STATE OF OHIO, Plaintiff-Appellee, v. ABDUR RAHIM ALI PETERS, Defendant-Appellant.
CASE NO. CA2014-09-069
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
5/26/2015
[Cite as State v. Peters, 2015-Ohio-2013.]
HENDRICKSON, J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2014 CR 0264
Arenstein & Gallagher, Hal R. Arenstein, The Citadel, 114 East Eighth Street, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Abdur Rahim Ali Peters, appeals from his sentence in the Clermont County Court of Common Pleas for two counts of aggravated robbery, three counts of felonious assault, one count of aggravated burglary, and the related firearm specifications for each charge. For the reasons set forth below, we affirm.
{¶ 2} On or about April 25, 2014, appellant along with his four co-defendants entered
{¶ 3} On May 1, 2014, appellant was indicted in a 16-count indictment related to this incident. Each count in the indictment included a firearm specification. Appellant initially pleaded not guilty to the charges contained in the indictment, but later withdrew this plea and entered a guilty plea to 6 of the 16 counts and the firearm specifications accompanying each of the 6 counts. Specifically, appellant entered a guilty plea to two counts of aggravated robbery in violation of
{¶ 4} A sentencing hearing was held on August 29, 2014. The trial court sentenced appellant to an aggregate prison term of 27 years. With respect to count 3, the trial court imposed a three-year prison term for aggravated robbery and a three-year consecutive prison term on the firearm specification for a total of six years on count 3. With respect to count 5, the trial court imposed a two-year prison term for felonious assault and a three-year
{¶ 5} Appellant timely appealed his sentence, raising three assignments of error. For ease of discussion, we consider appellant‘s arguments out of order.
{¶ 6} Assignment of Error No. 2:
{¶ 7} THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS THREE AND NINE, THE AGGRAVATED ROBBERIES, AGAINST TWO ALLEGED VICTIMS.
{¶ 8} Appellant argues in his second assignment of error that the trial court erred in failing to merge his two convictions for aggravated robbery (counts 3 and 9) at sentencing. Appellant contends that the two aggravated robbery offenses were committed with the same animus, i.e., the intent to steal drugs and money belonging to Cody Ramos, and therefore the offenses and the accompanying firearm specifications should have merged for the purposes
{¶ 9} As an initial matter, we note appellant failed to raise the issue of allied offenses to the trial court. Nevertheless, this court will review his argument for plain error. See State v. Horna, 12th Dist. Butler No. CA2013-11-210, 2015-Ohio-1697, ¶ 14. Under Crim.R. 52(B), plain error exists only where there is an obvious deviation from a legal rule that affected the outcome of the proceeding. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The imposition of multiple sentences for allied offenses of similar import constitutes plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31-33.
{¶ 10} Pursuant to
(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.
Accordingly,
If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.
Id. In Ruff, the Supreme Court specifically clarified the meaning of “dissimilar import” found in
{¶ 12} In the instant case, appellant was convicted of the aggravated robbery of Cody Ramos and the aggravated robbery of Melinda Ramos. At the plea hearing, the following facts were read into the record with regards to these two counts:
As to Count 3, the Defendant on or about April 25th of the year 2014, in Clermont County, Ohio, in attempting or committing a theft offense he did have a deadly weapon on or about his person or under his control and either displayed, brandished or indicated that he possessed or used it. Specifically, on that date and at that location the Defendant demanded property from an individual by the name of Cody Ramos while the Defendant was in possession of a handgun and displayed that handgun during the commission of that respective offense. * * * As to Count 9, the Defendant on or about April 25th of the year 2014, in Clermont County, Ohio, again in attempting or committing a theft offense he did have a deadly weapon on or about his person or under control and he either displayed, brandished, indicated he possessed or used that weapon during the commission of that offense. Specifically, the Defendant demanded property from an individual, a victim by the name of Melinda Ramos, while he was in the possession of a gun and displayed that handgun during
the commission of that respective offense.
{¶ 13} On this record, it is plainly obvious that appellant‘s conduct was of dissimilar import as it involved separate victims. “When a defendant‘s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts.” Ruff at ¶ 26. On this record, there was no error, plain or otherwise, in the trial court‘s failure to merge the two aggravated robbery convictions.
{¶ 14} Appellant‘s second assignment of error is overruled.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED IN SENTENCING APPELLANT CONSECUTIVELY AS TO THE GUN SPECIFICATION IN RELATION TO THE AGGRAVATED BURGLARY UNDER [R.C.] 2929.14(B)(1)(g).
{¶ 17} Appellant argues in his first assignment of error that the trial court erred in imposing a three-year consecutive prison term on the firearm specification corresponding to the aggravated burglary conviction. Appellant contends that pursuant to
{¶ 18} Appellant pleaded guilty to six firearm specifications under
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.
(Emphasis added.)
{¶ 19} The plain language of the statute along with this court‘s accompanying case law dictates that a trial court is required to impose a separate prison term for each of the two most serious specifications where (1) a defendant pleads guilty to two or more felonies, one of which is a felony specifically enumerated in the statute, such as aggravated robbery or felonious assault, and (2) the defendant also pleads guilty to firearm specifications under
{¶ 20} Here, appellant pleaded guilty to multiple felonies, to wit: three counts of felonious assault, two counts of aggravated robbery, and one count of aggravated burglary. Furthermore, appellant pleaded guilty to the firearm specifications to each of these six felonies. Finally, at least one of the felonies to which appellant pleaded guilty is one of the specific felonies listed in
{¶ 21} Appellant, however, contends that the trial court imposed the sentence on the firearm specification related to the aggravated burglary count pursuant to its discretionary authority under
{¶ 22} As established above, the trial court imposed a prison term on the firearm specification accompanying the aggravated burglary offense as part of the mandatory requirements under
{¶ 23} Based on the foregoing, we find the trial court properly imposed a prison term on the firearm specification underlying the aggravated burglary offense pursuant to
{¶ 24} Assignment of Error No. 3:
{¶ 25} THE SENTENCE OF TWENTY-SEVEN (27) YEARS PLACES AN UNREASONABLE BURDEN ON THE STATE OF OHIO.
{¶ 26} In appellant‘s third and final assignment of error, he contends his sentence violates
{¶ 27} We review the imposed sentence under the standard of review set forth in
{¶ 28} In the instant case, it is clear from the sentencing hearing and the sentencing entry that the trial court considered the principles and purposes of sentencing under
{¶ 29} Moreover, as this court has previously stated, “[a]lthough resource burdens are a relevant sentencing criterion under newly-enacted language in
{¶ 30} Here, as evidenced above, the trial court clearly took into consideration the purposes and principles of sentencing under
{¶ 31} Based on this record, we find that appellant‘s sentence is not clearly and convincingly contrary to law. Appellant‘s third and final assignment of error is overruled.
{¶ 32} Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.