[Cite as State v. Pigge, 2010-Ohio-6541.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 09CA3136
:
vs. : Released: December 21, 2010
:
CASEY L. PIGGE, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Peter Galyardt, Columbus, Ohio, for Appellant.
Michael M. Ater, Ross County Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________
McFarland, P.J.:
{¶1} Defendant-Appellant, Casey Pigge, appeals the Ross County
Court of Common Pleas’ judgment that found him guilty of the following
criminal offenses: (1) two counts of aggravated murder, in violation of R.C.
2903.01(A); (2) aggravated robbery, in violation of R.C. 2911.01(A)(1); (3)
aggravated burglary, in violation of R.C. 2911.11; (5) aggravated arson, in
violation of R.C. 2909.02; (6) burglary, in violation of R.C. 2911.12(A)(2);
and (7) tampering with evidence, in violation of R.C. 2921.12. He asserts
that the trial court improperly accepted his guilty plea because he did not
Ross App. No. 09CA3136 2
knowingly, intelligently, and voluntarily decide to plead guilty. Specifically,
appellant contends that the trial court failed to adequately explain his
constitutional right to compulsory process so that he could make a knowing,
intelligent, and voluntary decision to plead guilty. The plea hearing
transcript plainly shows that the trial court strictly complied with Crim.R.
11(C)(2)(c) both by using the literal terms of the rule and by explaining
appellant’s right to compulsory process in a reasonably intelligible manner.
Therefore, we disagree with appellant that the trial court did not adequately
explain his compulsory process right. Accordingly, the trial court did not
erroneously determine that appellant entered a knowing, voluntary, and
intelligent plea.
{¶2} Appellant additionally argues that the trial court wrongly
sentenced him for both aggravated arson and tampering with evidence. He
contends that the two offenses constitute allied offenses of similar import
and, thus, that he may be sentenced for only one of those offenses. Because
the two offenses do not correspond to such a degree that the commission of
one necessarily results in the commission of the other, the two offenses are
not allied offenses of similar import. Consequently, the trial court did not
improperly sentence appellant for these two offenses.
Ross App. No. 09CA3136 3
{¶3} Accordingly, we overrule appellant’s two assignments of error
and affirm the trial court’s judgment.
I.
FACTS
{¶4} On September 5, 2008, appellant violently murdered Rhonda
Summer. As the prosecutor recited: “[Appellant] pulled out a knife and at
least five times he ripped it across [Summer’s] throat. It caused at least eight
inch lacerations, severed her carotid artery and jugular veins. He then sat on
the couch and watched her die. He went upstairs to wash the blood off of
himself. He went downstairs to stole [sic] some of her money then set the
house on fire.”1
{¶5} On September 12, 2008, the Ross County Grand Jury returned an
indictment that charged appellant with: (1) two counts of aggravated
murder, in violation of R.C. 2903.01(A), with death penalty specifications;
(2) aggravated robbery, in violation of R.C. 2911.01(A)(1); (3) aggravated
burglary, in violation of R.C. 2911.11; (4) aggravated arson, in violation of
R.C. 2909.02; (5) burglary, in violation of R.C. 2911.12(A)(2); (6)
tampering with evidence, in violation of R.C. 2921.12; and (7) gross abuse
of a corpse, in violation of R.C. 2927.01.
Ross App. No. 09CA3136 4
{¶6} On August 25, 2009, at a pre-trial hearing, the state requested the
court to dismiss the death penalty specifications due to the state’s expert’s
opinion that appellant suffers from mental retardation. Apparently, the
dismissal of the death penalty specifications prompted appellant to decide to
engage in plea negotiations with the state, which ultimately resulted in his
decision to plead guilty.
{¶7} On October 27, 2009, the court held a change of plea hearing and
engaged in a Crim.R. 11(C) colloquy with appellant. One of the first
questions the court asked appellant was whether he has “any sort of mental
or physical disability.” Appellant responded that he did not. Appellant
stated that he understood why he was present at the hearing, and the court
then explained the rights appellant would waive by pleading guilty:
“ * * * You have the right to a speedy and public trial by
trial [sic] or if you choose, by a judge[;] by pleading guilty you
are giving up that right. Do you understand that?
[Appellant]: Yes your honor.
The Court: [Appellant], all twelve jurors, if it is a jury
trial, or the judge if it is a trial to court, must be convinced that
the state has proved each and every element of the charges
against you beyond a reasonable doubt before you can be
convicted of those charges. By pleading guilty you are giving
up that right. Do you understand that?
[Appellant]: Yes your honor.
The Court: * * * You have the right not to be forced to
testify at trial in these cases. That means that you can not [sic]
1
Because this appeal originates from a guilty plea, the record contains little explanation of the facts
constituting the crimes. We have used the state’s recitation of the crime as stated in the sentencing hearing
transcript.
Ross App. No. 09CA3136 5
be called to the witness stand if you do not wish to go; your
decision not to testify can not [sic] be used against you[;] in fact
if it’s a jury trial and you ask me to I have to instruct the jury
the can not [sic] consider your decision not to testify for any
purpose. By pleading guilty you are giving up that right. Do
you understand that?
[Appellant]: Yes your honor.
The Court: You also have the right to confront any
witnesses the state of Ohio might have against you at trial. That
means you have the right to be here in court when those
witnesses testify; you have the right for your attorneys to ask
questions of those witnesses on cross-examination. By
pleading guilty you are giving up that right. Do you understand
that?
[Appellant]: Yes your honor.
The Court: You also have the right to a compulsory
process. That means you have the right to have subpoena’s
[sic] issued for any witness that you want to appear on your
behalf in court. B[y] pleading guilty you are giving up that
right. Do you understand that?
[Appellant]: Yes your honor.
* * * *.”
{¶8} The court asked appellant if he reviewed the guilty plea petition
with his attorneys. He stated that he had and indicated that he understood it.
Appellant further stated that he had signed the plea form. With respect to
appellant’s right to compulsory process, the form advised appellant that he
has “the right to use the power and process of the Court to compel the
production of any evidence, including the attendance of any witnesses in my
favor.”
{¶9} The court asked: “Do you have any questions about anything we
have just been over in these matters that I can answer for you? Please don’t
Ross App. No. 09CA3136 6
hesitate to ask if you have a question.” Appellant stated that he did not have
any questions. The court further asked the prosecutor and appellant’s
attorneys whether they had “anything with regards to the plea[].” Both
stated that they did not. The court then determined “that [appellant]
understands all of his rights as set forth in [Crim.R. 11(C)], he has been
advised of his constitutional rights, stated in open court[,] that he understood
and waived those rights. The court finds that [appellant’s] guilty pleas in
both these cases were made knowingly, voluntarily, intelligently and [of
appellant]’s own free will.”
{¶10} On November 16, 2009, the court sentenced appellant. The
court observed that: (1) the two counts of aggravated murder merged and
that the state elected to proceed to sentencing on the first count; and (2)
counts four (aggravated burglary) and six (burglary) merged with count
three (aggravated robbery). The court then sentenced appellant to: (1) life
with parole eligibility after thirty years for the aggravated murder offense;
(2) six years for the aggravated robbery offense; (3) six years for the
aggravated arson offense; and (4) two years for the tampering with evidence
offense. The court ordered that appellant serve the aggravated murder and
aggravated robbery sentences consecutively and that he serve the aggravated
Ross App. No. 09CA3136 7
arson and tampering with evidence offenses concurrently with the
aggravated robbery and aggravated murder offenses.
II.
ASSIGNMENTS OF ERROR
{¶11} Appellant timely appealed the trial court’s judgment and raises
two assignments of error.
First Assignment of Error:
Mr. Pigge was deprived of his right to due process under the
Fourteenth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution when the trial
court accepted an unknowing, unintelligent, and involuntary
guilty plea.
Second Assignment of Error
The trial court erred when it convicted Mr. Pigge of both
aggravated arson under R.C. 2909.02(A)(2), and tampering
with evidence under R.C. 2921.12(A)(1), as those offenses are
allied offenses of similar import, and the record is silent as to
whether the offenses were committed with a separate animus.
III.
GUILTY PLEA
{¶12} In his first assignment of error, appellant argues that the trial
court erred by accepting his guilty plea when he did not knowingly,
intelligently, and voluntarily enter it. In particular, appellant contends that
Ross App. No. 09CA3136 8
he did not knowingly, intelligently, and voluntarily enter his guilty plea
because the trial court did not adequately explain his right to compulsory
process in a manner that was reasonably intelligible to appellant, a mentally
retarded individual. Appellant essentially argues that because he is mentally
retarded, the trial court possessed a heightened duty to define his right to
compulsory process in terms that a mentally retarded individual could
understand. Appellant contends that his plea is invalid because the “court
failed to adequately advise him that he had the right to compulsory process,
which meant that the trial court would use its power to compel any defense
witnesses to appear and testify in court, and that [appellant] did not have to
secure his own witnesses.” Appellant asserts that “the trial court should
have further explained that [appellant]’s witnesses would not be permitted to
ignore the subpoena, as the power to subpoena them would be coming from
the court, and that [appellant] did not have to secure such witnesses on his
own.” Appellant contends that he “could not have understood the nuanced
legal meanings of ‘compulsory process’ and ‘subpoenas’” and that the court
should have informed him that it “would use its power to secure
[appellant]’s witnesses, and if necessary, force them to testify on his behalf.”
{¶13} The ultimate inquiry when reviewing a trial court’s acceptance
of a guilty plea is whether the defendant entered the plea in a knowing,
Ross App. No. 09CA3136 9
intelligent, and voluntary manner. See State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, at ¶7, citing State v. Engle (1996), 74
Ohio St.3d 525, 527, 660 N.E.2d 450. A defendant enters a plea in a
knowing, intelligent, and voluntary manner when the trial court fully advises
the defendant of all the constitutional and procedural protections set forth in
Crim.R. 11(C) that a guilty plea waives. See State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶25, citing Engle, 74 Ohio St.3d at
527; State v. Eckler, Adams App. No. 09CA878, 2009-Ohio-7064, at ¶48.
Thus, when a court reviews a trial court’s acceptance of a guilty plea, it must
independently review the record to ensure that the trial court followed the
dictates of Crim.R. 11(C). See State v. Kelley (1991), 57 Ohio St.3d 127,
128, 566 N.E.2d 658 (“When a trial court or appellate court is reviewing a
plea submitted by a defendant, its focus should be on whether the dictates of
Crim.R. 11(C) have been followed.”); Eckler at ¶48 (noting that standard of
review is de novo); State v. Hamilton, Hocking App. No. 05CA4, 2005-
Ohio-5450, at ¶9; see, also, State v. Gilmore, Cuyahoga App. Nos. 92106,
92107, 92108, and 92109, 2009-Ohio-4230, at ¶12.
{¶14} Crim.R. 11(C)(2) (a)-(c) sets forth the process a trial court must
follow before accepting a guilty plea. The rule prohibits a trial court from
accepting a guilty plea unless the court personally addresses the defendant
Ross App. No. 09CA3136 10
and (1) determines “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:” (2) informs “the defendant of and determin[es] that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence”; and
(3) informs “the defendant and determin[es] 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.”
{¶15} When a trial court engages in a plea colloquy with the
defendant, it must strictly comply with Crim.R. 11(C)(2)(c), which sets forth
the constitutional rights a guilty plea waives. Thus, the trial court must
explain to the defendant, either literally or in a reasonably intelligible
manner, that a guilty plea waives (1) the right to a jury trial, (2) the right to
confront one’s accusers, (3) the right to compulsory process to obtain
witnesses, (4) the right to require the state to prove guilt beyond a reasonable
Ross App. No. 09CA3136 11
doubt, and (5) the privilege against compulsory self-incrimination. Veney at
syllabus and ¶¶18, 27 (stating that trial court must literally comply with
Crim.R. 11(C)(2)(c), but its failure to do so will not invalidate a plea when
the trial court adequately conveys the information to the defendant in a
reasonably intelligible manner). Failure to do so renders the plea invalid.
Id. at syllabus.
{¶16} “The best way to ensure that pleas are entered knowingly and
voluntarily is to simply follow the requirements of Crim.R. 11 when
deciding whether to accept a plea * * *.” Clark at ¶29; see, also, State v.
Ballard (1981), 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (stating that “the
best method of informing a defendant of his constitutional rights is to use the
language contained in Crim.R. 11(C), stopping after each right and asking
the defendant whether he understands the right and knows that he is waiving
it by pleading guilty”). Thus, “’[l]iteral compliance with Crim.R. 11, in all
respects, remains preferable to inexact plea hearing recitations.’” Clark at
¶29, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814
N.E.2d 51, at ¶19, fn.2. However, “a rote recitation of Crim.R. 11(C) is not
required, and failure to use the exact language of the rule is not fatal to the
plea.” Ballard, 66 Ohio St.2d at 480. Instead, the trial court need only
“explain[] or refer[]” to the Crim.R. 11(C) protections “in a manner
Ross App. No. 09CA3136 12
reasonably intelligible to that defendant.” Id.; see, also, Veney at ¶27
(stating that “a trial court can still convey the requisite information on
constitutional rights to the defendant even when the court does not provide a
word-for-word recitation of the criminal rule, so long as the trial court
actually explains the rights to the defendant”). Thus, a reviewing court
should not invalidate a plea merely because a trial court did not engage in a
“formalistic litany of constitutional rights.” Ballard, 66 Ohio St.2d at 480.
{¶17} A trial court “may not relieve itself of the requirement of
Crim.R. 11(C) by exacting comments or answers by defense counsel as to
the defendant’s knowledge of his rights.” Id. at 481. However, a reviewing
court may consider “such a colloquy * * * in the totality of the matter.” 2 Id.
Thus, if the record shows that the trial court ascertained that defense counsel
advised the defendant of his rights, a reviewing court may consider this as a
factor in determining whether the totality of the circumstances supports the
2
The Supreme Court of Ohio has never explicitly overruled or limited this aspect of Ballard. However, we
observe that subsequent cases seem to have limited any “totality of the circumstances” inquiry only when
determining if the trial court substantially complied with Crim.R. 11(C)’s non-constitutional provisions.
See, e.g., Veney. Moreover, Veney distinguished Ballard and stated that “the court cannot simply rely on
other sources to convey these rights to the defendant” and that it would not “‘presume a waiver of these * *
* important [constitutional] rights from a silent record.’” Id at ¶29, quoting Boykin v. Alabama (1969), 395
U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. It is not clear whether this statement is intended to be a
repudiation of the Ballard totality of the circumstances approach as it pertains to the constitutional rights
outlined in Crim.R. 11(C)(2)(c), or whether this statement simply means that it will not allow “other
sources” to substitute for the court’s duty to convey the information when the court completely fails to
convey the information. Unlike Ballard, Veney involved a situation where the trial court completely failed
to mention a certain right. In contrast, in Ballard the court explained the constitutional rights, just not in
the exact terms of Crim.R. 11(C). Veney does not seem to reject any idea that a court may look to “other
sources” as additional evidence that a court adequately advised a defendant of his constitutional rights.
Thus, although the continuing validity of this proposition from Ballard may be in question, we do not
believe that it has clearly been invalidated such that we are unjustified in following it.
Ross App. No. 09CA3136 13
trial court’s finding that the defendant knowingly, intelligently, and
voluntarily entered the plea. Id. (noting that “the record shows that the trial
judge initially ascertained from the defense counsel that the defendant had
been advised of his rights”); see, also, State v. McKenna, Trumbull App. No.
2009-T-0034, 2009-Ohio-6154, at ¶67; State v. DeArmond (1995), 108 Ohio
App.3d 239, 245, 670 N.E.2d 531, quoting Riggins v. McMackin (C.A.6,
1991), 935 F.2d 790, 795 (construing Ohio Crim.R. 11), and citing North
Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, fn.3
(stating that inquiry into whether the trial court properly advised a defendant
of the constitutional rights “is not limited solely to the information provided
to the defendant by the trial court. We examine the totality of the
circumstances surrounding the plea. ‘A defendant may learn of information
not relayed to him by the trial court from other sources, such as his
attorney’”); State v. Diaz (June 2, 1993), Lorain App. No. 92CA5499.
{¶18} In State v. Saaty (Mar. 4, 1997), Franklin App. No. 96APA06-
777, the court applied this principle and concluded that although a defense
counsel’s representation that counsel advised the defendant of his rights may
constitute additional evidence that the court explained the right in a manner
reasonably intelligible to the defendant, it cannot substitute for the court’s
Ross App. No. 09CA3136 14
compliance with the rule when the court utterly fails to mention one of the
constitutional rights. The court stated:
“* * * [W]hile defense counsel advised the trial court he
read aloud the plea forms to defendant and in his opinion
defendant understood them, counsel’s actions cannot excuse the
trial court’s failure to specifically inform defendant he was
waiving his right to a jury trial. In response to questioning from
the trial court, defense counsel in Ballard stated he had
explained to defendant his constitutional rights, and he believed
defendant understood them. The Ballard court considered
defense counsel’s representations as additional proof that the
trial court had meaningfully informed defendant of his right to a
jury trial, stating, ‘[a]lthough the trial court may not relieve
itself of the requirement of Crim.R. 11(C) by exacting
comments or answers by defense counsel as to the defendant’s
knowledge of his rights, such a colloquy may be looked to in
the totality of the matter.’ Ballard, supra, at 481.
Thus, where the trial court makes only an indirect or
‘glancing’ reference to a constitutional right, a defense
counsel’s representation that he informed a defendant of his
constitutional rights can be ‘looked to in the totality of the
matter’ in determining whether the trial court explained or
referred to a constitutional right in a manner reasonably
intelligible to that defendant. However, where the trial court
has completely omitted mentioning a right specified in Boykin
and Ballard, defendant’s counsel’s representation is not
sufficient; defendant’s plea is invalid and must be vacated. See
[State v.] Sturm[ (1981), 66 Ohio St.2d 483, 422 N.E.2d 853].
Here, the trial court did not refer to the right to a jury trial in
any manner. As Ballard dictates, the trial court’s exacting
comments or answers from defendant’s attorney did not relieve
it from the mandate of Crim.R. 11(C). Id.”
{¶19} With the foregoing principles in mind, we turn to appellant’s
specific argument—that the trial court failed to adequately advise him of his
constitutional right to compulsory process. We recently considered the
Ross App. No. 09CA3136 15
adequacy of a trial court’s explanation of the defendant’s right to
compulsory process in State v. McDaniel, Vinton App. No. 09CA677, 2010-
Ohio-5215. In McDaniel, the trial court explained the defendant’s right to
compulsory process as follows: “you’re waiving your right to bring in your
own witnesses to subpoena those witnesses if necessary, to come in as a part
of your defense. Do you understand you are waiving that right?” Id. at ¶16.
The defendant asserted that the trial court’s explanation “did not sufficiently
inform him that he could compel witnesses to testify.” Id. at ¶17. We
disagreed. We observed that other Ohio courts have found similar
statements sufficient to explain a defendant’s right to compulsory process.
Id., citing State v. Ward, Montgomery App. No. 21044, 2006-Ohio-832, at
¶12 (court’s statement that the defendant was giving up his right to have his
own witnesses come and testify was “adequate, if less than ideal” when
informing him of compulsory process right); State v. Anderson (1995), 108
Ohio App.3d 5, 11-12, 669 N.E.2d 865 (finding that “[y]ou are giving up
your right to call witnesses on your own behalf” informed the defendant of
compulsory process right in a reasonably intelligible manner); State v.
Thomas, Franklin App. No. 04AP-866, 2005-Ohio-2389, at ¶9 (finding that
“right to have your witnesses, should you have any, subpoenaed to the
Ross App. No. 09CA3136 16
courtroom” informed the defendant of compulsory process right in a
reasonably intelligible manner).
{¶20} We further observed that some Ohio courts “have required the
trial court to specifically inform the defendant of the power to compel the
attendance of witnesses.” Id. at ¶18, citing State v. Gardner, Lorain App.
No. 08CA009520, 2009-Ohio-6505, at ¶9 (court failed to reasonably apprise
defendant of compulsory process right because it did not inform him that he
could use the court’s subpoena power to compel witnesses’ attendance);
State v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, at ¶17 (stating
that trial court “clearly informed” defendant of compulsory process right by
stating that defendant had a right to subpoena witnesses); State v. Wilson,
Cuyahoga App. No. 82770, 2004-Ohio-499, at ¶16 (“The trial court must
inform a defendant that it has the power to force, compel, subpoena, or
otherwise cause a witness to appear and testify on the defendant’s behalf.
Otherwise, the logical import of the court’s notice is that the defendant could
present such witnesses as he could only secure through his own efforts.”)
(emphasis sic); see, also, State v. Rosenberg, Cuyahoga App. No. 84457,
2005-Ohio-101, at ¶14 (stating that “strict compliance with Crim.R. 11(C)
requires the trial court to inform the defendant that witnesses could be
‘forced,’ ‘subpoenaed,’ ‘compelled,’ ‘summoned,’ or ‘required’ to appear”
Ross App. No. 09CA3136 17
and that “[m]erely advising a defendant that he has ‘the right to bring in
witnesses to this courtroom to testify for your defense’ is insufficient to
apprise a defendant of this constitutional right to compulsory process”);
State v. Cummings, Cuyahoga App. No. 83759, 2004-Ohio-4470 (holding
that informing defendant he had a right to “call witnesses” did not
sufficiently advise him of compulsory process right).
{¶21} We declined to specifically adopt either view, but instead,
determined that “even under the more restrictive cases, the trial court’s
statement is satisfactory because the statement indicates that [the defendant]
could have had the court issue subpoenas to ensure the presence of
witnesses. The gist of the trial court’s statement was that [the defendant]
had the right to subpoena witnesses to testify at any potential trial. We find
that this would reasonably apprise an individual of the nature of his
constitutional right to compulsory process.” Id. at ¶19.
{¶22} In the case at bar, the trial court’s statement adequately advised
appellant of his right to compulsory process by using the literal language of
the rule and by explaining the term in reasonably intelligible terms. The trial
court explained to appellant that he has “the right to a compulsory process.
That means you have the right to have subpoena’s [sic] issued for any
witness that you want to appear on your behalf in court.” The trial court’s
Ross App. No. 09CA3136 18
statement that appellant has “the right to a compulsory process” mirrors the
language used in Crim.R. 11(C)(2)(c) and as such, constitutes literal, and
hence strict, compliance with the rule. See State v. Senich, Cuyahoga App.
No. 82581, 2003-Ohio-5082, at ¶31, citing State v. Strawther (1978), 56
Ohio St.2d 298, 383 N.E.2d 900 (stating that use of term “compulsory
process” sufficient to explain the right). We therefore reject appellant’s
assertion that the trial court did not strictly comply with Crim.R.
11(C)(2)(c).
{¶23} Not only did the court literally comply with the rule, it went a
step further and explained the compulsory process right in terms that were at
least reasonably intelligible to appellant. While slight nuances exist between
the trial court’s statement in the case at bar and the trial court’s statement in
McDaniel, both statements advised that pleading guilty waives the right to
have subpoenas issued. We agree with those cases holding that a trial
court’s statement to the effect that a guilty plea waives the right to subpoena
witnesses sufficiently advises a defendant in a reasonably intelligible manner
of his compulsory process right. See State v. Moulton, Cuyahoga App. No.
93726, 2010-Ohio-4484, at ¶12 (concluding that trial court “clearly
informed” defendant of compulsory process right by stating that defendant
had a right to “subpoena and call witnesses”); State v. Thomas, Franklin
Ross App. No. 09CA3136 19
App. No. 04AP-866, 2005-Ohio-2389, at ¶9 (finding trial court’s statement
that defendant had the “right to have your witnesses, should you have any,
subpoenaed to the courtroom” sufficient explained compulsory process
right); State v. Moorefield (Oct. 8, 1999), Champaign App. No. 99CA4
(stating that trial court’s explanation that defendant’s plea would waive his
“right to make witnesses attend and testify” explained compulsory process
right “in a functional sense” so as to be “fully sufficient to make [it]
reasonably intelligible” to defendant); State v. Lelux (Mar. 4, 1997), Franklin
App. No. 96APA08-1018 (noting that term “subpoena” is so frequently used
that its meaning is commonly known and understood by laypeople and
holding that trial court’s explanation of compulsory process right as “the
right to subpoena witnesses for the trial” reasonably informed defendant of
his constitutional right).
{¶24} Moreover, when the court asked appellant whether he
understood that pleading guilty waives his right to compulsory process, i.e.,
the right to have subpoenas issued, appellant stated that he did. Although
determining what a defendant subjectively understands is not an exact
science, “if the defendant receives the proper information, then [a court] can
ordinarily assume that [the defendant] understands that information.” State
v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. We already
Ross App. No. 09CA3136 20
determined that the trial court relayed accurate information. The court both
literally complied with the rule and further explained the phrase
“compulsory process” in a reasonably intelligible manner. Thus, we may
assume that appellant understood that information. Nothing in the record
affirmatively suggests that he did not understand. At no point during the
plea hearing did he indicate, in any manner, any sort of confusion over the
meaning of any of the court’s statements or the rights he waived by pleading
guilty. Rather, every time the court asked him if he understood, appellant
indicated that he did. Had appellant not understood what the court meant by
use of the terms “compulsory process” and “subpoena,” he should have so
advised the court when asked.
{¶25} As additional evidence that the trial court adequately advised
appellant of his compulsory process right, we point out that appellant stated
that he had reviewed the plea petition with his attorneys. See Ballard
(approving the idea that a court may look to defense counsel’s
representations as additional evidence that defendant understood Crim.R.
11(C)(2)(c) rights). The plea petition recited that appellant understood that
he has the constitutional right “to use the power and process of the Court to
compel the production of any evidence, including the attendance of any
witnesses in my favor.” This is the precise language that appellant asserts
Ross App. No. 09CA3136 21
the court should have used during the plea hearing to explain his compulsory
process right. We do not believe that the trial court was required to repeat
this exact phraseology at the plea hearing. Rather, the trial court used the
exact language set forth in Crim.R. 11(C) and informed appellant of his
subpoena right. Both statements sufficiently advised him of his compulsory
process right. The plea petition further defines that right, but there is no
requirement that the court use that definition during the plea hearing.
Instead, the plea petition may be used as additional evidence that the
defendant understood what the court meant by the terms “compulsory
process” and “subpoena.” See Ballard, supra.
{¶26} To the extent appellant argues that the trial court possessed
some heightened duty to further define the concept of compulsory process, a
term not commonly understood by a layperson,3 we note that at least one
other court has rejected this exact argument. See State v. Mundy (Oct. 18,
1996), Greene App. No. 96CA1. In Mundy, the defendant asserted that he
could not have entered his plea in a knowing and voluntary manner because
the phrase “compulsory process” is not known to the average layperson. In
3
As a general proposition, we do not disagree with appellant’s suggestion that a trial court should consider
defining legal terms of art that may be unknown to a layperson or a person with mental retardation.
However, the Ohio Supreme Court has never stated that when the court strictly and literally complies with
the rule, it must also define the constitutional terms used in Crim.R. 11(C)(2)(c). Moreover, we are
unwilling to inject such a requirement into what is already an apparently much-litigated area of the law.
Rather, once a trial court explains the constitutional rights, either strictly or in terms reasonably intelligible
Ross App. No. 09CA3136 22
rejecting the defendant’s argument, the court first observed that the trial
court used the language of Crim.R. 11(C) when advising the defendant of
the rights he waived by pleading guilty. The court then observed that
although “the trial court might have gone beyond the language of Rule 11 in
explaining the right of compulsory process for obtaining favorable
witnesses, it was not required to do so and, from our review of the record,
there is nothing to suggest that [the defendant] did not mean what he said
when he responded affirmatively to the court’s question as to whether he
understood he was giving up his right to compulsory process for obtaining
favorable witnesses.” The court additionally noted that the defendant signed
a petition to enter a guilty plea in the presence of his attorney and that in the
petition, the defendant “acknowledged that he had a right, if he stood upon
his plea of not guilty and went to trial, ‘to compulsory process for obtaining
witnesses in my favor.’”
{¶27} The case at bar is quite similar to Mundy. In both cases, the
courts used the language set forth in Crim.R. 11(C). In both cases, the
courts asked whether the defendant (in Mundy) and appellant (in the case
sub judice) understood the compulsory process right and both parties
indicated that they did. In neither case did either party indicate a failure to
to the defendant, it possesses no further duty to define those rights, unless the defendant expresses
confusion or misunderstanding.
Ross App. No. 09CA3136 23
understand this right. Furthermore, in both cases, the plea petitions recited
and explained the compulsory process right and both parties acknowledged
that they understood that right. Under these circumstances, we can only
conclude that appellant meant what he said. There is nothing in the record to
suggest that appellant, despite his mental retardation, did not understand his
right to compulsory process.
{¶28} Moreover, to the extent appellant’s argument might be
construed as asserting that he was not competent to enter a guilty plea,4 we
disagree. Without question, the conviction of a defendant who is not
competent to enter a plea violates due process of law. See State v. Skatzes,
104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, at ¶155, citing Drope
v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103, and
State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433. However, in
the absence of evidence to the contrary, a criminal defendant is rebuttably
presumed competent to enter a guilty plea. See R.C. 2945.37(G); State v.
Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶45. A
finding of incompetency is not automatic simply because a defendant is
labeled mentally retarded. See Id. at ¶48, quoting Atkins v. Virginia (2002),
4
Appellant argues, in not so many words, that his mental retardation rendered him unable to understand the
terms “compulsory process” and “subpoena.” An assertion that a defendant lacks the ability to understand
the proceedings, or a concept, is an assertion that the defendant is not competent. See Godinez, infra, 509
U.S. 401 fn.12 (“The focus of a competency inquiry is the defendant’s mental capacity; the question is
Ross App. No. 09CA3136 24
536 U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335 (stating that
“’[m]entally retarded persons frequently * * * are competent to stand
trial’”); State v. Hall (Feb. 25, 2000) Jackson App. No. 99CA847, citing
State v. Barnhart (Sept. 24, 1997), Washington App. No. 96CA32. Rather, a
court will presume that the defendant is competent, unless the defendant
shows that the defendant is unable to understand the proceedings or to assist
in the defense. Were at ¶45. “The test for determining whether a defendant
is competent to stand trial [or to plead guilty] is ‘”’whether [the defendant]
has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding—and whether he has a rational as well as a
factual understanding of the proceedings against him.’”’” Id., quoting State
v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, quoting Dusky v.
United States (1960), 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824; see,
also, Godinez v. Moran (1993), 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d
321. A trial court possesses no need to sua sponte inquire into a defendant’s
competency unless the record contains “’sufficient indicia of incompetence,’
such that an inquiry * * * is necessary to ensure the defendant’s right to a
fair trial.” Berry, 72 Ohio St.3d at 359, quoting Drope, 420 U.S. at 175; see,
whether he has the ability to understand the proceedings”) (emphasis sic). Thus, one might state that to be
presumed competent is to be presumed competent to understand the Crim.R. 11(C) rights.
Ross App. No. 09CA3136 25
also, State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637,
at ¶65.
{¶29} In the case at bar, we believe that the record demonstrates that
appellant was competent to plead guilty and that the record does not contain
sufficient indicia of incompetence to have required the court to ascertain, sua
sponte, appellant’s competency. Throughout the plea proceedings, appellant
clearly answered all of the court’s questions and indicated his understanding
of all the information that the court relayed. When the court asked appellant
whether he suffered from any mental disability, appellant responded that he
did not. Although the record contains evidence that appellant has been
identified as mentally retarded since he was a young child, mental
retardation alone does not constitute a sufficient indicia of incompetency to
require a trial court to sua sponte conduct a competency inquiry.5 See State
v. Beck, Hamilton App. Nos. C-020432, C-020449, and C-030062, 2003-
Ohio-5838, at ¶12 (citations omitted). As the United States Supreme Court
has recognized, a mentally retarded individual may be competent to enter a
guilty plea. See Atkins, supra; see, also, Were at ¶48. The Court has
5
Given the nature of the charges, it may have been preferable for the trial court in the case sub judice to
hold a competency hearing. However, a competency hearing was not constitutionally required. See State
v. Bock (1986), 28 Ohio St.3d 108, 109, 502 N.E.2d 1016 (stating that “the right to a hearing on the issue of
incompetency rises to constitutional proportions only when the record contains sufficient indicia of
incompetency * * * such that a formal inquiry into defendant’s competency is necessary to protect his right
to a fair trial”). It is not reversible error for a trial court to fail to hold a competency hearing when the issue
is not raised prior to trial and when the record fails to show sufficient indicia of incompetency. See State v.
Ross App. No. 09CA3136 26
identified no presumption that a mentally retarded individual is presumed
incompetent. In fact, the proper procedure is that all criminal defendants are
presumed competent and the burden rests with the defendant to prove
incompetency. See R.C. 2945.37(G); Were at ¶45.
{¶30} We reiterate that in the case at bar, nothing in the record raises
sufficient indicia of incompetency to suggest that appellant was not
competent to enter a guilty plea. As such, appellant was competent to
understand the plea proceeding, including his right to compulsory process,
and to speak up if he did not. If appellant did not understand what the court
meant by the words “compulsory process” and “subpoena,” he should have
said so. Instead, he affirmatively indicated that he understood. Unless a
defendant indicates in some way that he is confused or does not understand
the meaning of “compulsory process” or “subpoena,” we do not believe that
a trial court possesses an independent duty to engage in a lengthy
dissertation of the meaning of the court’s subpoena power and the
constitutional right to compulsory process—even when the defendant is
mentally retarded. Furthermore, appellant informed the court that he did not
suffer from any mental disability, that he understood everything the court
stated, and that he had reviewed the plea petition with his attorneys.
Eley (1996), 77 Ohio St.3d 174, 183-184, 672 N.E.2d 640; Bock at paragraph one of the syllabus; State v.
Borchers (1995), 101 Ohio App.3d 157, 159, 655 N.E.2d 225; see, also, Hall, supra.
Ross App. No. 09CA3136 27
{¶31} We find the case at bar similar to State v. Bennett (July 18,
1991), Montgomery App. No. 12208. In Bennett, the defendant asserted that
he did not understand the effect of his plea when he could not “adequately
read or write” and when “his mental capacity is quite diminished, even to the
point of having been labeled ‘mentally retarded’ while in school.” The court
rejected the defendant’s argument, explaining that the defendant “failed to
point out how these matters, if true, impaired his ability to understand the
effect of his plea. A criminal defendant may very well understand the effect
of his plea, after proper explanation, even though he is subject to those
limitations.” The court further observed that the trial court asked the
defendant “several times” whether he understood, and each time, appellant
responded that he did.
{¶32} Similarly, in the case sub judice, the record does not support
any finding that appellant’s status as a mentally retarded individual
precluded him from understanding the consequences of his guilty plea,
including that he would waive his right to compulsory process. We
emphasize, again, that appellant never gave any indication that he failed to
comprehend the proceedings or what the court meant by the terms
“compulsory process” and “subpoena.” Had he done so, then the trial court
should have inquired further and possibly further explained the concepts. In
Ross App. No. 09CA3136 28
the absence of some confusion on appellant’s part, the trial court possessed
no independent duty to further define those terms.
{¶33} Furthermore, allowing a defendant to state in open court that he
understood a Crim.R. 11(C) right, but then argue on appeal that he did not,
would contravene the general principle that guilty pleas should be final. See
Ballard, 66 Ohio St.2d at 479 (stating that in accepting a guilty plea, a court
must protect “the interest of finality”). As the United States Supreme Court
explained in United States v. Timmreck (1979), 441 U.S. 780, 784, 99 S.Ct.
2085, 60 L.Ed.2d 634:
“‘Every inroad on the concept of finality undermines
confidence in the integrity of our procedures; and, by increasing
the volume of judicial work, inevitably delays and impairs the
orderly administration of justice. The impact is greatest when
new grounds for setting aside guilty pleas are approved because
the vast majority of criminal convictions result from such pleas.
Moreover, the concern that unfair procedures may have resulted
in the conviction of an innocent defendant is only rarely raised
by a petition to set aside a guilty plea.’”
Id., quoting United States v. Smith (C.A.7, 1971), 440 F.2d 521, 528-529
(Stevens, J., dissenting); see, also, Hill v. Lockhart (1985), 474 U.S. 52, 58,
106 S.Ct. 366, 88 L.Ed.2d 203. Because “[a] plea of guilty is a complete
admission of guilt,” State v. Stumpf (1987), 32 Ohio St.3d 95, 104, 512
N.E.2d 598, “absent some assertion that a conviction is inherently erroneous,
courts should be reluctant to disturb the finality of convictions based on
Ross App. No. 09CA3136 29
guilty pleas.” State v. Graves (July 7, 1993), Medina App. No. 2203. In the
case at bar, there is nothing so inherently erroneous regarding appellant’s
guilty plea that we should tip the scales of justice in order to invalidate
appellant’s plea.
{¶34} Accordingly, based upon the foregoing reasons, we overrule
appellant’s first assignment of error.
IV.
ALLIED OFFENSES OF SIMILAR IMPORT
{¶35} In his second assignment of error, appellant argues that the trial
court erred by convicting him of aggravated arson and tampering with
evidence when those two offenses constitute allied offenses of similar
import. He contends that the commission of aggravated arson necessarily
results in commission of tampering with evidence.
A.
WAIVER ISSUES
{¶36} Before considering the merits of appellant’s assignments of
error, we address the state’s arguments that (1) appellant waived any alleged
error by failing to object at the sentencing hearing, and (2) he cannot appeal
the sentence because he received the sentence for which he negotiated. We
reject both of the state’s arguments.
Ross App. No. 09CA3136 30
1.
PLAIN ERROR
{¶37} When a defendant fails to object to the imposition of multiple
sentences for allied offenses of similar import, we may recognize the error if
it constitutes plain error. It is well settled that we may notice plain errors or
defects affecting substantial rights, despite an appellant's failure to bring
them to the attention of the trial court. Crim.R. 52(B). Plain error exists
when the error is plain or obvious and when the error “affect[s] ‘substantial
rights.’” The error affects substantial rights when “‘but for the error, the
outcome of the trial [proceeding] clearly would have been otherwise.’”
State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, 868 N.E.2d 1018,
at ¶11, quoting State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d
1240. We take notice of plain error with the utmost of caution, under
exceptional circumstances, and only to prevent a manifest miscarriage of
justice. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d
995, at ¶78; State v. Patterson, Washington App. No. 05CA16, 2006-Ohio-
1902, at ¶14. A reviewing court should consider noticing plain error only if
the error “‘“seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.”’” Barnes, 94 Ohio St.3d at 27, quoting United States
v. Olano (1993), 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508,
Ross App. No. 09CA3136 31
quoting in turn United States v. Atkinson (1936), 297 U.S. 157, 160, 56 S.Ct.
391, 80 L.Ed. 555. We have previously recognized that plain error exists
when a defendant is convicted of multiple offenses that constitute allied
offenses of similar import. See State v. Shaw, Scioto App. No. 07CA3190,
2008-Ohio-5910, at ¶16. In the case at bar, we do not believe that plain
error exists.
2.
EFFECT OF NEGOTIATED SENTENCE ON APPEALABILITY OF
ALLIED OFFENSE ISSUE
{¶38} A criminal defendant has the right to appeal the issue of allied
offenses under R.C. 2941.25, even if the defendant entered into a plea
bargain and even if the sentence was an agreed sentence under R .C.
2953.08(D). State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922
N.E.2d 923, paragraph one of the syllabus. Underwood further held that a
trial court is prohibited from imposing individual sentences for “counts that
constitute allied offenses of similar import.” Underwood at ¶26.
{¶39} Based upon the clear holding of Underwood, we reject the
state’s argument that appellant is prohibited from appealing the multiple
sentences for allied offenses when the sentence resulted from a plea
negotiation.
B.
Ross App. No. 09CA3136 32
ALLIED OFFENSE ANALYSIS
{¶40} R.C. 2941.25 sets forth the statutory analysis for determining
whether offenses constitute allied offenses of similar import:
(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
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.
{¶41} The Supreme Court of Ohio has interpreted R.C. 2941.25 to
involve a two-step analysis:
“’In the first step, the elements of the two crimes are
compared. If the elements of the offenses correspond to such a
degree that the commission of one crime will result in the
commission of the other, the crimes are allied offenses of
similar import and the court must proceed to the second step.
In the second step, the defendant’s conduct is reviewed to
determine whether the defendant can be convicted of both
offenses. If the court finds either that the crimes were
committed separately or that there was a separate animus for
each crime, the defendant may be convicted of both offenses.’”
State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, at
¶10, quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526
N.E.2d 816; see, also, State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059,
Ross App. No. 09CA3136 33
905 N.E.2d 154; State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886
N.E.2d 181, at ¶14.
{¶42} To determine whether offenses are allied offenses of similar
import under R.C. 2941.25(A), courts must “compare the elements of
offenses in the abstract, i.e., without considering the evidence in the case.”
Cabrales at ¶27; see, also, Harris at ¶12. The elements need not, however,
be identical for the offenses to constitute allied offenses of similar import.
Winn at ¶12. The key word is “similar,” not “identical.” Winn at ¶12; see,
also, Harris at ¶16 (stating that the offenses need not exactly align to
constitute allied offenses). Offenses constitute allied offenses of similar
import if, “‘in comparing the elements of the offenses in the abstract, the
offenses are so similar that the commission of one offense will necessarily
result in commission of the other.’”6 Winn at ¶12, quoting Cabrales at ¶26.
6
We point out what appears to us to be somewhat of an anomaly in some of the Supreme Court of
Ohio’s explanation of the allied offense analysis. On at least two occasions, the Court has stated that it
applies the “same analysis to determine whether two aggravating circumstances merge as it utilizes to
decide whether two offenses are allied offenses of the same import.” State v. Franklin, 97 Ohio St.3d 1,
2002-Ohio-5304, 776 N.E.2d 26, at ¶51; see, also, State v. Jenkins (1984), 15 Ohio St.3d 164, 197, 473
N.E.2d 264, fn.27 (stating that in concluding that death penalty specifications should have merged, court
was “guided by principles espoused in considering the doctrine of merger under R.C. 2941.25”). The court
has stated that in determining whether death penalty specifications should merge, the inquiry is “whether
the specifications at issue ‘ar[o]se from the same act or indivisible course of conduct,’ and were thus, in
fact, duplicative.” State v. Garner (1995), 74 Ohio St.3d 49, 53, 656 N.E.2d 623. Whether two offenses
“arose from an indivisible course of conduct” seems to us to be an entirely different question than whether
a comparison of the elements in the abstract leads to a conclusion that the commission of one offense
necessarily results in the other. Thus, we are confused by the court’s statement in Franklin that the two
tests are one and the same. We choose, therefore, to follow the Supreme Court of Ohio’s more recent
pronouncements regarding R.C. 2941.25 and to apply the more recently-outlined analysis. Perhaps a more
accurate statement would be that the two analyses are similar in respect to the application of the second part
of the allied offense test, i.e., whether the offenses were committed with a separate animus.
Ross App. No. 09CA3136 34
{¶43} As the foregoing analysis directs, we being by comparing the
elements of the two offenses in the case at bar, aggravated arson and
tampering with evidence, in the abstract.
{¶44} The aggravated arson statute, R.C. 2909.02, provides:
(A) No person, by means of fire or explosion, shall
knowingly do any of the following:
(1) Create a substantial risk of serious physical harm to
any person other than the offender;
(2) Cause physical harm to any occupied structure;
****
The tampering with evidence statute, R.C. 2921.12, provides:
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record,
document, or thing, with purpose to impair its value or
availability as evidence in such proceeding or investigation
{¶45} When we compare the elements of these two offenses in the
abstract, we do not find that they correspond to such a degree that
commission of the one necessarily results in the commission of the other.
The elements we must compare are (1) fire or explosion, (2) knowingly, (3)
(a) create substantial risk of serious physical harm, or (b) cause physical
harm to occupied structure (aggravated arson); and (1) knowing, (2) official
proceeding or investigation, (3) alter, destroy, conceal, remove, (4) purpose
to impair, (5) value or availability as evidence (tampering with evidence).
One can commit the offense of tampering with evidence without necessarily
Ross App. No. 09CA3136 35
committing aggravated arson. Tampering with evidence does not require a
fire or explosion. Furthermore, one can commit the offense of aggravated
arson without necessarily tampering with evidence. One can knowingly
create a substantial risk of serious physical harm or cause physical harm to
an occupied structure by means of fire or explosion without necessarily
altering, destroying, concealing, or removing with the purpose to impair the
value of an item or its availability as evidence. An aggravated arson does
not necessarily result in the commission of tampering with evidence. Cf.
State v. Kelly, Franklin App. No. 02AP-195, 2002-Ohio-5797, at ¶32
(concluding that aggravated arson and felonious assault do not constitute
allied offenses because “felonious assault need not be committed by fire or
explosion” and “aggravated arson necessarily is committed with fire or an
explosive and does not [necessarily] require that the offender cause or
attempt to cause harm to any person”); State v. Brown, Montgomery App.
No. 18643, 2002-Ohio-277 (holding that felony murder and aggravated
arson were not allied offenses even though aggravated arson caused the
victim’s death, because “[a]ggravated arson can be committed without a
killing, and felony murder can be committed by means of a first or second
degree felony other than [by fire or explosion]”).
Ross App. No. 09CA3136 36
{¶46} Appellant nevertheless asserts that we should follow the court’s
analysis in State v. Moore (Oct. 21, 1987), Hamilton App. No. C-860814,
and conclude that aggravated arson and tampering with evidence constitute
allied offenses of similar import. We do not find Moore directly apposite
and decline to follow it.
{¶47} In Moore, the court determined that arson (not aggravated) and
tampering with evidence constitute allied offenses. The court found that the
commission of arson will result in the commission of tampering with
evidence. At the time Moore was decided, the arson statute, R.C. 2909.03
stated: “(A) No person, by means of fire or explosion, shall knowingly: (1)
Cause, or create a substantial risk of, physical harm to any property of
another without his consent.” The tampering with evidence statute stated:
“(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or is likely to be instituted, shall do any of the
following: (1) Alter, destroy, conceal or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in such
proceeding or investigation.” The court stated that both statutes require a
“knowing” state of mind and prohibit the destruction of property. The court
determined that “[t]he use of fire to destroy potential evidence will result in
the commission of both arson and tampering.”
Ross App. No. 09CA3136 37
{¶48} In the case at bar, the aggravated arson statute reads differently
than the arson statute considered in Moore. The aggravated arson statute,
unlike the arson statute in Moore, does not involve physical harm to “any
property,” but rather, it involves either (1) a substantial risk of serious
physical harm to any person other than the offender, or (2) physical harm to
any occupied structure. Thus, the aggravated arson statute is more specific
than the arson statute and requires more than just damage to “any property.”
Thus, we find Moore distinguishable and, therefore, decline to follow it.
{¶49} Because we determined that the commission of aggravated
arson does not necessarily result in the commission of tampering with
evidence, or vice versa, we have no need to consider whether appellant
committed the offenses separately or with the same animus.
{¶50} Accordingly, based upon the foregoing reasons, we overrule
appellant’s second assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Kline, J., concurring.
{¶51} I concur in judgment and opinion. I write separately to explain
how I distinguish State v. Moore (Oct. 21, 1987), Hamilton App. No. C-
860814, which the appellant relies on in his argument that the offenses of
Ross App. No. 09CA3136 38
aggravated arson and tampering with evidence constitute allied offenses of
similar import. See Second Assignment of Error.
{¶52} Moore relies on the assumption that arson involves an attempt
to destroy property with fire or explosion. And since arson involves an
attempt to destroy property, it is an allied offense to tampering because
tampering also prohibits the destruction of property where the malefactor
knows that the property is likely to be evidence in an official investigation.
Id. at ¶46-49.
{¶53} In my view, the Moore analysis fails because the use of fire or
explosion does not destroy evidence related to arson. That is, even if the
property is entirely consumed, the resulting ashes are, in fact, evidence of
arson. The fire may or may not consume evidence of another crime or other
evidence related to arson but the fire does not necessarily destroy evidence
of arson because the use of fire is an element of arson. Therefore, an
offender may commit the crime of aggravated arson without necessarily
committing the crime of tampering with evidence. It is, of course, easy to
see that an individual may tamper with evidence without committing arson.
Therefore these offenses “are not allied offenses because the commission of
one will not automatically result in commission of the other.” State v.
Rance, 85 Ohio St.3d 632, 639, 1999-Ohio-291, citing State v. Preston
Ross App. No. 09CA3136 39
(1986), 23 Ohio St.3d 64, 65. Accordingly, for the above reason, I also
reject Moore and agree that the offenses of aggravated arson and tampering
with evidence do not constitute allied offenses of similar import.
Ross App. No. 09CA3136 40
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
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 Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion with Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.