[Cite as State v. Kimbrough,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97568

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL C. KIMBROUGH DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-546878

BEFORE: Boyle, P.J., Cooney, J., and Kilbane, J.

RELEASED AND JOURNALIZED: June 28, 2012 ATTORNEY FOR APPELLANT

David V. Patton P.O. Box 39192 Solon, Ohio 44139-0192

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Scott Zarzycki Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

{¶2} Defendant-appellant, Michael Kimbrough, appeals his conviction and

sentence, raising two assignments of error:

“[I.] The trial court committed reversible error in accepting the defendant’s

guilty plea because the plea was not knowing, voluntary, and intelligent because the

defendant was mentally ill and did not understand the terms or consequences of his plea.

“[II.] The trial court prejudicially erred when it failed to merge the kidnapping,

rape, and felonious assault counts for sentencing purposes.”

{¶3} We find these arguments unpersuasive and affirm.

Procedural History and Facts

{¶4} In February 2011, Kimbrough was indicted on seven counts: kidnapping, in

violation of R.C. 2905.01(A)(4); three counts of rape, in violation of R.C. 2907.02(A)(2);

attempted rape, in violation of R.C. 2907.02(A)(2); gross sexual imposition, in violation

of R.C. 2907.05(A)(1); and felonious assault, in violation of R.C. 2903.11(A)(1). All of

the counts carried various specifications, including sexual motivation, repeat violent

offender, and sexual violent predator specifications.

{¶5} The facts giving rise to the indictment were as follows. On January 28,

2011, the victim, a 15-year-old girl, was walking down Turney Road in Garfield Heights

at approximately 9:00 p.m. when she spotted Kimbrough walking toward her. The victim attempted to deflect Kimbrough’s advances, asking him to leave her alone. The

victim walked to the corner of Turney Road and Garfield Boulevard, where Kimbrough

eventually caught up to her and threw her into a glass-enclosed bus shelter. He then

forced the victim to perform oral sex on him. According to the state, this lasted for

approximately ten minutes at which point Kimbrough ordered the victim to stand up and

turn around. The victim attempted to flee but Kimbrough grabbed her and threw her

into the bus shelter, causing the victim to hit her head on the glass and her lower back on

the bench. Kimbrough forced the victim to perform oral sex again and then ultimately

pulled down the victim’s pants and digitally penetrated her.

{¶6} During the assault, the victim was able to dial 911 on her cell phone,

resulting in the police being notified and responding to the scene. Kimbrough was

immediately arrested, and the victim was taken to the hospital.

{¶7} In March 2011, Kimbrough was referred to the court’s psychiatric clinic for

a competency to stand trial and sanity evaluation. Kimbrough had been previously

diagnosed with schizophrenia and major depressive disorders. Following the referral, he

was also transferred to the mental health docket. Kimbrough further obtained a private

independent examination as to his competency to stand trial and sanity. Both the state

and Kimbrough ultimately stipulated to the reports of the examiners, including their

competency finding.

{¶8} Kimbrough later appeared before the court on a change of plea hearing.

Under a plea agreement reached with the state, Kimbrough pleaded guilty to single counts of rape, felonious assault, and kidnapping. The kidnapping also carried a sexual

motivation specification. All other counts and specifications were nolled. After

conducting a lengthy colloquy advising Kimbrough of his constitutional and

nonconstitutional rights, including the maximum penalty that Kimbrough faced under

each count, the trial court accepted Kimbrough’s plea of guilty.

{¶9} Prior to sentencing, the trial court asked the parties to brief the issue of

allied offenses and whether any of these counts merged. While the state contended that

none of the offenses merged, Kimbrough argued that all three should merge because they

were all committed with the same animus as part of the same transaction.

{¶10} The trial court found that the felonious assault and kidnapping counts

merged. The state elected to move forward on the kidnapping count. The trial court

sentenced Kimbrough nine years on the rape count and nine years on the kidnapping

count, to run consecutive to one another for a total term of 18 years in prison.

{¶11} Kimbrough now appeals his conviction and sentence.

Guilty Plea

{¶12} In his first assignment of error, Kimbrough argues that the trial court erred

in accepting his guilty plea because the plea was not knowingly, voluntarily, and

intelligently made. He contends that his mental illnesses combined with the medication

that he was taking precluded him from understanding the consequences of his guilty plea.

We find his argument unpersuasive. {¶13} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle,

,

(1996).

{¶14} Crim.R. 11(C)(2) requires a court, prior to accepting a guilty plea, to address

the defendant personally; the court must specify each of the constitutional rights the

defendant is waiving by entering his plea, and, further, must determine, in pertinent part,

that “he is making the plea voluntarily, with an understanding of the nature of the charge

and the maximum penalty involved,” that “he understands the effect of his plea of guilty”

and that he understands the court “may proceed to judgment and sentence.” See State v.

Veney,

,

,

.

{¶15} Kimbrough contends that he did not understand the consequences of his plea

as evidenced by his stated confusion regarding postrelease control and the reporting

requirements for a sexual offender. He further claims that he repeatedly misstated the

possible sentencing ranges for kidnapping and rape, further evidencing his lack of

understanding of the consequences of his plea. He alludes that he was incapable of

understanding based on his minimal education, mental illnesses, and the medication that

he was taking. But in reviewing the entire record, we find that these arguments have no

merit. {¶16} To the extent that Kimbrough expressed confusion between post-release

control and the reporting requirements of a Tier III sexual offender, the record reveals

that the trial court answered Kimbrough’s questions, eliminating any confusion that he

may have had. Additionally, while Kimbrough expressed some confusion regarding the

concept of merger as it relates to allied offenses, the trial court again addressed

Kimbrough’s confusion and answered his questions until Kimbrough indicated that he

understood. In discussing merger, the trial court explained the maximum penalty for

each offense and the possibility that some of the counts may merge, resulting in a lower

possible sentence, but also emphasized that the counts may not merge, resulting in a

possible sentence of 28 years in prison. Notably, however, it was not necessary for

Kimbrough to understand the doctrine of merger in order to knowingly, voluntarily, and

intelligently understand the consequences of his plea.

{¶17} Contrary to Kimbrough’s assertion on appeal, we find his very questioning

of these aspects of his sentence during the plea colloquy demonstrates that he understood

what the trial court said. Indeed, in this case, the record reflects that the trial court

complied literally with every part of Crim.R. 11(C)(2). And Kimbrough appropriately

responded to the trial court’s questioning, including correctly answering the trial court’s

questions as to the range of sentence for each count. We find absolutely no evidence in

the record to corroborate Kimbrough’s claim on appeal that he did not understand the

maximum possible sentence that he could receive as a result of his guilty plea. Here, the

court’s literal compliance, along with Kimbrough’s assurances and completely appropriate responses during the colloquy, “necessarily means that, under the totality of

the circumstances, he subjectively understood the implications of his plea.” State v.

Stokes, 8th Dist. No. 95488,

.

{¶18} We further find no evidence that Kimbrough’s taking of psychotropic drugs

precluded him from understanding what the trial court was explaining. In fact, in

answering the trial court’s questions, Kimbrough expressly indicated that he was taking

psychotropic drugs that were helping him — he indicated that he felt well and was

thinking clearly. Under these circumstances, the trial court cannot be faulted for

accepting Kimbrough’s plea. State v. Mink,

,

,

, ¶ 66-68.

{¶19} The first assignment of error is overruled.

Allied Offenses

{¶20} In his second assignment of error, Kimbrough argues that the trial court

erred in failing to merge all three counts as allied offenses. He contends that all three

crimes occurred as part of the same single transaction and with the same single animus.

We disagree.

{¶21} In State v. Johnson,

,

,

,

the Ohio Supreme Court held that a trial court must consider the defendant’s conduct to

determine whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25.

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.

Id. at ¶ 49-50, quoting State v. Brown,

,

,

.

{¶22} Here, the trial court found that kidnapping and felonious assault were allied

offenses. The only issue on appeal is whether the trial court should have also merged

the rape count as well. Kimbrough contends that it should have because the rape,

kidnapping, and felonious assault “correspond to such a degree”; he argues that all three

crimes were “part and parcel of the same occurrence.” According to Kimbrough, a

conviction for kidnapping under R.C. 2905.01(A)(4)1 must always merge with a rape

count under R.C. 2907.02(A)(2).2 We disagree.

{¶23} While there is no dispute that rape, in violation of R.C. 2907.02(A)(2), and

kidnapping, in violation of R.C. 2905.01(A)(4), may be allied offenses in some cases as

defined under the Johnson test, the critical issue is whether the crimes in this case were

committed with the same animus. See State v. Ortiz, 8th Dist. No. 95026,

. In deciding whether the kidnapping was committed with a separate

animus, a trial court should consider the circumstances surrounding the restraint and

1 This statute provides that “[n]o person, by force, threat, or deception, * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, * * * [t]o engage in sexual activity as defined in section 2907.01 of the Revised Code, with the victim against the victim’s will.” 2 This statute provides that “[n]o person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.” confinement as well as any additional risk of harm to the victim.

Relying on the

Ohio Supreme Court’s holding in State v. Logan,

,

(1979), this court adopted the following guidelines to establish whether kidnapping and

an offense of the same or similar import are committed with separate animus:

(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;

(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.

Ortiz at ¶ 16, quoting Logan at syllabus.

{¶24} This is not a case where the kidnapping was incidental to the underlying rape. The

record reveals that the victim was held captive for nearly an hour, that she sustained a serious injury to

her head and back upon trying to escape, and that she was forced to perform oral sex on more than one

occasion. She was further digitally penetrated separate from having to perform oral sex during her

captivity. Under these circumstances, we cannot say that the single count of kidnapping was

incidental to a single count of rape.

{¶25} The second assignment of error is overruled.

{¶26} In sum, we find that Kimbrough’s guilty plea was knowingly, voluntarily, and

intelligently made and that the trial court properly determined that the rape and kidnapping counts were

not allied offenes. {¶27} Judgment affirmed.

It is ordered that appellee recover of 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 conviction having

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

for execution of sentence.

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

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and MARY EILEEN KILBANE, J., CONCUR