State v. Vintson , 2019 Ohio 3894 ( 2019 )

[Cite as State v. Vintson, 2019-Ohio-3894.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108477
v. :
ANTONIO VINTSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED IN PART;
SENTENCE MODIFIED
RELEASED AND JOURNALIZED: September 26, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-630579-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Melissa Riley, Assistant Prosecuting
Attorney, for appellee.
Ariel E. Burr, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Antonio Vintson appeals from his ten-year
prison sentence. Because we find the trial court failed to merge allied offenses, we
remand the matter to the trial court to vacate the sentence imposed on Count 13.
On August 10, 2018, Vintson was charged as follows: Counts 1-6 —
illegal use of a minor in nudity-oriented material or performance in violation of R.C.
2907.323(A)(1); Counts 7-12 — disseminating matter harmful to juveniles in
violation of R.C. 2907.31(A)(1); Count 13 — illegal use of a minor in nudity-oriented
material or performance in violation of R.C. 2907.323(A)(3); and Count 14 —
possessing criminal tools in violation of R.C. 2923.24(A). On January 14, 2019,
Vintson entered into a plea agreement wherein he pleaded guilty to Counts 1-4
(illegal use of a minor), Counts 7-9 (disseminating matter harmful to juveniles),
Count 13 (illegal use of a minor), and Count 14 (criminal tools). In exchange for
Vintson’s guilty plea, the state agreed to request that the court nolle Counts 5-6 and
10-12. The state also agreed, as part of the plea, that Count 13 would merge with
Counts 1-4, and the state noted its intention to proceed under Counts 1-4. The trial
court accepted Vintson’s plea and found him guilty.
On April 2, 2019, the court held a sentencing hearing. At the hearing,
the court noted that although Counts 1-4 “are the same,” they “represent separate
charges.” The court then sentenced Vintson to three years in prison on Count 1,
three years on Count 2, two years on Count 3, and two years on Count 4. The court
ordered Counts 1-4 to be served consecutively. The court sentenced Vintson to a
one-year prison term on each of Counts 7-9, Count 13, and Count 14, to be served
concurrently with the sentence imposed on Counts 1-4, for a total prison term of ten
years. Contrary to the agreement placed on the record at the plea hearing, there was
no further discussion regarding allied offenses, the trial court did not merge Count
13 with Counts 1-4 for sentencing purposes, and defense counsel made no
objections.
Vintson now appeals from his sentence, assigning one error for our
review: The trial court committed error in separately sentencing allied offenses of
similar import instead of merging them. In response, the state filed a notice of
conceded error pursuant to Loc.App.R. 16(B), asserting that during the plea hearing,
it agreed that Count 13 should merge with Counts 1-4. Upon review, we find the
error is supported by the record.
R.C. 2941.25 codifies the defendant’s constitutional protection
against Double Jeopardy. See State v. Robertson, 2018-Ohio-1640, 111 N.E.3d 659,
¶ 50 (8th Dist.). The statute provides that where the defendant’s conduct constitutes
two or more allied offenses of similar import, “the indictment may contain counts
for all such offenses, but the defendant may be convicted of only one.” R.C.
2941.25(A). Thus, the trial court has no authority to impose separate sentences on
offenses that are deemed to be allied under R.C. 2941.25. State v. Shearer, 8th Dist.
Cuyahoga No. 107335, 2019-Ohio-1352, ¶ 4. “[T]he court has a mandatory duty to
merge the allied offenses by imposing a single sentence, and the imposition of
separate sentences for those offenses — even if imposed concurrently — is contrary
to law because of the mandate of R.C. 2941.25(A).” State v. Williams, 148 Ohio St.3d
403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 28.
Here, because this appeal concerns a plea agreement, there is little in
the record concerning the conduct associated with each offense. However, the
record demonstrates that the state agreed that Count 13 would merge with Counts 1-
4, and it specifically asserted that it would elect to proceed under Counts 1-4. There
is nothing in the record to the contrary. Indeed, the state concedes the error. The
trial court’s sentence on Count 13, an allied offense, was therefore contrary to law.
Accordingly, we sustain Vintson’s sole assignment of error. We
vacate the sentence imposed for Count 13, illegal use of a minor in nudity-oriented
material or performance in violation of R.C. 2907.323(A)(3), consistent with the
state’s concession that the court should not have imposed sentence on an allied
offense of similar import and consistent with the state’s election to sentence on
Counts 1-4. See State v. White, 2018-Ohio-3673, 119 N.E.3d 928, ¶ 17 (8th Dist.),
citing Williams, supra. Although we recognize that this decision does not change
the aggregate sentence Vintson received, “the imposition of concurrent sentences is
not the equivalent of merging allied offenses of similar import.” Williams at ¶ 34.
Judgment reversed in part. The sentence in this case is modified.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to the
trial court for execution of sentence. The trial court is hereby directed to vacate its
prior sentencing order journalized April 3, 2019, and issue a journal entry consistent
with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR