[Cite as State v. Ewing,
2011-Ohio-1981.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 23949
Plaintiff-Appellee :
: Trial Court Case No. 09-CR-623/02
v. :
:
DEMETRIUS L. EWING : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 22nd day of April, 2011.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ADAM JAMES STOUT, Atty. Reg. #0080334, 2533 Far Hills Avenue, Dayton, Ohio 45419
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Demetrius Ewing appeals from his conviction and
sentence for two counts of Aggravated Burglary, four counts of Kidnapping, five counts of
Aggravated Robbery, and two counts of Felonious Assault, all with firearm specifications.
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He was also convicted of three counts of Assault and one count of Having Weapons Under
Disability. Ewing claims that his convictions should have been merged because they are
allied offenses of similar import, committed with the same animus. He also argues that the
trial court should have held a hearing on his motion to withdraw his guilty plea, and the
motion should have been granted, because he pled guilty in reliance upon trial counsel’s
representation that the trial court had indicated that his sentence would fall in the range of 12
to 20 years. We conclude that because Ewing pled guilty, there is insufficient evidence in the
record to determine whether there was a separate animus for each offense, and the trial court
should have held a hearing on that issue. We conclude that the record does not support
Ewing’s contention that his plea was not knowingly and voluntarily entered, so that the trial
court did not err in accepting that plea. On remand, the trial court is directed to consider
Ewing’s motion to withdraw his plea, which was pending when this appeal was taken, upon
which he appears to be entitled to a hearing.
I
{¶ 2} In February, 2009, Ewing and his co-defendant burglarized a Huber Heights
home. The men were both armed. They tied up and beat the four occupants, and shot one of
them. One year later, Ewing pled guilty to two counts of Aggravated Burglary, four counts of
Kidnapping, five counts of Aggravated Robbery, and two counts of Felonious Assault, all with
firearm specifications. He also pled guilty to three counts of Assault and one count of Having
Weapons Under Disability. In return for his plea, the State agreed to remove the
repeat-violent-offender specifications attached to the first 13 counts. The trial court
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sentenced Ewing to an aggregate term of 31 years in prison.
{¶ 3} Later that month, Ewing filed a motion to withdraw his guilty plea, claiming
that he had been misled by the trial court and his defense attorney to believe that he would
receive a substantially lesser sentence. Before the trial court ruled on the motion, Ewing filed
this appeal.
II
{¶ 4} Ewing’s Fourth Assignment of Error is as follows:
{¶ 5} “THE TRIAL COURT ERRONEOUSLY SENTENCED APPELLANT TO
CONSECUTIVE AND CONCURRENT SENTENCES FOR KIDNAPPING AND
AGGRAVATED ROBBERY.”
{¶ 6} In his Fourth Assignment of Error, Ewing contends that the trial court erred in
failing to merge his convictions for Kidnapping and Aggravated Robbery because they are
allied offenses of similar import that were committed with the same animus. Because this
issue was not raised in the trial court, Ewing has waived all but plain error. State v. Long
(1978), 53 Ohio St.2d 91, 95-96,
372 N.E.2d 804; Crim.R. 52(B). Nevertheless, we have
previously held that a trial court’s failure to merge allied offenses of similar import constitutes
plain error. State v. Coffey, Miami App. No. 2006 CA 6,
2007-Ohio-21, ¶14. See, also,
State v. Puckett (March 27, 1998), Greene App. No. 97 CA 43. Here, the trial court failed to
consider the merger issues.
{¶ 7} Revised Code 2941.25, Ohio’s multiple count statute, provides:
{¶ 8} “(A) Where the same conduct by defendant can be construed to constitute two
4
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.
{¶ 9} “(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.”
{¶ 10} As we explained in State v. Moore, Greene App. No. 2010 CA 13,
2011-Ohio-636, the Ohio Supreme Court has recently clarified the process by which courts
apply this statute in determining whether offenses are allied offenses of similar import. State
v. Johnson,
128 Ohio St.3d 153,
2010-Ohio-6314. In Johnson, the Supreme Court overruled
State v. Rance,
85 Ohio St.3d 632,
1999-Ohio-291, “to the extent that it calls for a comparison
of statutory elements solely in the abstract under R.C. 2941.25. [Now w]hen determining
whether two offenses are allied offenses of similar import subject to merger under R.C.
2941.25, the conduct of the accused must be considered.” Id. at ¶44.
{¶ 11} The Supreme Court clarified as follows:
{¶ 12} “Under R.C. 2941.25, the court must determine prior to sentencing whether the
offenses were committed by the same conduct. Thus, the court need not perform any
hypothetical or abstract comparison of the offenses at issue in order to conclude that the
offenses are subject to merger.
{¶ 13} “In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the
other offense with the same conduct, not whether it is possible to commit one without
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committing the other. … If the offenses correspond to such a degree that the conduct of the
defendant constituting commission of one offense constitutes commission of the other, then
the offenses are of similar import.” Johnson, 2010-Ohio-6314, at ¶¶47-48 (emphasis in
original), citing State v. Blankenship (1988),
38 Ohio St.3d 116, 119 (Whiteside, J.,
concurring).
{¶ 14} “If the multiple offenses can be committed by the same conduct, then the court
must determine whether the offenses were committed by the same conduct, i.e., ‘a single act
committed with a single state of mind.’” Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d
447,
2008-Ohio-4569, ¶50.
{¶ 15} “Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately, or if
the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the
offenses will not merge.” Id. at ¶52 (emphasis in original).
{¶ 16} Under the circumstances of this case, the State has conceded that the trial court
failed to address whether Ewing’s Kidnapping and Aggravated Robbery convictions should
have been merged prior to sentencing. “‘[W]hen a defendant pleads guilty to multiple
offenses of similar import and the trial court accepts the pleas, the trial court has a duty to
conduct a hearing to determine whether the crimes were committed separately or with a
separate animus for each offense prior to entering judgment sentencing the defendant.’” State
v. Jones (April 10, 1998), Darke App. No. 97-CA-1435, quoting State v. Mangrum (1993), 86
Ohio App.3d 156, 158. Because Ewing pled guilty to the Kidnapping and Aggravated
Robbery charges, the record is insufficient to determine whether a separate animus existed for
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the commission of each offense. Accordingly, we conclude that the matter must be
remanded to the trial court for a hearing on whether the offenses of Kidnapping and
Aggravated Robbery were committed with the same animus, requiring merger of the
convictions.
{¶ 17} Ewing’s Fourth Assignment of Error is sustained, in part.
III
{¶ 18} Ewing’s First Assignment of Error is as follows:
{¶ 19} “APPELLANT’S GUILTY PLEA WAS NOT MADE KNOWINGLY OR
VOLUNTARILY BASED UPON HIS RELIANCE ON STATEMENTS MADE BY THE
TRIAL COURT.”
{¶ 20} Ewing’s Second Assignment of Error is as follows:
{¶ 21} “APPELLANT’S GUILTY PLEA WAS NOT MADE KNOWINGLY OR
VOLUNTARILY BASED UPON HIS RELIANCE ON STATEMENTS MADE BY
APPELLANT’S TRIAL COUNSEL.”
{¶ 22} Ewing’s Third Assignment of Error is as follows:
{¶ 23} “THE COURT FAILED TO GRANT THE APPELLANT’S MOTION TO
WITHDRAW HIS GUILTY PLEA AND FAILED TO GRANT A HEARING ON THE
MATTER.”
{¶ 24} In his first two assignments of error, Ewing maintains that the trial court abused
its discretion in accepting his guilty plea. He insists that his plea was not knowingly or
voluntarily entered because he relied upon his attorney’s representation of statements made
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by the trial court during an off-the-record, in-chambers discussion indicating that he would be
sentenced in the range of 12 to 20 years. In his Third Assignment of Error, Ewing argues that
the trial court should have held a hearing on his motion to withdraw his plea.
{¶ 25} A defendant who files a post-sentence motion to withdraw his guilty plea bears
the burden of establishing manifest injustice. Crim.R. 32.1; State v. Harris, Montgomery
App. No. 19013, 2002-Ohio-2278, at ¶ 7, citing State v. Smith (1977),
49 Ohio St.2d 261,
paragraph one of the syllabus. Consideration of “[t]he motion is ‘addressed to the sound
discretion’ of the trial court.” Harris, at ¶ 7, citing Smith, at paragraph two of the syllabus.
Thus, an appellate court reviews the trial court’s decision under an abuse of discretion
standard. Harris, at ¶ 7, citing State v. Adams (1980),
62 Ohio St.2d 151, 157. The abuse of
discretion standard is defined as “‘[a]n appellate court’s standard for reviewing a decision that
is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.’”
State v. Boles, Montgomery App. No. 23037,
2010-Ohio-278, ¶18, quoting Black’s Law
Dictionary, Eighth Edition (2004), at 11.
{¶ 26} After the trial court announced Ewing’s 31-year sentence, both Ewing and his
attorney objected to the length of the sentence and made futile attempts to explain on the
record their expectation of a significantly lower sentence based upon the in-chambers
discussion. Ewing was able to express his displeasure to some extent, but he was not able to
explain the reasons behind it. When counsel tried to explain, the following took place:
{¶ 27} “MR. SKELTON: I will state for the record that what I did tell Mr. Ewing prior
to coming in to plead was the discussions that we had in chambers and the range that – I
understand –
8
{¶ 28} “THE COURT: No, no. I did not promise you anything and I want that clear
on the record. I did not promise and I told nobody what the sentence was going to be.
{¶ 29} “MR. SKELTON: I understand that.
{¶ 30} “THE COURT: Do not –
{¶ 31} “MR. SKELTON: I understand that.
{¶ 32} “DEFENDANT EWING: Well, to my –
{¶ 33} “THE COURT: No, no, no.
{¶ 34} “DEFENDANT EWING: – understanding the range was 12 to 20 to my
understanding.
{¶ 35} “THE COURT: Next case. Next case. I made no –
{¶ 36} “MR. SKELTON: I didn’t say that you did.
{¶ 37} “THE COURT: I made no statement.
{¶ 38} “MR. SKELTON: I didn’t say that you did. But I did tell my client –
{¶ 39} “THE COURT: No. Well, that’s –
{¶ 40} “MR. SKELTON: – what was stated.
{¶ 41} “THE COURT: – what you did. But I did not state anything. There were no
promises made by this Court.
{¶ 42} “MR. SKELTON: I understand that.
{¶ 43} “THE COURT: And that should be on the record.
{¶ 44} “MR. SKELTON: That is on the record.
{¶ 45} “THE COURT: Right.
{¶ 46} “MR. SKELTON: I just wanted –
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{¶ 47} “THE COURT: Next case.”
{¶ 48} In both his motion to withdraw his plea and on appeal, Ewing claims that
during the final pre-trial conference, which took place less than two weeks prior to his plea,
sentencing was discussed in the context of a potential guilty plea. The conference took place
in chambers and was not recorded; Ewing was not present. The only information available in
the record regarding the substance of the conference is found in an affidavit by Ewing’s trial
counsel attached to Ewing’s motion to withdraw his plea. In that affidavit, counsel states
although the State offered to agree to a sentencing range of 15-25 years, Ewing rejected the
offer because the trial court had indicated that the sentencing range would be 12-20 years.
Because the conference was not made part of the record below, and because the trial court
refused to allow Ewing to make a full record of his objections at sentencing, the record before
us cannot support Ewing’s contention that his plea was not knowingly and intelligently made.
Nevertheless, it appears that there may have been a serious misunderstanding regarding
sentencing, which warrants a hearing on Ewing’s motion to withdraw his plea.
{¶ 49} The trial court did not have an opportunity to rule on Ewing’s motion to
withdraw his plea due to the filing of this instant appeal. On remand, the trial court is
directed to consider Ewing’s motion to withdraw his plea, upon which he appears to be
entitled to a hearing.
{¶ 50} Ewing’s First and Second Assignments of Error are overruled. Ewing’s Third
Assignment of Error is overruled as premature, since the trial court has yet to rule on his
motion to withdraw his plea.
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IV
{¶ 51} Ewing’s First and Second Assignments of Error having been overruled; his
Third Assignment of Error having been overruled as premature; and his Fourth Assignment of
Error having been sustained in part, that part of the judgment of the trial court convicting
Ewing of four counts of Kidnapping and five counts of Aggravated Robbery, and sentencing
him accordingly, is Reversed; the judgment of the trial court is Affirmed in all other respects;
and this cause is Remanded for further proceedings consistent with this opinion, which shall
include a hearing upon Ewing’s motion to withdraw his plea, which remained pending when
this appeal was taken.
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DONOVAN and FROELICH, JJ, concur.
Copies mailed to:
Mathias H. Heck, Jr.
Andrew T. French
Adam James Stout
Hon. Frances E. McGee
