State v. Jones , 2011 Ohio 1984 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-1984.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 23926
v. : T.C. NO. 09CR623
ANTHONY WAYNE JONES : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 22nd day of April , 2011.
..........
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 W. Fourth Street, Suite 250, Dayton, Ohio
45402
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Defendant-appellant Anthony Jones appeals from his convictions and
sentences for two counts of aggravated burglary, four counts of kidnapping, five counts of
aggravated robbery, and two counts of felonious assault, all with firearm specifications, as
well as three counts of assault, one count of having weapons under disability, and one count
2
of tampering with evidence. For the following reasons, the judgment of the trial court will
be Affirmed in part and Reversed in part and Remanded to the trial court for further
proceedings.
I
{¶ 2} On February 22, 2009, Jones and his co-defendant burglarized a Huber
Heights home. The armed men tied up and beat the four occupants of the home, shooting
one of them. As a result of those events, Jones was indicted on two counts of aggravated
burglary, four counts of kidnapping, five counts of aggravated robbery, and two counts of
felonious assault, all with firearm specifications. He was also indicted on three counts of
assault, one count of having weapons under disability, and one count of tampering with
evidence. Jones filed a motion to suppress evidence seized from his home pursuant to a
search warrant. The trial court overruled the motion.
{¶ 3} On February 8, 2010, Jones pled no contest to the charges. On February 23,
2010, the trial court sentenced Jones to an aggregate term of 37 years in prison. Two days
later, Jones filed a motion to withdraw his plea, claiming that he had been misled by the trial
court and his defense attorney to believe that he would receive a substantially lesser
sentence. Prior to the trial court’s having the opportunity to schedule a hearing or rule on
the motion, Jones filed this appeal, and the trial court did not consider the motion.
II
{¶ 4} Although Jones has not argued on appeal that his kidnapping and aggravated
robbery convictions should have been merged as allied offenses of similar import, we sua
sponte take notice of this potential error since the record provides no evidence that the trial
3
court considered the merger issue prior to sentencing Jones.
{¶ 5} We have previously held that a trial court’s failure to merge allied offenses of
similar import constitutes plain error. State v. Coffey, Miami App. No. 2006 CA 6,
2007-Ohio-21, ¶14. See, also, State v. Puckett (March 27, 1998), Greene App. No. 97 CA
43. Furthermore, the Ohio Supreme Court has held that “R.C. 2941.25(A) clearly provides
that there may be only one conviction for allied offenses of similar import. Because a
defendant may be convicted of only one offense for such conduct, the defendant may be
sentenced for only one offense. Allied offenses of similar import are to be merged at
sentencing. See State v. Brown, 119 Ohio St.3d 447, * * * ¶43; State v. McGuire (1997), 80
Ohio St.3d 390, 399, * * *. Thus, a trial court is prohibited from imposing individual
sentences for counts that constitute allied offenses of similar import. A defendant’s plea to
multiple counts does not affect the court’s duty to merge those allied counts at sentencing.
This duty is mandatory, not discretionary. Therefore, when a sentence is imposed on
multiple counts that are allied offenses of similar import in violation of R.C. 2941.25(A), * *
*” there is no bar to appellate review of that sentence. State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, ¶26 (emphasis in original).
{¶ 6} Revised Code 2941.25, Ohio’s multiple count statute, provides:
{¶ 7} “(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.
{¶ 8} “(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
4
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.”
{¶ 9} As we discussed in State v. Moore, Greene App. No. 2010 CA 13,
2011-Ohio-636, the Ohio Supreme Court has recently (and subsequent to imposition of
sentence in this case) clarified the process by which courts should apply this statute in
determining whether offenses are allied offenses of similar import. State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314. In Johnson, the Supreme Court overruled State v. Rance,
85 Ohio St.3d 632, 1999-Ohio-291, “to the extent that it calls for a comparison of statutory
elements solely in the abstract under R.C. 2941.25. [Now w]hen 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.” Id. at ¶44.
{¶ 10} Further, “[u]nder R.C. 2941.25, the court must determine prior to sentencing
whether the offenses were committed by the same conduct. Thus, the court need not
perform any hypothetical or abstract comparison of the offenses at issue in order to conclude
that the offenses are subject to merger.
{¶ 11} “In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit
the other offense with the same conduct, not whether it is possible to commit one without
committing the other. * * * 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.” Johnson, 2010-Ohio-6314, at ¶¶47-48 (emphasis
5
in original), citing State v. Blankenship (1988), 38 Ohio St.3d 116, 119 (Whiteside, J.,
concurring).
{¶ 12} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e., ‘a
single act committed with a single state of mind.’” Id. at ¶49, quoting State v. Brown, 119
Ohio St.3d 447, 2008-Ohio-4569, ¶50.
{¶ 13} “Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately, or if
the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the
offenses will not merge.” Id. at ¶52 (emphasis in original).
{¶ 14} The trial court in this case failed to address whether Jones’s kidnapping and
aggravated robbery convictions should have been merged prior to sentencing. “‘[W]hen a
defendant pleads guilty [or no contest] to multiple offenses of similar import and the trial
court accepts the pleas, the trial court has a duty to conduct a hearing to determine whether
the crimes were committed separately or with a separate animus for each offense prior to
entering judgment sentencing the defendant.’” State v. Jones (April 10, 1998), Darke App.
No. 97-CA-1435, quoting State v. Mangrum (1993), 86 Ohio App.3d 156, 158. Because
Jones pled no contest to the kidnapping and aggravated robbery charges, the record is
insufficient to determine whether a separate animus existed for the commission of each
offense. Accordingly, we conclude that the matter must be remanded to the trial court for
a hearing on whether any of the offenses of kidnapping and aggravated robbery were
committed with the same animus, requiring merger of the convictions prior to sentencing.
6
III
{¶ 15} Jones’s First Assignment of Error:
{¶ 16} “THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY
DENYING APPELLANT’S MOTION TO SUPPRESS BECAUSE THE WARRANT WAS
DEFECTIVE.”
{¶ 17} In his first assignment of error, Jones argues that the trial court should have
suppressed evidence seized from his home pursuant to a search warrant which was issued
without probable cause. Specifically, Jones insists that the officer who prepared the warrant
“relied on hearsay evidence from other officers, did not disclose this to the judge issuing the
warrant, and gave no statement as to the veracity and basis of knowledge of the person
supplying the hearsay information.” Additionally, Jones claims that the affidavit in support
of the warrant failed to comply with Crim.R. 41 in that it failed to state a factual basis for
believing that the stolen property would be in his home.
{¶ 18} When assessing the adequacy of an affidavit offered in support of a request
for a search warrant, the issuing magistrate must make “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including the
‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” State
v. Smith (2001), 146 Ohio App.3d 154, quoting State v. George (1989), 45 Ohio St.3d 325,
paragraph one of the syllabus. In George, the Supreme Court outlined the standard of
review that an appellate court should follow when assessing the sufficiency of a search
warrant affidavit:
7
{¶ 19} “In reviewing the sufficiency of probable cause in an affidavit submitted in
support of a search warrant issued by a magistrate, neither the trial court nor an appellate
court should substitute its judgment for that of the magistrate by conducting a de novo
determination as to whether the affidavit contains sufficient probable cause upon which that
court would issue the search warrant. Rather, the duty of a reviewing court is simply to
ensure that the magistrate had a substantial basis for concluding that probable cause existed.
In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search
warrant, trial and appellate courts should accord great deference to the magistrate’s
determination of probable cause, and doubtful or marginal cases in this area should be
resolved in favor of upholding the warrant.” Id. at paragraph two of the syllabus.
{¶ 20} Jones maintains that because Detective Noll, who prepared and signed the
affidavit for the warrant, did not have first-hand knowledge of all of the information
contained within the affidavit, the affidavit was not credible. However, courts have
recognized the “collective knowledge doctrine,” which permits police officers to rely on
information provided to them by other officers in helping to establish probable cause or
reasonable suspicion. See, e.g., State v. Harris (July 24, 1981), Lucas App. No. L-81-018,
quoting United States v. Ventresca (1965), 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684(“observations of fellow officers of the Government engaged in a common investigation are
plainly a reliable basis for a warrant applied for by one of their number.”); United States v.
Beck (6th Cir. 1985), 765 F.2d 146 (the collective knowledge doctrine typically applied in
determining probable cause to arrest “is equally applicable to a search warrant”). Similarly,
we have held that “police officers are entitled to rely on information received from other
8
police officers” when determining whether reasonable suspicion exists to detain a suspect.
State v. Wortham (2001), 145 Ohio App.3d 126, 130. Under the collective knowledge
doctrine, Detective Noll was justified in relying on information provided to him from other
officers involved in the investigation to prepare the affidavit for the search warrant, and the
magistrate was equally justified in considering that information in making her probable
cause determination.
{¶ 21} The affidavit stated that Jones was arrested at his home the day after the
crimes occurred. It is reasonable for the police to believe, and for the issuing magistrate and
trial court to agree, that evidence of the crimes, including the gun used during the
commission of the recently-committed offenses and the property taken from the victims of
those crimes, was likely to be found at Jones’s home.
{¶ 22} Jones’s first assignment of error is overruled.
IV
Jones’s Second Assignment of Error:
{¶ 23} “THE TRIAL COURT JUDGE’S DISREGARD FOR THE AGREED
UPON TERMS OF THE PLEA AGREEMENT CONSTITUTED AN ABUSE OF
DISCRETION.”
Jones’s Third Assignment of Error:
{¶ 24} “APPELLANT’S PLEA OF NO CONTEST WAS NOT GIVEN
KNOWINGLY OR VOLUNTARILY AND HIS MOTION TO WITHDRAW PLEA
SHOULD HAVE BEEN GRANTED.”
{¶ 25} In his second assignment of error, Jones maintains that the trial court abused
9
its discretion in accepting his no contest plea. He insists that his plea was not knowingly or
voluntarily entered because he relied upon his attorney’s representation of the trial court’s
off-the-record, in-chambers statement that Jones would be sentenced in the range of 12 to 20
years. In his third assignment of error, Jones argues that the trial court should have granted
his motion to withdraw his plea.
{¶ 26} When the trial court announced Jones’s 37-year sentence, Jones’s attorney
objected without explanation. The trial court acknowledged the objection and immediately
moved on to the sentencing of Jones’s co-defendant. At the sentencing of his co-defendant,
which is not a part of this appellate record, a more detailed objection was raised. State v.
Ewing, Montgomery App. No. 23949, ___ Ohio ___.
{¶ 27} In Boykin v. Alabama (1969), 395 U.S. 238, 242-43, 89 S.Ct. 1709, the
United States Supreme Court held that in order for a reviewing court to determine whether a
guilty plea was voluntary, the record must show that the defendant knowingly, intelligently,
and voluntarily waived his constitutional rights. See, also, State v. Nero (1990), 56 Ohio
St.3d 106, 107. As a result, Crim.R. 11(C) was adopted to ensure an adequate record for
review in order to facilitate a more accurate determination of the voluntariness of a
defendant’s plea. Id.{¶ 28} Crim.R. 11(C)(2) requires the trial court to personally inform a defendant of
the constitutional guarantees that he waives by entering a guilty plea. That section also
demands that the trial court ensure that the defendant understands the nature of the charges
against him, the maximum penalty that he faces, and whether he is eligible for probation. A
defendant who claims that his no contest plea was not knowingly, intelligently, and
10
voluntarily made must show a prejudicial effect. Nero, supra, at 108. In other words,
“[t]he test is whether the plea would have otherwise been made.” Id., citations omitted.
{¶ 29} The record demonstrates that Jones was afforded a full and proper Crim.R. 11
hearing at the time of his plea. At that hearing Jones acknowledged that he understood and
wanted to plead no contest to the charges against him. Jones affirmatively stated that he
was satisfied with his attorney’s representation. He acknowledged that he had read the plea
form; he understood the form; and he signed it. The trial court found that Jones understood
the rights that he was waiving by entering the plea. Moreover, Jones affirmatively stated
that he was not coerced or forced to enter the plea, that nobody threatened him, and that no
one made any promises to him that were not stated in open court.
{¶ 30} In both his motion to withdraw his plea and on appeal, Jones claims that
during the final pre-trial conference, which took place less than two weeks prior to his plea,
sentencing was discussed in the context of a potential guilty plea. The conference took
place in chambers and was not recorded; Jones was not present. The only information
available in the record regarding the substance of the conference is found in an affidavit by
Jones that was attached to his motion to withdraw his plea. In that affidavit, Jones states
although the State offered a sentencing range of 15-25 years, he rejected the offer because he
was told by his attorney that the trial court had indicated that the sentencing range would be
12-20 years. Because the conference and any conversation between Jones and his attorney
are not part of the record below, the record before us cannot support Jones’s contention that
his plea was not knowingly and intelligently made.
{¶ 31} At the beginning of the plea hearing, Jones’s counsel stated that Jones was
11
going to withdraw his former plea of not guilty, “and there’s no agreement as to sentencing.”
Jones answered negatively to the question whether “any promises [have] been made....”
The full colloquy appears to have meticulously complied with the requirements of the
criminal rule and the constitution. No doubt, lawyers and judges could construct a more
explicit conversation,1 but not that is legally required, nor would it avoid the issue raised by
Jones. 2 One court has even inquired of a defendant whether there had been any
“predictions, prophesies, or promises” made regarding the length of the sentence. Reinhart
v. United States (W.D.La. Nov. 13, 2008), Case No. 6:97-CR-60030 (emphasis added).
{¶ 32} In any appeal we must decide based on the record before us. The
on-the-record discussion should not be viewed as a charade or verbal Potemkin Village.
The record before us demonstrates that Jones’s pleas were made knowingly, intelligently,
and voluntarily and does not reflect any abuse of discretion by the trial court.
{¶ 33} However, if the affidavit is believed, there may be facts outside this record
affecting the knowing and voluntary nature of the plea, which warrant a hearing on Jones’s
motion to withdraw his plea. A defendant who files a post-sentence motion to withdraw his
guilty plea bears the burden of establishing manifest injustice. Crim.R. 32.1; State
1
For hyperbolic example: “Court: You have been placed under oath. Has there been anything told or related to
you, by your attorney or anyone else, that has created in you an expectation or impression as to what the sentence will be or
has otherwise affected your decision to plead guilty or no contest? Have you been told by your attorney or anyone else to
answer this question, or any other question, with anything other than the truth, the whole truth, and nothing but the truth?
Do you understand that you must tell me the truth and that, if you do not, no matter what you believe or what anybody
tells you, you will be forever from now until the end of the universe, prohibited from changing your mind or later saying
you are not telling the truth today?”
2
A defendant could still file an affidavit alleging his attorney told him to answer the questions in a certain way in
order to receive the sentence that was promised.
12
v. Harris, Montgomery App. No. 19013, 2002-Ohio-2278, at ¶ 7, citing State v. Smith
(1977), 49 Ohio St.2d 261, paragraph one of the syllabus. Consideration of “[t]he motion is
‘addressed to the sound discretion’ of the trial court.” Harris, at ¶ 7, citing Smith, at
paragraph two of the syllabus. Thus, an appellate court reviews the trial court’s decision
under an abuse of discretion standard. Harris, at ¶ 7, citing State v. Adams (1980), 62 Ohio
St.2d 151, 157. The abuse of discretion standard is defined as “‘[a]n appellate court’s
standard for reviewing a decision that is asserted to be grossly unsound, unreasonable,
illegal, or unsupported by the evidence.’” State v. Boles, Montgomery App. No. 23037,
2010-Ohio-278, ¶18, quoting Black’s Law Dictionary, Eighth Edition (2004), at 11.
{¶ 34} The trial court did not have an opportunity to rule on Jones’s motion to
withdraw his plea due to the filing of the instant appeal. Therefore, it is premature for us to
address Jones’s claim that the trial court erred in failing to grant his motion. On remand,
the trial court is also directed to consider Jones’s motion to withdraw his plea, upon which
he appears to be entitled to a hearing.
{¶ 35} Jones’s second assignment of error is overruled. His third assignment of
error is overruled as premature, since the trial court has yet to rule on his motion to withdraw
his plea.
V
Jones’s Fourth Assignment of Error:
{¶ 36} “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING
CONSECUTIVE RATHER THAN CONCURRENT SENTENCES AND THE
SENTENCES ARE CONTRARY TO LAW.”
13
Jones’s Fifth Assignment of Error:
{¶ 37} “THE TRIAL COURT’S DECISION TO ORDER CONSECUTIVE
RATHER THAN CONCURRENT SENTENCES WAS NOT SUPPORTED BY THE
RECORD.”
{¶ 38} In his fourth and fifth assignments of error, Jones challenges his sentence.
We begin by noting that any challenge to his sentence with regard to the kidnapping and
aggravated robbery charges is premature, as those convictions are being remanded to the trial
court for consideration of whether any of those convictions should be merged as allied
offenses of similar import prior to sentencing. Accordingly, we need only consider his
remaining 19-year sentence for two counts of aggravated burglary, two counts of felonious
assault, three counts of assault, one count of having weapons under disability, and one count
of tampering with evidence.
{¶ 39} Jones argues that his sentence is contrary to law because the trial court failed
to consider both the purposes and principles of sentencing set forth in R.C. 2929.11 and the
seriousness and recidivism factors provided by R.C. 2929.12. He maintains that the trial
court abused its discretion in imposing consecutive sentences, rather than concurrent
sentences. He insists that the general public need not be protected from him since he
victimized alleged drug dealers and the general public does not engage in such inherently
risky behavior. Jones also claims that his sentence was “not consistent with sentences
imposed for similar crimes committed by similar offenders.”
{¶ 40} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Ohio Supreme
Court explained that when reviewing challenges to sentences pursuant to R.C. 2953.08(G),
14
an appellant must prove that his sentence is clearly and convincingly contrary to law. On
the other hand, when an appeal is based upon R.C. 2929.12, the standard of review is
whether the trial court abused its discretion. The abuse of discretion standard is defined as
“[a]n appellate court’s standard for reviewing a decision that is asserted to be grossly
unsound, unreasonable, illegal, or unsupported by the evidence.” State v. Boles,
Montgomery App. No. 23037, 2010-Ohio-278, ¶18, quoting Black’s Law Dictionary, Eighth
Edition (2004), at 11. Jones purports to offer arguments under both statutes.
{¶ 41} Pursuant to State v. Foster, 109 Ohio St.1, 2006-Ohio-856, a trial court is no
longer required to make findings or give reasons for the sentences that it imposes; the court
is vested with the full discretion to impose whatever prison term it chooses within the
statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37. Nevertheless, a
trial court must still consider the statutory factors. Id. at ¶38.
{¶ 42} Contrary to Jones’s claim to the contrary, the record illustrates that the trial
court did fully consider both the purposes and principles of sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors provided by R.C. 2929.12, and his
sentence is not contrary to law. Prior to imposing sentence, the trial court stated:
{¶ 43} “This is a crime that shocked the sensibilities of a community. This might
be the type of crime that you would expect in Los Angeles or New York City where they
have gangs and where it is said that there is a lot of crime running rampant.
{¶ 44} “But we are Midwesterners. We are known for being law-abiding citizens,
for being warm and generous and for having standards.
{¶ 45} “And so the thing that – and it should go on record that I have struggled with
15
this case. I have struggled to understand the whys.
{¶ 46} “I understand that you tried to limit the culpability of your client by noting for
me that this was a drug deal gone wrong, but that doesn’t give you any excuse because you
went to their house. You drove there in your wife’s car. And I kind of resent the letter that
you sent me saying I was desperate; it was a desperate situation. Because if you were that
desperate, you wouldn’t have driven up.
{¶ 47} “You created this situation, so you got to be held accountable for creating that
situation. And this community cannot tolerate the behavior that you have exhibited here.
{¶ 48} “In considering the purposes and principles of sentencing in Ohio Revised
Code Section 2929.11 and the seriousness and recidivism factors in Ohio Revised Code
2929.12 and also pursuant to Ohio Revised Code Section 2929.12(F), a prison term is
mandatory for a felony of the first or second degree * * *. Therefore, it is ordered that the
defendant, Anthony Wayne Jones, will be sentenced to a term of imprisonment at the Ohio
Department or Rehabilitation and Correction.”
{¶ 49} Jones also argues that the court violated R.C. 2929.11(B), which requires
that: “[a] sentence imposed for a felony * * * shall be consistent with sentences imposed for
similar crimes committed by similar offenders.”
{¶ 50} “R.C. 2929.11(B) imposes a duty upon the trial court to ensure consistency
among the sentences that it imposes. * * * [It is] also recognized, however, that trial courts
are limited in their ability to address this consistency mandate, and appellate courts are
hampered in their review of this issue, by the lack of a reliable body of data upon which they
can rely. * * * ‘[A]lthough a defendant cannot be expected to produce his or her own
16
database to demonstrate the alleged inconsistency, the issue must at least be raised in the
trial court and some evidence, however minimal, must be presented to the trial court to
provide a starting point for analysis and to preserve the issue for appeal.’ Having failed to
raise this issue at sentencing, [the defendant] cannot now argue that the sentence imposed by
the trial court was inconsistent with those imposed on similar offenders.” State v. Bell,
Greene App. No. 2004-CA-5, 2005-Ohio-655, ¶140, quoting State v. Roberts, Cuyahoga
App. No. 84070, 2005-Ohio-28, ¶60, internal citations omitted.
{¶ 51} Even if we accept Jones’s general statement that he objected to his sentence
to be sufficient, Jones provided the trial court with no “evidence, however minimal” to use
as a “starting point for analysis.” Furthermore, we note that Jones’s sentence was consistent
with that of his co-defendant who was ordered to serve 31 years in prison; Jones’s greater
sentence can be explained by the fact that he pled to an additional crime, and he was the man
who shot one of the victims.
{¶ 52} In support of his claim that his sentence was not comparable to similar crimes
committed by similar defendants, Jones directs our attention to just one case, State v.
Loparo, Cuyahoga App. No. 88229, 2007-Ohio-2783, which we find easily distinguishable
from the instant case. Loparo was sentenced to six years in prison after being convicted of
eleven crimes, including three counts each of felonious assault and robbery, two counts of
aggravated robbery, and one count each of theft, kidnapping, and abduction. Loparo
committed fewer crimes against only one victim rather than four separate individuals.
Additionally, although Loparo did seriously injure his victim, he did not use a gun in the
commission of his crimes, and we have no information concerning Loparo’s record or other
17
sentencing factors.
{¶ 53} Moreover, even if Loparo were a “similar offender” who committed “similar
crimes,” which we cannot find, we have serious reservations that one dissimilar sentence -
be it harsher or more lenient - provides the inconsistency prohibited by the law.
{¶ 54} We conclude that Jones’s sentence was not clearly and convincingly contrary
to law. Nor did the trial court abuse its discretion in imposing some consecutive sentences.
In the absence of any statute to the contrary, “it is a matter solely within the discretion of the
sentencing court as to whether sentences shall run consecutively or concurrently.” State v.
Nunez, Montgomery App. No. 22208, 2008-Ohio-3376, ¶8, quoting Stewart v. Maxwell
(1963), 174 Ohio St. 180, 181. See, also, State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320.
{¶ 55} Jones’s fourth and fifth assignments of error are overruled.
VI
{¶ 56} Jones’s convictions and sentence for four counts of kidnapping and five
counts of aggravated robbery are Reversed, and the judgment is Affirmed in all other
respects. The matter is Remanded to the trial court for further proceedings consistent with
this opinion, which shall include a hearing upon Jones’s motion to withdraw his plea, which
remained pending when this appeal was taken.
..........
GRADY, P.J. and BROGAN, J., concur.
(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
18
Andrew T. French
Brent E. Rambo
Hon. Frances E. McGee