[Cite as State v. Morrow, 2016-Ohio-460.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Sheila G. Farmer, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 15 CA 16
EDWARD JOSEPH MORROW, JR. :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Guernsey County
Court of Common Pleas, Case No.14-CR-
209
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 4, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON FARLEY ROGER SOROKA
Assistant Prosecutor JOSHUA BEDTELYON
139 West 8th Street 503 South Front Street, Ste. 205
Box 139 Columbus, OH 43215
Cambridge, OH 43725
Guernsey County, Case No. 15 CA 16 2
Gwin, P.J.
{¶1} Appellant Edward Joseph Morrow, Jr. [“Morrow”] appeals his convictions
and sentences after a negotiated guilty plea in the Guernsey County Court of Common
Pleas to four counts of corrupting another with drugs in violation of R.C. 2925.02(A)(4)(a),
felonies of the fourth degree.
Facts and Procedural History
{¶2} Morrow was arraigned on November 13, 2014 and entered a not guilty plea
to all four counts. Each of the four counts allege that Morrow did knowingly furnish or
administer marijuana to a juvenile who was at least two years Morrow’s junior, when
Morrow knew the age of the juvenile or was reckless in that regard.
{¶3} On January 15, 2015, the trial court revoked Morrow’s bond on the ground
that he had been charged in Cambridge Municipal Court with domestic violence against his
mother, and that he had tested positive for opiates and benzodiazepines while on pretrial
release in the pending felony case.
{¶4} On February 3, 2015 a negotiated plea deal was reached. The terms of this
plea deal were Morrow would enter guilty pleas to all four counts contained in the
indictment, a presentence investigation report [“PSI”] would be ordered, there would be
no restitution sought, each side would argue for appropriate sentence, and the state
would liken the offense to drug trafficking and argue for a term of incarceration. The guilty
pleas were accepted by the trial court and Morrow was convicted on all charges.
{¶5} A sentencing hearing was held on May 21, 2015. Morrow was sentenced to
twelve months on each count, to be served consecutively, for a total of four years.
Guernsey County, Case No. 15 CA 16 3
Morrow's driver's license was suspended, and the court stated that post release control
would be optional.
Assignments of Error
{¶6} Morrow raises three assignments of error,
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND UNDERMINED
THE FUNDAMENTAL FAIRNESS OF THE PROCEEDINGS WHEN IT ERRONEOUSLY
CONSIDERED THAT APPELLANT HAD BEEN CONVICTED OF A THIRD DEGREE
FELONY WHEN IN ACTUALITY APPELLANT HAD NO FELONIES ON HIS RECORD,
AND ARBITRARILY COMPARED APPELLANT'S CHARGED OFFENSES TO DRUG
TRAFFICKING.
{¶8} “II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN TRIAL COUNSEL FAILED TO OBJECT TO AN INACCURATE STATEMENT
MADE BY THE COURT AT SENTENCING, DID NOT PROPERLY INVESTIGATE
POSSIBLE MITIGATING FACTORS, AND FAILED TO PROVIDE VERIFICATION OF
APPELLANT'S TIME IN ALCOHOL AND DRUG COUNSELING.
{¶9} “III. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED
CONSECUTIVE SENTENCES BECAUSE THE OFFENSES WERE ALLIED OFFENSES
OF SIMILAR IMPORT AND SHOULD HAVE MERGED.”
I.
{¶10} In his first assignment of error, Morrow contends the court abused its
discretion in using erroneous information about the defendant's prior criminal
record, and further the trial court abused its discretion by comparing Morrow’s crimes to
those of drug trafficking.
Guernsey County, Case No. 15 CA 16 4
{¶11} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.
State v. Tammerine, 6th Dist. Lucas No. L–13–1081, 2014–Ohio–425, ¶10; State v.
Wellington, 7th Dist. Mahoning No. 14 MA 115, 2015-Ohio-1359, ¶10; State v. Brewer,
4th Dist. Meigs No. 14CA1, 2014–Ohio–1903, ¶33; State v. Tate, 8th Dist. Cuyahoga No.
97804, 2014–Ohio–5269, ¶ 55; State v. Rodeffer, 2nd Dist. Montgomery Nos. 25574,
25575, 25576, 2013–Ohio–5759, 5 N.E.3d 1069, ¶29; State v. Murphy, 10th Franklin No.
12AP–952, 2013–Ohio–5599, ¶12; State v. Crawford, 12th Dist. Clermont No. CA2012–
12–088, 2013–Ohio–3315, ¶6; State v. White, 1st Dist. Hamilton No. C–130114, 2013–
Ohio–4225, 997 N.E.2d 629, ¶10; State v. Howell, 5th Dist. Stark No. 2015CA00004,
2015-Ohio-4049, ¶31; See also State v. Marcum, 141 Ohio St.3d 1453, 2015–Ohio–239,
23 N.E.3d 1453 (Ohio Supreme Court has accepted the certified conflict question of what
is the felony sentencing standard of review).
{¶12} We now review felony sentences using the standard of review set forth in
R.C. 2953.08. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. 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 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, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.
{¶13} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption
by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.
Guernsey County, Case No. 15 CA 16 5
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires
the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton
Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶14} R.C. 2929.14(C)(4), provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish **665 the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
Guernsey County, Case No. 15 CA 16 6
{¶15} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post release control for a prior offense; (b) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the harm caused by two
or more of the offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct would adequately reflect the
seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶16} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16
N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court
is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry,
but it has no obligation to state reasons to support its findings. (Emphasis
added.)
{¶17} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶29. “[A]s long as the reviewing court
Guernsey County, Case No. 15 CA 16 7
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.
2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing
entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the
statutory findings in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to reflect what
actually occurred in open court. Bonnell, ¶30.
{¶18} In the case at bar, Morrow first argues that the trial court erroneously
believed that he had previously been convicted of a felony criminal mischief, which is in
reality a misdemeanor crime.
{¶19} At the sentencing hearing, the Court stated,
THE COURT: The Court turns to its duty to sentence Edward Joseph
Morrow, Jr. Here the Court finds he has been convicted of four counts of
"Corrupting Another with Drugs", a Felony of the Fourth Degree, in violation
of Ohio Revised Code Section 2925.02(A)(4)(a). This is a so called Division
C drug offense. That's incorrect a Division B Drug Offense for Division B, I
apologize. This is sentenced under 2929.13(C) so it is a Division C as I said
to begin with. A Division C Drug Offense there is no guidance other than the
purposes and principles of sentencing. Under the purposes and principles
of sentencing Mr. Morrow, the duty of this Court is to punish the offender,
Guernsey County, Case No. 15 CA 16 8
and to protect the public from future crime by the offender and others. Using
the minimum sanctions, the Court determines accomplishes those
purposes, without imposing an unnecessary burden on State or local
government resources. The Court therefore to apply those purposes and
principles of sentencing must weigh in every case these factors, whether
your conduct is more serious or less serious. Here the Court finds the more
serious factors found are that the injury to the victims, here the victims are
twelve year old, two thirteen year olds and a fourteen year old. It is worsen
by the age of the victims. You exposed them to an illegal drug, a controlled
substance, marijuana. Your relationship with these victims facilitated this
offense, as you apparently knew them all. You said you thought the one girl
was seventeen. Giving you the benefit of the doubt, you are only three years
off for the oldest, and five years off for the youngest. Under the less serious,
you did not cause any physical harm to any person or property. You did give
drugs to minors. There is a long standing sentencing policy of this Court
that if one traffics in drugs in Guernsey County you do prison time or go to
jail. That is well known by many people, apparently not by you, [sic.] Turning
to the recidivism factors the Court gives heavy weight as Courts have
historically always done to the fact you committed this offense, while under
a Court sanction. You were under the supervision of the Cambridge
Municipal Court. The Court also finds that while this case was pending your
own conduct with your own mother made you prison eligible. You committed
another offense. You have a history therefore of criminal convictions. You
Guernsey County, Case No. 15 CA 16 9
have been convicted of "Criminal Mischief" a felony of the Third Degree in
June of 2012. You then had the incident offense in September of last year,
2014, and then in January while as I have previously found this case was
pending you commit domestic violence against your own mother. Your
juvenile record is such that you were adjudicated delinquent in May of 2010
for disorderly conduct. The Court finds therefore, you have failed to respond
favorably for sanctions imposed in adult and juvenile court. You also have
demonstrated a pattern of drug and/or alcohol abuse that is related to this
offense, and is consistent with your conduct as you also had an OVI,
operating a vehicle intoxicated conviction for alcohol or drugs that occurred
in January of 2013. Your statement in this case was that you were under
the influence of both alcohol and pain pills at the time you committed the
incident offense, and of course it would also appear using marijuana at least
you provided marijuana for juveniles. You now to your credit have
acknowledged that pattern and have advised, yet neglected to bring to
Court, neglected apparently to tell your counselor or ask your attorney to
bring it to Court for you Alcohol and Drug Service. Now the Chief Probation
Officer of the Court was able to verify that. There may be a reason you didn't
bring that it to Court after I verify it, because they advise me from Alcohol
and Drug Services that your attendance is not consistent. You have heard
the report read. You haven't gone very often. So I find your statement that
is really doing you a lot of good is not worthy of belief. It is not doing you a
lot of good if you don't go. As to showing remorse for the offense, you have
Guernsey County, Case No. 15 CA 16 10
said you are sorry for what I did, and that I shouldn't have bought marijuana
for the four victims. You thought the girl was seventeen years old. I don't
know what kind of presentation that is because a seventeen year old can's
[sic.] use marijuana, and you tell me you are concerned about your family.
I have to judge facts when people tell things in Court. So here is the facts I
will judge. While this case was pending you committed domestic violence
against your own mother. Perhaps there is explanation for that. You advise
me you are concerned about a grandparent. To you credit you have
apparently found increased employment. That was one of the questions that
you were asked on your Presentence Investigation to state your
employment. You stated it was with Secrest Disposal. No update or
verification of your increase from whatever it was previously to six days a
week was provided to the Court, and all of this is done when you are coming
before this Court and this Judge for four felony offenses to make a
presentation that you would be amenable to an available community control
sanction. The State of Ohio through the Assistant Prosecuting Attorney is
arguing for four twelve month sentences, that would be forty-eight (48)
months, four (4) year of incarceration. Your counsel is arguing on your
behalf for community control sanctions. It is the duty of the Judge to
determine the appropriate sentence. That determination must be guided by
Ohio Law. I must determine here if your conduct is more serious or less
serious and I find your conduct is more serious providing drugs to minors. I
have to find if you are more likely to reoffend than less likely. I find that you
Guernsey County, Case No. 15 CA 16 11
made that decision pretty easy. You went out and committed another
offense, while this offense was pending. Then you come to Court and make
a very poor presentation and statement on your own behalf counseling is
doing me good. Verification that's what we do in this Court we verify things.
Not consistent. Concerned about my family. Not consistent. I am required
to weigh facts. You are not amendable to any community control sanction
this Court because you just don't get it and may be you will after you see
prison. Ohio is a truth in sentencing state. The length of time that you will
serve in prison is the length of time the sentencing judge says, unless I grant
judicial release at a later time. The Court however, finds that these four
counts occurred at the same time, but they occurred to four different
individuals, juveniles. A twelve (12) month sentence for a Felony of the
Fourth Degree is the middle range of the sentencing term under 2929.14(A).
The Court finds on the facts of this case that would be appropriate. The
Court hereby imposes a twelve (12) month prison sentence on each count
against the twelve (12) month sentences will be served consecutive as it is
necessary here to protect the public, punish you and it is not
disproportionate to the conduct and these crimes were committed while you
were under a Court sanction. The harm to four juveniles that you pick up at
a middle school is so unusual or great a single term would not adequately
reflect the seriousness of your conduct, and your criminal history shows that
consecutive terms are needed to protect the public. It is also a long enough
sentence that I think it will shock you. I think you will be shocked when you
Guernsey County, Case No. 15 CA 16 12
see prison, and then maybe you will get it. Also note that if I sentence you
to more than two years but less than five years, you could be eligible for
judicial release after a hundred and eighty (180) days. Young man you
better change your attitude. You better get it or you can serve the entire
forty-eight (48) months it is an appropriate sentence.
***
T. Sent. Hearing, May 21, 2015 at 29-33.
{¶20} Pursuant to R.C. 2909.07, criminal mischief is either a misdemeanor of the
third degree [R.C. 2909.07 (C)(2)], a misdemeanor of the first degree [R.C. 2909.07(C)(2)
and R.C. 2090.07(C)(3)], a felony of the fifth degree [R.C. 2909.07(C)(2)(a) and R.C.
2909.07(C)(3)], or a felony of the fourth degree [R.C. 2909.07(C)(2)(b) and R.C.
2909.07(C)(3)]. The state contends that because there is no criminal mischief as a felony
of the third degree, the trial judge simply misspoke.
{¶21} Disregarding Morrow’s conviction for criminal mischief, whether as a felony
or a misdemeanor, we find the trial court’s statements are sufficient under Bonnell, supra,
to support its imposition of consecutive sentences. The statements by the trial court make
clear that it engaged in the appropriate analysis. The court noted that it needed to punish
Morrow and protect the public. It found that the harm Morrow caused was so great and
unusual that a single prison term would not be adequate. The trial court further found that
consecutive sentences were necessary in order to protect the public, to punish Morrow,
and to address the magnitude of the crimes.
Guernsey County, Case No. 15 CA 16 13
{¶22} The record contains no evidence that the trial court based its decision to
impose consecutive sentences solely or in part upon whether Morrow had a prior felony
conviction.
{¶23} Morrow next contends that the trial court abused its discretion by comparing
Morrow’s crimes to those of drug trafficking.
{¶24} During Morrow’s plea, the following exchange occurred,
THE COURT: That stands tor Presentence Investigation will be
ordered. There is no restitution that means paying back another party for
economic loss or damage at issue in this case. Each side will argue for the
appropriate sentence, and Edward I would like you to listen to this carefully.
The State likens these offenses for trafficking in drugs, and therefore will
argue that a prison term or a period of local incarceration be imposed. Now
liken means making an analogy comparing it for this Court's sentencing
policy of trafficking in drugs do you understand that?
MR. MORROW: Yes your Honor.
THE COURT: And do you understand that this Court has a long
policy of sentencing those that trafficking in drugs in Guernsey County either
to prison or jail?
MR. MORROW: Yes your Honor.
THE COURT: You have reviewed that with your Attorney?
MR. MORROW: Yes your Honor.
T. Feb. 23, 2015 at 6 (emphasis added). The written “Plea of Guilty” form signed by
Morrow and filed February 23, 2015 contains the state’s plea offer, which contains the
Guernsey County, Case No. 15 CA 16 14
above-mentioned admonition that the state would liken Morrow’s case to drug trafficking
during the sentencing hearing.
{¶25} Under the doctrine of “invited error,” it is well settled that “a party will not be
permitted to take advantage of an error which he himself invited or induced the trial court
to make.” State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 1995-Ohio-40, 646
N.E.2d 1115(1995) citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359,1994-
Ohio-302, 626 N.E.2d 950(1994). See, also, Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d
145(1943) paragraph one of the syllabus. As the Ohio Supreme Court has stated,
[t]he law imposes upon every litigant the duty of vigilance in the trial
of a case, and even where the trial court commits an error to his prejudice,
he is required then and there to challenge the attention of the court to that
error, by excepting thereto, and upon failure of the court to correct the same
to cause his exceptions to be noted. It follows, therefore, that, for much
graver reasons, a litigant cannot be permitted, either intentionally or
unintentionally, to induce or mislead a court into the commission of an error
and then procure a reversal of the judgment for an error for which he was
actively responsible.
Lester at 92-93, quoting State v. Kollar, 93 Ohio St. 89, 91, 112 N.E. 196(1915).
{¶26} At no time during either the plea or sentencing phase did Morrow ask any
questions regarding the penalties involved for the charges to which he was pleading
guilty. Upon being informed by the trial court that the state would liken his offenses to
drug trafficking and that the trial court has a long policy of prison or jail sentences for
trafficking offenses, Morrow did not indicate his disapproval or confusion to the trial court.
Guernsey County, Case No. 15 CA 16 15
In the case at bar, Morrow indicated to the trial court that he understood the court’s
position and that he had discussed the matter with his attorney.
{¶27} In the case at bar, Morrow had ample warning of the consequences of his
behavior, and the trial court’s position before he entered his guilty pleas. It is clear from
Morrow’s actions that he voluntarily chose to enter his pleas with full knowledge that he
could be sentenced to prison.
{¶28} Morrow’s first assignment of error is overruled.
II.
{¶29} In his second assignment of error, Morrow contends that he receive
ineffective assistance of counsel. Specifically, Morrow argues his trial counsel was
ineffective in failing to object to the trial court referring to the prior criminal mischief
conviction as a felony instead of a misdemeanor; and by failing to introduce any
documentation of Morrow's progress in drug and alcohol counseling.
{¶30} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶31} Counsel is unconstitutionally ineffective if his performance is both deficient,
meaning his errors are “so serious” that he no longer functions as “counsel,” and
prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v. Kulbicki,
Guernsey County, Case No. 15 CA 16 16
577 U.S. __, 2015 WL 5774453(Oct. 5, 2015) (citing Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
{¶32} An appellant must demonstrate that he suffered prejudice from his counsel's
performance. See Strickland, 466 U.S. at 691 (“An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment”). To establish prejudice, “[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. To prevail on
his ineffective-assistance claim, an appellant must show, therefore, that there is a
“reasonable probability” that the trier of fact would not have found him guilty.
{¶33} Morrow has failed to establish that he suffered prejudice because of the
failure of counsel to object to the trial court’s reference to his prior criminal record. As we
discussed in our disposition of Morrow’s first assignment of error, the record contains
ample evidence that the trial court did not base the sentence in whole or in part upon
Morrow’s prior criminal history. Rather, the trial court noted that Morrow failed two drug
tests and was charged with domestic violence against his mother while the present case
was pending. (T. May 21, 2015 at 25; 29). The court noted, “while this case was pending
your own conduct with your mother made you prison eligible.” (Id. at 29). Further, the trial
court noted the age of the victims as “[a] twelve year old, two thirteen year olds and a
fourteen year old.” (Id. at 28). Further, the court noted that Morrow has demonstrated a
pattern of drug and alcohol abuse, having a conviction for OVI in January 2013. (Id. at
Guernsey County, Case No. 15 CA 16 17
30). Morrow’s attendance at drug and alcohol treatment during the pendency of the case
was “not consistent.” (Id.).
{¶34} Morrow’s argument that counsel was ineffective because counsel failed to
present verification of his participation in drug and alcohol counsel is likewise
unpersuasive.
{¶35} In the case at bar the probation department verified Morrow’s participation
in the trial court prior to sentencing. T. at 30. The court noted,
There may be a reason you didn’t bring that to the court after I verify
it, because they advise me from Alcohol and Drug Services that your
attendance is not consistent. You have heard the report read. You haven’t
gone very often. So I find your statement that is [sic.] really doing you a lot
of good is not worthy of belief.
T. at 30. As the trial court had the information, Morrow cannot show prejudice from any
failure by counsel to provide the document to the trial court.
{¶36} We find no errors rising to the level of Bradley and Strickland nor any
deficiency in trial counsel's performance that deprived Morrow of a fair hearing.
{¶37} Morrow’s second assignment of error is overruled.
III.
{¶38} In his third assignment of error, Morrow argues that the trial court erred in
sentencing him on all four counts, claiming they were allied offenses requiring merger.
{¶39} 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
Guernsey County, Case No. 15 CA 16 18
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.
{¶40} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, 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
involving separate victims or if the harm that results from each offense is
separate and identifiable.
{¶41} 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
Guernsey County, Case No. 15 CA 16 19
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.
{¶42} In the case at bar, the conduct involved separate victims, as “[a] twelve year
old, two thirteen year olds and a fourteen year old.” (T. at 28). Pursuant to Ruff, Morrow
could be convicted of all four offenses in this case because each of the four counts
involved a separate victim. Accord, State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶27; State v. Parsons, 5th Dist. Fairfield No. 14-CA-63, 2015-Ohio-
5103, ¶40; State v. Gates, 5th Dist. Fairfield No. 14-CA-60, 2015-Ohio-4950, ¶27.
{¶43} Morrow’s third assignment of error is overruled.
Guernsey County, Case No. 15 CA 16 20
{¶44} The judgment of the Guernsey County Court of Common Pleas is affirmed.
By Gwin, J., and
Farmer, P.J., concur;
Hoffman, J., concurs
separately
Guernsey County, Case No. 15 CA 16 21
Hoffman, J., concurring
{¶45} I concur in the majority’s analysis and disposition of Appellant’s second and
third assignments of error.
{¶46} I further concur in the majority’s disposition of Appellant’s first assignment
of error. While I am not persuaded the invited error doctrine applies1, I do find Appellant
waived any alleged error by failing to object to or refute the state of Ohio’s “analogy” to
drug trafficking. Because I concur with the majority’s conclusion Appellant voluntarily
choose to enter his pleas with full knowledge he could be sentenced to prison, I concur
in the decision to overrule Appellant’s first assignment of error.
________________________________
HON. WILLIAM B. HOFFMAN
1While the trial court advised Appellant of the state of Ohio’s intent to analogize his
charges to drug trafficking offenses and further advised Appellant of its policy of
sentencing drug traffickers to prison, the trial court never specifically advised Appellant it
agreed with the state of Ohio’s analogy.