State v. Penwell
2017 Ohio 7465
| Ohio Ct. App. | 2017Background
- Bobby Joe Penwell was indicted in two Fayette County cases for multiple burglaries, thefts, breaking-and-entering, and grand theft of a motor vehicle; he pled guilty to selected counts in both cases in December 2016.
- In Case No. 195 he pled guilty to one count of second-degree burglary and received a 5-year prison term.
- 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 stealing an all-terrain vehicle (Count 19); other counts were merged or dismissed.
- The trial court refused to merge Counts 10 and 11, treated the ATV as a "motor vehicle" making Count 19 a fourth-degree felony, and imposed consecutive sentences that produced an aggregate 18-year term across both cases.
- Penwell appealed alleging improper failure to merge allied offenses (Counts 10 and 11), incorrect classification of the ATV theft, inadequate factual basis for the second-degree burglary conviction, and error in imposing consecutive sentences.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Penwell) | Held |
|---|---|---|---|
| Whether Counts 10 (breaking-and-entering) and 11 (theft) are allied offenses requiring merger | Offenses were of dissimilar import because they victimized different persons and involved separate harm/animus | Counts should merge as allied offenses of similar import | Court: Not allied; no merger — different victims and separate animus (breaking-and-entering completed before theft) |
| Whether an ATV qualifies as a "motor vehicle" for grand theft enhancement to felony 4 | ATV fits R.C. 4501.01(B) definition of motor vehicle; felony-4 classification proper | ATV not a motor vehicle; grand theft should be felony-5 | Court: Plaintiff correct; ATV is a motor vehicle and Penwell waived the issue by pleading guilty (even if preserved, statutory definition supports motor vehicle) |
| Whether factual basis supported conviction for burglary as second-degree under R.C. 2911.12(A)(1) | Indictment and plea colloquy included required elements (person other than accomplice present); guilty plea supplies necessary admission | Prosecutor's recitation omitted element; conviction should be a lesser fourth-degree burglary | Court: Guilty plea waived nonjurisdictional challenge; indictment and plea covered elements; conviction stands |
| Whether court erred in imposing consecutive sentences (R.C. 2929.14(C)(4) findings) | Trial court made required findings at sentencing and incorporated them into the entry (necessity, proportionality, statutory basis such as post-release control) | Sentencing findings were insufficiently stated at hearing and in entry | Court: No error; record shows required findings and sentence not contrary to law |
Key Cases Cited
- State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (articulates three-factor allied-offense test: conduct, animus, and import)
- State v. Williams, 134 Ohio St.3d 482 (Ohio 2012) (R.C. 2941.25 review and merger principles)
- State v. Spates, 64 Ohio St.3d 269 (Ohio 1992) (guilty plea waives nonjurisdictional defects and breaks chain of prior challenges)
- State v. Bonnell, 140 Ohio St.3d 209 (Ohio 2014) (consecutive-sentence findings must be made at sentencing and incorporated in the entry)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard of appellate review for felony sentences under R.C. 2953.08(G)(2))