[Cite as State v. Wesseling, 2011-Ohio-5882.]



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



STATE OF OHIO,                                  :      APPEAL NO. C-110193
                                                       TRIAL NO. B-1007580
          Plaintiff-Appellee,                   :

        vs.                                     :

MICHAEL WESSELING,                              :          O P I N I O N.

          Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 16, 2011




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
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FISCHER, Judge.

       {¶1}    Defendant-appellant Michael Wesseling appeals his convictions for

felonious assault and aggravated burglary, for which he was sentenced to an 11-year

prison term.      Because we determine that Wesseling’s assignments of error are

without merit, we affirm the judgment of the trial court.

       {¶2}    Wesseling was indicted on November 12, 2010, for attempted murder

in violation of R.C. 2923.02(A), felonious assault in violation of R.C. 2903.11(A)(1),

felonious assault in violation of R.C. 2903.11(A)(2), and aggravated burglary in

violation of R.C. 2911.11(A)(1).      All charges were accompanied by firearm

specifications.

       {¶3}    According to the bill of particulars filed by the state, on November 5,

2010, at 2 a.m., Wesseling had entered the victim’s residence located on Welge

Avenue through the garage. Wesseling had opened the door to the victim’s bedroom

and had fired multiple shots at the victim while the victim had lain on the bed.

Wesseling had then fled through the garage.

       {¶4}    On March 22, 2011, Wesseling entered into a plea agreement with the

state, whereby Wesseling agreed to plead guilty to felonious assault pursuant to R.C.

2903.11(A)(2) with a firearm specification, and aggravated burglary with a firearm

specification, in exchange for the state’s agreement to dismiss the remaining charges.

Wesseling and the state agreed to a sentence of 12 years’ incarceration for the

underlying offenses and three years’ incarceration for the firearm specification, for a

total of 15 years in prison.

       {¶5}    The same day that Wesseling and the state entered into a plea

agreement, the trial court conducted a plea hearing. At the hearing, the prosecutor

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read the language from the indictment into the record, but Wesseling waived any

further recitation of the facts.

       {¶6}    The trial court accepted Wesseling’s guilty pleas.       The trial court,

however, did not impose the jointly-recommended sentence. Instead, the trial court

sentenced Wesseling to eight years’ incarceration on the felonious-assault charge,

four years’ incarceration on the aggravated-burglary charge, which the trial court

imposed concurrent with the felonious-assault charge, and three years’ incarceration

on the firearm specification, for a total of 11 years’ incarceration.

       {¶7}    In Wesseling’s first assignment of error, he contends that the trial

court erred in accepting his guilty pleas because his pleas were not made voluntarily

or knowingly. In support of his argument, Wesseling points to a statement made

during the plea hearing, where Wesseling stated that he was “a very confused person

* * *.” Wesseling also points to a part of the sentencing hearing where Wesseling

asked the court to impose a shorter term of incarceration than that to which he had

agreed with the prosecution.

       {¶8}    A full reading of the record belies Wesseling’s claim that his pleas were

not voluntary or knowing.          The trial court conducted a detailed colloquy with

Wesseling, in compliance with Crim.R. 11(C). The trial court informed Wesseling of

the possible maximum and minimum sentences that Wesseling could receive as a

result of pleading guilty, and the trial court stated that it was not bound by the plea

agreement between Wesseling and the state.           Therefore, Wesseling’s request at

sentencing that the trial court impose a shorter term of imprisonment than what he

had agreed to with the prosecution does not indicate an unknowing plea.




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       {¶9}   Furthermore, when Wesseling stated to the trial court that he was a

“confused person,” the trial court inquired further by asking Wesseling if he

understood what occurred at the plea hearing. Wesseling replied, “I am not confused

about that.   I am confused about why it all happened.         That’s all.” Therefore,

Wesseling’s statement, when placed in context, indicated that Wesseling was unsure

of why the events underlying the convictions had occurred.

       {¶10} Because Wesseling has failed to show that his pleas were unknowing,

unintelligent, or involuntary, we overrule his first assignment of error.

       {¶11} In Wesseling’s second assignment of error, he argues that the trial

court erred by sentencing him for two separate offenses where those offenses were

allied offenses of similar import subject to merger. R.C. 2941.25(A) states that,

“[w]here the same conduct by the 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.” A

criminal defendant has the burden of establishing his entitlement to merger of

offenses pursuant to the allied-offense statute. State v. Mughni (1987), 33 Ohio

St.3d 65, 67, 514 N.E.2d 870.

       {¶12} The Ohio Supreme Court held in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, syllabus, that “when determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25,

the conduct of the accused must be considered * * *.”

       {¶13} Wesseling pleaded guilty to aggravated burglary pursuant to R.C.

2911.11(A)(1), which provides that, “[n]o person, by force, stealth, or deception, shall

trespass in an occupied structure or in a separately secured or separately occupied

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portion of an occupied structure, when another person other than an accomplice of

the offender is present, with purpose to commit in the structure or in the separately

secured or separately occupied portion of the structure any criminal offense, if * * *

[t]he offender inflicts, or attempts or threatens to inflict physical harm on another[.]”

Wesseling also pleaded guilty to felonious assault pursuant to R.C. 2903.11(A)(2),

which states that, “[n]o person shall knowingly * * * [c]ause or attempt to cause

physical harm to another * * * by means of a deadly weapon * * *[.]”

       {¶14} The state urges us to determine that Wesseling has waived the allied-

offense issue for purposes of this appeal because he failed to raise that issue at the

trial-court level.   In doing so, the state suggests that we distinguish the Ohio

Supreme Court’s decision in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,

922 N.E.2d 923. In Underwood, the court concluded that when a trial court imposed

sentences on multiple offenses that were subject to merger under R.C. 2941.25, a

defendant could seek appellate review of that sentence, even though the defendant

had pleaded no contest to the charges, his sentence was jointly recommended by the

defendant and the state, and the defendant did not raise the allied-offense issue in

the trial court. Id. at ¶26-¶32.

       {¶15} Pursuant to Johnson, the conduct of the accused is critical in a court’s

allied-offense inquiry. Thus, the state argues, a defendant who entered a guilty plea

after Johnson, waived a reading of the facts at the sentencing hearing, and did not

raise the issue of allied offenses in the trial court, should not be able to argue for the

first time on appeal that his offenses are allied offenses subject to merger.

       {¶16} Although Wesseling pleaded guilty after Johnson, waived a reading of

the facts, and failed to raise the allied-offense issue in the trial court, we need not

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depart from Underwood and create a per se rule prohibiting appellate review in

these cases. Based upon the limited evidence in the record, however, we cannot

conclude that the trial court committed plain error in sentencing Wesseling on both

aggravated-burglary and felonious-assault charges. Crim.R. 52(B). Therefore, we

overrule Wesseling’s second assignment of error.

       {¶17} The judgment of the trial court is affirmed.

                                                                     Judgment affirmed.

SUNDERMANN, P.J., and CUNNINGHAM, J., concur.


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




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