[Cite as State v. Carnahan,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 4-15-18

v.

MARK D. CARNAHAN, OPINION

DEFENDANT-APPELLANT.

Appeal from Defiance County Common Pleas Court Trial Court No. 11CR11114

Judgment Affirmed

Date of Decision: May 31, 2016

APPEARANCES:

Timothy C. Holtsberry for Appellant

Russell R. Herman for Appellee Case No. 4-15-18

PRESTON, J.

{¶1} Defendant-appellant, Mark D. Carnahan (“Carnahan”), appeals the

September 1, 2015 judgment entry of sentence of the Defiance County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} On April 13, 2011, the Defiance County Grand Jury indicted

Carnahan on seven counts, including: Count One of aggravated burglary in

violation of R.C. 2911.11(A)(1), a first-degree felony; Count Two of felonious

assault in violation of R.C. 2903.11(A)(2), a first-degree felony; Counts Three and

Four of assault in violation of R.C. 2903.13(A), fourth-degree felonies; Counts

Five and Six of assault in violation of R.C. 2903.13(A), first-degree

misdemeanors; and Count Seven of possession of cocaine in violation of R.C.

2925.03(A), (C)(4)(a), a fifth-degree felony. (Doc. No. 1).

{¶3} On April 20, 2011, Carnahan appeared for arraignment and entered

pleas of not guilty. (Doc. No. 4). On September 26, 2011, Carnahan entered pleas

of not guilty by reason of insanity. (Doc. No. 14). On September 27, 2011, the

trial court ordered Carnahan to be evaluated for his competency to stand trial, and

ordered him to the Northwest Ohio Psychiatric Hospital for evaluation. (Doc. No.

16).

{¶4} On October 7, 2011, the Defiance County Grand Jury indicted

Carnahan on Count One of aggravated robbery in violation of R.C. 2911.01(B)(1),

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a first-degree felony. (Doc. No. 19). Carnahan appeared for arraignment on the

count from the second indictment and entered a plea of not guilty. (Doc. No. 18).

Because the count contained in the second indictment arose from the same

incident as the counts in the first indictment, the cases were consolidated. (Id.).

On April 16, 2012, Carnahan entered a plea of not guilty by reason of insanity to

the count contained in the second indictment. (Doc. No. 21).

{¶5} On May 31, 2012, after a hearing, the trial court concluded that

Carnahan was competent to stand trial on all counts of both indictments. (Doc.

No. 32). On August 6, 2012, the trial court granted Carnahan’s July 26, 2012

request to be independently evaluated by a private expert regarding his mental

conditions. (Doc. Nos. 35, 39). On April 13, 2013, after conceding his

competency to stand trial, Carnahan withdrew his pleas of not guilty by reason of

insanity. (Doc. No. 53). (See also Doc. No. 67).

{¶6} On October 8, 2013, Carnahan withdrew his pleas of not guilty and

entered pleas of no contest with a stipulation to findings of guilt to Count One of

the second indictment of aggravated robbery, Count Two of the original

indictment of felonious assault, and Counts Three and Four of the original

indictment of assault, and entered a plea of guilty to Count One of the original

indictment of aggravated burglary. (Doc. No. 69). In exchange for his change of

pleas, the State agreed to dismiss Counts Five, Six, and Seven of the original

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indictment and enter a joint sentencing recommendation. (Id.). The trial court

accepted Carnahan’s pleas of no contest and plea of guilty, found him guilty, and

ordered a pre-sentence investigation (“PSI”). (Id.).

{¶7} On November 26, 2013, the trial court sentenced Carnahan to four

years in prison on Count One of the second indictment, which the trial court noted

was a mandatory term, and 15 months in prison each on Counts Three and Four of

the original indictment, and ordered that Carnahan serve the terms consecutively

for an aggregate sentence of 78 months. (Doc. No. 73). The trial court further

ordered that an 8-year prison term be reserved as to Count Two of the original

indictment and that a 7-year prison term be reserved as to Count One of the

original indictment, to be served consecutively for an aggregate term of 15 years if

Carnahan violates his community-control sanctions. (Id.). The trial court

dismissed Counts Five, Six, and Seven of the original indictment at the State’s

request. (Id.). The trial court filed its judgment entry of sentence on December

11, 2013. (Id.).

{¶8} On January 10, 2014, Carnahan appealed the trial court’s December

11, 2013 sentencing entry. (Doc. No. 77). This court affirmed Carnahan’s

convictions in part, reversed in part, and remanded his case for resentencing after

concluding that the trial court: (1) erred in determining that Carnahan’s

aggravated-robbery conviction carried a mandatory-prison sentence; (2) did not

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make the proper findings “to overcome the presumption of prison when Carnahan

was sentenced to community control for two first degree felonies”; and (3) did not

include the proper R.C. 2929.14(C)(4) language in its sentencing entry to support

its order of consecutive sentences. State v. Carnahan, 3d Dist. Defiance No. 4-14-

02,

, ¶ 20-21, 27.

{¶9} On May 14, 2015, Carnahan, pro se, filed a motion to withdraw his

guilty plea and no-contest pleas. (Doc. No. 97). On July 7, 2015, Carnahan,

represented by counsel, filed a motion for judicial release. (Doc. No. 102). That

same day, Carnahan appeared for re-sentencing and a hearing on his motion to

withdraw his pleas. (Doc. No. 105). At the hearing, Carnahan withdrew his

motion to withdraw his pleas and “reassert[ed]” his previous pleas. (Doc. No.

105); (July 7, 2015 Tr. at 4-6, 22, 32-38). In exchange for withdrawing his motion

to withdraw his pleas, the State agreed to a joint sentencing recommendation.

(Id.); (Id. at 6-8). The trial court accepted the parties’ joint sentencing

recommendation and re-sentenced Carnahan to five years in prison as to Count

One of the second indictment and five years in imprison as to Count Two of the

original indictment, and ordered that Carnahan serve the terms concurrently for an

aggregate sentence of five years. (Id.); (Id. at 39-42). The trial court further

ordered that a nine-year prison term be reserved as to Count One of the original

indictment and that a 17-month prison term be reserved each as to Counts Three

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and Four of the original indictment, to be served consecutively for an aggregate

term of 11 years, 10 months if Carnahan violates his community-control sanctions.

(Id.); (Id.). The trial court also granted Carnahan’s motion for judicial release, and

released Carnahan on community control. (Id.); (Id. at 42-44). The trial court

filed its judgment entry of sentence on September 1, 2015. (Doc. No. 105).

{¶10} On October 1, 2015, Carnahan filed his notice of appeal. (Doc. No.

106). He raises two assignments of error for our review.

Assignment of Error No. I

The Trial Court Violated the Appellant’s Due Process Right by Imposing a More Severe Sentence on Re-Sentencing, Pursuant to North Carolina v. Pearce.

{¶11} In his first assignment of error, Carnahan argues that the trial court

erred by imposing a more severe sentence in contravention of North Carolina v.

Pearce.

,

(1969).1

{¶12} R.C. 2953.08(A) provides specific grounds for a defendant to appeal

a sentence. State v. Underwood,

,

.

1 Carnahan’s reliance on Pearce is erroneous because Pearce was overruled by the United States Supreme Court in Alabama v. Smith. See State v. Donahue, 6th Dist. Wood No. WD-05-025,

, citing

,

(1989). In Pearce, the United States Supreme Court initially “held that a trial court violates the Due Process Clause of the Fourteenth Amendment under the U.S. Constitution when it imposes a harsher sentence motivated by vindictive retaliation.” State v. Troglin, 3d Dist. Union No. 14-06-57,

, citing North Carolina v. Pearce,

,

(1969), overruled, Smith. However, “cases subsequent to Pearce indicate that [] a presumption [of vindictiveness] arises only when circumstances establish a ‘reasonable likelihood’ that an increased sentence is the product of vindictiveness.” State v. Craycraft, 12th Dist. Clermont Nos. CA2011-04-029 and CA2011-04-030,

, ¶ 11, citing Smith. “‘Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.’”

quoting Smith at 799, citing Wasman v. United States,

,

(1984).

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However, under R.C. 2953.08(D)(1), “A sentence imposed upon a defendant is not

subject to review under this section if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution in the case, and is

imposed by a sentencing judge.” “[A] sentence is ‘authorized by law’ and is not

appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all

sentencing provisions.”

. “[W]hen a sentence fails to include a

mandatory provision, it may be appealed because such a sentence is ‘contrary to

law’ and is also not ‘authorized by law.’” Id. at ¶ 21.

{¶13} “[A]n enhanced sentence imposed out of vindictiveness may be

contrary to law.” State v. Schneider, 8th Dist. Cuyahoga No. 98938, 2013-Ohio-

2532, ¶ 7. “A presumption of vindictiveness arises when the same judge imposes

a harsher sentence following a successful appeal.” State v. Troglin, 3d Dist. Union

No. 14-06-57,

, citing Pearce,

, overruled,

Alabama v. Smith,

,

(1989), and State v. Wagner,

3d Dist. Union No. 14-06-30,

. See also State v. Craycraft,

12th Dist. Clermont Nos. CA2011-04-029 and CA2011-04-030,

, ¶

11, citing State v. Johnson, 2d Dist. Montgomery No. 23297,

, ¶

5. A sentence is not vindictive when the aggregate length of the new sentence

does not exceed the total length of the original sentence. Troglin at ¶ 20, quoting

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State v. Nelloms,

(2d Dist. 2001) and citing State v. Pearson,

(3d Dist. 1998).

{¶14} Carnahan’s sentence is authorized by law because it is not vindictive

for three reasons. First, Carnahan’s aggregate sentence and aggregate reserved

sentence on remand are not greater than his original aggregate sentence or his

original aggregate reserved sentence. In this case, Carnahan’s original sentence

included a four-year prison term for his aggravated-robbery conviction and 15-

month prison terms for each of his fourth-degree-felony assault convictions, with

the sentences to run consecutively to each other, for an aggregate 78-month prison

term. (Doc. No. 73). The trial court further originally ordered that an 8-year

prison term be reserved as to his felonious-assault conviction and that a 7-year

prison term be reserved as to his aggravated-burglary conviction, with the

sentences to be served consecutively, for an aggregate 15-year prison term to be

served if Carnahan violated his community-control sanctions. (Id.).

{¶15} When the same trial judge resentenced Carnahan after he

successfully appealed his original sentence, Carnahan was ordered to serve five-

year prison terms for his aggravated-robbery conviction and his felonious-assault

conviction, with the sentences to run concurrently to each other, for an aggregate

five-year prison term. (Doc. No. 105). The trial court further resentenced

Carnahan to a reserved 9-year prison term for his aggravated-burglary conviction

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and reserved 17-month prison terms for each of his fourth-degree-felony assault

convictions, with the sentences to run consecutively to each other, for an aggregate

11-year, 10-month prison term. (Id.).

{¶16} Carnahan’s original aggregate sentence was reduced from 6 years

and 6 months to 5 years, and Carnahan’s original aggregate reserved sentence was

reduced from 15 years to 11 years, 10 months. Accordingly, because Carnahan’s

aggregate prison sentence and his reserve aggregate prison sentence were reduced

at his resentencing hearing, there is no presumption of vindictiveness. Therefore,

Carnahan’s sentence is authorized by law. See Troglin,

;

Nelloms,

. Compare

(concluding that a

presumption of vindictiveness arose because Troglin’s aggregate sentence was

increased from 11 to 15 years).

{¶17} Second, Carnahan agreed to his sentence as part of a negotiated plea

agreement. Compare Schneider,

(concluding that

Schneider’s enhanced sentence was authorized by law because it was part of a

negotiated plea agreement). Third, the trial court granted Carnahan’s motion for

judicial release, and released Carnahan on community control.

{¶18} For these reasons, Carnahan’s first assignment of error is overruled.

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Assignment of Error No. II

The Appellant’s Guilty Plea Was Not Made Knowingly, Intelligently and Voluntarily Due to the Trial Court’s Lack of a Colloquy Regarding the Allied Offenses.

{¶19} In his second assignment of error, Carnahan argues that his

aggravated-robbery and felonious-assault convictions are allied offenses of similar

import and should have been merged. He further argues in this assignment of

error that his pleas were not made knowingly, intelligently, and voluntarily

because the trial court did not inform him of Ohio’s allied-offense statute. In

support of his argument, Carnahan argues that his pleas were not knowing,

intelligent, and voluntary because he “was found incompetent to stand trial for

nearly two years while this action was pending” and because the resentencing

transcript demonstrates that he was confused.2

{¶20} To the extent that Carnahan argues that his pleas were not made

knowingly, intelligently, and voluntarily, we reject those arguments as res

judicata. Moreover, Carnahan’s argument that his pleas were not made

2 Despite Carnahan’s argument, he was not found to be incompetent to stand trial. (Doc. Nos. 14, 16, 21, 32, 35, 39, 53, 67). Even if Carnahan was found to be incompetent to stand trial, a prior finding of incompetence does not negate a defendant’s competence to stand trial once his competence is found to be restored. See State v. McGrath, 8th Dist. Cuyahoga No. 91261,

(discussing the procedure to determine whether a defendant’s competence to stand trial has been restored prior to permitting that defendant to enter a change of plea). Indeed, Carnahan conceded his competency to stand trial. (Doc. No. 53). (See also Doc. No. 67). Because the competency to stand trial and the competency to enter a plea are the same, we presume that Carnahan is arguing that he was incompetent to stand trial at his change-of-plea hearing. See id. at ¶ 20, citing Godinez v. Moran,

,

(1993). Carnahan did not raise his competency to stand trial at his change-of-plea hearing. See State v. Bellato, 7th Dist. Mahoning No. 00 CA 141,

, ¶ 20; State v. Rittner, 6th Dist. Fulton No. F-02-034,

, ¶ 24; R.C. 2945.37(B).

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knowingly, intelligently, and voluntarily because the trial court did not inform him

of Ohio’s allied-offense statute is not only barred by the doctrine of res judicata, it

is also erroneous.

“Under the doctrine of res judicata, a final judgment of conviction

bars the convicted defendant from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any

claimed lack of due process that was raised or could have been

raised by the defendant at the trial which resulted in that judgment of

conviction or on an appeal from that judgment.”

State v. Nava, 3d Dist. Wyandot No. 16-15-07,

, quoting

State v. Dodson, 12th Dist. Butler No. CA2011-02-034,

, ¶ 9.

{¶21} “All guilty pleas must be made knowingly, voluntarily, and

intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-

Ohio-926, ¶ 9, citing State v. Engle,

(1996). “‘Crim.R.

11(C) is intended to ensure that guilty pleas are entered knowingly, intelligently,

and voluntarily.’”

quoting State v. Cortez, 3d Dist. Hancock Nos. 5-07-06 and

5-07-07,

, citing State v. Windle, 4th Dist. Hocking No.

03CA16,

. “Crim.R. 11(C) requires the trial judge, before

accepting a guilty plea in a felony case, to inform the defendant of several rights

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enumerated under the rule, making sure the defendant understands the nature of

those rights.”

citing State v. Stewart,

(1977).

{¶22} Carnahan had the opportunity to raise the issue that his pleas were

not made knowingly, intelligently, and voluntarily in his direct appeal, which he

failed to do. See Carnahan,

, ¶ 11. Furthermore, Carnahan did

not raise those issues to the trial court. Indeed, Carnahan withdrew his motion to

withdraw his pleas. (Doc. No. 105); (July 7, 2015 Tr. at 4-6, 22, 32-38).

Accordingly, Carnahan’s argument that his pleas were not knowing, intelligent,

and voluntary is barred by the doctrine of res judicata. See State v. Davis,

,

. See also State v. State v. Harris, 5th Dist.

Coshocton No. 2013CA0013,

(concluding that Harris’s

competency-to-stand-trial argument is barred by res judicata because he failed to

raise it in a direct appeal); State v. Rayl, 9th Dist. Summit No. 22496, 2005-Ohio-

4263, ¶ 9 (concluding that Rayl’s argument that her pleas were not knowing,

intelligent, and voluntary is barred by res judicata because she failed to raise it in a

direct appeal).

{¶23} Furthermore, Carnahan’s argument that his pleas were not knowing,

intelligent, and voluntary because the trial court did not inform him of Ohio’s

allied-offense statute is meritless because there is “no obligation under Crim.R.

11(C)(2) for the trial court to determine, at a plea hearing, whether the offenses at

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issue are allied offenses of similar import and to notify the defendant of the

cumulative maximum penalty after merger.” State v. Jefferson, 2d Dist.

Montgomery No. 26022,

. That is, “the merger of allied

offenses of similar import occurs at sentencing.”

See also State v. May, 11th

Dist. Lake No. 2010-L-131,

, ¶ 78. Therefore, we turn to

Carnahan’s argument that the trial court erred by failing to merge his aggravated-

robbery and felonious-assault convictions prior to sentencing him.

{¶24} “‘It is well established that there may only be one conviction for

allied offenses of similar import, and thus, allied offenses must be merged at

sentencing.’” Moll,

, at ¶ 12, quoting State v. Donaldson, 2d Dist.

Montgomery No. 24911,

, citing Underwood,

,

. “A trial court is prohibited from imposing individual

sentences for counts that constitute allied offenses, and a defendant’s plea of

guilty, or no contest, to multiple counts does not affect the court’s duty to merge

those counts at sentencing.”

citing Donaldson at ¶ 23, citing

. “Even if a sentence is jointly recommended by the parties and imposed by the

court, an appellate court is not precluded from reviewing it if a sentence is

imposed on multiple counts that are allied offenses, because such a sentence is

unauthorized by law.”

quoting Donaldson at ¶ 23. See also

; R.C. 2953.08(D)(1).

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{¶25} On appeal, “a reviewing court must find something in the record that

affirmatively establishes that the offenses are not allied” for a defendant’s

sentence to be authorized by law. Id. at ¶ 13, citing State v. Biondo, 11th Dist.

Portage No. 2012-P-0043,

. “‘This could be done a number

of ways, including stipulations that the offenses were committed with a separate

animus, as in Donaldson * * *; or by establishing the offenses occurred on

different dates or by separate and distinct conduct; or that the commission of one

offense clearly could not result in the commission of the other.’”

quoting

Biondo at ¶ 10, citing Donaldson at ¶ 25.

{¶26} Carnahan’s sentence is authorized by law because the parties

stipulated that Carnahan’s aggravated-robbery and felonious-assault convictions

are not allied offenses. See id. at ¶ 16; Donaldson at ¶ 25. Similar to the argument

presented in Moll, Carnahan relies on State v. Rogers. 8th Dist. Cuyahoga Nos.

98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590,

.3

See

. As we noted in Moll, the Eighth District Court of Appeals

3 In his brief, Carnahan specifically relies on State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590,

. (See Appellant’s Brief at 8-9). Carnahan states, “The [Eighth District Court of Appeals] certified a conflict to the Ohio Supreme Court in that case but Ohio’s highest court denied that appeal leaving the Rogers case the current law regarding guilty pleas of allied offenses.” (Underline sic.) (Appellant’s Brief at 9). This statement is not accurate. The Supreme Court of Ohio certified conflicts and reversed in part and affirmed in part Rogers, 2013-Ohio- 3235. State v. Rogers,

,

. In Rogers,

, the Eighth District granted en banc consideration after concluding that a conflict existed between the original decision in the case and previous decisions of the court. Rogers,

. See also State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590,

. The Supreme Court of Ohio did not accept the direct appeal in Rogers,

. State v. Rogers,

,

.

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concluded in Rogers that “‘[w]here a facial question of allied offenses of similar

import presents itself, a trial court judge has a duty to inquire and determine under

R.C. 2941.25 whether those offenses should merge.’” Id. at ¶ 11, quoting Rogers

at ¶ 63. As was the case in Moll, Rogers is inapplicable because, like the

defendant in Moll, Carnahan stipulated that the offenses are not allied offenses and

that he committed each with separate animus. (July 7, 2015 Tr. at 7); (Doc. No.

105). Compare

.

{¶27} As in Moll, because Carnahan stipulated that his aggravated-robbery

and felonious-assault convictions are not allied offenses, the trial court was under

no obligation to determine whether the offenses were allied under to R.C. 2941.25.

, citing State v. Torres, 8th Dist. Cuyahoga No. 100106, 2014-Ohio-

1622, ¶ 11 (“Because the parties stipulated that the offenses were not allied

offenses, the trial court was not obligated under R.C. 2941.25 to determine

whether the offenses charged * * * were allied offenses.”). Indeed, at Carnahan’s

resentencing hearing, the State advised the trial court that the parties agreed under

the negotiated plea agreement that Carnahan’s convictions are separate offenses.

(July 7, 2015 Tr. at 7). (See also Doc. No. 105).

{¶28} Therefore, Carnahan’s second assignment of error is overruled.

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{¶29} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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