[Cite as State v. McIntosh, 2020-Ohio-2960.]




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

                                                     :
                                                     :
 STATE OF OHIO                                       :   Appellate Case No. 28539
                                                     :
         Plaintiff-Appellee                          :   Trial Court Case No. 2019-CR-2104/1
                                                     :
 v.                                                  :   (Criminal Appeal from
                                                     :   Common Pleas Court)
 CATHEY SARAH LEE MCINTOSH                           :
                                                     :
         Defendant-Appellant


                                                ...........

                                               OPINION

                             Rendered on the 15th day of May, 2020.

                                                ...........

MATHIAS H. HECK JR. by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, 75 North Pioneer Boulevard, Franklin, Ohio 45005
    Attorney for Defendant-Appellant

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



HALL, J.
                                                                                           -2-




       {¶ 1} Cathey Sarah Lee McIntosh appeals from her conviction for escape. She

argues that the guilty plea she entered to the offense was not knowing, intelligent, and

voluntary, because the trial court failed to advise her of the consecutive-sentence

requirement under R.C. 2929.14(C)(2). Because that statutory requirement did not apply

in this case, McIntosh has not demonstrated prejudice, and we affirm the trial court’s

judgment.

       {¶ 2} In 2019, McIntosh was participating in intervention in lieu of conviction (ILC)

in two criminal cases. As part of her intervention plan, the trial court had ordered her to

complete the Secure Transitional Offender Program (STOP), a residential program.

McIntosh entered the program but soon left the STOP facility without authorization.

       {¶ 3} In July 2019, McIntosh was indicted on a charge of escape under R.C.

2921.34(A)(1). A hearing was held on the two ILC cases and the new case. McIntosh

entered a plea of guilty to the escape offense. During the plea colloquy, the trial court told

her that, by pleading guilty, she would also be admitting that she had violated her

intervention plan and that the violation could bring other sanctions, which could include a

prison term. McIntosh said that she understood. The court accepted her plea and found

that the plea established a violation of ILC.      The court revoked ILC and scheduled

another hearing to dispose of the ILC cases and impose sentence for the escape charge.

At that hearing, the trial court terminated the two ILC cases as unsuccessful and

sentenced McIntosh on the escape charge to 36 months in prison.

       {¶ 4} McIntosh appeals.

       {¶ 5} Her sole assignment of error alleges:
                                                                                          -3-


       THE DEFENDANT DID NOT ENTER A KNOWING, INTELLIGENT AND

       VOLUNTARY GUILTY PLEA DUE TO THE TRIAL COURT’S FAILURE TO

       CORRECTLY        STATE      THE     POTENTIAL        FOR     CONSECUTIVE

       SENTENCES.

McIntosh argues that her plea was not knowing, intelligent, and voluntary, because the

trial court failed to advise her that R.C. 2929.14(C)(2) requires any prison term imposed

for the escape charge to be served consecutively to any prison term imposed for the ILC

violation.

       {¶ 6} R.C. 2929.14(C)(2) pertinently states that if an offender commits the offense

of escape under R.C. 2921.34(A)(1), “any prison term imposed upon the offender * * *

shall be served by the offender consecutively to the prison term or term of imprisonment

the offender was serving when the offender committed that offense and to any other

prison term previously or subsequently imposed upon the offender.”

       {¶ 7} McIntosh is correct that during the plea colloquy the trial court did not inform

her about the possibility of consecutive sentences. But at the sentencing hearing the court

did acknowledge that a consecutive sentence was required, and the court approached its

disposition of McIntosh’s cases accordingly. The court stated:

              So what I’m going to do. Because the escape charge carries

       mandatory consecutive sentencing—so one way for me to address that is

       I’m just going to terminate the old [ILC] cases for Ms. McIntosh. So 18-CR-

       2291 that case will just be terminated as not being successful on

       supervision and 18-CR-3384, * * * I’m going to terminate that case as well.

              And then proceed to impose sentence in 19-CR-2104 * * *. And in
                                                                                       -4-


       considering the purposes and principles of sentencing and the seriousness

       and recidivism factors in the Revised Code, on the Felony 3 charge of

       escape, the Court is going to sentence Ms. McIntosh to serve 36 months of

       imprisonment in the State of Ohio prison system.

(Tr. 14.)

       {¶ 8} The trial court terminated the two ILC cases—without imposing sentence for

the charges in those cases—and imposed a prison term for the escape charge only. As

such, under the circumstances of this case, R.C. 2929.14(C)(2) did not apply. Even if

McIntosh should have been told about the statutory consecutive-sentence requirement,

the trial court, by terminating the ILC cases without sentence, vitiated any harm to her.

On this record, McIntosh cannot reasonably argue that she would not have pleaded guilty

if the court had told her about the inapplicable consecutive-sentence requirement. Indeed,

she never says in her brief that she would not have pleaded guilty had she known about

it. We conclude that McIntosh has not demonstrated prejudice in entering her plea.

       {¶ 9} The sole assignment of error is overruled.

       {¶ 10} The trial court’s judgment is affirmed.

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



TUCKER, P.J. and FROELICH, J., concur.


Copies sent to:

Mathias H. Heck Jr.
Jamie J. Rizzo
Marshall G. Lachman
Hon. Mary L. Wiseman
