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State v. Hurst

Court of Appeals of Ohio, Fourth District

August 28, 2013

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

Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke, Assistant State Public Defender, Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Washington County Assistant Prosecutor, Marietta, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland Presiding Judge

(¶1} This matter comes before us following our decision under App.R. 26(B) to reopen Appellant, Michael Hurst's, direct appeal. Here, Appellant raises a single assignment of error, contends the trial court erred in imposing separate sentences for offenses, which he claims arose from the same conduct, were not committed separately or with a separate animus, and should have been merged for sentencing purposes under R.C. 2941.25. Because we conclude that the trial court did not apply the test for determining allied offenses of similar import set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the portion of the trial court's order sentencing Appellant to consecutive sentences for his convictions on eleven counts in violation of R.C. 2907.323(A)(1)[1] and eleven counts in violation of R.C. 2907.323(A)(3)[2] is hereby vacated and the matter is remanded for further proceedings consistent with this opinion.

FACTS

(¶2} As noted in our decision granting Appellant's application for reopening, Appellant was convicted of eleven counts of illegal use of a minor in nudity oriented material or performance, second degree felonies in violation of R.C. 2907.323(A)(1), eleven counts of illegal use of a minor in nudity oriented material or performance, fifth degree felonies in violation of R.C. 2907.323(A)(3), as well as tampering with evidence, a third degree felony in violation of R.C. 2921.12(A)(2). Appellant was sentenced on each count, to a combined prison term of twenty six and a half years, as evidenced in the trial court's October 13, 2010.

(¶3} Appellant filed an initial appeal from his convictions and sentences, which we affirmed in State v. Hurst, 4th Dist. No. 10CA33, 2012-Ohio-2465. Appellant subsequently filed an application for reopening. Over the objection of the State, this Court granted Appellant's application for reopening regarding to whether appellate counsel was ineffective in failing to raise an assignment of error based upon the trial court's imposition of separate, consecutive sentences for offenses which Appellant argues were allied offenses of similar import under R.C. 2941.25. In granting Appellant's application, this Court concluded that Appellant had raised a colorable claim of ineffective assistance of counsel based upon appellate counsel's failure to challenge the trial court's imposition of separate, consecutive sentences for offenses which possibly should have been merged as allied offenses of similar import under the test set forth in State v. Johnson, supra. Thus, the matter is now before us once again, via a reopened direct appeal, wherein Appellant raises a single assignment of error for our review

ASSIGNMENT OF ERROR

"I. THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER RC. 2941.25."

(¶4} In his sole assignment of error, Appellant contends that the trial court erred in imposing separate sentences for offenses, which he claims arose from the same conduct, were not committed separately or with a separate animus, and should have been merged for sentencing purposes under R.C. 2941.25. More specifically, Appellant contends that the offenses of which he was convicted, which involved both the "transfer" and "possession" sections of the illegal use of a minor in nudity oriented material or performance statute, were committed by the same conduct and are therefore allied offenses of similar import under the reasoning of the Supreme Court of Ohio in State v Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.

R.C. 2941.25 provides:

"(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. (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."

(¶5} As the Supreme Court explained in State v. Johnson at ¶ 47, under R.C. 2941.25, "the court must determine prior to sentencing whether the offenses were committed by the same conduct." The initial question is whether it is possible to commit the two offenses with the same conduct. Johnson at 48. If so, we must then look to the facts of the case and determine whether the two offenses actually were committed by the same conduct, "i.e., 'a single act, committed with a single state of mind.' " Johnson at ¶ 49; quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50.

(¶6} "If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged." Johnson at ΒΆ 50. "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 ...


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