State of Ohio v. Donovan Knight
Court of Appeals No. L-13-1066
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
May 23, 2014
[Cite as State v. Knight, 2014-Ohio-2222.]
Trial Court No. CR0201301206
Decided: May 23, 2014
* * * * *
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett and Michael J. Loisel, Assistant Prosecuting Attorneys, for appellee.
Joseph J. Urenovitch, for appellant.
* * * * *
SINGER, J.
{¶ 1} Appellant appeals the sentence imposed in a judgment of conviction on a guilty plea for burglary and robbery in the Lucas County Court of Common Pleas. Because we conclude that robbery and burglary were not allied offenses of similar import and the six-year term of incarceration imposed was lawful, we affirm.
{¶ 3} When he opened the door, he was smashed in the face by an intruder who put the boy in a headlock, dragged him to the center of the room and covered him with a shеet. The unknown intruder told the boy to lie on the floor and not move. The boy later reported that from his position on the floor he heard the door open and another individual enter the house. The boy heard the two rummaging through the house.
{¶ 4} When the boy‘s mother unexpectedly returned home, the intruders fled with a laptop computer and an X-Box. The two abandoned a flat screen television which had been removed from the wall and placed on a chair. The mother called police, who arrived too late to catсh the thieves, but discovered evidence that quickly led them to the ex-boyfriend and his co-worker at a fast food restaurant, appellant, Donovan Knight.
{¶ 5} On February 1, 2013, the Lucas County Grand Jury hаnded down a two count indictment charging appellant with aggravated burglary, a first degree felony, and robbery, a second degree felony. Appellant initially pled not guilty, but subsequently аgreed to plead guilty in return for the state amending the first count to burglary, a second degree felony.
{¶ 6} Following a plea colloquy, the trial court accepted the plеa and found appellant guilty. The court subsequently sentenced appellant to a six-year term of
I. The trial court committed error when it failed to determine whether аppellant‘s two (2) convictions were allied offenses that merged.
II. The trial court abused its’ [sic] discretion imposing a non-minimum prison sentence.
I. Merger
{¶ 7} In his first assignment of error, appellant maintains that the robbery and burglary offenses for which he was convicted are allied offenses of similar import and should have been merged at sentencing pursuant to
{¶ 8}
(A) Where the sаme 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 offensеs, 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 оffenses 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, аnd the defendant may be convicted of all of them.
{¶ 10} The test to determine if multiple charges should be classified as allied offenses is two-pronged: (1) whether it is possible to commit one offense and commit the other with the same conduct and (2) whether the offenses were committed by the same conduct, i.e., a single act, committed with a single state of mind. Id. at ¶ 48-49, quoting State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. [I]f the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶ 11} The offenses to which appellant pled guilty are burglary, in violation of
{¶ 12} The state suggests that our analysis should be governed by the logic followed in our consideration of aggravated burglary and aggravated robbery in State v. Overton, 6th Dist. Lucas No. L-12-1137, 2013-Ohio-3291. There we found that Overton‘s conduct of breaking into the victim‘s hоme (burglary) was a separate action from leading her around her home in search of items to steal (robbery). Id. at ¶ 18. Other than certain aggravating elements, the elements of burglary аnd aggravated burglary, and robbery and aggravated robbery, are the same. A burglary is complete once the perpetrator enters the occupied residence with thе intent to commit a crime. Robbery occurs after entry into the home when the perpetrator encounters the victim inside the home and steals something from him or her by force or threat of force. See id. at ¶ 12.
{¶ 13} The burglary appellant committed was complete once he forced his way into the victim‘s home with the intent to steal something. The robbery occurred when appellant stole property after he bodily restrained the victim, inflicted physical harm and threated more physical harm. Thus, in the context of appellаnt‘s actions that led to his conviction on these counts, robbery and burglary were not allied offenses of similar import and the trial court did not err in failing to merge them. Appellant‘s first assignment of error is not well-taken.
{¶ 14} In his remaining assignment of error, appellant argues that the trial court could not have properly considered the statutory purposes and prinсiples of sentencing, because, had it done so, it would not have imposed anything other than the most minimal sentence.
{¶ 15} The standard of review for an appeal of a sentеnce is not abuse of discretion. State v. Tammerline, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11. If a sentencing court is statutorily required to make findings or state findings on the record concerning the imposition of a sentence and fails to do sо, the appeals court is directed to remand the case and instruct the sentencing court to state, on the record, the required findings.
{¶ 16} An appeals court hearing a statutоry felony sentence appeal must review the record, including the findings underlying the sentence. The appellate court may increase, reduce, modify, or vacate аnd remand a disputed sentence if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under [
R.C. 2929.13 (B) or(D) ], [R.C. 2929.14 (B)(2)(e) or(C)(4) ], or [R.C. 2929.20 (I) ], whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2) .
{¶ 17} For a second degree felony, the presumption is that a prison term is necessary to comply with the purposes and principles of sentencing as articulated in
{¶ 18} In this matter, the sentencing court states in its judgment of conviction that it has considered the principles and purposes of sentencing and balanced the seriousness and recidivism factors contained in
{¶ 19} The range of permissible sentences for a second degree fеlony is between two and eight years.
{¶ 20} Accordingly, appellant‘s second assignment of error is not well-taken.
{¶ 21} On consideration, the judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal pursuant to App.R. 24.
Judgment Affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, J.
CONCUR.
JUDGE