State v. Furman

[Cite as State v. Furman, 2014-Ohio-20.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26825
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SAMANTHA L. FURMAN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 09 2587 (D)
DECISION AND JOURNAL ENTRY
Dated: January 8, 2014
HENSAL, Judge.
{¶1} Samantha Furman appeals her 18-year sentence for aggravated burglary and
aggravated robbery from the Summit County Court of Common Pleas. For the following
reasons, this Court affirms.
I.
{¶2} The following facts were recited by the prosecutor at Ms. Furman’s resentencing
hearing. Ms. Furman worked as a home health-care aide. While she was assigned to care for
James Allen, she told Michael Louthian how he could enter Mr. Allen’s house and where he
could find items of value in the house. On June 25, 2011, Mr. Louthian entered Mr. Allen’s
house with two other men. When they got inside, they were surprised to find that Mr. Allen was
awake, so they went back outside. A short time later, they reentered the house, assaulted Mr.
Allen, and took some of his personal property. Ms. Furman was scheduled to work at Mr.
Allen’s house the next day, but she did not show up. The following day, a home meal-delivery
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volunteer found Mr. Allen on the floor of his house unconscious. Ms. Furman later contacted
law enforcement officers and told them that Mr. Louthian had been involved in the incident.
{¶3} Although Ms. Furman claimed that the only reason she told Mr. Louthian about
Mr. Allen’s house was because he threatened her and her family, the Grand Jury indicted her for
aggravated burglary, aggravated robbery, felonious assault, grand theft, and theft from elderly.
Ms. Furman pleaded guilty to aggravated burglary and aggravated robbery. The trial court found
that the charges were not allied offenses, sentenced her to nine years in prison for each offense,
and ordered the terms to run consecutively. On appeal, this Court reversed Ms. Furman’s
sentence and ordered the trial court to resentence her applying the Ohio Supreme Court’s
decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. On remand, the court
applied Johnson and imposed the same sentence. Ms. Furman has appealed, assigning two errors
that this Court will review together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID
NOT MERGE THE SENTENCES FOR AGGRAVATED BURGLARY AND
AGGRAVATED ROBBERY WHICH WERE ALLIED OFFENSES OF
SIMILAR [IM]PORT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
ERROR IN SENTENCING THE APPELLANT-DEFENDANT TO PRISON
TERMS THAT WERE MORE THAN THE MINIMUM SENTENCE
PRESCRIBED BY LAW.
{¶4} In her first assignment of error, Ms. Furman argues that the trial court incorrectly
found that the aggravated burglary and aggravated robbery charges were not allied offenses
under Revised Code Section 2941.25(A). According to her, she was not present during the
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crimes, she did not receive a portion of the stolen property, she was not aware that Mr. Allen had
been injured until two days after the incident, and she was the first person to provide information
to law enforcement about the attack.
{¶5} Under Section 2941.25(A), “[if] 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.” In
Johnson, the Supreme Court held that, “[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.” Johnson at syllabus.
{¶6} This Court has recognized “the challenges inherent in allowing a criminal
defendant to raise, on appeal, an allied offense attack to a negotiated guilty plea because the
reviewing court has a limited record of facts, if any, upon which to make an allied offenses
analysis.” State v. Vitt, 9th Dist. Medina No. 11CA0071-M, 2012-Ohio-4438, ¶ 10. The
analysis is even more difficult if the record is incomplete. In this case, one source of facts that
was available to the trial court was the presentence investigation report, which the trial court
ordered the probation department to prepare before Ms. Furman’s sentencing hearing. Under
Section 2951.03(A)(1), a presentence investigation report must include “an inquiry into the
circumstances of the offense * * *.” Id. at ¶ 13. Section 2929.19(B)(1) provides that, if a
presentence investigation report is prepared in a case, the trial court must consider it before
imposing sentence.
{¶7} In this case, the record indicates that a presentence investigation was prepared,
and the prosecutor specifically referred to it at Ms. Furman’s first sentencing hearing. According
to the prosecutor, the report contained “many of the facts that are laid out in regards to the
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incident[.]” The presentence investigation report, however, has not been made part of the
appellate record. Under Appellate Rule 9, it was Ms. Furman’s “burden of providing an
adequate record of the trial court’s proceedings, including all the necessary transcripts and
documents, for this Court’s review.” Vitt at ¶ 12, quoting State v. Zeffer, 9th Dist. Summit Nos.
19893, 19963, 2000 WL 1825092, *7 (Dec. 13, 2000). In light of the fact that the record does
not contain the presentence investigation report, we do not have the same information that the
trial court had when it determined whether Ms. Furman’s offenses were allied under Section
2941.25(A). Accordingly, as in Vitt, “we must presume the validity of the trial court’s
sentencing with regard to its determination, pursuant to Johnson,” that the aggravated burglary
and aggravated robbery offenses do not merge. Id. at ¶ 13. Ms. Furman’s first assignment of
error is overruled.
{¶8} In her second assignment of error, Ms. Furman argues that the trial court abused
its discretion when it sentenced her to more than the minimum sentence and ordered the
sentences to run consecutively. She asserts that the only reason she told Mr. Louthian about Mr.
Allen’s house is because he threatened her. She also notes that she was not present during the
incident, and contends that she contacted law enforcement with information about the crimes as
soon as she learned that Mr. Allen had been injured. She also asserts that she does not have a
criminal record and was remorseful for her acts.
{¶9} As with her first assignment of error, because the record does not contain the
presentence investigation report, this Court is not able to adequately review the circumstances of
the offense, Ms. Furman’s criminal history, or the affect that the offenses had on Mr. Allen. See
Vitt at ¶ 13, citing R.C. 2951.03(A)(1). We, therefore, must presume the validity of the sentence
that the trial court imposed. Id. at ¶ 15. Ms. Furman’s second assignment of error is overruled.
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III.
{¶10} Because the appellate record does not contain the presentence investigation
report, we must presume the validity of Ms. Furman’s sentence. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR.
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APPEARANCES:
KERRY O’BRIEN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.