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State of Ohio v. Kayla Jarvi

December 3, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KAYLA JARVI, DEFENDANT-APPELLANT.



Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2010 CR 92.

The opinion of the court was delivered by: Thomas R. Wright, J.

Cite as

State v. Jarvi,

OPINION

Judgment: Reversed and remanded.

{¶1} This appeal is from the sentencing judgment in a criminal action before the Ashtabula County Court of Common Pleas. Appellant, Kayla Jarvi, seeks to contest the propriety of the two prison terms which the trial court imposed in light of her conviction on charges of aggravated robbery and aggravated burglary. Specifically, she contends that only one sentence should have been imposed because the two charges were allied offenses of similar import.

{¶2} In March 2010, appellant was indicted on two counts of complicity in the commission of aggravated murder, one count of complicity in the commission of murder, one count of complicity in the commission of involuntary manslaughter, and one count of complicity in the commission of aggravated robbery. These charges were predicated upon an incident in which appellant and three other persons trespassed into the home of Richard Hackathorn, an individual who had given financial aid to appellant in the past. After Hackathorn refused to give appellant any money on that particular occasion, one of her male companions struck Hackathorn with a wooden club, causing him to fall on the floor. Appellant then removed Hackathorn's wallet from his pocket and took a sum of money.

{¶3} After the criminal case against appellant had been pending for over fifteen months, the state filed an information which charged her with two new offenses based upon the incident in the Hackathorn home. Specifically, the state had now charged her with one count of aggravated robbery, a first-degree felony under R.C. 2911.01(A)(3), and one count of aggravated burglary, a first-degree felony under R.C. 2911.11(A)(1).

{¶4} One day following the submission of the information, appellant entered a written and oral plea of guilty to both of the new charges. In response, the state agreed to dismiss all five original counts under the indictment. Upon conducting the necessary colloquy with appellant in accordance with Crim.R. 11, the trial court accepted the guilty plea and cancelled her scheduled trial.

{¶5} During the separate sentencing hearing, appellant's attorney moved the trial court to merge the two offenses for sentencing purposes, arguing that the elements of the crimes were too similar. In response, the state maintained that a separate prison term for each crime could be imposed because, unlike aggravated burglary, aggravated robbery required the commission, or attempted commission, of a theft offense. Without making a specific ruling on the "merger" question, the trial court imposed two separate nine-year terms for the respective offenses, but ordered the two terms to be served concurrently.

{¶6} In appealing the trial court's "sentencing" decision, appellant has asserted one assignment of error for review:

{¶7} "The trial court erred when it failed to merge aggravated burglary and aggravated robbery as allied offenses."

{ΒΆ8} In maintaining that the trial court erred in imposing a separate sentence for each of the charged offenses, appellant first contends that the elements of aggravated robbery and aggravated burglary correspond to such a degree that the two crimes must be deemed allied offenses of similar import. Second, she submits that, since the crimes were committed almost ...


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