[Cite as State v. Cleveland, 2011-Ohio-4868.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

STATE OF OHIO                                       :
                                                    :    Appellate Case No. 24379
        Plaintiff-Appellee                          :
                                                    :    Trial Court Case No. 2009-CR-3564
v.                                                  :
                                                    :
ANDRE R. CLEVELAND                                  :    (Criminal Appeal from
                                                    :    (Common Pleas Court)
        Defendant-Appellant                         :
                                                    :
                                                ...........

                                                OPINION
                                          rd
                        Rendered on the 23 day of September, 2011.

                                                ...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County
Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. #0076791, 75 North Pioneer Boulevard,
Springboro, Ohio 45066
      Attorney for Defendant-Appellant

                                                              .............

FAIN, J.

        {¶ 1} Defendant-appellant Andre R. Cleveland appeals from his conviction

and sentence, following a no-contest plea, for Rape, Aggravated Burglary, and

Kidnapping. Cleveland contends that the trial court erred when it failed to merge the
                                                                                        2


offenses as allied offenses of similar import. He also contends that the trial court

erred when it disapproved him for the shock incarceration program and the intensive

program prison without having made the requisite findings under the statute, and that

the trial court erred by having prematurely disapproved him for transitional control.

       {¶ 2} The record, including the pre-sentence investigation report, is

inconclusive on the factual issue of whether the offenses to which Cleveland pled no

contest are allied offenses of similar import. Consequently, the trial court committed

plain error when it sentenced Cleveland without first conducting an inquiry on the

allied-offenses issue. The trial court also erred when it disapproved Cleveland for

transitional control. Any error in the trial court’s having disapproved Cleveland for

shock incarceration or for intensive program prison is harmless, since Cleveland was

not eligible for either of those programs, having been convicted of first-degree

felonies. The judgment of the trial court is Reversed, and this cause is Remanded

for further proceedings consistent with this opinion.



                                               I

       {¶ 3} According to the pre-sentence investigation report, Cleveland induced

the victim to open her door at 2:00 in the morning to retrieve a card that he claimed

he had from the police, pushed her out of the way, and entered her home. To her

repeated demands that he leave, he responded by telling her to shut up or he would

kill her. When his victim tried to call the police, Cleveland ripped the phone cord

from the wall, and used the telephone cord to tie her hands together in front.

       {¶ 4} Cleveland made his victim walk to her bathroom.              Once in the
                                                                                      3


bathroom, Cleveland ordered his victim to bend over, pushed her underwear to the

side, and attempted, unsuccessfully to have vaginal intercourse with her. He then

had anal intercourse with her for about five minutes.

       {¶ 5} Cleveland then had his victim remove her underwear and get into a

bathtub that he had filled with water. He had put bleach in the water. He used a

blue shirt to wash his victim in her vaginal and anal areas. He opened the drain, told

his victim that if she got out of the tub before the water drained, he would kill her, and

then left.

       {¶ 6} Cleveland was arrested and charged with Rape, Aggravated Burglary,

and Kidnapping.     He eventually pled no contest to all three charges, after being

informed, on the record, that the trial court was inclined to sentence him to no more

than fifteen years in prison, “[a]nd it’s likely that it would be between the twelve and

fifteen range[.]” During the plea hearing, the State recited the three charges, but

limited its recitation to a recitation of the statutory elements of the three charges.

The victim’s daughter made a statement at the sentencing hearing, but that

statement concerned the impact of the defendant’s criminal conduct on her mother

and herself, and did not include any details of the offenses.

       {¶ 7} Cleveland was sentenced to ten years for Rape, and ten years for

Aggravated Burglary, to be served concurrently. He was sentenced to three years

for Kidnapping, to be served consecutively to the other sentences, for an aggregate

sentence of thirteen years. He was designated as a Tier III sexual offender.

       {¶ 8} From his conviction and sentence, Cleveland appeals.
                                                                                    4


                                              II

       {¶ 9} Cleveland’s First Assignment of Error is as follows:

       {¶ 10} “THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE

RAPE, AGGRAVATED BURGLARY AND KIDNAPPING CHARGES AS ALLIED

OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE DOUBLE JEOPARDY

CLAUSE      OF    THE    FIFTH      AMENDMENT       TO     THE      UNITED    STATES

CONSTITUTION.”

       {¶ 11} R.C. 2941.25 provides as follows:

       {¶ 12} “(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.

       {¶ 13} “(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} Under State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, the

threshold test for allied offenses, before reaching the issue of whether they were

committed with a separate animus as to each, involved a comparison of the elements

of the offenses. The court cited Blockburger v. United States (1932), 284 U.S. 299,

52 S.Ct. 180, 76 L.Ed. 306, a case applying the Double Jeopardy clause of the Fifth

Amendment to the United States Constitution: “Because the comparison of elements
                                                                                   5


of offenses outlined in Blockburger is reflected in R.C. 2941.25(A), courts engage in

a similar analysis whether applying Blockburger or Ohio's multiple-count statute.

Therefore, cases discussing and applying Blockburger are helpful, though not

controlling, in our examination of Ohio law.” Rance, 85 Ohio St.3d at 636.

      {¶ 15} But the Supreme Court of Ohio recently overruled State v. Rance in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Although there was no

majority opinion in State v. Johnson, all the justices agreed with the overruling of

State v. Rance, and it appears from their respective opinions that the correct

allied-offenses analysis now involves consideration of the conduct of the defendant in

the particular case, rather than an abstract comparison of the elements of the several

offenses. Thus, after State v. Johnson, it appears that R.C. 2941.25 now provides a

criminal defendant with more protection against being separately punished for

multiple offenses than is required by the Double Jeopardy clause, at least as

construed by Blockburger, supra.

      {¶ 16} Cleveland argues in his brief that: “Applying the recent standard

established by [State v.] Johnson, under the circumstances it would have been

impossible for the Defendant to commit any of the separate crimes without

committing the underlying rape.” As stated, we find Cleveland’s argument difficult to

follow. It would seem more pertinent to argue that the Kidnapping could not have

been committed without having committed Aggravated Burglary, and that the Rape

could not have been committed without having committed first the Aggravated

Burglary, and then the Kidnapping. It would have seemed possible for Cleveland to

have committed both the Aggravated Burglary and the Kidnapping without having
                                                                                      6


committed the Rape if he had just forced his victim into her bathroom without

thereafter having sexually assaulted her.

       {¶ 17} In any event, the circumstances of these three offenses, having been

committed in both temporal and spatial proximity to one another, raise obvious

issues under R.C. 2941.25, and the circumstances are not well developed in the

record, even if the record is deemed to include the pre-sentence investigation report.

       {¶ 18} The State argues that Cleveland’s failure to have made the

pre-sentence investigation report a part of the record on appeal means that we must

presume the regularity of the proceedings, and the validity of the trial court’s

judgment. We have made the pre-sentence investigation report a part of the record,

sua sponte, as is our custom whenever we find that there is a pre-sentence

investigation report, it is not part of our record, and it appears that the report may be

material to an issue on appeal.

       {¶ 19} Two of our sister courts of appeals have held that where the record

suggests that multiple offenses to which a defendant has pled guilty or no contest

may be allied offenses of similar import, but the record is inconclusive in that regard,

the trial court has a duty to conduct inquiry concerning the circumstances of the

offenses, and the trial court’s failure to do so is plain error.       State v. Corrao,

Cuyahoga App. No. 95167, 2011-Ohio-2517, at ¶ 10; State v. Miller, Portage App.

No. 2009-P-0090, 2011-Ohio-1161, at ¶ 56, 58. We have said the same in dictum.

State v. Myers, Montgomery App. No. 23913, 2011-Ohio-1615, ¶ 13.

       {¶ 20} We hold, in this case, that where the record suggests that multiple

offenses of which a defendant has been found guilty may be allied offenses of similar
                                                                                      7


import under R.C. 2941.25, but is inconclusive in that regard, it is plain error for the

trial court not to conduct the necessary inquiry to determine whether the offenses

are, in fact, allied offenses of similar import. Cleveland’s First Assignment of Error is

sustained, to that limited extent.



                                               III

       {¶ 21} Cleveland’s Second Assignment of Error, set forth in his supplemental

brief, is as follows:

       {¶ 22} “THE      TRIAL   COURT      ERRED      BY   DISAPPROVING         SHOCK

INCARCERATION,          INTENSIVE    PROGRAM         PRISON     AND    TRANSITIONAL

CONTROL AT SENTENCING.”

       {¶ 23} The State notes that because Cleveland’s offenses are felonies of the

first degree, he is not eligible for shock incarceration or for the intensive prison

program, citing R.C. 5120.031(A)(4) and R.C. 5120.032(B)(2)(a).          Therefore, the

State argues, any error in the trial court’s having disapproved shock incarceration

and the intensive prison program without having first made the necessary findings is

necessarily harmless, since Cleveland was not eligible for either of those programs in

any event.

       {¶ 24} R.C. 5120.031(A)(4) provides as follows:

       {¶ 25} “ ‘Eligible offender’ means a person, other than one who is ineligible to

participate in an intensive program prison under the criteria specified in section

5120.032 of the Revised Code, who has been convicted of or pleaded guilty to, and

has been sentenced for, a felony.”
                                                                                    8


       {¶ 26} R.C. 5120.032(B)(2) provides as follows:

       {¶ 27} “A prisoner who is in any of the following categories is not eligible to

participate in an intensive program prison established pursuant to division (A) of this

section:

       {¶ 28} “(a) The prisoner is serving a prison term for aggravated murder,

murder, or a felony of the first or second degree or a comparable offense under the

law in effect prior to July 1, 1996, or the prisoner previously has been imprisoned for

aggravated murder, murder, or a felony of the first or second degree or a comparable

offense under the law in effect prior to July 1, 1996.”

       {¶ 29} Because Cleveland is serving a prison term for a felony of the first

degree, under R.C. 5120.032(B)(2)(a) he is not eligible to participate in the intensive

program prison. Because he is not eligible to participate in the intensive program

prison, under R.C. 5120.031(A)(4) and R.C. 5120.031(B)(1), he is not eligible for the

shock incarceration program.       Because he is not eligible for either of these

programs, we agree with the State that any error in the trial court’s having

disapproved him for these programs is necessarily harmless.

       {¶ 30} The State concedes that under State v. Howard, 190 Ohio App.3d 734,

2010-Ohio-5283, the trial court erred by having disapproved Cleveland for transitional

control at this time. Upon remand, the trial court should not include disapproval of

transitional control in its sentencing entry.       To that limited extent, Cleveland’s

Second Assignment of Error is sustained.



                                               IV
                                                                               9


       {¶ 31} Both of Cleveland’s assignments of error having been partially

sustained, the judgment of the trial court is Reversed, and this cause is Remanded

for further proceedings consistent with this opinion.

                                                   .............

FROELICH and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck
R. Lynn Nothstine
Marshall G. Lachman
Hon. Gregory F. Singer
