State v. Peterson , 2016 Ohio 1334 ( 2016 )

[Cite as State v. Peterson, 2016-Ohio-1334.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27890
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LUKE VICTOR PETERSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014 09 2954 (B)
DECISION AND JOURNAL ENTRY
Dated: March 30, 2016
MOORE, Presiding Judge.
{¶1} Defendant-Appellant Luke Peterson appeals from the judgment of the Summit
County Court of Common Pleas. We affirm.
I.
{¶2} After being bound over from juvenile court, Mr. Peterson was indicted on four
counts of aggravated robbery, along with four accompanying firearm specifications, and one
count of carrying a concealed weapon. Mr. Peterson pleaded guilty to the four counts of
aggravated robbery and one firearm specification. The remaining count and specifications were
dismissed. The trial court sentenced Mr. Peterson to an aggregate sentence of nine years in
prison.
{¶3} Mr. Peterson has appealed, raising two assignments of error for our review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IMPOSING
SENTENCE UPON [MR. PETERSON.]
{¶4} Mr. Peterson argues in his first assignment that the trial court erred in sentencing
him to six years on each count of aggravated robbery.
{¶5} Recently, in State v. Marcum, Slip Opinion No. 2016-Ohio-1002, the Ohio
Supreme Court revisited the law applicable to an appellate court’s review of felony sentences.
The Supreme Court held that, pursuant to R.C. 2953.08(G)(2), “an appellate court may vacate or
modify a felony sentence on appeal only if it determines by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” Id. at ¶ 1. The Supreme Court acknowledged that not all felony
sentences would require the findings listed in R.C. 2953.08(G)(2)(a). Id. at ¶ 23. In those cases,
appellate courts are “to review those sentences that are imposed solely after consideration of the
factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing
court.” Id. “That is, an appellate court may vacate or modify any sentence that is not clearly and
convincingly contrary to law only if the appellate court finds by clear and convincing evidence
that the record does not support the sentence.” Id.
{¶6} On appeal, Mr. Peterson maintains that the trial court failed to consider R.C.
2929.12(C)(2)-(4) in imposing his sentence. At the sentencing hearing, the trial court stated that
it considered the relevant sentencing factors. While it did not specifically reference R.C.
2929.12 at the hearing, it did so in its sentencing entry. Moreover, this Court has said “where the
trial court does not put on the record its consideration of [Sections] 2929.11 and 2929.12 [of the
Ohio Revised Code], it is presumed that the trial court gave proper consideration to those
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statutes.” (Internal quotations and citations omitted.) State v. Beach, 9th Dist. Summit Nos.
26021, 27124 , 2015-Ohio-3445, ¶ 46.
{¶7} In an effort to rebut this presumption and support his argument that the trial court
failed to consider R.C. 2929.12(C)(2)-(4), Mr. Peterson relies upon information contained in the
presentence investigation report (“PSI”) and the Aid in Sentencing report. However, these
documents are not part of the record on appeal, despite the fact that this Court granted Mr.
Peterson’s motion to supplement the record. “It is the appellant’s responsibility to ensure that
the record on appeal contains all matters necessary to allow this Court to resolve the issues on
appeal.” State v. Yuncker, 9th Dist. Medina No. 14CA0068-M, 2015-Ohio-3933, ¶ 17, citing
App.R. 9. “This Court has consistently held that, where the appellant has failed to provide a
complete record to facilitate appellate review, this Court is compelled to presume regularity in
the proceedings below and affirm the trial court’s judgment.” Yuncker at ¶ 17. “In cases such as
this where the PSI is necessary to enable an appropriate review of the propriety of the sentence,
[Mr. Peterson’s] failure to ensure that the record includes the PSI requires a presumption of
regularity in the sentencing proceedings.” Id.{¶8} Mr. Peterson’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
TO MERGE COUNTS 5, 6, 7, AND 8.
{¶9} Mr. Peterson argues in his second assignment of error that, because the
aggravated robbery offenses were allied offenses, they should have merged for purposes of
sentencing.
{¶10} “We apply a de novo standard of review in reviewing a trial court’s R.C. 2941.25
merger determination.” (Internal quotations and citations omitted.) State v. Colburne, 9th Dist.
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Summit No. 27553, 2015-Ohio-4348, ¶ 5. “In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-
995, the Supreme Court of Ohio clarified how courts are to determine whether offenses are allied
within the meaning of the statute.” Colburne at ¶ 6. “At its heart, the allied-offense analysis is
dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.
[Thus, t]he evidence at trial or during a plea or sentencing hearing will reveal whether the
offenses have similar import.” State v. Evett, 9th Dist. Medina No. 14CA0008-M, 2015-Ohio-
2722, ¶ 36, quoting Ruff at ¶ 26. “[C]ourts must ask three questions when [a] defendant’s
conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance?
(2) Were they committed separately? and (3) Were they committed with separate animus or
motivation? An affirmative answer to any of the above will permit separate convictions.” Evett
at ¶ 36, quoting Ruff at ¶ 31. “[T]wo or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and identifiable.” Evett
at ¶ 36, quoting Ruff at ¶ 26.
{¶11} Here, there is no dispute that the aggravated robbery offenses involved four
separate victims. Accordingly, the trial court did not err in concluding that Mr. Peterson’s
conduct supported multiple convictions because the offenses were of dissimilar import. See Ruff
at ¶ 26, 31.
{¶12} Mr. Peterson’s second assignment of error is overruled.
III.
{¶13} The judgment of the Summit Count Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
CHARLES W. OLMINSKY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.