2005 Ohio 5687 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} The record reveals the following: On August 12, 2004, the Cuyahoga County Grand Jury indicted defendant on one count of attempted murder with firearm specifications, in violation of R.C.
{¶ 3} On October 28, 2004, defendant pleaded guilty to one count of felonious assault, one count of attempted felonious assault, and one count of attempted murder, with one firearm specification. On December 1, 2004, the trial court sentenced defendant to consecutive seven-year terms of imprisonment for the attempted murder and felonious assault offense, along with a mandatory three-year sentence for the firearm specification, and an additional consecutive three-year term for the attempted felonious assault, for a total of 20 years in prison.
{¶ 4} Defendant timely appealed and assigns four errors for our review, which will be addressed out of order and together where appropriate.
{¶ 5} "III. The trial court erred by ordering convictions for separate counts of felonious assault and attempted murder to be served consecutively because the offenses are allied offenses pursuant to R.C.
{¶ 6} In his third assignment of error, the defendant argues that the trial court improperly failed to merge his convictions for felonious assault and attempted murder. We disagree.
{¶ 7} R.C.
{¶ 8} "(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.
{¶ 9} "(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."
{¶ 10} In determining whether crimes are allied offenses of similar import under R.C.
{¶ 11} Here, defendant was convicted of felonious assault, in violation of R.C.
{¶ 12} This Court has previously held that felonious assault and attempted murder are not allied offenses of similar import, since a felonious assault may occur where the elements of attempted murder would not be satisfied, and likewise, an attempted murder may be accomplished without the use of a deadly weapon or dangerous ordnance. State v.Bostick, Cuyahoga App. No. 82933, 2004-Ohio-1902; State v. Axson,
Cuyahoga App. No. 81231, 2003-Ohio-2182, reversed on other grounds byState v. Axson,
{¶ 13} We note that the Fifth Appellate District recently addressed this issue in State v. Church,
{¶ 14} Accordingly, a defendant may be convicted of both offenses, and a separate sentence for each offense does not violate R.C.
{¶ 15} "I. The trial court erred in sentencing appellant to more than the minimum prison sentence when he had not previously served a prison term.
{¶ 16} "II. The trial court erred by ordering appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14(E)(4)."
{¶ 17} In his first and second assignments of error, defendant claims that the trial court did not comply with R.C.
{¶ 18} Pursuant to R.C.
{¶ 19} The trial court is not required to explain its reasoning for giving more than the minimum sentence; however, it must be clear from the record that it first considered the minimum sentence and then decided to impose a longer sentence based on one of the two statutorily sanctioned reasons under R.C.
{¶ 20} Pursuant to R.C.
{¶ 21} R.C.
{¶ 22} Here, at the sentencing hearing, the trial judge stated the following, in pertinent part:
{¶ 23} "After consideration of the record in this case, the oral statements made here today, the pre-sentence investigation report and the purposes and principles of sentencing under Revised Code Section
{¶ 24} "After weighing both the seriousness and recidivism factors required by law, the Court finds that the defendant's conduct is more serious than conduct normally constituting the charged offenses, and the recidivism factors indicate that the defendant is more likely to commit future crimes.
{¶ 25} "* * *
{¶ 26} "However, there are other exacerbating factors with respect to the age of the victim, [E.K.], being eight years of age at the time of the offense. The offenses at issue were also committed within the vicinity of a child. That being [S.A.'s] child. And the defendant at this point in time, at least in court, does show some remorse for his action.
{¶ 27} "However, after weighing these factors, the Court does find that a term of incarceration is consistent with the purposes and principles of sentencing set forth in Revised Code Section
{¶ 28} As can be seen from the excerpt above, the trial court failed to make the necessary findings. First, to properly impose more than the minimum sentence, the trial court had to make at least one of the findings stated in R.C.
{¶ 29} Next, to properly impose consecutive sentences, the trial court had to make three findings as stated in R.C.
{¶ 30} Assignments of Error I and II are sustained.
{¶ 31} "IV. Appellant's sentencing was a violation of his Sixth and Fourteenth Amendments guarantee of a jury standing between him and the power of the State of Ohio."
{¶ 32} Defendant's argument that his non-minimum sentence violates the U.S. Supreme Court's decision in Blakely v. Washington2 has been addressed in this Court's en banc decision of State v. Atkins-Boozer.3
In Atkins-Boozer, we held that R.C.
Sentence vacated; remanded for resentencing.
It is ordered that appellant recover of appellee his costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Kilbane, J., Concurs. McMonagle, J., Concurs in Part and Dissents inPart. (See attached concurring and dissenting opinion).
Dissenting Opinion
{¶ 33} I concur with the majority that the trial court failed to make the requisite findings upon the record sufficient to justify the consecutive sentence imposed upon appellant and that this matter should be remanded for resentencing. However, I dissent from the finding of the majority that felonious assault (no person shall knowingly cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance) as it relates to victim Sarah Andrew, and attempted murder (no person shall purposely cause or attempt to cause the death of another) as it relates to the same shooting of Sarah Andrew, are not allied offenses of similar import.
{¶ 34} In this case, the two charges are indistinguishable: they involve identical conduct, identical evidence, derive from the same transaction, point toward a single objective and involve a single discrete animus. In committing the felonious assault upon Sarah Andrew, appellant, by definition, committed attempted murder upon her as well.
{¶ 35} Thus, I would hold that upon resentencing, the trial court should consider the felonious assault upon Sarah Andrew and the attempted murder upon her as allied offenses of similar import, and that while appellant may be found guilty of both charges, he can be sentenced upon only one.
