[Cite as State v. Layne,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA17 : vs. : Released: April 5, 2012 : ROBERT G. LAYNE, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Robert G. Layne, Nelsonville, Ohio, Appellant, pro se.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee. _____________________________________________________________

McFarland, J.:

{¶1} This is an appeal from a Highland County Court of Common

Pleas decision and entry denying Appellant’s post-sentence motion to

withdraw his guilty plea to attempted gross sexual imposition, a fourth

degree felony in violation of R.C. 2923.02 and 2907.05(A)(4), and

importuning, a third degree felony in violation of R.C. 2907.07(C)(2). On

appeal, Appellant contends that the trial court erred to his prejudice in

sentencing him on both of these convictions, arguing the offenses were

allied offenses of similar import. Because Appellant has failed to Highland App. No. 11CA17 2

demonstrate any error, let alone plain error with regard to his sentencing, he

has also failed to prove a manifest injustice for purposes of withdrawing his

plea. Thus, Appellant’s sole assignment of error is overruled and the

decision of the trial court is affirmed.

FACTS

{¶2} On July 27, 2009, Appellant appeared before the trial court and

pled guilty to one count of attempted gross sexual imposition and one count

of importuning in exchange for the State’s agreement to dismiss two

additional charges pending against him, specifically, attempted rape and

attempted kidnapping. All of these charges involved the same victim and

occurred during a single course of events.1 The written plea agreement

which appears in the record simply indicates that in exchange for

Appellant’s pleas, the State agreed to recommend five years of incarceration.

The sentencing entry issued the same day indicates that the trial court

sentenced Appellant to one year on the attempted gross sexual imposition

conviction and four years on the importuning conviction, to be served

consecutively. There is no indication in the record that Appellant raised the

issue of allied offenses of similar import at the plea or sentencing phases.

1 We are limited, however, with regard to the details surrounding Appellant’s pleas, as the plea and sentencing hearing transcripts were not made a part of the record on appeal. Highland App. No. 11CA17 3

{¶3} Approximately twenty one months later, on April 6, 2011,

Appellant filed a pro-se motion to withdraw his guilty pleas. The trial court

denied the motion in a decision and entry dated May 13, 2011, and it is from

this decision that Appellant now brings his appeal, setting forth a single

assignment of error for our review.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN SENTENCING HIM ON COUNTS 2 AND 4.”

LEGAL ANALYSIS

{¶4} Appellant has appealed from the trial court’s denial of his post-

sentence motion to withdraw his guilty pleas. In the sole assignment of error

set forth in support of his appeal, Appellant contends that the trial court

erred to his prejudice in sentencing him on both attempted gross sexual

imposition and importuning, claiming that the two are allied offenses of

similar import. Pursuant to Crim.R. 32.1, a trial court may grant a post-

sentence motion to withdraw a guilty plea only to correct a manifest

injustice. “Manifest injustice” is an extremely high standard, which permits

a defendant to withdraw his guilty plea only in extraordinary cases. State v.

Smith (1977),

,

. The defendant who

seeks to withdraw a guilty plea bears the burden of establishing a manifest Highland App. No. 11CA17 4

injustice. Smith at paragraph one of the syllabus. The decision to grant or

deny a post-sentence motion to withdraw a guilty plea is within the sound

discretion of the trial court. Smith at paragraph two of the syllabus.

Therefore, we will not reverse the trial court's decision absent an abuse of

discretion. State v. Xie (1992),

,

.

{¶5} When reviewing a post-sentence motion to withdraw a plea, a

trial court may assess the credibility of a movant's assertions,

. An evidentiary hearing is not always required in order to do so. State

v. Boyd, Montgomery App. No. 18873,

. “[A]n undue delay

between the occurrence of the alleged cause for withdrawal and the filing of

the motion is a factor adversely affecting the credibility of the movant and

militating against the granting of the motion.” Smith at paragraph three of

the syllabus. Additionally, a hearing on a post-sentence motion to withdraw

a guilty plea is not necessary if the facts alleged by the defendant, even if

accepted as true, would not require the court to grant the motion to withdraw

the guilty plea. State v. Blatnick (1984),

,

.

{¶6} Here, Appellant filed a post-sentence motion to withdraw his

guilty plea asserting that the trial court must permit him to withdraw his

guilty plea in order to correct a manifest injustice, namely that his sentence Highland App. No. 11CA17 5

was contrary to law in that he was ordered to serve consecutive sentences for

allied offenses of similar import. We note, as did the trial court in denying

Appellant’s motion, that Appellant did not file his motion to withdraw his

guilty pleas until approximately twenty-one months after he entered them.

We further share in the trial court’s concern that Crim.R. 32.1 is not a proper

vehicle to attack the validity of a sentence. Nevertheless, because it is the

vehicle in which Appellant chose and the denial from which the present

appeal is brought, we will address it in that framework. However, after

reviewing Appellant’s assignment of error on the merits and finding no plain

error or manifest injustice, and based upon the following, we cannot

conclude that the trial court abused its discretion in denying Appellant’s

motion to withdraw his guilty pleas.

{¶7} Assuming at this juncture that Appellant’s offenses constitute

allied offenses of similar import, we must be mindful that the issue of allied

offenses can be waived by a defendant. State v. Yost, Meigs App. No.

03CA13,

; citing, State v. Thrower (1989),

,

(If a defendant does not raise the issue of

allied offenses at trial, the issue is waived for purposes of appeal unless

plain error is shown.) As set forth above, Appellant did not raise the issue

of allied offenses at the trial court level. Nevertheless, “notice of plain of Highland App. No. 11CA17 6

error under Crim.R. 52 may be taken if, upon review of the record, the

record reveals that such error resulted in a manifest miscarriage of justice.”

State v.

; citing State v. Adams (1980),

,

.

{¶8} More specifically, this Court has reasoned that “[f]or a reviewing

court to find plain error: (1) there must be an error, i.e., ‘a deviation from a

legal rule;’ (2) the error must be plain, i.e., ‘an “obvious” defect in the trial

proceedings;’ and (3) the error must have affected ‘substantial rights,’ i.e., it

must have affected the outcome of the proceedings.” State v. Spires, Gallia

App. No. 10CA10,

; citing State v. Barnes,

,

,

. Furthermore, the Supreme

Court of Ohio has admonished courts that notice of plain error under

Crim.R. 52(B) is to be taken “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.”

quoting State v. Long (1978),

,

, at

paragraph three of the syllabus.

{¶9} When determining whether multiple offenses should have

merged under R.C. 2941.25, “[o]ur standard of review is de novo.” State v.

Buckta (Nov. 12, 1996), Pickaway App. No. 96 CA 3,

;

See, also, Coleman v. Davis, Jackson App. No. 10CA5,

, at ¶ Highland App. No. 11CA17 7

16 (“We review questions of law de novo.”), quoting State v. Elkins,

Hocking App. No. 07CA1,

, quoting Cuyahoga Cty.

Bd. of Commrs. v. State,

,

,

. R.C. 2941.25 provides:

“(A) Where the same conduct by 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.

(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”

{¶10} The Supreme Court recently revised the test for determining

whether multiple offenses should be merged as allied offenses of similar

import under R.C. 2941.25, in State v. Johnson,

, 2010-

Ohio-6314,

. Although at first glance it would appear that

we should employ the new Johnson analysis, the unusual procedural posture

of the case sub judice dictates otherwise. As set forth in Ali v. State,

,

,

, ¶ 6:

“A new judicial ruling may be applied only to cases that are

pending on the announcement date. State v. Evans (1972),

,

,

. The new judicial

ruling may not be applied retroactively to a conviction that has Highland App. No. 11CA17 8

become final, i.e., where the accused has exhausted all of his appellate

remedies. Id.; State v. Lynn (1966),

,

,

; see, also, State v. Gonzalez (2000),

,

; cf. Transamerica Ins. Co. v. Nolan

(1995),

,

, quoting Doe v.

Trumbull Cty. Children Serv. Bd. (1986),

, 28 OBR

225,

, paragraph one of the syllabus (‘A subsequent

change in the controlling case law in an unrelated proceeding does not

constitute grounds for obtaining relief from final judgment under

Civ.R. 60 [B]’ .”

{¶11} Here, rather than coming to this Court by way of direct appeal,

or delayed appeal, it has come to us on appeal from the trial court’s denial of

Appellant’s motion to withdraw his guilty plea, filed nearly two years after

the conclusion of Appellant’s case. Appellant was sentenced on July 29,

2009, and he did not appeal his conviction or sentence. State v. Johnson was

released on December 29, 2010. Appellant filed his motion to withdraw his

guilty plea on April 6, 2011. Thus, Appellant’s underlying case was closed

and there was nothing pending at the time Johnson was released. As such,

the reasoning of Johnson, though current law, is inapplicable to the case sub Highland App. No. 11CA17 9

judice. Accordingly, the law in effect at the time Appellant was originally

sentenced must be applied.

{¶12} As we observed in State v. Pigge, Ross App. No. 09CA3136,

, the Supreme Court of Ohio has interpreted R.C. 2941.25 to

involve a two-step analysis:

“ ‘In the first step, the elements of the two crimes are compared.

If the elements of the offenses correspond to such a degree that the

commission of one crime will result in the commission of the other,

the crimes are allied offenses of similar import and the court must

proceed to the second step. In the second step, the defendant's conduct

is reviewed to determine whether the defendant can be convicted of

both offenses. If the court finds either that the crimes were committed

separately or that there was a separate animus for each crime, the

defendant may be convicted of both offenses.’ ” Pigge at ¶ 41;

quoting, State v. Harris,

,

,

, quoting State v. Blankenship (1988),

,

; see, also, State v. Winn,

,

,

; State v. Cabrales,

,

,

. Highland App. No. 11CA17 10

{¶13} To determine whether offenses are allied offenses of similar

import under R.C. 2941.25(A), courts must “compare the elements of

offenses in the abstract, i.e., without considering the evidence in the case.”

Cabrales at ¶ 27; see, also,

. The elements need not, however,

be identical for the offenses to constitute allied offenses of similar import.

. The key word is “similar,” not “identical.”

; see,

also,

(stating that the offenses need not exactly align to

constitute allied offenses). Offenses constitute allied offenses of similar

import if, “ ‘in comparing the elements of the offenses in the abstract, the

offenses are so similar that the commission of one offense will necessarily

result in commission of the other.’ ”

, quoting Cabrales at ¶ 26.

{¶14} As discussed herein, Appellant pled guilty to attempted gross

sexual imposition and importuning. R.C. 2923.02(A) defines the offense of

attempt as:

“(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that if successful, would constitute or result in the offense.”

The relevant sections of R.C. 2907.05, gross sexual imposition, provide:

“(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two more persons to have sexual contact when any of the following applies: Highland App. No. 11CA17 11

***

(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.”

Finally, the relevant sections of R.C. 2907.07, importuning, provide:

“(C) No person shall solicit another by means of a telecommunications device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity2 with the offender when the offender is eighteen years of age or older and either of the following applies:

***

(2) The other person is a law enforcement officer posing as a person who is less than thirteen years of age, and the offender believes that the other person is less than thirteen years of age or is reckless in that regard.”

{¶15} Here, the trial court denied Appellant’s motion to withdraw his

guilty pleas, determining that the offenses of attempted gross sexual

imposition and importuning were not allied offenses of similar import. In

reaching this decision, the trial court relied upon State v. Mack, Ottawa App.

No. OT-05-004,

, which was decided under the prior

2 According to the R.C. 2901.01 definitions sections, “[a]s used in sections 2907.01 to 2907.38 of the Revised Code: (A) ‘Sexual Conduct’ means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. (B) ‘Sexual contact’ means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. (C) ‘Sexual activity’ means sexual conduct or sexual contact, or both.” Thus the “sexual activity” element in importuning would subsume the “sexual contact” element in attempted gross sexual imposition. Highland App. No. 11CA17 12

reasoning of State v. Rance,

,

,

. State v. Rance was the predecessor to State v. Cabrales and State v.

Winn discussed above, and stood for the original proposition that “the first

step for determining whether two offenses are allied offenses of similar

import requires comparing the statutory elements in the abstract, rather than

comparing the offenses as charged in a particular indictment. State v.

. Although State v.

specifically overruled State v.

Rance, we must nevertheless apply Rance and its progeny, as explained

above, because it was the applicable law at the time Appellant’s convictions

and sentences became final.

{¶16} After careful review of the elements of both offenses and

applying the reasoning of Rance, as modified by Cabrales and Winn, we

conclude, as did the trial court, that these offenses are not allied offenses of

similar import. Of importance, and as noted in Mack, supra, at ¶ 32,

“[i]mportuning requires that an individual solicit sexual activity; this

element is not required under attempted gross sexual imposition.” To

further support our conclusion, we make mention of the fact that here,

Appellant was convicted of importuning, in violation of R.C. 2907.07(C),

which contains an element in addition to the type of importuning at issue in

Mack. Specifically, as noted above, Appellant was convicted of soliciting Highland App. No. 11CA17 13

the victims by means of a telecommunications device, an element which

certainly does not align with the crime of gross sexual imposition.

{¶17} As such, the trial court’s imposition of consecutive sentences

for these offenses was not contrary to law and therefore, no plain error has

occurred. Likewise, having found no plain error, we cannot conclude that

Appellant demonstrated a manifest injustice. As a result, we cannot

conclude that the trial court abused its discretion in denying Appellant’s

motion to withdraw his guilty pleas. Accordingly, Appellant’s sole

assignment of error is overruled and the decision of the trial court is

affirmed.

JUDGMENT AFFIRMED. Highland App. No. 11CA17 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment only.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.