        [Cite as Croft v. Lindgren, 2013-Ohio-3161.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




DAMON CROFT,                                     :     APPEAL NO. C-120867
                                                       TRIAL NO. A-1102353
        Plaintiff-Appellant,                     :

  vs.                                            :
                                                         O P I N I O N.
LAWRENCE F. LINDGREN,                            :

        Defendant-Appellee.                      :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 19, 2013




Stephen R. Felson and Robert B. Newman, for Plaintiff-Appellant,

Reminger Co., L.P.A., Robert W. Hojnoski and Carrie M. Starts, for Defendant-
Appellee.


Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Presiding Judge.


       {¶1}    Plaintiff-appellant Damon Croft appeals the summary judgment

entered by the Hamilton County Court of Common Pleas in favor of defendant-

appellee Lawrence F. Lindgren in a legal-malpractice action.

                       Croft’s Guilty Pleas and Sentencing

       {¶2}   In 2009, Croft was indicted for two counts of violating a protection

order. Although charged in the same indictment, the alleged offenses arose from

separate protection orders. Both counts were charged as felonies of the third degree

rather than felonies of the fifth degree because Croft was alleged to have violated the

orders while committing a felony, specifically menacing by stalking. Nonetheless, he

was not separately charged with menacing by stalking.

       {¶3}   Croft retained Lindgren to represent him in the matter. In April 2009,

Croft entered guilty pleas to the charges and was sentenced to two concurrent three-

year terms of imprisonment.

       {¶4}   On August 13, 2010, Croft, through a different attorney, filed a motion

to withdraw his guilty pleas.    The basis for the motion was that Lindgren had

improperly advised him to enter the pleas because the enhancement of the offenses

had “violated Croft’s federal and state constitutional rights to Due Process and to be

free from Double Jeopardy.”

       {¶5}   On October 13, 2010, the court journalized an entry stating, “By

agreement of the parties, the defendant is permitted to withdraw his guilty plea.”

Croft then entered guilty pleas under the same indictment, but the offenses were

amended to felonies of the fifth degree. He was sentenced to 180 days’ confinement




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on count one and a concurrent term of 12 months’ imprisonment on count two. Croft

was given credit for time already served, and he was released.

       {¶6}   On March 21, 2011, Croft filed a complaint against Lindgren.              He

contended that Lindgren had committed malpractice by failing to assert the

argument advanced in the motion to withdraw the guilty plea, namely that violating a

protection order and menacing by stalking were allied offenses of similar import,

rendering the enhancement of the offenses improper. Lindgren filed a counterclaim

for breach of contract, asserting that Croft owed unpaid attorney fees.

       {¶7}   Lindgren filed a motion for summary judgment with respect to Croft’s

claim and his own counterclaim. The trial court granted the motion with respect to

both, ordering that Croft pay Lindgren $1732 in damages.

                       Malpractice and Summary Judgment

       {¶8}    In his first assignment of error, Croft argues that the trial court erred

in entering summary judgment in favor of Lindgren on the malpractice claim. Croft

argues that he had met his burden of demonstrating that Lindgren was deficient in

his representation for failing to raise the allied-offenses issue under R.C. 2941.25.

       {¶9}     Under Civ.R. 56(C), a motion for summary judgment may be granted

only when no genuine issue of material fact remains to be litigated, the moving party

is entitled to judgment as a matter of law, and it appears from the evidence that

reasonable minds can come to but one conclusion, and with the evidence construed

most strongly in favor of the nonmoving party, that conclusion is adverse to that

party. See State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189

(1994).   This court reviews a ruling on summary judgment de novo. Jorg v.




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Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, 792 N.E.2d

781 (1st Dist.).

       {¶10}       In the case at bar, we find no error in the trial court’s decision to grant

summary judgment in favor of Lindgren on the legal-malpractice claim. To establish

legal malpractice based on negligent representation, the plaintiff must show (1) that

the attorney owed a duty to the plaintiff, (2) that there was a breach of that duty and

that the attorney failed to conform to the standard required by law, and (3) that there

was a causal connection between the deficient conduct and the resulting damage.

Vahila v. Hall, 77 Ohio St.3d 421, 427, 674 N.E.2d 1164 (1997). Thus we must

determine if, under the state of the law as it existed at the time of the pleas and

sentencing, Lindgren had a duty to raise the issue of allied offenses.

       {¶11}       We find no error in the trial court’s conclusion that Lindgren did not

breach a duty to Croft in failing to raise the issue. As we have already observed, Croft

was not separately charged with menacing by stalking; the menacing charge was

merely alleged as an enhancement with respect to the counts for violating a

protective order.      Thus, there was no issue of multiple punishments within the

meaning of R.C. 2941.25 or the Double Jeopardy Clause.

                                    Rance and Cabrales

       {¶12}       Moreover, even if the enhancement of the offenses had implicated

R.C. 2941.25, there would have been no duty on the part of Lindgren to raise the

issue under the facts of this case. The pleas and sentencing here occurred before the

Supreme Court of Ohio had overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d

699 (1999). In Rance, the court held that, when determining if two offenses are

allied offenses of similar import under R.C. 2941.25, the sentencing court must




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compare their elements in the abstract. Id. at 638. A court applying the Rance test

was thus required to align the elements in the abstract and to determine whether the

elements would correspond to such an extent that the commission of one offense

would necessarily result in the commission of the other. Id.

       {¶13}   The court subsequently clarified the Rance holding in State v.

Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181. In Cabrales, the

court stated that for offenses to be allied, a court is not required “to find an exact

alignment of the elements.” Id. at paragraph one of the syllabus. Rather, “[i]n

comparing the elements of the offenses in the abstract, [if] the offenses are so similar

that the commission of one offense will necessarily result in commission of the other,

then the offenses are allied offenses of similar import.” Id.

       {¶14}   Comparing the elements of violating a protection order to the

elements of menacing by stalking, the commission of one offense does not

necessarily result in the commission of the other. The statute governing violation of

a protection order, R.C. 2919.27(A), provides, “[n]o person shall recklessly violate

the terms of * * *[a] protection order issued or consent agreement approved

pursuant to section 2919.26 or 3113.31 of the Revised Code [or] [a] protection order

issued pursuant to section 2151.34, 2903.213 or 2903.214 of the Revised Code * * * .”

By contrast, the menacing-by-stalking statute, R.C. 2903.211(A)(1), provides that

“[n]o person by engaging in a pattern of conduct shall knowingly cause another

person to believe that the offender will cause physical harm to the other person or

cause mental distress to the other person.” Under the test formulated in Cabrales,

the offenses were simply not allied.




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       {¶15}   We cannot discern why the trial court that presided over the criminal

matter permitted Croft to withdraw the pleas or why the court resentenced Croft as it

did. The court merely indicated in its entry that the vacation of the pleas was by

agreement of the parties.    In any event, Croft’s ultimate success in obtaining a

reduction of the charges and sentences did not warrant a finding that Lindgren had

been deficient in his representation, and we overrule the first assignment of error.

                              Lindgren’s Counterclaim

       {¶16}   In Croft’s second and final assignment of error, he argues that the

trial court erred in granting summary judgment in favor of Lindgren on the

counterclaim for unpaid fees. Croft maintains that he was relieved of any obligation

to pay because Lindgren had not provided competent representation. Having held

that Lindgren did not breach any duty to Croft, we also hold that Lindgren was

entitled to the claimed fees. We overrule the second assignment of error.

                                     Conclusion

       {¶17}   We affirm the judgment of the trial court.

                                                                 Judgment affirmed.


CUNNINGHAM and FISCHER, JJ., concur.




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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