State v. MickensState v. Mickens
Rendered on June 2, 2009
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellant
APPEALS from the Franklin County Court of Common Pleas.
CONNOR, J.
{¶1} In these consolidated appeals, defendant-appellant, Montez E. Mickens appeals from judgments of the Franklin County Court of Common Pleas, in which the trial court, upon remand and pursuant to a conditional writ of habeas corpus issued by the federal court based upon the authority of Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, resentenced appellant to a term of incarceration. For the reasons that follow, we vacate the judgments and remand for resentencing.
{¶3} On September 13, 2005, the court imposed an aggregate sentence of 18 years. Specifically, appellant was sentenced to serve one year for each of the ten burglaries in case No. 04CR-2952, with the counts running consecutively to each other, three years for the burglary in case No. 04CR-528, and five years for the aggravated robbery and gun specification in case No. 05CR-447. The sentences in all three cases were imposed consecutively. The three-year sentence for the burglary in case No. 04CR-528, as well as the five-year sentence for the aggravated robbery and the gun specification in case No. 05CR-447 were non-minimum sentences. At the sentencing hearing, appellant signed written notices of post-release control sanctions in each of the three cases. The three sentencing entries also contained notices of post-release control.
{¶4} Appellant did not timely appeal this sentence. However, on August 14, 2006, he filed a motion for leave to file a delayed appeal, which this court denied. State v. Mickens (Oct. 17, 2006), 10th Dist. No. 06AP-822 (memorandum decision). Appellant then appealed to the Ohio Supreme Court, which denied leave to appeal. State v.Mickens, 112 Ohio St.3d 1493, 2007-Ohio-724. Next, appellant sought relief in federal court by filing a habeas corpus petition.
{¶5} The habeas petition set forth four grounds for relief. Appellant claimed this court‘s denial of his motion for leave to file a delayed appeal was a denial of due process; that his non-minimum and consecutive prison terms were void under Blakely and Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348; that he received ineffective assistance of counsel when his trial counsel failed to raise a Blakely challenge to his non-minimum and consecutive prison terms; and that application of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, to his case would violate double jeopardy and ex post facto principles.
{¶6} The federal district court granted relief as to the claim that the trial court‘s imposition of non-minimum, consecutive prison terms violated Blakely. The federal district court vacated appellant‘s sentence and remanded the cases for resentencing.
{¶7} On July 30, 2008, appellant was resentenced by the trial court. The court reimposed nearly the same sentence, except that it reimposed an aggregate sentence of 17 years, rather than the original 18-year sentence. Specifically, the trial court reimposed the same prison terms for all 11 burglary convictions. However, the court reduced appellant‘s prison term for the aggravated robbery with gun specification by one year, thereby imposing a four-year (rather than a five-year) sentence and making that sentence a minimum sentence. Again, the trial court required all of the prison terms to run consecutively.
{¶8} The trial court filed its amended judgment entries on August 1, 2008. The entries reflect that appellant was notified of post-release control sanctions both orally and
{¶9} On appeal, appellant asserts the following five assignments of error for this court‘s review:
FIRST ASSIGNMENT OF ERROR: AT THE RESENTENCING HEARING, AS TO CASE NO. 04CR-01-528, IMPOSITION OF GREATER THAN THE TWO-YEAR MINIMUM TERM FOR AN INDIVIDUAL WHO HAD NOT PREVIOUSLY SERVED TIME IN PRISON VIOLATED THE SIXTH AMENDMENT AND DUE PROCESS GUARANTEES OF THE FEDERAL CONSTITUTION AND THE EQUIVALENT GUARANTEES UNDER THE OHIO CONSTITUTION.
SECOND ASSIGNMENT OF ERROR: AS TO ALL THREE INDICTMENTS, THE IMPOSITION OF CONSECUTIVE SENTENCES VIOLATED THE SIXTH AMENDMENT AND DUE PROCESS GUARANTEES OF THE FEDERAL CONSTITUTION AND THE EQUIVALENT GUARANTEES UNDER THE OHIO CONSTITUTION.
THIRD ASSIGNMENT OF ERROR: AT THE RESENTENCING HEARING THE TRIAL COURT ERRED BY IMPOSING VERSIONS OF THE SENTENCING STATUTES AS EXCISED PURSUANT TO THE SYLLABUS OF STATE V. FOSTER (2006), 109 OHIO ST.3D 1, 2006-OHIO-856 AS FOSTER IMPROPERLY APPLIED OHIO PRECEDENT WITH REGARD TO EXCISION.
FOURTH ASSIGNMENT OF ERROR: APPELLANT[‘S] SENTENCE IS VOID BECAUSE THE COURT MADE NO MENTION OF POSTRELEASE CONTROL DURING THE SENTENCING HEARING.
FIFTH ASSIGNMENT OF ERROR: APPLYING STATE V. COLON, 118 OHIO ST.3D 26, 2008-OHIO-1624, THE INDICTMENTS WERE DEFECTIVE AS THEY FAILED TO ALLEGE THE MENS REA ELEMENT FOR EACH OF THE OFFENSES FOR WHICH APPELLANT WAS CONVICTED.
{¶11} Appellee, argues that this court has repeatedly found that the retroactive application of Foster to cases not yet final does not violate either due process or the principles against ex post facto laws.
{¶12} In Foster, the Ohio Supreme Court determined that portions of Ohio‘s sentencing statutes had been “eviscerated” by recent decisions rendered by the United States Supreme Court. Id. at ¶49. The Foster court based this conclusion upon the decisions in Apprendi and Blakely.
{¶13} Apprendi involved a New Jersey hate crime statute that permitted a 20-year sentence, rather than the usual ten-year maximum, if the judge determined the crime was
{¶14} In Blakely, the defendant was sentenced to approximately three years more than the statutory maximum of the standard sentencing range because the judge determined Blakely had acted with “deliberate cruelty.” Blakely at 298, 124 S.Ct. at 2534. The facts supporting that finding were neither admitted by the defendant nor found by a jury. Thus, the judge could not have imposed the “exceptional” sentence based solely upon the facts admitted in the guilty plea. Id. at 304, 124 S.Ct. at 2537. The United States Supreme Court extended the rule in Apprendi and defined the “statutory maximum” set forth under Apprendi to be “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 303, 124 S.Ct. at 2537. “In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 303, 124 S.Ct. at 2537. The court determined Blakely‘s sentence violated his Sixth Amendment jury trial rights because a jury did not find the facts that authorized the “exceptional” sentence.
{¶16} After severance, the Ohio Supreme Court held in Foster that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give reasons for imposing maximum, consecutive, or more than the minimum sentences.” Foster, paragraph seven of the syllabus.
{¶17} This court has addressed the issues raised in these first two assignments of error on several occasions. In State v. Alexander, 10th Dist. No. 06AP-501, 2006-Ohio-1298, citing Sant v. Hines Interests Ltd. Partnership, 10th Dist. No. 05AP-586, 2005-Ohio-6640, we determined “[w]e are bound to apply Foster as it was written.” Alexander at ¶7. Based upon Foster, once the mandatory judicial fact-finding was properly eliminated from the sentencing statutes, “there is nothing to suggest a ‘presumptive term.’ ” Foster at ¶96. Therefore, in Alexander, we determined that, “at the time that appellant committed his crimes the law did not afford him an irrebuttable presumption of minimum and concurrent sentences.” Id. at ¶8.
{¶19} In State v. Houston, 10th Dist. No. 06AP-662, 2007-Ohio-423, we reiterated the findings in Gibson and also explained it was unlikely the Ohio Supreme Court would direct trial and appellate courts to violate the constitution. Houston at ¶4, citing Gibson at ¶15.
{¶20} Finally, in State v. Satterwhite, 10th Dist. No. 06AP-666, 2007-Ohio-798, citing to Houston, we concluded that the remedy set forth under Foster did not violate a defendant‘s right to a jury trial when he was resentenced without the court making ” ‘any additional factual findings not found by a jury’ ” and without exceeding ” ‘the statutory maximum based upon factual findings the jury did make.’ ” Satterwhite at ¶18, quoting Houston at ¶5.
{¶21} Furthermore, “[a] court of appeals is bound by and must follow decisions of the Ohio Supreme Court, which are regarded as law unless and until reversed or overruled.” Sherman v. Millhon (June 16, 1992), 10th Dist. No. 92AP-89, citing Battig v. Forshey (1982), 7 Ohio App.3d 72.
{¶23} In Ice, the court recognized that many state courts were divided over whether or not the rule in Apprendi governed consecutive sentencing decisions. The court acknowledged that some states, like Ohio, believed that Apprendi was applicable, while other states, like Illinois and Maine, had found that Apprendi did not apply. Ice at 716. In resolving that question, the court looked at the historical role of juries, the historical role of judges in imposing consecutive sentences, as well as the states’ interests in developing their penal systems, and determined that allowing state legislatures to determine the system for administering multiple sentences did not “implicate the core concerns that prompted [the court‘s] decision in Apprendi,” with that “core concern” being an attempt by the legislature to ” ‘remove from the [province of the] jury’ ” the determination of facts warranting punishment for a specific statutory offense. Ice at 718, quoting Apprendi at 490, 120 S.Ct. 2348.
{¶24} The court went on to find that the Oregon statute at issue, which provided judges with discretion in determining whether a defendant‘s sentences for distinct offenses should run concurrently or consecutively, but also required judges to make certain predicate fact-findings before imposing consecutive sentences, was not unfaithful
{¶25} In light of this clarification of the applicability of the rule of Apprendi, it may now be necessary to take another look at some of Ohio‘s current sentencing statutes, as well as some of those which immediately preceded the decision in Foster. However, such a look could only be taken by the Ohio Supreme Court, as we are bound to follow the law and decisions of the Ohio Supreme Court, unless or until they are reversed or overruled. Therefore, appellant‘s first and second assignments of error are overruled.
{¶26} In his third assignment of error, appellant argues the trial court erred by applying the revised sentencing statutes as established under Foster
{¶27} Appellant argues the power to establish crimes and penalties rests with the Ohio General Assembly. As a result, appellant asserts reviewing courts must give effect to the intent of the legislature in construing its legislation. Here, by severing portions of the sentencing statutes, appellant argues the Ohio Supreme Court violated the three-part severance test set forth in Geiger v. Geiger (1927), 117 Ohio St. 451. Because the severance doctrine requires a reviewing court to leave intact any portion of a statute that is not in conflict with the constitution and to retain legislative intent whenever possible, appellant argues the striking of the sentencing factors allows courts to sentence as if the legislature had never imposed a system of accountability in sentencing, which is inconsistent with legislative intent.
{¶29} In considering a remedy to the Blakely problem in Foster, the Ohio Supreme Court looked at three options: requiring sentencing juries; reducing sentences to minimum terms until the legislature could act; and severing the offending statutory sections. The court chose the severance option.
{¶30} The Foster court determined that the overriding goals of Ohio‘s sentencing statutes, pursuant to
{¶31} The three questions to be examined in order to determine if severance is appropriate under Geiger are: ” ‘(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?’ ” Geiger at 466, quoting State v. Bickford (1993), 28 N.D. 36, syllabus.
{¶32} The Ohio Supreme Court found that excising the unconstitutional provisions of the sentencing statutes did not diminish the overriding objectives of the legislature,
{¶33} We too are constrained. We are bound to follow the law in Foster as it was written and must also follow the law and decisions of the Ohio Supreme Court, unless or until they are overturned or reversed. Because this court cannot overrule or modify Foster, we decline to consider appellant‘s challenge. Accordingly, appellant‘s third assignment of error is overruled.
{¶34} In his fourth assignment of error, appellant argues his sentence is void because the trial court failed to advise him of post-release control sanctions during the resentencing hearing. Appellant argues that, pursuant to State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, and State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, notification of post-release control requires both notification at the hearing as well as incorporation of the post-release control sanctions in the sentencing journal entry. Although the resentencing entry reflects that appellant was notified of post-release control both orally and in writing, the transcript of the resentencing hearing does not reflect notification at the hearing. Therefore, appellant argues his sentence is void and he is entitled to a new resentencing hearing.
{¶36} In Jordan, paragraph one of the syllabus, the Ohio Supreme Court determined that “[w]hen sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about post-release control and is further required to incorporate that notice into its journal entry imposing sentence.”
{¶37} In paragraph two of the syllabus, the Jordan court went on to state that “[w]hen a trial court fails to notify an offender about post-release control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of
{¶38} In Jordan, the court further found that
{¶39}
(3) Subject to division (B)(4) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
(c) Notify the offender that the offender will be supervised under
section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the first degree or second degree, for a felony sex offense, or for a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person. If a court imposes a sentence including a prison term of a type described in division (B)(3)(c) of this section on or after July 11, 2006, the failure of a court to notify the offender pursuant to division (B)(3)(c) of this section that the offender will be supervised undersection 2967.28 of the Revised Code after the offender leaves prison or to include in the judgment of conviction entered on the journal a statement to that effect does not negate, limit, or otherwise affect the mandatory period of supervision that is required for the offender under division (B) ofsection 2967.28 of the Revised Code .(d) Notify the offender that the offender may be supervised under
section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the third, fourth, or fifth degree that is not subject to division (B)(3)(c) of this section.
{¶40} Additionally,
{¶41}
{¶42} In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶15, quoting Jordan at ¶26, the Ohio Supreme Court reiterated that the trial ” ‘court‘s duty to include a notice to the offender about postrelease control at the sentencing hearing is the same as any other statutorily mandated term of a sentence.’ ”
{¶43} Therefore, the sentence is void if all of the mandated, statutory requirements are not met.
{¶44} The state of Ohio argues appellant cannot challenge the alleged error regarding notification of post-release control because appellant failed to raise any objection at the original sentencing hearing or at any of the prior proceedings or during the resentencing proceedings. We disagree.
{¶45} First, there is no evidence in the record before this court which would demonstrate that appellant was not orally advised of post-release control sanctions at the
{¶46} Second, with respect to providing notification at the resentencing hearing, we find that the trial court was required to advise (or re-advise) appellant of the imposition of post-release control sanctions. In State v. Smith, 9th Dist. No. C.A. 06CA0070-M, 2007-Ohio-2841, the Ninth Appellate District rejected the state of Ohio‘s argument that the defendant had waived his right to appeal the issue of notification of post-release control sanctions because he did not object at the sentencing hearing. The Ninth District
{¶47} The circumstances in Smith are similar to many of the circumstances in the instant case. In Smith, the defendant was convicted and sentenced in April 2004. At that time, he was notified of the five-year mandatory term of post-release control. He appealed his convictions, which were affirmed by the appellate court in March 2005, but reversed by the Ohio Supreme Court in May 2006. The Ohio Supreme Court reversed and remanded for resentencing consistent with its decision in Foster
{¶48} The Ninth District found that, when applying Foster, Smith‘s previous sentence “must be treated as if it never existed.” Smith at ¶19. Therefore, the Smith court determined, as a result, the only viable sentence imposed upon the defendant was the July 2006 sentence. Because the trial court was required to comply with R.C. 2929.19, it was required to give the statutorily mandated notification regarding postrelease control at that resentencing hearing. Thus, the court vacated the sentence and remanded for re-sentencing a second time.
{¶49} In the case before us, appellant was resentenced by the trial court as a result of the federal district court granting relief as to the claim that the imposition of non-minimum, consecutive prison terms violated Blakely. We note that Foster, which was at issue in Smith is, in large part, based upon the decision issued in Blakely. Here, the federal district court vacated appellant‘s sentence and remanded the cases for resentencing pursuant to Blakely. We find that the federal district court‘s act of vacating the sentence means the original sentence must be “treated as if it never existed.” Smith at ¶19. See also Black‘s Law Dictionary (7th ed.1999) (vacate means “[t]o nullify or cancel; make void; invalidate“).
{¶50} Finally, we point out that R.C. 2929.19(A) requires the trial court to hold a sentencing hearing before resentencing an offender who was convicted of or pleaded guilty to a felony and whose case was remanded pursuant to R.C 2953.07 or 2953.08. While the case before us involves a remand from a federal district court, rather than an intermediary appellate court or the Ohio Supreme Court, we find that the same reasoning behind the notification is applicable here.
{¶51} Thus, based upon the analysis set forth above, we find the trial court was required to notify appellant of post-release control sanctions at the resentencing hearing.
{¶52} Therefore, appellant‘s fourth assignment of error is sustained. Accordingly, this court vacates appellant‘s sentence and remands for resentencing, due to the trial court‘s failure to give the requisite post-release control notification. Appellant must be resentenced and the trial court must include notification of post-release control sanctions in handing down its sentence, both orally and in writing.
{¶53} In his fifth assignment of error, appellant argues his indictments were defective pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (“Colon I“), because they failed to allege the mental element in each of the offenses for which he was convicted. Appellant asserts that the omission of the recklessness element from his aggravated robbery conviction, as well as the omission of recklessness from the trespass element of the burglary indictments, renders the indictments defective.
{¶54} The state of Ohio argues all of the indictments allege the requisite mental elements and that appellant waived his right to raise this issue by pleading guilty to the charges. In addition, the state of Ohio submits appellant is barred from bringing this claim because, although this action is a timely appeal from his resentencing, it is not a timely first appeal as of right from his conviction. Therefore, the state of Ohio argues this claim is barred by res judicata, the law of the case, and the principles of waiver and forfeiture.
{¶55} The mental state of the offender is part of every criminal offense except those that plainly impose strict liability. Colon I at ¶11, citing State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, ¶18. Under R.C. 2901.21(B):
When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.
{¶56} Thus, recklessness is the “catchall” mens rea for offenses that do not provide the required mental state in the statute. There is an exception for strict liability statutes where the mental state of the offender is irrelevant, but the statute must plainly indicate a purpose to impose strict liability. Colon I at ¶13, citing Lozier at ¶21.
{¶57} In Colon I at ¶15, the Ohio Supreme Court held that a defendant‘s indictment on a robbery charge pursuant to R.C. 2911.02(A)(2) was defective because it failed to include the mental element of recklessness, meaning it failed to charge that the physical harm was “recklessly” inflicted. As a result, the Ohio Supreme Court found that the defect in the indictment constituted a structural error. Id. at ¶19.
{¶58} Subsequently, the Ohio Supreme Court clarified its decision in State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749 (“Colon II“), finding that the rule announced in Colon I is prospective in nature and applies only to those cases pending on the date Colon I was announced. Colon II at ¶5. The court went on to find that the facts in Colon I were “unique” and that the application of a structural-error analysis to a defective indictment is appropriate only in rare cases, such as Colon I, where multiple errors at the trial followed the defective indictment. Therefore, the court determined that in most defective indictment cases, the court may analyze the error pursuant to a Crim.R. 52(B) plain-error analysis. Colon II at ¶6-8.
{¶59} We note that several appellate courts in Ohio have determined Colon I is not applicable to cases where the defendant has entered a plea of guilty rather than proceeding to trial. In State v. Straughter, 10th Dist. No. 08AP-777, 2009-Ohio-641, and in State v. Mills, 10th Dist. No. 08AP-687, 2008-Ohio-6609, we cited to State v. Smith, 6th Dist. No. L-07-1346, 2009-Ohio-48, where the court determined that the defendant‘s entry of a guilty plea instead of proceeding to trial distinguished it from Colon IColon I was based largely upon the multiple errors that occurred during trial. Id. at ¶10. See also State v. McGinnis, 3d Dist. No. 15-08-07, 2008-Ohio-5825, ¶26 (“we find that McGinnis has waived any alleged errors in the indictment by pleading guilty to the offenses. * * * the defendant in Colon did not plead guilty like McGinnis, herein. ‘The plea of guilty is a complete admission of the defendant‘s guilt.’ “); State v. Gant, 3d Dist. No. 1-08-22,
{¶60} However, assuming arguendo that the holding in Colon I is applicable to circumstances where a defendant has entered a guilty plea and that appellant is not barred from bringing this claim because his case had not yet concluded when Colon I was issued, due to the federal habeas action, we find appellant‘s convictions are not affected by Colon I.
{¶61} With respect to the aggravated robbery indictment, appellant pleaded guilty to one count of aggravated robbery with a firearm specification as indicted pursuant to
No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code , or in fleeing immediately after the attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]
{¶62} In State v. Wharf, 86 Ohio St.3d 375, 1999-Ohio-112, the Ohio Supreme Court determined that the deadly weapon element of
{¶63} Furthermore, this court has previously held that Colon I is not applicable to a conviction for aggravated robbery under
{¶64} With respect to the burglary indictments, we find that Colon I is inapplicable here as well.
{¶65} Appellant pleaded guilty to one count of burglary as a felony of the second degree and as indicted pursuant to
No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense[.]
{¶66} Appellant also pleaded guilty to ten counts of burglary as felonies of the third degree. The applicable portion of the statute reads as follows:
No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or
separately occupied portion of the structure any criminal offense[.]
{¶67} In Mills, supra, at ¶14, citing to State v. Davis, 8th Dist. No. 90050, 2008-Ohio-3453, ¶21, we found Colon I was inapplicable to an indictment charging the defendant with aggravated burglary (“burglary statutes are not controlled by
{¶68} In addition, the Ohio Supreme Court has determined that trespass is an element of aggravated burglary. See State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, ¶14. Therefore, trespass is also an element of the lesser included offense of burglary. State v. Moore, 10th Dist. No. 07AP-914, 2008-Ohio-4546, ¶54.
{¶69} The Ohio Supreme Court has recognized that the elements of a predicate offense do not need to be stated in the indictment for a compound offense. See State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶11 (“an indictment that tracks the language of the charged offense and identifies a predicate offense by reference to the statute number need not also include each element of the predicate offense in the indictment“). See also Moore at ¶55, citing Buehner (“an indictment that tracks the language of the statute setting forth the charged offense does not have to separately set
{¶70} Furthermore, in Moore at ¶56, we held that because the indictment for burglary properly tracked the statutory language of
{¶71} Accordingly, appellant‘s first, second, third, and fifth assignments of error are overruled, appellant‘s fourth assignment of error is sustained, the judgments of the Franklin County Court of Common Pleas are vacated, and these matters are remanded to that court for resentencing, consistent with this decision.
Judgments vacated; causes remanded.
BRYANT and BROWN, JJ., concur.