State v. Brown ( 2015 )

[Cite as State v. Brown, 2015-Ohio-3402.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-15-06
v.
GARRETT N. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 14-CR-0133
Judgment Affirmed in Part, Reversed in Part
Date of Decision: August 24, 2015
APPEARANCES:
Scott B. Johnson for Appellant
Derek W. DeVine for Appellee
Case No. 13-15-06
WILLAMOWSKI, J.
{¶1} Defendant-appellant Garrett N. Brown (“Brown”) brings this appeal
from the judgment of the Court of Common Pleas of Seneca County. Brown
challenges the imposition of consecutive sentences and the order of restitution
imposed by the trial court. For the reasons set forth below, the judgment is
affirmed in part and reversed in part.
{¶2} On May 21, 2014, Brown, along with Tyson Ogg (“Ogg”) and Dallas
Salaz (“Salaz”) went to the residence of Janelle Mauricio (“Mauricio”) and Caleb
Barto (“Barto”) with the intention of stealing marijuana and cash from the
residence. Ogg stayed in the car while Brown and Salaz went up to the house and
forced their way into the home. Salaz then beat Barto with a tire tool. Mauricio
recognized Brown, despite the mask he was wearing, and called him by name.
Mauricio was pushed onto the couch and Brown shot her in the leg. Brown and
Salaz then fled the home. Barto and a friend took Mauricio to the hospital for the
gunshot wound, but she later died from her injury.
{¶3} On June 2, 2014, a complaint was filed in Juvenile Court alleging that
Brown, who was born in June 1996, so was seventeen years old at the time of the
offense, was delinquent for causing the death of another while committing an
aggravated robbery or an aggravated burglary. Doc. 1. Brown was found to be
indigent and counsel was appointed for him. Id. The State filed a motion to
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transfer the case to the general division of the Seneca County Court of Common
Pleas pursuant to statute. Id. A hearing was held on the motion on June 6, 2014,
and the juvenile court granted the motion to transfer the case to the general
division. Id.
{¶4} On June 12, 2014, the Seneca County Grand Jury indicted Brown on
three counts: 1) Aggravated Burglary in violation of R.C. 2911.11(A)(1), (B), a
felony of the first degree; 2) Aggravated Burglary in violation of R.C.
2911.01(A)(1), (C), a felony of the first degree; and 3) Aggravated Murder in
violation of R.C. 2903.01(B), (F), a special felony. Doc. 2. Additionally, gun
specifications were filed on each count. Id. On June 27, 2014, Brown filed his
affidavit of indigence showing that he had no income. Doc. 11. Brown was
arraigned on June 26, 2014, and entered pleas of not guilty to all charges in the
indictment. Doc. 12. The trial court found that Brown was indigent and appointed
counsel for him. Id.
{¶5} On February 9, 2015, a change of plea hearing was held. Doc. 100.
As part of the plea agreement, Brown entered pleas of guilty to Counts One and
Two, and a guilty plea to an amended Count Three of Murder in violation of R.C.
2903.02(B) with a gun specification. Doc. 99. The gun specifications as to
Counts One and Two were dismissed. Doc. 100. The trial court accepted the
guilty pleas and referred the matter for a pre-sentence investigation. Id. As part
of the plea agreement, Brown acknowledged that restitution could be imposed, but
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no amount was stipulated. Doc. 99. The sentencing hearing was held on February
24, 2015. Doc. 101. The trial court imposed prison terms of nine years for Count
One, three years for Count Two, and an indefinite prison term of fifteen years to
life plus a mandatory term of three years for the gun specification. Id. The
sentences were all ordered to be served consecutively for an aggregate prison term
of thirty years to life. Id. The trial court also ordered that Brown “pay restitution
in the amount of $2,400.00 to Freddie Mauricio and $8,599.00 to the Victims of
Crime Compensation, joint and severally with co-defendants * * *.” Id. at 6.
Brown filed his notice of appeal from this judgment on March 9, 2015. Doc. 106.
On appeal, Brown raises the following assignments of error.
First Assignment of Error
The trial court erred and abused its discretion in sentencing
[Brown] to consecutive and aggregate prison terms in excess of
the statutory minimums for the offenses.
Second Assignment of Error
The trial court erred by assessing restitution and costs without
conducting an ability to pay hearing.
{¶6} In the first assignment of error Brown alleges that the trial court erred
by sentencing him to more than the minimum sentences and by ordering the
sentences to be served consecutively. Brown argues that the trial court did not
correctly apply the sentencing factors and that the aggravated burglary and
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aggravated robbery convictions should have merged.1 Appt. Brief. Brown
concedes that the sentence imposed was within the statutory range of sentences
and was not contrary to law. A sentence that is within the statutory range will not
be reversed absent a showing that the sentence is not supported by the record, that
the statutory procedures were not followed, or that the sentence is contrary to law.
State v. Curry, 3d Dist. Hancock No. 5-14-26, 2015-Ohio-227, ¶ 8.
{¶7} In this case, the trial court was aware that Brown was the one who
carried the weapon into the house and was the one who shot Mauricio. The trial
court heard the victim impact statements made by friends and family members of
Mauricio. The trial court also heard the statement made by Brown. Additionally,
the trial court reviewed the pre-sentence investigation report and listened to the
arguments of the State and Brown’s counsel. The trial court then made the
following statements.
Court has considered the principals and purposes of felony
sentencing under [R.C. 2929.11], and has balanced the
seriousness and recidivism factors under [R.C. 2929.12].
***
By his plea of guilty, Mr. Brown has been convicted of two
Felonies of the First Degree. And an unclassified felony in
Count Three. The Court has looked at all sentencing factors,
including those factors and presumptions under [R.C.
2929.13(D)].
1
These arguments were raised at the sentencing hearing so are properly before this court on appeal.
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After consideration of all sentencing factors under Ohio law,
after consideration of the various recommendations presented to
this Court, the Court does find that a prison term not only is
consistent but required under the principals and purposes of
felony sentencing under Section 2929.11. And the shortest
prison term will demean the seriousness of the Defendant’s
conduct and will not adequately protect the public from future
crime by this Defendant or others.
***
The Court finds based upon all matters before it, including the
Pre-Sentence Report, that consecutive sentences are necessary to
protect the public from future crime or to punish the Defendant.
And that consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and to the danger the
Defendant possess [sic] to the public.
The Court finds also 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 Defendant’s
conduct.
The Court further finds the Defendant’s history of criminal and
juvenile conduct demonstrates that consecutive sentences are
necessary to protect the public from future crimes by this
Defendant. The Court notes that the juvenile record of the
Defendant is one, two, three, four, five, almost six pages long.
Sentencing Tr. 38-40. These statements were reiterated in the sentencing entry.
Doc. 101. The trial court is not required to use any specific language regarding
the sentencing factors. Curry, supra at ¶6. The record indicates that evidence was
presented to the trial court regarding the sentencing factors and that the trial court
considered the relevant ones, including the youth of the defendant. The sentence
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was within the range specified by law and was not a maximum sentence that could
have been imposed. Thus, the trial court did not err in its consideration of the
statutory factors and in imposing the sentences imposed.
{¶8} The next issue raised is whether the trial court erred by imposing
consecutive sentences. The imposition of consecutive sentences is governed by
R.C. 2929.14(C)(4).
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service 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.
R.C. 2929.14(C)(4). Here, the trial court specifically found that consecutive
sentences were necessary to protect the public from future crime and to punish the
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offender, that consecutive sentences were not disproportionate to the seriousness
of the conduct or to the danger Brown posed to the public. Tr. 39-40. The trial
court also found that the offenses were committed as part of one or more courses
of conduct, that the harm was so great as to justify consecutive sentences and that
Brown had an extensive criminal and juvenile record making it necessary to
protect the public. Tr. 40. These findings were supported by the record. Thus,
the trial court did not err in imposing consecutive sentences.
{¶9} Finally, Brown raises the issue as to whether the convictions should
merge. Brown claims that both Count One for Aggravated Burglary and Count
Two for Aggravated Robbery were both committed with the same goal of
committing the theft, so should merge for sentencing purposes. Ohio’s allied
offense statute provides as follows:
(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.
(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 my contain counts for all such offenses, and the
defendant may be convicted of all of them.
R.C. 2941.25 “Two or more offenses may result in multiple convictions, however,
if: (1) they are offenses of dissimilar import; (2) they are separately committed; or
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(3) the defendant possesses a separate animus as to each.” State v. Santamaria,
2014-Ohio-4787, ¶21, 22 N.E.3d 288 (9th Dist.).
{¶10} Here, Brown was convicted of three counts: aggravated burglary,
aggravated robbery, and murder with a gun specification. To convict one of
aggravated burglary as charged in this case, the State had to show that Brown
trespassed in an occupied structure through the use of force and that the offender
inflicted, attempted to inflict or threatened to inflict physical harm on another.
R.C. 2911.11(A)(1). To convict one of aggravated robbery as charged in this case,
the State had to show that Brown had a deadly weapon while committing or
attempting to commit a theft offense and brandished the weapon. Per the third
count of the indictment as amended pursuant to the guilty plea, the State had to
prove that Brown caused the death of another while committing an offense of
violence. The facts stated in the indictment, to which Brown admitted through his
guilty plea, indicates that the aggravated burglary resulted from Brown trespassing
into the home when Mauricio and Barto were present with the intent to commit a
criminal offense and that while doing so, inflicted physical harm on Mauricio and
Barto. Doc. 2. Once inside Barto was beaten with the tire iron by Salaz, Brown’s
codefendant. This supports the conviction for aggravated burglary. While in the
house, Brown had the firearm in his possession and threatened Barto and Mauricio
with it while committing or attempting to commit the theft offense. This supports
the conviction for aggravated robbery. Finally, Brown shot Mauricio with the
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gun, which caused her death. The underlying events indicate that each of these
offenses occurred at different times and with separate animus. Therefore, the
offenses do not merge pursuant to R.C. 2941.25. Having found no error in the
sentencing, the first assignment of error is overruled.
{¶11} In the second assignment of error, Brown claims that the trial court
erred by ordering restitution without holding a hearing regarding ability to pay.
The trial court has the authority to require the offender to pay restitution to the
victim or survivor of the victim to compensate for economic loss. R.C.
2929.18(A)(1). “A court that imposes a financial sanction upon an offender may
hold a hearing if necessary to determine whether the offender is able to pay the
sanction or is likely in the future to be able to pay it.” R.C. 2929.18(E). As long
as the record contains information concerning the defendant’s ability to pay the
restitution and supports the trial court’s determination, a hearing is not required.
State v. Robinson, 3d Dist. Hancock No. 5-04-12, 2004-Ohio-5346, ¶17.
However, R.C. 2929.19(B)(5) requires the trial court to consider the offender’s
present and future ability to pay a financial sanction, including restitution before
imposing it. “‘[W]hen a trial court has imposed a financial sanction without even
a cursory inquiry into the offender's present and future means to pay the amount
imposed, the failure to make the requisite inquiry is an abuse of discretion.’” State
v. Parker, 183 Ohio App. 3d 431, 2009-Ohio-3667, ¶13, 917 N.E.2d 338 (3d Dist.)
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(quoting State v. Haney, 180 Ohio App. 3d 554, 2009-Ohio-149, ¶22, 906 N.E.2d
472 (4th Dist.)).
{¶12} In this case, the trial court did not discuss Brown’s present or future
ability to pay restitution prior to imposing it. The evidence before the trial court
was that Brown was indigent and had no income. At the time of the offense, he
was seventeen years of age and reached his 18th birthday in jail. Brown received
an aggregate prison term of thirty years to life for these offenses. According to the
PSI, Brown had no employment history, no income, no assets, and owed
$1,500.00 to the juvenile courts. Additionally, the PSI indicated that the highest
level of education achieved by Brown was to complete the 11th grade. There is
nothing in the record to indicate upon what the trial court made the determination
that Brown had the ability or would have the ability in the future to pay the
restitution ordered prior to imposing it. The trial court did not address the issue in
any way prior to ordering restitution. Although the language of the guilty plea
warned Brown that restitution may be ordered as part of his sentence, he did not
agree to pay restitution or to the amount of any restitution. Without some
evidence in the record to support the trial court’s apparent conclusion that Brown
had or would have the ability to pay restitution, this court must reverse the
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judgment as to restitution for failure to comply with R.C. 2929.19(B)(5). The
second assignment of error is sustained.2
{¶13} Having found error prejudicial to the appellant, the judgment of the
Court of Common Pleas of Seneca County is affirmed as to the sentence, but is
reversed as to the order of restitution. The matter is remanded for further
proceedings in accord with this opinion.
Judgment Affirmed in Part,
Reversed in Part
ROGERS, P.J., concurs in Judgment Only
PRESTON, J., concurs.
/hlo
2
While this court is only addressing the errors assigned, this court does note that the record contains no
indication as to how the amounts of restitution were determined. No testimony was presented at the
sentencing hearing and the PSI contained no information regarding the amount of restitution. Additionally,
the guilty plea merely stated that restitution may be imposed, but no amounts were included.
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