Opinion
CASE NO. 08 MA 199
12-12-2013
STATE OF OHIO PLAINTIFF-APPELLEE v. TARAN HELMS DEFENDANT-APPELLANT
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney For Defendant-Appellant: Atty. Gary Van Brocklin
OPINION
CHARACTER OF PROCEEDINGS:
Appellant's Application for
Reconsideration.
JUDGMENT: Application Denied. APPEARANCES: For Plaintiff-Appellee:
Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
For Defendant-Appellant:
Atty. Gary Van Brocklin JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
WAITE, J.:
{¶1} Appellant Taran Helms requests reconsideration of our Opinion in State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-1147 ("Helms II"), pursuant to App.R. 26(A). Appellant contends that we incorrectly held that his convictions for attempted murder and felonious assault were not allied offenses. Appellant misstates our holding in Helms II. While we did determine in his case that the two crimes were allied offenses, we also held that they should not merge at sentencing, because they were committed separately with separate animus. Id. at ¶44-47. As Appellant has not cited any obvious errors or raised any issues that were not considered in his direct appeal, the application for reconsideration is denied.
{¶2} This case arose from the robbery and shooting of Joseph Kaluza as he was driving to a bank to make a deposit as part of his regular duties as manager of a Kentucky Fried Chicken restaurant in Youngstown. Co-defendant Hattie Gilbert deliberately caused a traffic accident with Kaluza's vehicle. Appellant then walked up and shot Kaluza in the neck. Kaluza was alive but paralyzed after the shooting. Appellant pushed Kaluza's vehicle to a more secluded spot, where he threatened to shoot Kaluza in the head. He then took the deposit bag and fled. Appellant and Gilbert were later apprehended and charged with several crimes stemming from the shooting and robbery.
{¶3} The test generally applied in reviewing an App.R. 26(A) motion for reconsideration, "is whether the motion calls to the attention of the court an obvious error in its decision or raises an issue for the court's consideration that was either not considered at all or was not fully considered by the court when it should have been." State v. Wong, 97 Ohio App.3d 244, 246, 646 N.E.2d 538 (4th Dist.1994). The underlying appeal is Appellant's second in this matter, owing to an Ohio Supreme Court remand. Appellant argues that we should have relied solely on the limited factual summary addressed in our last Opinion on the issue of merger as it appeared in State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872 ("Helms I"). Appellant contends that, if we had limited our analysis to the factual analysis conducted in Helms I, we should have found that the crimes were allied offenses and that they merged at sentencing.
{¶4} Appellant is aware that Helms I was overturned by the Ohio Supreme Court and remanded for us to once again review and determine whether his crimes were allied offenses. State v. Helms, 128 Ohio St.3d 352, 2011-Ohio-738, 944 N.E.2d 233, ¶3. The Ohio Supreme Court specifically stated that the first assignment of error in Helms I, dealing with allied offenses, was vacated. The Court specifically then remanded the matter for review in light of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Id. Johnson significantly altered Ohio law regarding allied offenses as it had previously been interpreted under State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699 (1999). It is abundantly clear in Helms II that the section of Helms I dealing with allied offenses was vacated and remanded. Helms II at ¶1, 16. Therefore we conducted an entirely new review of the issue. This was considered and addressed in our Opinion.
{¶5} Since Appellant's application for reconsideration was filed, the Ohio Supreme Court has reviewed the crucial question as to what standard of review an appellate court should use when dealing with the issue of allied offenses in light of Johnson. Obviously, the standard of review can significantly affect the outcome of an appeal. Although not expressly stated in Helms II, our normal standard of review for errors relating to allied offenses had always been de novo. State v. Ryan, 7th Dist. No. 10-MA-173, 2012-Ohio-1265; State v. Taylor, 7th Dist. No. 07 MA 115, 2009-Ohio-3334. We conducted such a review in Helms II. The Ohio Supreme Court has now confirmed that the correct standard for reviewing an issue regarding allied offenses is indeed de novo. Since we applied the correct standard of review in Helms II, there is no reason for us to reconsider our review. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶1. Although Appellant urges that we should have reviewed the issue under some lesser or more restrictive standard, it is apparent that we properly conducted a de novo review on this issue. We determined that the record revealed the crimes of attempted murder and felonious assault, although allied offenses, were committed separately and with separate animus, and therefore, should not merge.
{¶6} The Ohio Supreme Court has also recently held that an allied offense analysis requires a "review [of] the entire record, including arguments and information presented at the sentencing hearing, to determine whether the offenses were committed separately or with separate animus." State v. Washington, Slip Opinion No. 2013-Ohio-4982, syllabus. This again confirms that we conducted the proper allied offense review, because we reviewed the entire record instead of focusing only on those sections of the record that Appellant believes were relevant.
{¶7} The application for reconsideration is hereby denied. Vukovich, J., concurs; see concurring opinion. DeGenaro, P.J., dissents; see dissenting opinion. VUKOVICH, J., concurs with Opinion, but writes separately to address the Dissent:
{¶8} While I concur with the decision to deny the motion for reconsideration, I write separately to address the dissent. There are three points of the dissent that I will be addressing: 1) its application of State v. Washington, Slip Opinion No. 2013-Ohio-4982; 2) its position that there is no evidence to support merger in the record; and 3) its reiteration that our decision in Helms II violates appellant's due process rights.
{¶9} In Washington, the Ohio Supreme Court held that "when deciding whether to merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review the entire record, including arguments and information presented at the sentencing hearing, to determine whether the offenses were committed separately or with a separate animus." Washington at ¶ 24.
{¶10} The dissent appears to conclude that this holding means if the evidence at trial supports the conclusion that the offenses were committed with separate conduct or a separate animus, but that the state never argued the exact theory that leads to that conclusion at either trial or sentencing, neither the trial court nor the appellate court could use such theory to find that the offenses do not merge. Dissent ¶ 24-29, 32. However, Washington does not confine the trial court to the arguments presented at trial and at the sentencing hearing. Rather, it states the entire record must be reviewed. As the reviewing court, we review merger decisions under a de novo standard of review, which means we also review the entire record. Under such review, we will affirm "a trial court's decision that is legally correct even if the appellate court uses grounds other than those set forth by the trial court." State v. Garrett, 7th Dist. No. 06BE67, 2007-Ohio-7212, ¶ 15 citing State v. Peagler (1996), 76 Ohio St.3d 496, 501, 668 N.E.2d 489 (1996) and Cook Family Invests. v. Billings, 9th Dist. Nos. 05CA008689, 05CA008691, 2006-Ohio-764, at ¶ 19. In fact, the Ninth Appellate District has stated that an appellate court is bound to affirm a trial court's judgment that is legally correct on other grounds regardless of the arguments raised or not raised by the parties." State v. Ingram, 9th Dist. No. 25843, 2012-Ohio-333, ¶ 7.
{¶11} The opinion in Washington also reiterates the long standing rule that the defendant bears the burden of establishing his entitlement to merger under R.C. 2941.25. Washington at ¶ 18, quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). Thus, it is not the burden of the state to show that merger is required. Although inadvisable, the state may choose to stand silent (which is practically what the prosecutor did in this case, since it did not respond to or rebut the defense's merger argument). Such inaction by the state does not mean that the trial court, after reviewing all of the evidence, is required to merge the offenses merely because the state did not present any argument as to why the offenses should not merge. That would lead to an illogical result when the evidence applied to the law supports the conclusion that the offenses are not required to merge. The dissent's position is placing a reciprocal burden on the state to rebut the defendant's position and to argue each and every theory of why the offenses should not be merged.
{¶12} I do not believe Washington stands for this position because it specifically mandates the trial court, and this court by extension through its de novo review, to consider the entire record. Under a de novo standard of review, we are permitted to find a basis for not merging the offenses regardless of the state's inability or desire to set forth, at trial or on appeal, every possible theory of why the offenses should not merge. If the Washington Court wanted to constrain a trial court and reviewing court to only the arguments presented at trial and sentencing, the language that the Court used would have been limited to the arguments presented by the parties at trial and sentencing. It would not have the broad language that additionally requires the trial court to review the entire record.
{¶13} Therefore, for those reasons, Washington does not support the conclusion that our decision in Helms II was incorrect. On the contrary, that case indicates we were bound to consider the entire record.
{¶14} When a review of the entire record is considered, merger is not warranted. The dissent contends that the state conceded in its motion in opposition to reconsideration that there was no evidence in the record that appellant pointed the gun at the victim while uttering the threat. Dissent ¶ 31. This is a misstatement of the concession. What the state conceded was that there was no "direct evidence" that appellant pointed his firearm while uttering the subsequent threat - 'Where's the rest of the money, or I'm gonna shoot you in the head.'" State's Response to Appellant's Application for Reconsideration page 7. The state further indicated that there was circumstantial evidence that when the threat was uttered appellant, at minimum, had the firearm on his person and ready at hand. It is a well-established point of law that circumstantial evidence has the same probative value as direct evidence. State v. Marsh, 7th Dist. No. 12MA40, 2013-Ohio-2949, ¶ 11, citing State v. Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991). In Helms II, we found that the circumstantial evidence was sufficient evidence of felonious assault. Helms II at ¶ 30-31. There are no obvious errors with that conclusion thus it will not be reconsidered.
{¶15} In addition to relying on the Washington holding and its belief that the evidence does support merger of the felonious assault and attempted murder convictions to support its conclusion that reconsideration should be granted, the dissent once again asserts appellant's due process rights were violated by our decision in Helms II. The basis of alleged due process rights violation is that our decision that those offenses do not merge was based on our own findings from an independent review of the record as opposed to arguments presented by the state. This due process argument was raised by the dissent in Helms II and addressed by the majority opinion. Helms II at ¶ 32 (addressing dissents position that there is a due process violation). Since that reasoning was already addressed and considered, it does not provide a basis for reconsideration. DeGenaro, P.J., dissents.
{¶16} Pursuant to the recent Ohio Supreme Court decision in State v. Washington, Slip Opinion No. 2013-Ohio-4982 (Nov. 14, 2013) and for the reasons articulated more thoroughly in the majority opinion in State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872, ¶36-73 (Helms I), and the minority opinion in State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-1147, ¶95-117 (DeGenaro, J. concurring in part and dissenting in part) (Helms II), as well as those additionally discussed here, Appellant's motion for reconsideration should be granted. The majority analysis in Helms II is erroneous, especially in light of Washington. The record at trial and at sentencing demonstrates that the State relied upon the same conduct to prove the two offenses, and that the offenses were neither committed separately nor with a separate animus. Thus, Appellant is afforded the protections of R.C. 2941.25 and the attempted murder and felonious assault convictions must merge for sentencing purposes. Accordingly, I would grant reconsideration, affirm Helms' convictions, vacate his sentence, and remand to the trial court for resentencing where the State would elect which offense to pursue pursuant to State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶20-22.
{¶17} As a threshold matter, it is important to place Helms II in its proper context. The character of the Ohio Supreme Court's decision to remand Helms I was procedural, not on the merits. Both parties appealed Helms I, and through sheer happenstance the case was pending appeal to the Ohio Supreme Court when the Court released Johnson. Accordingly, the Court ruled: "The portion of the judgment of the court of appeals addressing appellant's first assignment of error below is vacated on the authority of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and the cause is remanded to the court of appeals for application of our decision in State v. Johnson." State v. Helms, 128 Ohio St.3d 352, 2011-Ohio-738, 944 N.E.2d 233, ¶3.
{¶18} The Ohio Supreme Court did not review the substance of our decision in Helms I or determine whether we had correctly resolved the merger issue. Helms I was treated similarly to appeals which were pending when State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 was released. Compare In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174 (remanding for application of Foster), with State v. McClendon, 128 Ohio St.3d 354, 2011-Ohio-954, 944 N.E.2d 235 (summarily vacating portion of the judgment of the court of appeals addressing merger on the authority of Johnson, and remanding to the court of appeals for application of Johnson); State v. Stall, 128 Ohio St.3d 501, 2011-Ohio-1960, 946 N.E.2d 756 (same); State v. Brenson, 128 Ohio St.3d 396, 944 N.E.2d 1172, 2011-Ohio-1425 (same); State v. Cherif, 128 Ohio St.3d 356, 2011-Ohio-956, 944 N.E.2d 236 (same); State v. Humphrey, 128 Ohio St.3d 397, 2011-Ohio-1426, 944 N.E.2d 1172 (same).
{¶19} And although the case was remanded for this court to apply the "new" Johnson analysis; as a practical matter the majority in Helms I had applied the same conduct-based merger analysis adopted by the Court in Johnson when it determined the attempted murder and felonious assault convictions must merge. Helms II at ¶61 (DeGenaro, J. concurring in part and dissenting in part). In fact, during oral argument in Helms II, "both counsel conceded that given the conduct-based merger analysis applied by this court in Helms I, Johnson [did] not have a legal effect upon the analysis on remand." Helms II at ¶51 (DeGenaro, J. concurring in part and dissenting in part).
{¶20} However, the majority in Helms II erroneously agreed with the State's contention that the remand provided an opportunity for the court to completely re-evaluate its decision in Helms I. Thus, the State got a proverbial "second bite at the apple" and was able to persuade a panel member to change their mind and adopt a theory posited for the first time by the dissent in Helms I. As a result, the dissent's analysis in Helms I was reborn as the majority in Helms II.
{¶21} Notwithstanding the de novo standard of review that continues to remain in effect for merger decisions, see State v. Williams 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245,
remand as an opportunity to completely reconsider the merits of this case since, as a practical matter, this court had already applied a proper conduct-based merger analysis in Helms I. The merger issue was resolved in Helms I by comparing the elements of attempted murder and felonious assault based upon the facts in the case, rather than in the abstract. Helms I at ¶51-53. This part of the merger analysis remained unchanged by Johnson. Washington at ¶9 ("We hold that while Johnson abandoned a portion of the test for determining whether offenses share a 'similar import,' it did not change the test for determining whether those offenses resulted from the 'same conduct.' ").
{¶22} Thus, despite the fact that the Helms I merger analysis was vacated and remanded to "apply Johnson" the principle of law of the case should have dictated that the merger decision in Helms I be reaffirmed, and the majority's conclusion to the contrary in Helms II was therefore erroneous.