State v. Turner ( 2011 )

[Cite as State v. Turner, 2011-Ohio-6714.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24421
vs. : T.C. CASE NO. 10CR511/1
MATTHEW TURNER : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 23rd day of December, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Antony A. Abboud, Atty. Reg. No. 0078151, 130 W. Second Street,
Suite 1818, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} On August 20, 2009, Benjamin Gulley was shot and killed
when three men forced their way into his apartment. Defendant,
Matthew Turner, and two others, Brian Dewitt and David Moore, were
subsequently arrested in connection with the break-in and Gulley’s
2
death.
{¶ 2} Defendant Turner admitted his involvement in the
killing. Turner told police that he, Dewitt and Moore went to
Gulley’s apartment in order to rob the tenants of money and drugs.
Turner stated that during the ensuing robbery David Moore shot
Gulley in the head. Dewitt likewise confessed his involvement
in the crimes. Moore denied any involvement.
{¶ 3} The State and Turner entered into a plea agreement.
The State agreed to not charge Turner with murder, and in exchange
Turner agreed to plead guilty to involuntary manslaughter,
aggravated robbery, felonious assault, and a three-year firearm
specification. Turner further agreed to imposition of an
aggregate sentence within a range of from sixteen to twenty years.
Turner entered the promised guilty pleas and the trial court
indicated it would impose an aggregate term within the agreed range.
{¶ 4} Following Turner’s guilty plea, but before he was
sentenced, the State entered into a plea agreement with David Moore.
Because the evidence that Moore was the shooter who killed Gulley
was in the State’s estimate weak, the State and Moore entered into
a plea agreement similar to Turner’s. A major difference was that
Moore would serve an aggregate sentence of between eight to twelve
years instead of the sixteen to twenty year range to which Turner
had agreed.
3
{¶ 5} When he appeared for sentencing, and in view of the lesser
aggregate terms that Moore was promised, Turner asked to be
sentenced within the same aggregate range of from eight to twelve
years Moore was promised, not to a sentence within the aggregate
range of from sixteen to twenty years to which Turner had agreed.
{¶ 6} The trial court denied Turner’s request. The court
noted that the terms of Turner’s and Moore’s plea agreements were
different, and that the facts and circumstances of their crimes
were different with respect to Turner and Moore. The court imposed
an aggregate term of sixteen years. Turner appeals.
FIRST ASSIGNMENT OF ERROR
{¶ 7} “THE COURT ABUSED ITS DISCRETION IN FAILING TO MERGE
THE AGGRAVATED ROBBERY AND AGGRAVATED BURGLARY OFFENSES AS ALLIED
OFFENSES OF SIMILAR IMPORT AND IN ISSUING A CONSECUTIVE SENTENCE
FOR THE AGGRAVATED BURGLARY OFFENSE.”
{¶ 8} Defendant failed to argue in the proceedings before the
trial court that his aggravated burglary and aggravated robbery
offenses are allied offenses of similar import that must be merged.
Defendant has therefore waived all error except plain error.
State v. Coffey, Miami App. No. 2006CA6, 2007-Ohio-21, at ¶14.
To prevail under the plain error standard, an appellant must
demonstrate both that there was an obvious error in the proceedings
and that but for the error, the outcome of the trial clearly would
4
have been otherwise. State v. Noling, 98 Ohio St.3d 44,
2002-Ohio-7044.
{¶ 9} Turner pled guilty to aggravated burglary in violation
of R.C. 2911.11(A)(2), which provides:
{¶ 10} “No person, by force, stealth, or deception, shall
trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when another
person other than an accomplice of the offender is present, with
purpose to commit in the structure or in the separately secured
or separately occupied portion of the structure any criminal
offense, if any of the following apply:
{¶ 11} “The offender has a deadly weapon or dangerous ordnance
on or about the offender’s person or under the offender’s control.”
{¶ 12} Turner also pled guilty to aggravated robbery in
violation of R.C.2911.01(A)(1), which provides:
{¶ 13} “No person, in attempting or committing a theft offense,
as defined in section 2913.01 of the Revised Code, or in fleeing
immediately after the attempt or offense, shall do any of the
following:
{¶ 14} “Have a deadly weapon on or about the offender’s person
or under the offender’s control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it.”
{¶ 15} The Double Jeopardy Clause of the United States
5
Constitution, which applies to the States through the Fourteenth
Amendment, prohibits multiple punishments for the same offense.
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10.
However, the Double Jeopardy Clause only prohibits a sentencing
court from prescribing greater punishment than the legislature
intended. Id., at ¶11. The two-tiered test set forth in R.C.
2941.25, Ohio’s multiple count statute, resolves both the
constitutional and state statutory inquiries regarding the General
Assembly’s intent to permit cumulative punishments for the same
conduct. Id., at ¶12. However, it is not necessary to resort
to that test when the legislature’s intent to impose multiple
punishments is clear from the language of the statute. Id., at
¶37.
{¶ 16} Ohio’s multiple counts statue, R.C. 2941.25, provides:
{¶ 17} “(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.
{¶ 18} “(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
6
defendant may be convicted of all of them.”
{¶ 19} Defendant relies on State v. Frazier (April 28, 1978),
Lucas App. No. L-77-184. In Frazier, two men forced their way
into a home and, after assaulting husband and wife inside and
killing the husband, they stole cash and other valuables from the
home. The Sixth District Court of Appeals held that the offenses
of aggravated robbery and aggravated burglary with which the
defendant was charged as a result of the incident are allied
offenses of similar import that must be merged pursuant to R.C.
2941.25.
{¶ 20} Had Defendant dug a little further, he would have found
that the Supreme Court reversed the Sixth District in State v.
Frazier (1979), 58 Ohio St.2d 253. The Supreme Court wrote:
{¶ 21} “Assuming, arguendo, that the defendant's actions in
this cause constitute ‘allied offenses of similar import’ within
the contemplation of R.C. 2941.25(A), a conclusion certainly not
deducible merely by the proximity of the statutes in issue, R.C.
2941.25(B) nevertheless carves an exception to division (A) of
the same statute for conduct resulting in ‘two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each * * *.’ Contrary to the belief of the Court of
Appeals, we find that the defendant's conduct falls within the
scope of division (B) of R.C. 2941.25.
7
{¶ 22} “The robbery and the burglary were committed separately.
When the defendant forced the victims' door open with intent to
assault Mrs. Dorr and take the victims' property, intentions fairly
attributable to the defendant from the record, the burglary was
completed. Whether an intended felony was committed is irrelevant
to the burglary charge. (See Boyer v. Maxwell (1963), 175 Ohio
St. 318, at page 319, 194 N.E.2d 574, for a similar analysis in
the context of breaking and entering.) But where the intended felony
is actually committed, a new crime arises for which the defendant
may be convicted. The subsequent injuries inflicted upon Mrs. Dorr,
in furtherance of, and in combination with, the taking of the Dorrs'
property, constituted a separate offense, robbery. We do not agree
with the Court of Appeals that it is impossible to separate these
two offenses with reference to the time committed. The forced entry
into the victims' home preceded the beating and was alone sufficient
to accomplish the burglary. The testimony indicates that the entry
itself could not have given rise to a charge of aggravated robbery
since the physical harm was caused not by Mrs. Dorr's fall as the
door was forced open, but by the subsequent beating. The fall gave
the defendant access to the victims and their house. The subsequent
beating facilitated the theft of the victims' property. The fall
and beating were accordingly distinct in time and in the functions
they served. For reason of the foregoing the judgment of the Court
8
of Appeals is reversed.” Id., at p. 255.
{¶ 23} This court has likewise held that aggravated burglary
and robbery are not allied offenses of similar import that must
be merged because the burglary is complete upon entry into the
victim’s home, while a robbery subsequently committed once inside
constitutes a new, separate offense that was committed separately
in time. State v. Parker (June 17, 1991), Montgomery App. No.
12010; State v. Williams (Sept. 22, 2000), Montgomery App. No.
18067.
{¶ 24} In this case, when Defendant, armed with a shotgun,
forced his way into Gulley’s apartment, intending to steal drugs
and money from Gulley, the aggravated burglary offense was
complete. Frazier; Parker; Williams. When Defendant, once
inside, thereafter held Gulley at gunpoint while demanding drugs
and money and stealing Gulley’s television, a new, separate crime,
aggravated robbery, arose, which was committed separately from
the completed aggravated burglary offense. Id. Because one
offense was complete before the other offense occurred, the two
offenses were committed separately for purposes of R.C. 2941.25(B),
notwithstanding their proximity in time and that one was committed
in order to commit the other.
{¶ 25} The rationale of the Supreme Court’s holding in Frazier,
and our holdings in Parker and Williams, was not affected by the
9
recent decision in State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314. Johnson was concerned with how the “same conduct”
constitutes allied offenses of similar import for purposes of R.C.
2941.25(A), which requires that allied offenses of similar import
be merged for purposes of sentencing. State v. Whitfield, 124
Ohio St.3d 319, 2010-Ohio-2. R.C. 2941.25(B) provides an
exception to the merger requirement when the allied offenses were
committed separately or with a separate animus as to each. Johnson
emphasized that “if the (allied) offenses are committed separately,
or if the defendant has separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.” ¶51.
{¶ 26} On the authority of Frazier, we find that Defendant
Turner’s offenses of aggravated burglary and aggravated robbery
were committed separately. Therefore, per R.C. 2941.25(B), their
merger for purposes of sentencing was not required, and plain error
in failing to merge the two offenses is not shown.
{¶ 27} The trial court imposed a three-year sentence for
Turner’s aggravated burglary offense and ordered that the sentence
be served consecutive to Turner’s completion of the other sentence
the court imposed, instead of concurrently. Turner argues that
the trial court erred, citing the provision in R.C. 2929.41(A)
that multiple prison terms must be served concurrently, except
as provided by R.C. 2929.14(E). State v. Foster, 109 Ohio St.3d
101, 2006-Ohio-856, held that the provisions of R.C. 2929.41(A) and
2929.14(E) are unconstitutional, to the extent they require
judicial fact-finding as a prerequisite to imposing consecutive
sentences. Id., paragraph four of the syllabus. As a result of
that holding, the trial court now has the discretion and inherent
authority to determine whether a prison sentence within the
statutory range may be served consecutively or concurrently to
a sentence for another offense imposed on the same offender by
that court or another Ohio court. State v. Bates, 118 Ohio St.3d
174, 2008-Ohio-1983, at ¶19.
{¶ 28} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 29} “THE COURT ABUSED ITS DISCRETION IN SENTENCING MR. TURNER
TO 16 YEARS IN PRISON WHERE MR. MOORE, THE CO-DEFENDANT WHO WAS
THE ACTUAL SHOOTER OF THE VICTIM, WAS SENTENCED TO 12 YEARS IN
PRISON.”
{¶ 30} Defendant argues that his sixteen year aggregate prison
sentence constitutes an abuse of the trial court’s discretion
because it is too harsh under the facts and circumstances, and
it was unfair to sentence him to sixteen years when the actual
shooter, co-defendant David Moore, only received a sentence of
twelve years.
{¶ 31} Defendant agreed to a sentence within the sixteen to
11
twenty year range as part of his negotiated plea agreement. Agreed
sentences are not reviewable on appeal. R.C. 2953.08(D)(1)
provides:
{¶ 32} “A sentence imposed upon a defendant is not subject to
review under this section if the sentence is authorized by law,
has been recommended jointly by the defendant and the prosecution
in the case, and is imposed by a sentencing judge.”
{¶ 33} Defendant agreed to a sentence within the sixteen to
twenty year range, both Defendant and the State jointly recommended
that sentence, and the trial court imposed the jointly recommended
sentence. Furthermore, the sentence imposed, sixteen years, is
authorized by law because it is less than the total maximum
aggregate sentence that Defendant faced on all counts, which was
over forty years with the firearm specifications. Under those
circumstances, Defendant’s agreed upon sentence is not reviewable
on appeal. State v. Carson, Montgomery App. No. 20285,
2004-Ohio-5809 at ¶20, 31.
{¶ 34} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J., concurs.
DONOVAN, J., concurs in judgment, only
12
Copies mailed to:
Andrew T. French, Esq.
Antony A. Abboud, Esq.
Hon. Dennis J. Adkins