[Cite as State v. VanValkenburg,
2012-Ohio-1213.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 11-CA-91
PAUL VANVALKENBURG :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 11 CR 00074
JUDGMENT: REVERSED AND REMANDED FOR
RESENTENCING
DATE OF JUDGMENT ENTRY: March 20, 2012
APPEARANCES:
For Appellant: For Appellee:
THOMAS S. GORDON KENNETH OSWALT
P.O. Box 314 LICKING COUNTY PROSECUTOR
Pickerington, OH 43147
EARL L. FROST
ASST. PROSECUTING ATTORNEY
20 S. Second St., 4th Floor
Newark, OH 43055
[Cite as State v. VanValkenburg, 2012-Ohio-1213.]
Delaney, J.
{¶1} Defendant-appellant Paul VanValkenburg appeals the September 2,
2011 sentencing entry of the Licking County Court of Common Pleas. Plaintiff-
appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 18, 2011, appellant was indicted by the Licking County
Grand Jury with breaking and entering, a fifth-degree felony in violation of R.C.
2911.13(A) and/or (B), and possession of criminal tools, a fifth-degree felony in
violation of R.C. 2923.24(A)(B)(3). Appellant pled no contest to the charges on
September 2, 2011. At the change of plea hearing and sentencing hearing, the State
presented the facts of the State’s case against appellant:
…, on or about January 3rd of 2011, detectives of the Newark
Police Department received a complaint about a breaking and entering
which occurred at Sherman’s Iron & Metal, located at 101 – 1001, rather,
East Main Street, Newark, Licking County, Ohio.
Upon arrival contact was made with the victim, Richard Sherman,
who advised that three persons had broken into his business on January
1st, 2011, and stolen various items. Mr. Sherman recognized the three
individuals from the security video surveillance system as being Ronald
Lees, Betty Hottinger and Paul VanValkenburg.
The aforementioned business meets the definition of an
unoccupied structure as found in the Ohio Revised Code. The value of
the property stolen was greater than $500. Some of the property was
Licking County, Case No. 11-CA-91 3
sold at Legends Smelting in Newark, Licking County, Ohio as scrap
metal.
The police interviewed the three aforementioned suspects, and all
three admitted that together they had broken into the business and
stolen the aforementioned property. They further advised that they used
a crowbar to gain entrance into and help commit the aforementioned
crime. …
(T. 9-10.)
{¶3} The trial court accepted appellant’s change of plea and found appellant
guilty of the charges. During the sentencing portion of the hearing, counsel for
appellant stated during the pretrial it was discussed the counts might merge for
sentencing. (T. 17.) The trial court stated Mr. Lees and Ms. Hottinger received
eighteen-month sentences and the trial court did not merge the sentences, so the trial
court would not merge appellant’s sentences. (T. 18.) The record is silent as to the
charges against Lees and Hottinger. The trial court sentenced appellant to eleven
months for breaking and entering and eleven months for possession of criminal tools,
to be served consecutively. (T. 18; Sept. 2, 2011 Judgment Entry.)
{¶4} It is from this decision appellant now appeals.
ASSIGNMENT OF ERROR
{¶5} Appellant raises one assignment of error:
{¶6} “I. THE TRIAL COURT ERRED BY NOT RUNNING THE APPELLANT’S
SENTENCES CONCURRENTLY.”
Licking County, Case No. 11-CA-91 4
ANALYSIS
{¶7} Appellant argues the charges against appellant for breaking and entering
and possession of criminal tools were allied offenses of similar import, which should
have merged for sentencing purposes. We agree.
{¶8} Breaking and entering in violation of R.C. 2911.13(A) consists of
trespassing by force in an unoccupied structure with the purpose to commit a theft
offense. Possession of criminal tools in violation of R.C. 2923.24(A) requires that a
person possess or have under the person’s control any device or instrument with
purpose to use it criminally.
{¶9} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314,
942 N.E.2d
1061, the Ohio Supreme Court ruled that when determining whether two offenses are
allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of
the accused must be considered. (State v. Rance,
85 Ohio St.3d 632,
710 N.E.2d 699
(1999), overruled.)
{¶10} In 1972, the General Assembly enacted R.C. 2941.25 in order to guide
courts in the determination of offenses subject to merger. State v. Logan, 60 Ohio
St.2d 126, 131,
397 N.E.2d 1345 (1979) (“the statute has attempted to codify the
judicial doctrine … sometimes referred to as the doctrine of merger, and other times
as the doctrine of divisibility of offenses.”
{¶11} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
Licking County, Case No. 11-CA-91 5
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) 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.
{¶12} In Johnson, supra, the Supreme Court stated that they have “consistently
recognized that the purpose of R.C. 2941.25 is to prevent shotgun convictions, that is,
multiple findings of guilt and corresponding punishments heaped on a defendant for
closely related offenses arising from the same occurrence. Geiger, 45 Ohio St.2d at
242,
344 N.E.2d 133. This is a broad purpose and ought not to be watered down with
artificial and academic equivocation regarding the similarities of the crimes. When ‘in
substance and effect but one offense has been committed,’ the defendant may be
convicted of only one offense. Botta, 27 Ohio St.2d at 203,
271 N.E.2d 776.”
Johnson, supra, at ¶ 43.
{¶13} The court continued to state:
[g]iven the purpose and language of R.C. 2941.25, and based on
the ongoing problems created by Rance, we hereby overrule Rance to
the extent that it calls for a comparison of statutory elements solely in the
abstract under R.C. 2941.25. When determining whether two offenses
Licking County, Case No. 11-CA-91 6
are allied offenses of similar import subject to merger under R.C.
2941.25, the conduct of the accused must be considered.
In overruling Rance, we need not apply the test of Westfield v.
Galatis, 100 Ohio St.3d 216, 2003–Ohio–5849,
797 N.E.2d 1256,
because R.C. 2941.25 is a prophylactic statute that protects a criminal
defendant's rights under the Double Jeopardy Clauses of the United
States and Ohio Constitutions. Because there is a constitutional
protection underlying the proper application of R.C. 2941.25, stare
decisis does not compel us with the same force as it does in other areas
of the law. See, e.g., State v. Bodyke, 126 Ohio St.3d 266, 2010–Ohio–
2424, 933 N.E.2d 753, ¶ 35–37.
Id. at ¶¶ 44–45.
{¶14} Accordingly, the new standard as set forth in Johnson appears to be the
following:
In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is possible to
commit one offense and commit the other with the same conduct, not
whether it is possible to commit one without committing the other.
Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J.,
concurring) (“It is not necessary that both crimes are always committed
by the same conduct but, rather, it is sufficient if both offenses can be
committed by the same conduct. It is a matter of possibility, rather than
certainty, that the same conduct will constitute commission of both
Licking County, Case No. 11-CA-91 7
offenses.” [Emphasis sic]). If the offenses correspond to such a degree
that the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of similar
import.
If the multiple offenses can be committed by the same conduct,
then the court must determine whether the offenses were committed by
the same conduct, i.e., “a single act, committed with a single state of
mind.” Brown, 119 Ohio St.3d 447, 2008–Ohio–4569,
895 N.E.2d 149, at
¶ 50 (Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses
are committed separately, or if the defendant has separate animus for
each offense, then, according to R .C. 2941.25(B), the offenses will not
merge.
Id. at ¶ 48-51.
{¶15} At the time of sentencing, appellee did not object to the lack of merger.
Counsel mentioned during the hearing that merger was discussed at pretrial. Because
there was no objection, our review of this matter is subject to a plain error standard.
State v. Lemmons, 5th Dist. No. 10-CA-48, 2011-Ohio-3322, ¶ 40. However, the Ohio
Supreme Court has held that it was plain error to sentence a defendant for multiple
counts that were allied offenses of similar import. State v. Underwood, 124 Ohio St.3d
Licking County, Case No. 11-CA-91 8
365,
2010-Ohio-1,
922 N.E.2d 923, ¶ 31, citing State v. Yarbrough,
104 Ohio St.3d 1,
2004-Ohio-6087,
817 N.E.2d 845.
{¶16} The Ohio Supreme Court held in State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2,
922 N.E.2d 122, that upon guilty verdicts on allied offenses, the state
must elect which of the offenses it chooses to seek sentencing for, and the court must
accept the state’s choice and merge the crimes into a single offense for purposes of
sentencing. Id. at ¶ 24.
{¶17} Applying Johnson to the facts of this case, we find the breaking and
entry and possession of criminal tools stem from appellant’s conduct of using a crow
bar to enter the business to steal items. Appellant committed both offenses through a
single course of conduct and with single state of mind. Therefore, the charges are
allied offenses and should have been merged. The state retains the right to elect
which allied offense to pursue on resentencing.
{¶18} The assignment of error is sustained.
Licking County, Case No. 11-CA-91 9
{¶19} We therefore reverse the sentence of the Licking County Court of
Common Pleas and remand this matter to the trial court for resentencing.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
[Cite as State v. VanValkenburg, 2012-Ohio-1213.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
PAUL VANVALKENBURG :
:
: Case No. 11-CA-91
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is reversed. The cause is remanded to the
trial court for resentencing. Costs assessed to appellee.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
