[Cite as State v. Gebhardt,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 97865 and 97866

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ROBERT GEBHARDT DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-527947 and CR-529516

BEFORE: Kilbane, J., Boyle, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: January 24, 2013 ATTORNEY FOR APPELLANT

Brian R. McGraw 1370 Ontario Street Suite 2000 Cleveland, Ohio 44113

Robert Gebhardt, pro se Inmate No. 602-339 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Ronni Ducoff Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} In this consolidated appeal, defendant-appellant, Robert Gebhardt

(“Gebhardt”), appeals from his guilty plea in two separate cases. For the reasons that

follow, we affirm.

{¶2} In Case No. CR-527947, Gebhardt was charged with a 75-count indictment.

Counts 1-25 charged him with rape, Counts 26-50 charged him gross sexual imposition

(“GSI”), Counts 51-74 charged him with kidnapping, and Count 75 charged him with

intimidation of crime victim or witness. 1 All counts involved his biological, minor

daughter. According to the indictment, these crimes were committed on or about June 1,

2007 to May 12, 2009.

{¶3} In Case No. CR-529516, Gebhardt was charged with a four-count

indictment for transferring money from his wife’s 401(k) account and depositing it into

his own account. Count 1 charged him with theft, Counts 2-3 charged him with identity

fraud, and Count 4 charged him with telecommunications fraud.

{¶4} Pursuant to a plea agreement, Gebhardt pled guilty to three counts of GSI

(Counts 26, 27, and 28) in Case No. CR-527947 and one count of identity fraud and

agreed to $22,128.55 as restitution in Case No. CR-529516. The remaining counts in

1Each of counts 51-74 carried a sexual motivation specification. each case were nolled. Gebhardt was then referred for a presentence investigation

(“PSI”) report and returned to the trial court for sentencing in May 2011. In Case No.

CR-527947, the trial court sentenced Gebhardt to 18 months in prison on each count, to

be served consecutively for a total of four and one-half years. In Case No. CR-529516,

the trial court sentenced him to five years in prison and ordered $22,128.55 as restitution.

The trial court ordered that the sentence in each case be served consecutively, for an

aggregate sentence of nine and one-half years in prison.

{¶5} Gebhardt now appeals, with two appellate briefs before us for review.

Gebhardt’s appointed appellate counsel filed a brief setting forth two assignments of

error, and Gebhardt, after obtaining leave from this court, filed a brief setting forth three

pro se supplemental assignments of error. Two of Gebhardt’s supplemental assignments

of error involve the same issues raised by assigned counsel and will be discussed together.

ASSIGNMENT OF ERROR ONE

The trial court abused its discretion by imposing maximum, consecutive sentences on all counts in both cases.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR THREE

The trial court violated [Gebhardt’s] rights when it sentenced [him] without following the guidelines for sentencing and the conviction of allied offenses. This was an abuse of discretion and against R.C. 2929.11, R.C. 2929.12, R.C. 2929.14, and R.C. 2929.25.

ASSIGNMENT OF ERROR TWO

By failing to properly address Gebhardt’s mental health issues, counsel was ineffective.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR ONE The trial counsel provided ineffective assistance of counsel for the many reasons listed in the issue presented for review which violated [Gebhardt’s] rights to be represented by “effective counsel” leading to a plea less than knowingly, intelligently, or voluntarily made. A violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR TWO

The State violated [Gebhardt’s] rights when it allowed the conviction against the sufficient and manifest weight of evidence. Violations of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

Sentence

{¶6} In the first assignment of error and pro se supplemental assignment of error

three, Gebhardt challenges his sentence. Gebhardt argues the trial court abused its

discretion by imposing a maximum, consecutive sentence of nine and one-half years in

prison.

{¶7} Since Gebhardt was sentenced in May 2011, which was prior to the

September 30, 2011 effective date of H.B. 86, we apply the two-step approach for

reviewing felony sentences set forth by the Ohio Supreme Court in State v. Kalish,

,

,

. The Kalish court stated:

In applying [State v. Foster,

,

,

,] to the existing statutes, appellate courts must apply a two-step

approach. First, they must examine the sentencing court’s compliance with

all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an

abuse-of-discretion standard. Id. at ¶ 4.

{¶8} In Foster, the Ohio Supreme Court held that trial courts “have full

discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Id. at ¶ 100. The Kalish court declared that

although Foster eliminated mandatory judicial fact-finding, it left R.C. 2929.11 and

2929.12 intact. Id. at ¶ 13. As a result, the trial court must still consider these statutes

when imposing a sentence. Id., citing State v. Mathis,

,

,

.

{¶9} R.C. 2929.11(A) provides that when a trial court sentences an offender for a

felony conviction it must be guided by the “overriding purposes of felony sentencing.”

Those purposes are “to protect the public from future crime by the offender and others

and to punish the offender.” R.C. 2929.11(B) states that a felony sentence “must be

reasonably calculated to achieve the purposes set forth under R.C. 2929.11(A),

commensurate with and not demeaning to the seriousness of the crime and its impact on

the victim, and consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses. {¶10} In the instant case, the record demonstrates that Gebhardt’s sentence is

within the permissible statutory range and the trial court considered the applicable factors

and principles contained in R.C. 2929.11 and 2929.12. Accordingly, Gebhardt’s

sentence is not contrary to law.

{¶11} Having satisfied step one, we next consider whether the trial court abused its

discretion. An “‘abuse of discretion’ connotes more than an error of law or judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”

Blakemore v. Blakemore,

,

(1983), quoting State

v. Adams,

,

(1980). Here, Gebhardt admitted to

committing three acts of gross sexual imposition on his minor biological daughter and

transferring money from his wife’s 401(k) account and depositing it into his own account.

Furthermore, Gebhardt’s prior criminal history includes a conviction for prior corruption

of a minor. Based on these facts, we do not find that Gebhardt’s sentence was

unreasonable, arbitrary, or unconscionable.

{¶12} In pro se supplemental assignment of error three, Gebhardt argues the trial

court erred by failing to merge the GSI counts in Case No. CR-527947. Gebhardt claims

that the offenses were committed at the same time, with the same conduct.

{¶13} In State v. Johnson,

,

,

,

the Ohio Supreme Court redefined the test for determining whether two offenses are

allied offenses of similar import subject to merger under R.C. 2941.25.2 The Johnson

2R.C. 2941.25 governs allied offenses and provides: court expressly overruled State v. Rance,

,

,

, which required a “comparison of the statutory elements in the abstract” to determine

whether the statutory elements of the crimes correspond to such a degree that the

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

{¶14} The Johnson court held that rather than compare the elements of the crimes

in the abstract, courts must consider the defendant’s conduct.

at syllabus. The

Johnson court found:

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 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.” [State] v. Brown,

,

,

, (Lanzinger, J., dissenting).

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

(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. separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge. Id. at ¶ 48-50.

{¶15} A review of the record reveals that there was no discussion of the merger of

the GSI counts at the sentencing hearing. The Ohio Supreme Court has found that the

failure to merge allied offenses of similar import constitutes plain error. State v.

Underwood,

,

,

, ¶ 31, citing State v.

Yarbrough,

,

,

. 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.”

{¶16} In the instant case, Gebhardt pled guilty to three counts of GSI that includes

a range of dates from June 1, 2007 to May 12, 2009. A review of the record reveals that

the indictment does not distinguish conduct or temporal differences and the bill of

particulars does not offer any separate basis to resolve the allied offenses issue.

However, Gebhardt was referred to the probation department for a PSI report. In the

report, the victim recalls various instances of abuse that occurred at their home on May

12, 2009. Gebhardt first forced her to touch him and perform oral sex on him by the

fireplace. He then rubbed his penis against her vagina and buttock. He inserted his

penis into her vagina and then instructed the victim to put his penis in her mouth. The

victim then took a shower. Gebhardt approached the victim again and instructed her to

get on the bed, where he rubbed his penis against her and digitally penetrated the victim.

Based on these facts, we find these offenses were each committed with a separate animus

and are not allied offenses of similar import. Each act was distinct and committed at different times and locations. As a result, the trial court’s imposition of a separate

sentence for each offense did not amount to plain error.

{¶17} Accordingly, the first assignment of error and pro se supplemental

assignment of error three are overruled.

Ineffective Assistance of Counsel

{¶18} In Gebhardt’s second assignment of error and pro se supplemental

assignment of error one, he argues that he was denied effective assistance of counsel.

However, in State v. Milczewski, 8th Dist. No. 97138,

, we stated:

[W]hen a defendant enters a guilty plea as part of a plea bargain, he waives all appealable errors that may have occurred at trial, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley,

,

(1991). “A failure by counsel to provide advice [which impairs the knowing and voluntary nature of the plea] may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.” United States v. Broce,

,

,

(1989). Accordingly, a guilty plea waives the right to claim that the accused was prejudiced by constitutionally ineffective counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary. State v. Barnett,

,

(2d Dist. 1991).

{¶19} In the second assignment of error, Gebhardt argues trial counsel was

ineffective because he did not properly address Gebhardt’s mental health issues. During

sentencing, the trial court inquired about Gebhardt’s mental health status because

Gebhardt stated in his PSI report that he had four personalities. Trial counsel responded

by stating that Gebhardt did report that he had multiple personalities, but that was not the

defense strategy he chose to proceed with. Trial counsel stated, “we have adopted the position that [Gebhardt] is in fact sane and he is competent and he entered the pleas

accordingly. * * * [T]here have been private assessments done in the past of

[Gebhardt.]” Trial counsel further stated that this issue was not going to be raised on

appeal.

{¶20} Gebhardt now argues on appeal that trial counsel should have requested a

mental competency examination or a mitigation of penalty report. However, he fails to

offer any evidence within the record to support his assertion that his plea was a result of

his trial counsel’s failure to pursue the mental health evaluation. At the guilty plea

hearing, Gebhardt stated that he was able to understand the proceedings and that by

pleading guilty he was waiving certain rights.

{¶21} Moreover, even if we would find that Gebhardt’s trial counsel was deficient

for failing to request a competency evaluation, he has made no showing that but for the

error, he would not have pled guilty. In fact, in the second assignment of error Gebhardt

does not even argue that he would not have pled guilty, but rather, that a “proper

work-up” may have successfully convinced the trial court to have some leniency in

sentencing. Accordingly, we find that Gebhardt failed to satisfy his burden in proving

that trial counsel was deficient by not referring him for a competency evaluation and that

but for this deficiency he would not have pled guilty.

{¶22} In pro se supplemental assignment of error one, Gebhardt argues that trial

counsel’s ineffectiveness for other reasons led to a plea that was less than knowingly, intelligently, and voluntarily made. He contends that counsel failed to do a variety of

tasks on his behalf.

{¶23} In order to establish that there was ineffective assistance of counsel in

conjunction with his guilty plea, Gebhardt must demonstrate that there is a reasonable

probability that, but for counsel’s errors, he would not have pled guilty and would have

insisted on going to trial. Hill v. Lockhart,

,

,

(1985); State v. Xie,

,

(1992).

{¶24} Gebhardt primarily contends that counsel did not gather any evidence and

failed to investigate the State’s case. Upon review, however, we find that Crim.R. 11,

which governs the taking of pleas to ensure that they are made knowingly and voluntarily,

was complied with.

{¶25} Under Crim.R. 11(C)(2), a court shall not accept a guilty plea in a felony

case 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 * * *.

(b) Informing the defendant of and determining that the defendant understands the effect of the plea * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant understands

that by the plea the defendant is waiving the rights to jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining

witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant

cannot be compelled to testify against himself or herself.

{¶26} In compliance with Crim.R. 11 and prior to accepting Gebhardt’s plea, the

trial court advised Gebhardt the nature of the charges, the maximum penalties, the effect

of the plea, and the rights Gebhardt would be waiving by pleading guilty. At the guilty

plea hearing, Gebhardt stated that he was satisfied with the representation he received

from counsel and that he understood the offenses to which he was pleading guilty.

Therefore, the record reflects that Gebhardt’s plea was knowingly, intelligently, and

voluntarily made.

{¶27} Accordingly, the second assignment of error and pro se supplemental

assignment of error one are overruled.

Sufficient Evidence

{¶28} In supplemental pro se assignment of error two, Gebhardt claims there was

insufficient evidence to sustain his convictions. However, Gebhardt pled guilty to the

charges. A “plea of guilty is a complete admission of the defendant’s guilt.” Crim.R.

11(B)(1). As a result, we have held “‘[a] guilty plea waives a defendant’s right to

challenge sufficiency or manifest weight of the evidence.’” State v. Moree, 8th Dist. No.

90894,

, quoting State v. Hill, 8th Dist. No. 90513,

, citing State v. Siders,

,

(11th Dist. 1992);

State v. Patterson, 5th Dist. No. 21165,

.

{¶29} Accordingly, supplemental pro se assignment of error two is overruled. {¶30} Judgment is 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 conviction having been affirmed, any bail pending appeal is

terminated.

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

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and EILEEN A. GALLAGHER, J., CONCUR