[Cite as State v. Adams, 2012-Ohio-4440.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25088
Plaintiff-Appellee :
: Trial Court Case No. 10-CR-216/1
v. :
:
DARRYL E. ADAMS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of September, 2012.
...........
MATHIAS H. HECK, JR., by L. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Darryl E. Adams appeals from his re-sentencing following a remand for the
trial court to hold a hearing to determine whether his theft and breaking-and-entering
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convictions were allied offenses of similar import.
{¶ 2} Adams advances two assignments of error on appeal. First, he contends the
trial court erroneously limited its hearing to his theft and breaking-and-entering convictions.
He claims the trial court also should have considered whether his conviction for possession of
criminal tools was subject to merger. Second, Adams alleges ineffective assistance of trial
counsel based on his attorney’s failure to argue that the criminal-tools conviction should have
merged with the theft conviction.
{¶ 3} The charges against Adams stemmed from his after-hours removal of a snow
blower and a wood chipper from a Tractor Supply store. Police discovered Adams at the scene
with the snow blower and wood chipper in the back of his van. The two pieces of equipment
were connected to one another by a metal cable loop that was wired to an alarm. When Adams
placed the items in his van, he unknowingly pulled the wire, tripped the alarm, and alerted
police. In addition to the snow blower and wood chipper, police found bolt cutters in his van.
{¶ 4} Based on the foregoing incident, Adams pled guilty to theft, breaking and
entering, and possession of criminal tools. The trial court sentenced him to an aggregate prison
term of twenty-one months. Adams appealed, arguing that the three convictions should have
merged at sentencing as allied offenses of similar import. This court resolved the appeal in a
December 9, 2011 opinion, reasoning:
Upon review, we conclude that the record before us contains
insufficient facts to render a determination regarding whether Adams’
convictions for theft and breaking and entering are allied offenses of similar
import, and therefore, subject to merger. Accordingly, this matter is remanded
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to the trial court to conduct a hearing and make a factual determination whether
Adams’ convictions for theft and breaking and entering should be merged.
Remanded for further proceedings consistent with this opinion.
State v. Adams, 197 Ohio App.3d 491, 2011-Ohio-6305, 968 N.E.2d 16, ¶ 9 (2d Dist.).
{¶ 5} The trial court held the required hearing on February 16, 2012. The only
witness was Adams. He testified about seeing the snow blower and wood chipper outside the
Tractor Supply store and deciding to steal them. (Tr. at 14-15). As he pulled the items to his
van, Adams noticed a steel cable wrapped around both of them. (Id. at 16). He proceeded to
place the items in his van with the cable around them. (Id.). He testified that it was not
necessary for him to break the cable loose from the snow blower and wood chipper in order to
steal them. (Id. at 18). Adams admitted not knowing the cable loop had been attached to an
alarm that alerted police. (Id. at 16). Finally, he admitted that bolt cutters were present in the
van when police arrived. He asserted, however, that they were present among other tools and
that he had not used them in the theft. (Id. at 19-20).
{¶ 6} Based on Adams’ testimony, the trial court found that the theft and breaking
and entering were allied offenses of similar import under State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061. The State elected to proceed with sentencing on the
theft conviction. The trial court re-sentenced Adams to twelve months in prison for theft and a
consecutive nine months for the possession-of-criminal-tools conviction. (Id. at 28-29).These
were the same sentences the trial court previously had imposed for those offenses. The result
was that he again received an aggregate twenty-one-month prison term.1
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Despite the merger, Adams’ aggregate prison term did not change because the trial court previously had ordered two nine-month
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{¶ 7} In his first assignment of error, Adams contends the trial court erred in
restricting its remand hearing to his theft and breaking-and-entering convictions. As noted
above, he claims the trial court additionally should have determined whether his
possession-of-criminal-tools conviction was subject to merger under Johnson. In making this
argument, Adams notes that our prior opinion did not address merger of the criminal-tools
conviction. He asserts that this omission “was clearly a scrivener’s error and [that] it was an
abuse of discretion for the trial judge to refuse to consider the possession of criminal tools
conviction in the merger analysis.” (Appellant’s brief at 6).
{¶ 8} We disagree. On remand, this court specifically instructed the trial court “to
conduct a hearing and make a factual determination whether Adams’ convictions for theft and
breaking and entering should be merged.” The trial court complied with this remand order,
and it lacked the authority to do anything more. State v. Russell, 2d Dist. Montgomery Nos.
18155, 18194, 2000 WL 1547085, *8 (Oct. 20, 2000); State v. Letts, 2d Dist. Montgomery No.
17084, 1999 WL 42011, *3 (Jan. 29, 1999) (recognizing that “trial courts have no discretion
to disregard the mandate of a reviewing court, and they have no authority to extend or vary the
mandate given”). Accordingly, the first assignment of error is overruled.
{¶ 9} In his second assignment of error, Adams contends he received ineffective
assistance counsel on remand based on his attorney’s failure to seek merger of the
possession-of-criminal-tools conviction.
{¶ 10} Again, we disagree. The remand was for a specific, limited purpose. Given
sentences for breaking and entering and possession of criminal tools to be served concurrent to each other but consecutive to a twelve-month
sentence for theft. Therefore, removing the breaking-and-entering sentence from the equation did not change the result.
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that our remand order did not permit the trial court to consider whether the criminal-tools and
theft convictions merged, defense counsel did not provide deficient representation by failing to
urge the trial court to exceed the purpose of the remand order. Adams’ second assignment of
error is overruled.
{¶ 11} The judgment of the Montgomery County Common Pleas Court is affirmed.
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FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
R. Lynn Nothstine
Robert Alan Brenner
Hon. Steven K. Dankof