[Cite as State v. Bobb, 2011-Ohio-534.]
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, 85 Ohio St.3d 632, 636, 710
N.E.2d 699, 1999-Ohio-291, 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), 6 Ohio St.3d 416; 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.” Id. The Rance court further held
that courts should compare the statutory elements in the abstract. Id.
{¶11} Approximately one year after appellant’s sentence, the Ohio Supreme
Court instructed as follows in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181,
2008-Ohio-1625, 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, 886 N.E.2d 181, citing State v.
Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.
{¶14} However, subsequent to the oral arguments in the present appeal, the
Ohio Supreme Court decided State v. Johnson, ---- N.E.2d ----, 2010-Ohio-6314, 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.” Id., 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, 155 Ohio App.3d 110, 119-120, 799 N.E.2d 229, 2003-Ohio-5588, citing
State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500.
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. 2010-Ohio-6314, 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), 85 Ohio St.3d 632, 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), 38 Ohio St.3d 116, wherein Justice
Whiteside opines “…it is sufficient if both offenses can be committed by the same
conduct …a matter of possibility rather than certainty…” Id. (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,
…”Johnson, supra, at ¶49 (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