State v. Armstrong

[Cite as State v. Armstrong, 2017-Ohio-8715.]

THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 16AP-410
(C.P.C. No. 14CR-5938)
v. :
(REGULAR CALENDAR)
Clare Armstrong, :

Defendant-Appellant. :

D E C I S I O N

Rendered on November 28, 2017

On brief: Michael DeWine, Attorney General, Anthony J.
Molnar, William C. Greene, and Darcy T. Cook, for appellee.
Argued: Anthony J. Molnar.

On brief: Peterson, Conners, Swisher & Peer LLP, and
Gregory S. Peterson, for appellant. Argued: Gregory S.
Peterson.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Clare Armstrong, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following her entry of an "Alford"1 plea of guilty to one count of forgery.
{¶ 2} On November 7, 2014, appellant was indicted on three counts of forgery, in
violation of R.C. 2913.31(A) (all felonies of the fifth degree), and two counts of tampering
with records, in violation of R.C. 2913.42(A) (both felonies of the third degree). The
indictment alleged in part that appellant had aided and abetted with others in preparing

1 North Carolina v. Alford, 400 U.S. 25 (1970).
No. 16AP-410 2

documents containing the forged signature of Steven L. Hitchens, purporting to verify his
attendance at continuing education courses for nursing home administrators.
{¶ 3} On September 8, 2015, appellant filed a motion to dismiss the indictment,
asserting in part that plaintiff-appellee, State of Ohio, was limited to charging her with
respect to the penalties for fraud found under R.C. Chapter 4751, including the provisions
of R.C. 4751.09 and 4751.99, based on the fact the alleged conduct was related to the
renewal of a nursing home administrator license of appellant's employer, Hitchens. On
September 18, 2015, the state filed a memorandum contra. On February 11, 2016, the trial
court conducted a hearing on the motion. By decision and entry filed February 19, 2016,
the court denied appellant's motion to dismiss the indictment.
{¶ 4} On May 2, 2016, appellant entered an "Alford" plea of guilty to one count of
forgery, in violation of R.C. 2931.31(A), a felony of the fifth degree. The entry of guilty
plea indicated that the parties jointly recommended to the trial court a sentence of
community control. By judgment entry filed May 3, 2016, the trial court imposed a
sentence of three years community control.
{¶ 5} On appeal, appellant sets forth the following two assignments of error for
this court's review:
[I.] THE TRIAL COURT ERRORED IN DENYING
APPELLANT'S MOTION TO DISMISS BASED UPON
COMPREHENSIVE STATUTORY PROCEDURE PROVIDED
BY O.R.C. CHAPTER 4751.

[II.] THE TRIAL COURT ERRORED IN DENYING
APPELLANT'S MOTION TO DISMISS THE INDICTMENT
AS VIOLATING THE DUE PROCESS CLAUSES OF THE
CONSTITUTIONS OF THE UNITED STATES AND STATE
OF OHIO.

{¶ 6} Appellant's two assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant asserts the trial court erred in
denying her motion to dismiss the indictment on both statutory and due process grounds.
{¶ 7} At the outset, we note the state raises an argument as to whether appellant
has preserved the right to appeal the rulings of the trial court as set forth in her
assignments of error. Specifically, the state maintains that appellant waived her right to
No. 16AP-410 3

challenge the trial court's denial of her pre-trial motion to dismiss by entering an Alford
plea of guilty to one count of forgery pursuant to a plea agreement with the state.
{¶ 8} In general, "if a defendant enters a guilty plea, such plea acts as a waiver of
an individual's right to raise most issues on appeal." State v. Benman, 10th Dist. No.
03AP-1012, 2004-Ohio-3935, ¶ 12. See also State v. Legg, 4th Dist. No. 14CA23, 2016-
Ohio-801, ¶ 12 ("a voluntary, knowing, and intelligent guilty plea waives any alleged
constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional
defects in the proceedings").
{¶ 9} As noted under the facts, appellant entered an Alford plea of guilty based on
North Carolina v. Alford, 400 U.S. 25 (1970). This type of plea "is predicated upon the
defendant's desire to obtain a lesser penalty rather than risk the consequences of a jury
trial." Benman at ¶ 12. Ohio courts have "recognized that an Alford plea is 'a species of a
guilty plea, which, in effect, waives a defendant's right to raise most issues on appeal.' "
State v. Gilmer, 6th Dist. No. L-12-1079, 2013-Ohio-3055, ¶ 6, quoting State v. Ware, 6th
Dist. No. L-08-1050, 2008-Ohio-6944, ¶ 12. See also State v. Darks, 10th Dist. No.
05AP-982, 2006-Ohio-3144, ¶ 14, quoting State v. Carter, 124 Ohio App.3d 423, 429 (2d
Dist.1997) ("An Alford plea is 'merely a species of a guilty plea, having the effect of
waiving [a defendant's] right to appeal.' ").
{¶ 10} In arguing appellant waived the right to raise the issues presented on
appeal, the state relies on case law generally holding that a plea of guilty waives a
defendant's ability to challenge the denial of pretrial motions. See, e.g., Huber Heights v.
Duty, 27 Ohio App.3d 244 (2d Dist.1985) (declining to reach merits of trial court's failure
to grant motion to suppress where defendant entered guilty pleas to offenses); State v.
McPherson, 8th Dist. No. 82558, 2004-Ohio-5202, ¶ 5 ("By entering a guilty plea,
defendant waived his right to appeal the court's rulings on pretrial motions."); State v.
Mastice, 2d Dist. No. 10154 (June 8, 1987) (defendant's guilty plea operated as a waiver of
claimed errors by trial court in overruling pretrial motions to suppress evidence and for
separate trials).
{¶ 11} In response to the state's waiver argument, appellant contends the issues
raised in her appeal implicate the trial court's subject-matter jurisdiction which, appellant
notes, cannot be waived. See, e.g., State v. Kremer, 3d Dist. No. 15-05-05, 2006-Ohio-
No. 16AP-410 4

736, ¶ 5 ("Subject matter jurisdiction refers to the authority of the court to hear a matter
and may not be waived.").
{¶ 12} Specifically, appellant argues the trial court lacked subject-matter
jurisdiction to accept the plea in this case based on her contention that the state, pursuant
to R.C. 1.51, could only have charged her with a misdemeanor under a special provision of
R.C. Chapter 4751 (i.e., R.C. 4751.09) rather than with a felony under a general criminal
provision (i.e., forgery under R.C. 2913.31 and/or tampering with records under R.C.
2913.42).2 As such, appellant maintains that her guilty plea did not waive the issue of
whether she could only have been charged under a special statutory provision.
{¶ 13} Even assuming that appellant's Alford plea of guilty did not waive the issues
presented, we find unpersuasive appellant's contention that she could only have been
charged with a misdemeanor under R.C. 4751.09. As indicated, appellant's argument is
predicated on her contention that R.C. Chapter 4751, pertaining to the requirements for
the administration of nursing homes (including licensure), is a special statutory provision
that prevails over conflicting general criminal code provisions.
{¶ 14} In considering the interpretation of statutes "and their application, an
appellate court conducts a de novo review, without deference to the trial court's
determination." State v. Sufronko, 105 Ohio App.3d 504, 506 (4th Dist.1995). Under
Ohio law, "[p]rinciples of statutory construction require that specific statutory provisions
prevail over conflicting general statutes." Id., citing State v. Volpe, 38 Ohio St.3d 191, 193
(1988).
{¶ 15} R.C. 1.51 states as follows:
If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect is
given to both. If the conflict between the provisions is
irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general
provision is the later adoption and the manifest intent is that
the general provision prevail.

2 Under Ohio law, a court of common pleas "has original jurisdiction in felony cases and its jurisdiction is
invoked by the return of an indictment." State v. Hillman, 10th Dist. No. 06AP-1230, 2008-Ohio-2341, ¶ 41.
While appellant challenges whether the state could charge her under a general provision based on her
contention that a more special provision prevails, we do not construe appellant's argument as otherwise
challenging the jurisdiction of the trial court over the charged offenses (i.e., felony fifth-degree forgery and
felony third-degree tampering with records).
No. 16AP-410 5

{¶ 16} In State v. Chippendale, 52 Ohio St.3d 118 (1990), the Supreme Court of
Ohio "provided a framework in which to analyze a conflict between general and special
provisions." State ex rel. Dublin Sec. v. Ohio Div. of Sec., 68 Ohio St.3d 426, 430 (1994).
Specifically, the court in Chippendale held in part:
[I]t is critical in the first instance to determine whether the
statutes upon which the prosecution seeks to proceed are
general, special or local. If the statutes are general and do not
involve the same or similar offenses, then R.C. 1.51 is
inapplicable.

However, if one of the statutes is general and one specific and
they involve the same or similar offenses, we must then ask
whether the offenses constitute allied offenses of similar
import.

To summarize, R.C. 1.51 comes into play only when a general
and a special provision constitute allied offenses of similar
import and additionally do not constitute crimes committed
separately or with a separate animus for each crime. When
this is the case, we must proceed with our analysis of R.C. 1.51.

Id. at 120.

{¶ 17} Thus, a conflict arises "when the same conduct receives different penalties
under two different statutes." State v. Hardy, 2d Dist. No. 27158, 2017-Ohio-7635, ¶ 49.
However, if the offenses "are not allied offenses of similar import they are not
irreconcilable under R.C. 1.51." Id.
{¶ 18} In determining whether offenses are allied offenses of similar import, "the
Ohio Supreme Court held that courts must evaluate 'the conduct, the animus, and the
import.' " State v. Stewart, 10th Dist. No. 16AP-884, 2017-Ohio-7840, ¶ 43, quoting State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. In Ruff, at
paragraph three of the syllabus, the Supreme Court held that, pursuant to R.C.
2941.25(B), "a defendant whose conduct supports multiple offenses may be convicted of
all the offenses if any one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed separately, or
(3) the conduct shows that the offenses were committed with separate animus."
{¶ 19} With respect to the charged offenses in the instant case, R.C. 2913.31 sets
forth the elements of forgery, and states in part as follows:
No. 16AP-410 6

(A) No person, with purpose to defraud, or knowing that the
person is facilitating a fraud, shall do any of the following:

(1) Forge any writing of another without the other person's
authority;

(2) Forge any writing so that it purports to be genuine when it
actually is spurious, or to be the act of another who did not
authorize that act, or to have been executed at a time or place
or with terms different from what in fact was the case, or to be
a copy of an original when no such original existed;

(3) Utter, or possess with purpose to utter, any writing that
the person knows to have been forged.

{¶ 20} Appellant was also charged with (but did not enter a plea to) the offense of
tampering with records, pursuant to R.C. 2913.42, which states as follows:
(A) No person, knowing the person has no privilege to do so,
and with purpose to defraud or knowing that the person is
facilitating a fraud, shall do any of the following:

(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate
any writing, computer software, data, or record;

(2) Utter any writing or record, knowing it to have been
tampered with as provided in division (A)(1) of this section.

{¶ 21} R.C. Chapter 4751 governs nursing home administrators, including
licensing requirements. R.C. 4751.09(A) states that "[n]o person shall * * * [s]ell or
fraudulently obtain or furnish any license, or temporary license, or aid or abet therein."3
{¶ 22} Appellant asserts that R.C. Chapter 4751 sets forth a comprehensive special
statutory procedure, including a provision addressing fraud. Appellant further contends
the offenses set forth in the nursing home licensing statute and the general criminal code
are allied offenses of similar import and were committed with the same animus. Thus,
appellant argues, the trial court erred in denying the motion to dismiss the indictment
charging the more general felony offenses of forgery and tampering with records.

3R.C. 4751.99 sets forth the penalties for a violation of R.C. 4751.09, and states as follows: "Whoever violates
section 4751.02 or 4751.09 of the Revised Code may be fined not more than five hundred dollars for the first
offense; for each subsequent offense such person may be fined not more than five hundred dollars or
imprisoned for not more than ninety days, or both."
No. 16AP-410 7

{¶ 23} In response, the state argues that R.C. 4751.09(A) is not a special or local
provision in relation to the charged offenses, nor are the charged offenses of forgery and
tampering with records allied offenses of similar import with R.C. 4751.09(A). In support
of its argument, the state relies in part on this court's decision in Columbus v. Clark, 10th
Dist. No. 14AP-719, 2015-Ohio-2046.
{¶ 24} In Clark, the appellant was convicted and sentenced in municipal court for
resisting arrest under Columbus General Offenses Code 2321.33. On appeal, the
appellant challenged her conviction, asserting that "principles of statutory construction
require the specific statutory provision that addresses resisting enforcing officials in
traffic situations, City Traffic Code 2109.03, 'prevail' over the general resisting arrest
statute, City General Offenses Code 2321.33, because both sections provide different
penalties for the same conduct." Id. at ¶ 13. The appellant in Clark argued that her
conviction was in violation of the Supreme Court's decision in Volpe, which she cited "for
the rule that '[w]ell-established principles of statutory construction require that specific
statutory provisions prevail over conflicting general statutes.' " Id. at ¶ 17, quoting Volpe
at 193.
{¶ 25} In considering the applicable law and statutes, this court held in part:
We find the character of these two statutes, compared, do not
fit the mold of "general" and "special or local" provisions and,
therefore, do not trigger an analysis under R.C. 1.51. City
General Offenses Code 2321.33 includes the element of
reckless or forceful behavior and the element of lawful arrest,
both which are unnecessary for conviction under City Traffic
Code 2109.03. Even if characterized as a general and a
specific statute, they are not "irreconcilable" and can be
construed "so that effect is given to both." R.C. 1.51.
Specifically, each statute provides a different penalty for a
different course of conduct. * * * City General Offenses Code
2321.33 addresses resisting situations in any context where
the person uses force or acts recklessly, while City Traffic
Code 2109.03 addresses resisting situations in traffic contexts
where the person does not use force or act recklessly. The
slightly harsher penalty attached to City General Offenses
Code 2321.33 reflects a higher degree of culpability attached
to a person's use of force or reckless behavior.

Clark at ¶ 23.
No. 16AP-410 8

{¶ 26} The state argues that, similar to Clark, R.C. 4751.09 does not contain the
same culpability or mens rea required for the charged offenses. We agree.
{¶ 27} As set forth above, R.C. 2913.31 provides in part that "[n]o person, with
purpose to defraud, or knowing that the person is facilitating a fraud, shall * * * [f]orge
any writing so that it purports to be genuine when it is actually spurious," or "[u]tter, or
possess with purpose to utter, any writing that the person knows to have been forged."
(Emphasis added.) Thus, the culpable mental state under R.C. 2913.31 is "purpose" or
"knowing." See also State v. Brown, 2d Dist. No. 10403 (Jan. 20, 1988) ("A necessary
element of forgery is that it be accompanied by a purpose to defraud or the knowledge
that it is facilitating a fraud."). Similarly, tampering with records requires the mental
state of "knowing" and "purpose." See, e.g., State v. Hayes, 7th Dist. No. 07-MA-134,
2008-Ohio-4813, ¶ 67 ("In order to commit a violation of [R.C.] 2913.42(A)(1), the
offender must act knowingly and with the purpose to defraud.").
{¶ 28} By contrast, R.C. 4751.09 does not state a mens rea or culpable mental state.
Under Ohio law, "[s]ituations involving strict liability and statutes that do not discuss
culpability" are addressed under R.C. 2901.21.4 State v. Stansell, 2d Dist. No. 23630,
2010-Ohio-5756, ¶ 15. In this respect, R.C. 2901.21 provides a rule "for determining
whether statutes not specifying any culpable mental state impose strict liability or instead
require some level of culpability, that is, recklessness." State v. Tolliver, 140 Ohio St.3d
420, 2014-Ohio-3744, ¶ 14. Thus, pursuant to the provisions of R.C. 2901.21, where a
statute is silent as to a culpable mental state, the statute "imposes either strict criminal
liability or, at most, requires the state to prove that an accused acted recklessly." State v.
Frey, 166 Ohio App.3d 819, 2006-Ohio-2452, ¶ 17 (4th Dist.). See also State v. Ferguson,
2d Dist. No. 08CA0050, 2011-Ohio-4285, ¶ 27 (noting that where statute "is silent as to
any culpable mental state," and "does not plainly indicate a purpose to impose strict
liability, * * * recklessness is the default culpable mental state that applies").

4 R.C. 2901.21(B) states in part: "When language defining an offense does not specify any degree of
culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the
section, then culpability is not required for a person to be guilty of the offense." R.C. 2901.21(C)(1) states:
"When language defining an element of an offense that is related to knowledge or intent or to which mens
rea could fairly be applied neither specifies culpability nor plainly indicates a purpose to impose strict
liability, the element of the offense is established only if a person acts recklessly."
No. 16AP-410 9

{¶ 29} In the present case, in denying appellant's motion to dismiss, the trial court
determined that the charging statutes had a different mens rea or level of culpability than
R.C. 4751.09. We agree, as the charged offenses set forth a mens rea of purpose or
knowingly, while R.C. 4751.09 implicates a lesser mens rea of recklessness (or is a strict
liability offense that has no mens rea). Moreover, the offense of forgery requires the
forging of a "writing" (or the uttering of a "writing"),5 whereas the plain language of R.C.
4751.09, which proscribes the act of fraudulently obtaining a license, does not require a
writing (or document) with respect to the fraudulent conduct. Thus, a violation of R.C.
4751.09 would not necessarily result in a violation of either R.C. 2913.31 or 2913.42.
{¶ 30} Because the charging statutes do not contain the same mens rea or
culpability as R.C. 4751.09, nor do they prohibit the same conduct, we agree with the state
that they are not allied offenses of similar import. As such, and "[e]ven if categorized as a
general and a specific statute," the statutes at issue are not irreconcilable and "do not
trigger an analysis under R.C. 1.51." Clark at ¶ 23. Accordingly, the trial court did not err
in failing to grant appellant's pretrial motion to dismiss the indictment on statutory
grounds.
{¶ 31} We also find no merit with appellant's contention that the trial court erred
in failing to dismiss the indictment on due process grounds. Appellant points to language
in an administrative application form for annual license renewal which contained a
warning that misrepresentation or falsification on the application may result in
suspension or revocation of a nursing home administrator license. According to
appellant, the state's attempt to impose a more severe criminal consequence than that set
forth in the application was a violation of fundamental due process. We disagree.
{¶ 32} In general, "the decision whether or not to prosecute and what charge to file
or bring" rests within the discretion of the prosecutor. State v. Cecil, 10th Dist. No. 84AP-
999 (Oct. 17, 1985). Accordingly, a prosecutor's "charging discretion" is ordinarily beyond
the purview of appellate review "so long as the complaints and indictments are based on

5 Tampering with records, pursuant to R.C. 2913.42, similarly requires a "writing" or "record." Further,
third-degree tampering with records, as charged in the indictment in the instant case, restricts "the type of
statements proscribed to writings, computer software, data, or records which are kept by a government
entity." State v. Chandler, 11th Dist. No. 2015-T-0033, 2016-Ohio-1017, ¶ 20.
No. 16AP-410 10

the statutory elements of the offense." State v. Ziegelhofer, 6th Dist. No. WD-02-038,
2003-Ohio-1404, ¶ 12.
{¶ 33} The fact that a defendant's conduct may violate more than one statute "does
not force the state to prosecute [such defendant] under the lesser statute." State v.
Cooper, 66 Ohio App.3d 551, 553 (4th Dist.1990). Further, the fact that a prosecutor
"may be influenced by the penalties available upon conviction, * * * standing alone, does
not give rise to a violation of the * * * Due Process Clause." United States v. Batchelder,
442 U.S. 114, 125 (1979). Nor is the state "required to proceed against a defendant under
a specific statute where the specific and general statute 'each provides a different penalty
for a different course of conduct' and are therefore reconcilable." Clark at ¶ 19, quoting
State v. Culwell, 10th Dist. No. 96APA04-504 (Nov. 26, 1996).
{¶ 34} In the instant case, appellant does not contend she did not have fair notice
of the charged offenses under the indictment. Further, we have previously noted that R.C.
4751.09 and the charging statutes do not prohibit identical conduct. We also find
unpersuasive appellant's contention that, based on her reliance on warning language on
an application form pertaining to licensed nursing home administrators, she could not
have been aware that a scheme to forge (0r conspire to forge) attendance records could
subject her to criminal liability under Ohio's felony forgery statute. Even accepting that
appellant relied on language set forth in an administrative application form as somehow
limiting her potential criminal liability, appellant cites no authority for the proposition
that the state was estopped, on due process grounds, from pursuing a prosecution for
forgery (or complicity to commit forgery) under such circumstances. On review, the trial
court did not err in failing to grant the motion to dismiss the indictment as violative of
due process.
{¶ 35} Based on the foregoing, appellant's first and second assignments of error
are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.

TYACK, P.J., and LUPER SCHUSTER, J., concur.

_______________________