State v. Novoa

[Cite as State v. Novoa, 2021-Ohio-3585.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ARTURO NOVOA,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0073

Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 18 CR 850

BEFORE:
Cheryl L. Waite, Carol Ann Robb, Judges and Judge Stephen W. Powell, Judge of the
Twelfth District Court of Appeals, Sitting by Assignment.

JUDGMENT:
Affirmed in part. Reversed in part.
Sentence Vacated. Remanded in part.

Atty. Dave Yost, Ohio Attorney General, and Atty. Daniel Kasaris, Senior Assistant
Attorney General and Special Assistant Mahoning County Prosecutor, 615 West Superior
Ave , 11th Floor, Cleveland Ohio 44113, for Plaintiff-Appellee
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Atty. Louis M. Defabio, 4822 Market Street, Suite 220, Youngstown, Ohio 44512, for
Defendant-Appellant.

Dated: September 30, 2021

WAITE, J.

{¶1} Appellant, Arturo Novoa, a.k.a. Anthony Gonzalez, appeals his convictions

and sentences entered in the Mahoning County Court of Common Pleas. Appellant

contends that his guilty plea was not made in a knowing, intelligent and voluntary fashion

because he claims the trial court failed to inform him of the aggregate maximum sentence

that could be imposed. He also argues his convictions and sentences violate his rights

under the Double Jeopardy Clause of both the Ohio and U.S. Constitutions. Finally,

Appellant argues the trial court erred in imposing consecutive sentences. For the

following reasons, Appellant’s assignments relating to his guilty plea and convictions are

without merit and his convictions are affirmed. However, it was error for the trial court to

sentence Appellant on all offenses, as some offenses merged for sentencing purposes.

Consequently, we remand to the trial court for resentencing on these offenses, for the

state to elect on which offenses Appellant is to be sentenced.

Factual and Procedural History

{¶2} Appellant met the victim, Shannon Graves (“Graves”), in April of 2016. They

moved in together in September, 2016 at a home located on Mahoning Avenue in

Youngstown. Their relationship was tumultuous and Appellant was known to be

physically violent toward Graves. In December of 2016 the relationship ended. Appellant

then moved in with his co-defendant, Katrina Layton (“Layton”). But one week later,

Appellant moved back into the Mahoning Avenue home with Graves.

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{¶3} The relationship continued to be volatile. On February 24, 2017, Appellant

bludgeoned Graves to death in the bathroom of their home. Afterward, Appellant

engaged in a drawn-out and somewhat gruesome attempt at trying to destroy the

evidence of Graves’ murder, involving multiple locations over a period of several months.

He first shaved Graves’ head. He then wrapped Graves’ body in garbage bags and

Appellant and Layton placed Graves in the trunk of her car. They drove the body to

Layton’s home on Shields Road where Appellant and another co-defendant, Andrew

Herrmann (“Herrmann”), dismembered Graves’ body in the garage. Appellant and

Hermann removed Graves’ arms, legs and head from her torso. They placed her arms

and legs in a storage tote or bin and placed her head and torso in a second bin. The bins

were transported back to the Mahoning Avenue property sometime between March 1 and

March 11, 2017. The bins containing Graves’ dismembered body were placed in a freezer

at the Mahoning Avenue home.

{¶4} On March 1, 2017, Appellant contacted a friend who resided on Sherwood

Avenue in Youngstown and asked if he could have a bonfire at his friend’s house.

Appellant and Layton brought Graves’ personal belongings, including clothing, papers,

her hair, and a bracelet with the name “Shannon” on it, and burned them in a large bonfire

at the Sherwood location. At one point, the fire became so large that the fire department

arrived to investigate. The following day, the occupants of the Sherwood address went

out to the area where the fire had been raging. They were concerned because they had

seen Appellant and Layton removing things from bags and totes and putting them in the

fire. They found the bracelet, and then dug the ashes out of the fire pit and put them in a

laundry basket, which was later recovered by the police during the investigation.

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{¶5} Appellant and Layton ordered 12 gallons of sulfuric acid from Wal-Mart

using the name “Chicken Man”. The sulfuric acid was shipped to the Wal-Mart store in

Boardman, Ohio and picked up by Appellant and Layton on March 11, 2017. Because

the order was placed under the name “Chicken Man” instead of a named person, the Wal-

Mart employee refused to tender the acid without identification. Layton showed her

identification and used her credit card to pay for the acid. Appellant and Layton took the

acid back to the Mahoning Avenue home where they poured all 12 gallons into the bin

containing Graves’ head and torso. Most of her torso and skull dissolved in the acid. The

portion of Graves’ skull that remained was placed in the freezer along with her arms and

legs at the Mahoning Avenue home. Her body remained in this freezer until June of 2017.

{¶6} In the intervening months, Graves’ family continued to inquire of Appellant

about Graves’ whereabouts. Appellant, Layton and Layton’s two children moved into the

Mahoning Avenue home and began driving Graves’ car. They also used Graves’ WIC

card several times. Appellant repeatedly told Graves’ family and others that Graves had

moved to Cleveland with one man and then to Columbus with another man. The family

became increasingly suspicious after several months passed and Graves failed to

communicate with her family. The family also discovered that Graves’ dog was still at the

Mahoning Avenue residence which caused alarm, because the family strongly felt that

Graves would never leave her dog.

{¶7} On April 29, 2017, Appellant was seen by an officer of the Youngstown

Police Department committing a traffic offense. When the officer attempted to affect the

traffic stop, Appellant fled in his vehicle. The officer gave chase and Appellant abandoned

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the vehicle and fled on foot. He was tasered, arrested, and charged with fleeing and

eluding. Appellant was released on bond.

{¶8} On June 22, 2017, Graves’ sister, Debbie DePaul, filed a missing person

report with the Youngstown Police Department. DePaul and Graves’ former fiancé began

to look for Graves. Appellant became aware of this and became concerned that police

would search the Mahoning Avenue home. (Sentencing Tr., p. 24.) Layton rented a

bottom floor apartment in a house on Ravenwood Avenue in Youngstown. Appellant

purchased a second freezer at a Wal-Mart store on Belmont Avenue in Youngstown which

they took to the Ravenwood apartment. Appellant removed Graves’ body from the freezer

on Mahoning Avenue, again placed the remainder of her body in the trunk of Graves’ car,

and transported it to the Ravenwood apartment, where he placed the remains in the

second freezer. A short time later, the landlord of the Ravenwood apartment contacted

Layton inquiring as to why no one had moved into the apartment. The only property in

the apartment was the freezer, the warranty booklet for the freezer, and a black suitcase.

{¶9} Around this time the Youngstown Police Department executed a search

warrant at the Mahoning Avenue home. Again becoming nervous about being detected,

Appellant contacted a friend and told him that Appellant’s electricity was out in his home

and that he needed a place to store his freezer full of meat. His friend agreed to store

Appellant’s freezer at his house on Devitt Avenue in Campbell, Ohio. Appellant and two

of his friends took the freezer from the Ravenwood apartment to his friend’s house at

approximately 3:00 a.m. the next morning. A short time later, Appellant’s friend decided

to open the freezer and help himself to some of the meat supposedly contained in the

freezer. A lock had been placed on the freezer, but it was installed upside down, enabling

Case No. 19 MA 0073
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the lock to be fairly easily opened. When Appellant’s friend opened the freezer, he found

a bag containing Graves’ remains.

{¶10} On September 21, 2017, Appellant and a number of co-defendants were

indicted by the Mahoning County Grand Jury in Case No. 17 CR 856. Appellant was

indicted on five felony offenses: aggravated murder in violation of R.C. 2903.01(B), an

unclassified felony; murder in violation of R.C. 2903.02(A)(D), an unclassified felony;

tampering with evidence in violation of R.C. 2921.12, a felony of the third degree;

obstruction of justice a violation of R.C. 2921.32, a felony of the third degree; and abuse

of a corpse in violation of R.C. 2927.01, a felony of the fifth degree. Mahoning County

Case No. 17 CR 856 was dismissed on October 24, 2018, after Appellant was reindicted

(in Mahoning County Case No. 18 CR 850) for the offenses that are the subject of the

instant appeal.

{¶11} On August 30, 2018, Appellant and his co-defendants were indicted by the

Mahoning County Grand Jury in Case No. 18 CR 850 on multiple charges. For clarity

and because of the relevance to Appellant’s assignments of error, the charges against

Appellant are set forth in the chart below:

Count Charge Details

1 Aggravated murder (unclassified)

2 Murder (unclassified)

3 Tampering with evidence Placing the body in garbage bags
in trunk of Graves’ car

4 Tampering with evidence Dismembering Graves’ left arm

5 Tampering with evidence Dismembering Graves’ right leg

6 Tampering with evidence Dismembering Graves’ left leg

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7 Tampering with evidence Dismembering Graves’ right arm

8 Tampering with evidence Placing left leg in bag in first
freezer

9 Tampering with evidence Placing right leg in bag in first
freezer

10 Tampering with evidence Placing right arm in bag in the first
freezer

11 Tampering with evidence Placing left arm in bag in first
freezer

12 Tampering with evidence Placing left leg in bag in second
freezer

13 Tampering with evidence Placing right leg in bag in second
freezer

14 Tampering with evidence Placing right arm in bag in second
freezer

15 Tampering with evidence Placing left arm in bag in second
freezer

16 Tampering with evidence Burned torso and head with
sulfuric acid

17 Tampering with evidence Disposing of what remained after
sulfuric acid

18 Tampering with evidence Moving body from location 1 to
location 2

19 Tampering with evidence Moving body from location 2 to
location 3

20 Tampering with evidence Moving body from location 3 to
location 4

21 Tampering with evidence Burned bracelet with name
“Shannon” on it

22 Tampering with evidence Burned Graves’ shoes in a bonfire

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23 Tampering with evidence Burned Graves’ camera in a
bonfire

24 Tampering with evidence Burned Graves’ clothes in a
bonfire

25 Tampering with evidence Burned Graves’ clothes in a
bonfire

26 Tampering with evidence Burned Graves’ clothes in a
bonfire

27 Abuse of a Corpse Placing arms, legs and ½ of
Graves’ skull in first freezer

28 Abuse of a Corpse Placing arms, legs and ½ of
Graves’ skull in second freezer

29 Abuse of a Corpse Burning torso and head with
sulfuric acid

30 Abuse of a Corpse Cut legs and arms off of torso

31 Abuse of a Corpse Placing ½ of Graves’ skull in the
second freezer

32 Abuse of a Corpse Transporting Graves’ body in
trunk of Graves’ car

33 Possession of Criminal Tools Sulfuric acid

34 Possession of Criminal Tools Black garbage bags

35 Possession of Criminal Tools Freezers

36 Theft of WIC Benefits

37 Theft of WIC Benefits

38 Theft of WIC Benefits

39 N/A – Codefendant charged with
Intimidation

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40 N/A – Codefendant charged with
Intimidation

41 N/A – Codefendant charged with
Obstruction of Justice

42 Grand Theft of Motor Vehicle Stealing Graves’ car

43 Drug Trafficking marijuana

44 Drug Trafficking marijuana

45 Drug Trafficking marijuana

46 Drug Trafficking marijuana

47 N/A – Codefendant charged with
Tampering with evidence

48 Engaging in a Pattern of Corrupt
Activity

{¶12} After pretrial negotiations, Appellant entered a plea agreement on May 19,

2019. The State of Ohio agreed to dismiss Count I of the indictment, aggravated murder,

after Appellant pleaded guilty to the remaining 43 counts.

{¶13} A sentencing hearing was held on June 24, 2019. At the outset, the court

heard statements from Graves’ older sister and 18-year-old brother. After considering

the record, the victim impact statements, the statements and recommendation of counsel

and of Appellant, the PSI, the sentencing exhibits, the principles and purposes of

sentencing under R.C. 2929.11, the seriousness and recidivism factors under R.C.

2929.12, and the guidelines contained in R.C. 2929.13, the trial court imposed the

following sentence: Appellant was sentenced to the mandatory 15 years to life in prison

on Count 2, murder. On Count 3, tampering with evidence, Appellant received 36 months;

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Counts 4, 5, 6, and 7, tampering with evidence, 36 months on each; Counts 8, 9, 10, 11,

12, 13, 14, and 15, tampering with evidence, 36 months on each; Counts 16 and 17,

tampering with evidence, 36 months on each; Counts 18, 19 and 20, tampering with

evidence, 36 months on each; Counts 21, 22, 23, 24, 25 and 26, tampering with evidence,

36 months on each; Counts 27, 28, 30 and 32, abuse of a corpse, 11 months on each;

Count 31, abuse of a corpse, 11 months; Counts 33, 34 and 35, possession of criminal

tools, 11 months on each. On Counts 36, 37 and 38, theft of WIC benefits, Appellant was

sentenced to 11 months on each; Count 42, grand theft of a motor vehicle, 17 months;

Counts 43, 44, 45, and 46, drug trafficking, 11 months on each; and finally, on Count 48,

engaging in a pattern of corrupt activity, Appellant received 10 years.

{¶14} The state made the following merger recommendation which was adopted

by the trial court:

Count 3, tampering with evidence to merge with Count 32, abuse of a

corpse;

Counts 4, 5, 6, and 7, tampering with evidence to merge;

Count 5, tampering with evidence, to merge with Count 30, abuse of a

corpse;

Counts 8, 9, 10, 11, 12, 13, 14, 15, tampering with evidence, to merge;

Count 9, tampering with evidence, to merge with Count 27, abuse of a

corpse;

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Count 10, tampering with evidence, to merge with Count 28, abuse of a

corpse;

Count 16, tampering with evidence, merger with Count 29, abuse of a

corpse;

Counts 21, 22, 23, 24, 25, 26, tampering with evidence, to merge together.

{¶15} The trial court ordered the following convictions to be served concurrently:

Count 16, tampering with evidence, concurrent with Count 17, tampering

with evidence;

Counts 18, 19, and 20, tampering with evidence, to be served concurrently;

Counts 33, 34, and 35, possession of criminal tools, to be served

concurrently;

Counts 36, 37, and 38, theft of WIC benefits, to be served concurrently;

Counts 43, 44, 45, and 46, drug trafficking, to be served concurrently.

Finally, the trial court ordered Counts 2, 3, 4, 8, 16, 18, 21, 31, 33, 36, 42, 43, and 48 to

be served consecutively. Ultimately, Appellant was sentenced to a total stated prison

term of 48 years to life in prison.

{¶16} Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1

Case No. 19 MA 0073
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Appellant's guilty plea was not knowing, intelligent and voluntary because

the trial court failed to inform him of the maximum penalties as required by

Crim. R. 11(C)(2)(a).

{¶17} Appellant argues his plea is invalid because the trial court failed to inform

him of the aggregate prison sentence if his offenses were ordered to be served

consecutively. He also argues that this failure by the trial court violated Crim.R. 11(C)(2).

{¶18} “When a defendant enters a guilty plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

Crim.R. 11(C) governs the process of accepting guilty pleas to felony charges and sets

forth the colloquy the trial court must have with the defendant:

In felony cases the court may refuse to accept a plea of guilty or a plea of

no contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally either in-person or by remote

contemporaneous video in conformity with Crim.R. 43(A) and doing all of

the following:

(a) Determining 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.

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(b) Informing the defendant of and determining 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.

(c) Informing the defendant and determining 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.

Crim.R. 11(C)(2).

{¶19} Trial courts are required to strictly comply with the constitutional

components of the colloquy, which are set forth in Crim.R. 11(C)(2)(c); State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, at ¶ 18-21. In contrast, the requirements set forth

in Crim.R. 11(C)(2)(a) and (b) require substantial compliance. Veney, ¶ 14-17.

{¶20} Crim.R. 11(C)(2)(a) requires a trial court to “[d]etermine that the defendant

is making the plea voluntarily, with understanding of the nature of the charges and the

maximum penalty involved[.]” As this is not a constitutional requirement only substantial

compliance by the trial court is required. Id. In State v. Johnson, 40 Ohio St.3d 130, 532

N.E.2d 1295 (1988), the Ohio Supreme Court considered whether a defendant is required

to be informed of the aggregate total prison term he or she faces. The Johnson Court

clarified that when a defendant enters a guilty plea to multiple offenses, “neither the United

States Constitution nor the Ohio Constitution requires that in order for a guilty plea to be

Case No. 19 MA 0073
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voluntary a defendant must be told the maximum total of the sentences his faces[.]” Id.

at 133. Further, the Court considered whether the failure to inform a defendant of an

aggregate total prison term violated Crim.R. 11(C). Id. The Johnson Court ultimately

concluded that a trial court properly complies with Crim.R. 11(C) by informing the

defendant of the maximum sentence faced for each of the individual charged crimes.

Johnson, at 134. Specifically, “[f]ailure to inform a defendant * * * that the court may order

him to serve any sentences imposed consecutively, rather than concurrently, is not a

violation of Crim.R. 11(C)(2) and does not render the plea involuntary.” Id. at syllabus.

{¶21} Citing a recent Ohio Supreme Court decision in State v. Bishop, 155 Ohio

St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, Appellant contends the holding in Johnson

was based on the previous version of Crim.R. 11 and is no longer good law due to the

1998 amendments to Crim.R. 11. In Bishop, a three-judge plurality of the Ohio Supreme

Court questioned the applicability of Johnson under the current version of Crim. R. 11(C).

Contrary to Appellant’s assertion, the Court was not reviewing the issue under

consideration in this case. Bishop addressed a specific question: whether a defendant

who pleads guilty to a new felony committed while on postrelease control must also be

informed of the consequences that could result from the postrelease control violation

during the plea colloquy. Bishop, ¶ 14-17. In fact, the plurality was careful to note the

distinction:

[W]hat happened to the defendant in Johnson is a far cry from what

happened to Bishop. Johnson was told of his potential sentences for each

individual offense; the trial court just failed to tell Johnson the sentences for

each offense could run consecutively. Here, the trial court told Bishop that

Case No. 19 MA 0073
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he could receive a maximum sentence of 12 months for his fifth-degree-

felony conviction. But the trial court did not tell Bishop that he was also

subject to a separate consecutive 12-month sentence for his postrelease-

control violation.

Id. at ¶ 16.

{¶22} Appellant concedes that many appellate jurisdictions, including this Court,

have continued to follow Johnson. We have held, “[t]he maximum penalty referred to in

Crim.R. 11(C)(2)(a) refers to the sentence for each charge rather than the cumulative

total of all sentences for all charges to which the defendant is pleading.” State v. Magby,

7th Dist. Mahoning No. 17 MA 0006, 2019-Ohio-877, ¶ 25. Our sister districts have

similarly determined the question in Bishop dealt solely with issues of post release control

and the law set forth in Johnson still applies. See State v. Roberts, 9th Dist. Medina No.

19CA0004-M, 2019-Ohio-4393; State v. Nelson, 8th Dist. Cuyahoga Nos. 109072,

109073, 109260, 2020-Ohio-6993; State v. Ellis, 5th Dist. Coshocton Nos. 2019CA0014,

2019CA0015, 2020-Ohio-1130.

{¶23} In the instant matter, the trial court, on the record, ascertained that Appellant

understood the nature of the charges against him in accordance with Crim.R. 11(C).

Further, the court explained to Appellant the maximum penalty involved for each of the

offenses to which he had entered his plea:

THE COURT: Okay. Just to make sure you understand them, I’m going to

go through the penalties with you.

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With respect to murder, a violation of R.C. 2903.02(A)(D), that’s an

unclassified felony. You can be sentenced from 15 years to life in prison

for that, and you can also be fined $15,000 for that offense. Do you

understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. And with regard to tampering with evidence, in

violation of 2921.12(A)(1)(B), that’s a felony of the third degree. You’re

charged with this offense in Counts Three through Twenty-Six. Now, each

one of those counts is a felony of the third degree, and the court can fine

you up to $10,000 as a fine and penalty for each one of those offenses as

well, and you could additionally be sentenced from 9 to 36 months in prison

on each one of those counts, Three through Twenty-Six. Do you

understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Also with respect to the charge of abuse of a corpse,

in violation of 2927.01(B)(C), that’s also a felony of the fifth degree. You

could be sentenced on Count Twenty-Seven, Twenty-Eight, Twenty-Nine,

Thirty, Thirty-One, and Thirty-Two -- they’re all the same charges. On each

one of those charges, since they’re all felony fives, you could be sentenced

from 6 to 12 months in prison on each one of those and be fined $2,500 for

each one of those offenses as well. Do you understand that?

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THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Counts Thirty-Three, Thirty-Four, and Thirty-Five of

the indictment are charges of possession of criminal tools, in violation of

Revised Code 2923.24. Those three counts are also felonies of the fifth

degree. You can be sentenced to each one of those felonies of the fifth

degree from 6 to 12 months in prison and fined $2,500 on each one of those

counts as well. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. In Counts Thirty-Six, Thirty-Seven, and Thirty-Eight

are the charges of illegal use of food stamps, in violation of Revised Code

2913.46. Those, too, are felonies of the fifth degree, all three counts, and

you can be sentenced from 6 to 12 months on each one of those counts as

well as $2,500 on -- as a fine on each one of those counts. Do you

understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Do you further understand that on Count Forty-Two,

which is grand theft of a motor vehicle, a violation of Revised Code

2913.02(A)(1)(B)(5), that’s a felony of the fourth degree, and you can be

charged anywhere from 6 months to 18 months in prison on that count, and

you can be fined $5,000 on that count as well. Do you understand that?

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THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Counts Forty-Three, Forty-Four, Forty-Five, and

Forty-Six are charges of trafficking in drugs, in violation of Revised Code

2925.03(A)(1)(C)(3)(a). Those charges are all felonies of the fifth degree.

You can be sentenced from 6 to 12 months on each one of those counts as

well and fined up to $2,500 for each one of those counts as well. Do you

understand that?

THE DEFENDANT: Yes, Your Honor.

***

THE COURT: And then finally I have Count Forty-Eight, engaging in a

pattern of corrupt activity, in violation of Revised Code 2523.32(A)(1), and

that’s a felony of the first degree, and the sentence on a felony of the first

degree could be potentially anywhere from 3 to 11 years in prison as well

as a fine in the amount of $20,000. That is a non-mandatory sentence.

Counts Forty-Three, Forty-Four, Forty-Five, and Forty-Six are non-

mandatory. Thirty-Three, Thirty-Four, Thirty-Five, Thirty-Six, Thirty-Seven,

Thirty-Eight, and Forty-Two are non-mandatory. Counts Three through

Thirty-Two are also non-mandatory sentences; however, Count Two,

murder, the unclassified felony of the 15 to life, is a mandatory sentence

with no possibility of judicial release.

(5/30/19 Plea Hrg. Tr., pp. 8-13.)

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{¶24} The court further explained the nature of postrelease control before asking

Appellant whether he understood. Appellant responded, “[y]es, Your Honor.” Prior to

accepting Appellant’s guilty plea, the trial court personally addressed Appellant,

explaining all of the constitutional and statutory rights which he was waiving by entering

a plea. Appellant repeatedly expressed his understanding of the implications of each

plea. Appellant entered his guilty plea to all of the charges with no objection from counsel,

and the matter was set for sentencing pending a presentence investigation.

{¶25} The record clearly reflects that the trial court provided Appellant with

information as to the specific maximum penalties which he potentially faced for each

separate count. Appellant argues that the 1998 revisions to Crim.R. 11, occurring after

Johnson was decided, amended the rule so that a single plea can now apply to multiple

charges. By Appellant’s logic, this now means that the “maximum penalty involved” refers

to the aggregate maximum sentence. Appellant cites no authority for this contention.

Regardless, the record clearly establishes that Appellant entered a separate plea of

“guilty” to each count. The trial court, as regards the mandates of Crim.R.11(C)(2)(a),

more than substantially complied in addressing the maximum penalty involved for each

separate plea. Magby, ¶ 25. Appellant’s case is directly on point with the facts in

Johnson, and because postrelease control was not a consideration in this matter, the

plurality holding in Bishop is inapplicable here. Accordingly, Appellant’s argument that

Crim.R. 11(C)(2)(a) required the trial court to inform him of the aggregate maximum

sentence that he possibly faced is not well-taken.

{¶26} Appellant’s first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

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A number of Appellant's convictions and sentences violate the Appellant's

rights under the Double Jeopardy Clauses of the United States and Ohio

Constitutions.

{¶27} Appellant presents two issues within his double jeopardy argument. First,

Appellant argues he was given multiple punishments for the same criminal act in violation

of the Double Jeopardy Clause of both the Ohio and United States Constitutions. Second,

Appellant contends the trial court erred in not properly merging the counts, which resulted

in the trial court imposing multiple sentences for the same conduct in violation of his right

not to be subject to double jeopardy.

{¶28} Ohio has codified certain protections for defendants consistent with the

Double Jeopardy clause of the Ohio and the U.S. Constitution in R.C. 2941.25, which

provides:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

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{¶29} The merger of allied offenses pursuant to R.C. 2941.25 presents a question

of law that we review de novo. State v. Ursic, 7th Dist. Harrison No. 18 HA 0006, 2019-

Ohio-5088, ¶ 9. The Ohio Supreme Court set forth the test to determine if two offenses

are allied offenses of similar import in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892. In Ruff, the Court established a fact-specific analysis that considers the

defendant’s conduct, the animus, and the import. State v. Williams, 7th Dist. Mahoning

No. 13 MA 125, 2015-Ohio-797, 43 N.E.3d 797, ¶ 17, citing Ruff at ¶ 26. The three-part

analysis requires a review of: (1) whether the offenses are dissimilar in import or

significance; in other words, whether each offense contains a separate and identifiable

harm; (2) whether the offenses were committed separately; and (3) whether the offenses

were committed with separate animus or motivation. Ruff at ¶ 26. If the answer to any

of the three parts is “yes,” then the offenses do not merge. Id. However, when it is

determined that the offenses merge pursuant to R.C. 2941.25(A), the defendant can be

found guilty of all of the charged offenses, but can be punished only on one. Id. There

is no bright-line rule, as the fact-specific nature of the test requires a case-by-case

analysis. Ruff, ¶ 30.

Tampering with Evidence

{¶30} Appellant argues that all of his convictions for tampering with evidence

should have merged for sentencing purposes.

{¶31} Appellant pleaded guilty and was convicted of 24 counts of tampering with

the evidence. As noted in the earlier chart, each count related to different conduct, in

different locations, throughout a time span of several months. After merger, Appellant

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was sentenced on eight counts of tampering with the evidence. Tampering, as defined

by R.C. 2921.12(A)(1), 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[.]

{¶32} There are three elements of the offense of tampering with the evidence: (1)

knowledge of an official proceeding that is in progress or is likely to be; (2) the alteration,

destruction, concealment or removal of potential evidence; and (3) action having the

purpose of impairing the evidence’s availability or value in this proceeding or

investigation. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175,

¶ 11.

{¶33} Appellant does not argue the first element, regarding knowledge of an

official proceeding. Regarding the second element, Appellant contends that there was

only one “thing,” or piece of evidence, that he was convicted of tampering with: “Graves’

body and the clothing/personal effects on her body at the time of her death.” Appellant

contends that Graves’ body and her attendant personal effects are all one item for

purposes of the statute. Contrary to Appellant’s single-evidence argument, by his own

admission these constitute more than one piece of evidence as Graves’ body, clothing

and personal effects are not one item by even the most literal interpretation. Appellant

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also argues that all of the tampering convictions were based on a single animus: “to alter,

conceal, destroy or remove evidence relating to Graves’ death.” (Appellant’s Brf., p. 20.)

{¶34} The state contends that each charge of tampering with the evidence

represented separate incidents that occurred over several months and involved separate

instances where Appellant tampered with evidence of Graves’ murder.

{¶35} In determining whether offenses are allied offenses of similar import, Ruff

requires an appellate court to look beyond the statutory elements and consider the

defendant’s conduct and the manner in which the offenses were committed. Ruff, ¶ 25.

{¶36} Here, after Appellant murdered Graves, he engaged in several distinct acts

having the purpose of concealing any evidence of his murder. First, he wrapped Graves’

body in trash bags and placed it in the trunk of her car. Second, he transported her body

to the garage of Layton’s home. Next, he dismembered her body by removing each of

Graves’ limbs and her head. Then, he transported these body parts back to Graves’

home. Next, Appellant placed each of her limbs in the first freezer in Graves’ home. He

later moved the limbs to a second freezer in the Ravenwood apartment, months after the

murder. Then he burned her torso and head in the second storage tote with sulfuric acid.

Next, he disposed of the remains of Graves’ torso and head after his attempt at dissolving

these in acid and placed them in the freezer with her limbs. Then, he burned Graves’

shoes, clothing, bracelet, and camera in a bonfire at a separate location. Appellant then

moved the second freezer containing Graves’ remains to the Devitt location, where they

were finally discovered.

{¶37} Of the eight counts of tampering with evidence on which Appellant was

sentenced after merger, count 3 related to his act of wrapping Graves’ body in garbage

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bags and putting her remains in the trunk of her car to conceal the body. Count 4 was

based on Appellant dismembering Graves’ limbs, and was merged with counts 5, 6, and

7, which also addressed her dismemberment. Count 8 pertained to Appellant’s

concealment of Graves’ remains in the first freezer and was merged with counts 9, 10,

11, 12, 13, 14 and 15, all of which involved the placing of each limb initially in the first

freezer, and then each limb in the second freezer. Count 16 related to burning Graves’

head and torso in sulfuric acid, and was merged with count 29, abuse of a corpse, which

also related to burning her head and torso with acid. Count 17 addressed Appellant’s

disposal of the remains not consumed by the acid and was not merged for sentencing.

Count 18 involved Appellant’s transportation of Graves’ body from her home to Layton’s

garage. Count 19 addressed Appellant’s transportation of Graves’ dismembered body

from the Mahoning Avenue home to the Ravenwood apartment. Finally, Count 20

involved Appellant’s act of moving Graves’ dismembered body yet again, from the

Ravenwood apartment to his friend’s home on Devitt.

{¶38} Multiple violations of the same statute are not allied offenses of similar

import, and a defendant may be sentenced for each separate violation. State v. Larsen,

89 Ohio App.3d 371, 375-376, 624 N.E.2d 766 (4th Dist.1993). Appellant’s assertion that

he tampered with only one piece of evidence, warranting a single tampering with the

evidence charge, is disingenuous at best. The analogy of a single sheet of paper being

ripped into pieces with the dismemberment of a human body was tone-deaf, at the least.

Regardless, it is clear from this record that the state proved all of the offenses of

tampering with multiple items of evidence. There was not only Graves’ body (both before

and after Appellant’s dismemberment) but also Graves’ clothing, papers, camera, shoes

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and jewelry. The fact that multiple types of evidence existed is further demonstrated by

the fact that Appellant felt the need to utilize several methods in his attempt to destroy or

hide the varying types of evidence. Appellant wrapped and transported Graves’ intact

body away from the scene. Appellant dismembered Graves’ body at a separate location.

Appellant placed Graves’ body parts in different storage containers and freezers, the

locations of which were moved throughout a several month period in order to avoid

detection. Graves’ clothing, papers, camera, shoes, and jewelry were burned in a large

bonfire at a different occasion. Appellant’s conduct abundantly demonstrates that he was

dealing with multiple types of evidence he felt necessary to alter, conceal or destroy in an

attempt to prevent these items of evidence from being discovered during the investigation.

{¶39} It is clear that Appellant tampered with multiple items of evidence to hinder

the investigation, consisting first of Graves' entire body, and later the separate and distinct

body parts, as well as Graves' clothing, shoes, camera, and jewelry. He utilized multiple

methods of tampering, depending on the type of evidence. Appellant admits he engaged

in every type of violation possible pursuant to statute, including altering, concealing and

destroying by means of dismemberment, acid burning, hiding, and fire. Contrary to

Appellant’s assertion, Graves’ body and personal effects do not amount to a single piece

of evidence in this matter, based on this record. As the investigation progressed and he

feared imminent discovery of his initial crime he acquired additional pieces of Graves’

belongings and undertook various means of destruction. Finally, the multiple actions

carried out by Appellant to tamper with the multiple pieces of evidence were motivated by

separate animus related to the progression of the investigation. Although the shared

underlying basis was certainly to avoid detection for committing murder, Appellant

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addressed his growing desperation over a period of several months with a variety of

different behaviors: continuing to relocate the body time and again as well as his repeated

decision to acquire and destroy additional pieces of evidence throughout in order to hinder

the investigation. Thus, because there was separate and distinct conduct to constitute

separate offenses of tampering with multiple pieces of evidence, the trial court did not err

in the manner in which it addressed merger of the tampering with evidence counts.

Possession of Criminal Tools

{¶40} Appellant also argues that all of his convictions for possession of criminal

tools should have merged for sentencing. Appellant pleaded guilty to three counts of

possession of criminal tools. He was sentenced to 11 months on each count to be served

concurrently with each other. Possessing criminal tools is governed by R.C. 2923.24(A)

which reads, “[n]o person shall possess or have under the person’s control any

substance, device, instrument, or article, with purpose to use it criminally.” R.C.

2923.24(A). Appellant was convicted and sentenced as follows: Count 33 referred to the

sulfuric acid Appellant used to burn Graves’ head and torso. Count 34 pertained to the

black garbage bags Appellant used to wrap and store Graves’ body. Count 35 involved

the freezers used by Appellant to store Graves’ body in various locations.

{¶41} Appellant contends that all three items were used in furtherance of the

single crime of disposing of Graves’ body. In comparing each of the offenses, it is clear

from the evidence in the record that Appellant acquired each of the different criminal tools

at a different time, utilized them at differing locations, and acquired each for a separate

untoward purpose. After murdering Graves, Appellant used garbage bags to conceal and

transport her body, continuing to use the bags throughout for storing, concealing and

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transporting her body. Appellant and Layton later ordered the sulfuric acid online, once

the determination was made that they should attempt to destroy and alter Graves’ torso

and head using acid rather than maintain them intact in the freezers. Lastly, Appellant

used one freezer at Graves’ home for storage. Once the missing person report was filed

and the Youngstown Police Department would clearly begin their investigation, Appellant

purchased a second freezer in order to conceal Graves’ remains, ultimately at other

locations. Again, pursuant to Ruff, Appellant’s conduct demonstrates separate and

distinct conduct causing separate, identifiable harm to the evidence in this matter.

Therefore, the trial court did not err in failing to merge the three convictions for possession

of criminal tools convictions at sentencing.

Abuse of a Corpse

{¶42} Appellant also argues that his convictions for abuse of a corpse should have

merged with the convictions for tampering with evidence.

{¶43} Abuse of a corpse is governed by R.C. 2927.01(B) and provides, “[n]o

person, except as authorized by law, shall treat a human corpse in a way that would

outrage reasonable community sensibilities.” R.C. 2927.01(B). Appellant pleaded guilty

and was convicted on six counts of abuse of a corpse. After merger, Appellant was

sentenced to 11 months on a single count of abuse. Count 31 related to Appellant putting

the remaining one-half of Graves’ skull in the second freezer he purchased. As noted

above, Appellant was sentenced on eight counts of tampering with the evidence.

Appellant argues that the single sentence for abuse of a corpse should have merged with

Count 28, relating to Appellant placing Graves’ arms, legs and one-half if her skull in the

second freezer. Count 28 was merged with Count 10 (placing Graves’ right arm in the

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first freezer). However, had all three merged as proposed by Appellant, there would have

been no sentence imposed for placing Graves’ body in the second freezer. None of the

tampering with evidence sentences imposed involved placing Graves’ body in the second

freezer. The single sentence imposed for abuse of a corpse addresses Appellant’s act

of placing Graves’ remains in the second freezer. Ruff holds that courts cannot merge

offenses involving separate conduct. Ruff, ¶ 26. Under the Ruff analysis, the act of

placing Graves’ body in freezer two not only was separate and distinct conduct from

placing her body in the first freezer, but involved separate animus for this conduct, in that

the second freezer was purchased by Appellant months after he committed the murder

only to avoid discovery of Graves’ body in the first freezer. Therefore, the trial court did

not err in failing to merge count 31, abuse of a corpse, at sentencing.

{¶44} Appellant’s second assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 3

The trial court erred in imposing consecutive sentences.

{¶45} Appellant asserts the trial court’s imposition of consecutive sentences is

contrary to law because the trial court imposed maximum, consecutive sentences on the

non-violent felonies because of the murder conviction.

{¶46} Although not specifically raised in detail in Appellant’s brief, there is another

threshold issue we must address that was raised at oral argument. As stated, the trial

court merged multiple counts of the indictment for sentencing:

Count 3, tampering with evidence to merge with Count 32, abuse of a

corpse;

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Counts 4, 5, 6, and 7, tampering with evidence to merge together;

Count 5, tampering with evidence, merge with Count 30, abuse of a

corpse;

Counts 8, 9, 10, 11, 12, 13, 14, 15, tampering with evidence, to merge

together;

Count 9, tampering with evidence, merge with Count 27, abuse of a

corpse;

Count 10, tampering with evidence, merge with Count 28, abuse of a

corpse;

Count 16, tampering with evidence, merger with Count 29, abuse of a

corpse;

Counts 21, 22, 23, 24, 25, 26, tampering with evidence, to merge together.

{¶47} A “conviction” for purposes of R.C. 2941.25(A) can only be entered on one

offense once two offenses have been merged, and the trial court must memorialize on

which count the state has elected to proceed to sentencing. A court that merges separate

counts may only sentence on one. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,

922 N.E.2d 182, ¶ 13, 24. Thus, when a trial court merges offenses, no sentence is

imposed on the other, merged offenses. Id. at ¶ 17-18. Although the trial court merged

the offenses as discussed, the court entered sentences on all of the offenses, some to

run consecutively and some concurrently. It is clear the imposition of consecutive

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sentences clearly runs afoul of the merger doctrine under any standard. In addition,

merger is not lawfully accomplished even if the court runs the sentences concurrently, as

the state must be allowed to elect on which count the offender is to be sentenced and

there is no sentence imposed on the other, merged, offenses. State v. Damron, 129 Ohio

St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. “Sentencing concurrently on merged

counts does not satisfy the merger doctrine as no sentence at all should be entered on

one of the two merged counts.” State v. Gardner, 7th Dist. Mahoning No. 10 MA 0052,

2011-Ohio-2644, ¶ 24. Sentencing a defendant on a merged count is plain error, as a

defendant is prejudiced by having more convictions on his record than authorized by law.

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.

{¶48} Thus the trial court’s imposition of sentence on the merged counts was plain

error, affecting Appellant’s right to be sentenced on only one of the merged offenses.

Where, as here, a trial court has improperly sentenced on merged counts, the matter must

be remanded for a limited resentencing hearing so the state can select on which of the

merged offenses the court is to enter a conviction and impose sentence. Whitfield, ¶ 21-

22.

{¶49} As we must remand this matter for a limited resentencing of the merged

counts where the trial court improperly imposed concurrent and consecutive sentences,

Appellant’s third assignment of error otherwise addressing the court’s decision to impose

consecutive sentences is moot.

{¶50} Appellant’s guilty pleas and subsequent guilt findings are affirmed.

Because the trial court erred in its decision to sentence Appellant on offenses that the

court merged, Appellant’s sentence is hereby vacated. We remand this matter in order

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to allow the state to determine on which of the merged offenses it wishes the court to

enter a conviction and sentence. All other aspects of the trial court’s judgment is affirmed.

Robb, J., concurs.

Powell, J., concurs.

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For the reasons stated in the Opinion rendered herein, Appellant’s assignments of

error are overruled. However, because we find plain error in the trial court’s decision to

sentence Appellant on offenses that the court merged, Appellant’s sentence is hereby

vacated. It is the final judgment and order of this Court that the judgment of the Court of

Common Pleas of Mahoning County, Ohio, is affirmed in part and reversed in part. We

hereby remand this matter to the trial court for further proceedings according to law and

consistent with this Court’s Opinion. Costs to be taxed against the Appellee.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Case No. 19 MA 0073