State v. Linde, 2013 Ohio 3503

Defendant Robert Linde pleaded guilty to aggravated robbery and aggravated burglary after he and a co-defendant broke into George Nemeth’s home armed with a knife and other gear, remained inside, and later attacked Nemeth when he emerged from hiding; a possession-of-criminal-tools count was dismissed as part of the plea.
This Court previously reversed and remanded because the trial court had not applied State v. Johnson to determine whether the convictions were for allied offenses of similar import.
On remand the trial court held a hearing, concluded the offenses did not merge, ordered a PSI, and later sentenced Linde to consecutive eight-year terms on each count (total 15 years), which Linde appealed.
Linde’s appellate brief lacked factual detail and record pinpoint citations; the court criticized counsel’s briefing but reviewed the record nonetheless.
The trial court found burglary complete upon forced entry and robbery occurred later when Linde assaulted Nemeth; alternatively, it found separate animus (entry to steal; later decision to attack upon discovering victim was home).
The court relied on PSIs and several hearings in imposing non-minimum and consecutive sentences; the PSIs were not included in the appellate record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether aggravated robbery and aggravated burglary are allied offenses requiring merger	State: offenses dissimilar or separately committed; sentencing on both permissible	Linde: robbery was incidental to burglary and should merge	Court: No merger — offenses were separately committed or committed with separate animus; convictions affirmed
Whether trial court erred by imposing above-minimum sentences	State: court considered R.C. 2929.11/2929.12 and PSIs; within statutory range	Linde: court failed to consider sentencing principles; sentence unlawful	Court: No error — record shows consideration and sentences within statutory range; presumption of regularity where PSI relied on but not in record
Whether consecutive sentences were improper for lack of statutory findings	State: sentencing entry contained required R.C. 2929.14(C)(4) findings	Linde: court failed to make required findings	Court: No error — entry set forth necessity, proportionality, and that harm was so great or unusual such that consecutive terms were warranted
Whether appellate briefing deficiencies affect review	State: N/A	Linde: N/A (brief lacked facts and citations)	Court: Noted deficiencies but proceeded to review record; concurrence would also overrule based on limited appellate argument

State v. Johnson, 128 Ohio St.3d 153 (2010) (announces two-step allied-offense test: could offenses be committed by same conduct and were they actually committed by the same conduct)
State v. Mathis, 109 Ohio St.3d 54 (2006) (trial court not required to make specific findings on record before imposing maximum sentence)
State v. Foster, 109 Ohio St.3d 1 (2006) (sentencing-foundational decisions following Blakely/Appellate limitations)
State v. Brown, 119 Ohio St.3d 447 (2008) (discussion of single-act, single-state-of-mind concept in allied-offense analysis)
State v. Powell, 59 Ohio St.3d 62 (1991) (aggravated burglary continues while defendant remains in the structure)