488 N.E.2d 887 | Ohio Ct. App. | 1984
This case is on appeal from the Court of Common Pleas of Shelby County, the defendant, William Collier, appellant herein, having been convicted and sentenced for two counts of felony theft and one count of burglary.
The incidents giving rise to the convictions occurred on August 2, 1982. On that date at about 11:00 p.m., defendant and an accomplice were arrested after they had removed and attempted to make away with two television sets from two rooms at the Days Inn, a motel located at Sidney, Ohio. (The accomplice was tried separately and is not a party to this appeal.) On arrival at the motel at about 10:30 p.m. they requested to rent room No. 134 but that room was "blocked off" by the management as being under repair and not available to lodgers. They rented room No. 136 instead. The two sets taken and found in defendant's possession when he was apprehended in the motel parking lot were *26 from rooms No. 134 and No. 136, the defendant having made a forced entrance into the former and then taking the television set from room No. 136 before taking the one from room No. 134.
The complaint filed in municipal court charged him with two counts of felony theft and one count of breaking and entering. On August 12, 1982, defendant waived preliminary hearing on those charges and on August 26, 1982, was released on bond.
On September 10, 1982, the Shelby County Grand Jury indicted defendant for the two counts of felony theft, but no breaking and entering indictment was returned. It appears that the prosecuting attorney did not seek an indictment on this charge with the intent of gaining leverage during the plea bargaining process. Nevertheless, defendant was arraigned on October 13, 1982, and entered a plea of not guilty to the two theft charges. An "assignment conference" was set for November 17 but defendant failed to appear.
Subsequently, after unsuccessful plea bargaining discussions, on March 1, 1983, the grand jury indicted defendant for burglary.
On the day of trial the court ruled on various pre-trial motions made by defendant, including a motion to discharge the burglary count as a violation of his right to speedy trial, and a motion for the court to apply the amendment in the theft statute raising the minimum value of property stolen to constitute a felony theft from $150 to $300. The court ruled that the defendant was not deprived of a speedy trial because he was not held "pending charges on breaking and entering or burglary between September 10, 1982 [the day the first indictment was returned] and March 1, 1983 [the date of the second indictment] and that this period of time should be excluded from any calculation of the time within which the Defendant must be brought to trial." The court also ruled that the amendment to R.C.
R.C.
Since the amending legislation did not specifically provide whether the *27
amendment was to be applied to pending criminal proceedings, the solution of such issue depends on whether the following general provisions of R.C.
"(A) The * * * amendment * * * of a statute does not, except as provided in division (B) of this section:
"* * *
"(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;
"* * *
"(B) If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture or punishment, if not already imposed, shall be imposed according to the statute as amended."
Thus, subdivision (A) of R.C.
Review of R.C.
In specific application to R.C.
We conclude from the foregoing that the amendment to R.C.
Accordingly, the defendant's first assignment of error is well-taken, and the trial court was precluded from sentencing the defendant on the basis of R.C.
As the defendant has argued these two assignments of error together we will dispose of them together, but on somewhat different reasons than argued by either party.
R.C.
In each of the theft counts of the indictment, lodged against the defendant before these amendments, the value of the television stolen was alleged to be "$150.00 or more," and each count constituted, at that time, a felony charge. The amending legislation, without the court, in turn, amending the indictment, operated to reduce these counts to misdemeanor counts, because felony theft thereafter required a value of stolen property of three hundred dollars or more. In any event, there could be no sentence for felony theft unless there was a finding concurrent with the finding of guilt that the property stolen was of a value of three hundred dollars or more. Here the court merely found that the value of the "RCA color television sets which were the subject of the indictment," which constituted "the cost of replacing such property with new property of like kind and value is in excess of $150.00." At best, this finding of value is ambiguous because it relates to the total value of both sets involved in the two counts of the indictment and not to the value of each set taken. There is no finding that any one set involved in any one count of the indictment is of a value of three hundred dollars or more, or, for that matter, of a value of one hundred fifty dollars or more, and thus no factual findings of value on which to base felony convictions on each, or either, count of the indictment.
Moreover, R.C.
The amendments to R.C.
Accordingly, the counts for theft not having been amended, there was no duty placed on the trial court to determine the value of the property taken, and its determination, while ambiguous, was wholly surplusage to the procedural situation which obtained and governed the trial court in determining the penalty which should be imposed on the defendant.
We find the second and third assignments of error well-taken requiring reversal of the felony theft sentences and remand for resentencing the defendant to a misdemeanor sentence for *29 each of the two counts of misdemeanor theft for which he was found guilty.
On April 14, 1983, the court granted ex parte the state's motion to amend the indictment for theft to include the element of "having previously been convicted of a theft offense." The day before trial the defendant filed a motion to dismiss the amended indictment. On the day of trial the court sustained the motion in part and ordered "the amended portion of the indictment, alleging a prior conviction to be dismissed." Thus, the ruling was in favor of the defendant and the trial proceeded as if there had been no amendment to the original indictment. The defendant does not show that he was prejudiced by any error committed by the trial court as here assigned.
By "dismissing" the amendment the trial court eliminated any potential error which might have resulted from the presence of the amendment. The defendant's further contention that this action was tardy and deprived him, because of such tardiness, of the effective assistance of counsel is unconvincing. Moreover, he has not invited our attention to any place in the record, and we have found none, where he raised such issue before the trial court.
Prejudicial error not being shown in the record or by defendant, we find his fourth assignment of error not well-taken.
Defendant quotes in support of his argument a passage from Justice Stewart's opinion in Bordenkircher v. Hayes (1978),
"* * * In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, `the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation' so long as `the selection was [not] deliberately based on an unjustifible standard such as race, religion, or other arbitrary classification.' * * * To hold that the prosecutor's desire to induce a guilty plea is an `unjustifiable standard,' which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. * * *"
The fifth assignment of error is not well-taken.
For reasons which will become obvious we shall consider the seventh assignment of error before the sixth.
Although the indictment was for the burglary of the "Days Inn Motel, an occupied structure, * * * or in a separately secured or separately occupied portion thereof," the parties are in agreement in their briefs and the proof was that the focal point of the burglary was room No. 134 of that motel.
R.C.
We find no cases directly in point on this issue but note the Committee Comment to R.C.
"This section defines an offense identical to burglary, except that the structure involved in a violation of this section is unoccupied rather than occupied. * * * Because of the comparatively low risk of personal harm, an offense under this section is viewed as the least serious in the hierarchy of breaking and entering offenses in the new code."
The crux of the definitional differences and the differences in penalties among these various entry crimes is the risk of harm to an occupant arising from the intrusion. The record here clearly shows that under no conditions, during the time frame involved, was the room to be available for occupancy by lodgers and thus, at that time, was not specially adapted for their overnight accommodation. Similarly, the alleged burglary occurred in the time frame of 10:30 to 11:00 p.m. and the state has not shown that there was any likelihood of occupancy by any repair personnel or other persons. We find no category of occupancy set forth under R.C.
Accordingly, there was a failure of proof as to an essential element of the crime of burglary charged in the second indictment. For such failure the judgment of conviction and sentence for such crime must be reversed and vacated. In that the crime of breaking and entering, as defined by R.C.
In that we reverse and vacate the defendant's conviction and sentence for the crime of burglary it is no longer significant whether he received a speedy trial on that charge. The issue has become moot and the sixth assignment of error is without merit.
As to the sentence, an appellate court, with some specific exceptions, is not normally permitted to review the severity of a sentence so long as the sentence falls within the parameters prescribed by the legislature. However, even were we permitted to review same, our action in setting aside the burglary conviction and sentence and in setting aside the two sentences for felony theft, in favor of resentencing for misdemeanor theft, so reduces the time to be served by the defendant that his penalty could no longer be disproportionate or otherwise constitutionally excessive. The eighth assignment of error is without merit.
Judgment accordingly.
MILLER, P.J., and COLE, J., concur.