State v. GilesState v. Giles
Dated: June 3, 2015
SCHAFER, Judge.
{¶1} Defendant-Appellant, Bryan Giles, appeals the judgment of the Summit County Court of Common Pleas convicting him of a variety of offenses, including aggravated murder, aggravated burglary, and aggravated robbery, and sentencing him to a total prison term of 62 and one-half years to life. On appeal, Giles challenges the trial court‘s decision to not merge his aggravated burglary and aggravated robbery convictions for the purposes of sentencing, its imposition of consecutive sentences, and its order that he repay court costs. For the reasons that follow, we affirm in part and reverse in part.
I
{¶2} The Summit County Grand Jury indicted Giles with the following seven criminal offenses: (1) aggravated murder; (2) attempted murder; (3) aggravated burglary: (4) aggravated robbery; (5) felonious assault; (6) tampering with evidence; and (7) receiving stolen property. The first five charges also included a firearm specification. These charges arose from a February
{¶3} The investigating officers determined that Giles entered the Madison Avenue house from a front window. He then shot Cunningham in the first floor kitchen. Giles then proceeded up the stairs, took money and marijuana from Patterson‘s dresser in his bedroom, and then shot Patterson while he was in another upstairs bedroom. After this, Giles jumped out of the second floor bathroom into the backyard and then went to his girlfriend‘s car, which was parked on the street over from Madison Avenue. The police later discovered that the firearm used during the incident was stolen.
{¶4} Giles eventually gave a confession to the investigating officers in which he admitted shooting Cunningham and Patterson. During the course of his confession, Giles stated that he had planned to steal $50,000 from an individual named Wes Tucker. Giles told Patterson about his plan, and then heard that Cunningham learned of it and relayed it to Tucker himself. Since Tucker now knew of the plan, Giles thought that there was a “hit” put out for him, which led him to go over to the Madison Avenue house and shoot both Cunningham and Patterson.
{¶5} The jury convicted Giles of all counts. Since the original indictment included a death penalty specification, the matter then proceeded to the sentencing phase of the trial. However, after hearing the evidence, the jury did not return a death sentence recommendation.
{¶6} The aggravated murder, attempted murder, aggravated robbery, and receiving stolen property sentences were all ordered to be served consecutively. However, the three years for tampering with evidence was ordered to run concurrently. The total prison term handed down by the trial court was 62 and one-half years to life.
{¶7} This timely appeal followed with Giles presenting three assignments of error for our review.
II
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN IMPOSING SEPARATE SENTENCES UPON BRYAN GILES, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶8} In his first assignment of error, Giles asserts that the trial court erred in failing to merge his aggravated burglary and aggravated robbery convictions for the purposes of sentencing. We disagree.
{¶9} We conduct de novo review when considering a trial court‘s decision regarding merger. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. ”
(A) When the same conduct by defendant can 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 by 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 similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶10} The Ohio Supreme Court recently handed down its decision in State v. Ruff, 2015-Ohio-995, which clarified the proper test that courts should apply when considering merger issues. There, the Court instructed courts to “evaluate three separate functions – the conduct, the animus, and the import.” Id. at paragraph one of the syllabus. When conducting this evaluation, courts are permitted under
{¶11} State v. Linde, 9th Dist. Summit No. 26714, 2013-Ohio-3503, is particularly instructive on the application of
{¶12} We follow the guidance of Linde and Santamaria1 here and find that Giles’ convictions for aggravated robbery and aggravated burglary are not allied offenses of similar import that must be merged for sentencing purposes. The record reflects that Giles entered the house for the purpose of killing Cunningham in retaliation for his disclosure of Giles’ plan to steal money from Tucker. Giles’ action of entering the house to harm Cunningham demonstrates
{¶13} Accordingly, we find that the trial court did not err in declining to merge Giles’ aggravated burglary and aggravated robbery convictions for sentencing purposes and overrule his first assignment of error.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES UPON BRYAN GILES, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶14} In his second assignment of error, Giles argues that the trial court erred in failing to sufficiently state and journalize the necessary statutory findings for the imposition of consecutive sentences. We disagree with Giles’ contention that the trial court failed to properly address the statutory findings at his sentencing hearing. However, as conceded by the State, we
{¶15} “A plurality of the Supreme Court of Ohio has held that appellate courts should implement a two-step process when reviewing a felony sentence.” State v. Clayton, 9th Dist. Summit No. 26910, 2014-Ohio-2165, ¶ 43, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. “First, [we] examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 26. The standard of review in the first step is de novo. Id. If the sentence is not contrary to law, we review a trial court‘s decision in imposing a term of imprisonment for an abuse of discretion. Id. An abuse of discretion implies the court‘s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio St. Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶16}
If the 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:
(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 , 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 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 course of conduct adequately reflects the seriousness of the offender‘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.
Based on the plain terms of the statute, we have previously recognized that trial courts must make three findings before imposing consecutive sentences:
- that consecutive sentences are necessary to protect the public from future crime or to punish the offender;
- that consecutive sentences are not disproportionate to the seriousness of the offender conduct and to the danger the offender poses to the public; and
- that one of the particular findings set forth in
R.C. 2929.14(C)(4)(a) -(c) applies.
Linde, 2013-Ohio-3503, at ¶ 25.
{¶17} The Supreme Court of Ohio has specifically required trial courts to not only make the necessary
{¶18} The failure to properly engage in the necessary analysis under
{¶19} At the sentencing hearing, the trial court stated as follows regarding the imposition of consecutive sentences:
The Court heard the evidence in this trial and the Court feels it‘s very important that there be consecutive sentences issued in this case because the Court feels that it would otherwise demean the seriousness of this offense not to. It‘s important to protect the public and deter you from any future crime.
* * *
As to the attempted murder charge, as I said already, I find it to be the most serious form of the offense, and in order to adequately protect the public, I must run that consecutive.
* * *
As to the aggravated robbery charge, in addition, that involves separate actions on your part, moving to a separate room, separately stealing items. They weren‘t in the same room with [Cunningham], they weren‘t on [Cunningham]‘s person, they weren‘t in the same room with [Patterson]. They were in a separate room. It was a separate animus and it was separate acts.
And but for your choice to climb over the dead body of your cousin to go upstairs, you have this separate animus to kill [Cunningham] and steal from them. I find that is the most serious form of the offense.
* * *
As to the receiving stolen property charge, you used a stolen gun, which I believe you knew was stolen, to commit this heinous murder, and so I will run that consecutive.
We find that these statements at the sentencing hearing were sufficient to show that the trial court engaged in the proper analysis and made the necessary statutory findings before imposing consecutive sentences. The trial court noted that Giles’ conduct was among the most serious ever before the trial judge and it noted the need to protect the public from future crime. These statements satisfy the first two required prongs for the imposition of consecutive sentences since they reflect that the consecutive sentences are needed to punish the offender and protect the public and they are not disproportionate to the seriousness of the crimes committed. Moreover, by discussing the separate animi for the aggravated robbery and the aggravated murder, the trial court sufficiently stated its finding under
{¶20} Nevertheless, the trial court failed to properly incorporate those findings into its sentencing entry. The entry states as follows regarding the imposition of consecutive sentences:
The Court finds that consecutive sentences are necessary to protect the public from future crime or to punish the offender and is not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. Further, the offender‘s relationship with the victims and lack of remorse demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
As the State concedes, this language fails to memorialize the trial court‘s finding that one of the provisions of
THE TRIAL COURT ERRED IN IMPOSING COSTS WITHOUT ALLOWING A REQUEST FOR WAIVER OF COSTS, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶21} In his third assignment of error, Giles contends that the trial court erred in ordering him to pay court costs without addressing the issue at the sentencing hearing. The State concedes this point.
{¶22}
{¶24} Accordingly, we sustain Giles’ third assignment of error.
III
{¶25} Since we overruled Giles’ first and second assignments of error, we affirm the Summit County Court of Common Pleas’ judgment insofar as it imposes consecutive sentences and imposes a total prison term of 62 and one-half years to life. However, we remand this matter to the trial court so that it can issue a nunc pro tunc entry containing the
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JULIE SCHAFER
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
JEREMY A. VEILLETTE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.