State v. Ellis , 2019 Ohio 427 ( 2019 )

[Cite as State v. Ellis, 2019-Ohio-427.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-17-035
WD-17-036
Appellee
Trial Court Nos. 2016CR0148
v. 2016CR0309
Edward A. Ellis, Jr. DECISION AND JUDGMENT
Appellant Decided: February 8, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney,
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Patrick T. Clark,
Assistant State Public Defender, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} This is a consolidated appeal from the judgments of the Wood County Court
of Common Pleas, convicting appellant, Edward Ellis, Jr., of one count of attempted
murder with two firearm specifications and a forfeiture specification, one count of having
weapons under disability, one count of violating a protection order, one count of carrying
a concealed weapon, and one count of receiving stolen property, and sentencing him to a
combined prison term of 20 years and 4 months. For the reasons that follow, we reverse,
in part, and affirm, in part.
I. Facts and Procedural Background
{¶ 2} On April 7, 2016, the Wood County Grand Jury entered a five-count
indictment against appellant in case No. 2016CR0148. The first count charged appellant
with one count of attempted murder in violation of R.C. 2903.02 and R.C. 2923.02, a
felony of the first degree, along with a one-year firearm specification pursuant to R.C.
2941.141(A), a three-year firearm specification pursuant to R.C. 2941.145(A), and a
forfeiture specification pursuant to R.C. 2941.1417(A). The second count charged
appellant with having a weapon under disability in violation of R.C. 2923.13(A)(2), a
felony of the third degree, along with a one-year firearm specification pursuant to R.C.
2941.141(A), a three-year firearm specification pursuant to R.C. 2941.145(A), and a
forfeiture specification pursuant to R.C. 2941.1417(A). Count Three charged appellant
with violating a protection order in violation of R.C. 2919.27(A)(1), a misdemeanor of
the first degree. Count Four charged appellant with carrying a concealed weapon in
violation of R.C. 2923.12(A)(2), a felony of the fourth degree, along with a three-year
firearm specification pursuant to R.C. 2941.145(A). Finally, the fifth count charged
appellant with receiving stolen property in violation of R.C. 2913.51(A), a felony of the
fourth degree.
2.
{¶ 3} Thereafter, on July 7, 2016, the Wood County Grand Jury separately
indicted appellant in case No. 2016CR0309 on one count of felonious assault in violation
of R.C. 2903.11(A)(1), a felony of the second degree, along with a one-year firearm
specification pursuant to R.C. 2941.141(A), a three-year firearm specification pursuant to
R.C. 2941.145(A), and a forfeiture specification pursuant to R.C. 2941.1417(A).
{¶ 4} Both of the indictments stemmed from appellant’s conduct on or about
March 23, 2016, wherein he shot his ex-wife multiple times with a .32 caliber revolver
that he purchased illegally.
{¶ 5} The matter proceeded to a three-day jury trial on May 10-12, 2017. The jury
returned with a verdict of guilty on all counts.
{¶ 6} Following the trial, the trial court sentenced appellant to 11 years in prison
on the count of attempted murder, with the corresponding one-year and three-year
firearm specifications for an aggregate sentence of 15 years in prison on Count One. On
the count of having weapons under disability, the trial court sentenced appellant to 30
months in prison. The court further found that the firearm specifications attached to
Count Two merged with those in Count One. On the misdemeanor count of violating a
protection order, the trial court ordered appellant to serve 180 days in the Wood County
Justice Center, and ordered those days to be served concurrently to appellant’s felony
sentences. On the count of carrying a concealed weapon, the trial court ordered appellant
to serve 17 months in prison. The court also found that the firearm specification attached
to Count Four merged with those attached to Count One. On the count of receiving
3.
stolen property, the trial court ordered appellant to serve a prison term of 17 months. The
trial court then ordered that the prison terms imposed in Counts One, Two, Four, and Five
shall be served consecutively, for a total prison term of 20 years and 4 months. Finally,
in case No. 2016CR0309, the trial court found that the count of felonious assault merged
with the count of attempted murder in case No. 2016CR0148.
II. Assignments of Error
{¶ 7} Appellant has timely appealed his judgments of conviction, and now asserts
two assignments of error for our review:
1. The trial court erred when it entered a conviction against Mr.
Ellis for fourth-degree felony receiving stolen property after it failed to
provide the jury with a verdict form that identified the degree of the offense
or the aggravating element that the stolen property was a firearm.
2. The trial court’s sentence including firearm specifications on
Count 2 and Count 4 of Case No. 2016CR0148 was contrary to law.
III. Analysis
{¶ 8} In his first assignment of error, appellant argues that the trial court
improperly convicted him of fourth-degree felony receiving stolen property because the
jury verdict form did not include the aggravating element that the stolen property was a
firearm. The state concedes that the trial court erred on this point.
{¶ 9} R.C. 2945.75(A)(2) provides, “A guilty verdict shall state either the degree
of the offense of which the offender is found guilty, or that such additional element or
4.
elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the
least degree of the offense charged.” “Pursuant to the clear language of R.C. 2945.75, a
verdict form signed by a jury must include either the degree of the offense of which the
defendant is convicted or a statement that an aggravating element has been found to
justify convicting a defendant of a greater degree of a criminal offense.” State v. Pelfrey,
112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, syllabus.
{¶ 10} Here, R.C. 2913.51(C) states, in relevant part, that receiving stolen
property is a misdemeanor of the first degree, unless the property involved is a firearm or
dangerous ordnance, in which case it is a felony of the fourth degree. However, the jury
verdict form in this case states simply, “We, the jury, duly empaneled, find the
Defendant, Edward Ellis, GUILTY of the offense of Receiving Stolen Property, as
described in R.C. 2913.51(A) and 2913.51(C).” Therefore, because the jury verdict form
does not state that the offense is a felony of the fourth degree, nor does it include a
statement finding the aggravating element that the property was a firearm, appellant can
only be guilty of receiving stolen property as a first degree misdemeanor.
{¶ 11} Accordingly, appellant’s first assignment of error is well-taken.
{¶ 12} In his second assignment of error, appellant argues that the trial court
improperly failed to dismiss the firearm specifications attached to Count Four (carrying a
concealed weapon) and Count Two (having a weapon under disability). The state agrees
that the firearm specifications should not have been part of the sentence for those counts.
5.
{¶ 13} We review felony sentences under the two-pronged approach set forth in
R.C. 2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-
425, ¶ 11. R.C. 2953.08(G)(2) provides that an appellate court “may increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing * * * * if it
clearly and convincingly finds: * * * (b) That the sentence is otherwise contrary to law.”
{¶ 14} R.C. 2929.14(B)(1)(e) provides that the trial court shall not impose any of
the prison terms for the firearm specifications described in R.C. 2929.14(B)(1)(a) upon
an offender for a violation of R.C. 2923.12 (carrying a concealed weapon). In addition, a
prison term for a firearm specification shall not be imposed upon an offender for a
violation of R.C. 2923.13 (having a weapon under disability) unless the offender
previously has been convicted of aggravated murder, murder, or any first or second
degree felony, and less than five years have passed since the offender was released from
prison or post-release control, whichever is later, for the prior offense. The state
concedes that those circumstances are not present in this case.
{¶ 15} Nevertheless, we hold that the trial court did not commit reversible error.
Here, the trial court did not impose prison terms for the firearm specifications attached to
Counts Four and Two, as the court found that those specifications merged with the
firearm specifications attached to Count One. Therefore, appellant’s sentence was not
contrary to R.C. 2929.14(B)(1)(e).
{¶ 16} Accordingly, appellant’s second assignment of error is not well-taken.
6.
{¶ 17} Finally, our review of appellant’s sentence has uncovered an error by the
trial court that was not raised by the parties, but which we will now address sua sponte.
Under Count One, the trial court imposed both the one-year firearm specification
pursuant to R.C. 2941.141 and R.C. 2929.14(B)(1)(a)(iii), and the three-year firearm
specification pursuant to R.C. 2941.145 and R.C. 2929.14(B)(1)(a)(ii). However, R.C.
2941.141(B) provides that “Imposition of a one-year mandatory prison term upon an
offender under division (B)(1)(a)(iii) of section 2929.14 of the Revised Code is precluded
if a court imposes [a] * * * three-year * * * mandatory prison term on the offender under
division (B)(1)(a) * * * (ii) * * * of that section relative to the same felony.” Thus,
because the trial court imposed the three-year firearm specification, it was statutorily
precluded from also imposing the one-year firearm specification on the same count. State
v. Freeman, 8th Dist. Cuyahoga No. 106363, 2018-Ohio-2936, ¶ 7.
IV. Conclusion
{¶ 18} For the foregoing reasons, we find that substantial justice has not been done
the party complaining and the judgments of the Wood County Court of Common Pleas
are reversed, in part, and affirmed, in part. Pursuant to our authority in App.R.
12(A)(1)(a), we hereby modify the trial court’s judgment in case No. 2016CR0148 to
reflect that appellant’s conviction for receiving stolen property under Count Five is for a
misdemeanor of the first degree. We further modify appellant’s sentence under Count
Five, and order him to serve 180 days in the Wood County Justice Center, with those
days ordered to be served concurrently with his felony sentences. In addition, we modify
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appellant’s sentence to remove the trial court’s imposition of “three (3) years optional
Post Release Control” on Count Five. Finally, we hereby modify appellant’s sentence
under Count One to remove the one-year firearm specification imposed pursuant to R.C.
2941.141(A). All other aspects of appellant’s convictions are affirmed. Accordingly,
appellant’s new cumulative prison term is 17 years and 11 months.1 Costs of this appeal
are to be split evenly between the parties pursuant to App.R. 24.
Judgment affirmed, in
part, and reversed, in part.
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
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, 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/.
1
Count One: 11 years plus the three-year firearm specification. Count Two: Two years
and six months (30 months). Count Four: One year and five months (17 months).
8.