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State v. Craig

Court of Appeals of Ohio, Fourth District, Hens

June 12, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
FREDERICK JOSEPH CRAIG, JR., Defendant-Appellant.

          Timothy Young, Ohio State Public Defender, and Eric M. Hedrick, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

          Keller J. Blackburn, Athens County Prosecutor, Merry M. Saunders, Assistant Athens County Prosecutor, Athens, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge

         {¶1} Frederick Joseph Craig, Jr., appeals the judgment entry of conviction entered on June 22, 2015, in the Athens County Court of Common Pleas. Craig entered a plea agreement and was subsequently convicted of attempted murder, two counts of felonious assault, two counts of aggravated robbery, two counts of aggravated burglary, tampering with evidence, and domestic violence. All charges arose from a domestic incident which occurred on March 11, 2015 at the home of Craig's ex-spouse, Julie Nott, f.k.a. Julie Craig. At sentencing the trial court merged several counts of the original indictment; however, on appeal, Craig asserts in his sole assignment of error that the trial court erred by failing to merge additional offenses that had a similar import, arose from the same conduct, and were not committed separately or with a separate animus. Upon review of the record and consideration of Craig's arguments, we find merit to two of the issues raised in Appellant's sole assignment of error. Accordingly, the judgment of the trial court is reversed in part and this matter is remanded for a limited resentencing where the State will elect which of the allied offenses to pursue for sentencing purposes.

         FACTS

         {¶2} Much of the factual history related herein is taken from the testimony at Appellant's sentencing and set forth in the sentencing transcript. On March 11, 2015, 52-year-old Frederick J. Craig, Jr., ("Appellant") was present at the home of his ex-wife, Julie Nott ("Ms. Nott"). The two had previously been married for nearly 25 years.[1] Appellant had a history of alcohol and drug abuse. According to Ms. Nott and her family, the two had always had a turbulent relationship.

         {¶3} Appellant and Ms. Nott had been sitting on the same couch. At some point, Ms. Nott began to feel uncomfortable and informed Appellant he needed to leave. Appellant walked into the kitchen, retrieved a knife, and stabbed his ex- wife three times in her stomach, chest, and side.[2] He also nearly amputated her thumb. A neighbor and friend, Kelly Sikorski, testified she arrived to discover Ms. Nott on the floor, bleeding, while Appellant stood over her with, "a smirk on his face."

         {¶4} Ms. Sikorski contacted 911 and Appellant was soon after arrested at the scene. Appellant had a ring belonging to Ms. Nott on his person. The knife he used to stab her was later found in a bag of dog food.[3]

         {¶5} An Athens County Grand Jury issued the following indictment against Appellant:

Count 1, attempted murder, R.C. 2923.02/2903.02(A), a felony of the first degree;
Count 2, attempted murder, R.C. 2923.02/2903.02(B), a felony of the first degree;
Count 3, felonious assault, R.C. 2903.11(A)(1), a felony of the second degree;
Count 4, felonious assault, RC.2903.11(A)(2), a felony of the second degree;
Count 5, aggravated robbery, R.C. 2911.01(A)(1), a felony of the first degree;
Count 6, aggravated robbery, R.C. 2911.01(A)(3), a felony of the first degree;
Count 7, aggravated burglary, R.C. 2911.11(A)(2), a felony of the first degree;
Count 8, aggravated burglary, R.C. 2911.11(A)(1), a felony of the first degree;
Count 9, tampering with evidence, R.C. 2921.12(A)(1), a felony of the third degree; and,
Count 10, domestic violence, R.C. 2919.25(A), a misdemeanor of the first degree.

         {¶6} On June 4, 2015, Appellant entered into a plea agreement with the State of Ohio in which he pled to all counts except count two, attempted murder. The parties submitted sentencing memoranda for the court's consideration with regard to which counts could properly be merged for purposes of sentencing. On June 22, 2015, Appellant was sentenced as follows:

1) Count 1 - an 8-year prison term;
2) Count 3 - a 4-year prison term;
3) Count 7 - a 6-year prison term;
4)Count 8 - a 6-year prison term; and,
5) Count 9 - a 2-year prison term.

         {¶7} The trial court ran each sentence consecutively for an aggregate total of 26 years in the state penal system. This timely appeal followed. Where relevant below, we again cite to the transcript of the sentencing hearing for additional facts in evidence.

ASSIGNMENT OF ERROR
"I. THE TRIAL COURT ERRED IN VIOLATION OF MR. CRAIG'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND R.C. 2941.25, WHEN IT FAILED TO MERGE FOR SENTENCING OFFENSES THAT HAD A SIMILAR IMPORT, AROSE FROM THE SAME CONDUCT, AND WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS."
STANDARD OF REVIEW

         {¶8} In State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, we held that when reviewing felony sentences, we apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-759, ¶ 5; Brewer at ¶ 33. See State v. Graham, 4th Dist. Highland No. 13CA11, 2014-Ohio-3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds either that "the record does not support the sentencing court's findings" under the specified statutory provisions or "the sentence is otherwise contrary to law."

         {¶9} "An appellate court should apply a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination." State v. Smith, 4th Dist. Scioto No. 15CA3686, 2016-Ohio-5062, at ¶ 110, quoting State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. " '[T]he appellate court must * * * independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.' " Id. at ¶ 26, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The reviewing court owes no deference to the trial court's application of the law to the particular facts of the case being reviewed. Id.

         LEGAL ANALYSIS

         {¶10} We begin with the case law in the area of merger of allied offenses.

         {¶11} R.C. 2941.25, Ohio's multiple counts statute, 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

         {¶12} The statute codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, and Section 10, Article I of the Ohio Constitution, which prohibits the imposition of multiple punishments for the same offense. Smith, supra, at ¶ 112, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. In other words, upon finding one or more counts to constitute two or more allied offenses of similar import, R.C. 2941.25(A) requires that the convictions be merged for the purposes of sentencing and that the defendant only be sentenced on one of the counts. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 5. A remand is required for the State to elect which charge to pursue. Id. at ¶ 17.

         {¶13} The Ohio Supreme Court has previously interpreted R.C. 2941.25 to involve a two-step analysis for determining whether offenses are subject to merger. Smith, supra, at ¶ 113, citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Under step one, it must be determined 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." Id. at ¶ 48. Put another way, if the conduct of the defendant constituting commission of offense one also constitutes commission of offense two, then the offenses are of similar import and the court must proceed to the second step. Id. Under step two of the analysis, it must be determined whether the offenses were committed as part of a single act, with a single state of mind. Id. at ¶ 49. If both steps of the analysis are met, then the offenses are allied offenses of similar import and will be merged. Id. at ¶ 50. On the other hand, if commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or with a separate animus for each offense, then under R.C. 2941.25(B), the offenses will not merge. Id. at ¶ 51.

         {¶14} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio provided courts with further guidance with respect to the R.C. 2941.25 merger determination. Although the Supreme Court did not explicitly overrule Johnson, it stated that the "decision in Johnson was incomplete" and that Johnson's syllabus language "does not offer the complete analysis necessary to determine whether offenses are subject to merger rather than multiple convictions and cumulative punishment." Id. at ¶ 16; Smith, supra, at ¶ 114.

         {¶15} The Ruff decision provides three questions for a reviewing court to ask when a defendant's conduct supports multiple offenses in order to determine whether those offenses are allied offenses of similar import within the meaning of R.C. 2941.25:

1. Were the offenses dissimilar in import or significance?
2. Were they committed separately?
3. Were they committed with separate animus or motivation?

         If one of the questions is answered affirmatively, then separate convictions are permitted. The conduct, the animus, and the import must all be considered. Smith, at ¶ 115.

         {¶16} Under the sole assignment of error, Appellant raises three issues. Appellant first submits that the trial court erred when it failed to merge the offenses of attempted murder and felonious assault. Appellant also argues the trial court erred when it failed to merge aggravated burglary under R.C. 2911.11(A)(1) with felonious assault and/or attempted murder. Finally, Appellant contends the trial court erred when it failed to merge the offense of aggravated burglary under R.C. 2911.11(A)(2) with the offense of aggravated burglary under R.C. 2911.11(A)(1).

         Issue 1: Attempted murder and felonious assault

         {¶17} Appellant argues in this case attempted murder and felonious assault are allied offenses of similar import requiring merger. Appellant points out count one of the indictment, attempted murder, R.C. 2923.02/2903.02(A) alleged:

"On or about the date of the offense set for above, in the County of Athens, [Mr. Craig] unlawfully did attempt to purposely cause ...

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