State of Ohio, Plaintiff-Appellee, v. Thomas A. Johnson, Defendant-Appellant.
Nos. 16AP-860 (C.P.C. No. 14CR-5733), 16AP-868 (C.P.C. No. 15CR-4235) and 16AP-869 (C.P.C. No. 15CR-6419)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 28, 2017
[Cite as State v. Johnson, 2017-Ohio-9286.]
(REGULAR CALENDAR)
Rendered on December 28, 2017
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.
On brief: The Law Office of Donald Gallick LLC and Donald Gallick, for appellant. Argued: Donald Gallick.
APPEALS from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Thomas A. Johnson, appeals the sentences he received in three separate criminal cases in the Franklin County Court of Common Pleas after pleading guilty to multiple violent and drug-related felonies. As explained below, the trial court did not err when sentencing Johnson. Accordingly, we affirm the judgments in all three cases.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} On June 27, 2013, Johnson and a companion drove to the home of an individual who they believed had murdered one of their friends, got out of the car, and fired shots into the house. A person with no connection to the murder was inside. (June 13, 2016 Tr. at 9.) Johnson and his companion then drove to another residence,
{¶ 3} On October 28, 2014, Johnson and his companion were indicted on the following charges: two counts of improperly discharging a firearm at or into a habitation, a second degree felony under
{¶ 4} On August 20, 2015, police officers observed Johnson driving and in pursuit of another vehicle, which he cut off. Johnson got out and went up to the driver of the car he was pursuing, at which time the officers drew their weapons and arrested him. A seven-month-old child was in the car. Johnson told the officers that he sold heroin and was in possession of over 10 grams of the substance. (June 13, 2016 Tr. at 12.) Johnson was subsequently indicted on one count of possession of heroin under
{¶ 5} On December 5, 2015, Johnson was arrested pursuant to an outstanding warrant and was discovered to be in possession of an ounce of heroin. (June 13, 2016 Tr. at 13.) He was subsequently indicted on one count of possession of heroin under
{¶ 6} Johnson initially entered pleas of not guilty to all the charges, but subsequently reached a plea deal with the prosecutor. In exchange for pleading guilty, the
{¶ 7} A sentencing hearing was held on November 16, 2016.2 For the offenses arising from the June 27, 2013 shootings, the trial court sentenced Johnson to four years each for the two counts of improper discharge of a firearm into a residence and four felonious assault counts, nine months each for carrying a concealed weapon and improper handling of a firearm in a motor vehicle, and three years for two of the firearm specifications. The trial court ordered the two counts of improper discharge of a firearm into a residence to be served concurrently but consecutive to the counts of felonious assault, carrying a concealed weapon and improper handling of a firearm in a motor vehicle, which were all to be served concurrently. The two three-year firearm specifications were to be served consecutive to all other counts and consecutive to the sentences in Johnson‘s other cases. (Nov. 17, 2016 Jgmt. Entry in case No. 14CR-5733.) The trial court sentenced Johnson to two years on each of the trafficking in heroin charges in the other cases, for a total aggregate sentence of eighteen years imprisonment. (Nov. 17, 2016 Jgmt. Entry in case No. 15CR-4235 & Nov. 17, 2016 Jgmt. Entry in case No. 15CR-6419.)
{¶ 8} Johnson filed timely notices of appeal of these sentences, and asserts the following assignments of error:
[I.] THE TRIAL COURT FAILED TO CONDUCT A MANDATORY ANALYSIS OF MERGER AND ALLIED OFFENSES OF SIMILAR IMPORT IN 14 CR 5733.
[II.] THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES WITHOUT ANNOUNCING AT
THE SENTENCING HEARING WHICH FINDING REQUIRED [THAT] THE SENTENCES BE SERVED CONSECUTIVELY AS MANDATED BY STATE V. BONNELL. [III.] THE TRIAL COURT ERRED BY IMPOSING SENTENCES ON FELONY CASES WITHOUT CONSIDERING THE OVERRIDING PURPOSE[S] OF FELONY SENTENCING.
II. ANALYSIS
{¶ 9} Before reaching Johnson‘s assignments of error, we consider the applicable standards of review. A defendant may appeal a sentence on the grounds that the sentence imposed by the trial court was “contrary to law.”
“Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 10} We apply a considerably less deferential standard to Johnson‘s appeal of the trial court‘s merger analysis under
{¶ 11} We consider each of Johnson‘s assignments of error in turn.
A. First Assignment of Error
{¶ 12} In support of the first assignment of error, Johnson argues that the trial court failed to perform the three-part merger analysis required by State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995.
(A) Where 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 be 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 the same or 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.
{¶ 14} “In determining whether offenses are allied offenses of similar import within the meaning of
{¶ 15} During the sentencing hearing, Johnson‘s attorney made two arguments for merger. First, based on the first shooting, he requested that the conviction for improper discharge of a firearm into a residence and the felonious assault conviction should merge because they “occurred in concert with the firing into that particular residence.” (Nov. 16, 2016 Tr. at 8.) Second, based on the shooting into the second residence, Johnson‘s attorney requested that all other convictions should merge. Those convictions included another conviction for improper discharge of a firearm into a residence, three felonious assault convictions, and convictions for carrying a concealed weapon and improper
{¶ 16} The trial court stated that merger did not apply. It acknowledged that there were “some compelling arguments regarding concurrent time, to a certain extent,” but based its determination on the fact that the offenses involved “multiple victims.” (Tr. at 14-15.) The trial court emphasized the fact that even “in one incident with one bullet,” a perpetrator could “end[] up shooting two people and killing them.” Id.
{¶ 17} Johnson‘s argument on appeal does not specify which counts he believed the trial court should have merged. Nor does he present any argument as to why any of them should have merged. He merely asserts that the trial court failed to apply Ruff‘s three-part test correctly. (Appellant‘s Brief at 5-6).
{¶ 18} Although the trial court may not have used the precise language of Ruff to analyze merger, denying merger on the grounds that the offenses in question involved multiple victims is, in essence, a determination that the offenses were of dissimilar import. Ruff at paragraph one of the syllabus (stating that offenses are “of dissimilar import exist within the meaning of
{¶ 19}
{¶ 20} The three convictions for felonious assault arising from the second shooting committed by Johnson do not merge for the same reason. Three individuals were inside the home at the time and constituted three separate victims.
{¶ 21} Finally, the trial court did not err by refusing to merge the convictions for carrying a concealed weapon and improper handling of a firearm in a motor vehicle with the foregoing offenses. Johnson‘s conviction for carrying a concealed weapon arose under
B. Second Assignment of Error
{¶ 22} In support of the second assignment of error, Johnson argues that the trial court failed to make the necessary findings under
{¶ 23}
If 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 courses 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.
{¶ 24} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{¶ 25} Johnson argues that the trial court failed to make findings under any of the the
{¶ 26} At sentencing, the trial court first imposed consecutive sentences for the two shootings that formed the basis for the first case. Johnson does not appeal the imposition of those consecutive sentences, only the ones for his drug convictions. When sentencing Johnson for the shootings, the trial court stated:
The Court recognizes that there is a presumption under the law in favor of concurrent sentences, and the consecutive terms are only to be applied, if necessary, to punish and protect, and that they are not disproportionate.
And further, that the Court finds that multiple - - that either multiple offenses committed in a single course of conduct and harm so great and unusual that a single term does not adequately reflect [the seriousness].
Looking into those matters, I am struck by the fact that they shot into a house that they didn‘t even mean to shoot into.
* * *
And instead of realizing their mistake, changing their mind, moving on, they went and shot into another house at 11:07. That‘s pretty close to a single course of conduct. And, again, the wrong house.
So these are people that are very dangerous and show no regard for the safety of others.
* * *
Regarding the harm, we had four people who came within inches of dying. I mean, we almost had literally four murder cases on our hands.
So I think with this kind of conduct and this disregard for other people, I think it‘s necessary to both punish the Defendant and protect society, and I don‘t think a single sentence would adequately reflect the seriousness of the offense.
(Nov. 16, 2016 Tr. at 15-16.)
{¶ 27} The trial court then moved on to the sentences for the drug offenses, stating:
And then after the shooting is when each of these separate drug offenses came. They didn‘t predate, they postdated the shootings, the conduct did. And it wasn‘t one event, it was two separate events.
So for the same reasons I articulated regarding the need for [] consecutive sentences. Again, this is a man who doesn‘t understand the seriousness of his offense, and it‘s necessary to punish and protect society for his conduct.
And the amount of drugs, a single sentence just doesn‘t reflect the seriousness of the offense. But, again, proportionality still must be the Court‘s guide.
And accordingly, the Court‘s going to impose the minimum of two years on each of the two heroin counts, * * * and run the same consecutive with one another, for a total sentence in all of these matters of 18 years.
(Tr. at 18.)
{¶ 28} The trial court‘s finding that the drug offenses “postdated the shootings” was cited as a basis for imposing consecutives sentences. This finding arose under
C. Third Assignment of Error
{¶ 29} In the final assignment of error, Johnson argues that the trial court failed to consider the overriding purposes of felony sentencing, as required by
{¶ 30} Each of the three judgment entries from which Johnson appeals states the following: “The Court has considered the purposes and principles of sentencing set forth in
III. CONCLUSION
{¶ 31} Because Johnson has not demonstrated that the trial court‘s denial of his request to merge his convictions was in error, the first assignment of error is overruled. Because the imposition of consecutive sentences was not contrary to law, the second assignment of error is overruled. Finally, because the trial court‘s judgment entry demonstrates that it did properly consider and apply
Judgments affirmed.
TYACK, P.J. and BRUNNER, J., concur.
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