State v. Price

[Cite as State v. Price, 2014-Ohio-4065.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 13AP-1085
(C.P.C. No. 12CR-4513)
v. : and
No. 13AP-1086
Joshua L. Price, : (C.P.C. No. 13CR-3719)
Defendant-Appellant. : (ACCELERATED CALENDAR)
D E C I S I O N
Rendered on September 18, 2014
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
for appellee.
William T. Cramer, for appellant.
APPEALS from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} In these consolidated appeals, defendant-appellant, Joshua L. Price, appeals
the sentence imposed upon him by the Franklin County Court of Common Pleas following
his convictions for multiple felonies. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} These cases stem from three different robberies on two different dates at
Noodles & Company, Chipotle, and Red Skye Wireless. As a result of these incidents,
appellant was indicted under two case numbers for 35 felonies, including aggravated
robbery, robbery, aggravated burglary, attempted aggravated burglary, and kidnapping,
each charge with a firearm specification pursuant to R.C. 2941.145. In case No. 12CR-
4513, pertaining to the robberies at Noodles & Company and Chipotle, appellant pled
Nos. 13AP-1085 and 13AP-1086 2
guilty to eight counts of aggravated robbery and one count of attempted aggravated
burglary, each with a three-year firearm specification. In case No. 13CR-3719, pertaining
to the robbery at Red Skye Wireless, appellant pled guilty to one count of aggravated
robbery without a firearm specification. The trial court accepted appellant's guilty pleas.
A nolle prosequi was entered as to the remaining charges and specifications.
{¶ 3} The trial court sentenced appellant to 22 years of incarceration. Of that
time, 12 years represented 4, 3-year firearm specification sentences imposed
consecutively. Two of those firearm specifications stemmed from the aggravated robbery
and attempted aggravated burglary at Noodles & Company, and the other two firearm
specifications stemmed from two counts of aggravated robbery at Chipotle.
II. ASSIGNMENT OF ERROR
{¶ 4} Appellant presents us with one assignment of error to review:
The trial court violated R.C. 2929.14(B)(1)(b) by imposing
multiple firearm-use specifications where the firearm was
only used in a single act or transaction.
III. DISCUSSION
{¶ 5} Under appellant's sole assignment of error, he argues the trial court erred by
sentencing him to serve four, three-year prison terms consecutively for firearm
specifications. Appellant acknowledges that the robberies at Noodles & Company and
Chipotle were separate events. He argues, pursuant to R.C. 2929.14(B)(1)(b), the trial
court was only authorized to impose one, three-year prison term for the firearm
specifications stemming from each robbery, resulting in a total of two, three-year prison
terms that could be imposed consecutively. We disagree.
{¶ 6} We review felony sentences to determine whether clear and convincing
evidence establishes that the sentence is contrary to law. State v. Ayers, 10th Dist. No.
13AP-371, 2014-Ohio-276, ¶ 8, citing State v. Allen, 10th Dist. No. 10AP-487, 2011-Ohio-
1757, ¶ 19-21, citing State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19;
State v. Stubbs, 10th Dist. No. 13AP-810, 2014-Ohio-3696, ¶ 15. "A sentence is contrary
to law when the trial court failed to apply the appropriate statutory guidelines." Ayers at
¶ 8, citing Burton at ¶ 19.
Nos. 13AP-1085 and 13AP-1086 3
{¶ 7} Furthermore, appellant did not object to his sentence before the trial court;
thus, he has waived all but plain error. See Crim.R. 52(B); State v. Wilson, 10th Dist. No.
12AP-551, 2013-Ohio-1520, ¶ 8. Under Crim.R. 52(B), "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." In order to constitute plain error, an error "must be obvious on the record,
palpable, and fundamental such that it should have been apparent to the trial court
without objection." State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing
State v. Tichon, 102 Ohio App. 3d 758, 767 (9th Dist.1995). We notice plain error " ' "with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice." ' " State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-3397, ¶ 56,
quoting State v. Barnes, 94 Ohio St. 3d 21, 27 (2002), quoting State v. Long, 53 Ohio St. 2d
91 (1978), paragraph three of the syllabus.
{¶ 8} Appellant's argument is based entirely on R.C. 2929.14(B)(1)(b). He
neglects, however, to acknowledge the exception within that provision directing him to
R.C. 2929.14(B)(1)(g). See State v. Lewis, 11th Dist. No. 2012-L-074, 2013-Ohio-3974,
¶ 102 ("As to the imposition of multiple three-year terms for firearm specifications, R.C.
2929.14(B)(1)(b) generally states that multiple terms are not permissible when the
underlying felonies were "committed as part of the same act or transaction." However,
R.C. 2929.14(B)(1)(b) also expressly provides that an exception to the foregoing general
rule is set forth in division (B)(1)(g) of the statute.").
{¶ 9} R.C. 2929.14(B)(1) states in relevant part:
(a) Except as provided in division (B)(1)(e) of this section, if
an offender who is convicted of or pleads guilty to a felony
also is convicted of or pleads guilty to a specification of the
type described in section 2941.141, 2941.144, or 2941.145 of
the Revised Code, the court shall impose on the offender one
of the following prison terms:
***
(ii) A prison term of three years if the specification is of the
type described in section 2941.145 of the Revised Code that
charges the offender with having a firearm on or about the
offender's person or under the offender's control while
committing the offense and displaying the firearm,
Nos. 13AP-1085 and 13AP-1086 4
brandishing the firearm, indicating that the offender
possessed the firearm, or using it to facilitate the offense;
***
(b) If a court imposes a prison term on an offender under
division (B)(1)(a) of this section, the prison term shall not be
reduced pursuant to section 2967.19, section 2929.20, section
2967.193, or any other provision of Chapter 2967. or Chapter
5120. of the Revised Code. Except as provided in division
(B)(1)(g) of this section, a court shall not impose more than
one prison term on an offender under division (B)(1)(a) of this
section for felonies committed as part of the same act or
transaction.
***
(g) If an offender is convicted of or pleads guilty to two or
more felonies, if one or more of those felonies [is] * * *
aggravated robbery * * *, and if the offender is convicted of or
pleads guilty to a specification of the type described under
division (B)(1)(a) of this section in connection with two or
more of the felonies, the sentencing court shall impose on the
offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of
which the offender is convicted or to which the offender
pleads guilty and, in its discretion, also may impose on the
offender the prison term specified under that division for any
or all of the remaining specifications.
(Emphasis added).
{¶ 10} In this case, appellant pled guilty to nine felonies committed as part of two
separate incidents. Appellant pled guilty to aggravated robbery and attempted aggravated
burglary along with two firearm specifications in connection with the Noodles & Company
robbery. As it pertains to the Chipotle robbery, appellant pled guilty to seven counts of
aggravated robbery with seven firearm specifications.
{¶ 11} Each incident resulted in appellant pleading guilty to two or more felonies,
one of which was aggravated robbery, and the firearm specifications were of the type
listed in R.C. 2929.14(B)(1)(a). Accordingly, R.C. 2929.14(B)(1)(g) required the trial court
to impose on appellant a prison term for each of the "two most serious specifications" to
Nos. 13AP-1085 and 13AP-1086 5
which appellant pled guilty. See State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-
2735, ¶ 82, citing State v. Isreal, 12th Dist. No. CA2011-11-115, 2012-Ohio-4876, ¶ 71. All
of the firearm specifications appellant pled guilty to required three-year prison terms
pursuant to R.C. 2929.14(B)(1)(a)(ii). Therefore, the trial court was required by statute to
impose at least two, three-year prison terms for the firearm specifications attendant to
appellant's crimes committed at both Noodles & Company and Chipotle. See State v.
Dennison, 10th Dist. No. 12AP-718, 2013-Ohio-5535, ¶ 88-89, citing Lewis at ¶ 100-04,
and State v. Carson, 10th Dist. No. 11AP-809, 2012-Ohio-4501, ¶ 8-11; State v. Taylor,
10th Dist. No. 12AP-870, 2013-Ohio-3699, ¶ 55. Furthermore, we note R.C.
2929.14(B)(1)(g) conferred upon the trial court discretionary authority to impose
additional prison terms for appellant's remaining firearm specifications, which the trial
court chose not to do. Isreal at ¶ 71, citing State v. Cassano, 8th Dist. No. 97228, 2012-
Ohio-4047, ¶ 34; State v. Clay, 4th Dist. No. 11CA23, 2013-Ohio-4649, ¶ 72.
{¶ 12} Finally, we note appellant does not challenge the portion of his sentence
stemming from the Red Skye Wireless store robbery in case No. 13CR-3719 because he
did not plead guilty to a firearm specification in that case. Appellant's conviction and
sentence in case No. 13CR-3719 need not be addressed since his assigned error only
pertains to his sentence for firearm specifications.
{¶ 13} The portion of appellant's sentence requiring him to serve four, three-year
prison terms for firearm specifications in case No. 12CR-4513 is not contrary to law. We
notice no plain error. Appellant's single assignment of error is overruled.
IV. CONCLUSION
{¶ 14} Having overruled appellant's single assignment of error, the judgments of
the Franklin County Court of Common Pleas are affirmed.
Judgments affirmed.
CONNOR and DORRIAN, JJ., concur.