State v. Priest , 2021 Ohio 3418 ( 2021 )

[Cite as State v. Priest, 2021-Ohio-3418.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 19-CA-14
:
GLENN J. PRIEST :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 18CR321
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR
RESENTENCING
DATE OF JUDGMENT ENTRY: September 27, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES JAMES A. ANZELMO
LICKING CO. PROSECUTOR 446 Howland Dr.
PAULA M. SAWYERS Gahanna, OH 43230
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No. 19-CA-14 2
Delaney, J.
{¶1} Appellant Glenn J. Priest appeals from the February 14, 2019 Judgment
Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from appellee’s bill of particulars filed June
7, 2018.
{¶3} On May 11, 2018, Newark police were dispatched to an address on Hancock
Street for a report of shots fired. Upon arrival police located a deceased white male, later
identified as Jessie Moffitt Sr.
{¶4} Upon investigation, police learned Moffitt went to the Hancock Street address
to retrieve a cell phone. At the residence, a verbal altercation ensued between Moffitt
and a third party. During the altercation, appellant came up from the basement and shot
and killed Moffitt.
{¶5} Appellant then fled the area but was found around 48 hours later. A firearm
was found upon appellant’s person at the time of arrest. Appellant was Mirandized and
interviewed. He admitted killing Moffitt. The investigation determined that after the
shooting, appellant fled in a gold Ford F150.
{¶6} On the evening of May 12, 2018, Newark police learned the Ohio State
Highway Patrol was investigating appellant’s involvement in a road-rage incident, during
which he was also driving the gold Ford F150 on Interstate 70 westbound near mile post
137 in Licking County.
Licking County, Case No. 19-CA-14 3
{¶7} In this incident, appellant passed victim R.E.’s vehicle, went onto the berm
of the highway, stopped in front of R.E.’s vehicle, and fired at least one shot at R.E.’s
vehicle. R.E. drove around appellant and fled.
{¶8} On the morning of May 13, 2018, Newark police found the gold Ford F150
abandoned near railroad tracks behind a residence on Hudson Avenue in Newark. Police
surveilled the vehicle until appellant was arrested later that evening.
{¶9} Appellant has a prior felonious assault conviction in Licking County Court of
Common Pleas Case Number 2008-CR-00686.
{¶10} Appellant was charged by indictment as follows: one count of murder
pursuant to R.C. 2903.02(A), an unclassified felony [Count I]; one count of involuntary
manslaughter pursuant to R.C. 2903.04(A), a felony of the first degree [Count II]; one
count of having weapons while under disability pursuant to R.C. 2923.13(A)(2), a felony
of the third degree [Count III]; one count of felonious assault pursuant to R.C.
2903.11(A)(2), a felony of the second degree [Count IV]; one count of having weapons
while under disability pursuant to R.C. 2923.13(A)(2), a felony of the third degree [Count
V]; and one count of improperly handling firearms in a motor vehicle pursuant to R.C.
2923.26(B), a felony of the fourth degree [Count VI]. Counts I, II, and IV are accompanied
by repeat-violent-offender specifications pursuant to R.C. 2941.149(A) and firearm
specifications pursuant to R.C. 2941.145(A).
{¶11} The bill of particulars noted appellant has a prior felony conviction for an
offense of violence, to wit, felonious assault in Licking County Court of Common Pleas
Case Number 2008-CR-00686. The felony predicate for Count II, involuntary
manslaughter, is weapons under disability. The offenses occurred on two separate dates,
Licking County, Case No. 19-CA-14 4
therefore, appellee asserted, two separate firearms specifications, two charges of
weapons under disability, and two repeat-violent-offender specifications were filed.
{¶12} On February 14, 2019, appellee moved to dismiss Counts I and III and the
accompanying firearm specifications in exchange for appellant’s guilty pleas to Counts II,
IV, V and VI. The trial court granted appellee’s motion to dismiss.
{¶13} Also on that date, appellant appeared before the trial court and changed his
previously-entered pleas of not guilty to ones of guilty upon Counts II, IV, V, and VI. The
trial immediately sentenced appellant to prison terms of 6 years upon Count II, 8 years
upon Count IV, 3 years upon Count V, 1 year upon Count VI, and a mandatory term of 3
years upon the remaining firearm specification. The trial court further ordered that the
prison terms upon Counts II, IV, V, and the firearm specification are to be served
consecutively, and those terms are to be served concurrently with the term upon Count
VI. Appellant was therefore sentenced to an aggregate prison term of 20 years.
{¶14} Appellant appealed from the trial court’s judgment entry of conviction and
sentence dated February 14, 2019.
{¶15} On September 16, 2019, we dismissed the appeal for want of prosecution
pursuant to App.R. 18(C). On December 1, 2020, appellant filed an application to reopen
the appeal pursuant to App.R. 26(B), and we granted the application to reopen on January
25, 2021.
{¶16} Appellant now raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶17} “I. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE GLENN
PRIEST’S OFFENSES FOR FELONIOUS ASSAULT AND IMPROPER HANDLING OF
Licking County, Case No. 19-CA-14 5
A FIREARM, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.”
{¶18} “II. THE TRIAL COURT UNLAWFULLY ORDERED PRIEST TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
ANALYSIS
I.
{¶19} In his first assignment of error, appellant argues the trial court should have
merged Count IV (felonious assault) and Count VI (improper handling of firearms in a
motor vehicle). We disagree.
{¶20} R.C. 2941.25, Ohio's allied-offense statute, 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 to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
Licking County, Case No. 19-CA-14 6
{¶21} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
1. In determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts must
evaluate three separate factors—the conduct, the animus, and the
import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct
constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct
supports multiple offenses may be convicted of all the offenses if any
one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses
were committed with separate animus.
{¶22} The Ruff court explained at paragraph 26:
At its heart, the allied-offense analysis is dependent upon the
facts of a case because R.C. 2941.25 focuses on the defendant's
conduct. The evidence at trial or during a plea or sentencing hearing
will reveal whether the offenses have similar import. When a
defendant's conduct victimizes more than one person, the harm for
each person is separate and distinct, and therefore, the defendant
Licking County, Case No. 19-CA-14 7
can be convicted of multiple counts. Also, a defendant's conduct that
constitutes two or more offenses against a single victim can support
multiple convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense. We
therefore hold that two or more offenses of dissimilar import exist
within the meaning of R.C. 2941.25(B) when the defendant's conduct
constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
{¶23} Appellate review of an allied-offense question is de novo. State v. Williams,
134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.
{¶24} At sentencing, appellant argued Counts IV, V, and VI should merge
because the same firearm was involved in each of those offenses, and in the firearm
specification accompanying Count IV. Appellee responded that Counts IV, V, and VI were
each supported by separate conduct: appellant, a convicted felon, fled in a motor vehicle
with a firearm [Count VI], despite his disability [Count V], which he then discharged at
R.E. [Count IV] and again fled with the firearm in the motor vehicle. T. 19, 23. The trial
court did not explicitly address the merger argument; the sentences upon Counts IV and
VI were imposed separately, with Count VI to be served concurrently.1
{¶25} Appellant relies upon State v. Parsons, 2017-Ohio-1315, 88 N.E.3d 624, ¶
88 (3rd District), in which the Court found that separate counts of attempted murder,
felonious assault, and improper handling of firearms in a motor vehicle merge for
1 As appellant notes, “The imposition of concurrent sentences is not the equivalent
of merging allied offenses.” State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950
N.E.2d 512, ¶ 17.
Licking County, Case No. 19-CA-14 8
sentencing purposes, but in that case the state of Ohio agreed to merger because the
three counts arose from a single incident with a single victim. The Third District Court of
Appeals did not analyze whether those offenses were in fact allied offenses of similar
import because the appellant challenged the trial court’s imposition of separate sentences
despite the agreed-upon merger. Id., ¶ 86. We therefore find Parsons inapposite to the
case sub judice.
{¶26} In the instant case, appellant had a firearm in his vehicle. He passed R.E.,
pulled onto the berm in front of R.E., exited his vehicle, and fired at least one shot at
R.E.’s vehicle. Appellant committed felonious assault upon firing the weapon at R.E. after
exiting the vehicle; he committed improper handling of a firearm in a motor vehicle when
he drove with the firearm in the vehicle before and after the felonious assault. We
therefore agree with appellee that the trial court was not required to merge the counts of
felonious assault and improper handling because the counts represented separate
harms. Ruff, supra, at paragraph two of the syllabus. Appellant was therefore properly
convicted of, and sentenced upon, separate counts. State v. Chester, 5th Dist. Stark No.
2020CA00028, 2021-Ohio-918, ¶ 54, appeal not allowed, 163 Ohio St.3d 1495, 2021-
Ohio-2270, 169 N.E.3d 1282.
{¶27} We note the offenses are objectively of dissimilar import and subjectively
as applied to the facts of the instant case. Appellant was convicted and sentenced upon
improper handling of firearms in a motor vehicle pursuant to R.C. 2923.16(B): “No person
shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner
that the firearm is accessible to the operator or any passenger without leaving the
vehicle.” Appellant was also convicted and sentenced upon felonious assault pursuant
Licking County, Case No. 19-CA-14 9
to R.C. 2903.11(A)(2): “No person shall knowingly * * * [c]ause or attempt to cause
physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”
These offenses, and appellant’s commission of each, were “not alike in their significance
and their resulting harm.” Ruff at ¶ 21. Based on our de novo review, appellant has failed
to explain how his conduct could be analyzed under Ruff to overcome the trial court's
implicit determination that the offenses were of dissimilar import.
{¶28} Accordingly, appellant’s first assignment of error is overruled.
II.
{¶29} In his second assignment of error, appellant argues the trial court
improperly imposed consecutive prison terms without making the requisite findings on the
record at the sentencing hearing. We agree.
{¶30} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,
2014-Ohio-3177, syllabus.
{¶31} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption
by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). Bonnell,
supra, 2014-Ohio-3177 at ¶ 23. R.C. 2929.14(C)(4) concerns the imposition of
consecutive sentences and provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
Licking County, Case No. 19-CA-14 10
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and
to the danger the offender poses to the public, and if the court also
finds any of the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control for
a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses committed
as part of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶32} In the instant case, the record does not establish the trial court made the
findings required by R.C. 2929.14(C)(4)(b) at the time it imposed consecutive sentences.
We note, however, that in the sentencing judgment entry, the trial court found that
Licking County, Case No. 19-CA-14 11
consecutive sentences are necessary to protect the public from future crime or to punish
the offender; are not disproportionate to appellant's conduct and to the danger he poses
to the public; and appellant’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future harm by the offender. Judgment
Entry, Feb. 14, 2019, page 3. However, these findings were not made on the record at
the sentencing hearing.
{¶33} We have previously held that the trial court must state these findings during
the sentencing hearing as well as incorporate them into the judgment entry. State v.
Smith, 5th Dist. Licking No. 2019 CA 119, 2020-Ohio-4048, ¶ 47; State v. Bryan, 5th Dist.
Muskingum No. CT2016-0056, 2017-Ohio-1532, ¶ 13; State v. Hunter, 5th Dist. Licking
No. 15-CA-18, 2015-Ohio-3498, ¶ 15; State v. Fisher, 5th Dist. Stark No. 2012CA00031,
2013-Ohio-2081, ¶ 25; State v. Kennedy, 5th Dist. Guernsey No. 16-CA-27, 2017-Ohio-
5547, ¶ 33.
{¶34} Appellant’s second assignment of error is therefore sustained, appellant’s
sentence is vacated, and this matter is remanded for resentencing.
Licking County, Case No. 19-CA-14 12
CONCLUSION
{¶35} Appellant’s first assignment of error is overruled and the second assignment
of error is sustained. The judgment of the Licking County Court of Common Pleas is
therefore affirmed in part and reversed in part. The sentence is vacated and the matter
is remanded to the trial court upon the issue of findings in support of consecutive
sentencing. Smith, supra, 2020-Ohio-4048, ¶ 49.
By: Delaney, J.,
Gwin, P.J. and
Wise, Earle, J., concur.