[Cite as State v. Chaney, 2012-Ohio-4934.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97872 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

LENA CHANEY

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-550906 

BEFORE: Rocco, J., Jones, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: October 25, 2012 

-i- 
ATTORNEY FOR APPELLANT

Thomas A. Rein 

Leader Building, Suite 940 

526 Superior Avenue 

Cleveland, OH 44114 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Brian D. Kraft 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
KENNETH A. ROCCO, J.: 

{¶1} Defendant-appellant Lena Chaney appeals from her convictions and the 

sentences imposed after she entered a guilty plea to charges of felonious assault and 

attempted felonious assault. 

 {¶2} Chaney presents two assignments of error. She claims that the trial court 

erred in accepting her guilty plea because the court did not personally inform Chaney of 

the maximum penalties for the offenses during the plea hearing and, therefore, did not 

properly ascertain whether her plea was knowingly, intelligently, and voluntarily made 

under Crim.R. 11(C)(2)(a). Chaney also claims that the trial court erred in failing to 

consider whether the counts to which Chaney pled guilty were allied offenses of similar 

import under R.C. 2941.25 that should have been merged for sentencing. 

{¶3} Upon review of the record, this court finds that Chaney’s assignments of error 

have no merit. Chaney’s convictions and sentences are affirmed. 

{¶4} In June 2011, Chaney was charged with one count of attempted murder, three 

counts of felonious assault, and one count of attempted felonious assault. On December 

6, 2011, Chaney pled guilty to Count 2 of the indictment, felonious assault in violation of 

R.C. 2903.11(A)(1) with forfeiture specifications, and Count 5 of the indictment, 

attempted felonious assault in violation of R.C. R.C. 2923.02 and 2903.11(A)(1) with 

forfeiture specifications. The felonious assault and attempted felonious assault counts 
involved different victims. In exchange for Chaney’s plea, the State dismissed the 

remaining counts of the indictment. 

{¶5} During the plea hearing, the assistant prosecutor explained the plea agreement 

and outlined the potential penalties for each of the counts, i.e., that felonies of the second 

degree carry a potential penalty of two to eight years in prison and a potential fine of up to 

$15,000 and that felonies of the third degree carry a potential penalty of nine to 36 

months and a potential fine of up to $10,000. The trial court followed with an 

explanation of postrelease control. Chaney’s counsel confirmed that the prosecutor had 

accurately described the plea agreement. 

{¶6} The trial court asked Chaney whether she understood what the prosecutor and 

her attorney had said. Chaney replied that she did not understand the counts to which 

she was pleading. The trial court explained that she was pleading guilty to Count 2 of 

the indictment, felonious assault, a felony of the second degree, and Count 5 of the 

indictment, attempted felonious assault, a felony of the third degree. 

{¶7} Following the trial court’s explanation, Chaney stated she understood. The 

trial court proceeded to explain Chaney’s constitutional trial rights to her and confirmed 

she understood and was waiving these rights. Chaney’s counsel indicated that he was 

satisfied that the trial court had complied with Crim.R. 11. Finding that her plea was 

knowingly, intelligently, and voluntarily made, the trial court accepted Chaney’s guilty 

plea to Counts 2 and 5 of the indictment and dismissed the remaining counts. 
{¶8} On January 5, 2012, the trial court conducted Chaney’s sentencing hearing. 

The court sentenced Chaney to concurrent prison terms of four years on the felonious 

assault count and twenty-four months on the attempted felonious assault count. 

{¶9} Chaney appeals from her convictions and sentences and presents the 

following two assignments of error: 

I. Appellant did not enter her guilty plea knowingly, intelligently, or 

voluntarily because the trial court failed to properly inform her of the 

maximum penalties as required by Crim.R. 11(C)(2)(a).

II. The trial court erred by ordering convictions and a sentence for 

separate counts because the offenses are allied offenses pursuant to 

R.C. 2941.25 and they are part of the same transaction under R.C. 

2929.14 but the trial court failed to undertake any such analysis. 

{¶10} In her first assignment of error, Chaney argues that she did not enter her 

guilty plea knowingly, intelligently, or voluntarily because the trial judge did not 

personally inform her of the maximum penalty involved. Crim.R. 11(C)(2)(a) states 

2) In felony cases the court may refuse to accept a plea of guilty or a plea of 

no contest, and shall not accept a plea of guilty or no contest without first 

addressing the defendant personally and doing all of the following: 

(a) Determining that the defendant is making the plea voluntarily, with 

understanding of the nature of the charges and of the maximum penalty 

involved, and, if applicable, that the defendant is not eligible for probation 

or for the imposition of community control sanctions at the sentencing 

hearing; * * * 

{¶11} In determining whether the trial court has satisfied its duties in accepting a 

plea under Crim.R. 11, reviewing courts distinguish between constitutional and 

nonconstitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 

N.E.2d 474, ¶ 14-21. The trial court must strictly comply with the requirements of 

Crim.R. 11(C) relating to the waiver of constitutional rights. Id. at ¶ 18.
{¶12} As to the nonconstitutional aspects of Rule 11(C), the trial court must 

“substantially comply” with the rule’s requirements. Veney at ¶ 14. “Substantial 

compliance means that under the totality of the circumstances the defendant subjectively 

understands the implication of his plea and the rights he is waiving.” State v. Nero, 56 

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). {¶13} The right to be informed 

at the plea hearing of the maximum possible penalty that could be imposed upon 

conviction is a nonconstitutional right. State v. McKissic, 8th Dist. Nos. 92332 and 

92333, 2010-Ohio-62, ¶ 13, citing State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 

1163 (1977). Accordingly, the trial court’s actions are reviewed for substantial 

compliance with Crim.R. 11(C)(2)(a). The record reflects that the trial court 

substantially complied with Crim.R. 11(C)(2)(a). 

{¶14} The fact that the assistant prosecutor, rather than the trial judge, explained 

the maximum penalties applicable to the offenses involved during Chaney’s plea hearing 

does not preclude substantial compliance with Crim.R. 11. As this court previously 

stated in McKissic: 

Although it would have been better for the trial judge himself to have 

explained the maximum penalties to the defendant, substantial compliance 

with Crim.R. 11(C) suffices with respect to nonconstitutional rights. 

Thus, the court may properly determine that the defendant understands 

those matters from the totality of the circumstances, without informing him 

about them directly.” McKissic at ¶ 17, citing State v. Gibson, 34 Ohio 

App.3d 146, 517 N.E.2d 990 (8th Dist.1986); State v. Rainey, 3 Ohio 

App.3d 441, 446 N.E.2d 188 (10th Dist.1982). See also State v. Sims, 8th 

Dist. No. 95979, 2011-Ohio-4819 (trial court substantially complied with 

Crim.R. 11(C) where the prosecutor informed appellant of the potential 
maximum sentences for the offenses at issue and the appellant stated on the 

record that he understood). 

{¶15} In this case, the record adequately demonstrates that Chaney was informed 

of the potential maximum penalties for the offenses involved at the outset of the plea 

hearing. Although Chaney, a high school graduate who had completed two years of 

college, had a question regarding the specific counts as to which she was entering a guilty 

plea, which the trial court addressed, she had no questions regarding potential penalties 

for the offenses. 

{¶16} Based on the totality of the circumstances, the record shows that Chaney 

subjectively understood the maximum potential penalties associated with her guilty plea. 

The trial court did not violate Crim.R. 11(C)(2)(a) in accepting Chaney’s plea. 

Accordingly, Chaney’s first assignment of error is overruled. 

{¶17} In her second assignment of error, Chaney complains that the trial court 

should not have imposed sentences on both the felonious assault and attempted felonious 

assault counts without first undertaking an analysis to determine whether the counts were 

subject to merger under R.C. 2941.25. Chaney requests this court to reverse her 

sentences and remand for a determination of whether the felonious assault and attempted 

felonious assault counts were allied offenses of similar import. 

{¶18} Chaney failed to object to the imposition of multiple sentences below and 

has therefore waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects 

affecting substantial rights may be noticed although they were not brought to the attention 

of the court.” An error rises to the level of plain error only if, but for the error, the 
outcome of the proceedings would have been different. State v. Harrison, 122 Ohio 

St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶61; State v. Long, 53 Ohio St.2d 91, 97, 

372 N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution, 

under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” 

Id. 

 {¶19} The Ohio Supreme Court has held that the imposition of multiple sentences 

for allied offenses of similar import is plain error. State v. Underwood, 124 Ohio St.3d 

365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1, 

2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102. 

{¶20} R.C. 2941.25 provides: 

(A) Where the same conduct by defendant can be construed to constitute 

two or more allied offenses of similar import, the indictment or information 

may contain counts for all such offenses, but the defendant may be 

convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more offenses of 

dissimilar import, or where his conduct results in two or more offenses of 

the same or similar kind committed 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. 

{¶21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, 

the Ohio Supreme Court redefined the test for determining whether offenses constitute 

allied offenses subject to merger pursuant to R.C. 2941.25: 

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 with the same conduct, not whether it is 
possible to commit one without 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. 

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.” * * * 

If the answer to both questions is yes, then the offenses are allied 

offenses of similar import and will be merged. 

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 a separate animus for each 

offense, then according to R.C. 2941.25(B), the offenses will not merge. 

Id. at ¶ 48-50. 

{¶22} Chaney argues that, because the conduct at issue involved a single 

transaction, the trial court was required to conduct a factual inquiry under Johnson to 

determine whether the felonious assault and attempted felonious assault offenses were 

allied. Chaney further claims that, based on the limited facts in the record, the trial 

court’s failure to conduct such an inquiry constitutes plain error requiring a remand, citing 

State v. Corrao, 8th Dist. No. 95167, 2011-Ohio-2517. 

 {¶23} In Corrao, the trial court sentenced a defendant on multiple counts of 

pandering sexually oriented matter involving a minor and illegal use of a minor in 

nudity-oriented material without first inquiring whether those counts were allied offenses 

subject to merger. Because the record was devoid of facts necessary for the court to 

resolve the allied offense issue, this court remanded the case to the trial court, finding that 

“[t]he trial court’s failure to make the necessary inquiry constitutes plain error 
necessitating a remand.” Id. at ¶10.1

 {¶ 24} In this case, however, sufficient facts 

exist in the record from which to resolve the issue Chaney presents. The transcript from 

the sentencing hearing indicates that Chaney drove a mini-van into a former boyfriend, 

striking and seriously injuring him. The indictment specifies that two victims were 

involved in the incident, Martel Thomas and Ashley Chadwick. 

{¶ 25} Although both the felonious assault and attempted felonious assault 

counts stem from the same course of conduct, it resulted in the commission of offenses 

against two victims. “Separate convictions and sentences are permitted [under R.C. 

2941.25] when a defendant’s conduct results in multiple victims.” State v. Allen, 8th 

Dist. No. 97014, 2012-Ohio-1831, ¶ 59, citing State v. Skaggs, 2d Dist. No. 10-CA-26, 

2010-Ohio-5390, ¶ 7. 

{¶ 26} Where a defendant commits the same offense against different victims 

during the same course of conduct, a separate animus exists for each victim such that the 

offenses are not allied, and the defendant can properly be convicted of and sentenced on 

multiple counts. State v. Gregory, 90 Ohio App. 3d 124, 129, 628 N.E.2d 86 (12th Dist. 

1993) (where appellant was aware of the presence of two potential victims in a car at 

 1

This court notes that different panels of this court have reached different conclusions as to 

whether a trial court’s failure to conduct an allied offense inquiry prior to sentencing constitutes plain 

error where the record on appeal contains insufficient facts from which it can be determined whether 

an allied offense error occurred. See, e.g., State v. Barrett, 8th Dist. No. 97614, 2012-Ohio-3948; 

State v. Lindsey, 8th Dist. No. 96601, 2012-Ohio-804; State v. Corrao, 8th Dist. No. 95167, 

2011-Ohio-2517; State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833. This issue is not addressed 

here because the facts in the record, albeit limited, are nevertheless sufficient to resolve the allied 

offense issue. 
which he fired multiple gunshots, he could properly be convicted of two counts of 

felonious assault). 

{¶ 27} Further, as this court has observed “‘[w]hen an offense is defined in terms 

of conduct towards another, then there is dissimilar import for each person affected by the 

conduct.’” State v. Snuffer, 8th Dist. Nos. 96480, 96481, 96482, and 96483, 

2011-Ohio-6430, ¶ 4, quoting State v. Phillips, 75 Ohio App.3d 785, 790, 600 N.E.2d 

825 (2d Dist.1991), citing State v. Jones, 18 Ohio St.3d 116, 118, 480 N.E.2d 408. See 

also State v. Logan, 8th Dist. No. 97022, 2012-Ohio-1944, ¶ 53; State v. Johns, 11th Dist.

No. 2011-A-0003, 2012-Ohio-864, ¶ 33. 

{¶ 28} Because the felonious assault and attempted felonious assault counts on 

which Chaney was sentenced involved different victims, they are not allied offenses. The 

trial court’s imposition of a separate sentence on each count therefore does not constitute 

plain error. 

{¶ 29} Chaney’s second assignment of error is overruled. 

{¶ 30} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s convictions having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for 

execution of sentences. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________ 

KENNETH A. ROCCO, JUDGE 

LARRY A. JONES, SR., P.J., and 

MARY EILEEN KILBANE, J., CONCUR