State v. Grose , 2013 Ohio 4387 ( 2013 )

[Cite as State v. Grose, 2013-Ohio-4387.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 12CA109
:
ALLANDO BAKARI GROSE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2012 CR
0049 H
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED
DATE OF JUDGMENT ENTRY: September 27, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JAMES J. MAYER, JR. ROBERT GOLDBERGER
RICHLAND CO. PROSECUTOR 10 West Newlon Place
JOHN C. NIEFT Mansfield, OH 44902
38 South Park St.
Mansfield, OH 44902
Richland County, Case No. 12CA109 2
Delaney, J.
{¶1} Appellant Allando Bakari Grose appeals from the judgment entries of the
Richland County Court of Common Pleas overruling his motion to suppress, and
convicting and sentencing him upon a number of criminal offenses. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the testimony of a single officer
called by appellee at the hearing on appellant’s motions to suppress.
Testimony at the Suppression Hearing
{¶3} This case arose on January 1, 2012, around 8:18 a.m. when Officer Allen
Edwards of the Mansfield Police Department responded to a residence on Blymyer
Avenue regarding an assault. He met the victim of the assault, Cory Patton, on the
sidewalk in front of the residence.
{¶4} Patton explained the residence belonged to his cousin and Patton was
there for a New Year’s Eve party the night before. In the early morning hours, he was
assaulted by someone else at the party: appellant. Patton said he was punched,
kicked, put on the floor, robbed, held down, and burned. Patton told Edwards he was
afraid and didn’t move; he didn’t try to get away because he was threatened. He also
said the assault was filmed by a woman with a black Droid cell phone and appellant was
still inside the house, asleep on a couch. Patton explained he crawled out a bedroom
window that morning and called police.
{¶5} Patton went back inside the house through the window and unlocked the
front door for Edwards. Edwards entered the foyer and directly on his right was an end
Richland County, Case No. 12CA109 3
table and couch; asleep on the couch were appellant and a woman, 10 to 15 feet from
the front door. Edwards and another officer immediately made contact with appellant
and the woman, detaining them both and advising a complaint had been made and they
would be brought to the police department for questioning.
{¶6} A black Droid cell phone was on the coffee table directly above the
couple’s heads; Edwards seized it because he was “originally told it belonged to
[appellant].” The phone was placed on a table outside the interview rooms as each
subject was interviewed. Both parties denied ownership of the phone. Edwards
returned to the Blymyer residence to find out whom the phone belonged to, but no one
would open the door. He tagged the phone as evidence.
{¶7} Although Edwards never personally reviewed its contents, he testified a
search warrant was subsequently obtained for the contents of the black Droid cell
phone.
Criminal Charges and Motion for Bond Review
{¶8} Appellant was first charged in municipal court by criminal complaint with
one count of robbery, a felony of the second degree. Appellant waived his preliminary
hearing scheduled for January 12, 2012.
{¶9} On February 3, 2012, appellant filed a Motion for Bond Review asking the
trial court to reduce his bond, stating in pertinent part, “his bond was established in the
municipal court in Case No. 2012-CRA-00136 as being $50,000 cash and personal
recognizance and no contact with the victim or victim’s family. [Appellant] asks the
court to lower his bond so that he can get out of the Richland County Jail, where he is
Richland County, Case No. 12CA109 4
being held solely on the pending charge, for the following reason: [employment and to
enroll in college].”
{¶10} On February 10, 2012, appellant was charged by indictment with one
count of kidnapping [R.C. 2905.01(A)(3), F1], one count of abduction [R.C.
2905.02(A)(2), F3], one count of extortion [2905.11(A), F3], one count of aggravated
robbery [R.C. 2911.01(A)(3), F1], one count of robbery [R.C. 2911.02(A)(2), F2], and
one count of tampering with evidence [R.C. 2921.12(A)(1), F3].
{¶11} On February 23, 2012, a bond review hearing was held before a
magistrate per appellant’s motion of February 3 and a written decision was journalized
on February 24, 2012. The decision noted appellee called two witnesses, Officer
Edwards and a detective, and two exhibits were admitted without objection. The
magistrate made the following findings of fact which are relevant to this appeal:
1. * * *. [Appellant’s] bond is currently set in the amount of $50,000
cash and personal recognizance, the court’s electronic monitoring
program and that he have no contact with the victim or the victim’s
family.
2. The alleged facts are summarized as follows: On January 1,
2012 [appellant] and Corie Patton were at the 125 Blymyer Avenue
residence of Doug Windsor and Chelsea Smith. Chelsea Smith
was present when [appellant] assaulted and robbed Mr. Patton. A
cell phone video captured the entire incident—over 15 minutes and
20 seconds in length. Seventeen year old [T.S.] operated the cell
phone. The cell phone video shows [appellant] slapping Mr. Patton
Richland County, Case No. 12CA109 5
in the back of his head, taking off Mr. Patton’s earring and ring,
stripping him of his clothing, setting his shirt on fire and rubbing it
on Mr. Patton’s back, sticking his finger onto the back of the victim’s
head, going through his pants, sitting on his lower back spread-
eagled, putting a lighter on his back, shoulder and arm and choking
and strangling him. [T.S.] asked to quit recording the video and
[appellant] told her to keep it going. [Appellant] kept taunting Mr.
Patton, telling him “Where’s my money, bro?” “Why you robbing
people, bro?” “Who will you rob next, bro?” etc.
3. [Appellant] is a 20 year old male. He has prior convictions for
felonious assault (2006), intimidation of an attorney, victim, or
witness (2007), receiving stolen property (2007), misdemeanor
assault (2009), resisting arrest (2010) and disorderly conduct and
underage consumption (2011). Before he went to jail he was
employed by Gabriel Brothers and the Mountain Drive Thru. He
has been in custody since January 7, 2012. [Appellant] gave a
taped statement denying all of these acts.
4. Defense counsel made no specific bond request. [Appellee]
requested [appellant’s] bond be increased.
* * * *.
{¶12} The magistrate concluded appellant’s bond should be raised to $250,000
cash and personal recognizance, plus electronically monitored house arrest and no
Richland County, Case No. 12CA109 6
contact with the victim, witnesses, or their families. On March 19, 2012, the trial court
adopted the magistrate’s decision by judgment entry.
{¶13} A jury trial was scheduled for April 9, 2012. On that date, the trial court
journalized an “Order of Trial Continuance” stating “It is hereby ordered that the jury trial
of this case is continued from April 9, 2012 because the case of Carol S. Miller v. Dana
H. Andrews, Case No. 10-CV-116 proceeded to trial. Time is tolled for speedy trial
purposes until this matter can be tried.”
{¶14} On April 30, 2012, appellant filed a Motion to Dismiss arguing his right to a
speedy trial was violated by the trial court’s continuance. Defense trial counsel also
filed a Motion to Withdraw accompanied by an affidavit by appellant acknowledging any
resulting delay would be chargeable against appellant. Appellee responded on May 1,
2012. On May 11, 2012, parties argued the motions before the trial court. On May 14,
2012, by judgment entry, the trial court permitted defense trial counsel (Attorney David
Homer) to withdraw and appointed new trial counsel (Attorney Roeliff Harper). On May
21, 2012, the trial court issued a Judgment Entry Overruling Defendant’s Motion to
Dismiss.
{¶15} On June 7, 2012, appellant filed a Motion to Suppress Video Recording on
Cell Phone and a separate Motion to Suppress for Illegal Search and Seizure. Appellee
responded with motions in opposition. A suppression hearing was held on July 31,
2012 and the suppression motions were overruled on October 3, 2012.
{¶16} On October 8, 2012, appellant entered pleas of no contest to Count I,
kidnapping, Count III, extortion, Count IV, aggravated robbery, and Count VI, tampering
Richland County, Case No. 12CA109 7
with evidence. Appellee dismissed Count II, abduction, and Count V, robbery. The trial
court sentenced appellant to an aggregate prison term of 12 years.
{¶17} Appellant now appeals from the judgment entry overruling the motion to
suppress and the judgment entry of conviction and sentence.
{¶18} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶19} “I. THE COURT ERRED IN OVERRULING THE MOTION TO DISMISS
BECAUSE THE APPELLANT WAS NOT TRIED WITHIN THE TIME LIMITS
MANDATED BY REVISED CODE SECTIONS 2945.71, 2945.72, AND 2945.73.”
{¶20} “II. THE COURT ERRED IN OVERRULING THE MOTION TO
SUPPRESS EVIDENCE OBTAINED BY THE SEARCH OF THE PREMISES
OCCUPIED BY APPELLANT ON JANUARY 1, 2012, IN VIOLATION OF
APPELLANT’S FOURTH AMENDMENT RIGHTS AGAINST ILLEGAL SEARCHES OR
SEIZURES.”
{¶21} “III. THE COURT ERRED IN CONVICTING APPELLANT TO (sic) ALLIED
OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE CONSTITUTIONAL RIGHT
AGAINST DOUBLE JEOPARDY.”
{¶22} “IV. THE COURT ERRED IN FAILING TO HOLD A HEARING ON
WHETHER IT WAS SENTENCING APPELLANT TO MULTIPLE SENTENCES FOR
ALLIED OFFENSES OF SIMILAR IMPORT.”
Richland County, Case No. 12CA109 8
ANALYSIS
I.
{¶23} In his first assignment of error, appellant argues the trial court violated his
right to a speedy trial. We disagree.
{¶24} Speedy trial provisions are mandatory and are encompassed within the
Sixth Amendment to the United States Constitution. The availability of a speedy trial to
a person accused of a crime is a fundamental right made obligatory on the states
through the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 383 N.E.2d
579 (1978); State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980).
{¶25} Our review of the trial court's decision regarding a motion to dismiss
based upon a violation of the speedy trial provisions involves a mixed question of law
and fact. State v. Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122, ¶ 11.
Due deference must be given to the trial court's findings of fact if supported by
competent, credible evidence. Id. However, we must independently review whether
the trial court properly applied the law to the facts of the case. Id. Furthermore, when
reviewing the legal issues presented in a speedy trial claim, an appellate court must
strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio
St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706.
{¶26} A person charged with a felony must be brought to trial within 270 days
unless they waived that right to a speedy trial. If a person is held in jail in lieu of bond,
then each day that the suspect is in custody counts as three days. R.C. 2945.71(E).
This “triple count” provision is applied only when the defendant is being held in jail
solely on the pending charge. State v. MacDonald, 48 Ohio St.2d 66, 357 N.E.2d 40Richland County, Case No. 12CA109 9
(1976), paragraph one of the syllabus. Pursuant to R.C. 2945.73, a person who is not
brought to trial within the proscribed time periods found in R.C. 2945.71 and R.C.
2945.72 “shall be discharged” and further criminal proceedings based on the same
conduct are barred.
{¶27} “When reviewing a speedy-trial issue, an appellate court must calculate
the number of days chargeable to either party and determine whether the appellant
was properly brought to trial within the time limits set forth in R.C. 2945.71.” State v.
Riley, 162 Ohio App.3d 730, 2005–Ohio–4337, 834 N.E.2d 887, ¶ 19 (12th Dist.).
{¶28} Appellant was arrested on January 1, 2012 and argues his try-by date
was March 30, 2012; appellee responds the motion for bond review filed by appellant
on February 3, 2012 tolled the speedy time calculation for 21 days. Appellant’s first
trial date was April 9, 2012. For the following reasons, we find the trial date of April 9,
2012 was within speedy-trial time.
{¶29} In State v. Rouse, we held a defendant’s motion for bond reduction did in
fact toll the speedy trial time while the motion was pending. 5th Dist. Tuscarawas No.
2007 AP 12 0078, 2008-Ohio-5891, ¶ 22, appeal not allowed, 121 Ohio St.3d 1440,
2009-Ohio-1638, 903 N.E.2d 1223. Both parties acknowledge Rouse, but appellant
asks us to instead follow the rationale of the Second District Court of Appeals in State
v. Hardy, 2nd Dist. Greene No. 2012 CA 20, 2012-Ohio-3498, in which the Court
found a motion for bond reduction did not toll the time to bring the accused to trial. We
find Hardy to be distinguishable from the case sub judice. As appellee points out, the
Second District found the motion for bond reduction did not interfere with speedy trial
time, in part, because no hearing was held, the state didn’t bother to respond to the
Richland County, Case No. 12CA109 10
motion, and the trial court filed a brief, standardized entry; therefore, it was reasonable
to conclude the motion for bond review had not burdened the trial court to any degree
and could not be said to have delayed trial. Id., 2012-Ohio-3498 at ¶ 20. We note
that Hardy was a case of criminal non-support. In the case sub judice, however, the
bond issue involved significant allegations of violence against the victim, necessitating
a hearing and the taking of evidence. The magistrate’s entry includes findings of fact
and conclusions of law. The facts are distinguishable in Hardy and we therefore follow
our precedent in Rouse, supra.
{¶30} We find, therefore, the trial date of April 9 was properly within time
because the speedy trial time was tolled during the time in which appellant’s motion
for bond review was pending. Further, the trial court properly continued the April 9
trial date sua sponte.
{¶31} Courts may sua sponte continue a trial beyond the statutory speedy-trial
limit, but only when reasonable and only when the continuances are made by journal
entry prior to the expiration of the time limit. State v. King, 70 Ohio St.3d 158, 162,
1994-Ohio-412, 637 N.E.2d 903. A continuance must be reasonable in both purpose
and length. State v. Martin, 56 Ohio St.2d 289, 293, 384 N.E.2d 239 (1978). The trial
court’s continuance due to an ongoing civil trial, as noted in its journal entry, is
reasonable pursuant to R.C. 2945.72(H). State v. Foster, 5th Dist. Richland No.
07CA31, 2007-Ohio-6626, ¶18.
{¶32} Moreover, we note appellant has not made any showing of presumptive
prejudice. When determining whether an accused was denied the right to a speedy
trial as guaranteed by the Sixth Amendment, the court must consider four factors: (1)
Richland County, Case No. 12CA109 11
length of delay, (2) reason for the delay, (3) the accused's assertion of his right, and
(4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972); State v. Davis, 46 Ohio St.2d 444, 446, 349 N.E.2d 315 (1976).
No one factor is controlling. Rather, the court must balance these factors under a
totality of the circumstances framework. Barker at 533. The first of the Barker factors,
the length of delay, “is to some extent a triggering mechanism.” Id. at 530. “Until there
is some delay which is presumptively prejudicial, there is no necessity for inquiry into
the other factors that go into the balance.” Id. If the defendant makes the initial
threshold showing of presumptive prejudice, we must then consider the length of the
delay with the other Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112
S.Ct. 2686, 120 L.Ed.2d 520 (1992), citing Barker at 553–534. In this case, we have
only summary allegations of prejudice.
{¶33} For the foregoing reasons, we find appellant’s right to a speedy trial was
not violated and his first assignment of error is therefore overruled.
II.
{¶34} In his second assignment of error, appellant argues the trial court erred
in overruling his motion to suppress. We disagree.
{¶35} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,
713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes
the role of trier of fact and, as such, is in the best position to resolve questions of fact
and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661
N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court’s findings of
Richland County, Case No. 12CA109 12
fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio
App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the
appellate court must independently determine as a matter of law, without deference to
the trial court’s conclusion, whether the trial court’s decision meets the applicable legal
standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),
overruled on other grounds.
{¶36} There are three methods of challenging a trial court’s ruling on a motion
to suppress on appeal. First, an appellant may challenge the trial court’s finding of
fact. In reviewing a challenge of this nature, an appellate court must determine
whether the trial court’s findings of fact are against the manifest weight of the
evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v.
Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant
may argue the trial court failed to apply the appropriate test or correct law to the
findings of fact. In that case, an appellate court can reverse the trial court for
committing an error of law. See, Williams, supra. Finally, an appellant may argue the
trial court has incorrectly decided the ultimate or final issues raised in a motion to
suppress. When reviewing this type of claim, an appellate court must independently
determine, without deference to the trial court’s conclusion, whether the facts meet the
appropriate legal standard in any given case. State v. Curry, 95 Ohio App.3d 93,
96,620 N.E.2d 906 (8th Dist.1994).
{¶37} Appellant challenges the trial court’s decision overruling his motion to
suppress the seizure of the black Android cell phone containing the video of appellant
beating the victim, arguing that Patton, as an “overnight guest,” did not have authority
Richland County, Case No. 12CA109 13
to allow officers into the house. The threshold question, however, is whether appellant
had a reasonable expectation of privacy.
{¶38} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, rendering them per se unreasonable unless an
exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 19 L.Ed.2d
576 (1967). In determining whether the Fourth Amendment protects against a search,
“the rule that has emerged * * * is that there is a twofold requirement, first that a
person have exhibited an actual (subjective) expectation of privacy and, second, that
the expectation be one that society is prepared to recognize as ‘reasonable.’” Katz,
389 U.S. at 361 (Harlan, J., concurring). See Rakas v. Illinois, 439 U.S. 128, 143–144,
99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Williams, 73 Ohio St.3d 153, 166–167,
652 N.E.2d 721(1995).
{¶39} Fourth Amendment rights are personal rights that may not be vicariously
asserted. Rakas v. Illinois, 439 U.S. 128, 133–134, 99 S.Ct. 421, 58 L.Ed.2d 387(1978). “A person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person's premises or
property has not had any of his Fourth Amendment rights infringed.” (Emphasis sic.)
Id. at 134. The exclusionary rule is “an attempt to effectuate the guarantees of the
Fourth Amendment,” and only defendants whose Fourth Amendment rights have been
violated may benefit from its protections. (Emphasis sic.) Id. Standing to claim the
protection of the Fourth Amendment depends on whether the person involved has a
legitimate expectation of privacy. A subjective expectation of privacy is legitimate if it
is one that society is prepared to recognize as reasonable. Minnesota v. Olson, 495
Richland County, Case No. 12CA109 14
U.S. 91, 95–96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); State v. Williams, 73 Ohio
St.3d 153, 166, 652 N.E.2d 721 (1995).
{¶40} Appellant has overlooked his burden to establish his status at the
Blymyer residence. The defendant bears the burden to prove that he had a
reasonable expectation of privacy in the searched area. Rakas at 131; Williams at
166. In this case, however, appellant has not established his standing to assert any
violation of his Fourth Amendment rights. Both parties have, at various times, referred
to both Patton and appellant as “overnight guests” in their arguments, but in fact there
is no evidence in the record to demonstrate to us appellant met his burden of proving
he had a reasonable expectation of privacy in the Blymyer residence.
{¶41} An overnight guest in a home has an expectation of privacy that society
is prepared to recognize as reasonable. Olson at 98; Williams at 166. But in
Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), the
United State Supreme Court further stated that “an overnight guest in a home may
claim the protection of the Fourth Amendment, but one who is merely present with the
consent of the householder may not.”
{¶42} Only one witness testified at the suppression hearing: Officer Edwards.
His testimony regarding appellant’s presence at the house was that he was told
appellant came to the New Year’s Eve party, assaulted Patton in the early morning
hours, and at some point fell asleep on the couch. We find from this limited evidence
appellant was not at the Blymyer residence as an “overnight guest” as contemplated
by Olson. As the Second District Court of Appeals succinctly stated in a similar case,
“The fact that he may have ‘passed out’ on the floor or couch following these activities
Richland County, Case No. 12CA109 15
does not change his status to an overnight guest.” State v. Glover, 2nd Dist.
Montgomery No. 20692, 2005-Ohio-4509, ¶ 14; see, State v. Brown, 1st Dist.
Hamilton No. C-120327, 2013-Ohio-2720; State v. Gulley, 5th Dist. Stark No.
2006CA00114, 2008-Ohio-887.
{¶43} For the foregoing reasons, we find the trial court properly overruled
appellant’s motions to suppress and appellant’s second assignment of error is
overruled.
III, IV.
{¶44} In his third and fourth assignments of error, appellant argues the
offenses of kidnapping and aggravated robbery should have merged for purposes of
sentencing, or, alternatively, the extortion and aggravated robbery offenses should
have merged, and the trial court should have held an allied-offenses hearing. We
agree in part and therefore sustain appellant’s third assignment of error.
{¶45} R.C. 2941.25 states 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
Richland County, Case No. 12CA109 16
separate animus as to each, the indictment or
information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
{¶46} In State v. Johnson, the Ohio Supreme Court modified the test for
determining whether offenses are allied offenses of similar import. 128 Ohio St.3d 1405,
2010–Ohio–6314. The Court directed us to look at the elements of the offenses in
question and determine whether or not it is possible to commit one offense and commit
the other with the same conduct. If the answer to such question is in the affirmative, the
court must then determine whether or not the offenses were committed by the same
conduct. If the answer to the above two questions is yes, then the offenses are allied
offenses of similar import and will be merged. If, however, the court determines that
commission of one offense will never result in the commission of the other, or if there is
a separate animus for each offense, then the offenses will not merge according to
Johnson, supra.
{¶47} Appellant did not object to the trial court's imposition of multiple sentences
and has therefore waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” The Ohio Supreme Court has expressly held that the imposition
of multiple sentences for allied offenses of similar import is plain error. State v.
Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, ¶ 31; State v.
Yarbrough, 104 Ohio St.3d 1, 2004–Ohio–6087, 817 N.E.2d 845, ¶ 96–102.
{¶48} Appellant was indicted upon, convicted of, and sentenced upon, e.g., one
count of kidnapping pursuant to R.C. 2905.01(A)(3) and one count of aggravated
Richland County, Case No. 12CA109 17
robbery pursuant to R.C. 2911.01(A)(3). The record is silent as to the facts underlying
each separate offense; it is therefore impossible for us to determine whether these are
allied offense of similar import. When the plea agreement is silent on the issue of allied
offenses of similar import, the trial court is obligated under R.C. 2941.25 to determine
whether the offenses are allied, and if they are, to convict the defendant of only one
offense. State v. Underwood, 124 Ohio St.3d 365, 371, 2010-Ohio-1, 922 N.E.2d 923.
{¶49} Appellee urges us to look to facts elsewhere in the record, including the
bond review hearing, but as the magistrate’s ruling makes clear, those claims were
still “allegations.” We find there are insufficient facts in the record for this court to
make an allied-offense determination in the instant case. In Underwood, the Supreme
Court explained that the trial court's duty to merge allied offenses “is mandatory, not
discretionary.” Underwood at ¶ 26. The trial court should have inquired into the facts to
determine whether any of the offenses were allied and failure to make the necessary
inquiry constitutes plain error.
{¶50} Accordingly, we sustain appellant’s third assignment of error and remand
the case to the trial court for an allied-offense hearing and, if appropriate, allow
appellee to elect which allied offenses to pursue at resentencing. State v. Whitfield,
124 Ohio St.3d 319, 2010–Ohio–2, 922 N.E.2d 182, paragraph one of the syllabus. In
light of our decision on this assignment of error, appellant’s argument regarding
merger of the offense of extortion and aggravated robbery, and his fourth assignment
of error regarding an allied-offenses hearing, are moot.
{¶51} Appellant’s third assignment of error is therefore sustained and his fourth
assignment of error is overruled.
Richland County, Case No. 12CA109 18
CONCLUSION
{¶52} Appellant’s first, second, and fourth assignments of error are overruled
and his third assignment of error is sustained. The judgment of the Richland County
Court of Common Pleas is affirmed in part, reversed in part, and remanded for an allied-
offenses hearing in accord with this opinion.
By: Delaney, J. and
Farmer, P.J.
Wise, J., concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE