State v. Rea , 2013 Ohio 3971 ( 2013 )

[Cite as State v. Rea, 2013-Ohio-3971.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-A-0043
- vs - :
DONNA REA, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012
CR 241.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Gregory A. Price, 137 South Main, Suite 300, Akron, OH 44308 (For Defendant-
Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Donna Rea, appeals from her convictions on three counts of
illegal assembly or possession of chemicals for the manufacture of drugs (“illegal
assembly”), in violation of R.C. 2925.041(A), felonies of the third degree.
{¶2} All three counts allege appellant assembled or possessed chemicals for
the manufacture of methamphetamine. Count 1 alleges the infraction occurred on or
between October 28, 2011 and November 4, 2011; Count 2 alleges a time frame on or
between November 5, 2011 and November 5, 2011; and Count 3 on or between
November 23, 2011 and December 7, 2011.
{¶3} On April 26, 2012, the Ashtabula County Grand Jury indicted appellant on
11 counts of Illegal assembly. On June 14, 2012, appellant entered a guilty plea on the
first three counts of the illegal assembly charges in exchange for dropping the
remaining counts. Appellant was sentenced to 36 months on each count, to be served
concurrently.
{¶4} Appellant raises the following three assignments of error for our review:
{¶5} “[1.] The trial courts committed reversible error when they found that a
third degree felony carries a presumption of prison.
{¶6} “[2.] Appellant received ineffective assistance of counsel when her trial
counsel failed to correct the trial court’s conclusion that a third degree felony carries a
presumption of prison.
{¶7} “[3] The trial court committed reversible error when it failed to merge the
three charges of illegal possession of chemicals.”
{¶8} The arguments under appellant’s first and second assignments of error
have been fully addressed in our opinion in Case No. 2012-A-0044. Therefore, we will
not repeat them here. They are without merit as decided.
{¶9} Under appellant’s third assignment of error, she contends that the trial
court committed reversible error when it failed to merge the three charges of illegal
possession because the three counts for which she was convicted demonstrate a
continuing course of conduct, meaning that essentially, appellant was convicted of
multiple charges for one continuing offense in violation of the Double Jeopardy Clause.
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Appellant argues that the trial court should have merged the three charges and
sentenced her on only one count of illegal assembly. We disagree.
{¶10} R.C. 2941.25 provides:
{¶11} “(A) Where the same conduct by a 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.
{¶12} “(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.”
{¶13} “If the offenses correspond to such a degree that the conduct of the
defendant constituting commission of one offense constitutes commission of the other,
then the offenses are of similar import.” State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, ¶48.
{¶14} In Johnson, the Ohio Supreme Court developed the current standard,
holding that, “[w]hen determining whether two offenses are allied offenses of similar
import subject to merger under R.C. 2941.25, the conduct of the accused must be
considered.” Id. at syllabus. Although Johnson was a plurality opinion, this court
embraced and later adopted the lead opinion in State v. May, 11th Dist. Lake No. 2010-
L-131, 2011-Ohio-5233; see also State v. Oliver, 11th Dist. Portage No. 2010-P-0017,
2012-Ohio-122, ¶129.
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{¶15} “In making such a determination, a court must consider whether it is
possible to commit the offenses by the same conduct and, if so, whether the offenses
were, in fact, committed by the same conduct: i.e., ‘a single act committed with a single
state of mind.’” State v. Biondo, 11th Dist. Portage No. 2012-P-0043, 2013-Ohio-876,
¶6. “If both questions are answered affirmatively, then merger is appropriate.” Id.{¶16} Turning to the case before us, appellant was convicted of three counts of
the same offense. However, each count was committed at a separate time and with a
separate animus. Count 1 occurred between October 28, 2011 and November 4,
2011, in the village of Jefferson, the city of Geneva, the city of Ashtabula, and the
township of Saybrook. Count 2 occurred between November 5, 2011 and November
22, 2011, in the city of Ashtabula, the city of Geneva, and the township of Madison.
Count 3 occurred between November 23, 2011 and December 7, 2011, in the city of
Geneva, the township of Ashtabula, and the township of Madison.
{¶17} Accordingly, based on the above-recited legal standard, appellant’s
offenses did not qualify as allied offenses of similar import subject to merger since they
were committed during three separate time frames and various places, with separate
animus.
{¶18} Based on the foregoing, it is the opinion of this court that the judgment of
the Ashtabula County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with
Concurring/Dissenting Opinion.
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____________________
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with
Concurring/Dissenting Opinion.
{¶19} I take exception with the fact that this case, Case No. 2012-A-0043, did
not merge below with Case No. 2012-A-0044. I further take exception with the fact that
this court did not later consolidate these cases for purposes of briefing and disposition.
The charges in both cases include illegal assembly or possession of chemicals for the
manufacture of drugs, all felonies of the third degree, all in violation of R.C.
2925.041(A), and all alleged to have been purchased to manufacture
methamphetamine. Thus, based on the foregoing and on the facts at issue, I believe
both cases should have merged and/or been consolidated.
{¶20} The majority points out that the arguments under appellant’s first and
second assignments of error have been fully addressed in Case No. 2012-A-0044, in
which this writer concurred in part and dissented in part with a concurring/dissenting
opinion. Thus, as a means to avoid repetition, I incorporate my concurring/dissenting
opinion regarding appellant’s first and second assignments of error in Case No. 2012-
A-0044 with the instant case, Case No. 2012-A-0043. As such, I will now only address
appellant’s third assignment of error, dealing with allied offenses and merger, in which I
dissent. I do not agree with the majority that appellant’s offenses did not qualify as
allied offenses of similar import subject to merger.
{¶21} This writer wishes to expand on the majority’s citations regarding allied
offenses and the judicial doctrine of merger by providing the following background:
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{¶22} Our review of an allied offenses question is de novo. State v. Williams,
134 Ohio St.3d 482, 2012-Ohio-5699, ¶12. “R.C. 2941.25 ‘codifies the protections of
the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments
for the same offense.’ State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, * * *
¶23. At the heart of R.C. 2941.25 is the judicial doctrine of merger; merger is ‘the
penal philosophy that a major crime often includes as inherent therein the component
elements of other crimes and that these component elements, in legal effect, are
merged in the major crime.’ State v. Botta, 27 Ohio St.2d 196, 201 * * * (1971).”
(Parallel citations omitted.) Williams at ¶13.
{¶23} R.C. 2941.25 states:
{¶24} “(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.
{¶25} “(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.”
{¶26} “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy
Clause, ‘a trial court is required to merge allied offenses of similar import at sentencing.
Thus, when the issue of allied offenses is before the court, the question is not whether
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a particular sentence is justified, but whether the defendant may be sentenced upon all
the offenses.’ Underwood at ¶27.” Williams, supra, at ¶15.
{¶27} The method employed by courts in determining whether two crimes
constitute allied offenses of similar import has evolved. In State v. Rance, 85 Ohio
St.3d 632 (1999), the Supreme Court of Ohio held that “[u]nder an R.C. 2941.25(A)
analysis, the statutorily defined elements of offenses that are claimed to be of similar
import are compared in the abstract.” Id., paragraph one of the syllabus. (Emphasis
sic.) Since its release, Rance has gone through various modifications and revisions.
See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625; State v. Brown, 119 Ohio
St.3d 447, 2008-Ohio-4569; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059.
{¶28} The Supreme Court of Ohio revisited the allied offenses analysis again in
2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
Under the new analysis, which this court later relied upon and embraced in State v.
May, 11th Dist. Lake No. 2010-L-131, 2011-Ohio-5233, “When determining whether
two offenses are allied offenses of similar import subject to merger under R.C. 2941.25,
the conduct of the accused must be considered.” Johnson, at the syllabus. The
Johnson court provided the new analysis as follows:
{¶29} “In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one offense
and commit the other with the same conduct, not whether it is possible to commit one
without committing the other. * * * If the offenses correspond to such a degree that the
conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.
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{¶30} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e.,
‘a single act, committed with a single state of mind.’ * * *.
{¶31} “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{¶32} “Conversely, if the court determines that the commission of one offense
will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has [a] separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-51. (Citations
omitted.) (Emphasis sic.)
{¶33} This court went on to state in May, supra, at ¶50-51:
{¶34} “‘In departing from the former test, the court developed a new, more
context-based test for analyzing whether two offenses are allied thereby necessitating
a merger. In doing so, the court focused upon the unambiguous language of R.C.
2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,
rather than the elements of the crimes which are charged as a result of the defendant’s
conduct.’ [State v.] Miller[,11th Dist. Portage No. 2009-P-0090, 2011-Ohio-1161,] at
¶47, citing Johnson at ¶48-52.
{¶35} “‘The (Johnson) court acknowledged the results of the above analysis will
vary on a case-by-case basis. Hence, while two crimes in one case may merge, the
same crimes in another may not. Given the statutory language, however, this is not a
problem. The court observed that inconsistencies in outcome are both necessary and
permissible ‘(* * *) given that the statute instructs courts to examine a defendant’s
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conduct - an inherently subjective determination.’ Miller at ¶52, quoting Johnson at
¶52.
{¶36} In this case, the issue is whether appellant’s charges of illegal assembly
are allied offenses subject to merger for purposes of sentencing, which this court
reviews de novo. Williams, supra, at ¶12.
{¶37} Applying Johnson, it is possible to commit one offense of illegal assembly
and commit another with the same conduct. Again, under R.C. 2941.25, Ohio’s
multiple-count statute, if a defendant’s conduct results in allied offenses of similar
import, the defendant may ordinarily be convicted of only one of the offenses. R.C.
2941.25(A). However, if the defendant commits each offense separately or with a
separate animus, then convictions may be entered for both offenses. R.C. 2941.25(B).
{¶38} The majority finds that the facts do not support merger. However, I find
the opposite. The record establishes that appellant evidenced the same animus in
committing these offenses, which spanned over the course of three months. Appellant
assembled or possessed chemicals for the manufacture of methamphetamine. All
counts were for the same activity. Looking to the conduct of the accused, this was a
single act with a single state of mind. The test under Johnson is not whether the
elements line up, which is the essence of the Rance analysis. Rather, the test is
whether the crimes were committed by the same conduct and with the same animus.
In this case, they were.
{¶39} “‘[T]he 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.’” State v. Helms, 7th Dist.
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Mahoning No. 08 MA 199, 2012-Ohio-1147, ¶68, quoting Johnson, supra, at ¶43, citing
Maumee v. Geiger, 45 Ohio St.2d 238, 242 (1976). In this case, treatment was
recommended and available. However, multiple sentences were improperly “heaped”
on appellant instead. This amounts to an undue burden on our already overcrowded
prison system pursuant to the principles and purposes of sentencing under R.C.
2929.11, which I have elaborated on in my concurring/dissenting opinion in Case No.
2012-A-0044, dealing with H.B. 86.
{¶40} Based on the facts of this case, this writer believes the offenses qualify as
allied offenses of similar import, were committed with the same animus, and should
have merged. Thus, I find appellant should have received treatment and not been
sentenced separately for each offense.
{¶41} For the foregoing reasons, I dissent with the majority’s view on allied
offenses and merger under appellant’s third assignment of error.
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