State v. Parker , 183 Ohio App. 3d 431 ( 2009 )


Menu:
  • [Cite as State v. Parker, 
    183 Ohio App.3d 431
    , 
    2009-Ohio-3667
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    AUGLAIZE COUNTY
    The STATE OF OHIO,
    APPELLEE,                                                 CASE NO. 2-09-11
    v.
    PARKER,                                                           OPINION
    APPELLANT.
    Appeal from Auglaize County Common Pleas Court
    Trial Court No. 2008 CR 189
    Judgment Affirmed in Part, Reversed in Part and Cause Remanded
    Date of Decision:        July 27, 2009
    APPEARANCES:
    Amy Otley Beckett, for appellee.
    Sarah M. Schregardus, for appellant.
    Case No. 2-09-11
    WILLAMOWSKI, Judge.
    {¶1} The defendant-appellant, Jason Parker, appeals the judgment of the
    Auglaize County Common Pleas Court convicting him of attempted theft,
    breaking and entering, and vandalism and ordering him to pay restitution as part of
    his sentence. On appeal, Parker contends that the trial court erred by convicting
    him of both breaking and entering and vandalism because the crimes constitute
    allied offenses of similar import, and that the trial court erred by failing to
    consider his present and future ability to pay before ordering restitution. For the
    reasons set forth herein, the judgment of the trial court is affirmed in part and
    reversed in part.
    {¶2} On December 8, 2008, Parker and his brother, Randy Parker, broke a
    window and punched the ignition in a van owned by Lear Fire Equipment in an
    attempt to steal the vehicle. The van had been parked in a garage on the property
    of Lear Fire Equipment. A passerby noticed the crime and chased the brothers
    away. Investigating law-enforcement officers observed two sets of shoeprints in
    the snow and traced the shoeprints to a residence, where they observed Parker
    wearing shoes with the same tread pattern they had been tracking.
    {¶3} On December 18, 2008, the Auglaize County Grand Jury indicted
    Parker on one count of attempted theft, a violation of R.C. 2923.02(A) and
    2913.02(A)(1), a fifth-degree felony; one count of breaking and entering, a
    -2-
    Case No. 2-09-11
    violation of R.C. 2911.13(B), a fifth-degree felony; and one count of vandalism, a
    violation of R.C. 2909.05(B)(1)(a), a fifth-degree felony. Parker pleaded not
    guilty to each of the charges, and the case proceeded to jury trial on February 25-
    26, 2009.   The jury found Parker guilty on each offense, and the trial court
    immediately proceeded to sentencing.          The court ordered Parker to serve
    consecutive prison terms of nine months for the attempted theft conviction, 12
    months for the breaking-and-entering conviction, and 12 months for the vandalism
    conviction, for an aggregate prison term of 33 months. The court also ordered
    Parker to pay restitution to the victim in the amount of $1,280.27. Parker appeals
    the judgment of the trial court, raising two assignments of error for our review.
    First Assignment of Error
    The trial court erred by entering convictions for breaking and
    entering and vandalism against [Appellant] for allied offenses of
    similar import, in violation of R.C. 2941.25(A).
    Second Assignment of Error
    The trial court committed plain error by ordering [Appellant]
    to pay $1,280.27 in restitution without considering his present and
    future ability to pay, as required by R.C. 2929.19(B)(6).
    {¶4} In the first assignment of error, Parker contends that the trial court
    erred by sentencing him for both breaking and entering and vandalism because the
    crimes are allied offenses of similar import. Parker argues that “the physical harm
    [he] caused was incidental to the breaking and entering.         Vandalism here is
    -3-
    Case No. 2-09-11
    implicit within the breaking and entering charge.” In response, the state of Ohio
    claims that under Parker’s argument, “by virtue of the fact that the breaking and
    entering for purpose to commit a felony requires a felony, the breaking and
    entering statute would always be a single animus and thus moot to prosecute,” and
    the General Assembly did not intend such a result.
    {¶5} Parker did not object when the court imposed sentence for each
    offense and has therefore waived all but plain error under Crim.R. 52. State v.
    Elmore, 
    111 Ohio St.3d 515
    , 
    2006-Ohio-6207
    , 
    857 N.E.2d 547
    , at ¶ 52, citing
    State v. Williams (1977), 
    51 Ohio St.2d 112
    , 
    364 N.E.2d 1364
    , at paragraph one of
    the syllabus; State v. Comen (1990), 
    50 Ohio St.3d 206
    , 211, 
    553 N.E.2d 640
    .
    Plain error will be recognized “ ‘with the utmost caution, under exceptional
    circumstances and only to prevent a manifest miscarriage of justice.’ ” State v.
    Landrum (1990), 
    53 Ohio St.3d 107
    , 110, 
    559 N.E.2d 710
    , quoting State v. Long
    (1978), 
    53 Ohio St.2d 91
    , 
    372 N.E.2d 804
    , at paragraph three of the syllabus.
    Plain error will exist if the trial court deviated from a legal rule, the error
    constituted an obvious defect in the proceedings, and the error affected a
    substantial right of the accused. State v. Barnes (2002), 
    94 Ohio St.3d 21
    , 27, 
    759 N.E.2d 1240
    .
    {¶6} R.C. 2941.25 codifies the General Assembly’s intent that cumulative
    punishments for “two separate offenses stemming from the same conduct violate
    -4-
    Case No. 2-09-11
    the Double Jeopardy Clause.” State v. Winn, 
    121 Ohio St.3d 413
    , 2009-Ohio-
    1059, 
    905 N.E.2d 154
    , at ¶ 6, citing State v. Rance (1999), 
    85 Ohio St.3d 632
    , 635,
    
    710 N.E.2d 699
    .     The statute is also “ ‘ “a clear indication of the General
    Assembly’s intent to permit cumulative sentencing for the commission of certain
    offenses,” ’ which ‘precludes an “unconstitutional” label.’ ” Winn at ¶ 6, quoting
    Rance at 635-636, quoting State v. Bickerstaff (1984), 
    10 Ohio St.3d 62
    , 66, 
    461 N.E.2d 892
    , fn. 1. R.C. 2941.25 provides:
    (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.
    {¶7} In evaluating whether crimes are allied offenses of similar import,
    the court has implemented a two-tiered test. Winn at ¶ 10, citing State v. Brown,
    
    119 Ohio St.3d 447
    , 
    2008-Ohio-4569
    , 
    895 N.E.2d 149
    , at ¶ 18, citing State v.
    Cabrales, 
    118 Ohio St.3d 54
    , 
    2008-Ohio-1625
    , 
    886 N.E.2d 181
    , at ¶ 14.
    “ ‘In the first step, the elements of the two crimes are compared. If
    the elements of the offenses correspond to such a degree that the
    commission of one crime will result in the commission of the other,
    the crimes are allied offenses of similar import and the court must
    then proceed to the second step. In the second step, the defendant's
    conduct is reviewed to determine whether the defendant can be
    -5-
    Case No. 2-09-11
    convicted of both offenses. If the court finds either that the crimes
    were committed separately or that there was a separate animus for
    each crime, the defendant may be convicted of both offenses.’ ”
    (Emphasis sic.) Id. at ¶ 10, quoting Brown at ¶ 19, quoting State v.
    Blankenship (1988), 
    38 Ohio St.3d 116
    , 117, 
    526 N.E.2d 816
    .
    {¶8} In the first step of the test, the elements of the offenses must be
    compared in the abstract and not under a “ ‘strict textual comparison.’ ” Winn,
    
    121 Ohio St.3d 413
    , 
    2009-Ohio-1059
    , 
    905 N.E.2d 154
    , ¶ 11, quoting Cabrales at
    ¶ 22, citing Rance at 637-638.
    “To interpret Rance as requiring a strict textual comparison
    would mean that only where all the elements of the compared
    offenses coincide exactly will the offenses be considered allied
    offenses of similar import under R.C. 2941.25(A).” (Emphasis sic.)
    Cabrales, 
    118 Ohio St.3d 54
    , 
    2008-Ohio-1625
    , 
    886 N.E.2d 181
    , ¶
    22.
    We rejected a “strict textual comparison” and stated, “Instead,
    if, in comparing the elements of the offenses in the abstract, the
    offenses are so similar that the commission of one offense will
    necessarily result in commission of the other, then the offenses are
    allied offenses of similar import.” Id. at ¶ 26. Cabrales explained
    that elements need not be identical for offenses to be allied.
    Id. at ¶ 11-12.
    {¶9} Parker was convicted of breaking and entering in violation of R.C.
    2911.13(B), which states, “No person shall trespass on the land or premises of
    another, with purpose to commit a felony.” The definition of “trespass” is found
    in R.C. 2911.21 and, as it relates to this case, essentially precludes a person from
    entering the land, including buildings and structures, of another without privilege
    -6-
    Case No. 2-09-11
    to do so.     Parker was also convicted of vandalism in violation of R.C.
    2909.05(B)(1)(a), which states:
    No person shall knowingly cause physical harm to property
    that is owned or possessed by another, when either of the following
    applies: The property is used by its owner or possessor in the
    owner's or possessor's profession, business, trade, or occupation, and
    the value of the property or the amount of physical harm involved is
    five hundred dollars or more.
    {¶10} In what is a question of first impression in the state, we hold that
    under an abstract analysis of the above-stated statutes, breaking and entering under
    R.C. 2911.13(B) and vandalism under R.C. 2909.05(B)(1)(a) are not allied
    offenses of similar import.       Although Parker was convicted under different
    subsections of the statutes, we note that the Eighth Appellate District has rejected
    the argument that breaking and entering committed under R.C. 2911.13(A) and
    vandalism committed under R.C. 2909.05(B)(1)(b) are allied offenses of similar
    import. State v. Hawkins, 8th Dist. No. 90704, 
    2008-Ohio-6475
    , citing State v.
    Payton (Dec. 14, 2000), 8th Dist. No. 76967, 
    2000 WL 1867406
    .
    {¶11} In regard to the statutes addressed in this case, a person may be
    guilty of breaking and entering under R.C. 2911.13(B) by simply trespassing onto
    another’s property with the intent to commit any felony thereon. A conviction for
    breaking and entering will not necessarily result in a conviction for vandalism
    under R.C. 2909.05(B)(1)(a), which requires physical harm to limited types of
    property and with a value restriction. Likewise, a conviction for vandalism under
    -7-
    Case No. 2-09-11
    R.C. 2909.05(B)(1)(a) will not necessarily result in a conviction for breaking and
    entering under R.C. 2911.13(B), as the offense of vandalism could be committed
    on one’s own land or on land the offender was privileged to enter. Having held
    that the offenses do not satisfy the first step of the Rance test, we need not
    consider the second step of the test. The first assignment of error is overruled.
    {¶12} In the second assignment of error, Parker contends that the trial court
    erred by not considering his present and future ability to pay before ordering
    restitution as part of the sentence. The state argues, “In light of [Parker’s] consent
    to pay the restitution, the lack of a fine, the obviously able-bodied, young man
    with no afflictions present in the courtroom, additional consideration of Ohio
    Revised Code § 2929.19(B)(6) was not necessary in order to order the payment of
    restitution and costs.”    The state has apparently construed Parker’s lack of
    objection to be his “consent” to pay restitution.
    {¶13} R.C. 2929.18(A)(1) permits a trial court to impose financial
    sanctions, including restitution, as part of a sentence. However, before the court
    may impose financial sanctions, it has a mandatory duty to “consider the
    offender’s present and future ability to pay the amount of the sanction or fine.”
    R.C. 2929.19(B)(6). The trial court is not required to hold a hearing on ability to
    pay, nor are there any specific factors to consider or findings to make. State v.
    Clifford, 3d Dist. No. 11-04-06, 
    2005-Ohio-958
    , at ¶ 14, reversed on other grounds
    -8-
    Case No. 2-09-11
    in In re Ohio Criminal Sentencing Statutes Cases, 
    109 Ohio St.3d 313
    , 2006-
    Ohio-2109, 
    847 N.E.2d 1174
    , citing State v. Martin (2000), 
    140 Ohio App.3d 326
    ,
    338, 
    747 N.E.2d 318
    . The court must merely consider the offender’s ability to
    pay. 
    Id.
     “ ‘[W]hen a trial court has imposed a financial sanction without even a
    cursory inquiry into the offender's present and future means to pay the amount
    imposed, the failure to make the requisite inquiry is an abuse of discretion.’ ” State
    v. Haney, 
    180 Ohio App.3d 554
    , 
    2009-Ohio-149
    , 
    906 N.E.2d 472
    , at ¶ 22, quoting
    State v. Henderson, 4th Dist. No. 07CA659, 
    2008-Ohio-2063
    , at ¶ 5, citing State v.
    Bemmes (Apr. 5, 2002), 1st Dist. No. C-010522, 
    2002 WL 507337
    .
    {¶14} In Clifford, there was no indication that the trial court had
    considered the defendant’s ability to pay. We recognized that a pre-sentence
    investigation report (“PSI”) containing information such as “a defendant's age,
    health, education and employment history has been found sufficient to comply
    with R.C. 2929.19(B)(6) when taken into consideration by the trial court.” Id. at ¶
    15, citing Martin at 338-339. However, no PSI had been prepared. Id. In
    Clifford, the state argued that the court had received and considered similar
    information through its review of a computerized criminal history.          Id.   The
    computerized criminal history was not part of the appellate record, nor did the trial
    court indicate that it had considered that information. Id. We therefore refused to
    -9-
    Case No. 2-09-11
    infer that the trial court considered the defendant’s present and future ability to
    pay. Id.
    {¶15} In State v. Frock, 2d Dist. No. 2004 CA 76, 
    2007-Ohio-1026
    , at ¶ 8-
    9, 19, the appellate court reversed the trial court’s order of restitution based on its
    failure to consider the defendant’s present and future ability to pay. In Frock, a
    PSI included information about the defendant’s age (21 years old), his educational
    background, his mental-health diagnoses, his dependency on illegal drugs, his
    “extensive” criminal background, and his “sporadic” employment background.
    The amount of restitution was established based on amounts reported by the
    victims, and the trial court never mentioned Frock’s present or future ability to
    pay, let alone inquired on the topic. Id. at ¶ 8.
    {¶16} In this case, the trial court proceeded to sentencing immediately after
    the conclusion of trial, without the benefit of a PSI. The court discussed Parker’s
    criminal history with him and considered exhibit 6, admitted during trial, to
    establish the amount of restitution. During trial, the court heard evidence that
    Parker was addicted to drugs and alcohol, that he had been laid off from his
    employment prior to the offenses, that Parker had been seeking both a drug-
    rehabilitation program and somebody to subsidize the $500 fee for the
    rehabilitation, and that Parker had attempted to steal the van from Lear Fire
    Equipment because he needed a ride. We find the facts of this case to be similar to
    - 10 -
    Case No. 2-09-11
    those in Clifford and refuse to infer or presume that the trial court did consider
    Parker’s present and future ability to pay restitution. The second assignment of
    error is sustained.
    {¶17} The judgment of the Auglaize County Common Pleas Court is
    affirmed in part and reversed in part, and the cause is remanded for additional
    proceedings.
    Judgment affirmed in part
    and reversed in part,
    and cause remanded.
    ROGERS and SHAW, JJ., concur.
    - 11 -
    

Document Info

Docket Number: 2-09-11

Citation Numbers: 2009 Ohio 3667, 183 Ohio App. 3d 431, 917 N.E.2d 338

Judges: Willamowski, Rogers, Shaw

Filed Date: 7/27/2009

Precedential Status: Precedential

Modified Date: 11/12/2024