STATE OF OHIO, PLAINTIFF-APPELLEE, v. GARRETT N. BROWN, DEFENDANT-APPELLANT.
CASE NO. 13-15-06
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
August 24, 2015
[Cite as State v. Brown, 2015-Ohio-3402.]
Aрpeal from Seneca County Common Pleas Court Trial Court No. 14-CR-0133 Judgment Affirmed in Part, Reversed in Part
Scott B. Johnson for Appellant
Derek W. DeVine for Appellee
{¶1} Defendant-appellant Garrett N. Brown (“Brown“) brings this appeal from the judgment of the Court of Common Pleas of Seneca County. Brown challenges the imposition of consecutive sentences and the order of restitution imposed by the trial court. For the reasons set forth below, the judgment is affirmed in part and reversed in part.
{¶2} On May 21, 2014, Brown, along with Tyson Ogg (“Ogg“) and Dallas Salaz (“Salaz“) went to the residence of Janelle Mauricio (“Mauricio“) and Caleb Barto (“Barto“) with the intention of stealing marijuana and cash from the residence. Ogg stayed in the car while Brown and Salaz went up to the house and forced their way into the home. Salaz then beat Barto with a tire tool. Mauricio recognized Brown, despite the mask he was wearing, and called him by name. Mauricio was pushed onto the couch and Brown shot her in the leg. Brown and Salaz then fled the home. Barto and a friеnd took Mauricio to the hospital for the gunshot wound, but she later died from her injury.
{¶3} On June 2, 2014, a complaint was filed in Juvenile Court alleging that Brown, who was born in June 1996, so was seventeen years old at the time of the offense, was delinquent for causing the death of another while committing an aggravated robbery or an aggravated burglary. Doc. 1. Brown was found to be indigent and counsel was appointed for him. Id. The State filed a motion to
{¶4} On June 12, 2014, the Sеneca County Grand Jury indicted Brown on three counts: 1) Aggravated Burglary in violation of
{¶5} On February 9, 2015, a change of plea hearing was held. Doc. 100. As part of the plea agreement, Brown entered pleas of guilty to Counts One and Two, and a guilty plea to an amended Count Three of Murder in violation of
First Assignment of Error
The trial court erred and abused its discretion in sentencing [Brown] to consecutive and aggregate prison terms in excess of the statutory minimums for the offenses.
Second Assignment of Error
The trial court erred by assessing restitution and costs without conducting an ability to pay hearing.
{¶6} In the first assignment of error Brown alleges that the trial court erred by sentencing him to more than the minimum sentences and by ordering the sentences to be served consecutively. Brown argues that the trial court did not correctly apply the sentencing factors and that the aggravated burglary and
{¶7} In this case, the trial court was aware that Brown was the one who carried the weapon into the house and was the one who shot Mauricio. The trial court heard the victim impаct statements made by friends and family members of Mauricio. The trial court also heard the statement made by Brown. Additionally, the trial court reviewed the pre-sentence investigation report and listened to the arguments of the State and Brown‘s counsel. The trial court then made the following statements.
Court has considеred the principals and purposes of felony sentencing under [
R.C. 2929.11 ], and has balanced the seriousness and recidivism factors under [R.C. 2929.12 ].* * *
By his plea of guilty, Mr. Brown has been convicted of two Felonies of the First Degree. And an unclassified felony in Count Three. The Court has looked at all sentencing factors, including those factоrs and presumptions under [
R.C. 2929.13(D) ].
After consideration of all sentencing factors under Ohio law, after consideration of the various recommendations presented to this Court, the Court does find that a prison term not only is consistent but required under the principals and purposes of felony sentencing under Section 2929.11 . And the shortest prison term will demean the seriousness of the Defendant‘s conduct and will not adequately protect the public from future crime by this Defendant or others.* * *
The Court finds based upon all matters before it, including the Pre-Sentence Report, that consecutive sentences are necessary to protect the public from future crime or to punish the Defendant. And that consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct and to the danger the Defendant possess [sic] to the public.
The Court finds also at least two of the multiple offenses were committed as part of one or more courses of conduct. And the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the Defendant‘s conduct.
The Court further finds the Defendant‘s history of criminal and juvenile conduct demonstrates that consecutive sentences are necessary to protect the public from future crimes by this Defendant. The Court notes that the juvenile record of the Defendant is one, two, three, four, five, almost six pages long.
Sentencing Tr. 38-40. These statеments were reiterated in the sentencing entry. Doc. 101. The trial court is not required to use any specific language regarding the sentencing factors. Curry, supra at ¶ 6. The record indicates that evidence was presented to the trial court regarding the sentencing factors and that the trial court considered the relevant оnes, including the youth of the defendant. The sentence
{¶8} The next issue raised is whether the trial court erred by imposing consecutive sentences. The imposition of consecutive sentences is governed by
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(а) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as рart of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offеnder‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶9} Finally, Brown raises the issue as to whether the convictions should merge. Brown claims that both Count One for Aggravated Burglary and Count Two for Aggravated Robbery were both committed with the same goal of committing the theft, so should merge for sentencing purposes. Ohio‘s allied offense statute provides as follows:
(A) Where the same conduct by defendant сan 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 my contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶10} Here, Brown was convicted of three counts: aggravated burglary, aggravated robbery, and murder with a gun specification. To convict one of aggravated burglary as charged in this case, the State had to show that Brown trespassed in an occupied structure through the use of force and that the offender inflicted, attempted to inflict or threatened to inflict physical harm on another.
{¶11} In the second assignment of error, Brown claims that the trial court erred by ordering restitution without holding a hearing regarding ability to pay. The trial court has the authority to require the offender to pay restitution to the victim or survivor of the victim to compensate for economic loss.
{¶12} In this case, the trial court did not discuss Brown‘s present or future ability to pay restitution prior to imposing it. The evidence before the trial court was that Brown was indigent and had no income. At the time of the offense, he was seventeen years of age and reached his 18th birthday in jail. Brown received an aggregate prison term of thirty yeаrs to life for these offenses. According to the PSI, Brown had no employment history, no income, no assets, and owed $1,500.00 to the juvenile courts. Additionally, the PSI indicated that the highest level of education achieved by Brown was to complete the 11th grade. There is nothing in the record to indicate upon what the trial court made the determination that Brown had the ability or would have the ability in the future to pay the restitution ordered prior to imposing it. The trial court did not address the issue in any way prior to ordering restitution. Although the language of the guilty plea warned Brown that restitution may be ordered as part of his sentence, he did not agreе to pay restitution or to the amount of any restitution. Without some evidence in the record to support the trial court‘s apparent conclusion that Brown had or would have the ability to pay restitution, this court must reverse the
{¶13} Having found error prejudicial to the appellant, the judgment of the Court of Common Pleas of Seneca County is affirmed as to the sentence, but is reversed as to the order of restitution. The matter is remanded for further proceedings in accord with this opinion.
Judgment Affirmed in Part, Reversed in Part
ROGERS, P.J., concurs in Judgment Only
PRESTON, J., concurs.
/hlo