State v. Craft , 2020 Ohio 4494 ( 2020 )

[Cite as State v. Craft, 2020-Ohio-4494.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-19-029
Appellee Trial Court No. 2018-CR-304
v.
Michael Craft DECISION AND JUDGMENT
Appellant Decided: September 18, 2020
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Brian J. Darling, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Michael Craft, appeals the judgment of the Erie County Court of
Common Pleas, following a guilty plea, convicting him of one count of breaking and
entering in violation of R.C. 2911.13(A) and (C), one count of breaking and entering in
violation of R.C. 2911.13(B) and (C), both felonies of the fifth degree, and one count of
burglary in violation of R.C. 2911.12(A)(3) and (D), a felony of the third degree. For the
reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On June 13, 2018, the Erie County Grand Jury returned a seven-count
indictment charging appellant with one count of engaging in a pattern of corrupt activity
in violation of R.C. 2923.32(A)(1) and (B)(1), a felony of the first degree, one count of
attempted burglary in violation of R.C. 2911.12(A)(3) and (D), a felony of the fourth
degree, one count of breaking and entering in violation of R.C. 2911.13(A) and (C), a
felony of the fifth degree, one count of breaking and entering in violation of R.C.
2911.13(B) and (C), a felony of the fifth degree, one count of burglary in violation of
R.C. 2911.12(A)(3) and (D) along with a firearm specification under R.C. 2941.141(A), a
felony of the third degree, one count of theft in violation of R.C. 2913.02(A)(1) and
(B)(2), a felony of the fifth degree, and one count of grand theft of a firearm or dangerous
ordnance in violation of R.C. 2913.02(A)(1) and (B)(4), a felony of the third degree. The
charges all stemmed from what the trial court determined was a “course of conduct”
spanning 11 years and involving crimes committed in Erie, Wayne, Huron, Richland,
Fairfield, and Medina Counties.
{¶ 3} On April 19, 2019, following a number of pretrial motions, appellant agreed
to plead guilty to the two counts of breaking and entering, and the count of burglary with
2.
a firearm specification. Relevant here, the two counts of breaking and entering were
committed in Huron County on December 11, 2015, and June 28, 2016, respectively.1
{¶ 4} Sentencing was held on April 22, 2019. Upon the request of appellant, the
trial court considered an August 2017 presentence investigation report that was generated
for separate cases that appellant had in Huron County on charges of attempted burglary
and receiving stolen property. That presentence report indicated that appellant was being
investigated for the December 11, 2015, and June 28, 2016 crimes of breaking and
entering, which appellant later pleaded guilty to in Erie County in the present case.
Appellant argued at the sentencing hearing that because the Huron County Court of
Common Pleas considered the as-of-then uncharged crimes of breaking and entering
when it sentenced appellant in 2017, the trial court could not now punish appellant for the
crimes of breaking and entering without violating the Double Jeopardy Clause. The trial
court ultimately disagreed and ordered appellant to serve 12 months in prison on each
count of breaking and entering, as well as three years in prison on the count of burglary,
and one year in prison on the firearm specification. The court then ordered all the
sentences to be served consecutively to one another for a total prison term of six years,
1
In the trial court, appellant moved to dismiss the two counts of breaking and entering
for lack of venue/jurisdiction. On April 19, 2019, the trial court denied appellant’s
motion, finding that the counts were part of a course of criminal conduct that included
crimes committed in Erie County, thus making Erie County a proper venue pursuant to
R.C. 2901.12(H). By pleading guilty, appellant waived any further arguments concerning
venue, and that issue is not before us on appeal.
3.
and further ordered the sentences to be served consecutively to the sentences out of
Huron County.
4.
II. Assignment of Error
{¶ 5} Appellant has timely appealed his judgment of conviction, and now asserts
one assignment of error for our review:
1. The trial court erred when it failed to find a double jeopardy
violation and proceeded to issue successive punishment on Mr. Craft.
III. Analysis
{¶ 6} We review the imposition of a felony sentence in accordance with R.C.
2953.08. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 16.
Relevant here, R.C. 2953.08(G)(2)(b) provides that an appellate court may increase,
reduce, or otherwise modify a sentence if it clearly and convincingly finds “[t]hat the
sentence is otherwise contrary to law.”
{¶ 7} Appellant argues that his sentence is contrary to law in that it violates the
Double Jeopardy Clause. The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides that no person shall “be subject for the same offence
to be twice put in jeopardy of life or limb.” Likewise, Article I, Section 10 of the Ohio
Constitution provides “No person shall be twice put in jeopardy for the same offense.”
“The Double Jeopardy Clause protects against three abuses: (1) ‘a second prosecution
for the same offense after acquittal,’ (2) ‘a second prosecution for the same offense after
conviction,’ and (3) ‘multiple punishments for the same offense.’” State v. Ruff, 143
Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. Pearce,
395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).
5.
{¶ 8} In this case, although appellant’s argument implicates the protection against
multiple punishments, it does not raise the traditional concepts of merger and allied
offenses of similar import. Rather, appellant argues that because the Huron County Court
of Common Pleas considered the factual circumstances of his two counts of breaking and
entering when it sentenced appellant in 2017 on his convictions for attempted burglary
and receiving stolen property, the Erie County Court of Common Pleas was prohibited
from sentencing appellant on the counts of breaking and entering. Appellant contends
that the Huron County Court of Common Pleas’ consideration of his conduct, and the
trial court’s imposition of 12-month prison sentences on the two counts of breaking and
entering constitutes multiple punishments for the same offense.
{¶ 9} The issue in this case is whether the Huron County trial court’s
consideration of the factual circumstances of appellant’s conduct that later became the
basis for the breaking and entering charges constitutes “punishment” for that conduct.
We hold that it does not.
{¶ 10} Importantly, appellant was not charged in Huron County for the breaking
and entering offenses. Thus, when Huron County considered those as-of-then uncharged
offenses, it did so in the context of determining an appropriate punishment for appellant’s
convictions for attempted burglary and receiving stolen property. Such consideration is
consistent with “well-established case law that uncharged crimes and charges dismissed
pursuant to plea agreements may be considered at sentencing.” State v. Lanning, 6th
Dist. Ottawa No. OT-19-024, 2020-Ohio-2863, ¶ 17; State v. Hanson, 6th Dist. Lucas
6.
No. L-01-1217, 2002 WL 471677 (Mar. 22, 2002) (consideration of uncharged crimes
was not improper in trial court’s application of R.C. 2929.11 and 2929.12).
{¶ 11} “[W]hen a sentencing judge, under a guidelines regime or a discretionary
sentencing system, increases a sentence based on the defendant’s criminal history—100%
of the punishment is for the offense of conviction.” U.S. v. Rodriquez, 553 U.S. 377,
386, 128 S. Ct. 1783, 170 L. Ed. 2d 719 (2008); State v. Adkins, 129 Ohio St. 3d 287, 2011-
Ohio-3141, 951 N.E.2d 766, ¶ 15. Therefore, although the Huron County Court of
Common Pleas may have imposed a harsher sentence because of appellant’s uncharged
conduct, the sentence imposed by that court punished appellant for the offenses of
attempted burglary and receiving stolen property; appellant was not punished for the
breaking and entering offenses. Consequently, the Double Jeopardy Clause was not
violated because the trial court’s 12-month prison sentences on the counts of breaking
and entering constituted the first and only punishments that appellant has received for
those offenses.
{¶ 12} Accordingly, appellant’s assignment of error is not well-taken.
IV. Conclusion
{¶ 13} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Erie County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
7.
State v. Craft
C.A. No. E-19-029
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
8.