State v. Smith , 2013 Ohio 2650 ( 2013 )

[Cite as State v. Smith, 2013-Ohio-2650.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
RALPH L. SMITH : Case No. 13-CA-9
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
12CR00450
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JUSTIN RADIC STEPHEN T. WOLFE
Assistant Prosecuting Attorney Christopher M. Cooper Co., LPA
20 S. Second Street 3055 Cleveland Avenue
Newark, Ohio 43055 Columbus, OH 43224
Licking County, Case No. 13-CA-9 2
Baldwin, J.
{¶1} Appellant Ralph L. Smith appeals a judgment of the Licking County
Common Pleas Court convicting him of breaking and entering (R.C. 2911.13 (A)) and
vandalism (R.C. 2909.05 (B)(1)(a)) upon a plea of guilty, and sentencing him to three
years community control, with a sentence of ten months incarceration on each count to
be served consecutively if he violates the terms of community control.
STATEMENT OF FACTS AND CASE
{¶2} On August 20, 2012, appellant broke into the Faith United Methodist
Church, looking for money to steal. Appellant damaged several pieces of property in
the church, including a large door.
{¶3} Appellant was indicted by the Licking County Grand Jury on August 31,
2012, with one count of breaking and entering and one count of vandalism. Appellant
appeared before the Licking County Common Pleas Court on January 25, 2013, and
pled guilty to both charges. Appellant argued that the offenses should merge for
purposes of sentencing. The court rejected his argument and sentenced him to three
years community control, ordered him to pay $1,000.00 in restitution, and in the event
appellant violates the terms of his community control he is to serve ten months
incarceration consecutively on each count.
{¶4} Appellant assigns a single error on appeal:
{¶5} THE CHARGES WERE ALLIED OFFENSES OF SIMILAR IMPORT THAT
SHOULD HAVE MERGED FOR PURPOSES OF SENTENCING.
{¶6} R.C. 2941.25 provides:
Licking County, Case No. 13-CA-9 3
{¶7} “(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.
{¶8} “(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 may contain counts for all such offenses, and the defendant may be
convicted of all of them.”
{¶9} 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.
{¶10} In the instant case, appellant pled guilty to the charges. As a result, the
record is mostly devoid of facts underlying the offenses. During the change of plea
hearing, the prosecutor presented the facts as follows:
Licking County, Case No. 13-CA-9 4
{¶11} “On August 20th, 2012, the Defendant broke into the Faith United
Methodist Church, located at 261 East Main Street, in Licking County, Ohio. The
purpose of breaking in was to find money to steal.
{¶12} “During this break-in, the Defendant damaged several pieces of property,
including one large door. The total value to fix the damages was $4,325. This property
was used by Faith United Methodist Church in their profession, business, trade or
occupation.” Tr. 10.
{¶13} Without presenting a specific argument concerning the facts, appellant
argued that the offense should merge:
{¶14} “Given that these crimes occurred at the same time, same course of
conduct, I would submit to the Court that they were allied offenses of similar import and
should merge upon sentencing.” Tr. 15.
{¶15} The State responded:
{¶16} “Your Honor, the State would submit that these are not allied offenses of
similar import. The breaking and entering is a theft-related offense, broke in, that’s
committed at the time he entered with purpose. When he’s in there and he’s committing
additional offenses that aren’t related necessarily to the theft, I don’t believe they
merge.” Tr. 17.
{¶17} Appellant argues that the only property that was damaged, giving rise to
the vandalism charge, was the door appellant damaged breaking into the church. The
State argues that the damage giving rise to the vandalism charged occurred after
appellant was inside the church building. The record does not clearly demonstrate either
version of the facts.
Licking County, Case No. 13-CA-9 5
{¶18} In State v. Rogers, 8th Dist. Nos. Nos. 98292, 98584, 98585, 98586,
98587, 98588, 98589, 98590, 2013-Ohio-1027, ¶9, the Eighth District Court of Appeals
held:
{¶19} “By their very nature, guilty plea proceedings are necessarily devoid of
facts to prove the underlying offenses. If a defendant who pleads guilty wishes to make
an allied offenses argument at sentencing, that defendant has the responsibility in the
first instance to ensure that the record contains facts to support that argument. If the
defendant fails to do so, any argument on appeal is waived.”
{¶20} We agree with the reasoning of the Eighth District. In the instant case,
appellant made an allied offense argument at sentencing, but did not place facts in the
record to support his argument. Accordingly, the assignment of error is overruled.
{¶21} The judgment of the Licking County Common Pleas Court is affirmed.
By: Baldwin, J.
Gwin, P. J. and
Farmer, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
CRB/rad
[Cite as State v. Smith, 2013-Ohio-2650.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff -Appellee :
:
-vs- : JUDGMENT ENTRY
:
RALPH L. SMITH :
:
Defendant - Appellant : CASE NO. 13-CA-9
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs
assessed to the appellant.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER