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State v. Ayers

Court of Appeals of Ohio, Twelfth District

June 24, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES MICHAEL AYERS, Defendant-Appellant.

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 10CR26562

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, for plaintiff-appellee

Rose & Dobyns Co., LPA, Scott B. Evans, for defendant-appellant

RINGLAND, J.

{¶ 1} Defendant-appellant, James Michael Ayers, appeals from a Warren County Court of Common Pleas decision resentencing him upon remand from this court to correct an allied-offenses sentencing error.

{¶ 2} On November 24, 2008, Ayers was indicted on one count of breaking and entering, one count of theft, and one count of possession of criminal tools. The charges were based on his alleged role in a robbery at a Save-a-Lot store on October 4, 2008.

{¶ 3} On May 3, 2010, while charges from his November 24, 2008 indictment were still pending, Ayers was also indicted on one count of abduction, one count of grand theft of a motor vehicle, one count of having weapons under disability, one count of unlawful possession of a dangerous ordnance, two counts of aggravated robbery, two counts of breaking and entering, two counts of grand theft, and two counts of kidnapping. These charges were based on his alleged role in three robberies taking place on January 8, 2009 at a Speedway gas station, on June 22, 2009 at Davidson Jewelers, and on July 6, 2009 at the same Save-a-Lot store he was charged with robbing previously.

{¶ 4} On November 8, 2010, Ayers filed a motion requesting the trial court to sever all charges stemming from the November 24, 2008 and May 3, 2010 indictments. In support of this motion, Ayers argued that "the charges against [him arose] from four separate dates and [were] not connected in any way." Thereafter, on November 16, 2010, the state filed a motion to consolidate the charges. That same day, the trial court, "[a]fter listening to the arguments of counsel in chambers, " issued an order granting Ayers' motion to sever the charges stemming from the January 8, 2009 Speedway robbery. The remaining charges resulting from the October 4, 2008 and July 6, 2009 Save-a-Lot robberies, as well as the June 22, 2009 Davidson Jewelers robbery, were then set for trial.

{¶ 5} On November 18, 2010, prior to the start of trial, Ayers pled guilty to one count of breaking and entering, one count of theft, and one count of possession of criminal tools stemming from the October 4, 2008 Save-a-Lot robbery, as well as one count of breaking and entering and one count of grand theft stemming from the June 22, 2009 Davidson Jewelers robbery. Thereafter, once the two-day jury trial was complete, Ayers was found guilty of one count of breaking and entering, one count of aggravated robbery, one count of grand theft, two counts of kidnapping, and one count of grand theft of a motor vehicle, all of which were accompanied by firearm specifications, resulting from the July 6, 2009 Save-a-Lot robbery.

{¶ 6} On December 2, 2010, prior to his sentencing hearing, Ayers pled guilty to one count of aggravated robbery and one count of unlawful possession of a dangerous ordinance, both of which contained firearm specifications, stemming from the January 8, 2009 Speedway robbery. In exchange for his guilty plea, the state dismissed Ayers' remaining abduction and having weapons under disability charges. Ayers was then sentenced to serve a total of 26 years in prison and ordered to pay restitution.

{¶ 7} On appeal, this court held that Count 11, theft, should have been merged with Count 8, aggravated robbery, as allied offenses of similar import. State v. Ayers, 12th Dist. Nos. CA201-12-119 and CA2010-12-120, 2011-Ohio-4719 (Ayers I). Thus, this court reversed and remanded the matter to the trial court to merge those two offenses and resentence Ayers.

{¶ 8} On remand, the trial court resentenced Ayers on November 9, 2011, to an aggregate term of 26 years, seven of which were mandatory.[1]

{¶ 9} Ayers now appeals the new sentence, raising two assignments of error ...


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