State v. MoweryState v. Mowery
{¶1} Defendant-appellant, Brandon Mowery, appeals from the April 22, 2010, Judgment Entry of thе Fairfield County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 7, 2009, the Fairfield County Grand Jury indicted appellant on one count of aggravated arson in violation of
{¶3} Thereafter, on March 23, 2010, appellant withdrew his former not guilty plea and entered a plea of guilty to one count of complicity to commit arson and one count еach of retaliation and menacing. The remaining counts were dismissed. As memorialized in a Judgment Entry filed on April 22, 2010, appellant was sentenced to 18 months on the arson count, to five years on the retaliation count and to six months on the charge of aggravated menacing. The trial court ordered the sentences to run
{¶4} Appellant now raises the following assignments of error on appeal:
{¶5} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN SENTENCING THE DEFENDANT-APPELLANT TO CONSECUTIVE SENTENCES HEREIN.
{¶6} “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN IMPOSING CONSECUTIVE SENTENCES FOR THE OFFENSES OF AGGRAVATED MENACING AND RETALIATION IN THE PROCEEDINGS BELOW.”
I
{¶7} Appellant, in his first assignment of error, аrgues that the trial court erred in sentencing him to consecutive sentences. Appellant specifically contends that the trial court failed to make the necessary findings for imposing consecutive sentences and that where any findings were made by the trial court, the findings were not supported by the record.
{¶8} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and discussed the affect of the Foster decision on felony sentencing. The Kalish Court explained, that having severed the judicial fact-finding portions of
{¶9} “Thus, despite the fact that
{¶10} In reviewing felony sentences and applying Foster to thе remaining sentencing statutes, appellate courts must use a two-step approach. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in impоsing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment shall be reviewed under an abuse of discretion standard.” Id. at paragraph 4.
{¶11} Appellant cites to Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, in support of his argument that the trial court was required to make findings prior to
{¶12} We find that appellant‘s sentence is not contrary to law. The trial court expressly stated in its April 22, 2010 Judgment Entry that it considered the overriding purposes of felony sentencing set forth in
{¶13} Having satisfied step one, we next consider whether the trial court abused its discretion in selecting the sentence. Kalish, at ¶ 4. An abuse of discretion is “more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶14} We find that the trial court did not abuse its discretion. The victim in the case sub judice, Alisha Snoke, was a caseworker for Job and Family Services. Snoke
{¶15} Based on the foregoing, we find that the trial court did not abuse its discretion in imposing consecutive sentences. The trial court’s decision was not arbitrary, unreasonable or unconscionable.
{¶16} Appellant’s first assignment of error is, therefore, overruled.
II
{¶17} Appellant, in his second assignment of error, argues that the trial cоurt erred in imposing consecutive sentences for the offenses of aggravated menacing and retaliation because the two are allied offenses of similar import.
{¶18} As an initial matter, we note that the State maintains that appellant waived his right to challenge whether his crimes were allied offenses by pleading guilty. However, the Ohio Supreme Court considered this issue recently in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, and concluded that a defendant‘s plea to multiple counts does not affect the trial court‘s duty to merge allied offenses at sentencing nor bar appellate review of the sentence. Id. at ¶ 26-29.
{¶19}
{¶20} “(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 bе convicted of only one.
{¶21} “(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.”
{¶22} In State v. Rance, 85 Ohio St.3d 632, 636, 1999-Ohio-291,710 N.E.2d 699, the Ohio Supreme Court held that offenses are of similar import if the offenses “correspond to such a degree that the commission of one crime will result in the commission of the other.” Id. The Rance court further held that courts should compare the statutory elements in the abstract. Id.
{¶23} In 2008, the Ohio Supreme Court instructed as follows in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, syllabus:
{¶24} “In determining whether offenses are allied offenses of similar import under
{¶25} According to Cabrales, if the sentencing court has initially determined that two crimes are allied offenses of similar import, the court then proceeds to the second part of the two-tiered test and detеrmines whether the two crimes were committed separately or with a separate animus. Id. at 57, 886 N.E.2d 181, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.
{¶26} However, on December 29, 2010, subsequent to the briefing in the present appeal, the Ohio Supreme Court decided State v. Johnson, --- N.E.2d ----, 2010-Ohio-6314, which specifically overruled the 1999 Rance decision. The Court held: “When determining whether two offenses are allied offenses of similar import subject to merger under
{¶27} In the case sub judice, the two counts in question apparently stemmed from the same incident on December 14, 2008, and both involved the same victim. Because the guilty plea hearing in this matter predated Johnson, the trial court was not afforded the opportunity to review the pertinent issues in thе allocution portion of appellant‘s plea hearing transcript of April 19, 2010. We note our review on appeal is limited to those materials in the record that were before the trial сourt. See, e.g., State v. DeMastry, 155 Ohio App.3d 110, 119-120, 2003-Ohio-5588, 799 N.E.2d 229, citing State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500.
{¶28} In the interest of justice, appellant‘s second assignment of error is sustained to the extent that the matter will be remanded for a new sentencing hearing to analyze appellant‘s conduct in the offenses at issue pursuant to Johnson and, if necessary, to review potential merger of the offenses for sentencing.
{¶29} Accordingly, the judgment of the Fairfield County Court of Common Pleas is аffirmed in part and reversed in part and this matter is remanded to the trial court for further proceedings.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
JUDGES
JAE/d0118
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas is affirmed in part and reversed and remanded in part. Costs assessed to appellant.
JUDGES