[Cite as State v. Blackford,

.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 12 CA 3 MICHAEL BLACKFORD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 09 CR 0052

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 16, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. FLAUTT DENNIS PUSATERI PROSECUTING ATTORNEY ASSISTANT STATE PUBLIC DEFENDER 111 North High Street, P. O. Box 569 250 East Broad Street, Suite 1400 New Lexington, Ohio 43764-0569 Columbus, Ohio 43215 Perry County, Case No. 12 CA 3 2

Wise, J.

{¶1} Appellant Michael Blackford appeals from his convictions, in the Court of

Common Pleas, Perry County, on charges of aggravated burglary, aggravated robbery,

and kidnapping. The relevant procedural facts leading to this appeal are as follows.

{¶2} In August 2009, appellant was indicted by the Perry County Grand Jury on

one count of aggravated burglary (R.C. 2911.11(A)(1)), another count of aggravated

burglary (R.C. 2911.11(A)(2)), two counts of aggravated robbery (R.C. 2911.01(A)(1)),

and four counts of kidnapping (2905.01(A)(2)).

{¶3} On October 26, 2009, appellant entered pleas of guilty to one count of

aggravated burglary (R.C. 2911.11(A)(1), a felony of the first degree), one count of

aggravated robbery (R.C. 2911.01(A)(1), a felony of the first degree), and four counts of

kidnapping (2905.01(A)(2), felonies of the second degree).

{¶4} On November 23, 2009, the trial court, having accepted the aforesaid

pleas, sentenced appellant to three years on the aggravated burglary count, three years

on the aggravated robbery count, and two years each on the kidnapping counts, all to

be served consecutively, for an aggregate term of fourteen years.

{¶5} On February 1, 2012, appellant filed a motion for leave to file a delayed

appeal, which this Court subsequently granted. He herein raises the following three

Assignments of Error:

{¶6} “I. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES ON DEFENDANT-APPELLANT'S FOUR KIDNAPPING COUNTS IN

VIOLATION OF R.C. 2941.25 AND THE DOUBLE JEOPARDY CLAUSES OF THE

UNITED STATES AND OHIO CONSTITUTIONS. Perry County, Case No. 12 CA 3 3

{¶7} “II. THE TRIAL COURT ERRED IN FAILING TO MERGE ONE

KIDNAPPING COUNT WITH AGGRAVATED ROBBERY, ALL IN VIOLATION OF THE

ALLIED OFFENSE PROVISIONS OF R.C. 2941.25 AND OF THE DOUBLE

JEOPARDY CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTION (SIC).

{¶8} “III. DEFENDANT-APPELLANT RECEIVED CONSTITUTIONALLY

INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO OBJECT

TO SENTENCES WHICH VIOLATED THE ALLIED OFFENSE PROVISIONS OF R.C.

2941.25 AND OF THE DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES

AND OHIO CONSTITUTIONS.”

I.

{¶9} In his First Assignment of Error, appellant argues the trial court erred in

imposing consecutive sentences on his four kidnapping counts, in violation of R.C.

2941.25. We disagree.

{¶10} R.C. 2941.25 protects a criminal defendant's rights under the Double

Jeopardy Clauses of the United States and Ohio Constitutions. See State v. Jackson,

Montgomery App.No. 24430,

, citing State v. Johnson,

,

, 2010–Ohio–6314, ¶ 45. The statute reads as follows:

{¶11} “(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.

{¶12} “(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 Perry County, Case No. 12 CA 3 4

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

{¶13} For approximately the first decade of this century, law interpreting R.C.

2941.25 was based on State v. Rance,

,

, 1999–

Ohio–291, wherein the Ohio Supreme Court had held that offenses are of similar import

if the offenses “correspond to such a degree that the commission of one crime will result

in the commission of the other.”

The Rance court further held that courts should

compare the statutory elements in the abstract.

{¶14} However, the Ohio Supreme Court, in State v. Johnson,

,

, 2010–Ohio–6314, specifically overruled the 1999 Rance

decision. The Court held: “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.”

at the syllabus. As recited in State v. Nickel, Ottawa App.No.

OT–10–004, 2011–Ohio–1550, ¶ 5, the new test in Johnson for determining whether

offenses are subject to merger under R.C. 2921.25 is two-fold: “First, the court must

determine whether the offenses are allied and of similar import. In so doing, the

pertinent question is ‘whether it is possible to commit one offense and commit the other

offense with the same conduct, not whether it is possible to commit one without

committing the other.’ (Emphasis sic.) Id. at ¶ 48. Second, ‘the court must determine

whether the offenses were committed by the same conduct, i.e., “a single act,

committed with a single state of mind.” ’ Id. at ¶ 49, quoting State v. Brown,

, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring in judgment). If both Perry County, Case No. 12 CA 3 5

questions are answered in the affirmative, then the offenses are allied offenses of

similar import and will be merged. Johnson, at ¶ 50.”

{¶15} Appellant herein was convicted of four counts of kidnapping under R.C.

2905.01(A)(2), one count for each of the four victims. Because the four counts allege

the same basic criminal conduct and rely on the same statutory subsection, we may

proceed directly to the second question under Johnson. However, despite appellant’s

assertion to the contrary (see Appellant’s Brief at 3), each kidnapping count in the

indictment does set forth a different victim. The sentencing judgment entry does not

specifically name the victims, but it does refer back to the specific counts within the

indictment. “Clearly, a defendant can be convicted for more than one offense if each

offense involves a different victim, even though the offenses charged are identical ***.”

State v. Harvey, Hancock App.No. 5–10–05, 2010–Ohio–5408, ¶ 24. Accordingly, we

answer the second question under Johnson in the negative, and thereby find the

kidnapping counts at issue are not allied offenses of similar import.

{¶16} Appellant’s First Assignment of Error is overruled.

II.

{¶17} In his Second Assignment of Error, appellant contends the trial court erred

in failing to merge one of the four kidnapping counts with the aggravated robbery count.

We disagree.

{¶18} Appellant essentially maintains that the trial court’s failure to at least find

one of the kidnapping counts [R.C. 2905.01(A)(2)] to be an allied offense of similar

import to the aggravated robbery count [R.C. 2911.01(A)(1)] constituted reversible error,

relying on State v. Winn,

,

, 2009–Ohio–1059. Perry County, Case No. 12 CA 3 6

{¶19} In State v. Miller, Portage App.No. 2009–P–0090,

, the

Eleventh District Court of Appeals aptly described Winn as follows: “In Winn, the court

held that kidnapping and aggravated robbery were allied offenses, even though it was

possible to imagine hypothetical scenarios in which aggravated robbery would not

necessarily constitute a kidnapping. The court reasoned that exploring all potential

hypotheticals represented a regression into a strict textual application of the allied-

offenses test previously rejected in Cabrales. Still, the court found that the two offenses

are so similar that the commission of one necessarily results in the commission of the

other. ***.” Miller at ¶ 43.

{¶20} Nonetheless, because Winn predated

we are reluctant to

apply Winn as a precedential rule for all allied offense questions involving kidnapping

and aggravated robbery convictions. We are instead inclined to apply a Johnson

analysis to the issue presented; however, the record before us contains scant

documentation, outside of the indictment itself and a single paragraph in the plea

hearing transcript, of the specific “conduct of the accused” as required by Johnson.

Appellant’s trial counsel filed a demand for a bill of particulars on September 8, 2009,

but the trial court file does not reflect a response by the State. A discovery response is

in the file, but it consists chiefly of unlabeled photocopies of crime scene photos. A

review of the sentencing transcript likewise provides few details about the nature of the

acts of kidnapping and aggravated robbery perpetrated by appellant. Under these

circumstances, we invoke the principle that “[a]n adequate appellate record is the

appellant's responsibility; in the absence of an adequate record, this court presumes the

regularity of the proceedings below.” State v. Grice, Cuyahoga App.No. 97046, 2012- Perry County, Case No. 12 CA 3 7

Ohio-1938, ¶ 21. In other words, a presumption of regularity attaches to all trial court

proceedings, (see, e.g., Chari v. Vore (2001),

,

)

and we find appellant has failed to overcome such presumption in the case sub judice.

{¶21} Appellant’s Second Assignment of Error is therefore overruled.

III.

{¶22} In his Third Assignment of Error, appellant contends his trial counsel was

ineffective for failing to object to appellant’s sentences on the basis of R.C. 2941.25 and

the Double Jeopardy Clause. We disagree.

{¶23} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984),

,

,

. Ohio

adopted this standard in the case of State v. Bradley (1989),

,

. These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; whether counsel's performance fell below

an objective standard of reasonable representation and was violative of any of his

essential duties to the client. If we find ineffective assistance of counsel, we must then

determine whether or not the defense was actually prejudiced by counsel's

ineffectiveness such that the reliability of the outcome of the trial is suspect. This

requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different.

Trial counsel

is entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie (1998),

,

. Perry County, Case No. 12 CA 3 8

{¶24} However, it is generally recognized in Ohio that even where defense

counsel fails to challenge the trial court for its failure to merge, the imposition of multiple

sentences for allied offenses of similar import constitutes plain error. See, e.g., State v.

May, Lake App.No. 2010–L–131, 2011–Ohio–5233, ¶ 31, citing State v. Underwood,

,

, 2010–Ohio–1, ¶ 31. Under the circumstances of

the case sub judice, and based on our previous analysis herein, we find no merit in

appellant’s reliance on a claim of ineffective assistance of trial counsel.

{¶25} Appellant’s Third Assignment of Error is therefore overruled.

{¶26} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Perry County, Ohio, is hereby affirmed.

By: Wise, J.

Farmer, J., concurs.

Delaney, P. J., dissents.

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JUDGES JWW/d 0906 Perry County, Case No. 12 CA 3 9

Delaney, J., concurring in part and dissenting in part:

{¶27} I concur in the majority’s opinion as to Appellant’s First Assignment of

Error; but respectfully dissent from the majority opinion in regards to the disposition of

the Second Assignment of Error.

{¶28} In the interest of justice and following our prior rulings in State v. Mowery,

5th Dist. No. 10-26,

and State v. Bobb, 5th Dist. No. CT2007-0076,

, I would sustain the Second Assignment of Error to the extent this

matter should be remanded for a new sentencing hearing to analyze Appellant’s

conduct in the offenses at issue (kidnapping and aggravated robbery) pursuant to

Johnson and , if necessary, to review potential merger of the offenses for sentencing.

______________________________

JUDGE PATRICIA A. DELANEY Perry County, Case No. 12 CA 3 10

IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MICHAEL BLACKFORD : : Defendant-Appellant : Case No. 12 CA 3

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed.

Costs assessed to appellant.

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JUDGES