State v. RubyState v. Ruby
Andrew R. Schuman, for appellant.
{¶ 1} Defendant-appellant, Ronald Ruby, appeals his conviction and sentence on multiple offenses arising from a home invasion at the residence of an elderly couple, James and Mary Kohler. Appellant raises numerous assignments of error in which he challenges the propriety of his sentences and the effectiveness of his trial counsel. For
I. FACTS
{¶ 2} During the night of July 2, 2009, appellant and co-defendants, Jimmy Houston and Paul Biddwell, broke into the Gibsonburg home of 74-year-old James Kohler and 76-year-old Mary Kohler, beat them severely, and stole 35 firearms and money from the residence. The burglary was planned in advance by Houston, who had visited the Kohler residence on several occasions to sell Mr. Kohler “a couple of junk rifles.” According to appellant, the burglary was planned to take place while the Kohlers were out of town. On the evening of the burglary, Houston dropped off Bidwell and appellant at the end of the Kohlers’ driveway. When the two walked to the house, they observed Mr. Kohler asleep on the couch in the living room. They kicked in the front door, beat Mr. Kohler in the head, grabbed him by his disabled right arm, threw him headfirst into a brick fireplace hearth, continued to beat him on the face as he lay on the floor, resulting in a broken eye socket and loss of consciousness, and then tied him up. They then proceeded upstairs to Mrs. Kohler‘s bedroom, where she was sleeping, beat her in the face, threatened her with rape, bound her hands and feet, and pushed her down a flight of stairs.
{¶ 3} On July 30, 2009, the Sandusky County Grand Jury returned a 43-count indictment against appellant, charging him with two counts of attempted murder in
{¶ 4} On September 23, 2009, appellant withdrew his initial pleas of not guilty to all counts and entered guilty pleas to Counts 1 and 2 (attempted murder of James Kohler and Mary Kohler, respectively), Count 5 (kidnapping of James Kohler), Count 9 (aggravated burglary with a firearm specification), and Count 10 (grand theft of a firearm). In exchange, the state agreed to dismiss the remaining charges at sentencing.
{¶ 5} A sentencing hearing was held on May 11, 2010. During the hearing, appellant‘s counsel stated, “It would be our position that the Kidnapping, the Aggravated Burglary charges would merge, that those have a single animus, that they did not occur separately.” The trial court did not explicitly rule on the issue of allied offenses, but did impose a separate sentence for each offense. Specifically, the court sentenced appellant to a ten-year term of incarceration for each attempted murder, to be served consecutively,
{¶ 6} On May 12, 2010, the trial court filed its judgment entry, which also failed to specify that the one-year prison term for grand theft would be served consecutively, but provided that “Defendant is further sentenced to a one year term in prison on count Ten, for an aggregate sentence of TWENTY-TWO (22) years prison.” Appellant now appeals that judgment, asserting the following assignments of error:
{¶ 7} “1. The sentence was contrary to law and constitutes an abuse of discretion.
{¶ 8} “2. The trial court erred in imposing consecutive sentences without making statutory findings required by
{¶ 9} “3. The trial cоurt erred by not advising the defendant of the consequences of failing to pay costs of prosecution, pursuant to
{¶ 10} “4. The trial court failed to include in the sentencing entry the name and section reference for the firearm specification, as required by
{¶ 11} “5. Trial counsel was ineffective in violation of the United States and Ohio Constitutions for failing to make the arguments and objections set forth in the preceding
{¶ 12} “6. The trial court failed to determine whether the offenses were allied offenses of similar import and the result of a single act.”
II. PROPORTIONALITY, CONSISTENCY, AND LEGALITY OF SENTENCE
{¶ 13} In his first assignment of error, appellant asserts that his 22-year sentence is contrary to law and constitutes an abuse of the trial court‘s discretion. Appellant delineates four separate arguments in support of his position.
A. Conservation of Resources
{¶ 14} Appellant first argues that the trial court violated the conservation-of-resources principle embodied in
{¶ 15}
{¶ 16} Moreover, although resource burdens may be a relevant sentencing criterion, a sentencing court is not required to elevate resource conservation above the principles and purposes of felony sentencing under
{¶ 17} In State v. Ferenbaugh, 5th Dist. No. 03COA038, 2004-Ohio-977, ¶ 8, the Fifth Appellate District held:
{¶ 18} “The record sub judice is devoid of any evidence to support the claim of an ‘unnecessary burden on state or local government resources.’ In fact, the record indicates [that] appellant‘s past probation violations have placed a burden on local government resources. * * * Having failed twice on local supervision resulting in probation violation
{¶ 19} In State v. Konstantinov, 5th Dist. No. CAA 09 0075, 2010-Ohio-3098, ¶ 24, the court concluded, “Despite appellant‘s age [of 65], based on his long pattern of criminal activity the court did not err in rejecting his argument * * * that [an aggregate six year term of] incarceration placed an unnecessary burden on state resources.” Similarly, in State v. Burrows, 5th Dist. No. 07CAA080039, 2008-Ohio-2861, ¶ 26, the court held that an eight-year sentence imposed on a 48-year-old offender did not create an unnecessary burden on state resources, where the record revealed that appellant had “committed numerous theft offenses” and “had numerous previous criminal convictions.”
{¶ 20} Even if we accepted the general proposition that most offenders will stop committing serious crimes by the time they reach their fifties or sixties, the record in this case does not disclose that appellant is one of them. To the contrary, appellant has a long pattern of criminal activity that spans from the time he was a juvenile, including previous convictions for assault, attempted aggravated burglary, theft, forgery, carrying concеaled weapons, multiple counts of receiving stolen property, and various drug-related offenses, as well as several probation violations. In fact, appellant was on probation when he committed the present offenses. In addition, the crimes in this case were carried out with grievous violence against two elderly victims, which prompted the trial court‘s finding that “[t]his crime is about as heinous as they come.” Based on the present record, we cannot conclude that appellant‘s sentence is contrary to
{¶ 21} Appellant‘s second contention is that his sentence is neither proportional nor consistent under
{¶ 22} When reviewing a felony sentence, this court has repeаtedly followed the two-step analysis adopted by a plurality of the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. See, e.g., State v. Loyd, 6th Dist. Nos. E-10-055, E-10-056, 2011-Ohio-2964, ¶ 35; State v. Mendoza, 6th Dist. No. WD-008, 2011-Ohio-1971, ¶ 22; State v. Donald, 6th Dist. No. S-09-027, 2010-Ohio-2790, ¶ 6; and State v. Turner, 6th Dist. No. L-09-1195, 2010-Ohio-2630, ¶ 50. Under that approach, an appellate court must first “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing 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 is reviewed under the abuse-of-discretion standard.” Kalish at ¶ 26.
{¶ 24} With regard to the first prong of the Kalish test, appellant‘s only argument at this point is that the trial court failed to consider the sentencing guidelines and factors in
{¶ 26} Moreover, even if we were inclined to test consistency and proportionality by comparing the sentences in this case, we could not conclude that the trial court abused its discretion in failing to impose a shorter aggregate sentence on appellant than it imposed on his co-defendants. With respect to the beatings, appellаnt stood in no better sentencing position than his co-defendants. It appears from the record at sentencing that each defendant denied a role in the beatings and blamed one or more of the others. According to the presentence investigation, appellant claimed that Biddwell beat the
C. Consecutive Sentence for Grand Theft
{¶ 27} Appellant further contends that his sentence should be reduced by one year because the trial court failed to specify in its sentencing entry whether the one-year term for grand theft would be served consecutively or concurrently to the prison terms for attempted murder. Appellant argues that any ambiguity as to whether a sentence is to be served concurrently or consecutively must be resolved in the defendant‘s favor. Appellant also suggests that the sentencing entry is inconsistent with the statements made by the trial court at the sentencing hearing in regard to the sentence for grand theft.
{¶ 28} The problem with appellant‘s argument, however, is that there is no ambiguity or inconsistency in this case. Although the trial court did not specifically state at sentencing or in its entry that the term for grand theft was to run “consecutive” to the terms for attempted murder, it made eminently clear at both times that the one-year term for grand theft brought the aggregate prison term up from 21 to 22 years.
{¶ 29} Finally, appellant argues that the total prison term should be reduced by one year because the trial court improperly ran the mandatory one-year prison sentence for the firearm specification consecutive to the aggregate 20-year term imposed on the murder counts. According to appellant, the firearm specification can only be run consecutive to the sentence on the base offense of aggravated burglary, which was run concurrent with the sentences for attempted murder.
{¶ 30} This precise issue was addressed by the court in State v. Spears, 8th Dist. No. 94089, 2010-Ohio-2229. In that case, the defendant Myron Spears pled guilty to one count of felonious assault with a three-year firearm specification, one count of kidnapping, and one count of aggravated burglary. The trial court sentenced Spears to seven years for felonious assault and eight years on the kidnapping and aggravated burglary charges, and ordered those sentences to run concurrently. Rejecting Spears’ argument that his total sentence should be ten years, rather than eleven years, the Eighth District Court of Appeals held:
{¶ 31} “However,
{¶ 32} Accordingly, appellant‘s first assignment of error is not well-taken.
III. STATUTORY FINDINGS FOR CONSECUTIVE SENTENCES
{¶ 33} In his second assignment of error, appellant asserts that the trial court erred by imposing consecutive sentences without making the statutory findings required by
{¶ 35} Accordingly, appellant‘s second assignment of error is not well-taken.
{¶ 36} In his third assignment of error, appellant contends that the trial court erred by not adhering to the mandates of
{¶ 37}
{¶ 38} “In all criminal cases, * * * the judge or magistrate shall include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs. At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
{¶ 39} “(a) If the dеfendant fails to pay that judgment or fails to make timely payments toward that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule.
{¶ 40} “(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performеd will reduce the judgment by that amount.”
{¶ 41} In State v. King, 6th Dist. No. WD-09-069, 2010-Ohio-3074, ¶ 12, this court held that the failure to provide the defendant with the required
{¶ 42} In this case, the trial court ordered that appellant pay the costs of prosecution, but did not give the required notification under
{¶ 43} Accordingly, appellant‘s third assignment of error is well-taken.
V. SECTION REFERENCE OF FIREARM SPECIFICATION
{¶ 44} In his fourth assignment of error, appellant asserts that the trial court failed to include in its sentencing entry the name and section reference of the firearm specification as required under
{¶ 45}
{¶ 46} “In addition to any other information, [the sentencing court shall] include in the sentencing entry the name and section reference to the offense or offenses, the sentence or sentences imposed and whether the sentence or sentences contain mandatory prison terms, if sentences are imposed for multiple counts whether the sentences are to be served concurrently or consecutively, and the name and section reference of any
{¶ 47} The sentencing entry in this case clearly includes the name of the firearm specification. It imposes a “ONE (1) year mandatory sentence for the firearm specification” and provides that “[t]he mandatory one-year firearm specification term shall run consecutive to counts One and Two.” It does not, however, include any section reference for that specification.
{¶ 48} Relying on State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, the state argues that “the firearm specification is not a separate offense that must be named in the sentencing entry.” In Ford, the Ohio Supreme Court held that a firearm specification and its predicate offense are not allied offenses of similar import, “because a firearm specification is a penalty enhancement, not a criminal offense.” Id. at paragraph one of the syllabus. But the nature of a firearm specification as a penalty enhancement, rather than a criminal offense, is irrelevant for purposes of
{¶ 49} Accordingly, appellant‘s fourth assignment of error is well-taken in part.
VI. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
{¶ 50} Appellant asserts in his fifth assignment of error that his trial counsel was ineffective “for failing to make the arguments and objections set forth in the preceding
{¶ 51} The parties agree on the applicable test for determining claims of ineffective assistance of counsel. “Counsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasоnable representation and, in addition, prejudice arises from counsel‘s performance.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. Prejudice exists where “there is a reasonable probability that but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” State v. Pryor, 5th Dist. No. 2007-CA-00166, 2008-Ohio-1249, ¶ 75.
{¶ 52} As to appellant‘s contention that his trial counsel failed to rectify the preceding errors, none of those assigned errors has been sustained on grounds that would affect the validity of appellant‘s pleas or the length of his sentence. In regard to appellant‘s allegation that he would have pled differently had his trial counsel informed him of the aggregate possible penalty, that allegation is not supported by the record. Appellant was well-aware of the maximum penalty he could receive for all offenses. At his plea hearing, the trial court informed appellant that he could receive a sentence of up to five years on the grant theft and up to ten years on each of the other four counts. The
{¶ 53} Acсordingly, appellant‘s fifth assignment of error is not well-taken.
VII. ALLIED OFFENSES
{¶ 54} In his final assignment of error, appellant maintains that “the trial court should have conducted an allied offense analysis, found that the offenses were a single course of conduct, and merged all counts for sentencing.” According to appellant, “[t]he break-in, beatings and theft offenses were, effectively, one transaction” and “the attempted murder involved the defendants being physically in control of the victims, indicating that the kidnapping was part and parcel of the attempted murder charges.”
{¶ 55}
{¶ 56} “(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.
{¶ 57} “(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.”
{¶ 59} We can summarily conclude at the outset that the counts of aggravated burglary and grand theft should have been merged. At oral argument in this case, the state conceded, and we agree, that those offenses should be merged as allied offenses of
{¶ 60} Aside from aggravated burglary and grand theft, we find that all of the offenses in this case were committed with a separate animus. The two counts of attempted murder involve two different victims, and each attempted murder was “necessarily committed with a separate animus.” 1973 Legislative Service Commission comments to
{¶ 62} The record also reveals that the kidnapping of Mr. Kohler was committed with a separate animus, distinct from the animus that drove the attempted murders and from the animus that directed the theft offenses. Mr. Kohler was 74 years of age, suffering from a stroke-related disability, and already beaten far beyond what was necessary to control his person or insure his compliance when he was tied up. Indeed, it appears from the record that Mr. Kohler was laying on the floor unconscious with a broken eye socket at the time he was restrained. Under these circumstances, we find that
{¶ 63} Accordingly, appellant‘s sixth assignment of error is well-taken to the extent that the trial court failed to merge the counts of aggravated burglary and grand theft.
{¶ 64} The judgment of the Sandusky County Court of Common Pleas is affirmed in part, and reversed in part. The sentences imposed for aggravated burglary and grand theft are vacated. The portion of the sentence relative to costs of prosecution is vacated. The cause is remanded for a new sentencing hearing on those matters, and for further proceedings consistent with this decision. Costs of this appeal are assessed equally to the parties pursuant to App.R. 24(A)(4).
JUDGMENT AFFIRMED IN PART, AND REVERSED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, P.J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.