State v. BrownState v. Brown
Lead Opinion
OPINON
{¶ 1} Dеfendant-appellant, Antwayne D. Brown, appeals the judgment of and sentence of the Allen County Court of Common Pleas. Following a jury trial, Brown was convicted on single counts of aggravated burglary, aggravated robbery, and felonious assault, and he was sentenced to consecutive sentences totaling twenty-nine years imprisonment. For the reasons set forth below, we find Brown‘s appeal to be without merit and affirm the judgment and sentence of the trial court.
{¶ 2} The facts of the cаse are not disputed in this appeal. On September 1, 2004 Brown, along with Keeshawn Gibson, forcibly entered the residence of one Joseph Walls. They apparently believed that drugs and money were located in the residence, and entеred the residence in order to obtain either or both. Gibson knocked on the door to the residence, and when Walls answered Brown forced open the door. A struggle ensued and Brown forced Walls to the ground. Brown thereafter pointed а gun at Walls, and repeatedly asked, “Where‘s it at? Where‘s it at?” Walls did not respond quickly enough for Brown‘s liking, and Brown shot him four times — once in the right leg, twice in the left leg, and once in the left shoulder. Thereafter, Brown took $103.00 from Walls’ person, and then went through thе residence, during which time Walls escaped.
{¶ 3} Brown was indicted on October 15, 2004 on three separate counts: one count of aggravated burglary in violation of
{¶ 4} A jury trial was held on January 10, 2005, and the jury returned guilty verdicts on all three counts. The court imposed sentence immediately thereafter, having already read a pre-sentence investigation report from Brown‘s previous criminal cоnvictions. At sentencing, the trial court imposed a nine year prison term on the aggravated burglary charge, a nine year prison term on the aggravated robbery charge, and an eight year prison term on the felonious assault charge. Additiоnally, the court sentenced Brown to a mandatory three year term on the firearm specifications, ordering that they be served concurrently. The court then ordered that the sentences on the three primary charges and the merged sentence on the firearm specification be served consecutively, for a total prison term of twenty-nine years. Brown now appeals his conviction and sentence, asserting two assignments of error.
I
The trial court committed аn error of law by imposing multiplesentences for allied offenses.
{¶ 5} In the first assignment of error, Brown argues that the aggravated burglary and aggravated robbery charges are allied offenses of similar import, and therefore the trial court erred by imposing separate sentenсes on both charges. At the outset, we note that Brown never raised this issue before the trial court, and therefore we will review it only for plain error. State v. Comen (1990), 50 Ohio St.3d 206, 211. Pursuant to Crim.R. 52(B), plain error requires that there be an obvious defect in the trial court proceedings that affects a substantial legal right. State v. Barnes (2002), 94 Ohio St.3d 21, 27; State v. Long (1978), 53 Ohio St.2d 91, at ¶ 2 of the syllabus. Thus, “only extraordinary circumstances and the prevention of a miscarriage of justice warrant a finding of plain error.” State v. Brown, Logan App. No. 8-02-09, 2002-Ohio-4755, ¶ 8 (citing Long, supra at ¶ 3 of the syllabus).
{¶ 6} In determining whether two separate charges constitute allied offenses of similar import, we must look to Ohio‘s multiple count statute,
Where the same conduct by defendant can be construed to constitute twoor more allied offenses of similar import, the indictment or informationmay contain counts for all such offenses, but the defendant may beconvicted of only one. (B) Where the defendant‘s conduct constitutes two or more similaroffenses of dissimilar import, or where his conduct results in two ormore offenses of the same or similar kind committed separately or with aseрarate animus as to each, the indictment or information may containcounts for all such offenses, and the defendant may be convicted of allof them.
The Supreme Court of Ohio analyzed this statute in State v. Rance (1999), 85 Ohio St.3d 632. Put simply, in order to convict a criminal defendant on multiple charges, they must either be (1) of dissimilar import or (2) committed separately or with a separate animus if they are of similar import. Id. at 636. The test for determining whether two offenses are of similar import is whether the offenses “correspond to such a degree that the commission of one сrime will result in the commission of the other.” Id. (citing State v. Jones (1997), 78 Ohio St.3d 12, 13). This test must be performed in the abstract, comparing the statutory elements of each offense while ignoring the facts of each particular case. Rance, supra at 636.
{¶ 7} Various courts in Ohio have applied the Rance test to the two statutory offenses at issue in this cаse — aggravated burglary and aggravated robbery — and concluded that they are of dissimilar import. See State v. Stern (2000), 137 Ohio App.3d 110, 116; State v. Williams (1996), 74 Ohio St.3d 569, 580, 660 N.E.2d 724; State v. Lamberson (March 19, 2001), 12th Dist. No. CA2000-04-012, 2001 WL 273806, at *16 (comparing aggravated burglary, aggravated robbery, and rape). As these courts found, aligning the elements of aggravated burglary and aggravated robbery in the abstract, commission of the one does not entail commission of the other. Specifically, conviction for aggravated burglary requires proof that the defendant trespassed in an occupied structure with the purpose of committing a criminal offense therein while possessing a deadly weapon.
II
The trial court committed an error of law by imposing consecutivesentences.
{¶ 8} In his second assignment of error Brown argues that the trial court failed to mаke the necessary findings under
{¶ 9} In reviewing a felony sentence, an “appellate сourt may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing” if it finds by clear and convinсing evidence “[t]hat the record does not support the sentencing court‘s findings under * * * division E(4) of section 2929.14.”
{¶ 10}
If multiple prison terms are imposed on an offender for convictions ofmultiple offenses, the court may require the offender to serve the prisonterms consecutively if the court finds that the consecutive service isneсessary to protect he public from future crime or to punish theoffender and that consecutive sentences are not disproportionate to theseriousness of the offender‘s conduct and to the danger the offenderposes to the public. . . .
{¶ 11} Additionally, in State v. Comer (2003), 99 Ohio St. 3d 463, 2003-Ohio-4165, the Ohio Supreme Court held that prior to imposing consecutive sentences, the trial court must make the requisite statutory findings and provide the rationale supporting those findings on the record at the sentencing hearing. The Ohio Supreme Court further explained that “on the record” means that ”oral findings must be made at the sentencing hearing.” Id. at ¶ 26.
{¶ 12} In the instant case, the record reflects that the trial court considered the factors listed under
The Court finds that the — as indicated the three (3) mаjor counts, theaggravated burglary, aggravated robbery and felonious assault shall runconsecutive in that it is necessary to protect the public and punish thedefendant, consecutive terms are not disproportionate to the conduct ofdefendant in that the harm done was so great or unusual that a singleterm does not adequately reflect the seriousness of the defendant‘sconduct. Defendant‘s conduct, based upon defendant‘s previous record plus theinstances — the facts of this case, which we all heard is that they bumrushed [the] house, broke into the house, had Mr. Walls down on thefloor, robbed him, shot him least — shot him four times, shot him in thechest. The court further finds that defendant‘s criminal history shows thatconsecutive terms are needed to protect the public.
{¶ 13} Brown specifically contends that the trial court fаiled to make an adequate finding under
{¶ 14} Accordingly, we find that the trial court fulfillеd the requirements of
Judgment Affirmed. Bryant, J., concurs.
Dissenting Opinion
{¶ 15} I concur with the majority opinion on thе first assignment of error; however, I must respectfully dissent on the second assignment of error.
{¶ 16} The Ohio Supreme Court in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, stated that:
A court may not impose consecutive sentences for multiple offensesunless it “finds” three statutory factors.
R.C. 2929.14(E)(4) . First, thecourt must find that consecutive sentences are necessary to protect thepublic from future crime or to punish the offender.Id. Second, the courtmust find that consecutive sentences are not disproportionate to theseriousness of the offender‘s conduct and to the danger the offenderposes to the public.Id. Third, the court must find the existence of oneof the enumerated circumstances inR.C. 2929.14(E)(4)(a) through (c). A trial court must also comply withR.C. 2929.19(B) when imposingconsecutive sentences.R.C. 2929.19 is the statute governing thesentencing hearing.R.C. 2929.19(B)(2) provides that the sentencing court“shall impose a sentence and shall make a finding that gives its reasonsfor selecting the sentence imposed in any of the followingcircumstances: * * * (с) If it imposes consecutive sentences under [R.C.] 2929.14 * * *.
Id. at 466-467 (emphasis in original).
{¶ 17} As noted by the majority,
(emphasis added.)
{¶ 18} Here, Appellant has argued that the trial court failed to make appropriate findings, and/or to support those findings, on the record, with reasons as required by statute. Appellant specifically argues that while the trial court did find that the sentences imposed were not disprоportionate to the seriousness of the defendant‘s conduct, the trial court failed to find that the sentences were not also disproportionate tothe danger that Appellant poses to the public.
{¶ 19} As noted above, the Supreme Court, in Comer, clearly defined the second necessary finding to support consecutive sеntences as follows: “the court must find that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public.” 99 Ohio St.3d at 466 (emphasis in original). The sentences in both
{¶ 20} Because the trial court has failed to make a necessary finding under