State v. Jones

[Cite as State v. Jones, 2020-Ohio-1388.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
Nos. 108694, 108795,
v. : 108796, and 108797

ELBERT JONES, :

Defendant-Appellant. :

______________________________________

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 9, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-631648-A, CR-18-631687-A, and CR-18-635092-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Lindsay Raskin, Assistant Prosecuting
Attorney, for appellee.

Ruth R. Fischbein-Cohen, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Elbert Jones, appeals from the trial court’s

judgment that sentenced him to an aggregate term of 21 years in prison. Jones

contends that the trial court’s judgment was in error because the court should have
merged various offenses as allied offenses of similar import, and the trial court failed

to consider the R.C. 2929.11 and 2929.12 sentencing factors. Finding no merit to

the appeal, we affirm.

I. Background

Jones was charged in three cases relating to three separate incidents

that occurred on different dates but were similar in nature. In each incident, Jones

and accomplices, with guns drawn, would approach individuals who had just pulled

into their driveways and rob them. In two of the three incidents, they forced the

victims into their homes and demanded money and other property from them.

In Cuyahoga C.P. No. CR-18-635092, Jones was charged in a 13-

count indictment with three counts of aggravated robbery in violation of R.C.

2911.01(A)(1); six counts of robbery in violation of RC. 2911.02(A)(2) and (3); one

count of grand theft in violation of R.C. 2913.02(A)(1); two counts of theft in

violation of R.C. 2913.02(A)(1); and one count of having weapons while under

disability in violation of R.C. 2923.13(A)(2). Except for the having weapons while

under disability charge, all of the charges carried one- and three-year firearm

specifications. The offenses occurred on December 18, 2017, at a home on Chagrin

Boulevard in Shaker Heights, Ohio; there were two victims.

In Cuyahoga C.P. No. CR-18-631687, Jones was charged in an eight-

count indictment with one count of aggravated burglary in violation of R.C.

2911.11(A)(2); one count of aggravated robbery in violation of R.C. 2911.01(A)(1);

three counts of robbery in violation of R.C. 2911.02(A)(1) and (2); one count of
kidnapping in violation of R.C. 2905.01(A)(2); one count of theft in violation of R.C.

2913.02(A)(1); and one count of having weapons while under disability in violation

of R.C. 2923.13(A)(2). All charges other than the having weapons while under

disability charge had one- and three-years firearm specifications. The offenses

occurred on December 19, 2017, at a home on Charney Road in University Heights,

Ohio; one victim was involved.

In Cuyahoga C.P. No. CR-18-631648, Jones was charged in a seven-

count indictment with: one count of aggravated robbery in violation of R.C.

2911.01(A)(1); one count of grand theft in violation of R.C. 2913.02(A)(1); one count

of theft in violation of R.C. 2913.02(A)(1); one count of criminal damaging in

violation of R.C. 2909.06(A)(1); two counts of improperly handling firearms in a

motor vehicle in violation of R.C. 2923.16(B); and one count of having weapons

while under disability in violation of R.C. 2923.13(A)(2). Except for the criminal

damaging charge, all counts had forfeiture of weapons specifications; the aggravated

robbery, grand theft, and theft charges also had one- and three-year firearm

specifications. The offenses occurred on January 4, 2018, at a home on Wilton Road

in Cleveland Heights, Ohio; there was one victim.

Jones subsequently entered into a plea agreement with the state. In

CR-18-635092, he pleaded guilty to one count of aggravated robbery in violation of

R.C. 2911.01(A)(1) with a three-year firearm specification; one count of aggravated

robbery in violation of R.C. 2911.01(A)(1); grand theft in violation of R.C.
2913.02(A)(1); and having weapons while under disability in violation of R.C.

2923.13(A)(2). All remaining counts and specifications were nolled.

In CR-18-631687, Jones pleaded guilty to aggravated robbery in

violation of R.C. 2911.01(A)(1) with a one-year firearm specification; and having

weapons while under disability in violation of R.C. 2923.13(A)(2). All remaining

counts and specifications were nolled.

In CR-18-631648, Jones pleaded guilty to aggravated robbery in

violation of R.C. 2911.01(A)(1) with a three-year firearm specification and two

forfeiture of weapons specifications; having weapons while under disability in

violation of R.C. 2923.13(A)(2) with two forfeiture of weapons specifications; and

grand theft in violation of R.C. 2913.02(A)(1). All remaining counts and

specifications were dismissed.

At sentencing, the trial court noted that the cases involved three

separate incidents that occurred on different days and involved different victims,

with two victims in CR-18-635092. The court also stated that it had “considered the

purposes and principles of sentencing under Revised Code Section 2929.11,” as well

as “the seriousness and recidivism factors relevant to the offenses and offender

pursuant to 2929.12, and the need for deterrence, incapacitation, rehabilitation, and

restitution.” (Tr. 65.)

In CR-18-635092, the court sentenced Jones to three years on one

aggravated robbery count and three years on the firearm specification (Count 1); and

three years on the other aggravated robbery count (Count 6), noting that the counts
involved separate victims. The court ordered the sentences be served consecutively.

The court ruled that the grand theft conviction merged with the aggravated robbery

counts, and did not sentence Jones on that count. The court sentenced Jones to 12

months on the having weapons while under disability conviction, to be served

concurrent with the aggravated robbery conviction, for a total of nine years

incarceration.

In CR-18-631687, the trial court sentenced Jones to four years for

aggravated robbery and one year on the firearm specification. The court sentenced

Jones to 18 months incarceration on the having weapons while under disability

conviction, to be served concurrent with the total five-year sentence for aggravated

robbery.

In CR-18-631648, the court sentenced Jones to four years on the

aggravated robbery conviction, consecutive to the three-year firearm specification.

The court ruled that the grand theft conviction merged with the aggravated robbery

conviction and did not sentence on that count. The court sentenced Jones to 24

months incarceration on the having weapons while under disability conviction, to

be served concurrent to the total seven-year sentence for aggravated robbery.

After making the appropriate findings under R.C. 2929.14(C) to

impose consecutive sentences, the trial court ordered that the sentences in the three

cases be served consecutively, for a total sentence of 21 years. This appeal followed.
II. Law and Analysis

A. Allied Offenses of Similar Import

In his first assignment of error, Jones contends that the trial court

erred in not merging the sentences in each case. He contends that the offenses in

each incident are allied because the date, address, and victim are the same.

R.C. 2941.25, Ohio’s allied offenses statute, codifies Ohio’s double

jeopardy protection regarding when multiple punishments may be imposed. State

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 12. R.C. 2941.25(A)

allows only a single conviction for offenses that constitute “allied offenses of similar

import.” Under R.C. 2941.25(B), however, a defendant charged with multiple

offenses may be convicted of all the offenses if (1) the offenses are dissimilar in

import or significance; i.e., each offense caused separate identifiable harm; (2) the

offenses were committed separately; or (3) the offenses were committed with

separate animus or motivation. Ruff at ¶ 13.

With respect to CR-18-635092, defense counsel conceded at the plea

hearing that the two aggravated robbery counts to which Jones was pleading guilty

did not merge for sentencing because each count involved a separate victim. (Tr.

35.) State v. Crawley, 8th Dist. Cuyahoga No. 99636, 2014-Ohio-921, ¶ 14 (where a

defendant commits the same offense against separate victims, a separate animus

exists for each victim such that the offenses are not allied). With respect to the other

counts, the trial court merged the grand theft conviction with one of the aggravated

robbery counts, and did not sentence on that count. Accordingly, the only issue for
appeal is whether the having a weapon while under disability count should have

merged with the aggravated robbery convictions. Defense counsel raised this issue

at sentencing but the trial court concluded the convictions did not merge. (Tr. 61,

77.)

In State v. Brown, 8th Dist. Cuyahoga No. 102549, 2015-Ohio-4764,

this court considered whether a having weapons while under disability offense

merged with an aggravated robbery offense. In concluding that the offenses did not

merge, the court stated:

“[The] animus of having a weapon under disability is making a
conscious choice to possess a weapon. [The defendant] necessarily
acquired the guns sometime prior to committing the other crimes. The
fact that he then used the weapons to commit the other crimes does not
absolve [the defendant] of the criminal liability that arises solely from
his decision to illegally possess the weapons.”

Id. at ¶ 12-13, quoting State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-

5723, ¶ 39; see also State v. Carradine, 2015-Ohio-3670, 38 N.E.3d 936, ¶ 58 (8th

Dist.) (carrying concealed weapon and having weapons while under disability did

not merge because acquisition of the firearm was done with a separate animus than

the carrying of the firearm in a concealed manner); State v. Beeler, 9th Dist. Summit

No. 27309, 2015-Ohio-275, ¶ 27 (aggravated robbery does not merge with having

weapons while under disability because defendant’s animus to possess a firearm was

separate and distinct from his animus to rob pizza shop).

Similarly, in this case, Jones necessarily acquired and possessed the

firearm prior to committing the robberies. The offense of having a weapon while
under disability occurred when Jones acquired and possessed the gun, and the

robberies occurred when he used the gun to take the victims’ property. That Jones

used the firearm to commit the robbery does not absolve him of the criminal liability

arising from his illegal possession of the firearm. Accordingly, the trial court did not

err in not merging these offenses for sentencing.

With respect to CR-18-631648, the court merged the grand theft

conviction with the aggravated robbery conviction and did not sentence on that

count. Thus, the only issue for appeal is whether the trial court erred in not merging

the having a weapon while under disability conviction with the aggravated robbery

conviction. As discussed above, the offenses involved a separate animus and,

therefore, the trial court did not err in not merging the offenses.

Finally, with respect to CR-18-631687, we find that Jones waived any

argument regarding merger of the offenses because defense counsel agreed that the

two counts to which Jones pleaded guilty in that case1 would not merge for

sentencing. (Tr. 30.) And even if counsel had not so conceded, in light of our

determination that having a weapon while under a disability involves a separate

animus from aggravated robbery, the trial court did not err in not merging the

convictions in this case.

Jones’s first assignment of error is therefore overruled.

1 Aggravated robbery and having weapons while under disability.
 B. The Trial Court’s Consideration of the Sentencing Factors in
R.C. 2929.11 and 2929.12

In his second assignment of error, Jones contends that the trial court

failed to consider the principles and purposes of sentencing under R.C. 2929.11 and

specifically, the recidivism factor under R.C. 2929.12.

When sentencing a defendant for felony offenses, the court must

consider the purpose and principles of felony sentencing set forth in R.C. 2929.11

and the seriousness and recidivism factors in R.C. 2929.12. State v. Hodges, 8th

Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. R.C. 2929.11(A) provides that a

sentence imposed for a felony shall be reasonably calculated to (1) protect the public

from future crime by the offender and others, (2) punish the offender using the

minimum sanctions the court determines will accomplish those purposes, and (3)

promote the effective rehabilitation of the offender. R.C. 2929.11(B) requires that

the sentence be “commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim,” and “consistent with sentenced

imposed for similar crimes committed by similar offenders.”

The sentencing court must consider the seriousness and recidivism

factors set forth in R.C. 2929.12 in determining the most effective way to comply

with the purposes and principles of sentencing set forth in R.C. 2929.11. Hodges at

¶ 9. R.C. 2929.12 sets forth a nonexhaustive list of factors a trial court must consider

when determining the seriousness of the offense and the likelihood the offender will

commit future offenses.
 Trial courts are not required to make factual findings under R.C.

2929.11 or 2929.12. State v. White, 8th Dist. Cuyahoga No. 106580, 2018-Ohio-

3414, ¶ 9, citing State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-

1020, ¶ 27. In fact, consideration of the factors is presumed unless the defendant

affirmatively demonstrates otherwise. State v. Seith, 8th Dist. Cuyahoga No.

104510, 2016-Ohio-8302, ¶ 12. This court has consistently found that a trial court’s

statement in its sentencing journal entry that it considered the required statutory

factors, without more, is sufficient to fulfill its obligations under R.C. 2929.11 and

2929.12. White at ¶ 9, citing Kronenberg at ¶ 27.

At the sentencing hearing, the trial court stated that it had considered

the record, the statements made at the sentencing hearing, the presentence

investigation report that included the victim impact statements, and the sentencing

memorandum prepared and provided to the court by defense counsel. (Tr. 65.) The

court stated further:

The Court has considered the purposes and principles of sentencing
under Revised Code Section 2929.11, and the seriousness and
recidivism factors relevant to the offenses and offender pursuant to
Revised Code Section 2929.12, and the need for deterrence,
incapacitation, rehabilitation, and restitution.

Id. Likewise, the court’s journal entries of sentencing in each of the three cases

states that “[t]he court considered all required factors of the law,” and that “the court

finds that prison is consistent with the purpose of R.C. 2929.11.” Thus, it is apparent

that the trial court did indeed consider the required statutory factors before

sentencing Jones.
 Jones contends, however, that the trial court did not adequately

consider his apology to the court as a mitigating factor regarding the likelihood of

recidivism. Jones contends that his remorse over his crimes demonstrated that he

is not likely to reoffend in the future, and hence, the trial court should have imposed

a lesser sentence.2

The record refutes Jones’s argument. The court specifically

addressed the issue of recidivism, finding that recidivism was more likely given

Jones’s prior violent criminal conduct. (Tr. 71-72.) The court then stated, “I

understand that Mr. Jones is apologizing, so he’s expressing remorse to this Court

and apologizing to the victim. So there is a consideration of that.” (Tr. 72.)

It is apparent the trial court considered Jones’s apology as a factor

relevant to his sentence, but nevertheless concluded that a lengthy prison sentence

was necessary to protect the public and punish him. Because the trial court

considered the purposes and principles of sentencing set forth in R.C. 2929.11 and

the sentencing factors of R.C. 2929.12, Jones’s argument is without merit. The

second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

2 R.C. 2929.12(E) lists factors that demonstrate the offender is not likely to commit

future crimes, including if “the offender shows genuine remorse for the offense.” R.C.
2929.12(E)(5).
 It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR