State v. Ballard , 2013 Ohio 373 ( 2013 )

[Cite as State v. Ballard, 2013-Ohio-373.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98355
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DONNIE E. BALLARD
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-556386
BEFORE: Blackmon, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 7, 2013
ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Hts., OH 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brad S. Meyer
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Donnie E. Ballard (“Ballard”) appeals the trial court’s failure to
merge allied offenses and assigns the following two errors for our review:
I. It was error to impose separate sentences for multiple crimes that
were allied offenses of similar import under R.C. 2941.25.
II. Counsel was ineffective by failing to object to the imposition of
separate sentences for multiple crimes that were allied offenses of
similar import under R.C. 2941.25.
{¶2} Having reviewed the record and pertinent law, we reverse Ballard’s
sentence and remand for the trial court to conduct an allied offenses hearing regarding
Ballard’s convictions for vandalism and possession of criminal tools. The apposite facts
follow.
Facts
{¶3} The Cuyahoga County Grand Jury indicted Ballard for breaking and
entering, petty theft, vandalism, and possession of criminal tools. Ballard filed a
motion to suppress statements he made to police.
{¶4} At the suppression hearing, Officer Matthew Cicero testified that on
November 8, 2011, at around 1:00 a.m., he and his partner were patrolling the area of
Kinsman and East 131st Street when they saw Ballard walking in and out of Alexander
Hamilton School with pieces of a radiator. The school, which was no longer in use, had
the windows boarded up. The boards on one of the windows had been removed. The
officers observed Ballard exit through a door he had propped open with a shopping cart
that he used to place the items he was taking from the school. The officers watched
Ballard for about 15 minutes.
{¶5} When Ballard appeared ready to leave, the officers approached him. Ballard
told them he had heard noises in the school and was investigating. The officers searched
Ballard and discovered a flashlight, a wrench, and some copper wiring; he was
subsequently arrested.
{¶6} After the court denied the motion to suppress, Ballard entered a no contest
plea to each count. The trial court sentenced Ballard to eight months each as to the
breaking and entering, vandalism, and possession of criminal tools counts and six months
for the petty theft count. The trial court ordered the terms to be served concurrently with
each other.
Allied Offenses
{¶7} Ballard argues in his first assigned error that the trial court erred by not
merging the offenses because they were all part of one act.
{¶8} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, ¶ 43, the Ohio Supreme Court stated that the purpose of merging allied offenses as
follows:
[It has been] consistently recognized that the purpose of R.C. 2941.25 is
to prevent shotgun convictions, that is, multiple findings of guilt and
corresponding punishments heaped on a defendant for closely related
offenses arising from the same occurrence. Geiger, 45 Ohio St.2d at
242, 344 N.E.2d 133. This is a broad purpose and ought not to be
watered down with artificial and academic equivocation regarding the
similarities of the crimes. When “in substance and effect but one
offense has been committed,” the defendant may be convicted of only
one offense. Botta, 27 Ohio St.2d at 203, 271 N.E.2d 776.
{¶9} With this purpose in mind, the Johnson court established a new two-part
test for determining whether offenses are allied offenses of similar import under R.C.
2941.25. In so doing, the supreme court expressly overruled State v. Rance, 85 Ohio
St.3d 632, 1999-Ohio-291, 710 N.E.2d 699, which required a “comparison of the
statutory elements in the abstract” to determine whether the statutory elements of the
crimes correspond to such a degree that the commission of one crime will result in the
commission of the other. The Johnson court held that rather than compare the elements
of the crimes in the abstract, courts must consider the defendant’s conduct.
{¶10} Under Johnson, the first inquiry focuses on “whether it is possible to
commit one offense and commit the other with the same conduct * * *.” Id.
at ¶ 48. It is not necessary that the commission of one offense will always result in the
commission of the other. Id. Rather, the question is whether it is possible for both
offenses to be committed by the same conduct. Id. Conversely, if the commission of
one offense will never result in the commission of the other, the offenses will not merge.
Id. at ¶ 51.
{¶11} If the multiple offenses can be committed with the same conduct, the court
must then determine whether the offenses were in fact committed by a single act, or
performed with a single state of mind. Johnson at ¶ 49. If the answer to both questions
is yes, the offenses are allied offenses of similar import and must be merged. Id. at ¶ 50.
On the other hand, if the offenses are committed separately or with a separate animus, the
offenses will not merge. Id. at ¶ 51.
{¶12} The only facts we have before us are those from the suppression hearing.
The facts indicated that Ballard broke into a vacant school building in order to steal scrap
metal. There is no question that the act of breaking into the school was committed
separately from the theft. To convict a defendant of breaking and entering, the state is
required to prove that the defendant, by force, stealth, or deception, trespassed in an
unoccupied structure with purpose to commit therein any theft offense or any felony.
R.C. 2911.13(A). To convict a defendant of theft, the state is required to prove that a
defendant, with purpose to deprive the owner of property, knowingly obtained or exerted
control over the property without the consent of the owner or person authorized to give
consent. R.C. 2913.02(A)(1).
{¶13} Theft in violation of R.C. 2913.02(A)(1) and breaking and entering in
violation of R.C. 2911.13(A) are not allied offenses of similar import because the two
offenses cannot be committed with the same conduct. State v. Sludder, 3d Dist. No.
1-11-69, 2012-Ohio-4014; State v. Brewer, 3d Dist. No. 16-11-13, 2012-Ohio-3899, ¶ 45,
citing State v. Ayers, 12th Dist. Nos. CA2010-12-119 and CA2010-12-120,
2011-Ohio-4719, ¶ 34, citing Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, at ¶ 51.
{¶14} Once Ballard forced his way into the school building with the purpose to
steal scrap metal, the breaking and entering offense was complete. The theft offense was
completed after Ballard took control of the scrap metal with the purpose to deprive the
owner of the scrap without the owner’s consent. This was after he had broken into the
school. When one offense was complete before another offense occurred, the two
offenses are 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. Sludder at ¶
14; State v. Turner, 2d Dist. No. 24421, 2011-Ohio-6714, ¶ 24.
{¶15} However, based on the scant facts presented, we are unable to determine if
the vandalism charge arose because of damage that occurred due to the breaking into the
school, taking apart the school radiator, or some other act. Arguably, if the vandalism
charge is related to the breaking and entering or theft charge, it would be an allied
offense.
{¶16} As to the possession of criminal tools count, the only objects that were
found on Ballard were a flashlight and a wrench. The indictment and the bill of
particulars do not list the criminal tools, but the incident report admitted at the
suppression hearing refers to a wrench and flashlight. Therefore, these are the only tools
referred to in the record.
{¶17} It is possible to commit a theft and possess criminal tools with the same
conduct. In State v. Simmonds, 12th Dist. No. CA2011-05-038, 2012-Ohio-1479 a
defendant used a drill, pipe cutter, wire cutter, and a wrench to disassemble, detach, and
steal an air conditioning unit from a building. The Simmonds court held that the
defendant committed a theft offense while, at the same time, possessing criminal tools.
To reach this conclusion, the court noted that it was undisputed that the defendant used
the tools during the commission of the theft, and the evidence showed the state charged
the defendant for the possession of criminal tools based upon his conduct in engaging in
the theft. Id. at ¶ 19-23. Thus, the court in Simmonds concluded that the defendant
could commit both theft and possession of criminal tools at the same time with the same
intent. Cf. State v. VanValkenburg, 5th Dist. No. 11-CA-91, 2012-Ohio-1213 (when a
defendant uses a crowbar to break into a business to steal metal for scrap, the breaking
and entering and criminal tools counts merge).
{¶18} The state argues that the use of a flashlight is not a tool that would merge
with the primary offense because it is not actually used to aid in gaining entrance to the
school or to disassemble items. However, undoubtedly Ballard used the flashlight to
locate the items to steal. The wrench is the type of tool that Ballard could have used to
disassemble the radiator, which the evidence shows he removed in pieces. Therefore,
under these circumstances the possession of criminal tools would merge with the theft
offense.
{¶19} The trial court was incorrect in stating at the sentencing hearing that its
intent to run the cases concurrently resolved the allied offenses issue. The imposition of
concurrent sentences is not the equivalent of merging allied offenses. State v. Damron,
129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512. “Even when the sentences are to
be served concurrently, a defendant is prejudiced by having more convictions than are
authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, at ¶ 31. The trial court should have conducted a hearing to determine whether the
vandalism and possession of criminal tools counts should merge with the breaking and
entering or theft counts. Accordingly, Ballard’s first assigned error is sustained in part.
Ineffective Assistance of Counsel
{¶20} In his second assigned error, Ballard argues that his counsel was
ineffective because he failed to argue that Ballard’s convictions should be merged.
{¶21} To establish a claim for ineffective assistance of counsel, Ballard must
show that his counsel’s performance was deficient and that deficiency prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497
U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990). Under Strickland, our scrutiny of
an attorney’s work must be highly deferential, and we must indulge “a strong presumption
that counsel’s conduct falls within the range of reasonable professional assistance.” Id.
at 688.
{¶22} In the instant case, counsel did inform the court that the counts should
merge. However, the trial court informed counsel that he was not planning on running
the counts consecutive. The following colloquy occurred:
Attorney: Since these are basically one event, we will ask the court to view
this as one event in terms of whatever your ultimate prison
sentence will be. I have case law, State v. Clay, 196 Ohio
Appellate Third, page 305. It’s in my April 2, 2012 brief that
indicates robbery and PCT are allied offenses under the Johnson
analysis.
Court: Put your mind to rest, I wasn’t considering sentencing him
consecutively. * * * But I have no intention of, based upon this
situation, sentencing him consecutively just to be obnoxious. Tr.
97.
{¶23} Although Ballard’s attorney stated that he filed a brief regarding the allied
offenses, our review of the record does not show that Ballard’s attorney actually filed a
brief. Nonetheless, he did argue at sentencing that at least some of the counts should be
merged. Therefore, he was not ineffective for failing to raise the issue. Ballard’s
second assigned error is overruled.
{¶24} Judgment reversed and remanded for proceedings consistent with this
opinion.
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR