State v. Ford , 128 Ohio St. 3d 398 ( 2011 )

[Cite as State v. Ford, 128 Ohio St. 3d 398, 2011-Ohio-765.]
THE STATE OF OHIO, APPELLEE, v. FORD, APPELLANT.
[Cite as State v. Ford, 128 Ohio St. 3d 398, 2011-Ohio-765.]
Criminal law — Allied offenses of similar import — The criminal offense of
discharging a firearm at or into a habitation as defined in R.C. 2923.161
and a firearm specification as defined in R.C. 2941.145 are not allied
offenses of similar import as defined in R.C. 2941.25, because a firearm
specification is a penalty enhancement, not a criminal offense — Penalties
for a specification and its predicate offense do not merge under R.C.
2941.25.
(No. 2010-0235 — Submitted January 18, 2011 — Decided February 24, 2011.)
CERTIFIED by the Court of Appeals for Licking County, No. 08 CA 158,
2009-Ohio-6724.
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SYLLABUS OF THE COURT
1. The criminal offense of discharging a firearm at or into a habitation as defined
in R.C. 2923.161 and a firearm specification as defined in R.C. 2941.145
are not allied offenses of similar import as defined in R.C. 2941.25,
because a firearm specification is a penalty enhancement, not a criminal
offense.
2. Penalties for a specification and its predicate offense do not merge under R.C.
2941.25.
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LUNDBERG STRATTON, J.
Introduction
{¶ 1} In this appeal, we must determine whether discharging a firearm
into a habitation in violation of R.C. 2923.161 and a firearm specification
SUPREME COURT OF OHIO
pursuant to R.C. 2929.14(D) and 2941.145 are allied offenses of similar import as
defined in R.C. 2941.25(A). We answer that question in the negative and affirm
the judgment of the court of appeals.
Facts and Procedural Posture
{¶ 2} The state charged Aaron Ford in a three-count criminal complaint
with improperly discharging a firearm at or into a habitation in violation of R.C.
2923.161(A)(1), inducing panic in violation of R.C. 2917.31(A)(3), and using a
weapon while intoxicated in violation of R.C. 2923.15(A). The state also charged
Ford with a firearm specification under count one, pursuant to R.C. 2941.145 and
2929.14(D), which set forth additional penalties for the use of a gun while
committing an offense. A jury found Ford guilty of all charges and found that he
did have a firearm while committing the offense of improperly discharging a
firearm at or into a habitation. The trial court sentenced Ford to three years in
prison on count one, 30 days in prison on count two, and 30 days in prison on
count three. The sentences for counts two and three were to be served
concurrently with the sentences for count one. The trial court also imposed a
mandatory three-year sentence for the firearm specification, to be served prior to
and consecutively to the sentence for count one.
{¶ 3} Ford appealed, arguing that discharging a firearm at or into a
habitation and the accompanying firearm specification were allied offenses of
similar import under R.C. 2941.25(A) and therefore he could be sentenced for
only one of the two offenses. The court of appeals held that a firearm
specification did not charge a criminal offense and therefore R.C. 2941.25 was
not applicable. State v. Ford, Licking App. No. 2008 CA 158, 2009-Ohio-6724, ¶
54.
{¶ 4} Ford filed a notice of conflict alleging that the court of appeals’
decision conflicted with the Eighth District Court of Appeals’ decision in State v.
Elko, Cuyahoga App. No. 83641, 2004-Ohio-5209. We determined that a conflict
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January Term, 2011
existed regarding “[w]hether discharging a firearm at or into a habitation (R.C.
2923.161), and a firearm specification (R.C. 2929.14(D), R.C. 2941.145) are
allied offenses of similar import as defined in R.C. 2941.25(A).” We answer that
question in the negative.
Analysis
{¶ 5} Ford argues that the crime of discharging a firearm at or into a
habitation under R.C. 2923.161 and an accompanying firearm specification under
R.C. 2941.145(D) and 2929.14(D) are allied offenses of similar import under R.C.
2941.25. The state argues that a firearm specification is not a criminal offense
and that R.C. 2941.25 does not apply.
{¶ 6} We begin our analysis by examining R.C. 2941.25, which
provides:
{¶ 7} “(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.
{¶ 8} “(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.” (Emphasis added.)
{¶ 9} R.C. 2941.25 states that “multiple offenses” of similar import must
merge. State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
¶ 48-50. Thus, before we determine whether improperly discharging a firearm
into a habitation and the use of a firearm to facilitate a felony are allied offenses
of similar import, we must determine whether the firearm specification is a
criminal offense.
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SUPREME COURT OF OHIO
{¶ 10} In Ohio, all criminal offenses are statutory, and the elements
necessary to constitute a crime must be gathered wholly from the statute. State v.
Draggo (1981), 65 Ohio St. 2d 88, 91, 19 O.O.3d 294, 418 N.E.2d 1343. “An
offense is defined when one or more sections of the Revised Code state a positive
prohibition or enjoin a specific duty, and provide a penalty for violation of such
prohibition or failure to meet such duty.” (Emphasis added.) R.C. 2901.03(B).
See State ex rel. Quality Stamping Prods. v. Ohio Bur. of Workers' Comp. (1998),
84 Ohio St. 3d 259, 264, 703 N.E.2d 309.
{¶ 11} R.C. 2941.145, one of the two statutes under which Ford was
sentenced for the firearm specification, provides:
{¶ 12} “(A) Imposition of a three-year mandatory prison term upon an
offender under division (D)(1)(a) of section 2929.14 of the Revised Code is
precluded unless the indictment, count in the indictment, or information charging
the offense specifies that the offender had a firearm on or about the offender’s
person or under the person’s control while committing the offense and displayed
the firearm, brandished the firearm, indicated that the offender possessed the
firearm, or used it to facilitate the offense.” (Emphasis added.)
{¶ 13} R.C. 2929.14(D)(1)(a), the second statute under which Ford was
sentenced for the firearm specification, provides:
{¶ 14} “Except as provided in division (D)(1)(e) of this section, if an
offender who is convicted of or pleads guilty to a felony also is convicted or
pleads guilty to a specification of the type described in section * * * 2941.145 of
the Revised Code, the court shall impose * * *:
{¶ 15} “(ii) A prison term of three years if the specification is of the type
described in section R.C. 2941.145 of the Revised Code that charges the offender
with having a firearm on or about the offender’s person or under the offender’s
control while committing the offense and displaying the firearm, brandishing the
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January Term, 2011
firearm, indicating that the offender possessed the firearm, or using the firearm to
facilitate the offense.” (Emphasis added.)
{¶ 16} Read together, the language in these provisions indicates that the
firearm specification is contingent upon an underlying felony conviction. Thus,
R.C. 2941.145 and 2929.14(D) do not contain a positive prohibition of conduct,
as required by R.C. 2901.03(B). Instead, these provisions indicate that if a
defendant is convicted of a felony offense and, during the commission of that
offense, if the defendant displays, indicates possession of, or uses a firearm to
facilitate the offense, the defendant’s underlying felony sentence will be increased
by three years. In other words, the statutes do not state that a defendant shall not
use a firearm during the commission of a crime: they state that when a firearm is
used, an additional penalty will be imposed. Thus, the firearm specification is
merely a sentencing provision that requires an enhanced penalty upon certain
findings. We hold that R.C. 2941.145 and 2929.14(D) define a sentence
enhancement that attaches to a predicate offense. See State v. Stevens, 2nd Dist.
No. 23817, 2010-Ohio-4766, ¶ 18; State v. Vasquez (1984) 18 Ohio App. 3d 92,
95, 18 OBR 455, 481 N.E.2d 640; State v. Gilbert, 8th Dist. No. 90615, 2009-
Ohio-463, ¶ 16; State v. Cook, 9th Dist. No. 24058, 2008-Ohio-4841, ¶ 8; State v.
Wiffen (Sept. 12, 1986), 11th Dist. No. 3560, 1986 WL 9989, *5.
{¶ 17} Moreover, the placement of R.C. 2941.145 and 2929.14 within the
Revised Code confirms that the firearm specification is merely a sentence
enhancement, not a separate criminal offense. Typically, criminal offenses are
grouped within a discrete chapter of the Revised Code. For example, R.C.
Chapter 2903 addresses homicide and assault; within that chapter are statutory
provisions that define criminal offenses such as aggravated murder, R.C. 2903.01;
murder, R.C. 2901.02; assault, R.C. 2903.13; and aggravated menacing, R.C.
2903.21.
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SUPREME COURT OF OHIO
{¶ 18} In contrast, R.C. 2941.145 appears in R.C. Chapter 2941, which
addresses the indictment, and R.C. 2929.14(B) appears in R.C. Chapter 2929,
which addresses penalties and sentencing. Generally, provisions within R.C.
Chapter 2941 address the content that is required in an indictment, and provisions
within R.C. Chapter 2929 address sentencing. Notably, no provisions within
either chapter appear to define a criminal offense.
{¶ 19} R.C. 2941.25 requires the merger of two or more allied offenses of
similar import. However, the criminal offense of discharging a firearm at or into
a habitation under R.C. 2923.161 and a firearm specification as defined in R.C.
2941.145 are not allied offenses of similar import as defined in R.C. 2941.25,
because a firearm specification is a penalty enhancement, not a criminal offense.
Penalties for a specification and its predicate offense do not merge under R.C.
2941.25. Consequently, the sentences for discharging a firearm at or into a
habitation and for the firearm specification are not merged.
Conclusion
{¶ 20} We hold that the trial court properly sentenced Ford both for
discharging a firearm at or into a habitation and for the firearm specification.
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
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Kenneth W. Oswalt, Licking County Prosecuting Attorney, and Daniel H.
Huston, Assistant Prosecuting Attorney, for appellee.
Morrow, Gordon & Byrd, Ltd., and Christopher M. Shook, for appellant.
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