[Cite as State v. McIntyre, 2012-Ohio-1173.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. Nos.     24934
                                                                   24945
        Appellee

        v.
                                                     APPEAL FROM JUDGMENT
LEWIS LEROY MCINTYRE                                 ENTERED IN THE
                                                     COURT OF COMMON PLEAS
        Appellant                                    COUNTY OF SUMMIT, OHIO
                                                     CASE No.   CR 09 03 0647

                                 DECISION AND JOURNAL ENTRY

Dated: March 21, 2012



        BELFANCE, Presiding Judge.

        {¶ 1} This matter is before us following our granting Lewis McIntyre’s application to

reopen his appeal. For the reasons set forth, we affirm his convictions, but remand the matter for

resentencing.

                                                I.

        {¶ 2} A jury found Mr. McIntyre guilty of tampering with records, tampering with

evidence, obstructing justice, and petty theft. The trial court sentenced him on all counts, but

ordered the prison terms be served concurrently for an aggregate term of four years. On appeal,

this Court affirmed his convictions. See State v. McIntyre, 9th Dist. Nos. 24934, 24945, 2010-

Ohio-2569.

        {¶ 3} Mr. McIntyre filed an application to reopen his appeal, alleging that he had

received ineffective assistance of appellate counsel.     See App.R. 26(B).      We granted his

application for the limited purpose of the two assignments of error considered below.
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                                               II.

                                   ASSIGNMENT OF ERROR I

       THE CONVICTION[S] FOR TAMPERING WITH RECORDS AND
       OBSTRUCTION OF JUSTICE ARE VOID BECAUSE APPELLANT WAS
       NEVER ARRAIGNED ON THE CHARGES IN VIOLATION OF CRIMINAL
       RULE 10 AND THE RIGHT TO DUE PROCESS.

       {¶ 4} In his first assignment of error, Mr. McIntyre argues that he was not properly

arraigned on his supplemental indictment because the trial court did not read its contents in open

court. Therefore, according to Mr. McIntyre, his convictions for tampering with records and

obstruction of justice are void.

       {¶ 5} If a defendant “is represented by counsel, pleads not guilty and proceeds to trial

without objection,” he is deemed to have forfeited his objection for appeal. Hamilton v. Brown,

1 Ohio App.3d 165, 168 (12th Dist.1981). Prior to trial, the parties and the trial court had a

somewhat confusing exchange during which the Defendant himself seemed to be objecting to the

trial court’s authority to proceed given the alleged deficiencies concerning the supplemental

indictment. Assuming that Mr. McIntyre did preserve his assigned error for appeal, we conclude

that any error was harmless.

       {¶ 6} Crim.R. 10(A) provides:

       Arraignment shall be conducted in open court, and shall consist of reading
       the indictment, information or complaint to the defendant, or stating to the
       defendant the substance of the charge, and calling on the defendant to
       plead thereto. The defendant may in open court waive the reading of the
       indictment, information, or complaint. The defendant shall be given a
       copy of the indictment, information, or complaint, or shall acknowledge
       receipt thereof, before being called upon to plead.

       {¶ 7} Mr. McIntyre, while represented by counsel, had filed a pro se challenge to his

original indictment on the basis that he had been arrested for tampering with records and,

therefore, could not be charged with tampering with evidence. Essentially, Mr. McIntyre argued
                                                  3


that he should have been charged with tampering with records, as opposed to tampering with

evidence. Prior to Mr. McIntyre’s trial, the State filed a supplemental indictment, charging him

with two additional counts: tampering with records and obstruction of justice.

       {¶ 8} On the first day of trial, a dispute arose as to whether Mr. McIntyre had been served

with the supplemental indictment. The State asked the trial court to arraign Mr. McIntyre on the

supplemental indictment and also moved to amend Count Three of the original indictment to

correct a clerical error in the code section Mr. McIntyre was charged with violating. Following

the State’s motion, the following exchange occurred:

       [Mr. McIntyre’s Counsel]: We would object to the indictment itself at this
       juncture. That changes the entire body of the indictment. I believe it’s
       time—

       The Court: You object to the supplemental indictment?

       [Mr. McIntyre’s Counsel]: I do. I do.

       The Court: All right. But what are—whether you object or not, you need
       to arraign him on it.

       {¶ 9} The trial court then asked if Mr. McIntyre had received a copy of the supplemental

indictment. Mr. McIntyre denied that he had ever seen it. He then stated, “I have not received

anything else with regards to the supplemental indictment, and I will not acquiesce to the

jurisdiction of this court and any supplemental indictment out of respect to the court.” The trial

court, referring to whether Mr. McIntyre had received a copy of the supplemental indictment,

stated that it was “not going to swear the jury in until we resolve that issue[.]”

       {¶ 10} The trial court revisited the matter the next day, after jurors had been selected but

before they had been sworn in. At that time, Mr. McIntyre’s counsel informed the trial court that

Mr. McIntyre had received the indictment the day before and that Mr. McIntyre “waive[d] time

and manner of service to the two supplemental counts in the existing indictment, Count Four
                                                  4


being Tampering with Records, Count Five being Obstruction of Justice, Felonies of the [thi]rd

and [fif]th degrees respectively.” However, Mr. McIntyre refused to enter a plea, and the trial

court entered a plea of not guilty pursuant to Crim.R. 11(A).

       {¶ 11} Mr. McIntyre does not dispute that he received a copy of the supplemental

indictment. Nor does he dispute that he and his counsel had knowledge of the substance of the

additional charges against him. Instead, he argues, without supporting legal authority, that

because the trial court did not actually read the text of the indictment aloud to him as required by

Crim.R. 10(A), his convictions were void.         It is true that the trial court neither read the

indictment nor stated the substance of the charge to Mr. McIntyre. However, we conclude that

the court’s failure, while constituting error, was harmless. Crim.R. 52(A) (“Any error, defect,

irregularity, or variance which does not affect substantial rights shall be disregarded.”)

       {¶ 12} Throughout the proceedings, Mr. McIntyre was represented by counsel. On the

first day of trial, Mr. McIntyre claimed that he had never received the supplemental indictment.

His counsel, however, never claimed to have not seen the indictment and, in fact, was surprised

that Mr. McIntyre denied having received the supplemental indictment. The trial court then

asked the prosecutor what the charges were against Mr. McIntyre. The prosecutor informed the

court, in Mr. McIntyre’s presence, that “Count 1 is Tampering with Evidence * * *. Count 2 is

Petty Theft. Count 3 is Obstructing Justice. * * * Count 4 is Tampering with Records. And

Count 5 is Obstructing Justice, and that is a Felony of the [fif]th degree.”

       {¶ 13} Crim.R. 10(A) does require either that the indictment be read aloud or that the

court state the substance of the charge. The record indicates that, after Mr. McIntyre claimed

that he had not been served with the supplemental indictment, a deputy went to the jail and

proceeded to personally deliver the supplemental indictment to Mr. McIntyre; however, Mr.
                                                5


McIntyre refused to sign for the document. The record also indicates that Mr. McIntyre and his

counsel were aware of the charges contained in the supplemental indictment. He has not

explained how he was prejudiced by the supplemental indictment not being read aloud. Given

the record in this matter, Mr. McIntyre’s substantial rights were not violated. See, e.g., State v.

Monnette, 3rd Dist. No. 9-08-33, 2009-Ohio-1653, ¶ 11; see also State v. Adkison, 9th Dist. No.

9869, 1981 WL 3931, *1-*2 (Apr. 8, 1981), citing Garland v. Washington, 232 U.S. 642 (1914).

       {¶ 14} Under the circumstances of this case, we conclude that any error by the trial court

in not reading the supplemental indictment aloud was harmless error. See Crim.R. 52(A).

       {¶ 15} Mr. McIntyre’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED
       APPELLANT ON THE ALLIED OFFENSES OF TAMPERING WITH
       RECORDS AND TAMPERING WITH EVIDENCE.

       {¶ 16} Mr. McIntyre argues that the trial court erred by sentencing him for allied offenses

of similar import. Specifically, Mr. McIntyre argues that his convictions for tampering with

evidence and tampering with records should have been merged for the purposes of sentencing.

       {¶ 17} After the parties submitted their briefs, the Supreme Court of Ohio decided State

v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. In Johnson, the Supreme Court held that,

“[w]hen 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.” Id. at syllabus. Because

Johnson was decided after Mr. McIntyre was sentenced, the trial court did not consider it. In

light of our precedent, it is therefore appropriate to remand this case so that the trial court can

apply Johnson in the first instance. See, e.g., State v. Creel, 9th Dist. No. 25476, 2011–Ohio–

5893, ¶ 4.
                                                 6


                                                III.

       {¶ 18} Mr. McIntyre’s first assignment of error is overruled. With respect to his second

assignment of error, his sentence is reversed, and the cause is remanded for further proceedings

consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT

CARR, J.
DICKINSON, J.
CONCUR.
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APPEARANCES:

DEREK CEK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
