STATE OF OHIO, PLAINTIFF-APPELLEE-CROSS-APPELLANT, v. LANE FRANKLIN MALONE, DEFENDANT-APPELLANT-CROSS-APPELLEE.
CASE NO. 9-15-42
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
August 29, 2016
2016-Ohio-5556
Appeal from Marion County Common Pleas Court, Trial Court No. 2015CR0153, Judgment Affirmed
Nathan D. Witkin for Appellant
Brent W. Yager for Appellee
{¶1} Defendant-appellant/cross-appellee, Lane Franklin Malone (“Malone“), appeals the October 22, 2015 judgment of the Marion County Court of Common Pleas journalizing his conviction by a jury on seventeen counts of theft, and sentencing him to serve a six-month prison term and a period of five years of community control sanctions. The trial court ordered that the period of community control would be “tolled” until after Malone‘s completion of the six-month prison term. On appeal, Malone argues that the trial court lacked the authority to structure his sentence in this manner. The State also asserts a cross-appeal arguing that the trial court erred in granting Malone‘s
Statement of the Case
{¶2} On April 9, 2015, the Marion County Grand Jury indicted Malone on one count of engaging in a pattern of corrupt activity, in violation of
{¶3} On August 13, 2015, the State filed a twenty-count superseding indictment to list an additional count of engaging in a pattern of corrupt activity, in violation of
{¶4} On September 29, 2015, the case proceeded to a three-day jury trial on all twenty counts listed in the superseding indictment. At the close of the State‘s
{¶5} On October 20, 2015, Malone appeared before the trial court for sentencing. In its October 22, 2015 Judgment Entry, the trial court dismissed Counts One, Two, and Seventeen based upon its prior ruling on the defense‘s
1. Malone‘s Appeal
{¶6} Malone subsequently filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT IMPERMISSIBLY ORDERED COMMUNITY CONTROL SANCTIONS TO BE SERVED CONCURRENTLY [SIC] TO A TERM OF IMPRISONMENT.
ASSIGNMENT OF ERROR NO. II
IN ORDER TO IMPOSE BOTH COMMUNITY CONTROL SANCTIONS AND IMPRISONMENT, THE TRIAL COURT IMPERMISSIBLY TOLLED COMMUNITY CONTROL SANCTIONS WITHOUT THERE BEING A COMMISSION OF AN OFFENSE UNDER COMMUNITY CONTROL AS REQUIRED BY
ASSIGNMENT OF ERROR NO. III
IN ORDER TO IMPOSE COMMUNITY CONTROL SANCTIONS AND IMPRISONMENT, THE TRIAL COURT EFFECTIVELY ORDERED A TERM OF COMMUNITY CONTROL SANCTIONS TO BE SERVED CONSECUTIVELY TO A TERM OF IMPRISONMENT WITHOUT MAKING REQUIRED FINDINGS FOR CONSECUTIVE SENTENCES UNDER
Malone‘s Assignments of Error I, II, & III
{¶7} For ease of discussion, we elect to discuss Malone‘s assignments of error together.
Consecutive Sentences
{¶9} The basic tenet of Malone‘s position is his assertion that the trial court impermissibly sentenced him to both a term of imprisonment and a term of community control sanctions on his convictions for nine counts of theft. Malone relies on numerous cases, including several from this Court, purporting to support this premise. However, Malone‘s reliance on these cases is misplaced because they stand for the proposition that a sentencing court is without authority to impose both a prison term and community control sanctions for a conviction on a single count. See e.g., State v. Hartman, 3d Dist. Van Wert No. 15-10-11, 2012-Ohio-874, ¶ 7 (stating that the current felony sentencing statutes require trial courts to impose either a prison term or community control sanctions on each count; State v. Williams, 3d Dist. No. 5-10-02, 2011-Ohio-995, ¶ 17 (“The sentence imposed is either a specific term of imprisonment on each count, or a specific term of community control on each count.“); State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, ¶ 5 (8th. Dist.) (“[T]he sentencing statute does not allow a trial court to impose both a prison sentence and community control for the same offense.“)
{¶10} In the case sub judice, the trial court did not impose a term of imprisonment and a term of community control sanctions on a single count. Rather, the trial court imposed separate six-month prison terms on two counts and a period of community control sanctions on each of the remaining seven counts. Thus, the trial court imposed either a prison term or a term of community control sanctions on each of the nine counts, which the cases cited by Malone clearly hold that the trial court is authorized to do.
{¶11} In addressing Malone‘s contention that the trial court erroneously structured his sentence by ordering the period of community control sanctions to commence after the termination of his prison sentence, we note that
Except as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, a court that imposes a sentence upon an offender for a felony may impose any sanction or combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18 of the Revised Code.
(Emphasis added). In addition, there is nothing restricting the trial court‘s authority to order an offender to serve a period of community control sanctions after the
{¶12} We recognize that other appellate districts have also held that, when imposing sentences for separate offenses, a trial court is permitted to order a period of community control sanctions for one offense to run consecutive to a prison term imposed for another offense. See e.g., State v. Leedy, 4th Dist. Meigs No. 13CA7, 2015-Ohio-1718, ¶¶ 8-9; State v. Martin, 8th Dist. Cuyahoga No. 2014-Ohio-3913, ¶ 9; State v. LaSalla, 8th Dist. Cuyahoga No. 99424, 2013-Ohio-4596, ¶ 34; State v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8; State v. Blunk, 8th Dist. Cuyahoga No. 84304, 2004-Ohio-6910; State v. O‘Connor, 5th Dist. Delaware No. 04CAA04-028, 2004-Ohio-6752, ¶ 28-29; State v. Kinder, 5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340.2
If defendant‘s interpretation is correct, the trial court‘s imposition of community control sanctions would be pointless because it would expire prior to his release from prison. In practicality, this would bind trial courts in many cases to imposing prison sentences on all counts in multiple conviction cases where some period of incarceration is deemed necessary in order to accomplish the purposes of sentences. It would hamper the trial court‘s ability to fashion less restrictive sentencing alternatives.
Id. We find the reasoning set forth by the court in May and the many other cases deciding this issue in a similar manner to be persuasive, especially in light of the fact that Malone has failed to direct us to any statutory authority expressly restricting a sentencing court‘s discretion in fashioning a felony sentence for multiple offenses in this way. Accordingly, we find no reversible error in the trial court‘s decision to order the period of community control sanctions to be served consecutive to the six-month prison term. Malone‘s first and second assignments of error are therefore overruled.3
{¶14} In his third assignment of error, Malone argues that the trial court was required to make the statutory findings listed in
R.C. 2929.14(C)(4) requires a trial court to make certain findings before “multiple prison terms are imposed on an offender for convictions of multiple offenses.” The statute clearly states that the findings are required before a court imposes multiple prison terms. Here, the trial court imposed concurrent prison sentences for each of the separate drug trafficking counts in Case No. CR-13-578497-G and a community control sanction for the single count of possessing criminal tools in Case No. CR-13-573905. The community control sanction was ordered to run consecutive to the prison sentences. No prison terms were ordered to run consecutive; therefore, the trial court did not have to make finding pursuant toR.C. 2929.14(C)(4) .
State v. Carswell, 8th Dist. Cuyahoga Nos. 101313, 101314, 2015-Ohio-764, ¶ 9. Thus, we are not convinced by Malone‘s arguments that
{¶15} In the instant case, the State also filed a “Motion for Leave to Appeal” the trial court‘s decision granting Malone‘s
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN GRANTING DEFENDANT‘S MOTION FOR ACQUITTAL BY DETERMINING THAT THE DEFENDANT‘S BUSINESS WAS NOT A SEPARATE ENTITY, AND THUS NOT AN “ENTERPRISE” WITH WHICH THE DEFENDANT COULD HAVE ASSOCIATED WITH FOR PURPOSES OF
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN GRANTING DEFENDANT‘S MOTION FOR ACQUITTAL BY DETERMINING THAT THE CANCELLATION OF A CORPORATION‘S CHARTER BY
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN GRANTING DEFENDANT‘S MOTION FOR ACQUITTAL BY DETERMINING THAT AN ASSOCIATION BETWEEN A SOLE PROPRIETOR AND HIS BUSINESS IS INSUFFICIENT TO SATISFY THE ELEMENTS OF
The State‘s Assignments of Error I, II, and III
{¶16} On appeal, the State claims the trial court erred when it determined that Frank‘s Roofing, Inc. did not constitute an “enterprise” for the purposes of
{¶17} In the instant case, the trial court granted the
The State‘s Case
{¶18} In its case-in-chief, the State presented the testimony of fifteen witnesses as well as numerous exhibits and financial documentation to establish that from April 2013 to September 2014 Malone entered into contracts to complete nine
{¶19} Despite receiving these substantial down payments, ranging from $1,600.00 to $10,080.00, Malone never started work on the jobs. The homeowners each told a similar story of attempting contact to Malone by phone or in person at the business office when Malone failed to begin the job several weeks after the anticipated start date. The testimony indicated that Malone was evasive and non-responsive to their calls. Some homeowners spoke to a woman at the business office who provided them with excuses as to why the work had not begun, but also assured them that their project was next in line. Some of the homeowners were able to speak to Malone directly who gave them the same line of excuses and empty assurances. Eventually, the homeowners contacted law enforcement and charges were brought against Malone.
{¶20} After the State presented its case, the trial court granted Malone‘s
Now, with respect to the two RICO charges, you know, I‘m gonna grant the Motion For Directed Verdict [sic], on those charges. Working through the three different entities that constitute the enterprise, the corporation had been cancelled, I think the argument is whether a cancelled corporation can be an enterprise.
You know, I think it‘s pretty much a sole proprietorship at that point. The sole proprietorship is just the Defendant. I mean, he is the sole—I mean, it‘s one in the same. You know, it‘s kind of hard to distinguish this from someone selling drugs or selling drugs and passing out a business card listing their name as Frank‘s Drug Dealer or Frank‘s Drug Supplier, whatever. I mean, it‘s all one entity. * * *
You know, when I look at the—I think the significant cases for me, I mean out of the Third District, does make clear the State v. Agner case, 135 Ohio Appellate 3rd 286, that you have to have more than one individual. In fact, in that case they made a comment, if they followed the State‘s argument it would be apparent any Defendant that committed the requisite underlying offenses would be convicted of Engaging in a Pattern of Corrupt Activity.
The Supreme Court cases, I think, are probably more important. The Griffin case talks about that there has to be a common purpose, acting in concert. I understand that the whole—you can have illicit enterprise, you can have legitimate business, that‘s fine. But if all you have is one person that is engaged in any type of criminal activity, I don‘t think you have a RICO case. I think that language is—in the Stevens case, the Ohio Supreme Court decision, 139 Ohio State 3rd 247, they state the obvious intent of the General Assembly in enacting RICO statutes was to reduce the influence and power or [sic] organized crime in the state. If we just have one person engaging in criminal activity I don‘t know how we have organized crime. And I don‘t think it becomes organized crime because he has a business card at an office. You know, I don‘t think we distinguished on whether you‘re working out of your home or working out of an office or where you‘re working out of. You know, all the evidence has been it‘s one person.
So I will grant the Motion for Acquittal on Counts 1, 2, and 17. The other counts will proceed to the jury.
Discussion
{¶21} The trial court essentially made two substantive legal rulings regarding the term “enterprise” as it is used in
{¶22} Initially, we note that the trial court did not cite any authority and we have found none to support its first legal conclusion that a corporation no longer in good standing could not be considered an “enterprise” under
{¶23} Notwithstanding this fact, the trial court cited three cases to support its legal conclusion that a “person” cannot be employed by, or associated with, an
{¶24} First, the trial court cited this Court‘s decision in State v. Agner, 135 Ohio App.3d 286 (3d Dist. 1999). The defendant in Agner was convicted by a jury on two counts of trafficking in drugs and one count of engaging in a pattern of corrupt activity. Id. at 288. The evidence at trial established that a confidential informant working with law enforcement participated in controlled drug buys with the defendant who sold the informant cocaine. Id. at 289. The defendant appealed his conviction for engaging a pattern of corrupt activity claiming the State failed to prove he was associated with an “enterprise.” Id. The State in Agner argued that the jury could have inferred the defendant was part of a larger drug enterprise solely because any drug sale must necessarily involve another individual as a supplier of the drugs, even though there was no evidence pertaining to such a supplier introduced at the Agner trial. Id. at 291. In sustaining the defendant‘s assignment of error, this Court stated “although we acknowledge that the definition of enterprise
{¶25} This Court then discussed a case from the Fifth Appellate District, State v. Hill, in which that court found “the evidence demonstrated an enterprise, in part because the offender in that case used his business, a local drinking establishment and a sole proprietorship, as the location from which he conducted the drug trafficking activities” and found the facts in Agner distinguishable from the Hill case on that basis. Id., citing State v. Hill, 5th Dist. Stark No. CA-8094 (1990). Specifically, the court in Agner stated that, “[i]n contrast [to Hill], the evidence in this case fails to show that appellant was associated with any entity other than himself.” Agner at 291.
{¶26} In a subsequent case, State v. Weiss, we referred to the fact that “[i]n Agner, we held that an entire enterprise could not consist of a lone drug dealer with nothing more and the defendant‘s conviction of engaging in a pattern of corrupt activity was overturned.” State v. Weiss, 3d Dist. Union No. 14-03-24, 2004-Ohio-1948, ¶ 29, citing Agner at 290 (emphasis added). We note that Malone relies on Weiss for the proposition that “a defendant could be convicted under
{¶27} The second case cited by the trial court, State v. Griffin, involved the Supreme Court of Ohio‘s review of a jury instruction given on the term “enterprise.” State v. Griffin, 141 Ohio St. 3d 392, 2014-Ohio-4764 (2014). The jury instruction included verbatim the statutory definition of “enterprise” found in
{¶29} The trial court relied on Griffin for the proposition that the implicit statutory concepts of “common purpose” and “acting in concert” presume that there must be more than one individual involved in the offense for the charge of engaging in a pattern of corrupt activity to survive a
{¶31} The trial court in the instant case cited Stevens for the comment in the lead opinion expounding “[t]he obvious intent of the General Assembly in enacting the RICO statutes was to reduce the influence and power of organized crime in the state.” Id. at ¶ 16. The trial court relied on this statement in Stevens to conclude that “[i]f we just have one person engaging in criminal activity, I don‘t know how we have organized crime.” (Tr. at 384).
{¶32} Despite its citation to these cases upon granting Malone‘s motion for acquittal, it is apparent that neither Agner, Griffin, nor Stevens support the trial court‘s substantive legal ruling that as a matter of law an individual using his
{¶33} The offense at issue in this case is delineated in
No person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.
The term “enterprise” is defined in
“Enterprise” includes any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity. “Enterprise” includes illicit as well as licit enterprises.
The term “pattern of corrupt activity” is also statutorily defined in
“Pattern of corrupt activity” means two or more incidents of corrupt activity, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event.
Corrupt activity is defined in
Corrupt activity” means engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in any of the following:
* * *
(2) Conduct constituting any of the following:
* * *
(c) Any violation of section * * *
2913.02 * * *of the Revised Code.
{¶35} The statutory definition clearly includes both a “sole proprietorship” and a “corporation” as an “enterprise.” Nevertheless, the trial court determined as a matter of law that Frank‘s Roofing, Inc. could not be considered an “enterprise” under the statute because Malone was the only person found to have any evidence of criminal intent affiliated with Frank‘s Roofing, Inc. and the corporation was no longer in good standing at the time the offenses occurred. We acknowledge that two other appellate districts have narrowly construed
{¶36} However, at least one other appellee district has come to the opposite conclusion. The Ninth Appellate District in State v. Habash rejected the defendant‘s suggestion that an “enterprise” must be a formal, structured organization and noted that “the legislature defined this term broadly to encompass even a single individual.” State v. Habash, 9th Dist. Summit No. 17073 *6 (Jan. 31, 1996).
{¶37} The cases holding that an “enterprise” cannot consist of one person appear to disregard that the separate and distinct terms “individual,” “sole proprietorship,” and “group of persons associated in fact” are each included in the statutory definition of an “enterprise,” and instead blend these terms to create a more restrictive construction of the term “sole proprietorship” under the statute. See Hicks, supra. However, the statutory language clearly gives equal consideration to each of these terms independently without qualification, and does not expressly prohibit the interpretation of an “enterprise” as consisting of only one individual. Therefore, we decline to adopt such a narrow construction of the statute as it is not
{¶38} Regardless of whether Frank‘s Roofing, Inc. is considered a “corporation” or a “sole proprietorship” under
{¶39} Some of the homeowners specifically contacted Malone to receive a quote based upon his reputation as owner/employee of Frank‘s Roofing, Inc. For example, one of the victims stated that he hired Malone because Frank‘s Roofing,
{¶40} Each of these things was an indication to the homeowners that they were dealing with a legitimate and established business (which at one time was a corporation in good standing) and not a single individual. Thus, it is reasonable to infer that the homeowners only were willing to contract with Malone and give him substantial down payments to begin the projects because of his association and/or employment with Frank‘s Roofing, Inc. “The RICO laws were enacted to punish the enterprise and those controlling the enterprise, not the petty criminals.” Stevens, 2014-Ohio-1932, ¶ 15. We therefore conclude that Frank‘s Roofing, Inc. satisfied
Conclusion
{¶41} In sum, as to Malone‘s appeal we overrule his first, second, and third assignments of error and affirm the judgment entry of conviction and sentence. As to the State‘s cross-appeal, the State‘s first, second, and third assignments of error are sustained. However, notwithstanding the erroneous basis of the trial court‘s judgment on the issues raised in the State‘s appeal, the actual acquittal of Malone must be affirmed inasmuch as Malone cannot be twice put in jeopardy. State v. Hamilton, 97 Ohio App.3d 648 (3d Dist. 1994).
Judgment Affirmed
PRESTON, J., concurs.
/jlr
ROGERS, J, concurring in part and dissenting in part.
{¶42} I respectfully dissent from the majority‘s holding on Appellant‘s second and third assignments of error. Although assignment No. I is somewhat at
{¶43} We must first recognize that
{¶44} Further, there is no specific authority to impose community control on one count consecutively to a prison term on another count from the same indictment.
{¶45} The problem arises when the trial court wishes to impose community control consecutive to a prison term. There is no authority for a trial court to either delay the commencement of the term of community control or to toll its commencement under the circumstances of this case.
{¶46} The majority attempts to find support for its position in the fact that in OVI cases the statute specifically authorizes community control to follow imposition of a prison term. Their logic fails for two reasons. First, that result is specifically authorized on a single count of OVI, not on multiple counts from a single indictment. Second, the fact that such a combined sentence is authorized in
{¶47} I would therefore sustain Appellant‘s second assignment of error, and based on that result, I would find the third assignment to be moot.
{¶48} I must further dissent as to the majority‘s holding on the State‘s assignments of error. I find it absurd to hold that one can associate with one‘s self, whether it be argued that the association is between an individual and his sole proprietorship, or with a corporation of which he is the only named officer and shareholder. Further, the law of Ohio requires that criminal statutes be strictly construed against the state.
{¶49}
It is well accepted that the cornerstone of statutory construction and interpretation is legislative intention. In order to determine legislative
(Emphasis sic.) (Citations omitted.) State v. Jordan, 89 Ohio St.3d 488, 492 (2000).
{¶50} The majority has stretched its liberal interpretation of the statutes to extreme lengths to reach an absurd result. I would overrule the State‘s First and Third assignments of error, and find the Second assignment to be moot as it is immaterial to the issue being considered.