State v. Pattson

[Cite as State v. Pattson, 2022-Ohio-150.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 29028 and 29029
:
v. : Trial Court Case Nos. 2019-CR-4013
: and 2019-CR-4052/1
DARRIUS PATTSON :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 21st day of January, 2022.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ALAN D. GABEL, Atty. Reg. No. 0025034, P.O. Box 1423, Dayton, Ohio 45401
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Darrius Pattson, appeals from his convictions in the
Montgomery County Court of Common Pleas after pleading guilty to several offenses in
Case Nos. 2019-CR-4052/1 and 2019-CR-4013. In support of his appeal, Pattson
contends that his guilty pleas were not knowingly, intelligently, and voluntarily entered
because the trial court’s plea colloquy failed to inform him of his constitutional right to
compulsory process for obtaining witnesses and failed to properly notify him of his
maximum possible prison sentences. Pattson also contends that the trial court erred by
failing to merge his aggravated burglary, aggravated robbery, and aggravated menacing
offenses as allied offenses of similar import. For the reasons outlined below, the
judgments of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On March 12, 2020, a Montgomery County grand jury returned a nine-count
indictment in Case No. 2019-CR-4052/1 charging Pattson with one count of aggravated
burglary, a felony of the first degree; two counts of aggravated robbery, both felonies of
the first degree; one count of kidnapping, a felony of the first degree; one count of having
weapons while under disability, a felony of the third degree; two counts of aggravated
menacing, both misdemeanors of the first degree; one count of cruelty to a companion
animal, a misdemeanor of the first degree; and one count of grand theft, a felony of the
fourth degree. The charges for aggravated burglary, aggravated robbery, kidnapping,
and having weapons while under disability each carried a three-year firearm specification.
The charges for aggravated burglary, aggravated robbery, and kidnapping also carried a
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repeat violent offender specification.
{¶ 3} The aforementioned charges and specifications arose from a home invasion
at the residence of James and Rhonda Beetem. It was alleged that Pattson and an
accomplice kicked in the front door to the Beetems’ residence after Pattson had his
younger brother knock on the Beetems’ door and ask to use the phone. During the
invasion, Pattson and his accomplices threatened to kill the Beetems and their young
children at gunpoint, injured their six-month-old puppy by shooting it, and stole various
items of property from the Beetems’ home. It was also alleged that Pattson and his
accomplices forced Mrs. Beetem into the Beetems’ vehicle at gunpoint and ordered her
to drive them to an ATM to withdraw cash from her bank account. After taking the
withdrawn cash, Pattson and his accomplices left Mrs. Beetem in an alley and drove away
in the Beetems’ vehicle.
{¶ 4} On November 20, 2020, Pattson pled guilty to all the charges in the
indictment. Pattson also pled guilty to charges in Case No. 2019-CR-4013 for failure to
comply with the order or signal of a police officer, having weapons while under disability,
carrying a concealed weapon, and receiving stolen property. The four charges in Case
No. 2019-CR-4013 arose from a separate incident during which Pattson fled from the
police after he was discovered driving a stolen vehicle with a firearm in his possession.
After accepting Pattson’s guilty pleas in both cases, the trial court ordered a presentence
investigation report (“PSI”) and scheduled the matters for sentencing.
{¶ 5} On December 30, 2020, the trial court sentenced Pattson in both Case Nos.
2019-CR-4052/1 and 2019-CR-4013. With regard to Case No. 2019-CR-4052/1, the trial
court imposed an indefinite sentence of six years to nine years in prison for aggravated
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burglary. The trial court also imposed an indefinite sentence of six years to nine years
in prison for each count of aggravated robbery and kidnapping, and it ordered those
sentences to be served concurrently with the sentence imposed for aggravated burglary.
The trial court additionally imposed 36 months in prison for having weapons while under
disability, 180 days in jail for each of the aggravated menacing charges and the cruelty to
a companion animal charge, and 18 months in prison for grand theft. Each of those
sentences were ordered to run concurrently with each other and concurrently with the
indefinite six-year-to-nine-year sentence imposed for the aggravated burglary,
aggravated robbery, and kidnapping offenses.
{¶ 6} As for the firearm specifications, the trial court ordered the three-year firearm
specification attached to aggravated burglary to be served consecutively with the three-
year firearm specification attached to one of the aggravated robbery offenses. The trial
court ordered those two firearm specifications to be served prior and consecutive to the
indefinite six-year-to-nine-year sentence imposed for the offenses. All of the other
firearm specifications were ordered to run concurrently with each other and concurrently
with the two consecutive firearm specifications. The trial court did not impose a sentence
for any of the repeat violent offender specifications. Accordingly, the trial court imposed
an aggregate, indefinite sentence of 12 years to 15 years in prison for Case No. 2019-
CR-4052/1.
{¶ 7} For Case No. 2019-CR-4013, the trial court imposed one year in prison for
failure to comply with the order or signal of a police officer, nine months in prison for
having weapons while under disability, six months in prison for carrying a concealed
weapon, and six months in prison for receiving stolen property. The trial court ordered
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the nine and six month sentences to be served concurrently with each other and
consecutively with the one-year sentence imposed for failure to comply. Accordingly,
the trial court imposed an aggregate sentence of one year and nine months in prison for
Case No. 2019-CR-4013.
{¶ 8} The trial court ordered the prison sentences in Case Nos. 2019-CR-4052/1
and 2019-CR-4013 to be served consecutively. Therefore, for both cases, the trial court
imposed a total, indefinite sentence of 13 years and 9 months to 16 years and 9 months
in prison.
{¶ 9} Pattson now appeals from his conviction, raising three assignments of error
for review.
First and Second Assignments of Error
{¶ 10} Under his first and second assignments of error, Pattson claims that his
guilty pleas were not knowingly, intelligently, and voluntarily entered because, at the plea
hearing, the trial court failed to: (1) inform him of his constitutional right to compulsory
process for obtaining witnesses; and (2) properly notify him of the maximum possible
prison sentences he could receive for his offenses. Based on these alleged failures,
Pattson asks this court to vacate his guilty pleas.
Crim.R. 11(C) and the Vacation of Guilty Pleas
{¶ 11} “In determining whether to accept a guilty plea, the trial court must
determine whether the defendant knowingly, intelligently, and voluntarily entered the
plea.” State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 13,
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citing State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988). “In order for a plea
to be given knowingly and voluntarily, the trial court must follow the mandates of Crim.R.
11(C).” Id. Pursuant to Crim.R. 11(C)(2), the trial court may not accept a defendant’s
guilty plea to a felony offense without first addressing the defendant personally and:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant's favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
Crim.R. 11(C)(2)(a)-(c).
{¶ 12} A defendant is generally “not entitled to have his plea vacated unless he
demonstrates he was prejudiced by a failure of the trial court to comply with the provisions
of Crim.R. 11(C).” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286,
¶ 16, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). There are,
however, two exceptions to this rule.
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{¶ 13} The first exception concerns the constitutional rights advisement under
Crim.R. 11(C)(2)(c). “When a trial court fails to explain the constitutional rights that a
defendant waives by pleading guilty or no contest, we presume that the plea was entered
involuntarily and unknowingly, and no showing of prejudice is required.” Id. at ¶ 14, citing
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31. The second
exception occurs when a trial court completely fails to comply with a portion of Crim.R.
11(C), as this also “eliminates the defendant’s burden to show prejudice.” Id. at ¶ 15,
citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
“Aside from these two exceptions, * * * a defendant is not entitled to have his plea vacated
unless he demonstrates he was prejudiced by a failure of the trial court to comply with the
provisions of Crim.R. 11(C).” Id. at ¶ 16, citing Nero at 108. “The test for prejudice is
‘whether the plea would have otherwise been made.’ ” Id., quoting Nero at 108.
Compulsory Process Advisement – Crim.R. 11(C)(2)(c)
{¶ 14} Pattson first argues that his guilty pleas were not knowingly, intelligently,
and voluntarily entered because the trial court failed to strictly comply with the
constitutional compulsory process advisement set forth in Crim.R. 11(C)(2)(c).
Specifically, Pattson claims that the trial court erred in advising him that by pleading guilty
he was waiving his “right to subpoena witness on his behalf” as opposed to his right to
“compulsory process for obtaining witnesses,” which is the specific language used in
Crim.R. 11(C)(2)(c). Pattson asserts that the trial court’s failure to adhere to the
language in Crim.R. 11(C)(2)(c) and its failure to use the term “compulsory process”
during its plea colloquy renders his guilty pleas invalid. We disagree.
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{¶ 15} While strict compliance with the constitutional advisements in Crim.R.
11(C)(2)(c) is required, Pattson “mistakenly equates strict compliance with a requirement
that the judge recite the provisions of Crim.R. 11(C)(2)(c) almost verbatim.” State v.
Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 17. In Miller, the
Supreme Court of Ohio stressed that it “refuse[d] to require trial courts to use particular
words during the plea colloquy” and recognized that it has “never mandated that a trial
court use particular words in order to comply with Crim.R. 11(C)(2)(c).” Id. at ¶ 21 and ¶
17, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 29 and
State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph two of the syllabus.
{¶ 16} In Ballard, the Supreme Court explained that:
Failure to use the exact language contained in Crim.R. 11(C), in
informing a criminal defendant of his constitutional right to a trial and the
constitutional rights related to such trial, including the right to trial by jury, is
not grounds for vacating a plea as long as the record shows that the trial
court explained these rights in a manner reasonably intelligible to that
defendant.
Ballard at paragraph two of the syllabus.
{¶ 17} Therefore, “a rote recitation of Crim.R. 11(C) is not required, and failure to
use the exact language of the rule is not fatal to the plea.” Id. at 480. “ ‘[A] trial court
can still convey the requisite information on constitutional rights to the defendant even
when the court does not provide a word-for-word recitation of [Crim.R. 11(C)(2)(c)], so
long as the trial court actually explains the rights to the defendant.’ ” State v. Courtney,
2d Dist. Clark No. 2013-CA-73, 2014-Ohio-1659, ¶ 8, quoting Veney at ¶ 27.
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{¶ 18} In State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826,
the Supreme Court of Ohio held that “a trial court complies with Crim.R. 11(C)(2)(c) when
its explanation of the constitutional right to compulsory process of witnesses is described
to the defendant during the plea colloquy as the ‘right to call witnesses to speak on your
behalf.’ ” Barker at ¶ 27. The court in Barker also held that “an alleged ambiguity during
the plea colloquy may be clarified by reference to other portions of the record, including
the written plea.” Id.{¶ 19} More recently, in Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d
617, the Supreme Court of Ohio held that there was strict compliance with Crim.R.
11(C)(2)(c) where the trial court explained that the defendant’s “lawyer [could] issue
subpoenas to select [his] witnesses, get them on the witness stand” and that “[t]he Court
[would] enforce those subpoenas to help [him] get them here to testify for [him].” Id. at ¶
20-22. Accord State v. Jones, 5th Dist. Knox No. 20CA000020, 2021-Ohio-1864, ¶ 13
and ¶ 19-24 (holding that the trial court strictly complied with the compulsory process
advisement in Crim.R. 11(C)(2)(c) by saying: “[Y]ou understand that at the trial your
attorney could have obtained witnesses by subpoena to testify in your defense?”).
{¶ 20} Prior to Barker and Miller, other courts, including this one, have similarly
held that language indicating that the defendant was waiving his right to call or subpoena
witnesses on his behalf was sufficient for strict compliance with the compulsory process
advisement. See, e.g., State v. Moorefield, 2d Dist. Champaign No. 99CA4, 1999 WL
1125121, *2 (Oct. 8, 1999) (holding that a trial court’s explanation that defendant would,
by his plea, waive his “right to make witnesses attend and testify” strictly complied with
Crim.R. 11(C)(2)(c)); State v. Ward, 2d Dist. Montgomery No. 21044, 2006-Ohio-832,
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¶ 12 (holding that a statement that the defendant was “giving up [his] right to have [his]
own witnesses come in here and testify for [him]” was sufficient for strict compliance);
State v. Senich, 8th Dist. Cuyahoga No. 82581, 2003-Ohio-5082, ¶ 31 (holding that when
explaining the right to compulsory process “it is also sufficient for the trial court to explain
that the defendant has the right to subpoena witnesses”); State v. Parks, 8th Dist.
Cuyahoga No. 86312, 2006-Ohio-1352, ¶ 17 (holding that “the use of word ‘subpoena’
adequately informs defendant of his right to compulsory process”); State v. Coleman, 9th
Dist. Summit No. 26008, 2012-Ohio-1712, ¶ 9-11 (holding that a statement indicating that
“by pleading guilty [defendant] was giving up the right to have his counsel ‘subpoena and
cross-examine witnesses’ ” was sufficient to comply with Crim.R. 11(C)(2)(c)).
{¶ 21} In this case, the trial court made the following advisement at the plea
hearing regarding the constitutional rights that Pattson was waiving by entering his guilty
pleas:
THE COURT: Okay. Do you understand that by pleading guilty,
you’re giving up your right to a jury trial?
DEFENDANT: Yes.
THE COURT: When you give up that right, you give up other rights
including the right to confront or face witnesses against
you; the right to subpoena witnesses on your
behalf to attend and to testify; and the right to require
the State to prove your guilt beyond a reasonable
doubt; and the right to remain silent. You cannot be
forced to testify against yourself at trial and if you elect
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not to testify, your silence cannot be used against you
in any way. Do you understand you’re giving up those
rights?
DEFENDANT: Yes.
(Emphasis added.) Plea Hearing Trans. (Nov. 25, 2020), p. 6.
{¶ 22} During the plea hearing, Pattson also indicated that he understood the
written plea form and signed the form. The written plea form stated, in relevant part, the
following:
The Court informed me and I understand that by pleading guilty I am
waiving (giving up) my rights to a jury trial; to confront witnesses against
me; to have compulsory process for obtaining witnesses in my favor;
and to require the State to prove my guilt beyond a reasonable doubt at a
trial at which I cannot be compelled to testify against myself.
(Emphasis added.) Waiver and Plea (Dec. 3, 2020), Montgomery C.P. No. 2019-CR-
04052/1.
{¶ 23} Upon review, we find that the trial court’s oral advisement at the plea
hearing stating that Pattson was waiving “the right to subpoena witnesses on [his] behalf
to attend and to testify” and the portion of the written plea form stating that Pattson
understood that he was waiving his right “to have compulsory process for obtaining
witnesses in [his] favor” properly informed Pattson of his constitutional right to compulsory
process. At no point in time did Pattson claim that he did not understand this right or the
other constitutional rights that he was waiving by pleading guilty. Accordingly, we find
that the trial court strictly complied with Crim.R. 11(C)(2)(c) and that Pattson knowingly,
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intelligently, and voluntarily waived his right to compulsory process.
Maximum Penalty Advisement – Crim.R. 11(C)(2)(a)
{¶ 24} Pattson next claims that his guilty pleas were not knowingly, intelligently,
and voluntarily entered because the trial court’s plea colloquy failed to sufficiently notify
him of the maximum possible prison sentences he could receive by pleading guilty. In
so arguing, Pattson takes issue with the trial court’s initially advising him that he would
receive between 9 to 15 years in prison in Case No. 2019-CR-4052/1 and then correcting
that statement to reflect the application of the Reagan Tokes Law and indefinite
sentencing. In doing so, the trial court stated the following at the plea hearing:
THE COURT: [T]he minimum sentence you could potentially receive
on 2019-CR-4052, if all counts were run concurrently,
would be nine years. Is that correct [prosecutor]
Niles?
MS. NILES: Yes, Your Honor.
THE COURT: And so the minimum sentence that you will be receiving
in this case will be a minimum sentence of nine years.
But what the Court has indicated to not only the State
of Ohio[,] but as well as your counsel here is that at the
end of this case and sentencing, you will receive a
sentence of between nine and 15 years. So you will
receive potentially a nine-year sentence all the way
up to a 15-year sentence[,] but nothing greater than
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a 15-year sentence. Do you understand that?
DEFENDANT: Yes.
THE COURT: And is that your understanding then of what you’ll be
pleading to and what the sentence will ultimately be in
this case?
DEFENDANT: Yes.
MS. NILES: Your Honor, just for clarity’s purpose. That 15 years
does not include the Reagan Tokes amount, does
it?
THE COURT: That will – no, because that will have to be an end
part of that. The minimum sentence you’ll get is 15
years but the state legislature has required that if I
were to give you a 15-year sentence there’s an
indefinite part of that. And we’ll go through that at
the sentencing; okay?
DEFENDANT: Okay.
THE COURT: Do you understand that? So no, Ms. Niles, it does
not.
MS. NILES: Thank you.
DEFENDANT: Okay. All right.
(Emphasis added.) Plea Hearing Trans. (Nov. 25, 2020), p. 3-4.
{¶ 25} Pattson also takes issue with the trial court’s using a hypothetical sentence
at the plea hearing to explain the indefinite nature of the sentences he could receive for
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his first-degree felonies in Case No. 2019-CR-4052/1. In doing so, the trial court stated
the following at the plea hearing:
THE COURT: * * * So each [first-degree-felony] count requires a
mandatory sentence of anywhere between three and
11 years. Okay?
DEFENDANT: Yes.
THE COURT: Now, because the state legislature has put in place an
indefinite sentence – what that means is whatever
sentence I give you, between three and 11 years, there
is an indefinite end to that. So whatever sentence I
give you, it is presumed that you will be released at the
end of that particular prison sentence. Do you
understand that?
DEFENDANT: Yes.
THE COURT: But if there are certain things that happen while you’re
in prison, at the end of that minimum sentence,
whatever that sentence is between three and 11 years
that I give you, the Department of Rehabilitation and
Corrections can hold a hearing * * * and if they make
certain determinations of your behavior while you are
in prison – what security level that you were at, if there
are any other issues, rule infractions or otherwise – that
indicate to them that they should not release you at the
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end of whatever sentence I give to you, they – the
Department of Rehabilitations can hold a hearing,
make those determinations and keep you for longer.
And here’s how that works. Let’s assume that I give
you a sentence of four years. Okay?
DEFENDANT: Yes.
THE COURT: The indefinite sentence by the legislature is half of
four which is two, right?
DEFENDANT: Yes.
THE COURT: So your sentence then would be four to six years.
So at the end of four years it’s presumed that you
would be released from prison but if the
Department of Rehabilitation and Corrections
makes certain determinations at a hearing, they
could keep you up to six years. Do you understand
that?
DEFENDANT: Yes.
***
THE COURT: All right. So I want to go back then. So each of these
are felonies of the first degree and they carry a
mandatory sentence of between three and 11 years but
that maximum end time would be 11 to 16 ½ years.
Okay? Do you understand that?
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DEFENDANT: Yes.
THE COURT: Because half of 11 is 5 ½. You add 11 plus 5 ½ that’s
where we get to the 16 ½. Okay?
DEFENDANT: Yes.
THE COURT: All right. So you understand then the maximum
sentence you could get then would be 11 to 16 ½
years.
DEFENDANT: Yes.
(Emphasis added.) Plea Hearing Trans. (Nov. 25, 2020), p. 14-16.
{¶ 26} Because the maximum penalty advisement required under Crim.R.
11(C)(2)(a) is a non-constitutional advisement, and because the trial court in this case did
not completely fail to comply with that advisement at the plea hearing, Pattson must
establish that he was prejudiced by the trial court’s explanation of his maximum possible
sentence in order to vacate his guilty pleas. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765,
164 N.E.3d 286, at ¶ 15-16. As previously discussed, “[t]he test for prejudice is ‘whether
the plea would have otherwise been made.’ ” Id. at ¶ 16, quoting Nero, 56 Ohio St.3d at
108, 564 N.E.2d 474.
{¶ 27} In this case, Pattson cannot establish that he was prejudiced by the trial
court’s advising him at the plea hearing that he would receive between 9 to 15 years in
prison for Case No. 2019-CR-4052/1. This is because the trial court ultimately imposed
an indefinite sentence of 12 years to 15 years in prison, which is within the 9-to-15-year
range that was discussed at the plea hearing. Even if we consider the fact that the trial
court ordered the indefinite 12-year-to-15-year sentence to be served consecutively with
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the 1-year-9-month sentence imposed in Case No. 2019-CR-4013, the total, aggregate
sentence for those cases was an indefinite sentence of 13 years and 9 months to 16
years and 9 months, which was still within the range discussed at the plea hearing. It is
still within the 9-to-15-year range because the trial court explained that the indefinite part
of the sentence, i.e., the 16 years and 9 months, was not factored into the 15-year
maximum. Because Pattson’s sentence was in accord with the trial court’s statements
at the plea hearing, and because Pattson indicated that he understood the trial court’s
statements, Pattson cannot establish that he suffered any prejudice as a result of the trial
court’s stating that he would receive a sentence between 9 to 15 years in prison.
{¶ 28} We also find that the trial court’s explanation of the indefinite sentencing
scheme and the maximum possible indefinite sentence that Pattson could receive for
each of his first-degree felonies was correct. The advisement that Pattson could receive
a maximum of 11 years to 16 ½ years in prison for each of his first-degree felonies was
not only given at the plea hearing, but it was also provided in the written plea forms that
Pattson signed and stated he understood at the plea hearing. The record indicates that
the trial court also advised Pattson of the correct maximum possible prison sentences he
could receive for all the other offenses in Case Nos. 2019-CR-4052/1 and 2019-CR-4013.
{¶ 29} With regard to the trial court’s use of a hypothetical indefinite sentence at
the plea hearing, we note that the trial court never stated that it was going to actually
impose that sentence. The purpose of the hypothetical sentence was simply to explain
and clarify indefinite sentencing to Pattson and to inform Pattson that his sentence could
be extended past the minimum sentence imposed. Because Pattson indicated that he
understood the trial court’s explanation of indefinite sentencing and the maximum
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possible sentences at the plea hearing, and because Pattson failed to establish that he
would not have entered his guilty pleas but for the trial court’s hypothetical sentence,
Pattson has not demonstrated any prejudice warranting the withdrawal of his guilty pleas
in Case Nos. 2019-CR-4052/1 or 2019-CR-4013.
{¶ 30} Pattson’s first and second assignments of error are overruled.
Third Assignment of Error
{¶ 31} Under his third assignment of error, Pattson challenges his sentence by
claiming that the trial court should have merged his aggravated burglary, aggravated
robbery, and aggravated menacing offenses as allied offenses of similar import. We
disagree.
Law Governing the Merger of Allied Offenses
{¶ 32} R.C. 2941.25 governs allied offenses and it provides that: “Where the same
conduct by [a] 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.” R.C. 2941.25(A). The statute also
provides that: “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
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.” R.C. 2941.25(B).
{¶ 33} “ ‘[W]hen determining whether offenses are allied offenses of similar import
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within the meaning of R.C. 2941.25, courts must ask three questions * * *: (1) Were the
offenses dissimilar in import or significance? (2) Were they committed separately? and
(3) Were they committed with separate animus or motivation?’ ” State v. Earley, 145
Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. “ ‘An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and the import must
all be considered.’ ” Id.{¶ 34} As to import or significance, offenses are of dissimilar import within the
meaning of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and identifiable.”
Ruff at ¶ 23. “[A] defendant’s conduct that constitutes two or more offenses against a
single victim can support multiple convictions if the harm that results from each offense
is separate and identifiable from the harm of the other offense.” Id. at ¶ 26. “The
evidence at trial or during a plea or sentencing hearing will reveal whether the offenses
have similar import.” Id.
{¶ 35} When considering whether offenses are committed separately, this court
has recognized that if “one offense was complete before the other offense occurred, the
two offenses were committed separately for purposes of R.C. 2941.25(B),
notwithstanding their proximity in time and that one was committed in order to commit the
other.” State v. Turner, 2d Dist. Montgomery No. 24421, 2011-Ohio-6714, ¶ 24. Accord
State v. Williams, 12th Dist. Butler No. CA2018-02-030, 2018-Ohio-4261, ¶ 13; State v.
Margiotti, 10th Dist. Franklin No. 19AP-469, 2021-Ohio-1826, ¶ 15-16; State v. Spurrier,
11th Dist. Lake No. 2020-L-069, 2021-Ohio-1061, ¶ 68. In other words, “when one
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offense is completed prior to the completion of another offense during the defendant’s
course of conduct, those offenses are separate acts.” State v. Mooty, 2014-Ohio-733, 9
N.E.3d 443, ¶ 49 (2d Dist.). “To conclude otherwise would encourage those who break
into buildings to steal to proceed with the theft since the offenses would merge for
purposes of conviction and sentence.” Spurrier at ¶ 68.
{¶ 36} “At its heart, the allied-offense analysis is dependent upon the facts of a
case because R.C. 2941.25 focuses on the defendant’s conduct.” Ruff, 143 Ohio St.3d
114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 26. “ ‘[T]he defendant bears the burden of
establishing his entitlement to the protection, provided by R.C. 2941.25, against multiple
punishments for a single criminal act.’ ” State v. Washington, 137 Ohio St.3d 427, 2013-
Ohio-4982, 999 N.E.2d 661, ¶ 18, quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514
N.E.2d 870 (1987). An appellate court applies “a de novo standard of review in reviewing
a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶ 37} As previously discussed, Pattson contends that the counts for aggravated
burglary, aggravated robbery, and aggravated menacing were allied offenses of similar
import that the trial court should have merged at sentencing. Although not explicitly
argued in his brief, we presume that Pattson is arguing that his two aggravated robbery
offenses should have merged, that his two aggravated menacing offenses should have
merged, and that the aggravated robbery and aggravated menacing offenses then should
have merged with each other and with the single count for aggravated burglary. We will
address each of these claims separately below.
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Aggravated Robbery
{¶ 38} Pattson was convicted of two counts of aggravated robbery in violation of
R.C. 2911.01(A)(1), which provides that:
No person, in attempting or committing a theft offense * * * shall do
any of the following: (1) Have a deadly weapon on or about the offender’s
person or under the offender’s control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it[.]
{¶ 39} Upon review, we find that the record establishes that Pattson’s two
aggravated robbery offenses involved separate conduct and separate victims. During
the first aggravated robbery, Pattson and his accomplices ransacked the Beetems’
residence and stole various items of property from the residence while holding Mr.
Beetem and his family at gunpoint. The record indicates that Pattson placed a gun to
Mr. Beetems’ head and forced Mr. Beetem into a bedroom where Pattson and his
accomplices stole four guns. While in the bedroom, Pattson also forced Mr. Beetem to
open the Beetems’ safe at gunpoint.
{¶ 40} After stealing property from the Beetems’ residence, Pattson engaged in
separate conduct that formed the second aggravated robbery. Specifically, Pattson
forced Mrs. Beetem into the Beetems’ vehicle at gun point and had Mrs. Beetem drive
him and his two accomplices to an ATM where they ordered Mrs. Beetem to withdraw
cash from her bank account while pointing a gun to her head. Because Pattson’s two
aggravated robbery offenses arose from separate conduct, involved separate victims, and
because the conduct took place at two separate places, i.e., at the Beetems’ house and
inside the Beetems’ vehicle/at the ATM, the aggravated robberies did not merge as allied
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offenses.
Aggravated Burglary
{¶ 41} Pattson was convicted of one count of aggravated burglary in violation of
R.C. 2911.11(A)(2), which provides that:
No person, by force, stealth, or deception, shall trespass in an
occupied structure * * * when another person other than an accomplice of
the offender is present, with purpose to commit in the structure * * * any
criminal offense, if any of the following apply: * * * (2) The offender has a
deadly weapon or dangerous ordnance on or about the offender’s person
or under the offender’s control.
{¶ 42} We note that this court has recognized that “[b]urglaries and robberies ‘ “are
often not allied offenses of similar import because they involve two separate crimes;
entering into the premises by force, stealth or deception, and then committing a theft
offense.” ’ ” State v. Rice, 2d Dist. Montgomery No. 28572, 2020-Ohio-4404, ¶ 21,
quoting State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 24, quoting
State v. Kay, 2d Dist. Montgomery No. 25761, 2014-Ohio-2676, ¶ 21. Accord Turner,
2d Dist. Montgomery No. 24421, 2011-Ohio-6714, at ¶ 23 (“aggravated burglary and
robbery are not allied offenses of similar import that must be merged because the burglary
is complete upon entry into the victim’s home, while a robbery subsequently committed
once inside constitutes a new, separate offense that was committed separately in time”).
{¶ 43} “Whether an intended [theft offense] was committed is irrelevant to the
burglary charge. But where the intended [theft offense] is actually committed, a new
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crime arises for which the defendant may be convicted.” State v. Frazier, 58 Ohio St.2d
253, 256, 389 N.E.2d 1118 (1979). Therefore, “to commit burglary, [the defendant]
[does] not have to actually commit a criminal offense inside the victim’s residence, as the
intent to commit any criminal offense while trespassing constitutes the commission of the
burglary.” Rice at ¶ 22, citing State v. Chafin, 2d Dist. Greene No. 2019-CA-69, 2020-
Ohio-3983, ¶ 35.
{¶ 44} In this case, Pattson’s aggravated burglary offense arose from Pattson
kicking in the Beetems’ door and forcefully trespassing inside the Beetems’ residence
while in possession of a firearm with the purpose to commit a criminal offense therein.
In contrast, the aggravated robbery offenses arose from Pattson subsequently stealing
various items of property from the Beetems’ residence and bank account while
brandishing a firearm. Therefore, the aggravated burglary and aggravated robbery
offenses did not arise from the same conduct and involved separate, identifiable harms.
{¶ 45} As a further matter, Pattson completed the aggravated burglary once he
forcefully entered the Beetems’ residence with a firearm and the requisite criminal intent.
Although the aggravated robberies were committed in close proximity to the aggravated
burglary, the aggravated burglary had already been completed and thus was committed
separately from the aggravated robberies. See Turner at ¶ 24; Mooty, 2014-Ohio-733,
9 N.E.3d 443, at ¶ 49. Because the aggravated burglary was committed separately from
the aggravated robbery offenses, and because the aggravated burglary involved a
separate, identifiable harm, it was appropriate for the trial court not to merge the
aggravated burglary with either of the aggravated robbery offenses.
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Aggravated Menacing
{¶ 46} Pattson was convicted of two counts of aggravated menacing in violation of
R.C. 2903.21(A), which provides that:
No person shall knowingly cause another to believe that the offender
will cause serious physical harm to the person or property of the other
person, the other person’s unborn, or a member of the other person’s
immediate family.
{¶ 47} Upon review, we find that Pattson’s two aggravated menacing offenses
involved separate victims. The record indicates that after Pattson forced his way into the
Beetems’ residence, Pattson and his accomplices pointed guns at the Beetems and
threatened to kill them. The record also indicates that Pattson placed a gun to Mr.
Beetem’s head and ordered Mrs. Beetem and their children to lay down on the ground
and “shut the fuck up.” PSI at p. 4; Sentencing Trans. (Dec. 30, 2020), p. 37. In other
words, Pattson caused Mr. Beetem, Mrs. Beetem, and their children to believe that
Pattson would cause serious physical harm to Mr. Beetem if they did not lay down and
be quiet. This conduct constituted aggravated menacing against Mr. and Mrs. Beetem
and their children. The fact that there are separate victims precludes a merger of the
two aggravated menacing offenses.
{¶ 48} We also find that the two aggravated menacing offenses were committed
separately from the aggravated burglary. Although the aggravated menacing offenses
were committed in close proximity to the aggravated burglary, the record establishes that
the aggravated menacing offenses arose from separate conduct that took place after the
aggravated burglary had already been committed. As previously discussed, the
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aggravated burglary was committed when Pattson forcefully entered the Beetems’
residence with a firearm and the requisite criminal intent. After engaging in that conduct,
Pattson engaged in the separate conduct of threatening to kill the Beetems and placing
a gun to Mr. Beetem’s head and ordering Mrs. Beetem and the children to lie down on
the ground and be quiet. Because the aggravated menacing offenses were committed
separately from the aggravated burglary, it was appropriate for the trial court not to merge
those offenses at sentencing.
{¶ 49} The aggravated menacing offenses were also committed separately from
the aggravated robbery offenses. The aggravated menacing offenses were committed
once Pattson threatened to kill the Beetems at gunpoint and once Pattson ordered Mrs.
Beetem and the children to lie down on the ground and be quiet while holding a gun to
Mr. Beetem’s head. After that initial encounter, Pattson and his accomplices proceeded
to engage in separate conduct that formed the basis of the two aggravated robbery
offenses. Specifically, Pattson and his accomplices ransacked the Beetems’ home and
forced Mr. Beetem into a bedroom at gunpoint in order to steal property and later forced
Mrs. Beetem to withdraw money at an ATM. Because the conduct forming the
aggravated robberies occurred after the aggravated menacing offenses had already been
completed, it was appropriate for the trial court not to merge the aggravated menacing
offenses with the aggravated robbery offenses.
{¶ 50} Because the aggravated burglary, aggravated robbery, and aggravated
menacing offenses were not allied offenses of similar import that merge, Pattson’s third
assignment of error is overruled.
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Conclusion
{¶ 51} Having overruled all three assignments of error raised by Pattson, the
judgments of the trial court are affirmed.
.............
TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Alan D. Gabel
Hon. Mary E. Montgomery