[Cite as State v. Chaney,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97872

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LENA CHANEY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-550906

BEFORE: Rocco, J., Jones, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: October 25, 2012

-i- ATTORNEY FOR APPELLANT

Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Brian D. Kraft Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:

{¶1} Defendant-appellant Lena Chaney appeals from her convictions and the

sentences imposed after she entered a guilty plea to charges of felonious assault and

attempted felonious assault.

{¶2} Chaney presents two assignments of error. She claims that the trial court

erred in accepting her guilty plea because the court did not personally inform Chaney of

the maximum penalties for the offenses during the plea hearing and, therefore, did not

properly ascertain whether her plea was knowingly, intelligently, and voluntarily made

under Crim.R. 11(C)(2)(a). Chaney also claims that the trial court erred in failing to

consider whether the counts to which Chaney pled guilty were allied offenses of similar

import under R.C. 2941.25 that should have been merged for sentencing.

{¶3} Upon review of the record, this court finds that Chaney’s assignments of error

have no merit. Chaney’s convictions and sentences are affirmed.

{¶4} In June 2011, Chaney was charged with one count of attempted murder, three

counts of felonious assault, and one count of attempted felonious assault. On December

6, 2011, Chaney pled guilty to Count 2 of the indictment, felonious assault in violation of

R.C. 2903.11(A)(1) with forfeiture specifications, and Count 5 of the indictment,

attempted felonious assault in violation of R.C. R.C. 2923.02 and 2903.11(A)(1) with

forfeiture specifications. The felonious assault and attempted felonious assault counts involved different victims. In exchange for Chaney’s plea, the State dismissed the

remaining counts of the indictment.

{¶5} During the plea hearing, the assistant prosecutor explained the plea agreement

and outlined the potential penalties for each of the counts, i.e., that felonies of the second

degree carry a potential penalty of two to eight years in prison and a potential fine of up to

$15,000 and that felonies of the third degree carry a potential penalty of nine to 36

months and a potential fine of up to $10,000. The trial court followed with an

explanation of postrelease control. Chaney’s counsel confirmed that the prosecutor had

accurately described the plea agreement.

{¶6} The trial court asked Chaney whether she understood what the prosecutor and

her attorney had said. Chaney replied that she did not understand the counts to which

she was pleading. The trial court explained that she was pleading guilty to Count 2 of

the indictment, felonious assault, a felony of the second degree, and Count 5 of the

indictment, attempted felonious assault, a felony of the third degree.

{¶7} Following the trial court’s explanation, Chaney stated she understood. The

trial court proceeded to explain Chaney’s constitutional trial rights to her and confirmed

she understood and was waiving these rights. Chaney’s counsel indicated that he was

satisfied that the trial court had complied with Crim.R. 11. Finding that her plea was

knowingly, intelligently, and voluntarily made, the trial court accepted Chaney’s guilty

plea to Counts 2 and 5 of the indictment and dismissed the remaining counts. {¶8} On January 5, 2012, the trial court conducted Chaney’s sentencing hearing.

The court sentenced Chaney to concurrent prison terms of four years on the felonious

assault count and twenty-four months on the attempted felonious assault count.

{¶9} Chaney appeals from her convictions and sentences and presents the

following two assignments of error:

I. Appellant did not enter her guilty plea knowingly, intelligently, or voluntarily because the trial court failed to properly inform her of the maximum penalties as required by Crim.R. 11(C)(2)(a).

II. The trial court erred by ordering convictions and a sentence for

separate counts because the offenses are allied offenses pursuant to

R.C. 2941.25 and they are part of the same transaction under R.C.

2929.14 but the trial court failed to undertake any such analysis.

{¶10} In her first assignment of error, Chaney argues that she did not enter her

guilty plea knowingly, intelligently, or voluntarily because the trial judge did not

personally inform her of the maximum penalty involved. Crim.R. 11(C)(2)(a) states

2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing; * * *

{¶11} In determining whether the trial court has satisfied its duties in accepting a plea under Crim.R. 11, reviewing courts distinguish between constitutional and nonconstitutional rights. State v. Veney,

,

,

. The trial court must strictly comply with the requirements of Crim.R. 11(C) relating to the waiver of constitutional rights. Id. at ¶ 18. {¶12} As to the nonconstitutional aspects of Rule 11(C), the trial court must

“substantially comply” with the rule’s requirements. Veney at ¶ 14. “Substantial

compliance means that under the totality of the circumstances the defendant subjectively

understands the implication of his plea and the rights he is waiving.” State v. Nero,

,

(1990). {¶13} The right to be informed

at the plea hearing of the maximum possible penalty that could be imposed upon

conviction is a nonconstitutional right. State v. McKissic, 8th Dist. Nos. 92332 and

92333,

, ¶ 13, citing State v. Stewart,

,

(1977). Accordingly, the trial court’s actions are reviewed for substantial

compliance with Crim.R. 11(C)(2)(a). The record reflects that the trial court

substantially complied with Crim.R. 11(C)(2)(a).

{¶14} The fact that the assistant prosecutor, rather than the trial judge, explained

the maximum penalties applicable to the offenses involved during Chaney’s plea hearing

does not preclude substantial compliance with Crim.R. 11. As this court previously

stated in McKissic:

Although it would have been better for the trial judge himself to have explained the maximum penalties to the defendant, substantial compliance with Crim.R. 11(C) suffices with respect to nonconstitutional rights. Thus, the court may properly determine that the defendant understands those matters from the totality of the circumstances, without informing him about them directly.” McKissic at ¶ 17, citing State v. Gibson,

,

(8th Dist. 1986); State v. Rainey,

,

(10th Dist. 1982). See also State v. Sims, 8th Dist. No. 95979,

(trial court substantially complied with Crim.R. 11(C) where the prosecutor informed appellant of the potential maximum sentences for the offenses at issue and the appellant stated on the record that he understood).

{¶15} In this case, the record adequately demonstrates that Chaney was informed

of the potential maximum penalties for the offenses involved at the outset of the plea

hearing. Although Chaney, a high school graduate who had completed two years of

college, had a question regarding the specific counts as to which she was entering a guilty

plea, which the trial court addressed, she had no questions regarding potential penalties

for the offenses.

{¶16} Based on the totality of the circumstances, the record shows that Chaney

subjectively understood the maximum potential penalties associated with her guilty plea.

The trial court did not violate Crim.R. 11(C)(2)(a) in accepting Chaney’s plea.

Accordingly, Chaney’s first assignment of error is overruled.

{¶17} In her second assignment of error, Chaney complains that the trial court

should not have imposed sentences on both the felonious assault and attempted felonious

assault counts without first undertaking an analysis to determine whether the counts were

subject to merger under R.C. 2941.25. Chaney requests this court to reverse her

sentences and remand for a determination of whether the felonious assault and attempted

felonious assault counts were allied offenses of similar import.

{¶18} Chaney failed to object to the imposition of multiple sentences below and

has therefore waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention

of the court.” An error rises to the level of plain error only if, but for the error, the outcome of the proceedings would have been different. State v. Harrison,

,

,

; State v. Long,

,

(1978). Notice of plain error “is to be taken with the utmost caution,

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

{¶19} The Ohio Supreme Court has held that the imposition of multiple sentences

for allied offenses of similar import is plain error. State v. Underwood,

,

,

, ¶ 31, citing State v. Yarbrough,

,

,

, ¶ 96-102.

{¶20} 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.

{¶21} In State v. Johnson,

,

,

,

the Ohio Supreme Court redefined the test for determining whether offenses constitute

allied offenses subject to merger pursuant to R.C. 2941.25:

In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.

If the multiple offenses can be committed by the same conduct, then 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.” * * *

If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.

Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has a separate animus for each offense, then according to R.C. 2941.25(B), the offenses will not merge.

Id. at ¶ 48-50.

{¶22} Chaney argues that, because the conduct at issue involved a single

transaction, the trial court was required to conduct a factual inquiry under Johnson to

determine whether the felonious assault and attempted felonious assault offenses were

allied. Chaney further claims that, based on the limited facts in the record, the trial

court’s failure to conduct such an inquiry constitutes plain error requiring a remand, citing

State v. Corrao, 8th Dist. No. 95167,

.

{¶23} In Corrao, the trial court sentenced a defendant on multiple counts of

pandering sexually oriented matter involving a minor and illegal use of a minor in

nudity-oriented material without first inquiring whether those counts were allied offenses

subject to merger. Because the record was devoid of facts necessary for the court to

resolve the allied offense issue, this court remanded the case to the trial court, finding that

“[t]he trial court’s failure to make the necessary inquiry constitutes plain error necessitating a remand.” Id. at ¶10.1 {¶ 24} In this case, however, sufficient facts

exist in the record from which to resolve the issue Chaney presents. The transcript from

the sentencing hearing indicates that Chaney drove a mini-van into a former boyfriend,

striking and seriously injuring him. The indictment specifies that two victims were

involved in the incident, Martel Thomas and Ashley Chadwick.

{¶ 25} Although both the felonious assault and attempted felonious assault

counts stem from the same course of conduct, it resulted in the commission of offenses

against two victims. “Separate convictions and sentences are permitted [under R.C.

2941.25] when a defendant’s conduct results in multiple victims.” State v. Allen, 8th

Dist. No. 97014,

, citing State v. Skaggs, 2d Dist. No. 10-CA-26,

, ¶ 7.

{¶ 26} Where a defendant commits the same offense against different victims

during the same course of conduct, a separate animus exists for each victim such that the

offenses are not allied, and the defendant can properly be convicted of and sentenced on

multiple counts. State v. Gregory,

,

(12th Dist.

1993) (where appellant was aware of the presence of two potential victims in a car at

1 This court notes that different panels of this court have reached different conclusions as to whether a trial court’s failure to conduct an allied offense inquiry prior to sentencing constitutes plain error where the record on appeal contains insufficient facts from which it can be determined whether an allied offense error occurred. See, e.g., State v. Barrett, 8th Dist. No. 97614,

; State v. Lindsey, 8th Dist. No. 96601,

; State v. Corrao, 8th Dist. No. 95167,

; State v. Baker, 8th Dist. No. 97139,

. This issue is not addressed here because the facts in the record, albeit limited, are nevertheless sufficient to resolve the allied offense issue. which he fired multiple gunshots, he could properly be convicted of two counts of

felonious assault).

{¶ 27} Further, as this court has observed “‘[w]hen an offense is defined in terms

of conduct towards another, then there is dissimilar import for each person affected by the

conduct.’” State v. Snuffer, 8th Dist. Nos. 96480, 96481, 96482, and 96483,

, quoting State v. Phillips,

,

(2d Dist. 1991), citing State v. Jones,

,

. See

also State v. Logan, 8th Dist. No. 97022,

; State v. Johns, 11th Dist.

No. 2011-A-0003,

, ¶ 33.

{¶ 28} Because the felonious assault and attempted felonious assault counts on

which Chaney was sentenced involved different victims, they are not allied offenses. The

trial court’s imposition of a separate sentence on each count therefore does not constitute

plain error.

{¶ 29} Chaney’s second assignment of error is overruled.

{¶ 30} Judgment affirmed.

It is ordered that appellee recover from appellant 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 common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentences. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________ KENNETH A. ROCCO, JUDGE

LARRY A. JONES, SR., P.J., and MARY EILEEN KILBANE, J., CONCUR