State v. Furman , 2012 Ohio 6211 ( 2012 )

[Cite as State v. Furman, 2012-Ohio-6211.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26394
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SAMANTHA L. FURMAN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 09 2587 (D)
DECISION AND JOURNAL ENTRY
Dated: December 31, 2012
BELFANCE, Judge.
{¶1} Defendant-Appellant Samantha Furman appeals from her sentences in the Summit
County Court of Common Pleas. For the reasons set forth below, we reverse and remand the
matter for proceedings consistent with this opinion.
I.
{¶2} In November 2011, Ms. Furman was indicted on one count of aggravated
burglary, one count of aggravated robbery, one count of felonious assault, one count of grand
theft, and one count of theft from the elderly. Ultimately, Ms. Furman pleaded guilty to one
count of aggravated robbery and one count of aggravated burglary. The remaining charges were
dismissed. Ms. Furman was sentenced to nine years in prison on each count, to run
consecutively to each other. Ms. Furman has appealed, raising two assignments of error for our
review. As Ms. Furman’s second assignment of error is dispositive of this appeal, we begin with
addressing it.
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II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DID NOT
SENTENCE THE DEFENDANT-APPELLANT TO CONCURRENT TERMS
FOR AGGRAVATED BURGLARY AND AGGRAVATED ROBBERY
WHICH WERE ALLIED OFFENSES OF SIMILAR IMPORT[.]
{¶3} Ms. Furman asserts in her second assignment of error that the trial court
committed plain error when it sentenced her to consecutive sentences for aggravated burglary
and aggravated robbery as the offenses are allied. Because the trial court did not consider the
issue in the first instance, we remand the matter to the trial court so that it may do so.
{¶4} “In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, the Supreme Court
of Ohio outlined a new test for determining whether offenses are allied and subject to merger.”
State v. Linde, 9th Dist. No. 26209, 2012-Ohio-2885, ¶ 4. While Johnson was released prior to
Ms. Furman’s sentencing, the issue of allied offenses was not raised at sentencing. Thus, the
trial court did not consider and apply R.C. 2941.25. “Additionally, assuming the offenses are
allied, the State did not have the opportunity to elect the offense for which it wanted the trial
court to sentence [Ms. Furman].” Id. “This Court has consistently concluded that the trial court
should consider and apply Johnson in the first instance.” Id. Thus, we remand the matter to the
trial court so that it can consider and apply Johnson.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING THE
DEFENDANT-APPELLANT TO PRISON TERMS THAT WERE MORE
THAN THE MINIMUM SENTENCE PRESCRIBED BY LAW[.]
{¶5} As the trial court is required to consider a sentencing issue that could impact the
length of Ms. Furman’s sentence, we decline to address Ms. Furman’s first assignment of error at
this time.
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III.
{¶6} In light of the foregoing, we reverse the judgment of the Summit County Court of
Common Pleas and remand the matter so that it can consider and apply Johnson.
Judgment reversed,
and cause remanded.
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 Appellee.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
CARR, J.
CONCUR.
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APPEARANCES:
KERRY O’BRIEN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.