[Cite as State v. Dennison , 2020-Ohio-2699.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. TYRONE DENNISON Appellant C.A. No. 29354

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2016-09-3000

DECISION AND JOURNAL ENTRY Dated: April 29, 2020

TEODOSIO, Judge. {¶1} Tyrone Dennison appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms in part, reverses in part, an d remands the matter for further proceedings consistent with this decision.

I. {¶2} There is no dispute that Mr. De nnison has a history of mental i llness. This includes diagnoses of schizophrenia and antisocial personality disorder. Indeed, the facts underlying this appeal involve allegations of sexual abuse that occurred betwee n Mr. Dennison and fellow patients at Northcoast Behavioral Health Center. Specifically, a grand jury indicted Mr. Dennison on one count of rape in violation of R.C. 2907.02(A)(2), one count of gross sexual imposition in violation of R.C. 2907.05(A)(1), and one count of abduction in violation of R.C. 2905.02(A)(2), with an accompanying sexual-motivation specification.2

{¶3} Mr. Dennison pleaded not guilty by reason of insanity. As a re sult, the trial court referred Mr. Dennison to the Criminal Court Psycho-Diagnostic C linic for compete ncy and sanity

evaluations. Mr. Dennison’s c ounsel and the State stipulated t o the results of the reports generated from those evaluations (dated December 13, 2016 and January 23, 2017, respectively), which

indicated that Mr. Dennison was competent to stand trial, and t hat – while he was suffering from a severe mental disease at the time of the alleged offenses – h e knew the wrongfulness of his

actions at the time he committed the allege d offenses. The tri al court then set the matter for trial. {¶4} On the morning of trial, Mr. D ennison’s counsel indicated that Mr. Dennison wanted to avail himself of the State’s plea offer and plead gui lty. He expressed concerns, however, regarding Mr. Dennison’s mental health, and informed the court that Mr. Dennison recently told him that he had been hearing voi ces. Mr. Dennison’s counsel in dicated that Mr. Dennison’s medications “might be out of whack [,]” and questioned whether M r. Dennison could knowingly, intelligently, and voluntarily plead guilty. The trial court t hen spoke with Mr. Dennison, who confirmed that he was hearing voices, and also indicated that t he victim was “in the form of the devil.” After further inquiry, th e trial court determined that it would not accept Mr. Dennison’s plea, and that it needed time to consider the best approach goi ng forward. It, therefore, scheduled a status hearing for the next week. At that hearing, Mr. Denn ison’s counsel indicated that medical professionals were in the process of determining whether Mr. De nnison’s medication needed adjustment and agreed to a continuance. {¶5} Following that hearing, Mr. Dennison underwent another competen cy evaluation. The State and defense counsel stipulated to the results of the report generated from that evaluation (dated June 27, 2017), which noted that Mr. Dennison had not be en compliant with his medications

and concluded that Mr. Dennison was not competent to stand tria l. The report further concluded3

that there was a substantial probability that Mr. Dennison woul d become competent to stand trial

if he received his medications a nd underwent a course of treatm ent to address his mental-health issues. Consistent with that report, the trial court ordered M r. Dennison to undergo restoration at Twin Valley Behavi oral Healthcare Hospital in Columbus. {¶6} Eight months later, the trial court held a status conference wh erein Mr. Dennison’s

defense counsel and the State s tipulated that Mr. Dennison was still not competent to stand trial,

and the trial court ordered Mr. Dennison to continue restoratio n for six months. Mr. Dennison was later deemed restored, 1 which Mr. Dennison’s counsel d isputed. Mr. Dennison’s counsel requested another competency eva luation, which the trial court granted. The results of that evaluation (report dated December 13, 2018) indicated that Mr. Dennison was competent to stand trial. The report noted that Mr . Dennison had been compliant w ith his medications, but that his “current mental status is highly variable due to the nature of his schizophrenia and his history of non-compliance with medications.” Following the issuance of th at report, the trial court determined that Mr. Dennison was competent to stand trial. The trial court then set dates for the final pretrial and trial. {¶7} At the final pretrial, Mr. Denni son’s counsel relayed the plea negotiations that had taken place and indicated that Mr. Dennison intended to plead g uilty via an Alford plea. Mr.

Dennison’s counsel indicated that he believed Mr. Dennison “und erstands everything that is going on[,]” and was willing to plead guilty to the counts for rape a nd abduction in exchange for the State dismissing the count for gross-sexual-imposition with the accompanying sexual-motivation specification. During the course of the trial court’s colloquy with Mr. Dennison, he stated that

1 We note that while the appellate briefs reference the fact tha t Mr. Dennison was deemed restored, there is no report in t he appellate record reflecting his restoration.4

“the only reason why [he] did th at was [he] had to protect [his ] kids[,]” and that “[t]he devil made [him] do it for [his] kids.” He also indicated two other times that the only reason he did “it” was to protect his kids. It is unclear from the transcript whether Mr. Dennison was referring to committing the acts alleged, or to pleading guilty. Nonetheles s, the trial court did not address these comments. Instead, it continued with the plea colloquy and inf ormed Mr. Dennison that he would be given the opportunity to speak when he returned for sentenci ng. The trial court accepted his plea and set the matte r for sentencing. {¶8} Five days after Mr. Dennison pleaded guilty, his counsel moved to withdraw the plea. In the motion to withdraw, M r. Dennison’s counsel assert ed that he met with Mr. Dennison after he pleaded guilty and asked him what he meant when he sta ted that he did it because of his kids and the devil. According to Mr. Dennison’s counsel, Mr. D ennison responded that the devil spoke to him and told him that if he did not enter a plea, the devil would torture and kill his children.

Mr. Dennison’s counsel concluded that Mr. Dennison was, therefo re, not competent to enter a plea, and requested that the plea be w ithdrawn and Mr. Dennison be ev aluated again with specific attention to his auditory hallu cinations and delusional thinkin g. {¶9} The trial court addr essed Mr. Dennison’s motion to withdraw two days later at the sentencing hearing. Mr. Dennis on’s counsel indicated that he f iled the motion on his own accord out of an abundance of caution. In addressing the motion, the trial court indicated that – during a plea colloquy – its long-standing practice was to not discuss e xcuses or mitigating circumstances offered by a defendant as to why an offense was committed. The trial court recalled Mr. Dennison referencing his kids, but did not recall him referencing the de vil. The trial court acknowledged that the latter “probably woul d have caused a little more pause to the Court[.]” I t then engaged in

a discussion with Mr. D ennison wherein Mr. D ennison clarified t hat he meant that the devil made5

him commit rape, not that the devil made him plead guilty. Thi s surprised Mr. Dennison’s counsel,

who indicated that Mr. Dennison told him that the devil made hi m plead guilty. After a lengthy discussion, including a discussion of the various reports regar ding Mr. Dennison’s sanity and competency, the trial court deni ed Mr. Dennison’s counsel’s mot ion to withdraw the guilty plea. {¶10} The trial court then addressed the issue of whether the convict ion for abduction merged with the conviction for rape. It asked for the State’s rendition of the facts, which Mr. Dennison’s counsel did not object to. The State relayed those facts as follows:

The defendant and the victim were both residents at Northcoast Behavioral. The defendant asked the victim for a hug since he was getting trans ferred to another unit. She was standing at the door, he hugged her tightly, tur ned her around into the room and shut the door. Once inside, the defendant tri ed to kiss the victim, pinning he r up against the wall. Victim expressed no, that she di dn’t want this to happen. He s aid she told him that he needs to call his wife. She asked to leave the room. And t he defendant’s demeanor changed. She could see a change in his behavior, spec ifically his eyes. As a result, the defendant pic ked her up around the back her le gs, carried her to the bed, put her on the bed, attempte d to remove her jeans, turned her on her side so she was facing the door. She again tried to stop him, and she told him that this was not him; he was not acting like himself, he was acting like a bully. She kept saying no. He told her that he was not listening to h er, that she wanted it. She resisted. He reached to th e back of her jeans, pulled them down, put his hands around her neck and told her he w ould kill her if she didn’t st op screaming.

He was in a state of erection at this point that she saw, and h e forced himself inside of her, particularly by vaginal penetration. {¶11} The State argued that separate convictions for rape and abducti on were justified under these facts, and Mr. Dennison’s counsel argued that the a cts were all part and parcel of the same event, that is, the sexual assault. The trial court deter mined that the offenses were committed separately, distinguishing betw een when Mr. Dennison moved the victim into the room, closed the6

door, and prevented her from leaving, from when Mr. Dennison pl aced the victim on the bed against her will and sexually assaulted her. It sentenced Mr. Dennison to nine years of imprisonment for rape and one year of imprisonment for abductio n, which it ran consecutively for a total of ten years, with credit for time served in the Summit County jail. Mr. Dennison now appeals, raising three assignme nts of error for this Court’s re view.

II.

ASSIGNMENT OF ERROR I

TYRONE DENNISON WAS DENIED DUE PROCESS WHEN THE TRIAL COURT TOOK HIS PLEA, WHILE INCOMPETENT, IN VIOLATION OF R.C. 2945.371, THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 2, 9, AND 16 OF THE OHIO CONSTITUTION. {¶12} In his first assignment of error, Mr. Dennison argues that the trial court committed plain error when it accepted his guilty plea despite the fact t hat he made comments during his plea colloquy that called into questi on his competency to enter a pl ea. {¶13} The doctrine of plain error requi res that there must be: (1) a deviation from a legal rule; (2) that is obvious, and; (3) that affects the appellant’ s substantial rights. State v. Hardges, 9th Dist. Summit No. 24175, 2008-Ohio-5567, ¶ 9. An error aff ects the appellant’s substantial rights if it affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “There is a discretionary aspect of Crim.R. 52(B), and reviewing courts should take notice of plain error ‘with the utmost caution, under exceptional circ umstances and only to prevent a manifest miscarriage of justice.’” State v. Hendon , 9th Dist. Summit No. 28284, 2018-Ohio-1284, ¶ 9, quoting State v. Long , 53 Ohio St.2d 91 (1978), paragraph t hree of the syllabus. {¶14} “The United States Supreme Court has held that under the Due Pr ocess Clause, the standard for determining competency to stand trial is the same as the standard for determining7

competency to enter a guilty plea.” State v. Kovacek , 9th Dist. Lorain No. 00CA007713, 2001 WL 577664, *3 (May 30, 2001), citing Godinez v. Moran , 509 U.S. 389, 391 (1993); see also State

v. Mink , 101 Ohio St.3d 350, 2004-Ohio-1580, ¶ 57 (“The competency sta ndard for standing trial is the same as the standard for pleading guilty[.]”). “A defen dant is legally incompetent if ‘incapable of understanding the nature and objective of the pro ceedings against the defendant or of assisting in the defendant’s defense.’” State v. Braden , 98 Ohio St.3d 354, 2003-Ohio-1325, ¶ 114, quoting R.C. 2945.37(G). “The burden of establishing inco mpetence * * * is upon the

defendant.” State v. Johnson , 8th Dist. Cuyahoga No. 81601, 2003-Ohio-2303, ¶ 14. {¶15} “In reviewing a judge’s determin ation of competency, we examine whether the conclusion was supported by compe tent, credible evidence.” Id. “Incompetency must not be equated with mere mental or emotional instability or even with outright insanity.” State v. Murphy , 12th Dist. Butler No. CA2006- 06-143, 2007-Ohio-4535, ¶ 29, citi ng State v. Bock , 28 Ohio St.3d 108, 110 (1986). To that end, “[a] defendant may be emotionall y disturbed or even psychotic and still be capable of understanding the charges against him and o f assisting his counsel.” State v.

Braden , 98 Ohio St.3d 354, 2003-Ohio-1325, ¶ 116, quoting Bock at 110. For example, a defendant suffering from paranoid schizophrenia, believing that he is a “prophet of God,” and that “he would not be tried because God would deliver him[,]” can st ill be competent to stand trial. Id. at ¶ 113, 117, 146. {¶16} We now turn to the law regarding a trial court’s acceptance of a guilty plea. “A guilty plea that is not knowing, intelligent, and voluntary vio lates the Ohio and United States

Constitutions.” State v. Montgomery , 148 Ohio St.3d 347, 2016-Ohio-5487, ¶ 40. “It is the trial court’s duty, therefore, to ensur e that a defendant ‘has a full understanding of what the plea connotes and of its consequence.’” Id. , quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969).8

“To ensure that pleas of guilty * * * are voluntarily, knowingl y, and intelligently made, trial courts must accurately advise defendants of the law in Crim.R. 11 plea colloquies.” State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 41. {¶17} Mr. Dennison has not challenged the plea colloquy as failing to comply with Crim.R. 11. Instead, he argues that the comments he made durin g the plea colloquy, that is, that “the only reason why [he] did that was [he] had to protect [his ] kids[,]” that “[t]he devil made [him] do it for [his] kids[,]” and indicating two other times t hat the only reason he did “it” was to protect his kids – regardless of whether he was referencing hi s guilty plea or the underlying criminal acts – called into ques tion whether he was knowingly, intelligently, and voluntarily pleading guilty. He argues that their very utterance showed th at he did not rationally understand the proceedings. {¶18} In support of his argument, Mr. Dennison points to the fact tha t, at the sentencing hearing wherein the trial court addressed his motion to withdra w his guilty plea, the trial court did not recall him making s tatements about the d evil during the ple a colloquy, yet admitted that such comments “probably would have caused a little more pause to the Court[.]” He asserts that the trial court ignored the fact that the most recent competency ev aluation indicated that his mental state was “highly variable[,]” and argues that – because his me ntal status was questionable – the trial court was obligated to unde rtake additional inquiry. Add itionally, he notes that the record reflects that each time he previously referenced the devil, he was found to be incompetent, or the

trial court was otherwise not c omfortable taking his plea. {¶19} In response, the State argues th at the trial court was not requ ired to specifically ask

Mr. Dennison about his mental sta te before accepting his plea. It asserts that w hile Mr. Dennison9

is clearly mentally ill, there was no indication at the plea he aring that he was incompetent and, accordingly, no reason for the trial court to sua sponte order a new evaluation, or to deny his plea. {¶20} This Court’s review of the record indicates that, while Mr. Den nison did state that “the only reason why [he] did that was [he] had to protect [his ] kids[,]” that “[t]he devil made [him] do it for [his] kids[,]” and indicated two other times th at the only reason he did “it” was to protect his kids, the trial court interpreted those statements to refer to the underlying criminal acts, not to his decision to plead guilty. This is supported by the fact that the trial court responded to

two of the statements by telling Mr. Denni son that he would hav e the opportunity to speak before sentencing, and telling him he could write down whatever he wan ted to say and read it to her when he came back. Additionally, the trial court specifically asked Mr. Dennison whether he was pleading guilty of his own free will, to which he responded “[y ]es[,]” and whether anyone was forcing him to plead guilty, to which he responded “[n]o[.]” {¶21} To the extent that Mr. Dennison argues that these statements al one called into question his competency to enter a plea, we find his argument u nder these facts unpersuasive. As previously noted, “[i]ncompeten cy must not be equated with mere mental or emotional instability or even with outright insanity.” Bock , 28 Ohio St.3d at 110. “A defendant may be emotionally disturbed or even psychotic a nd still be capable of understandi ng the charges against him and of assisting his counsel.” Id. There was – and continues to be – no dispute that Mr. Dennison is mentally ill. Mental illness, however, does not necessarily eq uate to incompetency. State v. Berry , 72 Ohio St.3d 354 (1995), syllabus. Having reviewed the entire plea colloquy, this Court cannot say that the colloquy reflects th at Mr. Dennison was “incapable of understanding the nature and objective of the proceedings against [him] or of assisting in [ his] defense.’” Braden , 2003-Ohio1325, at ¶ 114, quoting R.C. 2945.37(G). Nor can this Court sa y that the fact that Mr. Dennison10

stated that “[t]he devil made [ him] do it for [his] kids[,]” an d indicated that the only reason he did “it” was to protect his kids, when viewed in the context of the entire plea colloquy, called into question his competency to plead guilty such that the trial cou rt should have refused to accept his plea and sua sponte ordered a ne w competency evaluation. {¶22} Additionally, we are unpersuaded by Mr. Dennison’s reliance on the fact that the trial court later did not recall his statement regarding the de vil, or the trial court’s statement that it “probably would have caused a little more pause to the Court[.] ” We fail to see how this after-thefact statement by the trial court is relevant to this Court’s r eview of whether – at the time Mr. Dennison pleaded guilty – it committed plain error by accepting his plea. To the extent that the

trial court’s comment in this regard supports his second assign ment of error (that is, that the trial court erred by denying his motion to withdraw his guilty plea), this Court will address it in our analysis of that assignment of error. {¶23} Despite Mr. Dennison’s argument s, this Court cannot say that th e trial court committed plain error when it accepted his guilty plea. A revi ew of the plea colloquy indicates

that Mr. Dennison understood the nature and consequences of his guilty plea, and that the trial court complied with Crim.R. 11. See Montgomery , 2016-Ohio-5487, at ¶ 40. While Mr. Dennison

did make comments consistent w ith his well-documented mental il lness, we cannot say that those comments called his competency i nto question such that the tria l court should have refused to accept his plea and instead sua sponte ordered a new competency evaluation. Mr. Dennison’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

TYRONE DENNISON WAS DENIED DUE PROCESS WHEN THE TRIAL COURT DENIED HIS MOTION TO WITHDRAW PLEA, IN VIOLATION OF CRIM.R. 32.1, THE FIFTH AND FOURTEENTH AMENDMENTS TO THE11

UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. {¶24} In his second assignment of error, Mr. Dennison argues that the trial court erred by denying his motion to withdraw his guilty plea. {¶25} As the Ohio Supreme Court has st ated, a “defendant does not hav e an absolute right to withdraw a guilty plea prior to sentencing.” State v. Xie , 62 Ohio St.3d 521 (1992), paragraph one of the syllabus. Instead, “[t]he defendant bears the burde n of demonstrating that he has a ‘reasonable and legitimate basis for withdrawing [his] plea.’” (Alteration sic.) State v. Benson , 9th Dist. Summit Nos. 28527, 28579, 28578, and 28577, 2017-Ohio -8150, ¶ 8, quoting State v.

Baker , 9th Dist. Summit No. 27937, 2016-Ohio-8026, ¶ 7. While “a presentence motion to withdraw a guilty plea should be freely a nd liberally granted[,]” the trial court’s decision in that regard i s reviewed for an abuse of dis cretion. Xie at 527; State v. Pippert , 9th Dist. Lorain No. 14CA010698, 2016-Ohio-1352, ¶ 16. An abus e of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconsci onable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶26} “This Court has held that a tr ial court does not abuse its disc retion when considering a motion to withdraw a guilty plea if the following elements ar e present: (1) the defendant is represented by competent counse l; (2) the trial court provides the defendant with a full hearing before entering the guilty plea; and (3) the trial court provid es the defendant with a full hearing on the motion to withdraw the guilty plea, where the court conside rs the defendant’s arguments in support of his motion to wit hdraw the guilty plea.” State v. Pamer , 9th Dist. Medina No. 04CA0027-M, 2004-Ohio-7190, ¶ 10. A s occurred here, a trial co urt’s decision to hear and consider arguments on a defenda nt’s motion to withdraw a guilty plea during a sentencing hearing12

can constitute a full hearing. See, e.g. , State v. Dyke , 9th Dist. Lorain No. 02CA008204, 2003- Ohio-4788, ¶ 14-20. {¶27} Mr. Dennison has not argued that he was not represented by comp etent counsel, that the trial court failed to provide him with a full hearing before entering his guilty plea, or that the trial court failed to provide him with a full hearing on hi s motion to withdraw his guilty plea. Rather, he again points to the fact that he made statements reg arding the devil during the plea colloquy, that the trial court did not later recall those state ments and acknowledged that they “probably would have caused a little more pause to the Court,” and that the other times he referenced the devil he had been deemed incompetent. Additiona lly, Mr. Dennison again argues that the trial court ignored the fact that the most recent comp etency evaluation indicated that his mental status was “highly variab le,” and further argues that th e trial court made basic factual mistakes in justifying its decisi on. Mr. Dennison argues that his incompetence was highlighted at sentencing insofar as he remaine d confused as to why he could n ot plead no contest and did not understand why he could not be confined to a mental institution rather than prison. He argues that – regardless of whether his comments during the plea colloquy r elated to the commission of the underlying offenses or his decision to plead guilty – the trial court should have refused to accept his plea, and instead should have ordered a new competency eval uation. He, therefore, argues that the trial court erred by denyin g his motion to withdraw his gui lty plea. {¶28} At the sentencing hearing wherei n the trial court addressed and heard arguments on

Mr. Dennison’s motion to withdraw his guilty plea, the trial co urt noted its long-standing practice of not discussing excuses or mitigating circumstances regarding an offense during a plea colloquy. The trial court, reviewing a draft of the plea colloquy transcr ipt, noted the two times wherein Mr. Dennison said that he did it to protect his kids, but did not r ecall him referencing the devil. While13

the trial court did indicate th at such a comment “probably woul d have caused a little more pause to the Court,” it then allowed Mr. Dennison to explain what he meant by that comment. Mr. Dennison explained that the devil made him rape the victim, and clarified that he did not mean that the devil made him plead guilty. The trial court and counsel t hen discussed the sanity and competency reports in the record . Afterward, the trial court c onfirmed with Mr. D ennison that he understood the plea he entered, a nd that his decision to plead guilty was of his own free will and not based upon anyone, including a voice or the devil, telling him to do so. {¶29} Having reviewed the record, this Court cannot say that Mr. Den nison has

established that the trial court abused its discretion when it denied his motion to withdraw his guilty plea. Mr. Dennison’s s econd assignment of error is over ruled.

ASSIGNMENT OF ERROR III TYRONE DENNISON WAS DENIED DUE PROCESS AND EQUAL PROTECTION WHEN THE TRIAL COURT IMPOSED NON-MERGED, CONSECUTIVE SENTENCES, WITH INSUFFICIENT CREDIT [FOR] TIME SERVED, IN VIOLATION OF R.C. 2929.14(C)(4), 2929.19(B)(2)(h)(i) , 2941.25, THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. {¶30} In his third assignment of error, Mr. Dennison argues that the trial court erred by: (1) failing to merge his convic tions for abduction and rape; (2 ) failing to make the required findings under R.C. 2929.14(C)(4) in support of consecutive sentences; a nd (3) failing to give him credit for time served while undergoing competency restoration at Twin Valley Behavioral Healthcare Hospital. {¶31} In response, the State argues – without any citation to analogo us case law – that

Mr. Dennison’s convictions for a bduction and rape did not merge . The State then concedes that

the trial court failed to make the required findings under R.C. 2929.14(C)(4), thereby requiring a14

remand to the trial court for it to make those findings. Lastl y, the State asserts that it conceded below that the time Mr. Dennison spent in restoration counted t oward his jail-time credit. It now asserts, however, that the Revis ed Code is unclear as to whethe r hospitalization for purposes of competency restoration counts toward a defendant’s jail-time cr edit in felony cases. In his reply brief, Mr. Dennison acknowledge s that the Revised Code does not directly address this issue for felony cases, but directs this Court to Ohio Adm.Code 5120-2-04 (A) to support his argument that he is entitled to jail-time credit for the time he spent while undergoing court-ordered competency

restoration. {¶32} This Court will first address whether the trial court erred by not merging Mr.

Dennison’s convictions for abduc tion and rape. R.C. 2941.25 “c odifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United Sta tes Constitution and Section 10,

Article I of the Ohio Constituti on, which prohibits multiple pu nishments for the same

offense.” State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 states a s follows: (A) Where the same conduct by defendant can be construed to con stitute two or more allied offenses of similar import, the indictment or infor mation may contain counts for all such offenses, but the defendant may be convicte d of only one. (B) Where the defendant’s conduct constitutes two or more offen ses 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 d efendant may be convicted of all of them. {¶33} The Ohio Supreme Court has held that two or more offenses may r esult in multiple convictions if: “(1) the offenses are dissimilar in import or s ignificance—in other words, each offense caused separate, identifia ble harm, (2) the offenses we re committed separately, and (3) the offenses were committed with sep arate animus or motivation.” State v. Ruff , 143 Ohio St.3d 114,15

2015-Ohio-995, ¶ 25. The Ruff court stressed that this inquiry “is dependent upon the facts of a

case because R.C. 2941.25 focuses on the defendant’s conduct.” Id . at ¶ 26. It is the defendant’s burden to establish that the trial court failed to merge the se ntences for allied offenses, and that the

defendant is entitled to the protection of R.C. 2941.25. State v. Dembie , 9th Dist. Lorain No. 14CA010527, 2015-Ohio-2888, ¶ 8. This Court reviews a trial co urt’s determina tion of whether a defendant’s offenses should merge under R.C. 2941.25 de novo. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. {¶34} Here, the trial court determined that the offenses of abduction and rape were committed separately, distinguishing between when Mr. Dennison moved the victim into the room, closed the door, and prevented her from leaving, from when Mr. Dennison placed the victim on the bed against her will and sexually assaulted her. Case law, however, supports the conclusion that, when the abduction of the v ictim is incidental to the und erlying sexual crime, and is undifferentiated by time, place o r circumstance, those offenses merge. See., e.g. , State v. Powih , 12th Dist. Brown No. CA2016- 11-023, 2017-Ohio-7208, ¶ 40 (colle cting factually similar cases

wherein the restraint of the v ictim was incidental to the under lying sexual crime). Here, the record indicates that Mr. Dennison pulle d the victim into his room, sh ut the door, pinned her against the wall, and tried to kiss her. The victim expressed no and asked to leave the room. Mr. Dennison then picked her up, carried her to the bed, pulled down her jea ns, and vaginally penetrated her. Under these facts, we find that M r. Dennison’s restraint of the victim in his bedroom was incidental to his commission of rape. Accordin gly, we hold that the trial court erred by determining that the

offenses were committed separately and, therefore, were not all ied offenses subject to merger. See

Powih at ¶ 40-43 (holding that the trial court erred by failing to m erge the defendant’s convictions for abduction and rape when the defendant entered the room the victim was in, “locked the door,16

grabbed her arm, spun her around, s panked her clothed buttocks, yanked her pants and underwear down before spanking her bare buttocks, and inserted his finger s into her vagina.”); State v. Patel , 2d Dist. Greene No. 2010-CA-77, 2011-Ohio-6329, ¶ 88-93 (conclu ding, in part, that abduction and rape were allied offenses of similar import when the defend ant entered the room the victim was in, “locked the door, and proceeded to place a hand down th e back of her pants and a finger inside her vagina.”); State v. Hernandez , 12th Dist. Warren No. CA2010-10-098, 2011-Ohio-3765, ¶ 51-54 (holding, in part, that the trial court erred by failin g to merge the defendant’s convictions for abduction and rape when the defendant grabbed the victim ar ound the waist, pushed her into his motel room, locked the door , pushed her onto the bed, and t hen raped her). Accordingly, we

remand this matter for resentenci ng, at which point the State c an elect which allied offense it will pursue against Mr. Dennison. See State v. Washington , 9th Dist. Lorain Nos. 10CA009767 and 10CA009768, 2011-Ohio-1149, ¶ 22, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2. In light of this holding, Mr. Dennison’s argument that the tria l court failed to make the required findings under R.C. 2929.14(C)(4) to support the imposition of consecutive sentences is now moot.

See App.R. 12(A)(1)(c). {¶35} We now turn to Mr. Dennison’s ar gument that the trial court err ed by failing to give him jail-time credit for the time he spent undergoing competenc y restoration at Twin Valley Behavioral Healthcare Hospital. “We review the trial court’s determination as to the amount

of jail-time credit to which [a defendant] is en titled under the ‘clearly and convi ncingly’ contrary

to law standard.” State v. Perkins , 11th Dist. Lake Nos. 2018-L-084 and 2018-L-098, 2019-Ohio2288, ¶ 12. R.C. 2967.191 governs jail-time credit, providing, in part, that: [t]he department of rehabilitation and correction shall reduce the prison term of a prisoner, as described in divisi on (B) of this section, by the total number of days that the prisoner was confined for any reason arising out of th e offense for which the prisoner was convicted and sentenced, including * * * confi nement for17

examination to determine the prisoner’s competence to stand tri al or sanity[.] R.C. 2967.191(A). “The Ohio Adminis trative Code provides addit ional details regarding when a prisoner is entitled to jail-time credit and how to calculate a prison term, taking the credit into

account.” State v. Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 9. Ohio Adm.Code 5120-2

- 04(A) provides that: [t]he department of rehabilitation and correction shall reduce the minimum and maximum sentence, where applicable, the definite sentence or th e stated prison term of an offender by the total number of days that the offend er was confined for any reason arising out of the of fense for which he was convicte d and sentenced, including * * * confinement for e xamination to determine his co mpetence to stand trial or sanity[.] “The Ohio Supreme Court has rule d that ‘confinement’ is constru ed as time in an institution or program where one is not free to come and go as they wish.” State v. Lutz , 8th Dist. Cuyahoga No. 105595, 2017-Ohio-4077, ¶ 11, citing State v. Napier , 93 Ohio St.3d 646, 648 (2001). “Thus, when a defendant seeks jail-time credit for time he spent at a facility other than jail, the question is whether his time at that facility was ‘sufficiently restrict ive to constitute confinement * * *.’”

State v. Stobbs , 9th Dist. Summit No. 29346, 2020-Ohio-92, ¶ 7, quoting State v. Rinella , 9th Dist. Summit No. 28460, 2018-Ohio-1922, ¶ 19. “If sufficiently restr ictive, time served in a non-jail facility will be awarded as jail-time credit.” Id. , citing State v. Napier at syllabus; State v.

Snowder , 87 Ohio St.3d 335, 337 (1999). {¶36} Here, the trial court ordered Mr . Dennison to undergo competenc y restoration at Twin Valley Behavioral Healthcare Hospital while his criminal c ase remained pending. In its order, the trial court indicated that Mr. Dennison “shall not b e released or discharged from Twin Valley except as authorized by th is order or future order of th is Court[,]” and that he was “hereby granted Level 4 movement for med ical care only allowing staff o f Twin Valley to e scort [him] to, during, and from the appropriate medical care facility for medi cal treatment.” In light of those18

restrictions, we conclude that th e trial court s hould have incl uded the time Mr. Dennison spent undergoing competency restorati on at Twin Valley Behavioral Hea lthcare Hospital in its calculation of his jail-time credit. But see Stobbs at ¶ 12-13 (reversing and remanding the matter for the trial court to consider whether the program at issue wa s “confinement” and, therefore, whether it counted toward jail-time credit when the record did not evidence the level of restriction placed on the defendant). We, therefore, remand the matter for the trial court to recalculate Mr. Dennison’s jail- time credit. {¶37} In light of the foregoing, Mr. D ennison’s third assignment of e rror is sustained.

III. {¶38} Mr. Dennison’s first and second assignments of error are overru led. Mr. Dennison’s third assignment of e rror is sustained. The judgmen t of the Summit County Court of Common Pleas is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this decision. Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period19

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed equall y to both parties.

THOMAS A. TE ODOSIO FOR THE COURT

CALLAHAN, P. J. HENSAL, J. CONCUR.

APPEARANCES: JEREMY A. VEILLETTE, Attorn ey at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.