[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 1252.]
THE STATE OF OHIO, APPELLANT, v. FENWICK, APPELLEE.
[Cite as State v. Fenwick, 2001-Ohio-51.]
Certification of conflict dismissed as improvidently certifiedâCourt of appealsâ
opinion not to be published in Ohio Official Reports.
(No. 00-966âSubmitted February 27, 2001âDecided May 2, 2001.)
CERTIFIED by the Court of Appeals for Erie County, No. E-98-031.
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{¶ 1} The certification of conflict is dismissed, sua sponte, as having been
improvidently certified.
{¶ 2} The court orders that the court of appealsâ opinion not be published in
the Ohio Official Reports, and that it may not be cited as authority except by the
parties inter se.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
COOK, J., concurs separately.
MOYER, C.J., dissents.
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COOK, J., concurring.
{¶ 3} I agree with the decision to dismiss this cause as improvidently
certified. I write separately to explain my decision in light of Chief Justice Moyerâs
dissenting opinion.
{¶ 4} The Chief Justice believes that even if the court of appeals may have
failed to clearly set forth the rule of law upon which the alleged conflict exists, this
court should overlook any deficiency in the certification order so that we may now
resolve what appears to be an actual conflict among the districts on a purely legal
issue. If I shared the Chief Justiceâs view that the only procedural deficiency in
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this case was an ambiguity in the appellate courtâs certification order, I might also
be inclined to exercise the discretionary authority contemplated by S.Ct.Prac.R.
IV(2)(A). But the procedural deficiency here runs deeper than the certification
order. Rather, the court of appeals misinterpreted what the trial court actually did
in this case and thus was without a legal basis to reach the conclusion upon which
it certified a conflict.
{¶ 5} As the Chief Justice notes, the Erie County Court of Appeals
determined that â[t]he courtâs failure to vacate appellantâs [Fenwickâs] convictions
for gross sexual imposition and attempted sexual battery left him convicted of six
felonies when he committed only four criminal acts.â (Emphasis added.) Based on
this determination, the court of appeals applied the plain-error analysis that
ultimately became the subject of its certification order. But this determinationâ
that the trial court violated R.C. 2941.25 by convicting Fenwick of six felonies
instead of fourâis unsupported by the appellate courtâs own recitation of the
procedural history of this case.
{¶ 6} As the appellate court described, after the jury found Fenwick guilty
of all six charged offenses, â[t]he court then proceeded to sentence appellant.
Finding that appellantâs convictions for rape (Count 1) and gross sexual imposition
(Count 3) were allied, the court determined that for purposes of sentencing those
convictions must merge. The court then sentenced appellant to nine yearsâ
incarceration on the rape conviction. Finding further that appellantâs convictions
for sexual battery (Count 2) and attempted sexual battery (Count 5) were also allied,
the court merged those convictions and sentenced appellant to four yearsâ
incarceration on the sexual battery conviction.â (Emphasis added.)
{¶ 7} As the court of appeals itself noted, the trial court only imposed
sentence âon the rape convictionâ that remained after the explicit merger of Counts
1 and 3, and only imposed sentence âon the sexual battery convictionâ that
remained after the explicit merger of Counts 2 and 5. For purposes of R.C. 2941.25,
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January Term, 2001
this court has already determined that a âconvictionâ consists of both âverdict and
sentence.â (Emphasis added.) State v. McGuire (1997), 80 Ohio St.3d 390, 399,
686 N.E.2d 1112, 1120. Thus, for Counts 1, 2, 3, and 5, the trial court only
âconvictedâ Fenwick of two offenses for purposes of R.C. 2941.25, not four. When
added to his convictions on Counts 4 and 6, which were not allied offenses of
similar import, that left Fenwick properly âconvictedâ of a total of four offenses for
purposes of R.C. 2941.25, not six. Accordingly, the court of appeals was incorrect
when it decided that the trial erred by convicting Fenwick âof six felonies when he
committed only four criminal acts.â By its own recitation of facts, the court of
appeals had no factual basis upon which to find error, let alone plain error.
{¶ 8} If and when this court resolves what appears to be a conflict among
the districts as to whether a trial court commits plain error in entering âconvictionsâ
on allied offenses of similar import, we should do so in a case in which the trial
court actually erred in its application of R.C. 2941.25. If a trial court does not err
in its application of R.C. 2941.25, there would be no reason for this court to reach
the following crucial issues necessary to resolve a conflict regarding the application
of the plain-error doctrine: (1) whether such an error was âplainâ; (2) whether such
an error was outcome-determinative; and (3) whether such an error should be
noticed under those exceptional circumstances necessary to prevent a manifest
miscarriage of justice. See United States v. Olano (1993), 507 U.S. 725,
113 S.Ct.
1770,
123 L.Ed.2d 508; State v. Long (1978),
53 Ohio St.2d 91,
7 O.O.3d 178,
372
N.E.2d 804, paragraph two of the syllabus.
{¶ 9} For the foregoing reasons, I join the majorityâs decision to dismiss
this cause as having been improvidently certified.
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MOYER, C.J., dissenting.
{¶ 10} The Court of Appeals for Erie County certified the record of this case
to us for review and final determination, finding its judgment to be in conflict with
judgments pronounced upon the same question by other courts of appeals of the state.
Section 3(B)(4), Article IV, Ohio Constitution.1 In compliance with Whitelock v.
Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594,
613 N.E.2d 1032, paragraph two of the
syllabus, and S.Ct.Prac.R. IV(2), the court of appeals identified the rule of law upon
which the alleged conflict exists as âwhether the trial courtâs failure to set aside
[appelleeâs] convictions and sentences for allied offenses amounted to plain error
when those sentences were ordered to be served concurrently with the sentences for
the heightened offenses.â
{¶ 11} I respectfully dissent from the dismissal of this case as having been
improvidently certified. The cases discussed by the court of appeals in its certification
order demonstrate a clear âconflict between appellate judicial districts on a rule of
law.â Whitelock, paragraph one of the syllabus. We should resolve that conflict now.
{¶ 12} I acknowledge that the issue as framed by the court of appeals might
be deemed as failing to clearly set forth the rule of law upon which an alleged conflict
exists, as mandated by S.Ct.Prac.R. IV(2). The court of appeals indeed framed the
issue in a case-specific manner, i.e., whether plain error occurred under the particular
facts of this appelleeâs criminal prosecution.
{¶ 13} It is apparent, however, that a conflict exists among the districts on a
purely legal issue. That issue of general applicability might alternatively be stated as
follows: âWhere a jury finds a defendant guilty of multiple criminal offenses, some
of which are subsequently merged as being allied offenses of similar import, does a
1. Section 3(B)(4), Article IV of the Ohio Constitution provides:
âWhenever the judges of a court of appeals find that a judgment upon which they have
agreed is in conflict with a judgment pronounced upon the same question by any other court of
appeals of the state, the judges shall certify the record of the case to the supreme court for review
and final determination.â
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January Term, 2001
trial court commit plain error in entering convictions on all the criminal offenses,
where the sentences for the merged offenses are ordered to be served concurrently?â
{¶ 14} S.Ct.Prac.R. IV(2)(A) provides that where âthe rule of law upon which
the alleged conflict exists is not clearly set forth in the order certifying a conflict, the
Supreme Court may dismiss the case or remand it to the court of appeals with an order
that the court of appeals clarify the issue presented.â (Emphasis added.) Where, as
here, this court is easily able to discern a legal issue in conflict from a court of appealsâ
order of certification, and it is clear that the various courts of appeals are split as to the
proper rule of law, we should exercise the discretionary authority contemplated by
S.Ct.Prac.R. IV(2)(A) in favor of resolving the conflict. Judicial economy and
consistency in the law would be served by such a course.
{¶ 15} In the case at bar the appellee took the fifteen-year-old daughter of his
girlfriend in a car, held a knife to her neck, and unsuccessfully attempted penile rape.
He did, however, penetrate her digitally. The jury returned guilty verdicts on all six
offenses charged as a result of these events: rape, sexual battery, gross sexual
imposition, attempted rape, attempted sexual battery, and intimidation.
{¶ 16} The trial court held, âfor purposes of sentencing, that Count Nos. 1
[rape] and 3 [gross sexual imposition] shall merge and Count Nos. 2 [sexual battery]
and 5 [attempted sexual battery] shall merge.â It sentenced appellee, âhaving been
found guilty as to Count Nos. 1 and 3, for the offenses of RAPE ⊠and GROSS SEXUAL
IMPOSITION ⊠for the term of nine (9) years; defendant having been found guilty
as to Count Nos. 2 and 5, for the offenses of SEXUAL BATTERY ⊠and ATTEMPTED
SEXUAL BATTERY ⊠for the term of four (4) years.â The court ordered those
sentences to be served consecutively to each other and to additional sentences imposed
for the remaining crimes of attempted rape and intimidation.
{¶ 17} The court of appeals reversed, deeming it plain error to convict
appellee of six crimes when only four criminal acts had occurred. Accordingly, it
ordered that the convictions for gross sexual imposition and attempted sexual battery
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be set aside, pursuant to R.C. 2941.25,2 while retaining the convictions of rape and
sexual battery. The court of appeals held that the trial courtâs entry of conviction on
all the merged offenses constituted plain error, even though the corresponding
sentences were consolidated.
{¶ 18} In its order certifying the conflict in the case at bar, the Court of
Appeals for the Sixth District determined that its judgment conflicts with judgments
issued by the Fifth, Eighth, and Eleventh Districts in Millersburg v. Miller (Dec. 5,
1990), Holmes App. No. CA-427, unreported, 1990 WL 200366; State v. Styles
(Oct. 9, 1997), Cuyahoga App. No. 71052, unreported,
1997 WL 626058; and State
v. New (Jan. 24, 1992), Lake App. No. 90-L-15-112, unreported,
1992 WL 25278.
Moreover, in certifying the case to us, the Sixth District cited State v. Martin (Feb.
9, 1999), Summit App. No. 18715, unreported,
1999 WL 66211, in which the Ninth
District, in a split decision, failed to notice plain error where a defendant had been
sentenced to concurrent sentences for allied offenses of similar import. The Sixth
District pointed out that Judge Donna Carr, dissenting in Martin, had discerned
three schools of thought in Ohio appellate case law as to the application of the
doctrine of plain error in similar circumstances. In her dissent, Judge Carr
identified the disparity of approaches as follows:
âThe issue of whether it is plain error for a trial court to impose concurrent
sentences for the same offense has not been clearly resolved by Ohio appellate courts.
Two districts have held that there is no plain error in these circumstances. See State
v. Styles (Oct. 9, 1997), Cuyahoga App. No. 71052, unreported [1997 WL 626058]
2. R.C. 2941.25 provides:
â(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.
â(B) Where the defendantâs 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.â
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January Term, 2001
(Eighth Appellate District); State v. New (Jan. 24, 1992), Lake App. No. 90-L-15-
112, unreported [1992 WL 25278] (Eleventh Appellate District). Additionally, the
Fifth District has said that no prejudice arises from these circumstances. State v.
Miller (Dec. 5, 1990), Holmes App. No. CA-427, unreported [
1990 WL 200366]
(applying the concept of harmless error). However, three appellate districts have
concluded that this does constitute plain error. See State v. Fields (1994),
97 Ohio
App.3d 337, 347,
646 N.E.2d 866 [873] (First Appellate District); State v. Fischer
(1977),
52 Ohio App.2d 53, 55 [
6 O.O.3d 40, 41],
368 N.E.2d 332 [334] (Twelfth
Appellate District); State v. Jones (Oct. 22, 1998), Franklin App. No. 98AP-129,
unreported [
1998 WL 849371] (Tenth Appellate District).
âThis Court in particular has addressed the issue inconsistently. Although this
Court has recently held that there is no plain error under these circumstances, State v.
Blondheim (May 27, 1998), Summit App. No. 18594, unreported [1998 WL 281917],
that case failed to address a prior holding to the contrary in State v. Austin (Feb. 16,
1984), Summit App. No. 11298, unreported [
1984 WL 4764].
âThe Second District Court of Appeals has also been inconsistent in its
approach to this issue. In State v. Burch (Sept. 29, 1995), Montgomery App. No.
14488, unreported [1995 WL 570567], the Second District found that there was no
plain error under these circumstances. Nevertheless, in State v. Puckett (Mar. 27,
1998), Greene App. No. 97 CA 43, unreported, the Second District vacated a sentence
that was set to run concurrently with another sentence of equal length, noting that a
conviction based on an allied offense of similar import was plain error.
âThis issue is also not clearly settled in the Eleventh District. New was
authored by Judge Baird of this Court, who was sitting by assignment. Judge Baird
authored Blondheim for this Court and dissented in the Austin decision. Judge
Mahoney, also of this Court and also sitting by assignment, concurred in judgment
only in New. The only judge from the Eleventh District who actually participated in
the New decision, Presiding Judge Nader, dissented from the opinion. In his dissent,
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Judge Nader did not directly address this issue; however, he did proceed to address
the prosecutionâs substantive arguments concerning the propriety of the defendantâs
sentence. It has yet to be determined whether the Eleventh District will actually apply
New under these circumstances.â
{¶ 19} In Whitelock, I issued the following caution:
âGenerally, the judges of the courts of appeals are as able as are the justices
of this court to identify legal issues that require resolution by the Supreme Court in
view of disparate opinions among the courts of appeals. The case before us is an
extreme example of noncompliance with S.Ct.Prac.R. III(6).
âRecognizing that it is possible to distinguish virtually any case and opinion
from any other case and opinion, our opinion here should not be construed to so
delimit our acceptance of certified cases as to cause courts of appeals to err in favor
of noncertification of conflicts between the districts.â Id.,66 Ohio St.3d at 599-
600,
613 N.E.2d at 1036 (Moyer, C.J., concurring).
{¶ 20} In my view, the procedural deficiencies present in the case at bar do
not represent an âextreme exampleâ of an appellate courtâs noncompliance with
S.Ct.Prac.R. IV(2)(A) (formerly S.Ct.Prac.R. III[6]), as was the case in Whitelock.
{¶ 21} Moreover, in dismissing this case as improvidently certified, we are
effectively reversing the finding of the court of appeals that its judgment is in
conflict with judgments pronounced upon the same question by other courts of
appeals of the state, even though the Constitution appears to entrust that
determination, at least initially, to the appeals courts. Section 3(B)(4), Article IV,
Ohio Constitution. While Whitelock establishes our authority to take such a course,
I continue to believe we should exercise that authority sparingly.
{¶ 22} Judge Carrâs dissent in State v. Martin, supra, clearly illustrates that
there is indeed an actual conflict between appellate judicial districts and among
appellate judges. I believe that this court would be acting most consistently with the
purpose underlying the conflict certification procedure established by the Ohio
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January Term, 2001
Constitution, and would best serve the bench and bar, by promptly resolving this issue,
thereby fostering uniform application of the law throughout the state. See State ex rel.
Sylvania Home Tel. Co. v. Richards (1916), 94 Ohio St. 287, 292-293,
114 N.E. 263,
264-265 (âthe constitutional convention felt that it would be wholly unwise to create
such a judicial structure as would permit one Court of Appeals to disregard and refuse
to follow the judgment pronounced by another Court of Appeals upon the same
question, without some method of composing the conflict thus createdâ; a method of
resolving conflicts âwill result in an authoritative pronouncement upon legal questions
and the bringing about of the uniformity in judicial holdings which is desirableâ).
{¶ 23} I therefore respectfully dissent.
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski,
Assistant Prosecuting Attorney, for appellant.
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9
