[Cite as State v. Robinson,

.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 17

v. : T.C. NO. 11CR187 11CR239 NICKLAUS I. ROBINSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 26th day of October , 2012.

..........

NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Nicklaus I. [Cite as State v. Robinson,

.] Robinson, filed April 27, 2012. Robinson appeals from the trial court’s April 2, 2012

judgment entry of conviction and sentence to an aggregate term of 30 months for multiple

offenses.

{¶ 2} Robinson was indicted, on August 16, 2011, in Case No. 2011 CR 187, on

one count of breaking and entering, in violation of R.C. 2911.13(A)(C), a felony of the fifth

degree (count one); one count of theft, in violation of R.C. 2913.02(A)(1)(B)(2), a

misdemeanor of the first degree (count two); one count of unauthorized use of a motor

vehicle, in violation of R.C. 2913.03(B)(D)(3), a felony of the fifth degree (count three); one

count of theft, in violation of R.C. 2913.02(A)(1)(B)(2), a misdemeanor of the first degree

(count four); and one count of theft, in violation of R.C. 2913.02(A)(1)(B)(2)/2913.71(A), a

felony of the fifth degree (count five). Robinson was released on his own recognizance, and

the August 26, 2011 Entry provides in part:

The condition of this Recognizance is such that if the above bound

Nicklaus Ian Robinson personally be and appear before said Common Pleas

Court at the call of the Court then and there to answer [the above charges]

and abide the order and judgment of the Court, and appear from day to day

and not depart without leave until such case is finally disposed of, then this

recognizance shall be void; otherwise it shall be and remain in full force and

virtue in law.

SPECIAL CONDITIONS:

Restrictions on travel Defendant is on house arrest at 415 Moull St.,

except to go directly to and from court hearing, attorney’s office and drug test

on Monday, August 29, 2011. [Cite as State v. Robinson,

.] {¶ 3} On October 13, 2011, in Case No. 2011 CR 239, Robinson was indicted on

one count of failure to appear in relation to case no. 2011 CR 187, in violation of R.C.

2937.29/2937.99(B), a felony of the fourth degree.

{¶ 4} On February 13, 2012, Robinson pled guilty to all of the above offenses. At

the sentencing hearing, defense counsel argued that counts one and two in 2001 CR 187 are

allied offenses, and that “there are no additional counts that would merge for purposes of

sentencing.” Counsel further stated that Robinson “made the decision in case 187 to break

into the Depot and to take the car and to steal the money and the credit cards under the

influence of drugs for the purpose of obtaining more drugs.” Counsel for Robinson also

stated as follows: “I also reviewed the PSI and find that it is relatively accurate. My client

informs me or just informed me as the State was reciting prior convictions that he does not

have a conviction for forgery. I do not have any additional information beyond what my

client tells me * * * According to my client, he has no prior felony convictions * * * .”1

{¶ 5} The court merged counts one and two, and the State elected to proceed to

sentencing on count one. The trial court sentenced Robinson to 12 months on count one; 12

months on count three; three months on count four; 10 months on count five; and 18 months

for failure to appear. The court specifically found Robinson was not amenable to

community control and “that the offense in 2011 CR 239 was committed while defendant

was on bond.” The court indicated that it reviewed the purposes and principles of

sentencing, and the judgment entry of conviction provides: “All counts are concurrent with

each other except that Count one in [C]ase 2011 CR 187 and Count one in Case 2011 CR

1 Although counsel disputed the forgery conviction, he did not dispute the prior receiving stolen property conviction in Columbus, Ohio. 4

239 are consecutive to each other making a total confinement of thirty (30) months.”

Regarding consecutive sentences, the court further specifically found that “consecutive

sentences are imposed on the two counts mentioned because consecutive sentence is

necessary to protect the public from future crime and punish the defendant,” and that

“consecutive sentences are not disproportionate to the seriousness of defendant’s conduct,

and to the danger defendant poses to the public.” Finally, the court specifically found that

Robinson committed one or more offenses while awaiting trial.

{¶ 6} The pre-sentence investigation report provides that, on August 3, 2011, John

Dike reported to Urbana Police Officer Kip Michael that Robinson took his 2001 Honda

Accord without his permission, and that he believed Robinson “might be en route to

Springfield to buy cocaine,” because Dike’s “wallet was missing containing $130.00.”

Dike and his roommate, Daniel Scott, also reported that a television and an Xbox were

missing. The report further provides that on August 6, 2011, a Columbus police officer

observed Dike’s vehicle in a hotel parking lot with Robinson inside. After being taken into

custody, the report provides that Robinson admitted that “he had got rid of” the Xbox and

television, and that he had burglarized a coffee shop and stolen $200.00. Robinson also had

Daniel Scott’s credit card in his possession, which he stated he used to buy cigarettes,

according to the report.

{¶ 7} Robinson’s version of events, as reflected in the police report,

provides in part: I started using heroin and cocaine and with-in (sic) a

matter of 2 weeks, I committed everything that I’m in trouble for. All of the

things I did, I did while high on drugs. Even when I left the Caring Kitchen 5

where I was on house arrest at, and ended up missing my court date. I

picked up the failure to appear charge because of that. The whole reason I

left the Caring Kitchen was because I was given drugs by someone in the

[C]aring Kitchen who was staying there and I left there not with the intention

of missing my court date or going on the run - but I just wanted to get more

drugs. It’s as if once I start doing drugs, I can’t stop and all that matters is

getting my next high. When I took John [D]ike’s car, I was on 5 different

drugs and once again, I just wanted my next fix.

{¶ 8} The report provides that Robinson was convicted of assault in 2006, and

multiple misdemeanor drug related offenses in 2010. The report also indicates that

Robinson’s record consists of receiving stolen property and “forgery uttering,” in Columbus,

Ohio, in Case No. 17686-1-11, in 2011. The report further indicates that Robinson

completed an out-patient substance abuse treatment program at Talbot Hall in Columbus in

2002, and also completed the Licking County Alcohol Prevention Program in 2001.

{¶ 9} Robinson asserts three assignments of error. His first assignment of error

is as follows:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY SENTENCING

DEFENDANT FOR UNAUTHORIZED USE OF A MOTOR VEHICLE AND THEFT,

WHEN THOSE OFFENSES CONSTITUTED ALLIED OFFENSES OF SIMILAR

IMPORT.”

{¶ 10} Robinson asserts that the money he took that resulted in the theft charge at

issue was “attached to the keys to the car within a wallet.” According to Robinson, he 6

“committed both offenses with the same conduct. Obviously, Mr. Robinson could not take

the automobile without first taking the keys. Because the keys were attached by metal wire

to a wallet, which contained the currency, the acts were committed with the same conduct.”

{¶ 11} Ohio’s multiple counts statute provides:

(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.

(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} As the Ohio Supreme Court instructed in State v. Johnson,

,

,

, ¶ 48-51.

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. * * * 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. 7

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.” * * *

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 the defendant has separate animus for each

offense, then, according to R.C. 2941.25(B), the offenses will not merge.

{¶ 13} R.C. 2913.03 proscribes the unauthorized use of a vehicle and provides in

part: “(B) No person shall knowingly use or operate an aircraft, motor vehicle, motorboat, or

other motor-propelled vehicle without the consent of the owner or person authorized to give

consent, and either remove it from this state or keep possession of it for more than

forty-eight hours.”

{¶ 14} R.C. 2913.02 proscribes theft and provides in part: “(A) No person, with

purpose to deprive the owner of property or services, shall knowingly obtain or exert control

over either the property or services in any of the following ways: (1) Without the consent of

the owner or person authorized to give consent.”

{¶ 15} Robinson did not argue that the unauthorized use of a vehicle and theft

were subject to merger at the time of his plea or sentencing. See State v. Rogers, 2d Dist.

Greene No. 2011 CA 0057,

(concluding that Rogers’ failure to argue at

sentencing that theft and passing bad checks were allied offenses waived all but plain error, 8

and holding that merger was avoided because Rogers’ conduct in stealing the check was not

the same conduct in which he engaged when he negotiated the check). Nothing in the

record supports Robinson’s assertion that in committing the unauthorized use of a vehicle,

and in taking Dike’s money, he committed a single act with a single state of mind. Rather,

the pre-sentence investigation report makes clear that Robinson took Dike’s car to drive to

Columbus to purchase drugs with Dike’s money, which is consistent with defense counsel’s

representation at the sentencing hearing. Although the vehicle was recovered, the record

does not support a conclusion that the cash was recovered. Furthermore, nothing in the

record supports a conclusion that the wallet containing cash was attached to the car keys, nor

a finding that the theft of the cash and misuse of the vehicle were accomplished by the same

conduct. Since the trial court did not err in sentencing Robinson for unauthorized use of a

vehicle and theft, his first assigned error is overruled.

{¶ 16} Robinson’s second assignment of error is as follows:

“THE COURT COMMITTED REVERSIBLE PLAIN ERROR AND OTHERWISE

ABUSED ITS DISCRETION ON ALL SENTENCES IMPOSED IN BOTH CASES IN

VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHTS TO BE FREE FROM

CRUEL AND UNUSUAL PUNISHMENT.”

{¶ 17} As this Court has previously noted:

We review a felony sentence using a two-step procedure. State v.

Kalish,

,

,

, [¶ 4]. First,

we must “examine the sentencing court’s compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is 9

clearly and convincingly contrary to law.”

If this step is satisfied, the

trial court’s sentencing must then be reviewed on an abuse of discretion

standard.

Generally, abuse of discretion occurs when a decision is

grossly unreasonable, unsound, illegal, or unsupported by the evidence.

State v. Money, 2d Dist. Clark No. 2009 CA 119,

, [¶ 13].

“Ordinarily, a trial court does not abuse its discretion when it imposes a

sentence within the range permitted by the applicable statute.” State v.

Bailum, 2d Dist. Clark No. 2007 CA 55,

, [¶ 5].

State v. Roebuck, 2d Dist. Montgomery No. 24799,

.

{¶ 18} R.C. 2929.13, as amended by Am. Sub. H.B. 86, effective September 30,

2011, creates a presumption in favor of community control and provides in relevant part:

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence, the court shall sentence the offender

to a community control sanction of at least one year’s duration if all of the

following apply:

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense of violence that is a misdemeanor and that the

offender committed within two years of the offense for which sentence is

being imposed.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree. 10

(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department,

within the forty-five day period specified in that division, provided the court

with the names of, contact information for, and program details of one or

more community control sanctions of at least one year’s duration that are

available for persons sentenced by the court.

(b) The court has discretion to impose a prison term upon an offender

who is convicted of or pleads guilty to a felony of the fourth or fifth degree

that is not an offense of violence if any of the following apply:

***

(iii) The offender violated a term of the conditions of bond as set by

the court.

***

(c) If a court that is sentencing an offender who is convicted of or

pleads guilty to a felony of the fourth or fifth degree that is not an offense of

violence believes that no community control sanctions are available for its

use that, if imposed on the offender, will adequately fulfill the overriding

principles and purposes of sentencing, the court shall contact the department

of rehabilitation and correction and ask the department to provide the court

with the names of, contact information for, and program details of one or

more community control sanctions of at least one year’s duration that are

available for persons sentenced by the court. Not later than forty-five days 11

after receipt of a request from a court under this division, the department shall

provide the court with the names of, contact information for, and program

details of one or more community control sanctions of at least one year’s

duration that are available for persons sentenced by the court, if any. Upon

making a request under this division that relates to a particular offender, a

court shall defer sentencing of that offender until it receives from the

department the names of, contact information for, and program details of one

or more community control sanctions of at least one year’s duration that are

available for persons sentenced by the court or for forty-five days, whichever

is the earlier.

***

(2) If division (B)(1) of this section does not apply, except as provided

in division (B)(3) * * * of this section, in sentencing an offender for a felony

of the fourth or fifth degree, the sentencing court shall determine whether any

of the following apply:

***

(h) The offender committed the offense while under a community

control sanction, while on probation, or while released from custody on a

bond or personal recognizance.

***

(3)(a) If the court makes a finding described in division (B)(2) * * *

(h) of this section and if the court, after considering the factors set forth in 12

section 2929.12 of the Revised Code, finds that a prison term is consistent

with the purposes and principles of sentencing set forth in section 2929.11 of

the Revised Code and finds that the offender is not amenable to an available

community control sanction, the court shall impose a prison term upon the

offender.

{¶ 19} Section Four of Am. Sub. H.B. 86 provides: “The amendments to * * *

division (B) of section 2929.13 * * * of the Revised Code that are made in this act apply to

a person who commits an offense specified or penalized under those sections on or after the

effective date of this section and to a person to whom division (B) of section 1.58 of the

Revised Code make the amendments applicable.”

{¶ 20} R.C. 1.58(B) provides: “If the penalty, forfeiture, or punishment for any

offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or

punishment, if not already imposed, shall be imposed according to the statute as amended.”

{¶ 21} R.C. 2929.14(C), as amended by Am.Sub. H.B. 86, provides:

(C)(4) 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 crimes or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public, and

if the court also finds any of the following: 13

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, * * * .

***

{¶ 22} Since Am.Sub. H.B. 86 took effect on September 30, 2011, and the trial

court sentenced Robinson on March 16, 2012, the trial court was required to sentence him

under the new provisions. Robinson initially argues that the trial court failed to comply

with R.C. 2929.13(B)(1)(c), in Case No. 2011-CR-187, in that it did not contact the

department of rehabilitation and correction and request information regarding community

control sanctions prior to imposing a prison term. We conclude that Robinson is exempted

from the application of R.C. 2929.13(B)(1)(c), by virtue of the application of R.C.

2929.13(B)(1)(iii), pursuant to which the court acted within its discretion in imposing a

prison term, since Robinson violated the bond imposed in Case No. 2011 CR 187. The court

possessed the discretion since Robinson failed to appear in court as ordered.

{¶ 23} Regarding Case No. 2011 CR 239, R.C. 2929.13(B)(2)(h) requires the

court to determine whether the offender committed the offense while released from custody

on “a bond or personal recognizance,” and the court specifically made such a finding, as well

as a finding that Robinson is not amenable to community control. R.C. 2929.13(B)(3)(a)

then allowed the court to impose a prison term. We further note that Robinson’s felony

sentences do not exceed the statutory range. R.C. 2929.14(A)(4);(5). Finally, the court

made the requisite findings under R.C. 2929.14(C)(a).

{¶ 24} Since Robinson’s sentences are not contrary to law, and since an abuse of

discretion is not demonstrated, his second assigned error is overruled. 14

{¶ 25} Robinson’s third assigned error is as follows:

“THE DEFENDANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE

OF COUNSEL.”

{¶ 26} According to Robinson, defense counsel was defective for failing to assert

that counts three and four were allied offenses of similar import and for failing to object to

the trial court’s failure to request information regarding sanctions from the department of

rehabilitation and correction.

{¶ 27} As this Court has previously noted:

“We review the alleged instances of ineffective assistance of trial

counsel under the two prong analysis set forth in Strickland v. Washington

(1984),

,

,

, and adopted by the

Supreme Court of Ohio in State v. Bradley (1989),

, * * *.

Pursuant to those cases, trial counsel is entitled to a strong presumption that

his or her conduct falls within the wide range of reasonable assistance.

Strickland,

. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell

below an objective standard of reasonableness and that his errors were serious

enough to create a reasonable probability that, but for the errors, the result of

the trial would have been different.

Hindsight is not permitted to distort

the assessment of what was reasonable in light of counsel’s perspective at the

time, and a debatable decision concerning trial strategy cannot form the basis

of a finding of ineffective assistance of counsel.” (Internal citation omitted). 15

State v. Mitchell, 2d Dist. No. 21957,

.

{¶ 28} As discussed at length above, the record is clear that unauthorized use of a

vehicle and the theft offense at issue were not subject to merger at sentencing, and an

argument to the contrary would not have altered the outcome of the proceedings below.

Further, the trial court was not required to comply with R.C. 2929.13(B)(1)(c) prior to

imposing a prison term, since R.C. 2929.13(B)((1)(b)(iii) granted the court discretion to

sentence Robinson to prison. Since ineffective assistance is not demonstrated, Robinson’s

third assignment of error is overruled, and the judgment of the trial court is affirmed.

..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Nick A. Selvaggio Daniel F. Getty Hon. Roger B. Wilson