State v. Armstrong

[Cite as State v. Armstrong, 2023-Ohio-3527.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2022-P-0088

Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas

JOSHUA J. ARMSTRONG,
Trial Court No. 2022 CR 00906
Defendant-Appellant.

OPINION

Decided: September 29, 2023
Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Paul M. Grant, 209 South Main Street, Eighth Floor, Akron, OH 44308 (For Defendant-
Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Joshua J. Armstrong, appeals his convictions following his guilty

pleas to abduction and domestic violence. We affirm.

{¶2} In 2022, an indictment was filed charging Armstrong with one count of

abduction, a third-degree felony, in violation of R.C. 2905.02, and one count of domestic

violence, a fourth-degree felony, in violation of R.C. 2919.25. As the language of the

indictment is at issue in this appeal, we reproduce the relevant portions below. First, the

indictment specified the grand jury’s findings with respect to the abduction count as follow:
 Joshua J. Armstrong on or about July 21, 2022, in the
County of Portage aforesaid did:

knowingly, without privilege to do so, by force or threat,
remove another from where the other person is found,
and/or restrain the liberty of another, to wit: [victim
name], under circumstances that create a risk of physical
harm to the victim or place [victim name] in fear.

Said act being Abduction, a Felony of the Third Degree.

Contrary to and in violation of Section 2905.02 of the Revised
Code of Ohio, and

Contrary to the form and statute in such case made and
provided and Against the Peace and Dignity of the State of
Ohio.

(Boldface sic.) Next, the indictment provided the grand jury’s findings as to domestic

violence as follow:

Joshua J. Armstrong on or about July 21, 2022, in the
County of Portage, State of Ohio Aforesaid did:

knowingly cause or attempt to cause physical harm to
[second victim name], a family or household member,
and the said Gregory F. Aguier (sic.) previously has
pleaded guilty to or has been convicted of an offense of
domestic violence in violation of Ohio Revised Code
Section 2919.25(A), a violation of an existing former
municipal ordinance or law of this or any other state of
the United States that is substantially similar to domestic
violence, or a violation of section 2903.14, 2909.06,
2909.07, 2911.12, 2911.211 [2911.21.1]. or 2919.22 of the
Revised Code or any offense of violence if the victim of
the offense was a family or household member at the time
of the commission of the offense, to wit: 7/14/2022
Portage County Municipal Court 22CRB1493R

Said act being Domestic Violence, a Felony of the Fourth
Degree,

Contrary to and in violation of Section 2919.25 of the Ohio
Revised Code, and
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Case No. 2022-P-0088
 Contrary to the form of the statute in such case made and
provided and Against the Peace and Dignity of the State of
Ohio.

(Boldface sic.)

{¶3} Armstrong initially pleaded not guilty but later requested leave to amend his

plea to not guilty by reason of insanity, and he moved for a competency determination.

The court ordered a competency evaluation and scheduled a competency hearing. On

the date assigned for the competency hearing, the case instead proceeded as a change-

of-plea hearing, as the parties had entered into a plea agreement. Armstrong amended

his plea to guilty on both counts. The trial court accepted the pleas, ordered a pre-

sentence investigation report (“PSI”) be prepared, ordered Armstrong be evaluated for

the Northeast Ohio Community Alternative Program (“NEOCAP”) and for Community

Assessment & Treatment Services (“CATS”), and set the matter for sentencing.

{¶4} The PSI indicates that CATS offered to accept Armstrong into its residential

program. However, at sentencing, the court declined to order CATS placement at that

time, and it instead imposed terms of imprisonment of 36 months on the abduction count

and 12 months of imprisonment on the domestic violence count, to be served

concurrently.

{¶5} In his first assigned error, Armstrong contends:

{¶6} “The court committed reversible and plain error when it accepted Mr.

Armstrong’s plea when it failed to substantially comply with Crim.R. 11 in violation of Mr.

Armstrong’s due process rights under the Fifth and Fourth (sic.) Amendments to the

United States Constitution and under Art. I, §16 of the Ohio Constitution.”

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Case No. 2022-P-0088
 {¶7} “‘When a defendant enters a 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. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “Crim.R.

11 was adopted in 1973, giving detailed instruction to trial courts on the procedure to

follow when accepting pleas.” Veney at ¶ 7. Crim.R. 11 “‘ensures an adequate record

on review by requiring the trial court to personally inform the defendant of his rights and

the consequences of his plea and determine if the plea is understandingly and voluntarily

made.’” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 11,

quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975); see also State v.

Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990).

{¶8} Crim.R. 11(C)(2) provides:

In felony cases the court may refuse to accept a plea of guilty
* * *, and shall not accept a plea of guilty * * * 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.

(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty * * *, 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
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Case No. 2022-P-0088
 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.

{¶9} “Before accepting a guilty * * * plea, the court must make the determinations

and give the warnings required by Crim.R. 11(C)(2)(a) and (b) and notify the defendant

of the constitutional rights listed in Crim.R. 11(C)(2)(c).” Veney, 2008-Ohio-5200, at ¶ 13.

{¶10} Further, “[w]hen a criminal defendant seeks to have his conviction reversed

on appeal, the traditional rule is that he must establish that an error occurred in the trial-

court proceedings and that he was prejudiced by that error.” (Citations omitted.) Dangler,

2020-Ohio-2765, at ¶ 13. In the context of guilty pleas, the Ohio Supreme Court has

noted two exceptions to the rule that a defendant must establish prejudice. Id. at ¶ 14-

16. First, “[w]hen a trial court fails to explain the constitutional rights that a defendant

waives by pleading guilty * * *, we presume that the plea was entered involuntarily and

unknowingly, and no showing of prejudice is required.” (Citation omitted.) Id. at ¶ 14.

Second, “a trial court’s complete failure to comply with a portion of Crim.R. 11(C)

eliminates the defendant’s burden to show prejudice.” (Citation omitted.) Id. at ¶ 15.

{¶11} Accordingly, “the questions to be answered are simply: (1) has the trial court

complied with the relevant provision of the rule? (2) if the court has not complied fully with

the rule, is the purported failure of a type that excuses a defendant from the burden of

demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant

met that burden?” Id. at ¶ 17.

{¶12} Here, at the commencement of the change-of-plea hearing, the following

exchange occurred:

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Case No. 2022-P-0088
 THE COURT: * * * It’s my understanding the Defendant is
going to enter a plea today to Count One, Abduction, a Felony
of the Third Degree and Count Two, Domestic Violence, a
Felony of the Fourth Degree. With that plea, the State of Ohio
will concur with the pre-sentence investigation report at the
time of sentencing, is asking for a NEOCAP evaluation as
well; is that all correct * * *?

[THE STATE]: Yes, Your Honor, that is correct.

THE DEFENDANT: That is not correct.

[DEFENSE COUNSEL]: Wait a minute please.

THE COURT: [Defense counsel], is that your understanding?

[DEFENSE COUNSEL]: Your Honor, it is my understanding.
I did go over the plea agreement with my client. I did explain
to him that the State is asking for a NEOCAP assessment.
We would agree with that. He would concur with the
assessment.

However, we would also ask the Court to order a CATS
assessment. I think, as the Court is made aware by the
competency evaluation, Mr. Armstrong has struggled with his
mental health for a considerable amount of time. Really, his
entire life. I think CATS would be a better fit because of that.
We don’t disagree with the State’s plea agreement and he did
sign that, but we would ask for that additional assessment.

{¶13} Thereafter, the court engaged in the Crim.R. 11 colloquy with Armstrong,

which included the following exchange:

THE COURT: Sir, have you been fully advised by [defense
counsel] of the Criminal Rule 11(F) Plea Negotiations?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you accept these negotiations as your own?

THE DEFENDANT: Yes, ma’am.

{¶14} On appeal, Armstrong first maintains that the court was required to ask him

directly what his understanding of the plea agreement entailed due to Armstrong’s initial
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Case No. 2022-P-0088
dispute with the state’s recitation of the agreement. However, as set forth above,

Armstrong’s attorney clarified that the plea agreement recitation was accurate, but

defense counsel added that Armstrong also sought a CATS screening. After defense

counsel’s statement, Armstrong did not further indicate any issue with the plea agreement

as described by defense counsel and affirmatively indicated that he accepted the plea

negotiations as his own. Armstrong does not indicate what portion of Crim.R. 11(C)

required the court to further inquire as to Armstrong’s understanding of the plea

agreement.

{¶15} Next, Armstrong maintains that the court created confusion by leading him

to believe that he would receive the CATS placement if accepted into the program. In

support of his position that the court created “confusion” by its statement, Armstrong relies

on statements made by the court at the change of plea hearing:

THE COURT: * * * I’m going to send you for a pre-sentence
investigation through the adult probation department. I will
have a NEOCAP evaluation, but a CATS evaluation
performed as well. And I know that they have beds
immediately. I’ll do an expedited pre-sentence investigation
report.

***

THE COURT: I will do an updated pre-sentence investigation
report and we’ll try to get this going because if he’s accepted
into CATS we can get him in there right away.

{¶16} The PSI indicates that CATS offered to accept Armstrong. However, at

sentencing, the court imposed the above referenced prison terms and stated that it would

entertain a request for judicial release after six months to possibly place Armstrong in the

CATS program.

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Case No. 2022-P-0088
 {¶17} Although Armstrong argues that the court’s statements at the change of

plea hearing created “confusion” by indicating that the court would send him to CATS if

accepted, these statements occurred after Armstrong entered, and the trial court

accepted, the pleas. Armstrong has not demonstrated how the court’s statements and

actions occurring after he entered, and the court accepted, his pleas would negate the

knowing, intelligent, and voluntary nature of the pleas.

{¶18} Next, Armstrong maintains that it was impossible for him to fully understand

the nature of his plea because the indictment failed to set forth the division of the statutes

that he was alleged to have violated and because the indictment incorrectly identified the

victim and the accused in the body of the second count.

{¶19} However, the two counts tracked the language of the relevant divisions of

the statutory sections defining abduction and domestic violence. See R.C. 2905.02(A)(1)

and (A)(2), and R.C. 2919.25(A) and (D)(3).1 Armstrong has not identified how the failure

of the indictment to specify the specific divisions of these statutes undermined his

understanding of the charges or the pleas.

{¶20} Further, as set forth above, we recognize that the indictment specified

different victims in the first and second counts. However, save for the indictment, there

1. In his brief, Armstrong contends that the online docket in this case reflects that he pleaded guilty to
Division (C) of R.C. 2929.25. That division provides “No person, by threat of force, shall knowingly cause
a family or household member to believe that the offender will cause imminent physical harm to the family
or household member.” However, the language of the indictment tracks Division (A), which provides “No
person shall knowingly cause or attempt to cause physical harm to a family or household member,” and
Division (D) which pertains to a prior offense. We have located nothing in the record certified on appeal
indicating that Armstrong pleaded guilty to Division (C), and our review on appeal is limited to the record.
Accordingly, we review the domestic violence conviction pursuant to language used in the indictment, which
reflects a charge under R.C. 2919.25(A) and (D).

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Case No. 2022-P-0088
exists no mention of the victim named in the second count in the record. Further, it is

apparent from the face of the indictment that it incorrectly identified a different individual

as the offender in the body of the second count.2

{¶21} The record contains limited information regarding the factual predicates of

the offenses. From the information contained in the PSI, it appears that the victim

identified in the first count was Armstrong’s girlfriend. On the date at issue, the girlfriend

entered her apartment and found Armstrong there, armed with knives, searching for

drugs. Armstrong forced the girlfriend to remain in the apartment, and he took her phone.

The girlfriend reported that Armstrong threatened her, called her derogatory names, and

struck her in the face with an open hand.

{¶22} Due to the absence in the record of any mention of the second victim and

due to the internally inconsistent reference to “Gregory F. Aguier” as the accused in the

second count, it is reasonable to assume that the substance of the second count of the

indictment was copied from a different case and not updated with the correct names of

the victim and the accused in the present case.3 A review of the online records of the trial

court confirms as much, as the grand jury returned an indictment against Aguier in 2022,

in Portage County Common Pleas Case No. 2022CR00792, charging him with fourth-

2. At oral argument, the state acknowledged the mistakes in the indictment and indicated that it will move
to amend the indictment after resolution of this appeal.

3. Similar nonfatal clerical errors appear in Armstrong’s third assigned error, wherein he references himself
as “Mr. Huber,” (see infra at ¶ 32 and Appt. Brief at pp. iv and 12), as well as in Armstrong’s issue for review
following his second assigned error in the law and argument portion of his brief, wherein he again references
himself as “Mr. Huber.” See Appt. Brief at p. 7 (“Did the trial court abuse its discretion when it imposed a
prison sentence on Mr. Huber instead of a community control sanction?”).

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Case No. 2022-P-0088
degree domestic violence against the victim named in the second count of the indictment

in the present case.4

{¶23} Although both parties recognize the inaccuracies in the second count on

appeal, there is no discussion in the record as to the mistakes in the indictment. We

agree that the indictment inaccurately named the victim and the accused in the second

count; however, such inaccuracies do not alter the nature of the domestic violence

offense, and Armstrong confirmed that he understood the nature of the offenses at the

change-of-plea hearing. Further, such inaccuracies do not relieve Armstrong of

demonstrating prejudice. Armstrong does not indicate any portion of the record that

demonstrates that he would not have entered his plea if he was made aware of the errors

in the indictment. See Dangler, 2020-Ohio-2765, at ¶ 24, quoting Hayward v. Summa

Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26,

quoting Wagner v. Roche Laboratories, 85 Ohio St.3d 457, 462, 709 N.E.2d 162 (1999)

(“Prejudice must be established ‘“on the face of the record.”’”).

{¶24} For the foregoing reasons, Armstrong’s first assigned error lacks merit.

{¶25} In his second assigned error, Armstrong maintains:

{¶26} “Trial court imposing a prison sentence on Mr. Armstrong was contrary to

law and in violation of the Due Process Clause of the 14th Amendment to the U.S.

Constitution and Article 1, Section 2 of the Ohio Constitution.”

{¶27} Pursuant to R.C. 2929.11(A) and 2929.12(A), “[a] court that sentences an

offender for a felony shall be guided by the overriding purposes of felony sentencing,”

4. Judicial notice may be taken of public records that are accessible through the internet. State ex rel.
Harris v. Capizzi, 2d Dist. Montgomery No. 29278, 2022-Ohio-3661, 199 N.E.3d 31, ¶ 18, aff'd sub nom.
State ex rel. Harris v. Bruns, Ohio Supreme Court Slip Opinion No. 2023-Ohio-2344, ¶ 18 (July 12, 2023).
10

Case No. 2022-P-0088
and it “shall consider the factors * * * relating to the seriousness of the conduct” and “to

the likelihood of the offender’s recidivism.”

{¶28} R.C. 2953.08(G) governs our review of felony sentences, and provides, in

relevant part, that after an appellate court’s review of the record, it “may increase, reduce,

or otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence is *

* * contrary to law.” R.C. 2953.08(G)(2)(b); State v. Meeks, 11th Dist. Ashtabula No.

2022-A-0060, 2023-Ohio-988, ¶ 11.

{¶29} “A sentence is contrary to law when it is ‘in violation of statute or legal

regulations’ * * *.” Meeks at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649, ¶ 34. Thus, “‘[a] sentence is contrary to law when it does not fall

within the statutory range for the offense or if the trial court fails to consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

set forth in R.C. 2929.12.’” State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-

Ohio-789, ¶ 11, quoting State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-

Ohio-199, ¶ 74; see also State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-

7127, ¶ 18. The Supreme Court has further held that a sentence is contrary to law if “it is

imposed ‘based on factors or considerations that are extraneous to those [seriousness

and recidivism factors] that are permitted by R.C. 2929.11 and 2929.12.’” Meeks at ¶ 11,

quoting State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22. “But

an appellate court’s determination that the record does not support a sentence does not

equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is

used in R.C. 2953.08(G)(2)(b).” Jones at ¶ 32.

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Case No. 2022-P-0088
 {¶30} Here, Armstrong points to the record to essentially argue that the trial court

should have granted him community control and ordered him into the CATS program due

to his established mental health conditions and substance abuse issues, which

contributed to his offenses. Further, Armstrong maintains that he was “left with the

misrepresentation that he would be placed on community control and into the CATS

program,” based upon the trial court’s statements following its acceptance of his pleas,

as previously discussed in relation to Armstrong’s first assigned error. However, we

cannot discern in what way these factors render the sentences contrary to law. Instead,

these considerations appear to pertain to the trial court’s crafting of sentences within

statutory guidelines, and “[n]othing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment for that of the

trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and

2929.12.” Jones, 2020-Ohio-6729, at ¶ 42.

{¶31} Accordingly, Armstrong’s second assigned error lacks merit.

{¶32} In his third assigned error, Armstrong argues:

Mr. Armstrong was denied his right to effective assistance of
counsel guaranteed under the Sixth Amendment to the U.S.
Constitution and Article I, Sections 1, 10 & 16 of the Ohio
Constitution. The trial court erred as a matter of law in
sentencing Mr. Huber (sic.) in violation of the Double Jeopardy
Clause of the 5th Amendment to the U.S. Constitution and
Article I, Sections (sic.) 10 of the Ohio Constitution.

{¶33} In Armstrong’s third assigned error, he argues ineffective assistance of

counsel for failing to object to defects in the indictment, and ineffective assistance of

counsel and plain error with respect to the trial court’s failure to merge the two counts for

sentencing. He further argues that the second count in the indictment was void, “as it

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Case No. 2022-P-0088
did not properly identify the victim nor the defendant.” We address these arguments out

of order to facilitate our discussion.

{¶34} As set forth in relation to Armstrong’s first assigned error, the body of the

second count of the indictment incorrectly named a victim and an accused from a

separate case. However, “issues relating to the validity of the indictment * * * are waived

when a defendant enters a plea of guilty to the indictment.” State v. Feathers, 11th Dist.

Portage No. 2021-P-0004, 2021-Ohio-4137, ¶ 13, citing State v. Patterson, 5th Dist. Stark

No. 2003CA00135, 2004-Ohio-1569, ¶ 13; see also State v. Heise, 8th Dist. Cuyahoga

Nos. 108286 and 108776, 2020-Ohio-662, ¶ 13 (“by failing to timely object to the

indictment and by pleading guilty to aggravated burglary pursuant to a negotiated plea

agreement, we find [the defendant] has waived his right to challenge any alleged defect

in the indictment”). Although challenges to a void indictment may be raised at any time,

an indictment is void where it sets “‘forth facts which in no conceivable form constitute a

criminal offense; or if they might constitute an offense, the court issuing the process had

no jurisdiction over such offense or the person charged with the offense.’” Feathers at ¶

14, quoting State v. Snowden, 11th Dist. Trumbull No. 2021-T-0008, 2021-Ohio-2885, ¶

14, citing Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451 (1918), syllabus. Such

is not the case here. Accordingly, to the extent that Armstrong argues the second count

in the indictment was void, his third assigned error lacks merit.

{¶35} With respect to defense counsel’s failure to object to the errors in the

indictment, we review this issue under the ineffective assistance of counsel analysis

established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). To prevail on such a claim, “a defendant must prove that counsel’s

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performance was deficient and that the defendant was prejudiced by counsel’s deficient

performance.” State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 10,

citing State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989); and

Strickland at 687. “Thus, the defendant must demonstrate that counsel’s performance

fell below an objective standard of reasonableness and that there exists a reasonable

probability that, but for counsel’s error, the result of the proceeding would have been

different.” Davis at ¶ 10, citing Bradley at paragraphs two and three of the syllabus.

{¶36} Here, Armstrong does not indicate how the result of the proceeding would

have been different had counsel raised a challenge to the second count of the indictment.

As Armstrong recognizes, Crim.R. 7(D) provides that “[t]he court may at any time before,

during, or after a trial amend the indictment * * * in respect to any defect, imperfection, or

omission in form or substance, or of any variance with the evidence, provided no change

is made in the name or identity of the crime charged.” Here, the mistaken identification

of the victim, and the internal inconsistency of the name of the accused, did not alter the

name or identity of the domestic violence offense. Armstrong himself could have readily

noticed the discrepancy upon being served with the indictment and could have raised the

issue with his attorney. Armstrong has not established a reasonable probability that, but

for defense counsel’s failure to challenge these mistakes in the indictment, the result of

the proceeding would have been different. Instead, such a challenge would likely have

resulted in amendment of the indictment.

{¶37} Armstrong further argues that defense counsel was ineffective for failing to

argue that the offenses should have merged for sentencing purposes. Moreover, he

maintains that the trial court committed plain error by failing to merge the offenses.

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Case No. 2022-P-0088
 {¶38} “‘The failure to raise the allied offense issue at the time of sentencing forfeits

all but plain error.’” State v. Bailey, --- Ohio St.3d ----, 2022-Ohio-4407, --- N.E.3d ----, ¶

7, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 28.

“Under the plain-error doctrine, intervention by a reviewing court is warranted only under

exceptional circumstances to prevent injustice.” Bailey at ¶ 8, citing State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus (“Notice of plain

error * * * is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a miscarriage of justice”). To establish plain error, Armstrong must

demonstrate that “‘an error occurred, that the error was obvious, and that there is “a

reasonable probability that the error resulted in prejudice,” meaning that the error affected

the outcome of the trial.’” (Emphasis added in Rogers.) Bailey at ¶ 8, quoting State v.

McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 66, quoting Rogers at

¶ 22; see also State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶

52. “The elements of the plain-error doctrine are conjunctive: all three must apply to justify

an appellate court’s intervention.” Bailey at ¶ 9, citing State v. Barnes, 94 Ohio St.3d 21,

27, 759 N.E.2d 1240 (2002) (“By its very terms, the rule places three limitations on a

reviewing court’s decision to correct an error despite the absence of a timely objection at

trial[.]”).

{¶39} R.C. 2941.25 governs the imposition of punishment for multiple offenses:

(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
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Case No. 2022-P-0088
 separately or with a separate animus as to each, the
indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.

{¶40} Accordingly, “[u]nder R.C. 2941.25(B), a defendant whose conduct

supports multiple offenses may be convicted of all the offenses if any 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.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, paragraph three of the syllabus.

{¶41} “When a defendant’s conduct victimizes more than one person, the harm

for each person is separate and distinct, and therefore, the defendant can be convicted

of multiple counts.” Ruff at ¶ 26. Here, as previously discussed, the indictment mistakenly

identified different victims in the two counts, but the record indicates, and the parties

agree, that Armstrong’s conduct pertained to only one victim.

{¶42} Although the state concedes to the extent that this matter should be

remanded for the trial court to assess the issue of allied offenses of similar import, we

disagree. The failure of a trial court to conduct a merger analysis on the record does not

in itself establish plain error. To the contrary, in Rogers, 2015-Ohio-2459, at ¶ 1, the Ohio

Supreme Court addressed a certified question of “[w]hether a trial court commits plain

error where multiple offenses present a facial question of allied offenses of similar import,

yet the trial court fails to determine whether those offenses should merge under R.C.

2941.25 at sentencing[.]” The court answered in the negative and reversed “the judgment

of the court of appeals that is based on its holding that a trial court has a duty to inquire

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Case No. 2022-P-0088
about allied offenses if the defense fails to raise it at sentencing,” and “reinstate[d] the

sentences imposed by the trial court.” Id. at ¶ 3, 6.

{¶43} Accordingly, here, despite the state’s concession that the matter should be

remanded for a merger analysis by the trial court, such a position is inconsistent with

Rogers.

{¶44} Instead, as set forth above, the Ohio Supreme Court has held in the context

of plain error with respect to merger, it is incumbent on the defendant to demonstrate that:

(1) there was error in failing to merge the counts, (2) the error was obvious, and (3) there

is a reasonable probability that, but for the error, the result would have been different.

Bailey, 2022-Ohio-4407, at ¶ 8.

{¶45} Armstrong has failed to demonstrate plain error. As previously set forth,

Armstrong forced his girlfriend to remain in the apartment, threatening her with knives,

and he also struck her across her face with an open hand. The conduct of restraining the

girlfriend’s liberty through threats of violence and the separate conduct of striking the

victim can support sentences for each offense. Accordingly, Armstrong has not

established an obvious error by the trial court in failing to merge the offenses.

{¶46} Lastly, because the facts in the PSI indicate that separate sentences could

be imposed for these offenses, Armstrong has failed to establish a reasonable probability

that the outcome would have been different, and thus has failed to establish the prejudice

required under either a plain error or ineffective assistance of counsel claim regarding

merger.

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Case No. 2022-P-0088
 {¶47} Accordingly, to this extent, Armstrong’s third assigned error lacks merit.

{¶48} The judgment is affirmed.

JOHN J. EKLUND, P.J.,

ROBERT J. PATTON, J.,

concur.

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Case No. 2022-P-0088