State v. Manns, Unpublished Decision (11-30-2001)
State v. Manns, Unpublished Decision (11-30-2001)
Opinion of the Court
OPINION
Jason Manns appeals from his conviction of three counts of rape and two counts of kidnapping in the Clark County Court of Common Pleas following his guilty pleas.The record demonstrates that, in the summer of 1999, Manns was indicted for a total of nine counts of rape, thirteen counts of kidnapping, and two counts of attempted murder in two separate indictments. Six victims were involved. In December 1999, Manns entered into a plea agreement whereby he pled guilty to three counts of rape and two counts of kidnapping. These counts involved three of the victims. In two instances, the victim had accepted a ride home with Manns from a bar or a party but had been driven instead to a secluded area and raped. In the third instance, the victim had been dragged approximately one hundred feet into an alley and raped. As part of the plea agreement, the state and Manns agreed to a thirty year sentence and to Manns' classification as a sexual offender, and the remaining counts were dismissed.
Manns raises six assignments of error on appeal.
I. THE TRIAL [COURT] ERRED TO DEFENDANT'S PREJUDICE BY FAILING TO ADDRESS DEFENDANT IN THE MANNER REQUIRED BY CRIMINAL RULE 11.
Manns claims that the trial court did not comply with Crim.R. 11(C)(2) because it did not inform him at the sentencing hearing that it "may proceed with judgment and sentence" upon acceptance of his plea. The trial court, however, did not proceed with judgment and sentence upon acceptance of Manns' plea. Rather, it ordered a presentence investigation and imposed sentence ten days later.
A trial court need only substantially comply with the nonconstitutional elements of Crim.R. 11(C)(2). State v. Nero (1990),
In this case, there can be little doubt that Manns understood that the trial court would proceed with judgment and sentence sometime shortly after the acceptance of his plea, although the precise timing may not have been known. Moreover, the trial court did order a presentence investigation before it proceeded with sentencing. It is unclear what more Manns could have reasonably expected. In our view, Manns was not prejudiced by the trial court's failure to literally adhere to Crim.R. 11(C)(2).
The first assignment of error is overruled.
II. THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE BY FAILING TO ADVISE DEFENDANT AS TO POSSIBLE DEPORTATION AS REQUIRED BY REVISED CODE §
2943.031 .
Manns claims that the trial court erred in failing to advise him as follows, pursuant to R.C.
If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
While it is true that the trial court failed to caution Manns about the risk of deportation for non-citizens, there is nothing in the record to indicate that Manns is not a U.S. citizen. Moreover, R.C.
The second assignment of error is overruled.
III. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY IMPOSING CONSECUTIVE SENTENCES.
Manns contends that the trial court erred in sentencing him to consecutive sentences without making the findings required by R.C.
R.C.
Thus, Manns' argument is without merit.
The third assignment of error is overruled.
IV. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY FAILING TO MAKE THE DETERMINATION AS REQUIRED BY REVISED CODE §
2929.14 (K).
Manns claims that the trial court erred in failing to make a determination as to whether he was eligible for placement in a program of shock incarceration. We disagree. Although R.C.
The fourth assignment of error is overruled.
V. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY FAILING TO IMPOSE THE REQUIREMENT SET FORTH IN REVISED CODE §
2929.19 (B)(3)(f).
Manns claims that the trial court erred in failing to require that he not ingest or be injected with a drug of abuse and that he submit to random drug testing in prison. Nothing in R.C.
The fifth assignment of error is overruled.
VI. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY SENTENCING DEFENDANT TO CONSECUTIVE TERMS OF PRISON AS THE OFFENSES ARE ALLIED OFFENSES OF SIMILAR IMPORT.
Manns claims that the trial court erred in sentencing him to concurrent ten year sentences for kidnapping and rape in Case No. 99CR269, where the offenses involved dragging a woman into an alley and raping her. He claims that, under these facts, the kidnapping and rape were allied offenses of similar import which should have been merged.
In determining whether rape and kidnapping are allied offenses of similar import, the "primary issue * * * is whether the restraint or movement of the victim [which forms the basis of the kidnapping charge] is merely incidental to a separate underlying crime or, instead, whether it has a significance independent of the other offense." State v. Logan (1979),
The sixth assignment of error is sustained.
The kidnapping conviction in Case No. 99CR269 will be vacated. In all other respects, the judgment of the trial court will be affirmed.
FAIN, J. and GRADY, J., concur.
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