STATE OF OHIO, Plаintiff-Appellee, v. JOSHUA RYAN BACK, Defendant-Appellant.
CASE NOS. CA2015-03-037, CA2015-03-038
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
10/26/2015
[Cite as State v. Back, 2015-Ohio-4447.]
HENDRICKSON, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case Nos. CR2014-10-1629 and CR2014-10-1649
Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant
HENDRICKSON, J.
{1} Defendant-appellаnt, Joshua Ryan Back, appeals from his sentence in the Butler County Court of Common Pleas for burglary and grand theft. For the reasons set forth below, we affirm.
{2} On November 25, 2014, appellant was indicted on one count of burglary in violation of
{3} Following plea negotiations, appellant pled guilty to grand theft and an amended count of burglary in violation of
{4} Appellant timely appealed his sentence, raising two assignments of error.1
{5} Assignment of Error No. 1:
{6} THE TRIAL COURT ERRED TO APPELLANT‘S PREJUDICE BY FAILING TO ORDER THE MERGER OF ALLIED OFFENSES OF SIMILAR IMPORT.
{7} In his first assignment of error, appellant contends the trial court erred by failing to merge his convictions for burglary and grand theft. Appellant argues the offenses were committed with a “single animus and a single course of conduct.”
{8} At the outset, we note appellant pled guilty to both burglary and grand theft below without asserting to the trial court that the offenses were allied offenses of similar import. We therefore review his allied offense argument under а plain error analysis. As the Ohio Supreme Court recently held:
An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice. Accordingly, an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; and, absent that showing, the accused cannot demonstrate that the trial court‘s failure to inquire whether the convictions merge for purposes of sentencing was plain error.
State v. Rogers, Slip Opinion No. 2015-Ohio-2459, ¶ 3.
{9} Pursuant to Ohio‘s multiple count statute,
(A) Where the samе 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 аll of them.
{10} The Ohio Supreme Court has recently clarified the test a trial court and a reviewing court should employ in determining whether offenses are allied offenses that merge into a single conviction under
{11} Having reviewed the record, we cannot say the trial court committed plain error in failing to merge the offenses of burglary and grand theft. Appellant hаs not met his burden, as set forth in Rogers, of establishing a manifest miscarriage of justice. Although committed in close proximity to one another, the two offenses were committed separately. See State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, ¶¶ 49-51 (finding the offenses of burglary and petty theft were not allied offenses of similar import although committed in close proximity to one another).
{12} In order to commit burglary, appellant had to, by force, stealth, or deception, trespass in a separately secured or separately occupied portion of an occupied structure with the purpose to commit any criminal offense. Therefore, once inside the garage on Sauterne Drive, with the requisite intent, the burglary was complete. The theft offense did not occur until later, when appellant physically removed the .32 caliber revolver from the garage. At this time, grand theft of the firearm was comрlete. “Consequently, ‘because one offense was completed before the other offense occurred, the two offenses were committed separately for purposes of
{13} In determining thаt the offenses are not allied, we are guided by our decision in State v. Crosby, 12th Dist. Clermont Nos. CA2010-10-081 and CA2011-02-013, 2011-Ohio-4907, wherein we found that the offenses of burglary, safecracking, and grand theft were not
Crosby committed burglary with different conduct and a separate animus from * * * grand theft because in order to violate
R.C. 2911.12(A)(1) [burglary], Crosby had to, by force, stealth, or deception, trespass in an occupied structure with the purpose to commit any criminal offense. While Crosby chose to carry out the theft offense, he could have entered the residence with any criminal purpose and abandoned it before actually completing the criminal act. For example Crosby could have entered the Alvarado home with the purpose to steal something, but then fled when he saw that Alvarado and her children werе present. Obviously, once Crosby was inside the home, he had an opportunity to commit various criminal offenses.
Id. at ¶ 22. Similarly, in the present case, appellant could have entered the garage with any criminal purpose and abandoned it before actually completing the criminal act. Appellant did not abandon his criminal purpose, but rather committed grand theft by removing the revolver from the car and garage without the owner‘s consent.
{14} Accordingly, for the reasons expressed above, we find that the offenses of burglary and grand theft are not allied offensеs of similar import. The trial court did not commit plain error in not merging the offenses. Appellant‘s first assignment of error is, therefore, overruled.
{15} Assignment of Error No. 2:
{16} THE TRIAL COURT ERRED TO APPELLANT‘S PREJUDICE BY IMPOSING A PRISON SENTENCE ON COUNT ONE, BURGLARY.
{17} In his second assignment of error, appellant argues the trial court erred by failing to consider
{18} We review the sentence imposed on appellant under the standard of review set forth in
{19} Appellant‘s burglary conviction was a felony of the third degree. “Pursuant to
{20} The purposes of felony sentencing are to protect the public from future crime by the offender and to punish the offender.
{21} The record reflects the trial court considered the purposes and principles of sentencing before determining that a three-year prison term, rather than community control, was appropriate. At thе sentencing hearing, the trial court referenced
The Court has considered the recоrd, the charges, the defendant‘s Guilty Plea, and findings as set forth on the record herein, oral statements, any victim impact statement and pre-sentence report, as well as the principles and purposes of sentencing under
Ohio Revised Code Section 2929.11 , and has balanced the seriousness and recidivism factors оfOhio Revised Code Section 2929.12 and whether or not community control isappropriate pursuant to Ohio Revised Code Section 2929.13 , and finds that the defendant is not amendable to an available community control sanction.
Based on the foregoing, it is clear the trial court gave proper consideration to the purposes and principles of sentencing as well as the seriousness and recidivism factors аs required by Ohio‘s sentencing statutes before imposing a three-year prison term for burglary, which falls within the authorized range of prison terms set forth in
{22} The imposition of a three-year рrison term for grand theft, run consecutively to the burglary conviction, was also not clearly and convincingly contrary to law.
grand theft when the property stolen is a firearm or dangerous ordnance is a felony of the third degree, and there is a presumption in favor of the court imposing a prison term for the offense. * * * The offender shall serve a prison term imposed for grand theft when the property stolen is a firearm or dangerous ordnance consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
(Emphasis added.) Additionally,
{23} Accordingly, as the record demonstrates that the trial court considered the purposes and principles of
{24} Appellant‘s second assignment of error is, therefore, overruled.
{25} Judgment affirmed.
S. POWELL, P.J., concurs.
RINGLAND, J., concurs separately.
RINGLAND, J., concurring separately.
{26} I concur separately to distinguish my dissent in State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, from my concurrence in the present case. In Hubbard, I dissented to argue in part that burglary and grand theft are аllied offenses of similar import. Id. at ¶ 75.
{27} However, the Ohio Supreme Court has subsequently clarified the test for determining whether offenses are allied and subject to merger. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995. Based upon the Ohio Supreme Court‘s holding in Ruff, I am now in agreement with the majority that burglary and grand theft are not allied offenses оf similar import as the two offenses are committed separately.
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