The STATE of Ohio, Appellee, v. PARKER, Appellant.
No. 2-09-11
Court of Appeals of Ohio, Third District, Auglaize County.
Decided July 27, 2009.
183 Ohio App.3d 431, 2009-Ohio-3667
Sarah M. Schregardus, for appellant.
{¶ 1} The defendant-appellant, Jason Parker, appeals the judgment of the Auglaize County Common Pleas Court convicting him of attempted theft, breaking and entering, and vandalism and ordering him to pay restitution as part of his sentence. On appeal, Parker contends that the trial court erred by convicting him of both breaking and entering and vandalism because the crimes constitute allied offenses of similar import, and that the trial court erred by failing to consider his present and future ability to pay before ordering restitution. For the reasons set forth herein, the judgment of the trial court is affirmed in part and reversed in part.
{¶ 2} On December 8, 2008, Parker and his brother, Randy Parker, broke a window and punched the ignition in a van owned by Lear Fire Equipment in an attempt to steal the vehicle. The van had been parked in a garage on the property of Lear Fire Equipment. A passerby noticed the crime and chased the brothers away. Investigating law-enforcement officers observed two sets of shoeprints in the snow and traced the shoeprints to a residence, where they observed Parker wearing shoes with the same tread pattern they had been tracking.
{¶ 3} On December 18, 2008, the Auglaize County Grand Jury indicted Parker on one count of attempted theft, a violation of
First Assignment of Error
The trial court erred by entering convictions for breaking and entering and vandalism against [Appellant] for allied offenses of similar import, in violation of
Second Assignment of Error
The trial court committed plain error by ordering [Appellant] to pay $1,280.27 in restitution without considering his present and future ability to pay, as required by
{¶ 4} In the first assignment of error, Parker contends that the trial court erred by sentencing him for both breaking and entering and vandalism because the crimes are allied offenses of similar import. Parker argues that “the physical harm [he] caused was incidental to the breaking and entering. Vandalism here is implicit within the breaking and entering charge.” In response, the state of Ohio claims that under Parker‘s argument, “by virtue of the fact that the breaking and entering for purpose to commit a felony requires a felony, the breaking and entering statute would always be a single animus and thus moot to prosecute,” and the General Assembly did not intend such a result.
{¶ 5} Parker did not object when the court imposed sentence for each offense and has therefore waived all but plain error under Crim.R. 52. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, at ¶ 52, citing State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, at paragraph one of the syllabus; State v. Comen (1990), 50 Ohio St.3d 206, 211, 553 N.E.2d 640. Plain error will be recognized ” ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” State v. Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, quoting State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, at paragraph three of the syllabus. Plain error will exist if the trial court deviated from a legal rule, the error constituted an obvious defect in the proceedings, and the error affected a substantial right of the accused. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240.
{¶ 6}
(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.
(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.
{¶ 7} In evaluating whether crimes are allied offenses of similar import, the court has implemented a two-tiered test. Winn at ¶ 10, citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 18, citing State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶ 14.
” ‘In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant‘s conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.’ ”
(Emphasis sic.) Id. at ¶ 10, quoting Brown at ¶ 19, quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.
{¶ 8} In the first step of the test, the elements of the offenses must be compared in the abstract and not under a ” ‘strict textual comparison.’ ” Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, at ¶ 11, quoting Cabrales at ¶ 22, citing Rance at 637-638, 710 N.E.2d 699.
“To interpret Ranee as requiring a strict textual comparison would mean that only where all the elements of the compared offenses coincide exactly will the offenses be considered allied offenses of similar import under
R.C. 2941.25(A) .” (Emphasis sic.) Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 22.
We rejected a “strict textual comparison” and stated, “Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the
{¶ 9} Parker was convicted of breaking and entering in violation of
No person shall knowingly cause physical harm to property that is owned or possessed by another, when either of the following applies: The property is used by its owner or possessor in the owner‘s or possessor‘s profession, business, trade, or occupation, and the value of the property or the amount of physical harm involved is five hundred dollars or more.
{¶ 10} In what is a question of first impression in the state, we hold that under an abstract analysis of the above-stated statutes, breaking and entering under
{¶ 11} In regard to the statutes addressed in this case, a person may be guilty of breaking and entering under
{¶ 12} In the second assignment of error, Parker contends that the trial court erred by not considering his present and future ability to pay before ordering restitution as part of the sentence. The state argues, “In light of
{¶ 13}
{¶ 14} In Clifford, there was no indication that the trial court had considered the defendant‘s ability to pay. We recognized that a pre-sentence investigation report (“PSI“) containing information such as “a defendant‘s age, health, education and employment history has been found sufficient to comply with
{¶ 15} In State v. Frock, 2d Dist. No. 2004 CA 76, 2007-Ohio-1026, 2007 WL 706810, at ¶ 8-9, 19, the appellate court reversed the trial court‘s order of restitution based on its failure to consider the defendant‘s present and future ability to pay. In Frock, a PSI included information about the defendant‘s age (21 years old), his educational background, his mental-health diagnoses, his dependency on illegal drugs, his “extensive” criminal background, and his “spo-
{¶ 16} In this case, the trial court proceeded to sentencing immediately after the conclusion of trial, without the benefit of a PSI. The court discussed Parker‘s criminal history with him and considered exhibit 6, admitted during trial, to establish the amount of restitution. During trial, the court heard evidence that Parker was addicted to drugs and alcohol, that he had been laid off from his employment prior to the offenses, that Parker had been seeking both a drug-rehabilitation program and somebody to subsidize the $500 fee for the rehabilitation, and that Parker had attempted to steal the van from Lear Fire Equipment because he needed a ride. We find the facts of this case to be similar to those in Clifford and refuse to infer or presume that the trial court did consider Parker‘s present and future ability to pay restitution. The second assignment of error is sustained.
{¶ 17} The judgment of the Auglaize County Common Pleas Court is affirmed in part and reversed in part, and the cause is remanded for additional proceedings.
Judgment affirmed in part
and reversed in part,
and cause remanded.
ROGERS and SHAW, JJ., concur.