State v. Wills

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The State of Ohio, Appellant, v. Wills, Appellee.
[Cite as State v. Wills (1994),     Ohio St. 3d    ]
Criminal procedure -- Penalties and sentencing -- Additional
     three years of actual incarceration for offenses involving
     a firearm -- R.C. 2929.71(B), applied -- Separate armed
     robberies of two victims are not a single "transaction"
     for purpose of the firearm specification statute, when.
     (No. 93-1333 -- Submitted May 10, 1994 -- Decided July 27,
1994.)
     Appeal from the Court of Appeals for Montgomery County,
No. 13409
     The case involves the sentencing of appellant, Daniel
Wills.
     On the afternoon of December 2, 1991, two seventh graders,
Eric Stone and Andre Stroud Thomas, were walking from school to
a bus stop. Stone saw three people across the street. Wills
was one of the three. The three people followed Stone. Wills
told Stone to "check in" his Boston Celtics Starter coat.
Stone testified that this means "give me your coat." When
Stone refused, Wills reached inside his coat and pulled out a
black automatic handgun. Wills touched Stone's chest with the
gun, and Stone took off his coat and handed it to Wills.
     The three persons then crossed the street and approached
Thomas. The three repeatedly asked Thomas to give them his
Cincinnati Bengals Starter coat. When Thomas refused, Wills
punched him in the left jaw. When Thomas again refused to hand
over the coat, someone kicked him in the head. Wills then
pulled out what Thomas identified as a black nine-millimeter
automatic handgun, and told Thomas that he would shoot Thomas
unless Thomas gave up his coat. After obtaining the Bengals
coat, the three ran off.
     Wills was arrested and charged with two counts of
aggravated robbery. Each count included a firearm
specification. A jury found Wills guilty of both counts of
aggravated robbery, and of both firearm specifications.    Wills
was sentenced to five to twenty-five years on each of the
aggravated robbery convictions, and three yearss actual
incarceration on each firearm specification. All four
sentences were ordered to be served consecutively.
     The Court of Appeals for Montgomery County modified the
trial court's sentencing scheme because the appellate court
held that the two robberies collectively constituted only one
transaction punishable by a single firearm specification. The
court of appeals, accordingly, deleted one of the two
three-year sentences of actual incarceration for a firearm
specification.
     This cause is before this court pursuant to the granting
of a motion for leave to appeal.

     Mathias H. Heck, Jr., Montgomery County prosecuting
attorney, and Walter F. Ruf, Assistant Prosecuting Attorney,
for appellant.
     John H. Rion & Associates and John H. Rion, for appellee.

     Pfeifer, J.     The single question before this court is
whether the separate armed robberies of Eric Stone and Andre
Stroud Thomas were a single "transaction" for purposes of the
firearm specification statute, R.C 2929.71(B). The statute
provides:
     "If an offender is convicted of, or pleads guilty to, two
or more felonies and two or more specifications charging him
with having a firearm on or about his person or under his
control while committing the felonies, each of the three-year
terms of actual incarceration imposed pursuant to this section
shall be served consecutively with, and prior to, the life
sentences or indefinite terms of imprisonment imposed ….
If any of the felonies were committed as part of the same act
or transaction, only one three-year term of actual
incarceration shall be imposed for those offenses, which
three-year term shall be served consecutively with, and prior
to, the life sentences or indefinite terms of imprisonment
imposed …."
     We hold that the separate robberies of Stone and Thomas
were separate transactions within the meaning of R.C.
2929.71(B). When it enacted R.C. 2929.71, the General Assembly
intended to separately punish each criminal transaction
committed with the assistance of firearms. Each separate
criminal transaction performed with the assistance of a firearm
is punishable by a mandatory three-year sentence. The language
in R.C. 2929.71(B) instructs the courts on how to treat those
cases where multiple offenses are committed with the assistance
of a firearm by the same defendant. The statute states that
separate mandatory sentences are appropriate unless the
separate punishable criminal offenses were part of the same
transaction or act.
     This court has never defined the word "transaction" as it
is used in R.C. 2929.71(B). To do so, we adopt the test used
by the Court of Appeals for Summit County, which defined
"transaction" as "'a series of continuous acts bound together
by time, space and purpose, and directed toward a single
objective.'" State v. Caldwell (Dec. 4, 1991), Summit App. No.
14720, unreported, at 26-27.
     By applying this standard to the present case, we conclude
that the armed thefts of Stone and Thomas were not part of a
series of continuous acts. Wills and his cohorts singled out
Stone first, surrounded him, pulled out a gun and then under
threat of force robbed him. After completing this task they
then targeted Thomas, surrounded him, beat him, pulled out a
gun, and then robbed him. Wills should serve no less time
because of the coincidental proximity of his two victims.
     The sentence of the trial court is reinstated and the
judgment of the court of appeals is reversed.
                                 Judgment reversed.
     Moyer, C.J., Douglas, Wright, Resnick and F.E. Sweeney,
JJ., concur.
     A.W. Sweeney, J., dissents.