Supreme Court of Ohio

IN THE SUPREME COURT OF OHIO

Michael Swiergosz, On appeal from the Lucas County Court of Appeals, Appellant, Sixth Appellate District

V. Court of Appeals Case No, L-12-1293 State of Ohio,

Appellee.

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT MICI3AEL SWIERGOSZ

Kenneth J. Rexford, Esq. (0064599) KenezetAi J. Rexford & Cb., L.L.C. 112 North West Street Lima, Ohio 45801 (419) 227-0048 office (866) 611-7448 fax kenrexford(7hotm ail. eom

COUNSEI, FOR APPELLANT, MICHAEL SWIERGOSZ

Julia R. Bates, Esq. Prosecuting Attvrneyfor Lucas County Lucas County Courthouse ^; -.l .----'----^ -- }' Adalns arid Erie Streets 'Foledo, Ohio 43604 , ...., . .. % . .. , ..... '-.;;^ .;:.; <.

E, STATE OF OIIIO .. . . ^ s...:i:: .^•..•s>, . ..s •:rs ^<%.

"f•^^^;: l^.s" I^^^ I CLERK OF COURT SUPREME COURT OF OHIO TABLE OF CONTENTS

PaLe EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBS rANTIAL CONSTITUTIONAL QUESTION ...... 1

STATEMENT OF THE CASE AND FACTS ...... 3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... 5

PROPOSITION OF LAW #l: The Trial Court erred by not merging Count VI (Rape) with. Count VII (Rape) ...... 5

PROPOSITION OFLAW #2: The Trial Court erred by not merging Counts VI (Rape) and VII (Rape), whether merged together or not, with the three counts of Kidnapping, namely Count II, Count IV, and C"ount V ...... 5

PROPOSITION OF LAW #3: The Trial Court erred by not merging Count I (Aggravated Burglary) with one or all of the remaining Counts II, III, IV, V, VI, VII, and/or VIII ...... 5

PROPOSITION OF LAW #4: The Trial Court erred by not merging Count III (Felonious Assault) with Count VI (Rape) and/or with Count VII (Rape), whetller the latter are or are not merged with each other ...... 5

PROPOSITION OF LAW #5: - The Trial Court erred by not mergiiag Counts II, IV, and or V with each other into one (or at most two) Kidnapping convictions ...... 5

PROPOSITION OF LAW #6: The Trial Court violated Mr. Swiergosz' right to Trial by Jury, to PresetztTnent to a Grand Jury, and to Proof I3eyond a Reasonable Doubt, in violation of the Ohio Constitution and of the United States Constitution ...... , ...... 11

CONCLUSION ...... 15

PROOF OF SERVICE ...... 15

APPENDIX Appx. Page

Journal Entry of the Lucas County Court of Appeals ...... 16

ii EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT UENER.AL INTEREST AND ZNVOLVES A SUBSTANTIAL CONSTITI7TIONAL QUESTION

Over the past decade, this Honorable Court has made nearly a dozen tweak-s to the jurisprudence on merger lav,r and statutory interpretation of R.C. §2941.25. Why?

On the one hand, the reason for the numerous decisions is simplistic, namely that the statute is drafted in such a way as to not adequately provide guidance in the real world of criminal litigation. On the otlier hand, multiple controversies keep arising because courts, prosecutors, and defense attorneys are having difficulty interpreting the law and then applying the law to FACTS. The dispute is rarely actually one of nuanced legal interpzetation. The real difficulty is in application of disputed facts to the law.

In a most recent pronouncement, State v. Washington, Slip Opinion No. 2013-Ohio-

4982, decided October 18, 2013, this Honorable Court noted that "Washington does not defend the rationale supporting the court of appeals' refusal to consider the merger information presented by the state at the resentencing hearing-and for good reason. It would be equally unfair to bind a defendant to the theories presented at trial without allowing the defendant to present merger arguments at sentencing. For example, if the evidence presented at trial established two separate criminal acts, but it is unclear whether the prosecution relied on the sanie conduct to prove both, the defendant could never satisfy his or her burden of showing that the prosecution has relied upon the same conduct to support both offenses charged." ld., at ¶21.

What does this mean? Literally, the interpretation of the statute is such that the parties are allowed to re-litigate the facts at the hearing on merger, even if the jury relied upon other facts in deciding guilt or innocence. Thus, the jury does not decide these facts if they are contested, and facts can even be found that are in conflict with the jury findings. Moreover, no

1 standard or proof is ever provided for resolving these disputes, other than perhaps from

Washington a burden of proof by a preponderance on the defense.

The problem with all of these decisions interpreting the statute, however, is that no litigant seems to have raised the issue of whether the statute itself violates Due Process and the right to trial by jury as protected by the Ohio Constitution and the United States Constitution.

This appeal for the first time allows this Honorable Court to not address merger and R.C.

§2941.25 simply as a matter of deciphering legislative intent but rather to address this issue from the standpoint of constitutional rights. Whether that nieans finding the statute unconstitutional or modifying the interpretation so as to enable the structure to contixiue to exist but in a constitutional manner is unclear, but zionetheless the issue should be reviewed in the correct manner, aiad this appeal allows that proper review by fully raising the relevant issues.

Therefore, the six propositions of law are as follows:

PROPOSITION OF LAW #1: The Trial Court erred by not merging Count VI (Rape) with Count VII (Rape).

PROPOSITION OF LAW #2: The Trial Court erred by not merging Counts VI (Rape) and VII (Rape), whether merged together or not, with the three counts of Kidnapping, namely Count II, Count IV, and Count V.

PROPOSITION OF LAW 93: The Trial Court erred by not merging Count I (Aggravated Burglary) with one or all of the remaining Counts II, III, IV, V, VI, VII, and/or VIII.

PROPOSITION OF LAW #4: The Trial Court erred by not merging Count III (Felonious Assault) with Count VI (Rape) and/or with Count VII (Rape), whether the latter are or are not merged with each other.

PROPOSITION OF LAW #5: The Trial Court erred by not merging Counts II, IV, and or V with each other into one (or at most two) Kidnapping convictions.

PROPOSITION OF LAW #6: The Trial Court violated Mr. Swiergosz' right to Trial by Jury, to Presentment to a Grand Jury, and to Proof Beyond a Reasonable Doubt, in violation of the Ohio Constitution and of the United States Constitution.

2 STATEMENT OF THE CASE AND FACTS

This case involves an appeal following prior remand. In the post-remand entry regarding

merger, no findings of fact are included. Thus, any "facts" would be those stated on the record

during the hearing held on September 14, 2012, a transcript of which was filed with the Appeals

Court. Deciphering the precise rulings from that transcript is difficult, however.

Consider the kidnapping counts. The Trial Court references an act called "the kidnapping

of Mrs. Sharkey." However, the trial court does not state that any specific kidnapping count

would be that act. The Trial Court referenced a distinct act of using a handgun. "with Mrs.

SNviergosz°" and discusses a'"kidnapping with the handgun" but does not precisely link the

handgun with the kidnapping so as to make a'"finding" that there was a separate kidnapping

involving Mrs. Swiergosz, let alone which count reflects that other act. Later, the Trial Court

references Count II as "the first kidnapping of Mrs. Sharkey." That statement makes little sense,

because it suggests that there is a second kidnapping of Mrs. Sharkey if Coun.t II is the "first" if

ttiat type, and yet the actual ruling suggests that the other two remaining kidnapping counts,

which merged with each other but not with Count II, involved Mrs. Swiergosz.

Consider also animus. The Trial Court at times makes no actual "finding" but instead

opines a probability, which is undecipherable. For instance, the Trial Court noted that "I think

there probably is a separate anirnus in the kidnappings," whi.ch is not a finding but a'"probably"

observation. This observation is complicated by the judge viewing her apparent duty to find fact

as instead a duty to defer to the prosecution to elect whether there is separate aninnis, which is a wildly confused view of the law. The Trial Court told the prosecutor, as to the deterrnination of separate animus, that "you're the one that makes the decision." This obviously is wrong, and this brings into doubt what any of these pronouilceznents by the Trial Court actually mean. However,

3 the Trial Court seems to actually believe this, as shown by the statemerit that "the law is clear that it is a determination, first of all, of the State to elect which offenses merge."

Now, legally, the Trial Court essentially agreed that all counts that the defense claimed to be subject to potential merger were in fact subject to potential merger. Thus, the sole question remaining, per the Trial Court, was the question of aniinus and, thus, the findings of fact by the

Trial Court on that question. Strangely, however, the Trial Court, as discussed above, felt that the prosecutor made that factual "finding," which is implausibly shocking and strange.

After this wandering analysis, the Trial Court did make some findings of fact. First, the

Trial Court found, as a matter of fact, that Counts VI and VII, the two Rape counts, were not committed with the same conduct. Second, as to the three Kidnapping charges, the Trial Court found that there were "multiple victims" without specifying a number or which victim(s) were tied to which. Kidnapping counts. Third, the Trial Court ruled that the act forming the basis of the Felonious Assault was "Mr. Swiergosz striking [Mrs. Swier.gosz] with the tire iron." I'his was, therefore, deemed to be distinct from the act(s) of Rape. Fourth, the Trial Court ruled that the Kidnapping act(s) were separate incidents from the Rapes because the victim was moved

"twice," first to a room to remove her clothes and then second to a different room to commit the

Rape acts. A third possible "Kidnapping" event was described. Inferentially, then, as the second movement was the only one for the specilic purpose of Rape, and the first not for any obvious sexual motive, apparently tlie Trial Court deemed itself capable of deducing that the jury maiit to convict Mr. Swiergosz of Kidnapping for specifically tlie first movement (for the purpose of stripping his wife of clothing) and specifically not for the second movement (for the purpose of the Rape acts), wliich seems astonishing. No other fact finding was done by the Trial Court.

This matter was remanded to the Trial Court. The remand instruction was somewhat

4 complicated. According to the mandate, "the judgment of the I,ucas County Court of Common

Pleas is hereby affirmed, in part, reversed, in part, the senteixces vacated, and this matter is

Johnson and remanded for a new sentencing hearing to determine the merger of offenses under for resentencing." As noted, "In his assignment, neither party has properly briefed or argued

for sentencing purposes." which of the eight offenses, if any, should be merged under Johnson

After remand, Mr. Swiergosz retained new counsel. The undersigned as new counsel filed a Memorandum with the trial court tllat was intended to offer that proper briefing and to raise defenses and/or objections relevant to the rernand hearing. The Trial Court held oral argument on these issues. By prosecution election, the Trial Court merged Count V into Count

IV and merged Couilt VIII into all other remaining counts. Sentences were imposed as to Cowits

1 (4 years), II (4 years), III (4 years), IV (6 years), VI (8 years), and VII (8 years). Additionally,

specifications resulted in an additional term of 3) years as to Count II and of 3 years as to Count

III, with all other specifications merged. The sentences for Counts I and II were ordered served

concurrently with each other. An appeal followed, but the Sixth District rejected all claims.

ARGUMF.NT IN SLTPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW #1: The Trial Court erred by not merging Count VI (Rape) with Count VII (Rape).

PROPOSITION OF LAW #2: 'I'he Trial Court erred by not merging Counts VI (Rape) and VII (Rape), whether merged together or not, with the three counts of Kidnapping, namely Count II, Count IV, and Count V.

PROPOSITION OF LAW #3: The Trial Court erred by not merging Count I (Aggravated Burglary) with one or all of the remaining Counts II., III, IV, V, VI, VII, and/or VIII.

PROPOSITION OF LAW #4: TheTria1 Court erred by not merging Count III (Felonious Assault) with Count VI (Rape) and/or with Count VII (Rape), whether the latter are or are not nierged with each other.

PROPOSITION OF LAW #S: The Trial. Court erred by not merging Counts II, IV,

5 and or V with each other into one (or at most two) Kidnapping convictions.

These five propositions of law are raised together as related.

In assessing merger, courts are govern.ed initially by operation of statutory law, namely

R.C. §2941.25, and by the latest interpretation of this statute by the Ohio Supreme Court in State v. .Iolzrason, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The courts are also obviously governed by the Ohio Constitution and the United States Constitution.

The first question is whether it is possible to commit one offense and another with the same conduct. In assessing this first .Iohazson prong, it is to a degree necessary to define precisely the "offense" considered. Consider, for example, the two convictions for Rape. Each of these two counts in the Indictment read word-for-word identically in every single respect, as did the verdict forms. Both the allegation and the verdict are of guilt for a violation of R.C.

§2907.02(A)(2)&(B), which is sexual conduct by force. The facts of the case seem to suggest that the alleged victim for each count is the same person but that the different charges are explained by two different acts, each of which is. a different type of conduct meeting the definition of "sexual conduct." However, there are three problems with a Johrisofa analysis here.

First, the Indictment did not distinguish Counts VI and VII as distinct. The accused is entitled under the Ohio Constitution and the tJnited States Constitution to notice of the charges against him and of presentment (under the Ohio Constitution) of what charges are against him.

Second, the verdi;ct forins to not differentiate which alleged conduct formed the basis for the two separate verdict fori-ns. If the State thcory was that one act was an act of fellatio (R.C.

§2907.0 i(A)(1)) but that the otl-ier act was an act of vaginal intercourse (R.C. §2907.01(A)(1)), then the verdict fonns should have called for special verdicts as to which act or acts forrned the basis for these verdict fornis. Without this, one cannot say tivhether the two (2) verdict form.s

6 simply resulted from the jury twice noting that they agreed that the State proved some act constituting "sexual conduct" beyond a reasonable doubt, whether twice for the same act or once each for two separate acts. As a review of the verdict forms camiot resolve this issue, and as substitution of the prosecutor's intent or theorv, or the judgment and assessment of this

Honorable Court or of the Trial Cour-t, is not a perznissible substitution for the demanded right to trial by jury, any determination that these two verdicts resulted from different acts would be unconstitutional and would violate the right to trial by jury and to due process.

Tliird, the State seems to assume that commission of each type of "sexual conduct" necessarily constitutes a separate offense. That conclusion is unfounded. R.C. §2907.01(A) defines "sexual conduct" as "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." The fact that R.C. §2907.01(A) defines various types of conduct that constitute "sexual conduct" does not convert R.C. §2907.02 into an offense wherein each specific type of "sexual conduct" constitutes as separate offense. Rather, R.C. §2907.02 simply criminalizes "sexual conduct" under certain circumstances, in whatever form it may take.

The statute criminalizes "sexual conduct." Hence, during a single incident, if multiple forms of sexual conduct occur, the entire episode would be one incident of sexual condiict. See, e.g., State v. Hinaes (7"' Dist., Jan. 22, 2010), 08 MA 146, 2010-Ohio-332. For purposes of the first .Iohnsatz question, the two (2) counts of Rape are clearly subject to potential merger.

The next question is whether these offenses (or one of them) potentially merge with one or more of the three (3) counts of kidnapping. Also related is the issue of whether all three

^ counts of Kidnapping merge with each other.

Mr. Swiergosz was alleged in Count It of the indictment to have committed a Kidnapping of the type requiring restraint to enable a felony offense (R.C. §2905.01(A)(2)). Count IV specifies a specific intent to commit an act of sexual activity (defined by R.C. §2907.01(C) as including "sexual conduct") against the person's will, which would amount to a felony offense, in violation of R.C. §2905.01(A)(4). Count V alleged kidnapping of the variety that requires purpose to inflict serious physical harm. on the other person (R.C. §2905.01(A)(3)). ln no count of the lndictment does the Grand Jury specify a victim of any of these three alleged kidnappings.

The verdict forms do not indicate the intended victim.

The result, then, is an allegation of three types of kidnapping, defined as violations of

R.C. §2905.01(A)(2), (3), and (4). As rape is a felony activity that involves sexual activity and that causes serior.ts physical harm (as defined by R.C. §2901.01(A)(5) to the victim, each of these three counts of kidnapping seem to be subject to potential merger into the rape (or rapes). See, e.g., State v. Cooper, 2012-Ohio-555, C-110027, C-110028 (OHCA1). Additionally, each of the three kidnapping counts merge with the remaining two kidnapping counts.

Appellant urges that all three Kidnapping counts must merge together, that both.Rape convictions must merge together, and that the two groups must merge with each other, resulting in either one Rape or one Kidnapping as the residue, however, as discussed above and below.

Considering next Count I, which alleged essentially trespassing to facilitate any crime. A

"Trespass" is defined as entering or remaining on the property of another. Since the decision in

Bouie v. City of G`Udumbia, 378 U.S. 347 (1964), probably every State in the Union, including

Ohio, defines a Trespass as not just entering but also remaining on the property of another.

Neither the Indictment nor the verdict form compels a conclusion as to whether the "trespass"

8 was etitering or remaining. The State theory is irrelevant.

Granted, in Ohio an entry that is invited may form the basis of a Burglary charge is the

invitee status becomes revoked by virtue of the commission of a criminal offense within the

occupied structure. The remaining becomes implicitly without consent, as the victim of the

crime has surely withdrawn consent at that point, whether the offense be felonious assault,

kidnapping, or rape. But, if and when this happens, the offense that results in an implied

withdrawal of invitee status and the trespass as a predicate for or elemental part of the greater

Aggravated Burglary should be deemed as subject to potential merger under Johnson. As the

Indictment does not allege which "criminal offense" was contemplated and does not allege

tvhether the trespass was entry or remaining, and as the verdict forms do nothing to clarify either

issue, any interpretation after-the-fact that isolates a specific element chain or a specific theory

would violate Mr. Swiergosz' right to presentment (under the Ohio Constitution) and to trial by

jury. Thus, it seems coinpelled to treat the Aggravated Burglary conviction as subject to potential merger with any of the remaining counts. Thus, it appears that Count I should have

merged with whichever of the remaining counts formed the purpose of the burglary.

The first Jolznson question is tough to answer when considering Count III, as well.

Count III alleged a felonious assault without specification of the alleged victim; the verdict fon.n

did not clear th..is up. The Indictment alleges specifically a violation of R.C. §2903.1 l(A)(2),

which parallels the verdict farm.. This requires mere "physical harzn" (as defined in R.C.

§290I.01(A)(3) and not "serious" physical harm. As Rape clearly would involve "physical

harm," Count III seems subject to potential merger with Counts VI andlor VIII. As mentioned

above, Counts III and I potentially merge, as well.

The second Johnson question as to each set of potential mergings describe above is

9 actually two-fold, namely determination of whether the convictions did or did not result from the

saine act and determination of whether the saine animus was involved. For purposes of the first

five propositions of law, these two questions are analyzed from the standpoint of the facts. The

sixth proposition of law, however, raises a constitutional challenge.

Factually, merger should have occurred so as merger both Rape counts, because the

sexual conduct was an ongoing single event.

As to the Tluee Counts of Kidnapping (Counts II, IV, and V), while neither the

Indictment nor the Verdict Forms enable us to deterinine which victim was intended by which of

these three counts, the prosecution seenls to have decided that Counts IV and V merged because these two counts involved the same victim. The Trial Court agreed and merged these two

counts. However, the State maintained that Count II: involved the kidnapping of Mrs. Sharkey,

not Mrs. Swiergosz (the apparent victim for Counts IV and V). If accurate, that analysis would be accurate. However, as noted above, neither the Indictment nor the Verdict Forms enable us to determine which victim was intended by which of these three counts.

As to the Rape Cotz.nts with the Kidnapping Counts, Counts IV and V were inerged as both involving the same victim, Mrs. Sharkey. The Rape counts were the purpose for the merged Counts IV and. V and should therefore have merged with this residue Count IV.

Count I alleged Aggravated Burglary. The purpose for the trespass was to commit the acts alleged as to all remaining counts. Bo other purpose was stated. In light of these facts, either all counts remaining after merger should be merged into the sole Count I, or (znore likely)

the State should be allowed to elect that Count I merges into one or more (or all) of the remaiziing Counts, after merger of the remainder as appropriate.

Count III alleged Felonious Assault. One cannot determine from the Indictment or from

10 the Verdict Forms what act formed the basis of the Count III conviction. If the act found by the jury to have been the basis for the Count III conviction was the sexual conduct done to Mrs.

Swiergosz, then Count III should merge with Count VI andfor Count VII (or the residue of the same). If merged into Count VI and/or Count VII, then the residue would merge as described above. If Count VI andfor Count VII are merged into Count III, then Count III should merge with the appropriate Kidnapping count(s) as if Count III had been Count VI and/or Count VII for the same reasons explained above. Additionally, the residue of mergers and elections made should merge with Count I as discussed above.

The factual dispute detailed above concerns the interpretation of facts necessail, to comply with R.C. §2941.25. The factual questions are whether these various offenses are or are not "the same conduct," whether the acts forming the basis of the convictions were "committed separately" as contemplated by the statute, and whether the separate counts were committed

"with separate animus." In this case, there remains a dispute between the State and Mr.

Swiergosr as to these questions.

The verdicts by the jury did not establish as special findings that the multiple counts were in fact the same or different conduct, done with the same or different animus, and/or done at the same "tirne" or separately. Instead, the verdict simply was that the accused was guilty of the statutorily-described counts. The precise fndings of a jury in the verdicts governs even over what might be described as inconsistent "facts" presented to the jury during the trial. When an issue of this importance is governed by a decision of fact, due process rights (as guaranteed by both. the Ohio Constitution and the Ilnited States Constitution) are surely implicated. See, e.g.,

11 App.reridi vNew Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Despite the d'zsliute being largely one of fact, there is notlling in the finding of the jury

that establishes that these offenses were separate acts, committed "separately," or committed

with a separate animus. T'he jury verdict does not resolve the dispute of fact. Mr. Swiergosz has

a right to contest allegations of fact, whether the concern what could be called traditional elements or whether the disputed facts be R.C. §2941.25 "facts," which are functionally equivalent to elements. In fact, Mr. Swiergosz did challenge these facts.

The Ohio Revised Code, by not providing to Mr. Swiergosz his right to notice of any claimed or to be claimed separate animus or any claim of separation or distinctness of "conduct," by not allowing that question. to be presented to a jury, and by not establishing the standard of proof beyond a reasonable doubt as to any dispute as to these facts, violates the constitutional rights of the accused, guaranteed to him by the Ohio Constitution and by the tlnited States

Constitution. The Trial Court, by rnaking factual findings as to these factual questions, therefore violated these of Mr. Swiergosz' rights.

ln. Ohio, the legislature has determined that if one act or transaction involves conduct that meets all of the elements of two or more described criminal offenses in Ohio, or perhaps two instat1ces of the exact same conduct, the multiple offenses may nonetheless merge into a single conviction of a single offense (election as to which made by the prosecution) if the act or transaction is such that the statutorily distinct offenses were so similar that the comniission of the one necessarily (from a transactional or logical. perspective and not from a strict elemental

analysis perspective) reqtiires the commission of the other. However, the Ohio legislature also

established that two statutorily defined offenses will not merge, despite this standard, if the two

12 distinct offenses were each done with a"separate animus."

Real world conduct often is not so precise as to enable an easy analysis. Facts are often

contested. This n,cans that the State and the accused may disagree as to the similarity or

distinction of the animus involved. The defense may assert that tlle facts lead to a conclusion

that two or more offenses subject to possible merger were done with the same animus, whereas

the prosecution may assert that the two or more statutorily distinct offenses were committed with

separate and distinct animus. You then end up with a contested issue of fact, one that must be

resolved. That factual dispute is one that is more important than a simple disagreement as to

sentencing factors. For, because merger does not mean "concurrent sentencing" but rather

requires election. of which merged offense survives merger and thus which single conviction

results, and conversely which offense dissolves into the remainder, the question is one of guilt or

innocence. That question also is critical to the determination of the possible sentence, as merger

immediately forces de facto concurrent sentencing, in a sense, and in another sense limits the jurisdiction of the Trial Court to sentence only as to one of the merged offenses.

"I'hus, it seems clear in this case that the aforenientioned disputed questions of fact were

of utmost importance. Once it is determined that the anirnus question and the other fact

questions are of utmost importance in determining which counts merge, it seems equally clear

that the factual dispute is a factual dispute that must be resolved in some manner. Due process

and tlie United States Constitution, as well as the Ohio Constitution, all have a clear directives as

to the "process" rights and the substantive requirements in a criminal case as to resolution of

contested i_ssues of fact of this significance. These rights inchide the following:

1. The right to notice of the alleged facts.

2. I'he right to trial by jury as to the alleged facts.

13 3. The right to a standard of proof beyond a reasonable doubt as to these alleged facts, if the burden of proof is on the prosecution.

The right to notice seems to compel the State to provide notice to the defense of an intention to argue separate animus and the general nature of that allegation, whether in the indictment or at least by way of a Bill of Particulars if requested (under the Ohio Constitution, this may be a matter reserved for the grand jury, as well ); additionally, the State should be compelled to provide notice of an intent to treat the various counts otherwise subject to merger as

"separately committed." The right to trial by jury seems to compel the process of i•esolving a factual dispute, such as whether the offenses were done with the same or separate animus, by presentation of the questions to a jury (unless waived by the accused). And, the third right seems to cornpel the trier of fact to resolve any such factual disputes by a standard of proof beyond a reasonable doubt, meaning for example that separate animus is not proven unless the trier of fact concludes tha.t the State proved a separate animus beyond a reasonable doubt.

I'he State may argue that Mr. Swiergosz' legal argument is absurd theoretical nonsense. liowever, consider that Ohio's sentencing law was declared unconstitutional by the Ohio

Supreine Court because the determination of fact as to sentencing factors was required but was done without notice, trial by jury, and proo'f beyond a reasonable doubt: Thus, if the question of same or separate animus, for example, was solely one concerning sentencing factors, the logic behind Foster decision would seem to compel this same result:

'ather than the fact of a prior convictiort, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be subniitted to a jury, and proved beyond a reasonable doubt.' Appreauli v. New Jersey (2000), 530 U.S. 466, 490, 120 S.Ct. 2348. "Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant Before the inlposition of consecutive sentences, they are unconstitutional. (Apprendi, and Blakely v. lI'a:shrngtoyt (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, followed,)" State v. Foster, 2006-Ohio- 856, 109 Ohio St.3d 1, 845 N.E.2d 470 (Ohio 2006), at Syllabus paragraph 3.

14 The merger question is much more substantial, in a sense, than a simple sentencing factor. The merger question is one involving not simply the question of sentencing within a range or sentencing as concurrent or consecutive: The. merger question incidentally and clearly does have real sentencing effects, but the question is one involving the conviction itself. As such, the theory behind Foster and the precedent of the United States Supreme Court compelling the Foster decision, should be seen as even stronger as to the merger and animus questions.

The fact relevant to this inquiry -- separate animus -- is a normal criminal element, in a sense, a mens rea element of the type that juries often resolve. 1'he actual statute discusses

"animus." Animus is as much like any ordinary element as is any other mens rea element:

There is nothing tricky about the possibility of submitting this question to a jury, to subjection of that question to proof beyond a reasonable doubt, or to notice.

CONCLUSION

For these reasons, this case involves matters of public and great general interest and a substantial constitutional question. The appellant requests that this court grant jurisdiction and allow this case so that the important issues presented in this case will be reviewed on the merits.

Proof of Service

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. mail to counsel for appellee, J ulia R. Bates, Esq., Proseccatiang Attoraley f'or Lucas County, Lucas County Courthouse, Adams and Erie Streets, Toledo, Ohio 43604, on the 26th day of November, 2013; cc: client.

15 iC'ite as State v. Swieraa.sz, 2013-Ohio-4625.1

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCASCOUNTY

State of Ohio Court of Appeals Nos. L-I2-1.293

Appellee Trial Court Nos. CR0200901948

Michael P. Swiergosz DECISION AND JUDGMENT

Appellant Decided: October 18, 2013

Julia R. Bates, Lucas County Prosecuting Attorney, and Ian B. English, Assistant Prosecuting Attorney, for appellee.

Kenneth J. Rexford, for appellant.

YARBROUGH, J.

1. Introduction

11111 Appellant, Michael Swiergosz, appeals his prison sezltence entered by the

Lucas County Court of Common Pleas following a resentencing hearing. We affirm. A. Factual and Procedural Background

i^ 2} This is Swiergosz's second appeal from his conviction and sentence. In the first appeal, we set forth the facts supporting his conviction as follows:

The core facts from the trial record are undisputed. In the early

inorning of April 28, 2009, Swiergosz broke into a friend's home in Wood

County and stole two firearms. One was a Glock semi-automatic pistol

loaded with a full magazine, and the other a revolver, later determined to be

inoperable. He then drove to his wife's place of einployment in the village

of Ottawa IHills, a retirement community-home known as Sunset House.

An acrimonious divorce was underway, and Swiergosz's wife, Barb, had

recently left their home with the couple's four children. Swiergosz entered

Sunset House armed. with the Glock pistol and a zippered duffel bag

containing a hatchet, three rolls of niasking tape, scissors, a tire iron, and

the revolver. He immediately went to the office of Marilyn Sharkey, one of

Barb's co-workers. Sharkey testified that Swiergosz brandished the Glock

and told her he wotild not kill her if she cooperated. Then he ordered her to

call Barb to the office. Hearing footsteps near the door, he reached for the

tire iron.

When Barb appeared Swiergosz struck her ttivice on the head with

the tire iron, causing a scalp laceration that bled profusely. Sharkey fled the

room as Barb began screaming, atzd though Barb also started to run,

2 Swiergosz caught her and pulled her into another room. He closed the door

and told her to remove her clothes. After she did so, he bound her hands

behind her with the tape. From there Swiergosz moved her to a different

room with a bed and a bathroom. He testified that he only wanted to talk,

but after getting Barb on the bed he removed his clothes and unsuccessfully

attempted intercourse. They then went into the bathroom. Swiergosz made

Barb sit on the toilet, still bound, and engage briefly in oral sex. But he

quickly returned her to the bed where, she testified, forcible intercourse

occurred. State v. Swiergosz, 197 Ohio App.3d 40, 2012-Ohio-830, 965

N.E.2d 1070, ^ 2-3 (6th Dist.).

{¶ 3} Based on this incident, the jury found Swiergosz guilty of one count of aggravated burglary, three counts of kidnapping, one count of felonious assault, two counts of rape, and one count of having a weapon under disability, along with attendant firearm specifications for each count. At sentencing, the court merged all but two of the firearm specifications, but did not merge any other counts. On appeal, we affirmed the determination of Swiergosz's guilt, but vacated the sentences and remanded the matter to the trial court to conduct a merger asxalysis under the recent Ohio Supreme Court decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.

{¶ 4} At the resentencing hearing, the state conceded that the count of having a weapon under disability (Count VIII) should merge with the remaining counts, and that the two counts of kidnapping pertaining to Barb (Counts IV and V) slzould merge, with

3. the state electing to proceed to sentencing on Count IV. The state argued that the remaining counts were committed by separate acts and thus were not subject to merger.

{¶ 5} Swiergosz, for his part, argued that conducting the merger analysis in this case was a violation of his constitutional rights because it was impossible from the indictment and the general verdict forms to determine Nvhat part of his conduct the jurv found to be a violation. of the law. As an example, Swiergosz pointed to the count of felonious assault (Count III). The jury verdict form referred to the crime as charged in the indictment, which si.niply parroted the language of the statute and required the jury to find that Swiergosz "did knowingly cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance." Swiergosz argued that multiple acts could have constituted the offense of felonious assault-holding Sharkey at gunpoint, striking Barb with the tire iron, or having forcible sexual intercourse with I3arb--but it was impossible to know which act the jury found to have constituted the offense.

Swiergosz contended that without clarification from the jury, the court necessarily had to apply what, it believed to be the offending act when it,conducted the merger analysis.

However, the court's belief may or may not have been in accord with the jury's findings.

Essentially, he concluded that the court, not the jury, would be deciding the factual circumstances of his guilt, and then utilizing those findings to determine whether the multiple offenses were committed by separate acts.

{¶ 6} The trial cour-t heard Swiergosz's argument, acknowledged the issue, but proceeded to find that the remaining counts not noted by the state were committed by

4 separate acts and did not merge. Therefore, the trial court sentenced Swiergosz to four years in prison on the count of aggravated burglary (Count I), four years on the count of kidnapping Sharkey (Count 11), four years on. the count of felonious assault (Count III), six years on the first count of kidnapping Barb (Count IV), eight years on the first count of rape (Count VI), eight years on the second count of rape (Count VII), and six years on the firearm specifications. The court ordered that the sentences for Counts I and II be served concurrently to each other, but consecutively to the remaining sentences, which also were to be served consecutively to each other for a total prison term of 36 years.

I?inally, the court ordered the sentence to be served consecutively to sentences imposed in two other cases for an aggregate prison term of 44 years.

B. Assignments of Error

{¶ 7} Swiergosz has timely appealed, raising six assignments of error:

1. The "I'rial Court erred by not merging Count VI (Rape) with

Count VII (Rape).

II. The Trial Court erred by not merging Counts VI (Rape) and VII

(Rape), whether mer.ged together or not, with the three counts of

Kidnappittg, namely Count II, Count IV, and Count V.

III. The Trial Court erred by not merging Count I (Aggravated

Burglary) with one or all of the remaining Counts 11, 111, IV, V, VI, VII,

andJor VIII.

5. IV. The T'rial Court erred by not merging Count III (Felonious

Assault) with Count VI (Rape) and/or with Count VII (Rape), whether the

latter are or are not merged with each other.

V. The Trial Court erred by not merging Counts II, IV, and or V

with each other into one (or at most two) Kidnapping convictions.

VI. The Trial Court violated Mr. Swiergosz' (sic) right to Trial by

Jury, to Presentment to a Grand Jury, and to Proof Beyond a Reasonable

Doubt, in violation of the Ohio Constitution and of the United States

Constitution.

II. Analysis

{¶ S} We will address Swier^osz's sixth assignment of error first. In that assignment, Swiergosz reiterates the argument he presented to the trial court, namely that it is a violation of his constitutional rights for the trial court to determine the factual circumstances supporting his guilt for the purpose of conducting a merger analysis. We disagree with Swiergosz's argument for three reasons.

{¶ 9} First, Swiergosz contends that the issue of whether offenses were committed by separate conduct or with separate animus is a question of fact that must be resolved by the jury. However, this view has been dismissed by the Supreme Court of Ohio in the context of determining that merger is a question of law, and is thus subject to de novo review:

6. Appellate courts apply the law to the facts of individual cases to

make a legal determination as to whether R.C. 2941.25 allows multiple

convictions. That facts are involved in the analysis does not make the issue

a question of fact deserving of deference to a trial court: "[A] review of the

evidence is more often than not vital to the resolution of a question of law.

But the fact that a question of law involves a consideration of the facts or

the evidence does not turn it into a question of fact. Nor does that

consideration involve the court in weighing the evidence or passing upon

its credibility." State v. Williams, 134 Ohio St.3d 482, 2012-4hio-5699,

983 N.E.2d 1245, ^ 25, quoting O'Day v. Webb, 29 Ohio St.2d 215, 219,

280 N.E.2d 896 (1972).

{¶ 10} Second, Swiergosz argues that it is unclear whether the burden of proving merger, or lack of merger, falls on the prosecution or the defense. He proposes that because the statutory default is to merge offenses, and because the prosecution would seem to be the party in,position to argue the exception of "separate animzs," the burden should be with the state. Assuming this is true, Swiergosz concludes that the law should require the state (1) to provide notice in. the indictment or the bill of particulars of its intention to argue that the offenses were committed with separate animus or separate conduct, (2) to preseirt the questions of separate animus and separate conduct to the jury, and (3) to prove separate animus and separate conduct beyond a reasonable doubt.

7. f¶ lf} Contrary to Swiergosz's assumption, it is "[t]he defendant [that] bears the

burden of establishing his entitlement to the protection, provided by R.C. 2941.25,

against multiple punishments for a single criminal act," not the state. (Emphasis added.)

State v. MugTini, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). Thus, it is incumbent on the defendant to request clarification of the specifit conduct that the state believes constituted each crime charged in the indictment. To that end, it is well settled that although an indictment is sufficient where it tracks the language of a statute, "[a]n accused is not foreclosed from securing specificity of detail * * * for R.C. 2941.07 provides that upon a request for a bill of particulars, `* * * the prosecuting attorney shall furnish a bill of particulars setting up specifically the nature of the offense charged and the conduct of the defendaiit which is alleged to constitute the offense. "" State v.

Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). IOlotably, no request for a bill of particulars was made in this case.

{¶ 1.2} Finally, it is evident from the trial transcript that the parties, and the jury, knew and understood which conduct allegedly.constituted each crime. As to the felonious assault count, the state in its opening and closing statements described the count as arising from Swiergosz striking Barb over the head with the tire iron. Moreover,

Swiergosz admitted on the witness stand that he committed felonious assault because he struck his wif:e. As to the kidnapping charges, the state again separately refers to kidnapping Sharkey and Barb, and the jury instructions also separately identify the victim in each cou.nt. Lastly, as to the rape charges, in addition to the state describing the oral

8. sex and vaginal sex as the two separate bases for the two counts in its opening and closing statements, Swiergosz admitted that those were the two sex acts that took place.

Therefore, during the trial there was no uncertainty as to the specific alleged conduct that supported each offense.

LIf 131 Accordingly, Swiergosz's sixth assignment of error is not well-taken.

t¶ 141 The remaining assignments of error all pertain to whether particular offenses should have merged. Whether offenses should merge is a question of law that we review de novo. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245 at

^j 28. The Ohio Supreme Coui-C has established a two-step test to determine whether offenses are allied offenses of similar import under R.C. 2941.25(A). First, we must examine "whether it is possible to commit one offense and commit the other with the same conduct." (Emphasis sic.) Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061 at ¶ 48. If the answer is yes, we must then determine "whether the offenses were committed by the same conduct, i.e., `a single act, committed with. a single state of mind."' Id. at 1j 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895

N.E.2d 149, 50 (Lanzinger, J., dissenting). Here, the issue centers on the second prong of the analysis-tvhether the offenses were committed by the same conduct.

{1(1S} In his first assignment of error, Swiergosz argues that the two counts of rape should have merged because the oral sex and the vaginal penetration were both part of single, ongoing event. We disagree. First, Swiergosz forced Barb to perform oral sex in the bathroom. That act having been cornpieted, Swiergosz then moved Barb to the

9. bedroom where he engaged in vaginal penetration. Thus, because the offenses were not

committed by the same conduct, merger of the two rape counts (Counts VI and VII) is not appropriate. See State v. Edwards, 6th Dist. Wood No. WD-11-078, 2013-Ohio-519,

^j 11 (rubbing fake penis over victim's "private parts" before she went to the bathroom,

and placing fake penis on her bare genitalia after she returned from the bathroom constituted two different, distinct acts); State v. Gonzalez, 193 Ohio App.3d 385, 2011-

Ohio-1542, 952 N.E.2d 502,1[ 52 (6th Dist.) (appellant committed each of four rapes with a separate animus where he performed oral sex on the victim, forced the victim to perform oral sex on him, placed a toy inside the victim's vagina, and placed a toy inside the victim's rectum). Therefore, Swiergosz's first assignment of error is not well-taken.

{¶ 16} As liis second assignment of error. Swiergosz contends that the rape counts sliould have merged with the kidnapping counts. In determining whether kidnapping and another offense are committed with a separate animus, the Ohio Supreme Court has adopted the following guidelines:

(a) ^There the restraint or movement of the victim is merely ,

incidental to a separate underlying crime, there exists no separate animus

sufficient to sustain separate convictions; however, where the restraint is

prolonged, the confiil.ement is secretive, or the movement is substantial so

as to demonstrate a significance independent of the other offense, there

exists a separate animus as to each offense sufficient to support separate

convictions;

10. (b) Where the asportation or restraint of the victim subjects the

victim to a substantial increase in risk of harm separate and apart from that

involved in the underlying crime, there exists a separate animus as to each

offense sufficient to support separate convictions. State v. Logan, 60 Ohio

St.2d 126, 397 N.E.2d 1345 (1.979), syllabus.

{¶ 17} Initially, we note that the first count of kidnapping (Count It) pertained to

Sharkey, with whom he did not engage in any sexual conduct. Thus, the rape offenses would not merge with that kidnapping offense. As to the remaining count of kidnapping

(Count IV), Swiergosz was found guilty for forcing Barb to remove her clothes, taping her wrists behind her back, and moving her at gunpoint down the hall to an empty apartmen.t. Swiergosz's conduct was not merely incidental to the rape, but rather constituted a substantial movement of her independent of the rape. Therefore, because the offenses were not committed by the same conduct, the ofienses do not merge.

Swzergosz's second assignment of error is not well-taken.

{¶ 18} In his third assignment of error, Swiergosz argues that the aggravated burglary count should have merged with any of the remaining counts. The threshold issue is what conduct caused Swiergosz to trespass.' llere, the state presented two theories: either, Swiergosz trespassed wlien he entered the locked facility through the

' Aggravated burglary is defined as: "No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in. the structure * * * any criminal offense, if * * * (2) The offender has a deadly weapon or dangerous ordnance on or about the offender's person or under the offender's control." R.C. 2911.11(A).

11. door as another person was leaving, or he trespassed when his permission to be in the

facility was revoked when he committed a criminal offense inside. See State v. Hill, 8th

Dist. Cuyahoga No. 95379, 2011-Ohio-2523, ^ 25, quoting State v. Steffen, 31 Ohio St.3d

111, 115, 509 N.E.2d 383 (1987) ("Although a person may have permission to enter the

premises, permission `can be revoked upon an act of violence against a person who has

the authority to revoke the privilege of initial entry. "'). Notably, the jury instructions and

verdict forms do not indicate on which theory the jury based its finding of guilt,

potentially raising the problein identified by Swiergosz in his sixth assignment of error.

However, we need not address this problem because under either theory the offenses

would not mrge.

{^ 19} Under the former theory, the burglary was complete as soon as Swiergosz

entered the facility with his gun and with the purpose to commit a criminal offense.

Thus, the burglary would constitute a separate act from the offenses he committed once inside the facility. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d

547, ¶ 128 (aggravated burglary and aggravated robhery were not subject to nierger because the burglary was complete as soon as the defendant entered the home). Further, under the latter theory, the offenses would not merge because the criminal offense

Swiergosz entered the facility with the purpose to commit, which related to Barb, was different than the criminal offense which would have revoked his permission, i.e., kidnapping Sharkey. Compare State v. Ruby, 6th Dist. Sandusky No. S-10-028, 2011-

Ohio-4864, 159 (aggravated burglary and grand tlieft merge because the theft was "the

12. purpose and grand incidence of the burglary"). Therefore, the offenses were committed

by separate acts, and do not merge. Accordingly, Swiergosz's third assignment of error

is not well-taken.

,¶ 20} For his fourth. assignment of error, Swiergosz argues that the felonious

assault count should liave merged with the counts of rape. Swiergosz's argument is

based on his assumption that the felonious assault count stems from the rape of Barb.

However, as discussed above, the felonious assault count is based on his conduct of striking Barb in the head with the tire iron, which is clearly a separate act. Therefore, the offenses do not merge. Accordingly, Swiergosz's fourth assignment of error is not well- taken.

{¶ 21} Finally, as his fiftll assignment of error, Swiergosz argues that the three kidnapping counts should merge. We first note that the trial court has already merged the two counts pertaining to Barb (Counts IV and V). Thus, the remaining issue is whether the count of kidnapping pertaining to Sharkey (Count II) should merge with the count of kidnapping pertaining to Barb (Count IV). We hold that they should not. Swiergosz kidnapped Sharkey when he held her at gunpoint in her office. He later kidnapped Barb when he pulled her into a closet, had her remove her clothes, and then forced her to move down the hall to the empty apartment. Thus, the offenses were committed by two separate acts, and do not merge. Moreover, even if the same conduct had constituted kidnapping both of them, the offenses still would not merge because "separate convictions and sentences are permitted when a defendant's conduct results in multiple

13. victims." State v. Young, 2d Dist. Montgomery No. 23642, 2011-Ohio-747, T, 39.

Therefore, Swiergosz's fifth assignment of error is not well-tai;en.

III. Conclusion

(¶ 22} For the foregoing reasons, the judgment of the Lucas County Couirt of

Common Pleas is aftirmed. Swiergosz is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.P.. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. JUDGE Stephen A. Yarbrough J.

James D. Jensen J. JUDGE CONCUR.

JUDGE

This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http:/r'www.sconet.state.oh.us/rod/newpdf,'?source=6.

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