State v. Albertson

[Cite as State v. Albertson, 2022-Ohio-1520.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29245
:
v. : Trial Court Case No. 2018-CR-1312/1
:
SHAWN ALBERTSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 6th day of May, 2022.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
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{¶ 1} Defendant-appellant Shawn Albertson appeals his conviction for the
following offenses: aggravated burglary, aggravated arson, felony murder, aggravated
robbery, grand theft of a motor vehicle, grand theft of a firearm, and aggravated
possession of drugs. Albertson’s appellate counsel filed a brief under the authority of
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the
absence of any non-frivolous issues for appeal, and she asks permission to withdraw as
counsel. Counsel did not direct our attention to any potential assignments of error. By
entry filed January 21, 2022, we notified Albertson that his counsel had found no
meritorious claims to present on appeal and granted him 60 days to file a pro se brief
assigning any errors for review. Albertson has not filed a brief.
Facts and Course of Proceedings
{¶ 2} On April 1, 2018, Albertson trespassed inside the Dayton residence of 75-
year-old Gerald Manns and stole money, a handgun, and several other items of Manns’s
personal property. Albertson also set fire to Manns’s residence before leaving the scene
and fleeing in Manns’s truck. Manns was subsequently found on the basement floor of
his residence; he died as a result of the fire. Thereafter, detectives tracked Albertson to
a hotel room in Butler Township wherein they discovered drugs, drug paraphernalia, and
several items of Manns’s personal property. Albertson was arrested and charged with
the aforementioned offenses. See State v. Albertson, 2d Dist. Montgomery No. 28722,
2021-Ohio-2125, ¶ 3 (“Albertson I”).
{¶ 3} Albertson's case proceeded to a three-day jury trial in January 2020.
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Following the presentation of the evidence, the jury deliberated and found Albertson guilty
of all nine charges in the indictment. The trial court then held a sentencing hearing during
which the trial court determined that the first six counts in the indictment, i.e., aggravated
burglary, two counts of aggravated arson, two counts of felony murder, and aggravated
robbery, were allied offenses of similar import that merged for sentencing. Specifically,
the trial court determined that counts two and three (aggravated arson) merged with
counts four and five (felony murder). The trial court further determined that count one
(aggravated burglary) and count six (aggravated robbery) merged with counts two
through five (aggravated arson and felony murder). The State objected to the trial court's
merger determination, but it elected to have Albertson sentenced on count five, felony
murder (aggravated arson/harm to person).
{¶ 4} The trial court sentenced Albertson to 15 mandatory years to life in prison for
felony murder, 12 months in prison for grand theft of a motor vehicle, two years in prison
for grand theft of a firearm, and 9 months in prison for aggravated possession of drugs.
All of the prison terms were ordered to be served concurrently except for the two-year
term for grand theft of a firearm; that prison term was ordered to be served consecutively
to all the other terms. Therefore, the trial court sentenced Albertson to an aggregate
term of 17 years to life in prison. The trial court also ordered Albertson to enroll in the
Violent Offender Registry and the Arson Offender Registry. The trial court waived court
costs, but it ordered Albertson to pay restitution in the amount of $6,347 for Manns’s
funeral expenses.
{¶ 5} Albertson appealed, arguing that his trial counsel provided ineffective
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assistance during his motion to suppress hearing and during his trial. Albertson also
argued that his convictions for aggravated burglary, aggravated arson, felony murder, and
aggravated robbery were not supported by sufficient evidence and were against the
manifest weight of the evidence. Albertson further claimed that the trial court had erred
by failing to merge his grand theft of a firearm offense with his aggravated burglary and
aggravated robbery offenses at sentencing. Finally, Albertson argued that the trial court
erred by ordering him to pay restitution without first considering his present and future
ability to pay as required by R.C. 2929.19(B)(5). The State filed a cross-appeal asserting
that the trial court had erred by merging Albertson's aggravated burglary and aggravated
robbery offenses with his aggravated arson and felony murder offenses.
{¶ 6} Ultimately, we held that the trial court erred when it merged the aggravated
burglary offense with the aggravated robbery and the felony murder offenses. Albertson
I, 2d Dist. Montgomery No. 28722, 2021-Ohio-2021, at ¶ 119. Therefore, we remanded
the matter to the trial court solely for resentencing. Id. In all other respects, we affirmed
the judgment of the trial court. Id.{¶ 7} On remand, the trial court resentenced Albertson as follows: The aggravated
arson, murder, and aggravated robbery counts merged (Counts II, III, IV, V, and VI), with
the State still electing to proceed to sentencing on murder (Count V), and the sentence
was a mandatory 15 years to life; for aggravated burglary (Count I), a sentence of seven
years in prison; for grand theft of a motor vehicle (Count VII), 12 months; for grand theft
of a firearm, two years; and for aggravated possession of drugs, nine months. Some of
the sentenced were to run concurrently, but the sentence for grand theft of a firearm was
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to run consecutively to the sentence for murder; Albertson’s aggregate sentence
remained 17 years to life in prison.
{¶ 8} It is from this judgment that Albertson now appeals.
Analysis
{¶ 9} Rather than presenting us with a potentially meritorious issue on appeal,
appointed counsel for Albertson argues:
THE TRIAL COURT DID NOT ERR WHEN SENTENCING THE
DEFENDANT-APPELLANT TO SEVEN YEARS OF INCARCERATION TO
BE RUN CONCURRENT WITH THE REST OF HIS SENTENCE.
{¶ 10} Upon review, we agree with appointed counsel and conclude that the trial
court did not err when it sentenced Albertson to seven years in prison for aggravated
burglary to be served concurrently to the sentences imposed for murder, grand theft of a
motor vehicle, and aggravated possession. “[W]here a sentence is imposed concurrently
* * *, the defendant is given the comparative luxury of serving each day of his second
sentence, beginning with the first day, concurrently with a day served on the first
sentence. * * *” State v. Ways, 2d Dist. Montgomery No. 25214, 2013-Ohio-293, ¶ 10-11.
Here, the trial court followed the mandate from this Court in Albertson I and separated
aggravated burglary (Count I) from the remainder of the merged counts. The trial court’s
decision that the sentence for that offense should to be served concurrently to the
sentences imposed for Counts V, VII, and IX was within its discretion.
{¶ 11} Furthermore, we have performed our duty to independently conduct a
thorough and complete examination of all the proceedings to decide whether this appeal
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is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300(1988), citing Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Our review
included scrutiny of the entire record, including the docketed filings, the resentencing
hearing transcript, and the presentence investigation report. We agree with appointed
counsel's assessment that there are no appealable issues with arguable merit.
Conclusion
{¶ 12} Our independent review of the record reveals no non-frivolous issues for
appeal. We agree with appellate counsel that Albertson’s appeal is frivolous. We grant
counsel’s request to withdraw from representation. The judgment of the trial court is
affirmed.
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TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Adam J. Arnold
Shawn Albertson
Hon. Timothy N. O’Connell