State v. Penwell
2017 Ohio 7465
Ohio Ct. App.2017Background
- Bobby Joe Penwell was indicted in two Fayette C.P. cases for multiple burglaries, breaking-and-entering, thefts, and one grand theft of a motor vehicle; he pleaded guilty to selected counts in both cases in December 2016.
- In Case No. 195 he pled guilty to one count of burglary (R.C. 2911.12(A)(1)); the court sentenced him to 5 years.
- In Case No. 270 he pled guilty to multiple counts including breaking-and-entering (Count 10), theft (Count 11), and grand theft of a motor vehicle for taking an ATV (Count 19); other counts were merged or dismissed as part of the plea.
- The trial court declined to merge Counts 10 and 11, treated the ATV as a motor vehicle (making Count 19 a fourth-degree felony), and imposed consecutive sentences in Case No. 270 totaling 13 years, to be served consecutively to Case No. 195 for an aggregate 18 years.
- Penwell appealed four issues: (1) alleged allied-offense error for Counts 10 & 11, (2) whether an ATV qualifies as a "motor vehicle" for grading Count 19, (3) sufficiency of the factual basis/elements for the second-degree burglary conviction in Case No. 195, and (4) whether the court properly made and incorporated findings to impose consecutive sentences.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Penwell) | Held |
|---|---|---|---|
| Whether Counts 10 (breaking & entering) and 11 (theft) are allied offenses requiring merger | Offenses are distinct because they victimized different persons and thus do not merge | Offenses are allied of similar import and should merge | Court held they are not allied — separate victims, separate harms, and separate animus (no merger) |
| Whether the stolen ATV qualifies as a "motor vehicle" so that Count 19 is a fourth-degree felony | ATV falls within R.C. 4501.01(B) definition of "motor vehicle"; felony-four grading proper | ATV is not a motor vehicle; Count 19 should be graded lower (felony five) | Court held Penwell waived challenge by pleading guilty and, in any event, ATV qualifies as a motor vehicle under the statute (felony four) |
| Whether the burglary conviction in Case No. 195 lacked necessary elements to support second-degree burglary | Indictment and plea colloquy supplied the statutory elements; guilty plea admitted elements | Prosecutor's factual recital omitted presence-of-other-person element, so conviction should be reduced | Court held guilty plea waived nonjurisdictional challenge and plea/admission supported the conviction as charged (no error) |
| Whether the trial court erred by imposing consecutive sentences without required findings | Court made and recorded R.C. 2929.14(C)(4) findings at sentencing and incorporated them in the entry | Trial court failed to make or incorporate required consecutive-sentence findings | Court held the record supports the required findings (necessity, proportionality, and statutory predicate); consecutive sentences affirmed |
Key Cases Cited
- State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (sets three-part allied-offense test: conduct, animus, import)
- State v. Williams, 134 Ohio St.3d 482 (Ohio 2012) (standards for reviewing allied-offense questions)
- State v. Bonnell, 140 Ohio St.3d 209 (Ohio 2014) (trial court must make and incorporate consecutive-sentencing findings)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard of appellate review for felony sentences under R.C. 2953.08)
- State v. Spates, 64 Ohio St.3d 269 (Ohio 1992) (guilty plea waives nonjurisdictional defects and admissions in open court bar later contest)