[Cite as State v. Freeders, 2011-Ohio-4871.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 23952
vs. : T.C. CASE NO. 09CR1888
CODY A. FREEDERS :
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 23rd day of September, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422
Attorney for Plaintiff-Appellee
Daniel E. Brinkman, Atty. Reg. No. 0025365, 120 West Second Street,
Suite 2000, Liberty Tower, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} On June 8, 2009, Defendant Cody Freeders, accompanied
by David Rupp, drove to 14990 Brookville-Pyrmont Road in Perry
Township, the home of Jeffrey Todd. Defendant was armed with a
handgun. Rupp had a baseball bat. Defendant believed that Todd
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owed him money, and his purpose or intent was to assault and/or
rob Todd.
{¶ 2} Defendant and Rupp entered Todd’s residence without
permission. A physical altercation occurred inside the residence,
during which Defendant assaulted Todd with the gun and pointed
it at him. Todd’s roommate ran to a neighbor’s house and called
police.
{¶ 3} Defendant’s vehicle was later stopped by police.
Defendant told police a gun was under the front seat, and police
saw a baseball bat on the back seat. Defendant was arrested.
Rupp told police that Defendant had a gun inside Todd’s residence.
{¶ 4} Defendant was indicted on two counts of aggravated
burglary, one in violation of R.C. 2911.11(A)(1) and the other
in violation of R.C. 2911.11(A)(2), one count of felonious assault
in violation of R.C. 2903.11(A)(2), and one count of having weapons
under disability in violation of R.C. 2923.13(A)(2). A three year
firearm specification, R.C. 2941.145, was attached to the
aggravated burglary and felonious assault charges.
{¶ 5} Defendant entered a plea of guilty to the weapons under
disability charge. Following trial to the court, Defendant was
found guilty of the remaining charges and specifications. The
trial court sentenced Defendant to concurrent five year prison
terms on each of the charges, merged the firearm specifications,
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and imposed one additional and consecutive three year prison term
on those, for a total sentence of eight years.
{¶ 6} Defendant timely appealed to this court from his
conviction and sentence. Defendant’s appellate counsel filed an
Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 19 L.Ed.2d 493, stating that he could find no meritorious
issues for appellate review. We notified Defendant of his
appellate counsel’s representations and afforded him ample time
to file a pro se brief. None was received.
{¶ 7} In performing our independent review of the record
pursuant to Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct, 346,
102 L.Ed. 2d 300, we discovered one non-frivolous error that merited
review: whether Defendant’s convictions for aggravated burglary
in two forms, R.C. 2911.11(A)(1) (serious physical harm), and R.C.
2911.11(A)(2) (deadly weapon/dangerous ordnance), are on this
record and per State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569
allied offenses of similar import that must be merged pursuant
to R.C. 2941.25. We appointed new appellate counsel to argue that
issue. This matter is now before us for a decision on the merits
of that issue.
ASSIGNMENT OF ERROR
{¶ 8} “WHETHER DEFENDANT’S CONVICTIONS FOR AGGRAVATED
BURGLARY IN TWO FORMS, R.C. 2911.11(A)(1) (SERIOUS PHYSICAL HARM),
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AND R.C. 2911.11(A)(2) (DEADLY WEAPON/DANGEROUS ORDNANCE), ARE,
ON THE RECORD AND PER STATE V. BROWN, 119 OHIO ST.3D 447,
2008-OHIO-4569, ALLIED OFFENSES OF SIMILAR IMPORT THAT MUST BE
MERGED PURSUANT TO R.C. 2941.25.”
{¶ 9} R.C. 2911.11 defines the offense of aggravated robbery
and provides:
{¶ 10} “(A) No person, by force, stealth, or deception, shall
trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when another
person other than an accomplice of the offender is present, with
purpose to commit in the structure or in the separately secured
or separately occupied portion of the structure any criminal
offense, if any of the following apply.
{¶ 11} “(1) The offender inflicts, or attempts or threatens
to inflict physical harm on another;
{¶ 12} “(2) The offender has a deadly weapon or dangerous
ordnance on or about the offender’s person or under the offender’s
control.”
{¶ 13} The Double Jeopardy Clause of the United States
Constitution, which applies to the States through the Fourteenth
Amendment prohibits multiple punishments for the same offense.
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10.
However, the Double Jeopardy Clause only prohibits a sentencing
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court from prescribing greater punishment than the legislature
intended. Id., at ¶11. The two-tiered test set forth in R.C.
2941.25, Ohio’s multiple count statute, resolves both the
constitutional and state statutory inquiries regarding the General
Assembly’s intent to permit cumulative punishments for the same
conduct. Id., at ¶12. However, it is not necessary to resort
to that test when the legislature’s intent to impose multiple
punishments is clear from the language of the statute. Id., at
¶37.
{¶ 14} Ohio’s multiple counts statue, R.C. 2941.25, provides:
{¶ 15} “(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.
{¶ 16} “(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.”
{¶ 17} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,
the Ohio Supreme Court announced a new test for determining when
offenses are allied offenses of similar import that must be merged
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pursuant to R.C. 2941.25. Johnson overruled the previous test
announced in State v. Rance (1999), 85 Ohio St.3d 632, and 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 syllabus. The Supreme
Court explained its holding at ¶47-51, stating:
{¶ 18} “Under R.C. 2941.25, the court must determine prior to
sentencing whether the offenses were committed by the same conduct.
Thus, the court need not perform any hypothetical or abstract
comparison of the offenses at issue in order to conclude that the
offenses are subject to merger.
{¶ 19} “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. Blankenship, 38 Ohio St.3d at 119, 526
N.E.2d 816 (Whiteside, J., concurring) (‘It is not necessary that
both crimes are always committed by the same conduct but, rather,
it is sufficient if both offenses can be committed by the same
conduct. It is a matter of possibility, rather than certainty,
that the same conduct will constitute commission of both offenses.’
[Emphasis sic]). If the offenses correspond to such a degree that
the conduct of the defendant constituting commission of one offense
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constitutes commission of the other, then the offenses are of
similar import.
{¶ 20} “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.’ Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).
{¶ 21} “If the answer to both questions is yes, then the offenses
are allied offenses of similar import and will be merged.
{¶ 22} “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 if the defendant
has separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.”
{¶ 23} Johnson is a welcome relief from the abstractions of
Rance and is more consistent with R.C. 2941.25 in that the tests
it imposes apply to the conduct in which the defendant actually
engaged. If that conduct can be construed to violate two or more
sections of the criminal code, the offenses involved are allied
offenses of similar import per R.C. 2941.25(A). The offenses must
then be merged unless the conduct in which Defendant engaged was
committed separately or with a separate animus as to each offense.
R.C. 2941.25(B).
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{¶ 24} The record demonstrates that after Defendant kicked open
Todd’s back door and forcibly entered Todd’s residence while armed
with a gun, an altercation ensued inside the residence between
Todd and Defendant during which Defendant struck Todd in the side
of the head with the gun and pointed the gun at Todd while demanding
money. That conduct violates both R.C. 2911.11(A)(1) and
2911.11(A)(2). Therefore, Defendant’s violations of both R.C.
2911.11(A)(1) and 2911.11(A)(2) are allied offenses of similar
import for purposes of R.C. 2941.25(A). Johnson, at ¶48. The
further issue is whether the exception to merger in R.C. 2941.25(B)
applies.
{¶ 25} The State concedes that Defendant’s violations of R.C.
2911.11(A)(1) and 2911.11(A)(2) are allied offenses of similar
import per R.C. 2941.25(A). We agree. The State argues that the
offenses are nevertheless not subject to merger per R.C. 2941.25(B)
because they were committed with a separate animus as to each.
The State distinguishes the (A)(1) offense, hitting Todd in the
side of his head with a pistol, from the (A)(2) offense, pointing
the pistol at Todd’s face and demanding money from him.
{¶ 26} The test that R.C. 2941.25(A) imposes examines the
defendant’s criminal conduct instrumentally, in relation to the
statutory elements of the multiple offenses concerned. The
“animus” test that R.C. 2941.25(B) imposes is different. It
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examines the defendant’s evil purpose or evil immediate motive
for engaging in that criminal conduct. State v. Logan (1979),
60 Ohio St.2d 126. In the present case, unless Defendant’s
violations of R.C. 2911.11(A)(1) and (A)(2) were committed with
an animus separate from the other, per R.C. 2941.25(B), their merger
is mandated by R.C. 2941.25(A). Merger is likewise mandated
unless, per R.C. 2941.25(B), the allied offenses were committed
separately as to time, place, and circumstance.
{¶ 27} R.C. 2941.25(A) is complete in its terms, requiring a
merger of allied offenses. R.C. 2941.25(B) operates as an
exception to the merger that R.C. 2941.25(A) requires. In State
v. Hodge, 124 Ohio St.3d 319, 2010-Ohio-2, the Supreme Court held
that an erroneous failure to merge convictions for allied offenses
requires a new sentencing hearing. We believe that, on this
record, that hearing should include determination of whether the
exceptions in R.C. 2941.25(B) apply to permit separate convictions.
{¶ 28} The assignment of error is sustained. Defendant’s
sentences for violations of R.C. 2911.11(A)(1) and 2911.11(A)(2)
are reversed and vacated. The case is remanded to the trial court
for further proceedings pursuant to this section.
FROELICH, J. And CANNON, J., concur.
(Hon. Timothy P. Cannon, Eleventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
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Copies mailed to:
Johnna M. Shia, Esq.
Daniel E. Brinkman, Esq.
Hon. Mary Lynn Wiseman
State v. Freeders
Combined Opinion