State v. Cleland ( 2012 )

[Cite as State v. Cleland, 2012-Ohio-5016.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0018-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SHAUN M. CLELAND COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 05-CR-0492
DECISION AND JOURNAL ENTRY
Dated: October 29, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Shaun Cleland, appeals from the judgment of the Medina
County Court of Common Pleas. This Court affirms.
I
{¶2} On October 1, 2005, Cleland murdered his estranged wife, Christina
Eichelberger’s, live-in boyfriend and staged the murder scene to make it appear as if the victim,
David Heinricht, had committed suicide. Specifically, he broke into Eichelberger and
Heinricht’s apartment, waited for Heinricht to arrive home, strangled him to death, placed a rope
around his neck, and left a pre-prepared suicide note in his hand. Eichelberger found Heinricht’s
body when she returned home from work about an hour later. The police arrested Cleland at
Cleveland-Hopkins Airport.
{¶3} Cleland originally pleaded guilty to aggravated murder with prior calculation and
design, aggravated burglary, and kidnapping, but later sought to withdraw his plea. This Court
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vacated Cleland’s plea on appeal due to the fact that the trial court never informed him of his
mandatory post-release control obligations. State v. Cleland (“Cleland I”), 9th Dist. No.
06CA0073-M, 2008-Ohio-1319, ¶ 16. On remand, the matter went to trial and a jury convicted
Cleland of (1) aggravated murder with prior calculation and design, (2) aggravated murder with
aggravated burglary as the predicate offense (felony murder), (3) aggravated murder with
kidnapping as the predicate offense (felony murder), (4) two counts of murder, (5) aggravated
burglary, and (6) kidnapping. The trial court determined that all of Cleland’s aggravated murder
and murder counts were allied offenses of similar import. The State elected to have Cleland
sentenced on the count of aggravated murder with prior calculation and design. All of his other
aggravated murder and murder counts were merged into that offense. The court then sentenced
Cleland on the counts of aggravated murder with prior calculation and design, aggravated
burglary, and kidnapping. Once again, Cleland appealed.
{¶4} After Cleland filed his appeal, but before this Court issued its decision, the Ohio
Supreme Court decided State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Although we
ultimately upheld Cleland’s guilty verdicts, we declined to reach the merits of his argument that
all of his offenses were allied offenses of similar import. State v. Cleland (“Cleland II”), 9th
Dist. No. 09CA0070-M, 2011-Ohio-6786. Given that Johnson represented a dramatic shift in
the law of allied offenses, we remanded the case to the trial court for it to apply Johnson in the
first instance. Id. at ¶37-38.
{¶5} On remand, the trial court held a hearing at which it heard arguments on the allied
offense issue. The court specifically found that Cleland’s offenses for aggravated murder with
prior calculation and design and aggravated burglary “were separately committed,” such that
Cleland could be sentenced on both of those counts. The court sentenced Cleland to life
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imprisonment with the possibility of parole after thirty years on the aggravated murder count and
five years on the aggravated burglary count. The court also ordered that the two sentences run
consecutively.
{¶6} Cleland now appeals from his convictions and raises one assignment of error for
our review.
II
Assignment of Error
THE SENTENCING COURT, ON REMAND FROM THE APPELLATE
COURT TO RE-SENTENCE THE DEFENDANT PURSUANT TO R.C.
2914.25 AND STATE V. JOHNSON, ERRED BY FAILING TO APPLY THE
DOCTRINE OF MERGER OF ALLIED OFFENSES OF SIMILAR IMPORT
TO THE CONDUCT OF THE DEFENDANT AS IT RELATED TO THE
COUNTS OF AGGRAVATED BURGLARY AND AGGRAVATED MURDER
AND RE-SENTENCED THE DEFENDANT TO A FIVE YEAR TERM OF
INCARCERATION CONSECUTIVE TO THE THIRTY YEAR SENTENCE
FOR THE COUNT OF AGGRAVATED MURDER.
{¶7} In his sole assignment of error, Cleland argues that the trial court erred by
convicting him of allied offenses of similar import. Specifically, he argues that his aggravated
murder and aggravated burglary convictions should have merged for purposes of sentencing. We
disagree.
{¶8} 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 may contain counts for all such offenses, and the
defendant may be convicted of all of them.
R.C. 2941.25. Thus, two or more offenses arising from the same conduct and similar import
only may result in one conviction. R.C. 2941.25(A). Two or more offenses may result in
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multiple convictions, however, if: (1) they are offenses of dissimilar import; (2) they are
separately committed; or (3) the defendant possesses a separate animus as to each. R.C.
2941.25(B).
{¶9} “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.” State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus. A plurality of the Ohio Supreme Court
set forth a two-part test to analyze whether two offenses are allied offenses of similar import.
First, one must determine whether the offenses at issue could be committed by the same conduct.
Id. at ¶ 47. One does so by asking “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.” (Emphasis sic.) Id. at ¶ 48. See also id. at ¶ 66 (O’Connor, J., concurring.) (offenses are
allied “when their elements align to such a degree that commission of one offense would
probably result in the commission of the other offense”). Second, one must ask whether the
offenses actually were committed by the same conduct, “i.e., ‘a single act, committed with a
single state of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-
4569, ¶ 50 (Lanzinger, J., dissenting). If the answer to both inquiries is yes, the offenses will
merge. Johnson at ¶ 50.
{¶10} To commit aggravated murder under R.C. 2903.01(A), one must “purposely, and
with prior calculation and design, cause the death of another * * *.” As applicable to this case,
the aggravated burglary statute provides:
No person, by force, stealth, or deception, shall trespass in an occupied structure
or in a separately secured or separately occupied portion of an occupied structure,
when another person other than an accomplice of the offender is present, with
purpose to commit in the structure * * * any criminal offense, if * * * [t]he
offender inflicts, or attempts or threatens to inflict physical harm on another.
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R.C. 2911.11(A)(1). Aggravated murder and aggravated burglary “are not prerequisites, one for
the other. To consummate either offense, the other need not by definition be committed.
Aggravated murder and aggravated burglary are never merely incidental to each other * * *.”
State v. Moss, 69 Ohio St.2d 515, 520 (1982). Accordingly, the Ohio Supreme Court has
repeatedly held that the two offenses do not merge. State v. Johnson, 88 Ohio St.3d 95, 115
(2000); State v. Reynolds, 80 Ohio St.3d 670, 681 (1998); Moss at 520-521.
{¶11} Two offenses may result in multiple convictions if they are crimes of dissimilar
import. R.C. 2941.25(B).
The key to legislative intent from use of the words “allied offenses of similar
import” in R.C. 2941.25(A), and “offenses of dissimilar import,” in R.C.
2941.25(B), arises in great part from the word “import,” which by dictionary
definition would have reference to “allied offenses” of similar importance,
consequence and signification intended from use of the word “import.”
State v. Baer, 67 Ohio St.2d 220, 226 (1981). See also R.C. 2941.25, Legislative Service
Commission Note (1973) (noting that an armed robber who robs a bank and purposely kills two
victims in the commission of the offense can be convicted of both aggravated robbery and
aggravated murder because they “are dissimilar offenses”). “[A]n individual may at the same
time and in the same transaction commit several separate and distinct crimes and [] separate
sentences may be imposed for each offense.” State v. Botta, 27 Ohio St.2d 196, 202-203 (1971).
{¶12} The first prong of the allied offense test set forth in Johnson requires a reviewing
court to question “whether it is possible to commit one offense and commit the other with the
same conduct * * *.” (Emphasis omitted.) Johnson at ¶ 48. “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.” Id. The conduct here fails to
satisfy the first prong of the Johnson test. It was not possible for the same conduct to result in
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the commission of both Cleland’s aggravated burglary and aggravated murder offenses. His
conduct in breaking into Eichelberger and Heinricht’s apartment was distinctly different from his
conduct in calculating and purposely causing Heinricht’s death by strangulation. The offenses
were crimes of dissimilar import. R.C. 2941.25(B). See also Moss, 69 Ohio St.2d at 520. As
such, the trial court did not err by refusing to merge them. Cleland’s sole assignment of error is
overruled.
III
{¶13} Cleland’s sole assignment of error is overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
7
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, J.
CONCURS.
MOORE, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
FRANK C. GASPER, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.