2006 Ohio 5125 | Ohio Ct. App. | 2006
{¶ 2} In response to Durbin's sentencing argument, the State concedes that State v. Foster,
{¶ 3} We conclude that the trial court did not commit plain error by failing to merge
{¶ 4} Durbin's convictions, because each offense, as statutorily defined, can be committed without committing the other offense, so that they are not allied offenses of similar import. We conclude that State v. Foster, supra, mandates the reversal of the sentence imposed by the trial court, and a remand for re-sentencing. We further conclude that Durbin's contention that the mandate of the Ohio Supreme Court in State v. Foster,
supra, violates the
{¶ 5} Consequently, the sentence imposed by the trial court is Reversed, the judgment of the trial court is Affirmed in all other respects, and this cause is Remanded for re-sentencing in accordance with State v. Foster, supra.
{¶ 7} "Your Honor, in Count I, the State of Ohio is prepared to prove that Rebecca Durbin, between the dates of May 17th
and May 18th, 2005, in Greene County, Ohio, did recklessly violate the terms of any protection order which was issued, pursuant to Sections
{¶ 8} "In this instance there was a protection order issued by the Greene County Common Pleas Court in Case No. 2003-SP-00066, which was issued on June 4th, 2003, by Judge Timothy Campbell which orders Rebecca Durbin to stay away from Barbara Forester and her daughter who live in Yellow Springs, Ohio.
{¶ 9} "The second count, the State of Ohio is prepared to prove that Rebecca Durbin, between May 17th, 2005, and May 18th, 2005, in Greene County, Ohio, by engaging in a pattern of conduct, did knowingly cause another person, which in this case is Barbara Forester, to believe that the offender would cause physical harm to the other person or cause mental distress to the other person and at the time Rebecca Durbin has been previously convicted of Menacing by Stalking in the Greene County Common Pleas Court, in Case No. 2003-CR-429 as well as in the Xenia Municipal Court, and the correct case number is 2002-CRB-4130. I would move to correct that in the Indictment, Your Honor. There's a typographical error on the case number, and that's contrary to and in violation of Section
{¶ 10} "Specifically, the facts that the State is prepared to prove are that on Tuesday, May 17th, the victim was in front of the US Bank in Yellow Springs on Xenia Avenue. The Defendant was in a black car and she passed the victim, stared at her, caused the victim mental distress and the victim left the scene.
{¶ 11} "The next day, on Wednesday, May 18th, the victim was in Tom's Market which is in the Village of Yellow Springs in the produce section of the store. The Defendant, Rebecca Durbin, approached the victim and spoke to her, asking if she was, in fact, Barbara Forester, which caused the victim mental distress and she fled the store.
{¶ 12} "This conduct is a pattern of conduct which is defined in Ohio Revised Code under Section
{¶ 13} "The definition of mental distress is also contained within 2923.211(D)(2), and the State is prepared to prove that Barbara Forester did, in fact, suffer mental distress as a result of this conduct, and that this constitutes both a violation of the Protection Order statute, a felony of the third degree, 2919.27(A)(2)(B)(4), as well as the violation of Menacing by Stalking, a felony of the fourth degree under Ohio Revised Code Section
{¶ 14} Durbin tendered her plea of no contest to both counts, which was accepted by the trial court. Following a sentencing hearing, the trial court sentenced Durbin to four years for the Reckless Violation of a Protection Order offense, and eighteen months for the Menacing by Stalking offense, with the sentences to be served consecutively. From her conviction and sentence, Durbin appeals.
{¶ 16} "THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO MERGE DURBIN'S CHARGES."
{¶ 17} Durbin contends that the two offenses of which she was convicted, after pleading no contest, are allied offenses of similar import. The first test for determining whether two offenses are allied offenses of similar import is to determine whether each offense may be committed without committing the other. In making this determination, the elements of each offense must be "compared in the statutory abstract," not with reference to the particular facts alleged in the indictment. State v.Rance (1999),
{¶ 18} The first offense of which Durbin was convicted is proscribed in R.C.
{¶ 19} "(A) No person shall recklessly violate the terms of any of the following:
{¶ 20} "(1) * * *;
{¶ 21} "(2) A protection order issued pursuant to section
{¶ 22} "(3) * * *.
{¶ 23} "(B)(1) Whoever violates this section is guilty of violating a protection order.
{¶ 24} * * *
{¶ 25} "(4) If the offender violates a protection order or consent agreement while committing a felony offense, violating a protection order is a felony of the third degree."
{¶ 26} The second offense of which Durbin was convicted is statutorily proscribed in R.C.
{¶ 27} "(A)(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.
{¶ 28} * * *
{¶ 29} "(B) Whoever violates this section is guilty of menacing by stalking.
{¶ 30} "(1) * * *.
{¶ 31} "(2) Menacing by stalking is a felony of the fourth degree if any of the following applies:
{¶ 32} "(a) The offender previously has been convicted of or pleaded guilty to a violation of this section or a violation of section
{¶ 33} We conclude that, as the offenses of which Durbin was convicted are statutorily defined, each can be committed without committing the other. The first offense can be committed by recklessly violating a protection order while committing a felony other than Menacing by Stalking. An example would be coming within some prohibited distance of the residence of the person protected by the protection order while burglarizing the house next door to the protected person's residence, at a time when the protected person is not even aware of the offender's presence, much less under a belief that the offender will cause physical harm or mental distress to the protected person. This would violate R.C.
{¶ 34} Likewise, R.C.
{¶ 35} Because each of the offenses of which Durbin was convicted, as statutorily defined, can be committed without committing the other offense, they are not allied offenses of similar import, and the trial court did not commit error, plain or regular, by failing to merge her convictions. Durbin's First Assignment of Error is overruled.
{¶ 37} "THE TRIAL COURT ERRED BY SENTENCING DURBIN TO CONSECUTIVE SENTENCES.
{¶ 38} "THE TRIAL COURT ERRED BY SENTENCING DURBIN TO MORE THAN THE MINIMUM FOR A FIRST PRISON SENTENCE.
{¶ 39} "THE TRIAL COURT ERRED BY SENTENCING DURBIN TO A TERM OF IMPRISONMENT AGGREGATING TO GREATER THAN THE MAXIMUM THAT THE HIGHEST FELONY PERMITS."
{¶ 40} In support of each of these assignments of error, Durbin relies upon portions of the Ohio felony sentencing statute that have been declared unconstitutional, and have been severed, by State v. Foster,
{¶ 41} In her reply brief, Durbin does not dispute thatState v. Foster, supra, mandates that sentences pending on appeal at the time Foster was decided, which would include this case, must be reversed, and the cause must be remanded for re-sentencing. Durbin contends that this mandate violates the Ex Post Facto clause of Article
{¶ 42} We conclude that Durbin's argument that the mandate of the Ohio Supreme Court in Foster violates the United States Constitution is not cognizable in this court. As an Ohio court inferior to the Ohio Supreme Court, we are required to follow its mandates; we lack the jurisdictional power to declare a mandate of the Ohio Supreme Court to be unconstitutional.
{¶ 43} To the limited extent required by State v. Foster, supra, Durbin's Second, Third, and Fourth assignments of error are sustained.
Brogan and Walters, JJ., concur.
(Hon. Sumner E. Walters, retired from the Third Appellate District, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
