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State v. Smith

Court of Appeals of Ohio, Fifth District

June 21, 2013

STATE OF OHIO Plaintiff - Appellee
v.
RALPH L. SMITH Defendant-Appellant

Appeal from the Licking County Court of Common Pleas, Case No. 12CR00450

For Plaintiff-Appellee, JUSTIN RADIC, Assistant Prosecuting Attorney

For Defendant-Appellant, STEPHEN T. WOLFE, Christopher M. Cooper Co., LPA

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶1} Appellant Ralph L. Smith appeals a judgment of the Licking County Common Pleas Court convicting him of breaking and entering (R.C. 2911.13 (A)) and vandalism (R.C. 2909.05 (B)(1)(a)) upon a plea of guilty, and sentencing him to three years community control, with a sentence of ten months incarceration on each count to be served consecutively if he violates the terms of community control.

STATEMENT OF FACTS AND CASE

{¶2} On August 20, 2012, appellant broke into the Faith United Methodist Church, looking for money to steal. Appellant damaged several pieces of property in the church, including a large door.

{¶3} Appellant was indicted by the Licking County Grand Jury on August 31, 2012, with one count of breaking and entering and one count of vandalism. Appellant appeared before the Licking County Common Pleas Court on January 25, 2013, and pled guilty to both charges. Appellant argued that the offenses should merge for purposes of sentencing. The court rejected his argument and sentenced him to three years community control, ordered him to pay $1, 000.00 in restitution, and in the event appellant violates the terms of his community control he is to serve ten months incarceration consecutively on each count.

{¶4} Appellant assigns a single error on appeal:

{¶5} THE CHARGES WERE ALLIED OFFENSES OF SIMILAR IMPORT THAT SHOULD HAVE MERGED FOR PURPOSES OF SENTENCING.

{¶6} R.C. 2941.25 provides:

{¶7} "(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.

{ΒΆ8} "(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 ...


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