State v. Linde

[Cite as State v. Linde, 

.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.     26209

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ROBERT LINDE                                           COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 11 06 1461 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: June 27, 2012



        BELFANCE, Judge.

        {¶1}     Robert Linde appeals his sentences for aggravated robbery and aggravated

burglary. For the reasons set forth below, we reverse.

                                                  I.

        {¶2}     In June 2011, Mr. Linde was indicted for aggravated robbery, aggravated

burglary, and possessing criminal tools. Mr. Linde pleaded guilty to the counts of aggravated

robbery and aggravated burglary, and the possessing criminal tools count was dismissed. The

trial court sentenced Mr. Linde to an aggregate prison term of 15 years. Mr. Linde has appealed,

raising three assignments of error for review. Because Mr. Linde’s second assignment of error is

dispositive for the purposes of this appeal, we address it first.

                                                 II.

                                      ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED AS A MATTER OF LAW, AND COMMITTED
        PLAIN ERROR, WHEN IT DID NOT HOLD A HEARING TO DETERMINE
                                                2


       THE APPLICABILITY OF THE ALLIED OFFENSE STATUTE REQUIRING
       REVERSAL OF THE JUDGMENT OF CONVICTION AND REMAND FOR
       FURTHER PROCEEDINGS[.]

       {¶3}     Mr. Linde argues that the trial court was required to hold a hearing to determine

whether his convictions were for allied offenses of similar import. We agree.

       {¶4}     In State v. Johnson, 

, 

, the Supreme Court of

Ohio outlined a new test for determining whether offenses are allied and subject to merger. See

 at syllabus. Though Johnson was released prior to Mr. Linde’s sentencing, the issue of allied

offenses was not raised at sentencing, and, therefore, the trial court did not consider and apply

R.C. 2941.25.     Additionally, assuming the offenses are allied, the State did not have the

opportunity to elect the offense for which it wanted the trial court to sentence Mr. Linde. See

State v. Edwards, 9th Dist. No. 25679, 

.          This Court has consistently

concluded that the trial court should consider and apply Johnson in the first instance. See 

Accordingly, we remand the matter to the trial court so that it can consider and apply Johnson.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES
       SINCE HB 86 ENACTED R.C. 2929.41 WHICH PERMITS CONSECUTIVE
       SENTENCES ONLY IN LIMITED SITUATIONS.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
       WITHOUT CONSIDERING THE CONSISTENCY AND PROPORTIONALITY
       OF HIS SENTENCE TO SIMILARLY SITUATED FIRST TIME OFFENDERS
       WHO ARE CONTRITE, REMORSEFUL, AND HAVE UTILIZED COUNTY
       JAIL TIME FOR GOOD TO WIT: ENGAGING IN COGNITIVE THINKING
       TRAINING AND ANGER MANAGEMENT COUNSELING.

       {¶5}     Should the trial court determine that Mr. Linde’s offenses merge for the purposes

of sentencing, his first assignment of error would become moot, and his third assignment of error

would be substantially altered. Thus, any decision rendered on these assignments of error would
                                                   3


be advisory, and, therefore, we do not address them at this time. See, e.g., State ex rel. Louthan

v. Akron, 9th Dist. No. 23351, 

 (“This court is loath to issue advisory

opinions which do not serve to materially advance correct disposition of the matter on appeal.”)

(Internal quotations and citations omitted.).

                                                III.

       {¶6}    In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas and remand the matter for further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
                                          4




WHITMORE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.