State v. Wright , 2018 Ohio 877 ( 2018 )

[Cite as State v. Wright, 2018-Ohio-877.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170278
TRIAL NO. B-1607332
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JACQUELINE WRIGHT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: March 9, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Stuart W. Penrose, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M ILLER , Judge.
{¶1} Jacqueline Wright was indicted on eight counts of theft following a
spree of breaking into vehicles and stealing credit cards therein. Wright entered a
plea of no contest, and was found guilty on all eight counts. The trial court imposed
concurrent ten-month sentences on counts 1, 2, and 3, which it ran consecutively to
consecutive ten-month sentences on counts 4, 5, 6, 7, and 8. In aggregate, the court
imposed a 60-month prison sentence for the eight counts of theft. Wright now
appeals.
{¶2} In her first assignment of error, Wright challenges the trial court’s
failure to merge counts 1 and 3 as allied offenses of similar import. The state
concedes this error, and agrees that the cause should be remanded for the limited
purpose of merging the counts. Under R.C. 2941.25, allied offenses of similar import
must merge. “When the defendant’s conduct constitutes a single offense, the
defendant may be convicted and punished only for that offense.” State v. Ruff, 143
Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 24. When considering whether
allied offenses merge into a single conviction under R.C. 2941.25(A), the reviewing
court must first take into account the conduct of the defendant. Id. at ¶ 25. “If any of
the following is true, the offenses cannot merge and the defendant may be convicted
and sentenced for multiple offenses: (1) the offenses are dissimilar in import or
significance—in other words, each offense caused separate, identifiable harm, (2) the
offenses were committed separately, or (3) the offenses were committed with
separate animus or motivation.” Id. See State v. Underwood, 124 Ohio St. 3d 365,
2010-Ohio-1, 922 N.E.2d 923.
{¶3} In this case, Wright broke into a vehicle and stole two credit cards
belonging to Nicholas Staples, which led to her indictment on counts 1 and 3 for
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OHIO FIRST DISTRICT COURT OF APPEALS
theft, in violation of R.C. 2913.02(A)(1). Wright’s conduct victimized one person in a
single event, thus the harm was not separate and distinct. Therefore, counts 1 and 3
are of similar import and must be merged. The trial judge said as much on the
record, but ultimately the sentence did not reflect this conclusion. We sustain
Wright’s first assignment of error.
{¶4} In her second assignment of error, Wright argues that the trial court
failed to make all of the findings necessary under R.C. 2929.14(C)(4) prior to
imposing consecutive sentences. Our standard of review of felony sentencing is set
forth by statute:
The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification
given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not whether
the sentencing court abused its discretion. The appellate court may
take any action authorized by this division if it clearly and convincingly
finds either of the following: (a) That the record does not support the
sentencing court’s findings * * *; (b) That the sentence is otherwise
contrary to law.
R.C. 2953.08(G)(2). See, e.g., State v. White, 2013-Ohio-4225, 997 N.E.2d 629 (1st
Dist.).
{¶5} Under R.C. 2929.14(C)(4), the trial court may impose consecutives
sentences if it finds
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OHIO FIRST DISTRICT COURT OF APPEALS
that the consecutive sentence is necessary to protect the public from
future crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶6} The trial court is not required to state the letter of the statute verbatim as
long as the reasons for the sentence are apparent from the record. See State v. Jones,
1st Dist. Hamilton No. C-110603, 2012-Ohio-2075, ¶ 22; State v. Wedge, 1st Dist.
Hamilton No. C-000747, 2001 WL 1635585 (Dec. 21, 2001). Having reviewed the
record, including the transcript of the sentencing hearing, we find that the trial court
imposed consecutive sentences in accordance with R.C. 2929.14(C)(4). During the
sentencing hearing, the trial court stated that the consecutive sentences were necessary
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OHIO FIRST DISTRICT COURT OF APPEALS
to protect the public from Wright’s conduct and to punish Wright for the string of
thefts, and were warranted because of Wright’s disregard for the safety of the
community and because she had a criminal record. The court also noted that Wright
committed the crimes while on probation. We hold that the trial court’s imposition of
consecutive sentences was appropriate and supported by the record. Therefore, we
overrule Wright’s second assignment of error.
Conclusion
{¶7} In conclusion, we vacate Wright’s sentences for theft on counts 1 and
3, and remand the matter to the trial court for the purpose of allowing the state to
elect which allied offense to pursue for sentencing. The trial court’s judgment is
affirmed in all other respects.
Affirmed in part, sentences vacated in part, and cause remanded.
M OCK , P.J., and Z AYAS , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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