State v. Thomas

[Cite as State v. Thomas, 2018-Ohio-1081.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 105375

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ANTHONY R. THOMAS

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-601429-A

BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.

RELEASED AND JOURNALIZED: March 22, 2018
ATTORNEY FOR APPELLANT

Anna Markovich
Law Office of Anna Markovich
18975 Villaview Road, #3
Cleveland, Ohio 44119

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Jillian Eckart
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Anthony Thomas (“appellant”), brings the instant appeal

challenging his convictions and the trial court’s sentence for robbery, abduction, and drug

possession. Specifically, appellant argues that his guilty plea was not knowingly, intelligently,

and voluntarily entered due to ineffective assistance of trial counsel; the trial court abused its

discretion in failing to sua sponte vacate appellant’s guilty plea; the trial court abused its

discretion in denying his postsentence motion to withdraw his guilty plea; and the trial court

erred by imposing consecutive sentences on allied offenses of similar import. After a thorough

review of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} On November 21, 2015, appellant attacked a physically disabled victim who was

riding on an RTA train. Appellant pulled the victim from his seat, dragged the victim across the
floor of the train, and removed the victim from the train onto a platform outside. During the

struggle, the victim lost his cell phone and the victim’s prosthetic leg became detached.

{¶3} On December 2, 2015, in Cuyahoga C.P. No. CR-15-601429-A, the Cuyahoga

County Grand Jury returned a six-count indictment charging appellant with (1) robbery, a

second-degree felony in violation of R.C. 2911.02(A)(2); (2) robbery, a third-degree felony in

violation of R.C. 2911.02(A)(3); (3) theft, a fifth-degree felony in violation of R.C.

2913.02(A)(1), with a furthermore specification alleging that the victim is an elderly person or

disabled adult and that the property or services stolen is valued at less than $1,000; (4)

kidnapping, a first-degree felony in violation of R.C. 2905.01(B)(2); (5) drug possession, a

fifth-degree felony in violation of R.C. 2925.11(A); and (6) illegal conveyance into a detention

facility, a third-degree felony in violation of R.C. 2921.36(A)(2). Appellant was arraigned on

December 7, 2015; he pled not guilty to the indictment.

{¶4} The parties reached a plea agreement. On March 2, 2016, appellant pled guilty to

robbery, as charged in Count 1 of the indictment, abduction, a third-degree felony in violation of

R.C. 2905.02(A)(1), as amended in Count 4, and drug possession, as charged in Count 5 of the

indictment. The remaining counts were nolled. The trial court ordered a presentence

investigation report and screening to determine whether appellant was eligible for placement in a

community-based correctional facility program (“CBCF”). On the same day, appellant also

pled guilty in Cuyahoga C.P. No. CR-15-600864-A to attempted drug possession, a first-degree

misdemeanor in violation of R.C. 2923.02 and 2925.11(A).

{¶5} The trial court held a sentencing hearing on March 29, 2016. During the

sentencing hearing, the trial court viewed video surveillance footage from the RTA train of

appellant’s encounter with the victim.
 {¶6} After hearing statements from defense counsel, appellant, the victim, and the

prosecutor, and after viewing the video of the incident, the trial court imposed a prison sentence

of two years and nine months: two years on Count 1, nine months on Count 4, and six months

on Count 5. The trial court ordered appellant to serve Counts 1 and 4 consecutively; the trial

court ordered Count 5 to run concurrently. The trial court ordered appellant to serve his

two-year and nine-month prison sentence consecutively with his 60-day sentence in

CR-15-600864-A.

{¶7} On June 15, 2016, appellant filed a pro se motion to withdraw his guilty plea.

Therein, he asserted that (1) he pled guilty because counsel advised him that he would be

sentenced to CBCF, (2) he did not see the videotape from the RTA train that captured the

incident, and (3) the video footage clearly shows that he was actually innocent. Thus, appellant

requested to withdraw his guilty plea and enter a plea of not guilty. The state filed a brief in

opposition on June 22, 2016. On July 13, 2016, the trial court denied appellant’s motion to

withdraw his guilty plea without holding a hearing.

{¶8} On August 11, 2016, appellant filed a pro se motion to reconsider his plea

withdrawal request. Therein, appellant appeared to argue that the state violated the terms of the

plea agreement because he was not sentenced to CBCF, and that the video footage from the RTA

train demonstrated that he was actually innocent. The state opposed appellant’s motion for

reconsideration on August 16, 2016. The trial court denied appellant’s motion for

reconsideration on August 16, 2016.

{¶9} On October 11, 2016, appellant filed a pro se motion to compel the trial court to

issue findings of fact and conclusions of law regarding its denial of his motion to withdraw his

guilty plea and motion for reconsideration. The trial court denied the motion to compel on
October 19, 2016.

{¶10} On December 29, 2016, appellant filed a petition for postconviction relief.

Therein, appellant appeared to argue that the common pleas court lacked subject matter

jurisdiction over the criminal proceedings.

{¶11} On December 30, 2016 and January 3, 2017, appellant filed petitions to vacate or

set aside the judgment of conviction or sentence. In both petitions, appellant appeared to argue

again that the common pleas court lacked subject matter jurisdiction over the criminal

proceedings. The state filed a brief in opposition to appellant’s petitions on January 9, 2017.

The trial court denied appellant’s petitions to vacate or set aside judgment on February 13, 2017.

{¶12} On January 17, 2017, appellant filed the instant appeal. He assigns four errors for

review:

I. Appellant’s guilty plea to robbery was not voluntary and knowing due to
ineffective assistance of counsel.

II. The trial court abused its discretion in failing to vacate sua sponte appellant’s
guilty plea to robbery when the trial court became aware at the sentencing that
appellant did not commit this offense.

III. The trial court abused its discretion in denying appellant’s post-sentence
motion to withdraw his guilty plea without having an evidentiary hearing.

IV. The trial court erred by convicting and sentencing appellant to consecutive
sentences on allied offenses of similar import.

II. Law and Analysis

A. Guilty Plea

{¶13} Appellant’s first, second, and third assignments of error pertain to his guilty plea

on the robbery count.
 1. Ineffective Assistance of Counsel

{¶14} In his first assignment of error, appellant argues that his guilty plea on the robbery

count was not knowingly and voluntarily entered because his trial counsel provided ineffective

assistance.

{¶15} In order to establish a claim of ineffective assistance of counsel, a defendant must

demonstrate that (1) counsel’s performance fell below an objective standard of reasonable

representation, and (2) the defendant was prejudiced by that deficient performance. Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is

established when the defendant demonstrates “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.” Strickland at

694.

{¶16} A defendant’s failure to prove either prong of the Strickland two-part test makes it

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378,

388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court need not

determine whether counsel’s performance was deficient before examining the prejudice suffered

by the defendant as a result of the alleged deficiencies. * * * If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course should be

followed.” Strickland at id.

A claim of ineffective assistance of counsel is waived by a guilty plea, except to
the extent that the ineffective assistance of counsel caused the defendant’s plea to
be less than knowing, intelligent and voluntary. State v. Williams, 8th Dist.
Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Spates, 64 Ohio
St.3d 269, 272, 595 N.E.2d 351 (1992), citing Tollett v. Henderson, 411 U.S. 258,
267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Where a defendant has entered a
guilty plea, the defendant can prevail on an ineffective assistance of counsel claim
 only by demonstrating that there is a reasonable probability that, but for counsel’s
deficient performance, he would not have pled guilty to the offenses at issue and
would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie, 62
Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52,
106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.).

The prejudice inquiry in the context of a guilty plea requires a “nuanced analysis
of all of the factors surrounding the plea decision,” including the benefits
associated with a plea, the possible punishments involved, the weight of the
evidence against the defendant and any other special circumstances that might
support or rebut a defendant’s claim that he would have taken his chances at trial.

State v. Mays, 8th Dist. Cuyahoga No. 103785, 2016-Ohio-7481, ¶ 26, quoting State v. Ayesta,

8th Dist. Cuyahoga No. 101383, 2015-Ohio-600, ¶ 16.

{¶17} In the instant matter, appellant appears to argue that counsel’s performance was

deficient because counsel advised him to plead guilty to robbery despite the fact that the video of

the incident demonstrated that appellant was actually innocent. Appellant further asserts that

counsel failed to show him the video before the change of plea hearing and that he did not know

that the video “show[ing] that he was innocent of [the robbery] offense” existed. Appellant’s

brief at 5. Appellant contends that had he seen this video, he would not have pled guilty and

would have elected to proceed to trial.

{¶18} Initially, we note that appellant’s arguments are premised entirely on the

assumption that the video of the incident unequivocally shows that he did not commit the offense

of robbery. Appellant pled guilty to robbery in violation of R.C. 2911.02(A)(2), which

provides, in relevant part, “[n]o person, in attempting or committing a theft offense * * * shall * *

* [i]nflict, attempt to inflict, or threaten to inflict physical harm on another[.]” (Emphasis

added.)
 {¶19} Appellant emphasizes that the video does not show him taking or stealing anything

from the victim. The video shows that appellant and the victim had an initial encounter while

the train was moving. After this initial encounter, appellant walked to the other end of the train.

{¶20} Appellant approached the victim a second time while the train was still moving.

Appellant waited for the train to stop and the doors to open, at which point he physically engaged

the victim who was seated with his backpack.

{¶21} Even if, as appellant asserts, the video does not show him taking or stealing

anything from the victim, we find that appellant’s actions can be reasonably interpreted as an

attempt to steal the victim’s belongings. Appellant was holding what appeared to be an

umbrella in his right hand, and he pointed the umbrella at the victim several times during both

encounters. The umbrella was in appellant’s hand when he forcibly removed the victim from

his seat, dragged him across the floor of the train, and pulled him onto the platform outside of the

train.

{¶22} During both encounters, the victim was sitting down with his bag or backpack.

The victim’s bag was either directly next to him on the seat, or partially underneath the victim.

The victim appeared to be guarding his bag during the encounters with appellant.

{¶23} It is possible that appellant contemplated removing the victim from the train and

staying on the train with the victim’s backpack, but was unable to do so when the victim

struggled to stay in his seat and on the train, which caused a commotion that attracted the

attention of the other passengers. It is possible that appellant contemplated grabbing the

victim’s bag and jumping off the train, but was unable to do so based on the way that the victim

was guarding the bag. It is possible that appellant intended to rob the victim, but changed his

mind when the victim did not comply and one of the passengers on the train alerted the police.
Accordingly, we find that appellant’s actions during the incident can certainly be construed as an

attempt to rob the victim.

{¶24} Furthermore, during the sentencing hearing, the victim asserted that he was certain

that appellant’s objective in attacking him was to grab and take his belongings. The victim

explained that he did, in fact, lose his cell phone during the struggle with appellant and opined

that he would have also lost his wallet but for the fact that he had it hidden.

{¶25} Although appellant suggests that he did not see the video of the incident until it

was played during the sentencing hearing, appellant did not allege that he had not seen the video

or that counsel failed to inform him of the video after it was played in open court. Furthermore,

after the video was played in open court, appellant did not protest his innocence or orally move to

withdraw his guilty plea.

{¶26} The record reflects that the state produced the video on December 22, 2015, in its

response to defense counsel’s request for discovery. Appellant did not plead guilty until more

than two months later.

{¶27} After reviewing the record, we cannot say that appellant’s counsel’s representation

fell below an objective standard of reasonableness. The record reflects that counsel advocated

on appellant’s behalf in an effort to negotiate a favorable plea agreement. Appellant’s counsel

did, in fact, negotiate a favorable plea agreement for appellant under which two third-degree

felonies and a fifth-degree felony were nolled, and the first-degree felony kidnapping count was

amended to third-degree felony abduction.

{¶28} We cannot say that counsel provided ineffective assistance by recommending that

appellant plead guilty rather than proceeding to trial. After the parties exchanged discovery and

defense counsel reviewed the state’s evidence against appellant, including the video of the
incident, defense counsel could have reasonably determined that appellant’s actions supported

the elements of the robbery offense and that appellant was better off pleading guilty than taking

his chances at trial.

{¶29} We find no merit to appellant’s assertion that his plea was not knowingly and

voluntarily entered. The record reflects that the trial court fully complied with Crim.R. 11 in

ensuring that appellant’s guilty plea was knowingly, intelligently, and voluntarily entered.

When appellant informed the trial court about the medication that he takes, the trial court

confirmed that the medication did not affect appellant’s ability to understand the nature of the

proceedings. Appellant confirmed that he was thinking clearly, no one had threatened him to

enter the plea or promised him anything specific if he pled guilty, and that he was entering the

plea voluntarily.

{¶30} The trial court advised appellant of his constitutional rights and explained that he

was waiving these rights by pleading guilty. The trial court advised appellant of the nature of

the charges and the potential penalties. The trial court explained that the robbery, abduction,

and drug possession offenses were not allied offenses of similar import, and thus, they would not

merge for sentencing purposes. Finally, the trial court confirmed that appellant had enough time

with counsel and that he was satisfied with counsel’s representation.

{¶31} Based on the foregoing analysis, appellant cannot demonstrate a reasonable

probability that but for counsel’s alleged deficient performance, he would not have pled guilty to

robbery and instead would have insisted on going to trial. Appellant’s first assignment of error

is overruled.

2. Sua Sponte Vacating Plea

{¶32} In his second assignment of error, appellant argues that the trial court abused its
discretion by failing to vacate, sua sponte, his guilty plea on the robbery count after viewing the

video of the incident. Appellant argues that the trial court should have sua sponte vacated his

guilty plea on the robbery count pursuant to Crim.R. 32.1 to correct a manifest injustice. He

asserts that the video demonstrated that he did not commit the offense of robbery, and that the

video footage, coupled with his statement at sentencing that he did not intend to rob the victim,

should have “alerted” the trial court that his guilty plea on the robbery count was invalid. We

disagree.

{¶33} As an initial matter, we note that appellant did not assert that he did not intend to

rob the victim during the sentencing hearing. Appellant’s brief states that during the sentencing

hearing, he “mentioned that he ‘did not mean’ to rob the victim.” Appellant’s brief at 6. This

assertion is taken out of context. Appellant did not assert that he did not mean to rob the victim

— he asserted, “I really didn’t mean that[,]” referring generally to the incident in its entirety,

rather than his intent with respect to the robbery count. (Emphasis added.) (Tr. 49.)

{¶34} In support of his argument that the trial court should have sua sponte vacated his

guilty on the robbery charge, appellant directs this court to the trial court’s description of the

video footage. After viewing the video, the trial court stated:

The record should reflect that the Court did, in fact, review the videotape of the
incident on the RTA train just now during the sentencing and so the Court got a
good look at the specifics of this incident and should describe it as the defendant
— basically, [the victim] was minding his own business seated on the RTA train
and [appellant] approached him twice, initially just must have said something to
him, went to a different place on the train, came back and physically went at [the
victim] and grabbed him and started pulling him from his seat.

[The victim] is clear on the tape was trying to hold onto the seat to avoid being
dragged out by [appellant]. [The victim] was unable to maintain his position on
the seat as [appellant] overpowered him, pulled him from the seat, pulled him on
to the floor of the train and then out the door onto the platform. And during that
process, [the victim’s] prosthetic leg came off as well. That’s clearly seen in the
 video.

And so the Court just wanted to place that on the record in terms of part of the
basis for the sentencing associated with [appellant].

(Tr. 55-56.)

{¶35} Appellant appears to suggest that the trial court should have vacated his guilty plea

on the robbery count because the court did not specifically describe observing a robbery in the

video. Appellant’s argument is misplaced.

{¶36} As noted above, the robbery offense to which appellant pled guilty requires the

offender to commit or attempt to commit a theft offense. Furthermore, appellant fails to

consider the victim’s statement during the sentencing hearing. The victim asserted that he was

certain that appellant’s objective in attacking him was to grab and take his belongings. The

victim informed the trial court that he lost his cell phone during the struggle with appellant.

The victim appeared to suggest that appellant would have taken his wallet but for the fact that it

was “hidden.” (Tr. 53.) Appellant also fails to consider the prosecutor’s statement at

sentencing. The prosecutor asserted that appellant was trying to rob the victim. (Tr. 55.)

The trial court indicated that it considered the oral statements, including the victim’s and the

prosecutor’s statements, made during the sentencing hearing.

{¶37} Based on the foregoing analysis, we cannot say that the trial court abused its

discretion in failing to vacate, sua sponte, appellant’s guilty plea on the robbery count.

Appellant’s second assignment of error is overruled.

3. Evidentiary Hearing

{¶38} In his third assignment of error, appellant argues that the trial court abused its

discretion by denying his postsentence motion to withdraw his guilty plea without holding an
evidentiary hearing.

{¶39} A trial court is not required to hold a hearing on every postsentence motion to

withdraw a guilty plea. State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818, ¶

11, citing State v. Chandler, 10th Dist. Franklin No. 13AP-452, 2013-Ohio-4761, ¶ 7. “A

hearing is required only if the facts alleged by the defendant, accepted as true, would require that

the defendant be allowed to withdraw the plea.” Vihtelic at id., citing Chandler at id., and State

v. Rodriguez, 8th Dist. Cuyahoga No. 103640, 2016-Ohio-5239, ¶ 23. We review a trial court’s

decision whether to hold a hearing on a postsentence motion to withdraw a guilty plea for an

abuse of discretion. Vihtelic at id.

Under Crim.R. 32.1, a defendant who seeks to withdraw a plea of guilty after the
imposition of sentence has the burden of establishing the existence of manifest
injustice. A manifest injustice is a fundamental flaw in the proceedings that
results in a miscarriage of justice or is inconsistent with the requirements of due
process. State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶ 13.
This heightened standard is in place because “a defendant should not be
encouraged to plead to test the potential punishment and withdraw the plea if the
sentence is unexpectedly severe.” Cleveland v. Jaber, 8th Dist. Cuyahoga Nos.
103194 and 103195, 2016-Ohio-1542, ¶ 18.

State v. Colon, 8th Dist. Cuyahoga No. 104944, 2017-Ohio-8478, ¶ 7. The determination of

whether a defendant has demonstrated a manifest injustice is left to the sound discretion of the

trial court. Colon at ¶ 9, citing State v. Blatnik, 17 Ohio App.3d 201, 204, 478 N.E.2d 1016

(6th Dist.1984), State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the

syllabus, and Jaber at ¶ 17. We review a trial court’s determination of whether a defendant

demonstrated a manifest injustice for an abuse of discretion. Colon at id., citing Blatnik at 202.

{¶40} In the instant matter, appellant argues that he should have been permitted to

withdraw his guilty plea because (1) he did not see the video of the incident before pleading

guilty, (2) the video demonstrated that he did not commit the offense of robbery because he did
not attempt to rob the victim and did not take anything from the victim, (3) had he seen the video

of the incident, he would not have pled guilty, and (4) defense counsel promised that he would be

placed in the CBCF program if he pled guilty. Appellant further asserts that “[i]f defense

counsel failed to show the video to [him], his plea was invalid because it was not knowing and

voluntary.” Appellant’s brief at 9.

{¶41} After reviewing the record, we find that appellant failed to meet his burden of

demonstrating the existence of a manifest injustice. As noted above, when the video of the

incident was played during the sentencing hearing, appellant did not allege that he had not seen

the video or that counsel failed to inform him that the video existed. Furthermore, appellant did

not protest his innocence or orally move to withdraw his guilty plea after viewing the video.

{¶42} We find no merit to appellant’s argument that the video “show[ed] that [he] did not

commit robbery[.]” Appellant’s brief at 7. Even if, as appellant asserts, the video revealed

that “he did not steal or take anything from the victim,” appellant’s conduct during the incident

can be reasonably interpreted as an attempt to do so.

{¶43} Appellant’s assertion that his counsel promised that he would be placed in the

CBCF program if he pled guilty is unsupported by the record. During the change of plea

hearing, when the trial court asked appellant if “anyone promised you anything specifically if you

enter your plea,” appellant confirmed that no one promised him anything specific. (Tr. 17.)

Furthermore, appellant confirmed that he was entering the plea voluntarily.

{¶44} During the change of plea hearing, the trial court advised appellant about the nature

of the charges against him and the potential penalties. Regarding the second-degree felony

robbery offense charged in Count 1, the trial court advised appellant that there was a presumption

in favor of prison. When appellant’s counsel requested a CBCF referral at the close of the
change of plea hearing, the trial court explained that counsel’s request for CBCF does not

guarantee placement in CBCF. (Tr. 39.) During the sentencing hearing, defense counsel

acknowledged that the CBCF referral concluded that appellant was “high risk.” (Tr. 48.)

{¶45} Even if appellant’s counsel had, in fact, led appellant to believe that he would be

placed in the CBCF program, this court has held that “a lawyer’s mistaken prediction about the

likelihood of a particular sentence is insufficient to demonstrate ineffective assistance of

counsel.” State v. Durrette, 8th Dist. Cuyahoga No. 104050, 2017-Ohio-7314, ¶ 17, citing State

v. Bari, 8th Dist. Cuyahoga No. 90370, 2008-Ohio-3663, ¶ 11, and State v. Williams, 8th Dist.

Cuyahoga No. 88737, 2007-Ohio-5073.

{¶46} Finally, in his motion to withdraw his guilty plea, appellant asserted that he only

spoke with his attorney two times while he was in jail. However, during the change of plea

hearing, appellant confirmed that he had enough time with counsel and that he was satisfied with

counsel’s representation.

{¶47} Appellant has not alleged any facts that could reasonably support the conclusion

that withdrawal of his guilty plea was necessary to correct a manifest injustice. Accordingly,

the trial court did not abuse its discretion in denying appellant’s postsentence motion to withdraw

his guilty plea without a hearing. Appellant’s third assignment of error is overruled.

B. Sentence

{¶48} In his fourth assignment of error, appellant argues that the trial court erred by

imposing consecutive sentences on his robbery and abduction convictions because they are allied

offenses of similar import.

R.C. 2941.25(A) allows only a single conviction for conduct that constitutes
“allied offenses of similar import.” However, under 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 offenses are dissimilar in
import or significance, i.e., each offense caused separate, identifiable harm, (2) the
offenses were committed separately or (3) the offenses were committed with
separate animus or motivation. State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892, ¶ 13, 25, 31.

State v. Bridges, 8th Dist. Cuyahoga No. 105547, 2017-Ohio-8579, ¶ 21.

{¶49} Initially, we note that the record reflects that appellant waived any allied offenses

issue. During the change of plea hearing, the trial court stated that the robbery, abduction, and

drug possession counts were not allied offenses of similar import, and thus, they would not

merge for sentencing purposes. Both the prosecution and defense counsel agreed. (Tr. 29.)

Furthermore, during the sentencing hearing, the prosecution argued that the robbery and

abduction counts were separate acts that should not merge for sentencing purposes. The trial

court agreed with the state’s argument that the robbery and abduction counts should not merge

for sentencing purposes because they were not allied offenses of similar import. “Where the

transcript demonstrates that the state and defense counsel agreed that offenses were not allied, the

issue of allied offenses is waived.” Bridges at ¶ 22, citing State v. Allison, 8th Dist. Cuyahoga

No. 105212, 2017-Ohio-7720, ¶ 32, and State v. Black, 2016-Ohio-383, 58 N.E.3d 561, ¶ 18 (8th

Dist.).

{¶50} Even if appellant had not waived the issue of allied offenses, no objection was

raised when the trial court imposed a sentence on both the robbery and abduction counts. Thus,

appellant has forfeited all but plain error. See State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, ¶ 3, 21 (a defendant who fails to raise an allied offense issue in

the trial court forfeits all but plain error); State v. Clarke, 8th Dist. Cuyahoga No. 105047,

2017-Ohio-8226, ¶ 26-27. “A forfeited error is not reversible error unless it affected the

outcome of the proceedings and reversal is necessary to correct a manifest miscarriage of
justice.” State v. Amison, 8th Dist. Cuyahoga No. 104728, 2017-Ohio-2856, ¶ 4. If a

defendant fails to raise the issue of allied offenses at the trial court level, “the burden is solely on

that defendant, not on the state or the trial court, to ‘demonstrate a reasonable probability that the

convictions are for allied offenses of similar import committed with the same conduct

and without a separate animus.’” State v. Locke, 8th Dist. Cuyahoga No. 102371,

2015-Ohio-3349, ¶ 20, quoting Rogers at ¶ 3.

{¶51} In the instant matter, we cannot say that the trial court committed plain error in

failing to merge the robbery and abduction counts for sentencing purposes because the offenses

caused separate, identifiable harm. The resulting harm of the robbery offense was the victim’s

loss of his cell phone. Regarding the abduction offense, the victim explained that he was

devastated and horrified by appellant’s actions of pulling him from his seat, dragging him across

the floor of the train while he attempted to hold on, and removing him from the train onto the

platform outside.

{¶52} Based on the foregoing analysis, we find that the trial court did not err when it did

not merge the robbery and abduction counts and imposed consecutive sentences for the two

offenses of dissimilar import. Accordingly, appellant’s fourth assignment of error is overruled.

III. Conclusion

{¶53} After thoroughly reviewing the record, we find that appellant was not denied his

constitutional right to the effective assistance of counsel, and appellant failed to demonstrate a

reasonable probability that but for counsel’s alleged deficient performance, he would not have

pled guilty to robbery and instead would have insisted on going to trial. The trial court did not

abuse its discretion in failing to vacate, sua sponte, appellant’s guilty plea on the robbery count.

The trial court did not abuse its discretion in denying appellant’s postsentence motion to
withdraw his guilty plea without a hearing. The trial court did not err by imposing consecutive

sentences on the robbery and abduction counts.

{¶54} Judgment affirmed.

It is ordered that appellee recover from 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 common pleas

court to carry this judgment into execution. The defendant’s convictions having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, SR., J., CONCUR