State v. SlagerState v. Slager
For Plaintiff-Appellee
DAVID A. YOST
PROSECUTING ATTORNEY
MARIANNE T. HEMMETER
ASSISTANT PROSECUTOR
140 North Sandusky Street
Delaware, Ohio 43015
For Defendant-Appellant
JOHN CORNELY
94 Chatham Lane
Suite 201
Columbus, Ohio 43221
O P I N I O N
{¶1} Appellant Michael Slager appeals from his multi-count theft and receiving stolen property conviction in the Delaware County Court of Common Pleas. The relevant facts leading to this appeal are as follows.
{¶2} On September 28, 2007, the Delaware County Grand Jury indicted appellant on one count of breaking and entering (in violation of
{¶3} Appellant was thereafter arrested, and on October 29, 2007 he entered pleas of not guilty to all charges. On May 29, 2008, appellant entered a plea of no contest to Count 2 (theft), and pleas of guilty to Counts 3 (receiving stolen property), 6 (receiving stolen property), 9 (receiving stolen property), and 12 (theft).
{¶4} The court thereupon sentenced appellant to seventeen months in prison on Count 3, seventeen months on Count 6, and seventeen months on Count 9, to be served consecutively, for a total of fifty-one months. Appellant was also sentenced to community control on Counts Two and Twelve.
{¶5} On November 14, 2008, appellant filed a notice of appeal, with leave to file on a delayed basis. He herein raises the following two Assignments of Error:
{¶6} “I. APPELLANT“S SENTENCE IS CONTRARY TO LAW AS HE WAS SENTENCED FOR THEFT AND RECEIVING STOLEN PROPERTY WHERE THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT.
I.
{¶8} In his First Assignment of Error, appellant challenges his sentence on the basis that the charge for theft of a John Deere lawnmower (Count 2) was an allied offense of similar import to the charge of receiving stolen property concerning the same mower (Counts 3). We agree.
{¶9}
{¶10} “(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.
{¶11} “(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.”
{¶12} In State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699, 1999-Ohio-291, the Ohio Supreme Court held that offenses are of similar import if the offenses “correspond to such a degree that the commission of one crime will result in the commission of the other.” Id. The Rance court further held that courts should compare the statutory elements in the abstract. Id.
{¶14} “In determining whether offenses are allied offenses of similar import under
{¶15} According to Cabrales, the sentencing court, if it has initially determined that two crimes are allied offenses of similar import, then proceeds to the second part of the two-tiered test and determines whether the two crimes were committed separately or with a separate animus. Id. at 57, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.
{¶16} This court has referred to the Cabrales test as a “common sense approach.” State v. Varney, Perry App. No. 08-CA-3, 2009-Ohio-207, ¶ 23. Recently, in State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2 and State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, the Ohio Supreme Court upheld its Cabrales rationale in this arena.
{¶17} Appellant‘s theft conviction in question was based on
{¶19} As appellant points out, in State v. Farley (Jan. 3, 1986), Knox App.No. 85CA14, 1986 WL 797, this Court held: “A defendant may not be convicted of both theft (
{¶20} Under a Cabrales analysis, we find a defendant who steals an item will, however briefly, also receive and retain the item, and may likely eventually dispose of it as well. Whether the defendant keeps the item or not, his or her actions stem from the original intent to benefit from taking another‘s property. The issue is thus resolvable under a fundamental comparison of the statutory elements and the second question of separate commission or “separate animus” under Cabrales. Having reviewed the recent case law developments from the Ohio Supreme Court in the realm of allied offenses, we find Yarbrough and Farley remain good law on the issue before us. Accordingly, we hold appellant‘s conviction for theft of the lawnmower was an allied offense of similar import to the conviction for receiving stolen property concerning the same mower.
II.
{¶22} In his Second Assignment of Error, appellant contends the trial court erroneously failed to credit him with jail time credit as he requested at his sentencing hearing.
{¶23} Under
{¶24} Appellant maintains that he is entitled to two-hundred and forty-nine (249) days of credit. The State of Ohio concedes on appeal that appellant is entitled to two hundred and forty-four (244) days of credit. See Appellee‘s Brief at 5. The State correctly posits that the credit should only be applied once to appellant‘s total sentence.
{¶25} Appellant‘s Second Assignment of Error is sustained for purposes of recalculation of jail time credit by the trial court.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
/S/ JOHN W. WISE
/S/ W. SCOTT GWIN
/S/ PATRICIA A. DELANEY
JUDGES
JWW/d 0325
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to appellee.
/S/ JOHN W. WISE
/S/ W. SCOTT GWIN
/S/ PATRICIA A. DELANEY
JUDGES