[Cite as State v. Parcher,
2020-Ohio-293.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1006
Appellee Trial Court No. CR0201801821
v.
Cardell L. Parcher DECISION AND JUDGMENT
Appellant Decided: January 31, 2020
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Eric Allen Marks, for appellant.
…
SINGER, J.
{¶ 1} Appellant, Cardell Parcher, appeals from the December 14, 2018 judgment
of the Lucas County Court of Common Pleas convicting of and sentencing him for
robbery, a violation of R.C. 2911.02(A)(2) and (B), and theft of drugs, a violation of R.C.
2913.02(A)(4) and (B)(6), following acceptance of his no contest plea. Appellant appeals
and asserts the following assignments of error:
I. Whether the trial court erred in denying defendant’s request to
merge the robbery and theft convictions.
II. Whether the trial court erred at sentencing by not giving defense
counsel an opportunity to present mitigating information.
{¶ 2} On May 4, 2018, appellant was indicted in a multi-count indictment
regarding the robbery of a Rite Aid pharmacy on February 12, 2018. On December 13,
2018, appellant entered a no contest plea to the lesser included offense of robbery, R.C.
2911.02(A)(2) and (B), and theft of drugs. The remaining counts and the specifications
attached to Count 1 were dismissed.
{¶ 3} The prosecution described the evidence it would have presented at trial. On
February 12, 2018, appellant approached a Rite Aid pharmacy and handed the pharmacist
a note and threatened to kill him if he set off any alarms or called the police. The note
instructed the pharmacist to place Percocet in a bag. Appellant tapped his side indicating
he had a firearm. The pharmacist put three bottles of Percocet and three fake bottles in a
bag which contained GPS trackers. After receiving the bottles, appellant ordered another
employee to follow him to the front of the store and showed her the butt of a handgun.
The police recovered the note written on the back of a piece of paper which belonged to
appellant’s family, an ID that belonged to a different family member, and the mask and
2.
gloves used by appellant. DNA taken from the mask and gloves was analyzed and found
to match appellant’s DNA with the frequency of rarer than one in 1 trillion.
{¶ 4} After the trial court gave appellant the required Crim.R. 11 notifications, the
trial court accepted the no contest plea and found appellant guilty of the amended
charges. The court asked appellant’s counsel if he had a statement to make on behalf of
appellant. Counsel emphasized the agreement provided the sentence would be capped at
eight years of incarceration. He argued Counts 1 and 3 should merge because the same
conduct constituted the theft and the robbery. The court denied the oral motion to merge
the counts. After addressing appellant, the court sentenced appellant to eight years of
imprisonment as to Count 1 and 12 months as to Count 3. Appellant appeals from this
judgment.
{¶ 5} In his first assignment of error, appellant argues the trial court erred in
denying his request for merger of the robbery and theft convictions relying upon State v.
Ruff, 143 Ohio St.3d 114,
2015-Ohio-995,
34 N.E.3d 892 and R.C. 2941.25(A).
{¶ 6} R.C. 2941.25 codifies the double-jeopardy protection which prohibits the
imposition of multiple punishments for convictions of allied offenses of similar import.
In re A.G., 148 Ohio St.3d 118,
2016-Ohio-3306,
69 N.E.3d 646, ¶ 11. The trial court
must apply a three-part test for determining whether the defendant has been convicted of
allied offenses of similar import. State v. Williams,
148 Ohio St.3d 403, 2016-Ohio-
7658,
71 N.E.3d 234, ¶ 18, quoting Ruff at 25. The court “must evaluate three separate
factors--the conduct, the animus, and the import--” to determine if the offenses constitute
3.
a single offense or separate offenses. Separate offenses are: (1) “dissimilar in import or
significance—in other words, each offense caused separate, identifiable harm” to a single
victim or there was harm to multiple victims, (2) “committed separately,” or (3)
“committed with separate animus or motivation.” Id. Multiple offenses do not merge if
there is more than one victim harmed or there is more than one type of harm. State v.
Rogers,
143 Ohio St.3d 385,
2015-Ohio-2459,
38 N.E.3d 860, ¶ 4, citing Ruff; State v.
Potts,
2016-Ohio-5555,
69 N.E.3d 1227, ¶ 98 (3d Dist.). We review the trial court’s
determination de novo. State v. Williams,
134 Ohio St.3d 482,
2012-Ohio-5699,
983
N.E.2d 1245, ¶ 28.
{¶ 7} Appellant’s conviction for robbery was based on R.C. 2911.02(A)(2), which
provides that “[n]o person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall … [i]nflict, attempt to inflict, or threaten
to inflict physical harm on another.” Appellant’s conviction for theft was based on R.C.
2913.02(A)(4), which provides that “[n]o person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property or
services … [b]y threat.”
{¶ 8} The two convictions arose out of a single incident involving theft and threats
made against two victims, the pharmacist and another store employee. Thus, there was
separate, identifiable harm caused by the separate threats made during the separate theft
offenses. Rogers at ¶ 4; Ruff at ¶ 23. Therefore, we find appellant’s first assignment of
error not well-taken.
4.
{¶ 9} In his second assignment of error, appellant argues that the trial court failed
to allow appellant’s counsel an opportunity to present mitigating information prior to
sentencing.
{¶ 10} At sentencing, a defendant must be given the opportunity to present
mitigating evidence regarding sentencing. Crim.R. 32(A)(1). If the trial court does not
provide such opportunity, “resentencing is required unless the error was invited or
harmless.” State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493,
108 N.E.3d 1028,
¶ 200, citing State v. Osie,
140 Ohio St.3d 131,
2014-Ohio-2966,
16 N.E.3d 588, ¶ 179.
{¶ 11} We find appellant’s argument unfounded. After the plea agreement was
put into the record and the prosecution presented a statement of the evidence the state
was prepared to present at trial, the trial court asked appellant’s attorney if he would like
to make a statement on behalf of appellant. At that point, the attorney challenged the
convictions must merge for sentencing. After counsel and the prosecution addressed that
issue, the trial court ruled it rejected counsel’s argument, and the trial court then inquired
of appellant whether he would like to make any statement before sentence was imposed.
{¶ 12} There is no requirement that the court repeatedly ask appellant’s counsel to
make statements on behalf of the offender. Clearly, the trial court gave appellant’s
counsel an opportunity to present mitigating evidence. Appellant’s second assignment of
error is found not well-taken.
5.
{¶ 13} Having found that the trial court did not commit error prejudicial to
appellant and that substantial justice has been done, the judgment of the Lucas County
Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
6.
