State v. BrownState v. Brown
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Paul A. Dobson, Wood County Prosecuting Attorney, and Carri Leathers, Assistant Prosecuting Attorney, for appellee.
Keith O‘Korn, for appellant.
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COSME, J.
{¶ 1} Appellant, William Brown, Jr., was found guilty of aggravated robbery, robbery, three counts of kidnapping, grand theft, grand theft of a motor vehicle, and failure to comply with the order or signal of a police officer. The trial court sentenced
I. BACKGROUND
{¶ 2} On the morning of July 24, 2008, the Fifth Third Bank branch in Bowling Green was robbed. Wearing a hooded sweatshirt and using a white handkerchief to cover his face, Brown entered the branch building and indicated that he had a gun. He told the teller to do what he told her – or he would kill her. During the robbery, he also told the other tellers that he had a gun and he would kill them if they did not do what they were told.
{¶ 3} The first teller Brown encountered was Ms. Noe. Brown grabbed hold of her and pressed a hard object against her back. Based on his threats and actions, Noe believed Brown had a gun though she did not see it. Once behind the counter, Brown forced Noe to the floor. He instructed another teller, Ms. Schroeder, to put money into a plastic garbage bag. Brown then demanded access to the vault, but Schroeder convinced him that she did not have a key – that only Ms. Sharpe had the key. Ms. Sharpe was at that time outside fixing the ATM, and was unaware that the bank was being robbed.
{¶ 4} Lacking access to the vault, Brown demanded Schroeder‘s car keys. He took Schroeder from behind the teller counter to the break room, locking her in that room. Brown then forced Noe to accompany him outside where he saw Sharpe. After collecting Sharpe, the three of them went back into the bank and Sharpe opened the vault.
{¶ 5} After robbing the vault, Brown forced Noe outside with him to find Schroeder‘s vehicle. He left Noe in the parking lot and drove off with the police in pursuit. Attempting to elude capture, Brown reached speeds in excess of 100 m.p.h. before wrecking the vehicle.
{¶ 6} A small screwdriver, a black plastic bag, and $61,315 in cash were recovered from the vehicle. Brown was read his rights and signed a Miranda waiver before an interview the next day. Brown testified that he robbed the bank using a screwdriver, and admitted telling the women inside the bank that he had a gun. He denied, however, that he had threatened to harm or kill any of them.
{¶ 7} Immediately prior to trial, Brown executed a waiver of trial by jury and a two-day bench trial commenced. The trial court found Brown guilty on all counts and determined that Brown was a repeat violent offender.
{¶ 8} The trial court denied Brown‘s requests for a presentence investigation, for a continuance to allow counsel to prepare a statement, and for the opportunity to offer testimony of family members in support of mitigation of sentence. The trial court sentenced Brown to a maximum of ten years on the aggravated robbery charge and five years for the repeat offender specification, five years for each kidnapping charge, 18 months each for the two charges of grand theft, and four years for failure to comply with
II. DEADLY WEAPON
{¶ 9} In his first assignment of error Brown asserts that:
{¶ 10} “Appellant‘s conviction for aggravated robbery was both against the manifest weight of the evidence and was not supported by the sufficiency of the evidence, in violation of the due process clause of the 14th Amendment to the U.S. Constitution, and Article I, Section 1 & 16 of the Ohio Constitution.”
{¶ 11} Brown contends that the state failed to produce sufficient evidence for an essential element of aggravated robbery, i.e., that he used a deadly weapon. In the absence of a finding that he used a deadly weapon, Brown asserts that his conviction is against the manifest weight of the evidence.
A. The Screwdriver is a Deadly Weapon
{¶ 12} The aggravated robbery statute,
{¶ 13}
{¶ 14} Ohio courts have held that a screwdriver may be considered a “deadly weapon” as that term is defined in
{¶ 15} A factfinder may infer that the defendant possessed a deadly weapon based on his words and conduct. In State v. Haskins, 6th Dist. No. E-01-016, 2003-Ohio-70, ¶ 42, this court upheld the conviction for the aggravated robbery of a gas station, even
{¶ 16} Here, the state presented evidence that Brown concealed the screwdriver in the front pocket of his sweatshirt, told the tellers he had a gun and ultimately threatened to kill them. Both Noe and Schroeder testified that Brown pressed a hard object to their back during the robbery, and that they believed it was a weapon that could inflict serious harm. Brown‘s words and actions could lead a reasonable factfinder to infer that he in fact did have a gun.
B. Sufficiency of the Evidence
{¶ 17} Sufficiency and weight of the evidence are both quantitatively and qualitatively different as legal standards. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. With respect to sufficiency of the evidence, “sufficiency” means the “legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” Black‘s Law Dictionary (6 Ed.1990) 1433. See
{¶ 18} Convictions based on insufficient evidence violate a criminal defendant‘s right to due process of law. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. We are required to construe the evidence in favor of the prosecution and determine whether the evidence would enable any rational trier of fact to find beyond a reasonable doubt the essential elements of the offense. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, superseded by constitutional amendment on other grounds in State v. Smith (1997), 80 Ohio St.3d 89.
{¶ 19} We conclude that the state‘s evidence was legally sufficient. The tellers believed Brown had a gun. They testified that Brown pressed a hard object against their back, thus suggesting a concealed gun. A reasonable factfinder could have also
C. Manifest Weight of the Evidence
{¶ 20} Brown contends his conviction is against the manifest weight of the evidence because he did not have a deadly weapon. Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.” Black‘s at 1594.
{¶ 21} With respect to the manifest weight of the evidence, a reviewing court questions “‘whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.‘” State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶ 77, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. The appellate court considers all of the evidence, sits as a “thirteenth juror,” and decides whether a greater amount of credible evidence supports an acquittal such that the jury “clearly lost its way” in convicting the appellant. Thompkins, 78 Ohio St.3d at 387. See Tibbs, 457 U.S. at 42. See, also, Martin, 20 Ohio App.3d at 175.
{¶ 22} Based on the entire record, we find Brown‘s conviction is supported by the manifest weight of the evidence.
{¶ 23} Brown‘s first assignment of error is not well-taken.
III. POSTRELEASE CONTROL NOTIFICATION
{¶ 24} In his second assignment of error, Brown asserts that:
{¶ 25} “The trial court‘s sentencing entry contained an incorrect discretionary post release control notification that violated
{¶ 26} At the sentencing hearing, the trial court correctly notified Brown that he would be subject to five years of postrelease control following the completion of his prison term. The trial court‘s judgment entry, however, states that appellant “may be subject to three years of post-release control.” Brown asserts that this error renders his sentence void and that his sentence must be vacated and remanded to the trial court for resentencing.
{¶ 27} In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, paragraph two of the syllabus, superseded by statute, State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio held that the notice of the postrelease control requirement at sentencing is mandatory, and the trial court must also include that notice in its journal entry imposing sentence. The failure to notify a defendant about postrelease control requires reversal of the sentence and a remand for resentencing.
{¶ 28} In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 6, certiorari denied (2008), 555 U.S. 977, 129 S.Ct. 463, 172 L.Ed.2d 332, superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio stated: “[I]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.”
{¶ 29} The state suggests that this clerical error can easily be remedied by nunc pro tunc entry. We disagree. The state overlooks the fact that the General Assembly enacted Am.Sub.H.B. No. 137 (“H.B. 137“), effective July 11, 2006, which amended
{¶ 30}
{¶ 31} “On and after the effective date of this section, a court that wishes to prepare and issue a correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of this section shall not issue the correction until after the court has conducted a hearing in accordance with this division. Before a court holds a hearing pursuant to this division, the court shall provide notice of the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing, the prosecuting attorney of the county, and the department of rehabilitation and correction. The offender has the right to be physically present at the hearing, except that, upon the court‘s own motion or the motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the hearing by video conferencing equipment if available and compatible. An appearance by video conferencing equipment pursuant to this division has the same force and effect as if the offender were physically present at the hearing. At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of conviction.”
{¶ 32} The original sentencing hearing in Brown‘s case occurred after the effective date of H.B. 137.
IV. SEPARATE ANIMUS
{¶ 33} Brown‘s third assignment of error asserts that:
{¶ 34} “The trial court erred in convicting and sentencing the Appellant on the aggravated robbery and kidnapping counts in violation of the double jeopardy clause of the Fifth Amendment of the U.S. Constitution and Article 1, Section 10 of the Ohio Constitution and Ohio‘s multiple-count statute.”
{¶ 35} We disagree.
{¶ 36} Ohio‘s multiple-count statute,
{¶ 37}
{¶ 38} “(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 all of them.”
{¶ 39} Application of this statute involves a two-tiered analysis. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 18, citing State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, ¶ 14. “‘In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant‘s conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.‘” Brown at ¶ 19, quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 117. Brown‘s assignment of error challenges the trial court‘s determination that he had a separate animus for the kidnapping and aggravated robbery, so we must address that issue.
A. Comparison of the Crimes
{¶ 40} The first step for determining whether two offenses are allied offenses of similar import requires comparing the statutory elements in the abstract, rather than comparing the offenses as charged in a particular indictment. In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, ¶ 22, the Supreme Court of Ohio cautioned that “nowhere does [State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291] mandate that the elements of compared offenses must exactly align for the offenses to be allied offenses of
{¶ 41} Turning to the elements of the offenses involved in this case,
{¶ 42}
{¶ 43} In comparing aggravated robbery to kidnapping, the Ohio Supreme Court in State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, ¶ 21, observed, “It is difficult to see how the presence of a weapon that has been shown or used, or whose possession has been made known to the victim during the commission of a theft offense, does not also forcibly restrain the liberty of another. These two offenses are ‘so similar that the commission of one offense will necessarily result in commission of the other.‘” Citing Cabrales at paragraph one of the syllabus. We agree and find that comparison of the
B. Brown‘s Conduct
{¶ 44} We must next review Brown‘s conduct to determine whether he committed those offenses “separately or with a separate animus as to each,” so as to allow him to be convicted of both crimes.
{¶ 45} In State v. Logan (1979), 60 Ohio St.2d 126, the Supreme Court of Ohio adopted the following guidelines for reviewing the defendant‘s conduct to determine whether kidnapping and another offense of the same or similar kind are committed: “(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.” The court defined “animus,” for purposes of
{¶ 46} Applying the guidelines established by Logan, we conclude that Brown did commit the aggravated robbery and kidnapping separately or with a separate animus as to all three tellers.
{¶ 47} In this case, Noe and Schroeder were inside the bank when Brown robbed it, and Sharpe was outside. Brown took Noe and Schroeder from behind the counter, locked Schroeder in a room and left the bank with Noe. Upon discovering Sharpe outside, he took her into the bank along with Noe. After robbing the vault, he left Sharpe behind and took Noe back outside with him and left Noe in the parking lot when he saw the police. On the facts of this case, we find that the movement of the victims was not merely incidental to the underlying crime of aggravated robbery, but it subjected them to a substantial increase in risk of harm beyond that of the robbery itself. Accordingly, Brown‘s third assignment of error is not well-taken.
V. SENTENCING STATUTE
{¶ 48} Brown contends, in his fourth assignment of error, that:
{¶ 49} “The trial court erred in following State v. Foster after the U.S. Supreme Court issued its ruling in Oregon v. Ice when the trial court imposed maximum, consecutive sentencing upon the Appellant without making the required findings of fact.”
{¶ 50} We disagree.
{¶ 51} In Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 57, the United States Supreme Court upheld an Oregon sentencing statute which provided judges with discretion in determining whether a defendant‘s sentences for distinct offenses should run
{¶ 52} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio struck down parts of Ohio‘s sentencing scheme. The court held that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph seven of the syllabus.
{¶ 53} Although Brown asks that we disregard Foster, we decline to do so because such re-examination can only be taken by the Supreme Court of Ohio. See State v. Miller, 6th Dist. No. L-08-1314, 2009-Ohio-3908; State v. Winters, 6th Dist. Nos. L-08-1195, L-08-1263, L-08-1264, 2009-Ohio-5592; State v. Franklin, 182 Ohio App.3d 410, 2009-Ohio-2664. See, also, State v. Mickens, 10th Dist. No. 08AP-743, 2009-Ohio-2554; State v. Potter, 10th Dist. No. 09AP-580, 2010-Ohio-372.
{¶ 54} This court held recently in State v. Miller, 6th Dist. No. L-08-1314, 2009-Ohio-3908, ¶ 18, “[w]hile Oregon v. Ice may necessitate a re-examination of Ohio‘s current sentencing statutes, as well as some of those which immediately preceded the decision in Foster, such a re-examination can only be taken by the Supreme Court of
{¶ 55} Accordingly, we find Brown‘s fourth assignment of error not well-taken.
VI. CONSECUTIVE SENTENCES
{¶ 56} Brown contends in his fifth assignment of error that:
{¶ 57} “The trial court‘s 34 year prison sentence for bank robbery, wherein no individual was physically harmed, violated Appellant‘s right against cruel and unusual punishment as guaranteed by the 8th and 14th Amendments of the U.S. Constitution and Article 1, Section 9 of the Ohio Constitution.”
{¶ 58} Because none of the individual sentences imposed on Brown are grossly disproportionate to their respective offenses, and the aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment, we find Brown‘s fifth assignment of error not well-taken.
{¶ 59} The
{¶ 60} In State v. Weitbrecht (1999), 86 Ohio St.3d 368, 371-372, the Ohio Supreme Court applied the Eighth Amendment analysis set forth in Harmelin v. Michigan (1991), 501 U.S. 957, 997, 111 S.Ct. 2680, 115 L.Ed.2d 836, in which the U.S.
{¶ 61} In McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69, the Supreme Court of Ohio stated that “[a]s a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.” Citing Martin v. United States (C.A.9, 1963), 317 F.2d 753 (overruled on other grounds, United States v. Bishop (1973), 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941); Pependrea v. United States (C.A.9, 1960), 275 F.2d 325; and United States v. Rosenberg (C.A.2, 1952), 195 F.2d 583.
{¶ 62} Here, each of Brown‘s individual prison terms is within the range authorized by the General Assembly. Trial courts have discretion to impose a prison sentence within the statutory range for the offense. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. Thus we are bound to give substantial deference to the General Assembly, which has established a specific range of punishment for every offense and authorized consecutive sentences for multiple offenses. Weitbrecht at 373-374.
{¶ 63} Because the individual sentences imposed by the court are within the range of penalties authorized by the legislature, they are not grossly disproportionate or shocking to a reasonable person or to the community‘s sense of justice and do not constitute cruel and unusual punishment. Accordingly, Brown‘s aggregate prison term of 34 years, which resulted from the consecutive imposition of the individual sentences, does not violate the Eighth Amendment to the United States Constitution or
{¶ 64} The fifth assignment of error is not well-taken.
VII. SENTENCING
{¶ 65} In his sixth assignment of error, Brown complains that:
{¶ 66} “The trial court‘s sentence was contrary to law and constituted an abuse of discretion, and the trial court‘s failure to grant a continuance or order a PSI prior to sentencing violated Appellant‘s rights to due process under the 14th Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.”
{¶ 67} The trial court‘s sentencing entry demonstrates, however, that it considered the applicable sentencing factors. Further, its refusal to grant a continuance was not an abuse of discretion. The trial court had all of the information it needed. Since the trial court was prepared to send Brown to prison, it did not need to consider a PSI. In this case, because one of his convictions was for aggravated burglary, appellant was not even eligible for community control.
{¶ 68} In Foster, the Supreme Court of Ohio severed and excised
{¶ 69} Although Foster invalidated parts of the sentencing statute requiring judicial fact-finding for an imposition of maximum and consecutive sentences, we are required to engage in a two-step analysis set forth by the Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. The applicable statutes to be applied by a trial court include the felony sentencing statutes
{¶ 70} If a reviewing court is satisfied that the sentence is not clearly and convincingly contrary to law under the first prong, the court must then engage in the second prong of the analysis, which requires an appellate court to determine whether the trial court abused its discretion in selecting a sentence within the permissible statutory
{¶ 71} In the instant case, the trial court expressly stated that it considered the complete record, and its judgment entry clearly indicated that it had considered the principles and purposes of sentencing under
{¶ 72} Applying the second prong of the Kalish analysis, we next determine if the trial court abused its discretion in selecting a sentence within the permissible statutory range. Reviewing the record, we are satisfied that the trial court gave careful and
B. Pre-Sentence Investigation Report
{¶ 73} Brown argues that the trial court erred by overruling his motion for a PSI prior to imposing his sentence for 34 years incarceration. Brown contends that order and review of the PSI was necessary for possible mitigation of his sentence. Again, we find that Brown‘s assignment of error is not well-taken.
{¶ 74}
C. Continuance for Mitigation
{¶ 75} We disagree with Brown‘s assertions that the trial court abused its discretion when it denied him a continuance. We find that the trial court was under no obligation to continue the matter to allow counsel additional time to prepare a statement
{¶ 76} The sixth assignment of error is therefore not well-taken.
VIII. DEADLINE OF PLEA OFFER
{¶ 77} In his seventh assignment of error, Brown claims that:
{¶ 78} “Trial counsel rendered ineffective assistance of counsel in violation of the 6th Amendment to the U.S. Constitution and Article I, Section 10, 16 of the Ohio Constitution.”
{¶ 79} Specifically, Brown claims prejudice, asserting that he would have accepted the plea offer had he been aware there was a deadline. Browns’ conduct, however, belies his claim that he would have accepted the plea - in fact, he had rejected the plea. As such, we find that Brown fails to demonstrate ineffective assistance of counsel, and prejudice resulting from his lack of knowledge of the state‘s offer deadline.
{¶ 80} To prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-prong test enunciated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; accord State v. Bradley (1989), 42 Ohio St.3d 136,
{¶ 81} Under the first prong, there is a strong presumption that defense counsel‘s conduct falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Brown must overcome the presumption that his trial counsel communicated to him the existence of a deadline for the acceptance of the plea offer.
{¶ 82} We find that Brown cannot show any evidence that the deadline was not communicated to him. Even assuming that he could, the evidence demonstrates that Brown would not have accepted the plea. In fact, he rejected the plea. Brown was unwilling to accept the plea unless his period of incarceration was limited to six months. The state refused Brown‘s counter-offer, leading Brown to complain at sentencing that counsel “refused to get me a type of plea that would be fair.” Brown‘s statement demonstrates that he was unsatisfied with the terms of the plea and would not have accepted it even if he knew of the deadline.
{¶ 83} Thus, we find the seventh assignment of error is not well-taken.
{¶ 84} In his final assignment of error, Brown complains that:
{¶ 85} “The trial Court lacked jurisdiction to try the Appellant without a jury.”
{¶ 86} Specifically, Brown claims that the trial court lacked jurisdiction to conduct a bench trial because his written waiver was not filed by the court prior to the start of trial and the language of the written waiver did not sufficiently mirror the language set forth in the Ohio statute concerning waiver of trial by jury.
A. Filing of Waiver
{¶ 87} The record reflects that Brown signed a written jury waiver. Brown argues only that his jury waiver was not “filed” with the clerk of court prior to commencement of trial. He does not dispute that all other requirements of
{¶ 88} We distinguish the instant matter from the facts in State v. Pless (1996), 74 Ohio St.3d 333. In Pless, the Supreme Court of Ohio held that, “[a]bsent strict compliance with the requirements of
{¶ 89} In State v. Sekera, 8th Dist. No. 80690, 2002-Ohio-5972, ¶ 23, the court observed ”Pless makes no rule pertaining to when the filing occurs. * * * The fact that
{¶ 90} We find that the trial court complied with the mandate of
B. Language of Waiver
{¶ 91} Brown next complains that the language of the written waiver did not sufficiently mirror the language set forth in
{¶ 93}
{¶ 94} Ohio courts have declined to find that the language of the waiver must be a verbatim recitation of
{¶ 96} The eighth assignment of error is not well-taken.
X. CONCLUSION
{¶ 97} Brown‘s conviction for aggravated robbery was not against the sufficiency of the evidence or the manifest weight of the evidence. Brown had a screwdriver that he used as a weapon to facilitate the crime. The trial court did not err in sentencing Brown on both aggravated robbery and kidnapping. Although we find that the offenses were allied offenses of similar import, we conclude that they were committed with a separate animus as to each. We also find that Brown‘s aggregate sentence of 34 years was not an abuse of discretion. It was not disproportionate to the offenses committed. The trial court properly considered the sentencing factors. Brown failed to demonstrate ineffective assistance of counsel - he cannot accept a plea that he has already rejected. Additionally, Brown‘s waiver of jury trial was valid. The trial court had jurisdiction to hear this matter. We find, however, that the trial court failed to comply with the requirements set forth in
{¶ 98} Wherefore, based upon the foregoing, this court finds that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Wood County Court of Common Pleas is affirmed in part, and reversed in part, and remanded for resentencing in accordance with this decision. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED IN PART, AND REVERSED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
Thomas J. Osowik, P.J.
Keila D. Cosme, J. CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.