State v. ChurchState v. Church
Lead Opinion
{¶ 1} On Oсtober 4, 2002, a Morgan County grand jury indicted appellant, Jackie Church, on one count of attempted aggravatеd murder in violation of
{¶2} On July 8 2003, appellant pleaded guilty to attempted murder and felоnious assault and the firearm specifications. By sentencing entry filed September 23, 2003, the trial court sentenced appellant to an aggregate term of 19 years in prison. Upon remand by this court for transcript irregularities, the trial cоurt resentenced appellant on November 4, 2004, to the same 19-year term.
{¶ 3} Appellant filed an appeаl, and this matter is now before this court for consideration. The assignments of error are as follows:
*591 {¶ 4} Assignment of error I: “The trial court erred in ordering consecutive sentencing on the felonious assault and the attempted murder charges.”
{¶ 5} Assignment of error II: “The court erred in ordering the defendant to pay restitution of an unknown amount.”
{¶ 6} Assignment of error III: “The court erred in not finding that the crime of attempted murder and felonious assault are crimes of similar import and merging the offensеs.”
I
{¶ 7} Appellant claims that his resentencing was deficient because the trial court failed to state in the record its reasons for imposing consecutive sentences, in violation of
State v. Comer,
{¶ 8} In
Comer,
at paragraph one of the syllabus, the Suрreme Court of Ohio held, “Pursuant to
{¶ 9} “If multiple prison terms are imposеd on an offender for convictions of multiple offenses, the court may require the offender to serve the prisоn terms consecutively if the court finds that the consecutive service is necessary to protect the public frоm 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:
{¶ 10} “(a) 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, or 2929.18 of the Revised Code, or wаs under post-release control for a prior offense.
{¶ 11} “(b) At least two of the multiple offenses were committеd 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 offender’s conduct.
{¶ 12} “(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
*592 {¶ 13} We have examined the record of the October 27, 2004 resentencing hеaring and, in particular, pages 22-27, and find explicit reasons stated on the record by the trial court. These reasоns are not contrary to law and are sufficient to meet the requirements of Comer.
{¶ 14} Assignment of error I is not well taken.
II
{¶ 15} Appellant claims that the trial court erred in ordering an undetermined amount for restitution. We agree.
{¶ 16} In its sentencing entry of November 4, 2004, the trial court ordered appellant “to pay restitution to the victim for counseling, medical bills, and psychological treatment, etc.” The state agrees that the restitution amount must be specified. Therefore, the restitution order is reversed, and the mаtter is remanded to the trial court to specify the amount for restitution.
{¶ 17} Assignment of error II is well taken.
III
{¶ 18} Appellant claims that the trial court erred in ordering consecutive sentences for attempted murder and felonious assault, as the crimes are of similar import. We disagree.
{¶ 19} The state is correct that
State v. Myers
(Jan. 14, 2002), Perry App. No. 01 CA 5,
{¶ 20} “We find the elements of attempted murder and felonious assault do not meet the requirements of
[State v.] Rance
[ (1999),
{¶ 21} I did not participate in the
Myers
decision, and I disagree with its result.
1
I find the cases cited by appellant to be more persuasive. See
State v. Puckett
(Mar. 27, 1998), Greene App. No. 97CA43, and
State v. Gimenez
(Sept. 4, 1997), Cuyahoga App. No. 71190,
{¶ 22} Based upon my finding that the cited cases from the other districts are in conflict with our decision in Myers, I would deny the аssignment of error and certify the following question to the Supreme Court of Ohio:
*593 {¶ 23} “Are attempted murder and felonious assault crimes of similar import to preclude cumulative sentencing?”
{¶ 24} The judgment of the Court of Common Pleas of Morgan County, Ohio is hereby affirmed in part and reversed in part, and the cause is remanded.
Judgment affirmed in part and reversed in part, аnd cause remanded.
Notes
. There was but one gunshot and one result in this case. All of the victim’s injuries stemmed from the one single act of violence by appellant
Concurrence Opinion
concurring.
{¶ 25} I concur in Judge Farmer’s opinion as it pertains to appellant’s third assignment оf error. Appellant’s third assignment of error raises the issue of whether attempted murder and felonious assault are сrimes of similar import.
{¶ 26} Although the majority affirms the sentence rendered by the trial court, in accordance with
State v. Myers
(Jan. 14, 2002), Perry App. No. 01 CA 5,
{¶ 27} I write separately to indicate that I agree with the
Myers
decision and its conclusion that the elements of attempted murder and felonious assault do not meet the requirements of
State v. Rance
(1999),
{¶ 28} I also reached the same conclusion in
State v. Morris,
Guernsey App. No. 03 CA 29,
Concurrence Opinion
concurring.
{¶ 29} I concur with Judge Farmer as to the disposition оf this case. I also concur with Judge Farmer as to the analysis of the first and second assignments of error.
{¶ 30} I write separately to indicate that I concur with Judge Wise as to the analysis of the third assignment of error.