493 N.E.2d 1372 | Ohio Ct. App. | 1985
On November 22, 1983, appellant, Beulah Price, was indicated *187
on one court of felonious assault; the indictment contained a firearm specification. R.C.
In her appeal before this court, appellant is not challenging her conviction. Rather, her chief contention is that the imposition of the three-year sentence on the firearm specification was in violation of R.C.
"I. The trial court erred in convicting and sentencing appellant under Ohio Revised Code Section
"II. The trial court erred in finding appellant guilty of felonious assault, Ohio Revised Code Section
"III. The trial court erred in finding appellant guilty of felonious assault, Ohio Revised Code Section
R.C.
"(A) The court shall impose a term of actual incarceration of three years in addition to imposing a life sentence pursuant to section
"(1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section
"(2) The offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment."
Appellant first contends that the sentence under this statute violates R.C.
"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."
Appellant goes on to argue that the sentence under R.C.
Initially, we agree with appellant, and it is a basic tenet that states are free *188
to impose stricter safeguards under their own laws than the minimum protections set forth by the United States Constitution and by the United States Supreme Court. However, contrary to any of the arguments posited by appellant, we conclude that her sentence under R.C.
R.C.
In addition to the fact that the statute does not create a separate offense, it does not create a separate penalty such that a defendant is required to endure multiple sentences for the same offense. Rather, a defendant receives a single, more severe penalty because the conviction involves a firearm.
In May v. Sumner (C.A. 9, 1980),
"`Any person who uses a firearm in the commission or attempted commission of a robbery * * * shall, in addition to the punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the state prison for a period of not less than five years. Such additional period of imprisonment shall commence upon expiration or other termination of the sentence imposed for the crime of which he is convicted and shall not run concurrently with such sentence.
"`* * *
"`This section shall apply even in those cases where the use of a weapon is an element of the offense.'" May v. Sumner, supra, at 998, fn. 1.
In upholding the lawfulness of the statute, the court held that it did not create a separate offense. The court went on to note that:
"* * * The double jeopardy clause does not limit the legislature's power to impose sentence for a given crime. It is uncontested that the California legislature could have created a single offense which provided one sentence for simple robbery, a greater sentence for robbery with a deadly weapon, and a still greater sentence if the deadly weapon were a firearm. California chose to accomplish this result by two statutes instead of one. * * *" Id. at 999.
See, also, Cordova v. Romero (C.A. 10, 1980),
In State v. Galaviz (App. 1983),
"`Any person convicted of a violation of * * * [enumerated felonies], or 18-6501 (robbery defined), Idaho Code, who carried, displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing the crime, shall, in addition to the sentence imposed for the commission of the crime, be imprisoned in the state prison for not less than three (3) nor more than fifteen (15) years. Such additional sentence shall run consecutively to any other sentence imposed for the *189
above cited crimes.'" State v. Galaviz, supra, at 329 (
The court concluded that the statute does not create a separate offense or force a defendant to face multiple penalties for the same offense. The court held that the statute only enhances the penalty by providing for a single, more severe penalty when an offense is committed with a deadly weapon. Id. at 329-330,
"* * * With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id. at 366.
"Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct underBlockburger [v. United States (1932),
In conclusion, we hold that R.C.
The assignments of error are overruled, and the judgment of the trial court is hereby affirmed.
Judgment affirmed.
ANN MCMANAMON and PATTON, JJ., concur.