[Cite as State v. Starr,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 16-COA-019 MARK M. STARR : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case No. 15-CRI- 027

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 9, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

EMILY BATES RUTH FISCHBEIN-COHEN CHRISTOPHER TUNNELL 3552 Severn Road #613 110 Cottage Street Cleveland, OH 44118 Third Floor Ashland, OH 44805 Ashland County, Case No. 16-COA-019 2

Gwin, P.J.

{¶1} Appellant Mark Starr [“Starr”] appeals his conviction and sentence after a

negotiated guilty plea in the Ashland County Court of Common Pleas.

Facts and Procedural History

{¶2} Starr sold heroin to an undercover police officer. Seated in the back seat

of Starr’s car was his infant child. Starr was indicted on one count of trafficking in heroin

in the vicinity of a juvenile [F3]; one count of possession of marihuana [MM]; one count of

endangering children [M1] and one count of possession of criminal tools [F5].

{¶3} In exchange for his plea of guilty to the trafficking count and the child

endangerment count the state dismissed the marihuana count and the criminal tools

count.

{¶4} On May 2, 2016, the trial court sentenced Starr to 18 months in prison on

the trafficking count; 120 days in jail on the child endangerment count, concurrent. The

sentences were ordered to be served consecutively to a sentence Starr was serving out

of the Richland County Court of Common Pleas.

Assignments of Error

{¶5} Starr raises three assignments of error,

{¶6} “I. THE COURT ERRED IN SENTENCING MARK STARR SEPARATELY

FOR TRAFFICKING IN HEROIN AND SEPARATELY FOR CHILD ENDANGERING.

{¶7} “II. MARK STARR'S DUE PROCESS WAS VIOLATED WHEN HE MADE

HIS PLEA OF GUILTY NOT KNOWINGLY AND NOT INTELLIGENTLY.

{¶8} “III. THE COURT ERRED IN SENTENCING MARK STARR ABSENT

MAKING STATUTORY FINDINGS.” Ashland County, Case No. 16-COA-019 3

I.

{¶9} Starr argues that his right to be free from double jeopardy was violated when

the trial court sentenced him separately for the offense of trafficking in the vicinity of a

juvenile and child endangerment. Specifically, Starr contends that because the trafficking

charge was elevated from a fourth degree felony to a third degree felony due to the

presence of his child in the car, he has already been punished for the child’s presence

and he cannot be punished a second time via the child endangerment charge. Starr

contends the charges are allied offenses and should have merged for sentencing.

{¶10} In this case, Starr failed to object to his sentences in the trial court. In State

v. Rogers, the Ohio Supreme Court recently examined a case where the defendant was

convicted of multiple offenses pursuant to a guilty plea. State v. Rogers,

, 2015–Ohio–2459,

. The defendant appealed and argued for the first

time on appeal that some of the convictions should have merged for sentencing. Id. at ¶

11. The matter was certified as a conflict and presented to the Ohio Supreme Court. In

making its decision, the Court clarified the difference between waiver and forfeiture as it

pertains to allied offenses. Id. at ¶ 19–21. The Court rejected the argument that by

entering a guilty plea to offenses that could be construed to be two or more allied offenses

of similar import, the accused waives the protection against multiple punishments under

R.C. 2941.25. Id. at ¶ 19. The Court held that an accused’s failure to seek the merger

of his or her convictions as allied offenses of similar import in the trial court, the accused

forfeits his or her allied offenses claim for appellate review. Id. at ¶ 21. “[F]orfeiture is

the failure to timely assert a right or object to an error, and * * * ‘it is a well-established

rule that “an appellate court will not consider any error which counsel for a party Ashland County, Case No. 16-COA-019 4

complaining of the trial court’s judgment could have called but did not call to the trial

court’s attention at a time when such error could have been avoided or corrected by the

trial court.” Rodgers at ¶ 21.

{¶11} The accused may raise a forfeited claim on appeal through Crim.R. 52(B).

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” The Court held in

Rogers:

An accused’s failure to raise the issue of allied offenses of similar

import in the trial court forfeits all but plain error, and a forfeited error is not

reversible error unless it affected the outcome of the proceeding and

reversal is necessary to correct a manifest miscarriage of justice.

Accordingly, an accused has the burden to demonstrate a reasonable

probability that the convictions are for allied offenses of similar import

committed with the same conduct and without a separate animus; absent

that showing, the accused cannot demonstrate that the trial court’s failure

to inquire whether the convictions merge for purposes of sentencing was

plain error.

, 2015–Ohio–2459, ¶ 3; Accord, State v. Williams, Oh.Sup.Ct.

No. 2015-1478,

,

(Nov. 10, 2016), ¶25.

{¶12} The Court in Rogers reaffirmed that even if an accused shows the trial court

committed plain error affecting the outcome of the proceeding, the appellate court is not

required to correct it. Id. at ¶ 23. The Supreme Court stated: Ashland County, Case No. 16-COA-019 5

[W]e have “admonish[ed] courts to notice plain error ‘with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’” (Emphasis added.)

,

, quoting State v. Long,

,

(1978), paragraph three of the syllabus.

.

{¶13} R.C. 2941.25, Multiple counts states:

(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.

{¶14} In State v. Ruff,

, 2015–Ohio–995,

, the

Ohio Supreme Court revised its allied-offense jurisprudence,

1. In determining whether offenses are allied offenses of similar

import within the meaning of R.C. 2941.25, courts must evaluate three

separate factors-the conduct, the animus, and the import.

2. Two or more offenses of dissimilar import exist within the meaning

of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses Ashland County, Case No. 16-COA-019 6

involving separate victims or if the harm that results from each offense is

separate and identifiable.

Ruff, at syllabus. The Court further explained,

A trial court and the reviewing court on appeal when considering

whether there are allied offenses that merge into a single conviction under

R.C. 2941.25(A) must first take into account the conduct of the defendant.

In other words, how were the offenses committed? If any of the following is

true, the offenses cannot merge and the defendant may be convicted and

sentenced for multiple offenses: (1) the offenses are dissimilar in import or

significance—in other words, each offense caused separate, identifiable

harm, (2) the offenses were committed separately, and (3) the offenses

were committed with separate animus or motivation.

***

An affirmative answer to any of the above will permit separate

convictions. The conduct, the animus, and the import must all be

considered.

R.C. 2925.03 (A) provides:

{¶15} (A) No person shall knowingly do any of the following:

(1) Sell or offer to sell a controlled substance or a controlled

substance analog;

***

(C) Whoever violates division (A) of this section is guilty of one of the

following: Ashland County, Case No. 16-COA-019 7

(1) If the drug involved in the violation is any compound, mixture,

preparation, or substance included in schedule I or schedule II, with the

exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled

substance analogs, whoever violates division (A) of this section is guilty of

aggravated trafficking in drugs. The penalty for the offense shall be

determined as follows:

***

b) Except as otherwise provided in division (C)(1)(c), (d), (e), or (f) of

this section, if the offense was committed in the vicinity of a school or in the

vicinity of a juvenile, aggravated trafficking in drugs is a felony of the third

degree, and division (C) of section 2929.13 of the Revised Code applies in

determining whether to impose a prison term on the offender.

{¶16} R.C. 2919.22 Endangering Children provides,

(A) No person, who is the parent, guardian, custodian, person having

custody or control, or person in loco parentis of a child under eighteen years

of age or a mentally or physically handicapped child under twenty-one years

of age, shall create a substantial risk to the health or safety of the child, by

violating a duty of care, protection, or support. It is not a violation of a duty

of care, protection, or support under this division when the parent, guardian,

custodian, or person having custody or control of a child treats the physical

or mental illness or defect of the child by spiritual means through prayer

alone, in accordance with the tenets of a recognized religious body. Ashland County, Case No. 16-COA-019 8

{¶17} Relative to the case at bar, endangering children requires that Starr be the

parent of the child and that he, as a parent, create a substantial risk to the health or safety

of the child, by violating a duty of care, protection, or support. Trafficking in heroin does

not require the offender be the parent, guardian or custodian of the child. For example,

if the offender sells heroin on the street corner and a child who is a stranger to the offender

is standing on the opposite street corner, the offender can be convicted of trafficking in

the vicinity of a juvenile; however the offender cannot be convicted of child endangering.

{¶18} In this case, Starr violated a duty of care, protection, or support by placing

the child in the car with the intent to sell heroin. Starr created a substantial risk to the

health or safety of the child by placing the child into the car and driving to a location to

make a drug deal.

{¶19} Pursuant to Rodgers, it is Starr’s burden to demonstrate a reasonable

probability that his convictions were for allied offenses of similar import committed with

the same conduct and without a separate animus. Because the elements of child

endangerment and trafficking in heroin in the vicinity of a juvenile in this case demonstrate

different elements, we find that Starr has failed to demonstrate any probability that he was

convicted of allied offenses of similar import committed with the same conduct and the

same animus. Thus, Starr’s double jeopardy rights were not violated by the trial court’s

sentence.

{¶20} Starr’s first assignment of error is overruled. Ashland County, Case No. 16-COA-019 9

II.

{¶21} In his second assignment of error, Starr argues that his plea was not

knowing, intelligent and voluntary. Specifically, Starr contends that the trial court did not

insure the he “knew and understood” his rights.

{¶22} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard,

,

(1981), citing State v. Stewart,

,

(1977). In State v.

Griggs,

,

,

, ¶ 12, the Ohio Supreme

Court noted the following test for determining substantial compliance with Crim.R. 11:

Though failure to adequately inform a defendant of his constitutional

rights would invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly, failure to comply with non-constitutional

rights will not invalidate a plea unless the defendant thereby suffered

prejudice.[State v. Nero (1990),

,] 108,

.

The test for prejudice is ‘whether the plea would have otherwise been

made.’

Under the substantial-compliance standard, we review the

totality of circumstances surrounding [the defendant’s] plea and determine

whether he subjectively understood [the effect of his plea]. See, State v.

Sarkozy,

,

at ¶ 19-20.

{¶23} It is also well established that a defendant need not have a complete or

technical understanding of each constitutional rights, such as the jury trial right, in order Ashland County, Case No. 16-COA-019 10

to knowingly and intelligently waive it. State v. Bays,

,

(1999). In State v. Jells, the Ohio Supreme Court held:

There is no requirement in Ohio for the trial court to interrogate a

defendant in order to determine whether he or she is fully apprised of the

right to a jury trial. The Criminal Rules and the Revised Code are satisfied

by a written waiver, signed by the defendant, filed with the court, and made

in open court, after arraignment and opportunity to consult with counsel.

, 25–26,

(1990). This test applies to other constitutional

rights as well. See, State v. Truitt, 10th Dist. Franklin No. 10AP-795,

(jury trial and right to remain silent); State v. Ballard, 6th Dist. Lucas No. L-04-1070, L-05-

1027,

(right to compel attendance of witnesses).

{¶24} Further, evidence of a written waiver form signed by the accused is strong

proof that the waiver was valid. State v. Clark,

,

(1988); see North Carolina v. Butler,

,

, 1758-

1759,

(1979); State v. Dennis,

, 1997-Ohio-

372,

(1997).

{¶25} In the case at bar, Starr was represented by counsel. A written plea of guilty

form signed by Starr, defense counsel, the prosecutor and the trial judge was filed on

December 30, 2015. A written waiver of constitutional rights is presumed to have been

voluntary, knowing, and intelligent. State v. Turner,

,

,

, ¶25. Further, the trial court conducted a lengthy inquiry concerning each

of Starr’s constitutional rights during the change of plea hearing on December 30, 2015.

{¶26} We reviewed the transcript of the hearing at which the trial court conducted Ashland County, Case No. 16-COA-019 11

the plea colloquy required by Crim.R. 11 and determined that the court substantially

complied with Crim.R. 11(C)(2)(a) and (b) and strictly complied with Crim.R. 11(C)(2)(c).

{¶27} We further note in the case at bar that, Starr through counsel, filed a motion

to withdraw his guilty plea with the trial court before sentencing on February 19, 2016.

The reasons asserted in the motion were that Starr wanted to proceed with a jury trial on

the charges and he desired to preserve a speedy trial argument for appeal. The court

scheduled a hearing on the motion for May 1, 2016 by Judgment Entry filed April 4, 2016.

On April 20, 2016, Starr through counsel filed a written motion to withdraw his motion. By

Judgment Entry filed April 29, 2016, the trial court granted Starr’s motion to withdraw his

previously filed motion to withdraw his guilty plea. Clearly, Starr had an understanding of

his constitutional rights.

{¶28} Starr’s second assignment of error is overruled.

III.

{¶29} In his third assignment of error, Starr argues the trial court failed to set forth

the R.C. 2929.12 sentencing factors that it considered when sentencing Starr in the case

at bar.

{¶30} The two-step approach set forth in State v. Kalish,

, 2008-

Ohio-4912,

no longer applies to appellate review of felony sentences.

We now review felony sentences using the standard of review set forth in R.C. 2953.08.

State v. Marcum, __Ohio St.3d__, 2016–Ohio–1002, __N.E.3d ___, ¶22; State v. Howell,

5th Dist. Stark No. 2015CA00004,

. R.C. 2953.08(G)(2) provides

we may either increase, reduce, modify, or vacate a sentence and remand for

resentencing where we clearly and convincingly find that either the record does not Ashland County, Case No. 16-COA-019 12

support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or

(C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v.

Bonnell,

, 2014–Ohio–3177,

, ¶28.

{¶31} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb,

(1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

.

{¶32} In State v. Kalish,

,

,

, the

court discussed the effect of the State v. Foster,

,

,

decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding 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.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne,

,

,

; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41,

.

{¶33} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C. Ashland County, Case No. 16-COA-019 13

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis,

,

,

; State v.

.

{¶34} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025,

; State v. Delong,

4th Dist. No. 05CA815,

. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

{¶35} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick,

(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252,

(nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its

findings), citing State v. Cyrus,

,

(1992); State v.

Hughes, 6th Dist. No. WD-05-024,

, ¶10 (trial court was not required to

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46,

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

{¶36} Prior to sentencing, the trial court stated that it had considered the purposes

and principles of sentencing [R.C. 2929.11] as well as the factors that the court must

consider when determining an appropriate sentence. [R.C. 2929.12]. The trial court has Ashland County, Case No. 16-COA-019 14

no obligation to state reasons to support its findings. Nor is it required to give a talismanic

incantation of the words of the statute, provided that the necessary findings can be found

in the record and are incorporated into the sentencing entry. The record contains the

statements of counsel, Starr’s allocution and the pre-sentence investigation report.

{¶37} Starr was sentenced for a felony of the third degree. The sentencing range

for a third degree felony is nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.

R.C. 2929.14(A)(3)(b). Starr was given a sentence of eighteen months, which is within

the statutory range.

{¶38} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and recidivism

factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and

advised Starr regarding post release control.

{¶39} We find the trial court properly considered the purposes and principles of

sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.

2929.12, along with all other relevant factors and circumstances. While Starr may

disagree with the weight given to these factors by the trial judge, Starr’s sentence was

within the applicable statutory range for a felony of the third degree and therefore, we

have no basis for concluding that it is contrary to law.

{¶40} Smith’s third assignment of error is overruled. Ashland County, Case No. 16-COA-019 15

{¶41} The judgment of the Ashland County Court of Common Pleas, Ashland

County, Ohio is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur