[Cite as State v. Rose,
2017-Ohio-8435.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-17-08
PLAINTIFF-APPELLEE,
v.
JOSHUA ALAN ROSE, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20162168 CRI
Judgment Affirmed in Part, Reversed in Part
Cause Remanded
Date of Decision: November 6, 2017
APPEARANCES:
Michael B. Kelley for Appellant
Jason M. Miller for Appellee
Case No. 6-17-08
WILLAMOWSKI, J.
{¶1} Defendant-appellant Joshua A. Rose (“Rose”) brings this appeal from
the judgment of the Court of Common Pleas of Hardin County accepting Rose’s
pleas of guilty to one count of grand theft, and two counts of burglary and for
sentencing him to an aggregate prison term of fourteen years and six months. Rose
claims that the trial court erred by failing to merge to sentences as they were allied
offenses and by imposing consecutive sentences. For the reasons set forth below,
the judgment is affirmed in part and reversed in part.
{¶2} On or about June 17, 2016, Rose broke into the home of Lavonda
Bowman and stole several items, including a firearm. Doc. 18. Rose also broke
into the home of Margaret Osbun and stole several items. Id. On or about June 18,
2016, Rose broke into the home of Vivian Stuck and stole several items.
Id. On
December 14, 2016, the Hardin County Grand Jury indicted Rose on 18 counts: 1)
Burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree; 2) Grand
Theft in violation of R.C. 2913.02(A)(1),(B)(4) with a firearm specification, a
felony of the third degree; 3) Theft in violation of R.C. 2913.02(A)(1),(B)(2), a
felony of the fifth degree; 4) Theft in violation of R.C. 2913.02(A)(1),(B)(2), a
felony of the fifth degree; 5) Theft in violation of R.C. 2913.02(A)(1), a felony of
the fifth degree; 6) Theft from a Person in a Protected Class in violation of R.C.
2913.02(A)(1),(B)(3), a felony of the fourth degree; 7) Burglary in violation of R.C.
2911.12(A)(1), a felony of the second degree; 8) Theft from a Person in a Protected
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Class in violation of R.C. 2913.02(A)(1),(B)(3), a felony of the fourth degree; 9)
Burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree; 10)
Theft from a Person in a Protected Class in violation of R.C. 2913.02(A)(1),(B)(3),
a felony of the fourth degree; 11) Theft of Drugs in violation of R.C.
2913.02(A)(1),(B)(6), a felony of the fourth degree; 12) Receiving Stolen Property
in violation of R.C. 2913.51(A), a felony of the fifth degree; 13) Possessing
Criminal Tools in violation of R.C. 2923.24(A), a felony of the fifth degree; 14)
Complicity to Forgery in violation of R.C. 2923.03(A)(2) and
2913.31(A)(1),(C)(1)(c), a felony of the fifth degree; 15) Complicity to Forgery in
violation of R.C. 2923.03(A)(2) and 2913.31(A)(1),(C)(1)(c), a felony of the fifth
degree; 16) Additional Money Laundering Prohibition in violation of R.C.
1315.55(A)(1), a felony of the third degree; 17) Additional Money Laundering
Prohibition in violation of R.C. 1315.55(A)(3), a felony of the third degree; and 18)
Engaging in a Pattern of Corrupt Activity in violation of R.C. 2923.32(A)(1),(B)(1),
a felony of the first degree. Doc. 1. Counts 1-6 and 14-17 resulted from the thefts
at the Bowman home. Doc. 18. Counts 7 and 8 resulted from the thefts at the Osbun
home. Id. Counts 9-11 resulted from the thefts at the Stuck home.
Id. Pleas of not
guilty were entered to all counts. On May 4, 2017, Rose and the State reached a
negotiated plea agreement. Doc. 37. The trial court held a hearing on that day at
which the following agreement was specified.
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Bailey: My understanding through the negotiations, Mr. Rose
would enter a plea of guilty to count two of the indictment, which
is a charge of grand theft, and specifically spec property which is
a firearm. That is a felony of the third degree, a violation of
2913.02A1B4, a felony of the third degree, Ohio Revised Code.
Count seven, he would plead guilty to 2911.12A1, burglary, a
felony of the second degree. Count nine, burglary, a felony of the
second degree, in violation of 2911.12A1. The joint sentence
recommendation for the Court is [twenty-four] months for count
two; two years for count seven; three years for count nine. All
these counts run consecutive to each other for an aggregate total
of seven years. This case, which is that aggregate total seven years
consecutive to case number 20162089, which is a Hardin County
Case, CRI. There is [sic] no mandatory fines in this case, we’d
leave the fines to the Court’s discretion. He pay [sic] the costs of
this action. There is restitution – we do have three victims in this
case, however to the moment only one victim has turned in issues
for restitution. That would be jointly and severally liable with one
Damien Stewart – that’s a total under count two of five hundred
[twenty-nine] dollars and [twenty-five] cents to one LaVonda
Bowman. Other counts seven and nine do not have any reports
turned in for restitution claim, though we’ve made contact
numerous times. …
Judge: Mr. Fischmann. Is that your understanding of the plea
negotiations – that your client intends to enter pleas to counts two,
seven and nine?
Fischmann: Yes sir.
Judge: And then did you hear the terms Mr. Bailey stated of a
recommendation of a sentence/
Fischmann: Yes sir, that is a joint sentence recommendation, yes
sir.
Judge: And you believe you’ve accurately communicated that to
Mr. Rose?
Fischmann: I have.
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Judge: Alright. So you are joining in that recommendation?
Fischmann: Yes sir.
…
Judge: … [D]id you hear the terms of the recommended
sentence Mr. Bailey spoke?
Defendant: Yes Your Honor.
Judge: And are you joining in that recommendation?
Defendant: Yes Your Honor.
Tr. 5-8. After the trial court advised Rose of all of his rights he would be waiving,
the State presented a statement of the facts for the trial court. The State indicated
that Rose had entered the Bowman home and removed a 380 revolver among other
things. Tr. 21. The State also indicated that Rose had entered the Osbun home and
removed jewelry and a laptop computer. Tr. 22. Finally, the State indicated that
Rose had entered the Stuck home and removed jewelry, a television, a sound bar,
and medication. Tr. 24. Rose admitted that the facts were accurate. Tr. 26. Rose
then entered pleas of guilty to Counts 2, 7, and 9. Tr. 39-40. The trial court then
accepted the pleas and proceeded to sentencing. Tr. 41.
{¶3} The trial court ordered that Rose serve a prison term of 30 months for
count two, three years for count seven and three years for count nine. Tr. 65-67,
Doc. 38. The trial court then made the findings that the offenses were part of one
or more courses of conduct and that the harm caused was such that a single prison
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term would be inappropriate. Tr. 67-68, Doc. 38. In addition, the trial court ordered
that the prison term be served consecutive to a sentence ordered in a different case.
Tr. 68, Doc. 38. On May 8, 2017, Rose filed his notice of appeal. Doc. 43. Rose
raises the following assignments of error on appeal.
First Assignment of Error
The trial court erred when it failed to merge count two (grand
theft) and count seven (burglary) for sentencing as the two counts
are allied offenses with the same animus.
Second Assignment of Error
The trial court erred when it ordered consecutive sentences
without making proper findings under [R.C. 2929.14(C)(4)] at the
sentencing hearing, and where the record does not support
consecutive sentences.
{¶4} In the first assignment of error, Rose claims that counts two and seven
should have merged for the purpose of sentencing. The Supreme Court of Ohio in
State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995,
34 N.E.3d 892, has recently set
forth a test for determining whether multiple offenses are allied offenses of similar
import such that a defendant may only be convicted of one. In reaching its
conclusion, the Supreme Court stated the following.
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis
must focus on the defendant’s conduct to determine whether one
or more convictions may result, because an offense may be
committed in a variety of ways and the offenses committed may
have different import. No bright-line rule can govern every
situation.
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Case No. 6-17-08
As a practical matter, when determining whether offenses are
allied offenses of similar import within the meaning of R.C.
2941.25, courts must ask three questions when the defendant’s
conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed
separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will
permit separate convictions. The conduct, the animus, and the
import must all be considered.
Ruff at ¶ 30-31.
{¶5} Rose argues that counts two and seven should have merged as they were
allied offenses of similar import. Count two was grand theft based upon the theft of
the gun from the Bowman home in Unit C-1. Doc. 1 and 18. Count seven was a
burglary offense stating that Rose trespassed in an occupied structure with the intent
to commit a criminal offense. Doc. 1. This offense, while occurring on the same
date, occurred at the Osbun home in Unit D-3. Doc. 18. Although these were in the
same complex, they were not the same apartments. Thus, the offenses were
committed separately and as such they are not allied offenses of similar import. The
first assignment of error is overruled.
{¶6} Next Rose claims that the trial court erred in ordering him to serve
consecutive sentences.
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
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Case No. 6-17-08
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to [R.C. 2929.16, 2929.17, or 2929.18]
or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4). Initially, this court notes that count two was required to be
served consecutive to all other sentences by R.C. 2929.14(C)(3). Thus the only
question before us is if the convictions for burglary were appropriately ordered to
be served consecutively. “When imposing consecutive sentences, a trial court must
state the required findings as part of the sentencing hearing, and by doing so it
affords notice to the offender and to defense counsel.” State v. Bonnell, 140 Ohio
St.3d 209,
2014-Ohio-3177, ¶ 29,
16 N.E.3d 659. The failure to make the findings
at the hearing cannot be corrected by making them in the journal entry. Id. at ¶ 30.
{¶7} Here, the trial court made the following findings at the hearing.
Concerning the issue of consecutive nature, there has been in the
joint sentencing recommendation it has been suggested that it is
appropriate to run them consecutively. In addition, the Court
specifically finds, pursuant to section 2929.14, that at least two or
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more of the multiple offenses committed were part of one or more
courses of conduct and the harm caused by two or more of the
multiple offenses is so great or unusual that no single prison term
for any of the offenses would be appropriate, and therefore it will
be the order of the Court that the three sentences in this case
would be aggregated and run consecutively, for an aggregated
term of six years plus thirty months – lay person’s terms eight and
a half years. The Court will order that the sentence in this case,
again pursuant to the plea negotiations, but upon the Court’s
independent review, would run consecutive to that sentence
issued in – and I believe the case number is 20162089 – a sentence
of six years was aggregated out of that case. So therefore, between
the two cases, there will be an aggregated term of imprisonment
of fourteen and a half years.
Tr. 67-68. The trial court noted that there was a plea agreement that was placed in
the record. In addition, at the hearing the parties stated that they had an agreed
sentence and stated what it was for the record.1 An agreed sentence is not subject
to appellate review if the trial court imposes it. State v. Underwood, 124 Ohio St.3d
365,
2010-Ohio-1, ¶ 6,
922 N.E.2d 923 and R.C. 2953.08. However, in this case
the trial court did not impose the agreed upon sentence, instead choosing, as is
permitted by law, to impose a different sentence. Because the trial court imposed a
different sentence, the trial court was required to make all of the statutory findings.2
The trial court specifically addressed the fact that the offenses were separate courses
1
The sentence agreement document was not entered into the record. We note that the State attached the
document itself to its brief, however this court may not consider the document itself as it was not made a part
of the record.
2
The State argues that the trial court was not required to make any findings before imposing consecutive
sentences due to the holdings in State v. Kalish,
120 Ohio St.3d 23,
2008-Ohio-4912,
896 N.E.2d 124 and
State v. Foster,
109 Ohio St.3d 1,
2006-Ohio-856,
845 N.E.2d 306. This court notes that those cases were
decided in 2008 and 2006 respectively. The amended version of R.C. 2929.14(C)(4) was part of HB 86 and
was effective on September 30, 2011. This amendment once again required the trial court to make certain
findings prior to imposing consecutive sentences.
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of conduct and that the harm was so great that a single prison term would not be
appropriate, as required by the statute. However, the trial court failed to find that
the consecutive sentences were necessary to protect the public or adequately punish
the offender and that the sentence was not disproportionate to the conduct of the
defendant and the danger posed to the public. While these issues were discussed as
they applied to whether the court should impose community control sanctions or
prison, they were not discussed as to whether consecutive sentences were
appropriate. The statute and the holdings of the Ohio Supreme Court mandate that
the trial court make all of the enumerated findings at the sentencing hearing. R.C.
2929.14(C)(4) and Bonnell, supra. The trial court did not do so in this case. Thus,
the second assignment of error is sustained.
{¶8} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas is affirmed in part
and reversed in part. The matter is remanded to the trial court for further
proceedings.
Judgment Affirmed in Part
Reversed in Part
Cause Remanded
PRESTON, P.J. and ZIMMERMAN, J., concur.
/hls
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