State v. Jones , 2020 Ohio 1388 ( 2020 )

[Cite as State v. Jones, 2020-Ohio-1388.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 108694, 108795,
v. : 108796, and 108797
ELBERT JONES, :
Defendant-Appellant. :
______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 9, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-631648-A, CR-18-631687-A, and CR-18-635092-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Lindsay Raskin, Assistant Prosecuting
Attorney, for appellee.
Ruth R. Fischbein-Cohen, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Elbert Jones, appeals from the trial court’s
judgment that sentenced him to an aggregate term of 21 years in prison. Jones
contends that the trial court’s judgment was in error because the court should have
merged various offenses as allied offenses of similar import, and the trial court failed
to consider the R.C. 2929.11 and 2929.12 sentencing factors. Finding no merit to
the appeal, we affirm.
I. Background
Jones was charged in three cases relating to three separate incidents
that occurred on different dates but were similar in nature. In each incident, Jones
and accomplices, with guns drawn, would approach individuals who had just pulled
into their driveways and rob them. In two of the three incidents, they forced the
victims into their homes and demanded money and other property from them.
In Cuyahoga C.P. No. CR-18-635092, Jones was charged in a 13-
count indictment with three counts of aggravated robbery in violation of R.C.
2911.01(A)(1); six counts of robbery in violation of RC. 2911.02(A)(2) and (3); one
count of grand theft in violation of R.C. 2913.02(A)(1); two counts of theft in
violation of R.C. 2913.02(A)(1); and one count of having weapons while under
disability in violation of R.C. 2923.13(A)(2). Except for the having weapons while
under disability charge, all of the charges carried one- and three-year firearm
specifications. The offenses occurred on December 18, 2017, at a home on Chagrin
Boulevard in Shaker Heights, Ohio; there were two victims.
In Cuyahoga C.P. No. CR-18-631687, Jones was charged in an eight-
count indictment with one count of aggravated burglary in violation of R.C.
2911.11(A)(2); one count of aggravated robbery in violation of R.C. 2911.01(A)(1);
three counts of robbery in violation of R.C. 2911.02(A)(1) and (2); one count of
kidnapping in violation of R.C. 2905.01(A)(2); one count of theft in violation of R.C.
2913.02(A)(1); and one count of having weapons while under disability in violation
of R.C. 2923.13(A)(2). All charges other than the having weapons while under
disability charge had one- and three-years firearm specifications. The offenses
occurred on December 19, 2017, at a home on Charney Road in University Heights,
Ohio; one victim was involved.
In Cuyahoga C.P. No. CR-18-631648, Jones was charged in a seven-
count indictment with: one count of aggravated robbery in violation of R.C.
2911.01(A)(1); one count of grand theft in violation of R.C. 2913.02(A)(1); one count
of theft in violation of R.C. 2913.02(A)(1); one count of criminal damaging in
violation of R.C. 2909.06(A)(1); two counts of improperly handling firearms in a
motor vehicle in violation of R.C. 2923.16(B); and one count of having weapons
while under disability in violation of R.C. 2923.13(A)(2). Except for the criminal
damaging charge, all counts had forfeiture of weapons specifications; the aggravated
robbery, grand theft, and theft charges also had one- and three-year firearm
specifications. The offenses occurred on January 4, 2018, at a home on Wilton Road
in Cleveland Heights, Ohio; there was one victim.
Jones subsequently entered into a plea agreement with the state. In
CR-18-635092, he pleaded guilty to one count of aggravated robbery in violation of
R.C. 2911.01(A)(1) with a three-year firearm specification; one count of aggravated
robbery in violation of R.C. 2911.01(A)(1); grand theft in violation of R.C.
2913.02(A)(1); and having weapons while under disability in violation of R.C.
2923.13(A)(2). All remaining counts and specifications were nolled.
In CR-18-631687, Jones pleaded guilty to aggravated robbery in
violation of R.C. 2911.01(A)(1) with a one-year firearm specification; and having
weapons while under disability in violation of R.C. 2923.13(A)(2). All remaining
counts and specifications were nolled.
In CR-18-631648, Jones pleaded guilty to aggravated robbery in
violation of R.C. 2911.01(A)(1) with a three-year firearm specification and two
forfeiture of weapons specifications; having weapons while under disability in
violation of R.C. 2923.13(A)(2) with two forfeiture of weapons specifications; and
grand theft in violation of R.C. 2913.02(A)(1). All remaining counts and
specifications were dismissed.
At sentencing, the trial court noted that the cases involved three
separate incidents that occurred on different days and involved different victims,
with two victims in CR-18-635092. The court also stated that it had “considered the
purposes and principles of sentencing under Revised Code Section 2929.11,” as well
as “the seriousness and recidivism factors relevant to the offenses and offender
pursuant to 2929.12, and the need for deterrence, incapacitation, rehabilitation, and
restitution.” (Tr. 65.)
In CR-18-635092, the court sentenced Jones to three years on one
aggravated robbery count and three years on the firearm specification (Count 1); and
three years on the other aggravated robbery count (Count 6), noting that the counts
involved separate victims. The court ordered the sentences be served consecutively.
The court ruled that the grand theft conviction merged with the aggravated robbery
counts, and did not sentence Jones on that count. The court sentenced Jones to 12
months on the having weapons while under disability conviction, to be served
concurrent with the aggravated robbery conviction, for a total of nine years
incarceration.
In CR-18-631687, the trial court sentenced Jones to four years for
aggravated robbery and one year on the firearm specification. The court sentenced
Jones to 18 months incarceration on the having weapons while under disability
conviction, to be served concurrent with the total five-year sentence for aggravated
robbery.
In CR-18-631648, the court sentenced Jones to four years on the
aggravated robbery conviction, consecutive to the three-year firearm specification.
The court ruled that the grand theft conviction merged with the aggravated robbery
conviction and did not sentence on that count. The court sentenced Jones to 24
months incarceration on the having weapons while under disability conviction, to
be served concurrent to the total seven-year sentence for aggravated robbery.
After making the appropriate findings under R.C. 2929.14(C) to
impose consecutive sentences, the trial court ordered that the sentences in the three
cases be served consecutively, for a total sentence of 21 years. This appeal followed.
II. Law and Analysis
A. Allied Offenses of Similar Import
In his first assignment of error, Jones contends that the trial court
erred in not merging the sentences in each case. He contends that the offenses in
each incident are allied because the date, address, and victim are the same.
R.C. 2941.25, Ohio’s allied offenses statute, codifies Ohio’s double
jeopardy protection regarding when multiple punishments may be imposed. State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 12. R.C. 2941.25(A)
allows only a single conviction for offenses that constitute “allied offenses of similar
import.” Under R.C. 2941.25(B), however, a defendant charged with multiple
offenses may be convicted of all the offenses if (1) the offenses are dissimilar in
import or significance; i.e., each offense caused separate identifiable harm; (2) the
offenses were committed separately; or (3) the offenses were committed with
separate animus or motivation. Ruff at ¶ 13.
With respect to CR-18-635092, defense counsel conceded at the plea
hearing that the two aggravated robbery counts to which Jones was pleading guilty
did not merge for sentencing because each count involved a separate victim. (Tr.
35.) State v. Crawley, 8th Dist. Cuyahoga No. 99636, 2014-Ohio-921, ¶ 14 (where a
defendant commits the same offense against separate victims, a separate animus
exists for each victim such that the offenses are not allied). With respect to the other
counts, the trial court merged the grand theft conviction with one of the aggravated
robbery counts, and did not sentence on that count. Accordingly, the only issue for
appeal is whether the having a weapon while under disability count should have
merged with the aggravated robbery convictions. Defense counsel raised this issue
at sentencing but the trial court concluded the convictions did not merge. (Tr. 61,
77.)
In State v. Brown, 8th Dist. Cuyahoga No. 102549, 2015-Ohio-4764,
this court considered whether a having weapons while under disability offense
merged with an aggravated robbery offense. In concluding that the offenses did not
merge, the court stated:
“[The] animus of having a weapon under disability is making a
conscious choice to possess a weapon. [The defendant] necessarily
acquired the guns sometime prior to committing the other crimes. The
fact that he then used the weapons to commit the other crimes does not
absolve [the defendant] of the criminal liability that arises solely from
his decision to illegally possess the weapons.”
Id. at ¶ 12-13, quoting State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-
5723, ¶ 39; see also State v. Carradine, 2015-Ohio-3670, 38 N.E.3d 936, ¶ 58 (8th
Dist.) (carrying concealed weapon and having weapons while under disability did
not merge because acquisition of the firearm was done with a separate animus than
the carrying of the firearm in a concealed manner); State v. Beeler, 9th Dist. Summit
No. 27309, 2015-Ohio-275, ¶ 27 (aggravated robbery does not merge with having
weapons while under disability because defendant’s animus to possess a firearm was
separate and distinct from his animus to rob pizza shop).
Similarly, in this case, Jones necessarily acquired and possessed the
firearm prior to committing the robberies. The offense of having a weapon while
under disability occurred when Jones acquired and possessed the gun, and the
robberies occurred when he used the gun to take the victims’ property. That Jones
used the firearm to commit the robbery does not absolve him of the criminal liability
arising from his illegal possession of the firearm. Accordingly, the trial court did not
err in not merging these offenses for sentencing.
With respect to CR-18-631648, the court merged the grand theft
conviction with the aggravated robbery conviction and did not sentence on that
count. Thus, the only issue for appeal is whether the trial court erred in not merging
the having a weapon while under disability conviction with the aggravated robbery
conviction. As discussed above, the offenses involved a separate animus and,
therefore, the trial court did not err in not merging the offenses.
Finally, with respect to CR-18-631687, we find that Jones waived any
argument regarding merger of the offenses because defense counsel agreed that the
two counts to which Jones pleaded guilty in that case1 would not merge for
sentencing. (Tr. 30.) And even if counsel had not so conceded, in light of our
determination that having a weapon while under a disability involves a separate
animus from aggravated robbery, the trial court did not err in not merging the
convictions in this case.
Jones’s first assignment of error is therefore overruled.
1 Aggravated robbery and having weapons while under disability.
B. The Trial Court’s Consideration of the Sentencing Factors in
R.C. 2929.11 and 2929.12
In his second assignment of error, Jones contends that the trial court
failed to consider the principles and purposes of sentencing under R.C. 2929.11 and
specifically, the recidivism factor under R.C. 2929.12.
When sentencing a defendant for felony offenses, the court must
consider the purpose and principles of felony sentencing set forth in R.C. 2929.11
and the seriousness and recidivism factors in R.C. 2929.12. State v. Hodges, 8th
Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. R.C. 2929.11(A) provides that a
sentence imposed for a felony shall be reasonably calculated to (1) protect the public
from future crime by the offender and others, (2) punish the offender using the
minimum sanctions the court determines will accomplish those purposes, and (3)
promote the effective rehabilitation of the offender. R.C. 2929.11(B) requires that
the sentence be “commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim,” and “consistent with sentenced
imposed for similar crimes committed by similar offenders.”
The sentencing court must consider the seriousness and recidivism
factors set forth in R.C. 2929.12 in determining the most effective way to comply
with the purposes and principles of sentencing set forth in R.C. 2929.11. Hodges at
¶ 9. R.C. 2929.12 sets forth a nonexhaustive list of factors a trial court must consider
when determining the seriousness of the offense and the likelihood the offender will
commit future offenses.
Trial courts are not required to make factual findings under R.C.
2929.11 or 2929.12. State v. White, 8th Dist. Cuyahoga No. 106580, 2018-Ohio-
3414, ¶ 9, citing State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-
1020, ¶ 27. In fact, consideration of the factors is presumed unless the defendant
affirmatively demonstrates otherwise. State v. Seith, 8th Dist. Cuyahoga No.
104510, 2016-Ohio-8302, ¶ 12. This court has consistently found that a trial court’s
statement in its sentencing journal entry that it considered the required statutory
factors, without more, is sufficient to fulfill its obligations under R.C. 2929.11 and
2929.12. White at ¶ 9, citing Kronenberg at ¶ 27.
At the sentencing hearing, the trial court stated that it had considered
the record, the statements made at the sentencing hearing, the presentence
investigation report that included the victim impact statements, and the sentencing
memorandum prepared and provided to the court by defense counsel. (Tr. 65.) The
court stated further:
The Court has considered the purposes and principles of sentencing
under Revised Code Section 2929.11, and the seriousness and
recidivism factors relevant to the offenses and offender pursuant to
Revised Code Section 2929.12, and the need for deterrence,
incapacitation, rehabilitation, and restitution.
Id. Likewise, the court’s journal entries of sentencing in each of the three cases
states that “[t]he court considered all required factors of the law,” and that “the court
finds that prison is consistent with the purpose of R.C. 2929.11.” Thus, it is apparent
that the trial court did indeed consider the required statutory factors before
sentencing Jones.
Jones contends, however, that the trial court did not adequately
consider his apology to the court as a mitigating factor regarding the likelihood of
recidivism. Jones contends that his remorse over his crimes demonstrated that he
is not likely to reoffend in the future, and hence, the trial court should have imposed
a lesser sentence.2
The record refutes Jones’s argument. The court specifically
addressed the issue of recidivism, finding that recidivism was more likely given
Jones’s prior violent criminal conduct. (Tr. 71-72.) The court then stated, “I
understand that Mr. Jones is apologizing, so he’s expressing remorse to this Court
and apologizing to the victim. So there is a consideration of that.” (Tr. 72.)
It is apparent the trial court considered Jones’s apology as a factor
relevant to his sentence, but nevertheless concluded that a lengthy prison sentence
was necessary to protect the public and punish him. Because the trial court
considered the purposes and principles of sentencing set forth in R.C. 2929.11 and
the sentencing factors of R.C. 2929.12, Jones’s argument is without merit. The
second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
2 R.C. 2929.12(E) lists factors that demonstrate the offender is not likely to commit
future crimes, including if “the offender shows genuine remorse for the offense.” R.C.
2929.12(E)(5).
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR