hayes, 3d Dist. No. 5-82-11,

1983 WL 7178, citing Crim.R. 11(B)(2).

      {¶ 25} In light of the preceding, we find that as Mullen has admitted only

the truth of the facts alleged in the indictment, which are insufficient to charge

abduction, he has admitted nothing upon which the trial court could base his

convictions for abduction. Consequently, the trial court erred in finding Mullen

guilty of the two abduction offenses. However, as Mullen admits, Counts Four

and Five of the indictment contain all essential elements to charge the offense of



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unlawful restraint under R.C. 2905.03(A), which provides, “No person, without

privilege to do so, shall knowingly restrain another of the other person’s liberty.”

Additionally, multiple courts have found unlawful restraint to be a lesser included

offense of abduction. See State v. Urban, 9th Dist. No. 08CA009396, 2009-Ohio-

2789, ¶ 19; State v. Stoutamire, 11th Dist. No. 2007-T-0089, 2008-Ohio-2916, ¶

81; State v. Martin, 10th Dist. Nos. 02AP33 and 02AP34, 2002-Ohio-4769, ¶ 46;

State v. Graves, 12th Dist. No. CA2001-05-018, 2002-Ohio-868; State v. Jonas

(Mar. 6, 2001), 4th Dist. No. 99CA38.

       {¶ 26} Accordingly, we sustain Mullen’s second and third assignments of

error, reverse his convictions for abduction on Counts Four and Five, and remand

to the trial court with instructions to enter convictions for unlawful restraint in

violation of R.C. 2905.03(A) and to resentence him accordingly.

                            Assignment of Error No. IV

       {¶ 27} In his fourth assignment of error, Mullen argues that his two

convictions for abduction and his conviction for felonious assault were imposed in

violation of his due process rights. Specifically, Mullen contends that the trial

court should not have accepted his no-contest plea and found him guilty, as the

trial court should have first reviewed the indictments for abduction for sufficiency

and should have reviewed the prosecutor’s statement of facts regarding the




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felonious-assault charge to ensure that it did not negate the facts alleged in the

indictment for felonious assault.

       {¶ 28} Having determined in our analysis of Mullen’s first assignment of

error that the prosecutor’s statement concerning the charge of felonious assault did

not negate the indictment, we consequently hold that his felonious-assault

conviction did not violate his due process rights. Additionally, having already

reversed Mullen’s convictions for abduction with instructions for the trial court to

enter convictions for unlawful restraint, we find this assignment of error moot in

regard to the abduction convictions.

       {¶ 29} Accordingly, we overrule Mullen’s fourth assignment of error.

       {¶ 30} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued in the first and fourth assignments of error, but

having found error prejudicial in the particulars assigned and argued in the second

and third assignments of error, we affirm Mullen’s conviction for felonious

assault, but reverse his convictions for abduction. We remand to the trial court

with instructions to enter convictions for unlawful restraint in violation of R.C.

2905.03(A) and to resentence him accordingly.

                                                         Judgment affirmed in part

                                                               and reversed in part,

                                                              and cause remanded.



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      WILLAMOWSKI and PRESTON, JJ., concur.




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