[Cite as State v. Bobb,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. CT2007-0076 JUSTIN A. BOBB

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2006-0314

JUDGMENT: Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: February 3, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MICHAEL HADDOX ROBERT D. ESSEX PROSECUTING ATTORNEY 1664 East Broad Street RON WELCH Suite 302 ASSISTANT PROSECUTOR Columbus, Ohio 43203 27 North Fifth Street, Suite 201 Zanesville, Ohio 43701 Muskingum County, Case No. CT2007-0076 2

Wise, J.

{¶1} Appellant Justin A. Bobb appeals from his conviction on several counts of

theft-related felony offenses in the Court of Common Pleas, Muskingum County. The

relevant facts leading to this appeal are as follows.

{¶2} On December 29, 2006, appellant pled guilty to one count of aggravated

burglary (F-1), one count of robbery (F-2), two counts of theft of a firearm (F-3), one

count of theft of drugs (F-4), and one count of theft (F-5). The trial court accepted

appellant’s pleas and set the matter for sentencing on February 12, 2007. At that time,

appellant was sentenced to five years in prison on the aggravated burglary count, five

years on the robbery count, one year on each of the theft of firearm counts, one year on

the theft of drugs count, and eleven months on the theft count. All counts were ordered

to run concurrently, except the two theft of firearm counts, which were ordered to run

consecutively to each other and to the remaining counts. The total sentence was thus

seven years in prison.

{¶3} On or about May 19, 2010, appellant obtained leave from this Court to file

a delayed appeal. Although we had earlier denied appellant’s request for leave for a

delayed appeal, the State asked us to reconsider same due to a habeas order from the

United States District Court.

{¶4} Appellant herein raises the following sole Assignment of Error:

{¶5} “I. THE ROBBERY AND THEFT COUNTS ARE ALLIED OFFENSES OF

SIMILAR IMPORT COMMITTED WITH A SINGLE ANIMUS. THE TRIAL COURT

ERRED BY IMPOSING SEPARATE AND CONSECUTIVE SENTENCES FOR THE

THREE OFFENSES WHEN IT SHOULD HAVE DIRECTED THE PROSECUTOR TO Muskingum County, Case No. CT2007-0076 3

ELECT WHICH OFFENSE(S) APPELLANT SHOULD BE CONVICTED OF AND

SENTENCED ON.”

I.

{¶6} In his sole Assignment of Error, appellant challenges his sentence on the

basis that the two charges for theft of a firearm (Counts 5 and 7) were allied offenses of

similar import to the charge of robbery (Count 3).

{¶7} R.C. 2941.25 reads as follows:

{¶8} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

{¶9} “(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.”

{¶10} Because we are herein addressing a delayed appeal, we are compelled to

recognize the significant changes in allied offense jurisprudence in recent years.1 At the

time of appellant’s conviction and sentence in late 2006 and 2007, the law in Ohio

concerning R.C. 2941.25 was based on State v. Rance,

, 636,

,

, wherein the Ohio Supreme Court had held that offenses

are of similar import if the offenses “correspond to such a degree that the commission of

1 The State has cited, for example, the First District’s decision in State v. Mitchell (1983),

; however, this case predates the Ohio Supreme Court’s recent rulings in this area. Muskingum County, Case No. CT2007-0076 4

one crime will result in the commission of the other.”

The Rance court further held

that courts should compare the statutory elements in the abstract.

{¶11} Approximately one year after appellant’s sentence, the Ohio Supreme

Court instructed as follows in State v. Cabrales,

,

,

, syllabus:

{¶12} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case, but are not required to find an

exact alignment of the elements. Instead, if, in comparing the elements of the offenses

in the abstract, the offenses are so similar that the commission of one offense will

necessarily result in the commission of the other, then the offenses are allied offenses

of similar import.”

{¶13} According to Cabrales, if the sentencing court has initially determined that

two crimes are allied offenses of similar import, the court then proceeds to the second

part of the two-tiered test and determines whether the two crimes were committed

separately or with a separate animus. Id. at 57,

, citing State v.

Blankenship (1988),

,

.

{¶14} However, subsequent to the oral arguments in the present appeal, the

Ohio Supreme Court decided State v. Johnson, ---- N.E.2d ----,

, which

specifically overruled the 1999 Rance decision. The Court held: “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.”

at the syllabus. Muskingum County, Case No. CT2007-0076 5

{¶15} Appellant's two theft of firearm convictions were based on R.C.

2913.02(A)(1), which states: “No person, with purpose to deprive the owner of property

or services, shall knowingly obtain or exert control over either the property or services

*** [w]ithout the consent of the owner or person authorized to give consent.”

{¶16} Appellant's conviction for robbery was based on R.C. 2911.02(A)(2), which

states: “No 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.”

{¶17} In the case sub judice, the three counts in question all apparently

stemmed from the same incident on October 17, 2006, and all involved the same victim,

Myron Thomas, the owner of the firearms. The State, relying on Cabrales, responds that

the original motive for the robbery was that appellant and his co-defendants were

seeking to steal pills and money; hence there was a separate animus for the theft of the

two firearms from Mr. Thomas. In support, the State in its brief directs us to appendices

in the form of Muskingum County Sheriff reports. These appendices, however, do not

appear in the trial court record. Furthermore, because the guilty plea hearing in this

matter predated both Cabrales and Johnson, the trial court was not afforded the

opportunity to review the pertinent issues in the allocution portion of appellant’s plea

hearing transcript of December 29, 2006. We note our review on appeal is limited to

those materials in the record that were before the trial court. See, e.g., State v.

DeMastry,

,

,

, citing

State v. Ishmail (1978),

,

. Muskingum County, Case No. CT2007-0076 6

{¶18} In the interest of justice, appellant's sole Assignment of Error is sustained

to the extent that the matter will be remanded for a new sentencing hearing to analyze

appellant’s conduct in the offenses at issue pursuant to the requirements of Cabrales

and Johnson, and, if necessary, to review potential merger of the offenses for

sentencing.

{¶19} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Muskingum County, Ohio, is hereby reversed in part and remanded

for further proceedings consistent herewith.

By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., dissents.

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JUDGES JWW/d 1217 Muskingum County, Case No. CT2007-0076 7

Hoffman, P.J., dissenting

{¶20} I respectfully dissent from the majority opinion. I believe the record of the

sentencing hearing is sufficient to allow this Court to determine the issue presented by

applying State v. Johnson, Slip Opinion No.

, and to address the State’s

argument regarding separate animus – without the need to examine the Muskingum

County Sheriff reports or for further hearing.

{¶21} This case presents the first opportunity I have had to apply Johnson.

Having read Johnson several times, I confess I am left a bit confused as to its

instruction. The fact the decision contains three separate opinions, with one justice

concurring in two of those separate opinions and one justice not concurring in any of the

three opinions, contributes to my confusion. Although all the justices are unanimous in

overruling State v. Rance (1999),

, and at least six justices

acknowledge the difficulty trial courts and the courts of appeals have had applying

Rance, I find the new analysis still confusing. I find some comfort in Chief Justice

Brown’s concession “this analysis may be sometimes difficult to perform and may result

in varying results for the same set of offenses in different cases. But different results

are permissible…” Id. at ¶52.

{¶22} When choosing to follow the direction of Justice Brown’s “Prospective

analysis”, I am instructed “…, the court need not perform any hypothetical or abstract

comparison of the offenses at issue…” Id. at ¶47. Yet, in the next sentence, we are told

“…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.” Id. at ¶48 (emphasis in original). Justice Brown then quotes Justice Whiteside’s Muskingum County, Case No. CT2007-0076 8

concurring opinion in State v. Blankenship (1988),

, wherein Justice

Whiteside opines “…it is sufficient if both offenses can be committed by the same

conduct …a matter of possibility rather than certainty…”

(emphasis in original). This

language leads me to conclude I begin with a hypothetical or abstract comparison of

whether it is possible the same conduct can result in the commission of both offenses -

something the preceding paragraph specifically advises I need not do.

{¶23} My [mis]interpretation is reinforced in Justice Brown’s next paragraph

wherein he states “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,

…”

(emphasis added). I interpret this to first direct an abstract

comparison of the offenses, and if that comparison results in a determination the

offenses are of similar import, then an analysis of whether the offenses were committed

by the same conduct [in the actual case being reviewed] becomes necessary. Justice

Brown next directs if the answer to both questions is yes, then the offenses are allied

offenses of similar import.” Id. at ¶50 (emphasis added).

{¶24} I now apply what I understand the new test to be to the case sub judice,

because it is possible to commit both robbery and theft by the same conduct, I find

those two offenses are of “similar import”.

{¶25} Having so determined, I must next determine whether the “same conduct”

of Appellant resulted in the commission of the robbery and two theft of firearm counts.2

The majority notes the three counts in question all apparently stemmed from the same

2 My analysis is limited to the robbery and two theft of firearms counts as I am constrained by the legal arguments raised in the briefs as noted by Justice O’Connor in Johnson Id. at ¶70. Muskingum County, Case No. CT2007-0076 9

incident on October 17, 2006, and all involved the same victim (Majority Opinion at

¶17). The majority’s conclusion is supported by a review of the indictment and the trial

court’s allocution at the sentencing hearing (See Tr. Feb. 12, 2007 Sentencing Hearing

at p. 6). The majority’s conclusion is inferentially buttressed by the State’s only offered

rebuttal argument regarding separate animus. Therein, the State does not suggest the

firearm thefts did not occur during the same incident as the robbery. Rather, the State

argues because Appellant’s original intent was only to steal money and drugs, the thefts

of the firearms were committed with separate animus. I find the State’s argument

unpersuasive.

{¶26} Appellant’s underlying animus (to commit a theft during commission of the

robbery) never changed, only the extent of the theft did.

{¶27} I find support for my decision from Justice Brown’s discussion in Johnson

wherein he declines the State’s invitation “to parse” Johnson’s conduct in order to

sustain multiple convictions. Id. at ¶56. Similarly, I decline to parse each and every

individual item taken during the course of the robbery into multiple theft convictions.

_____________________________________

HON. WILLIAM B. HOFFMAN Muskingum County, Case No. CT2007-0076 10

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JUSTIN A. BOBB : : Defendant-Appellant : Case No. CT2007-0076

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is reversed in part

and remanded for further proceedings consistent with this opinion.

Costs assessed to appellee.

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JUDGES