State v. Penn

[Cite as State v. Penn, 2022-Ohio-4801.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Earle E. Wise, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case Nos. 22 COA 014 and 015
SAMUEL PENN, III
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos 21 CRI 059 and 060
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 29, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CHRISTOPHER R. TUNNELL SAMANTHA PUGH
PROSECUTING ATTORNEY SOROKA & ASSOCIATES LLC
NADINE HAUPTMAN 503 South Front Street
ASSISTANT PROSECUTOR Suite 205
110 Cottage Street, Third Floor Columbus, Ohio 43215
Ashland, Ohio 44805
Ashland County, Case Nos. 22 COA 014, 015 2
Wise, John, J.
{¶1} Plaintiff-Appellant the State of Ohio appeals the May 5, 2022, Judgment
Entry entered by the Ashland County Court of Common Pleas, sentencing Defendant-
Appellee Samuel Penn, III, in which the trial court failed to impose a consecutive sentence
for the firearm specification in Case No. 21-CRI-059 with the firearm specification in Case
No. 21-CRI-060.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} On March 12, 2021, an Ashland County Grand Jury indicted Defendant-
Appellee, Samuel Penn, Ill, in two separate, unrelated cases:
21-CRl-060
{¶4} On October 4, 2020, Deputy Taylor Temple, with the Ashland County
Sheriff's Office, observed Appellee Samuel Penn, III, speeding on State Route 30 and
effectuated a traffic stop. Upon approaching the vehicle, Deputy Temple detected the
odor of marijuana emanating from the vehicle, a red GMC SUV. He then conducted a
probable cause search, which led to the discovery of a Ruger .45 caliber handgun in the
center console, an ammunition clip in the glove box, marijuana in a backpack, an open
container of alcohol and Eutylone, a Schedule I drug .
{¶5} Appellee was charged with aggravated possession of drugs (Eutylone),
carrying a concealed weapon, and operating a vehicle under the influence of alcohol or a
drug of abuse or a combination thereof. The charges of aggravated possession of drugs
and carrying a concealed weapon each contained specifications.
Ashland County, Case Nos. 22 COA 014 and 015 3
Case No. 21-CRl-059
{¶6} On January 21, 2021, Appellee was again stopped for speeding on State
Route 30. This time Appellee was stopped by Deputy Kinter with the Ashland County
Sheriff’s office, who noticed a strong odor of burnt marijuana as he neared the vehicle, a
2007 Mercury. A probable cause search was conducted, which resulted in the seizure of
marijuana, a digital scale, several pills, more than 16 grams of methamphetamine, a
Ruger .45 caliber handgun and ammunition, and two .45 caliber rounds located in
Appellee’s pants pocket. Appellee was charged with aggravated possession of drugs
(methamphetamine) and carrying a concealed weapon, with specifications on each count.
{¶7} On August 17, 2021, the State moved for joinder of these cases, pursuant
to Crim.R. 8 and Crim.R. 13, for the purposes of judicial economy and conservation of
resources.
{¶8} On November 30, 2021, the trial court granted the State's motion, over
objection from Appellee, and joined the cases.
{¶9} Appellee ultimately plead guilty to all counts in each of his two cases.
{¶10} On April 25, 2022, the trial court held a sentencing hearing. In Case No. 21-
CRI-59, the trial court imposed an indefinite sentence of three (3) years to four and one-
half (4 ½ ) years. The court also imposed a mandatory one-year sentence for the firearm
specification to be served prior to and consecutively to the indefinite sentence. In Case
No. 21-CRI-60, the court imposed a nine (9) month prison sentence on the aggravated
possession of drugs charge plus a mandatory one-year sentence on the firearm
specification, to be served prior to and consecutively to the nine months.
Ashland County, Case Nos. 22 COA 014 and 015 4
{¶11} In imposing sentence, the trial court ran the two sentences for the two
charges concurrent to each other, as opposed to consecutive, including the two separate
one-year firearm specifications (one in each of the two cases). The State voiced its
objection at that time.
{¶12} On May 6, 2022, the trial court entered its sentencing order in both cases.
{¶13} Appellant now appeals, assigning the following errors for review:
ASSIGNMENT OF ERROR
{¶14} “I. TRIAL COURT ERRED IN ORDERING CONCURRENT PRISON
TERMS FOR FIREARM SPECIFICATIONS WHEN THE FELONIES WERE NOT
COMMITTED AS PART OF THE SAME ACT OR TRANSACTION AND AROSE IN TWO
DIFFERENT CASES.”
State’s Appeal
{¶15} Prior to considering the merits of the state's appeal, we will address the
state's right to appeal the sentence imposed by the trial court. The state filed its appeal
pursuant to R.C. 2953.08(B)(2), which provides, in pertinent part:
(B) In addition to any other right to appeal and except as provided in
division (D) of this section, a prosecuting attorney, * * * may appeal as a
matter of right a sentence imposed upon a defendant who is convicted of or
pleads guilty to a felony or, in the circumstances described in division (B)(3)
of this section the modification of a sentence imposed upon such a
defendant, on any of the following grounds:
***
(2) The sentence is contrary to law.
Ashland County, Case Nos. 22 COA 014 and 015 5
{¶16} Thus, the state argues it has a right to appeal the sentence rendered by the
trial court because it is contrary to law.
I.
{¶17} In its sole assignment of error, the state of Ohio argues that the trial court
erred in ordering concurrent sentences for firearm specifications in two separate,
unrelated cases. We agree.
{¶18} The sentence for a firearm specification is defined in R.C.
§2929.14(B)(1)(a), which provides:
(B)(1)(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:
***
(iii) A prison term of one year if the specification is of the type
described in division (A) of section 2941.141 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; …
{¶19} R.C. §2929.14(B)(1)(b) indicates that a sentence for these specifications,
except as provided for in R.C. 2929.14(B)(1)(g), should only arise once regarding crimes
committed as a single act or transaction.
Ashland County, Case Nos. 22 COA 014 and 015 6
{¶20} R.C. §2929.14(B)(1)(g), provides:
(g) If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated murder, murder,
attempted aggravated murder, attempted murder, aggravated robbery,
felonious assault, or rape, 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.
{¶21} This subsection does not apply here because Appellant was not convicted
of any of the crimes listed. However, R.C. §2929.14(C)(1)(a) specifies how sentences for
firearm specifications must be served. Subject to exceptions not relevant here,
if a mandatory prison term is imposed upon an offender pursuant to
division (B)(1)(a) of this section for having a firearm on or about the
offender's person or under the offender's control while committing a felony
*** the offender shall serve any mandatory prison term imposed under [this]
division consecutively to any other mandatory prison term imposed under
[this] division * * * consecutively to and prior to any prison term imposed for
the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section
or any other section of the Revised Code, and consecutively to any other
Ashland County, Case Nos. 22 COA 014 and 015 7
prison term or mandatory prison term previously or subsequently imposed
upon the offender.
{¶22} Id.{¶23} The state argues the trial court should have imposed consecutive prison
terms on Appellee for each of the firearm specifications attendant to each of Appellee’s
convictions because they were committed as separate acts or transactions.
{¶24} The Ohio Supreme Court has defined the term “transaction,” for purposes
of R.C. §2929.14(B)(1)(b) as “ ‘a series of continuous acts bound together by time, space
and purpose, and directed toward a single objective.’ ” State v. Wills, 69 Ohio St.3d 690,
691, 635 N.E.2d 370 (1994), quoting State v. Caldwell, 9th Dist. Summit No. 14720, 1991
WL 259529, 1991 Ohio App. LEXIS 5879 (Dec. 4, 1991). If the sentencing court
determines that the offenses and attendant firearm violations occurred at separate times,
locations, and to different victims, then they are not part of the same act or transaction for
purposes of R.C. §2929.14(B)(1)(b). State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347,
54 N.E.3d 80, ¶ 214 (holding that drive-by shootings and a murder that occurred on
different days and at different locations and involved different victims were not a single
transaction).
{¶25} At the sentencing hearing, the trial court made the following statements:
The Court: I don’t need findings to run a gun spec, the question here
is what is the basis and law for imposing gun specifications from two
different cases consecutive?
***
Ashland County, Case Nos. 22 COA 014 and 015 8
The Court: I got a gun spec in 21-CRI-059 that is mandatory, it has
to be run consecutive to any sentence for the offense in Count 1, so it runs
consecutive to that, and it would add a year to the minimum term for the
offense in Count 1 being a Felony of the Second Degree.
***
The Court: In Case 21-CRI-060, I have another gun spec, different
case, different date, different time, and it has to be run consecutive without
consecutive findings, it’s mandatory that it run consecutive to the Count 1
and Count 4 offenses, and the sentence imposed for those.
Now, my question is where do we get to the two-year mandatory
gun spec?
Sent. T. at 7-8.
***
Mr. Perez: Yes, the statute itself says it has to be a one-year
mandatory prison term. These are two separate offenses, Your Honor, and
these are two separate cases, and they have to be run consecutive. If you
do not do so, we are going to lodge the objection and push the issue for
appeal.
The Court: Okay. Well you can do that I am finding that the statute
doesn’t require two consecutive mandatory specification sentencings in two
separate cases. The state chose to charge these two cases rather than one
indictment, in two separate indictments, consecutively numbered, and I
Ashland County, Case Nos. 22 COA 014 and 015 9
don’t think that this court has the authority to impose those gun
specifications consecutive to each other without a consecutive finding.
{¶26} Sent. T. at 10.
{¶27} As previously stated, R.C. §2929.14(C)(1)(a) generally requires
consecutive service of all firearm specifications. R.C. §2929.14(B)(1)(b) provides an
exception to the consecutive service of firearm specifications mandated by R.C.
2929.14(C)(1)(a), if they were committed as part of the same act or transaction. However,
R.C. §2929.14(B)(1)(b) provides an exception to the exception “as provided in R.C.
2929.14(B)(1)(g).” Thus, R.C. §2929.14(B)(1)(g), which requires consecutive prison
terms on the two most serious specifications in certain specified situations, only applies
if the underlying felonies and attendant firearm specifications were committed as part of
the same act or transaction. See, e.g., State v. Burton, 8th Dist. Cuyahoga No. 105470,
2018-Ohio-95 (Court must impose consecutive prison terms on firearm specifications that
were not committed as part of the same act or transaction.). If the felonies and attendant
firearm specifications were committed separately, then the trial court must follow the
default rule set forth in R.C. §2929.14(C)(1)(a), which requires mandatory consecutive
service of all firearm specifications.
{¶28} Therefore, the trial court was required to impose consecutive service for the
two firearm specifications - one for each case. The trial court did not have discretion to
order the two sentences for the firearm specifications concurrent to each other across two
cases.
Ashland County, Case Nos. 22 COA 014 and 015 10
{¶29} Here, the trial court failed to comply with this mandatory sentencing
provision when it failed to impose consecutive prisons terms on both firearm
specifications even though it found they were committed as separate transactions.
{¶30} Appellant's sole assignment of error is sustained
{¶31} The judgment of the Court of Common Pleas, Ashland County, Ohio, is
reversed and remanded for resentencing consistent with the law and this opinion.
By: Wise, John, J.
Wise, Earle, P. J., and
Baldwin, J., concur.
JWW/kw 1228
Ashland County, Case Nos. 22 COA 014, 015 11