Court of Appeals of Ohio, Twelfth District, Fayette
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI
C. Weade, Fayette County Prosecuting Attorney, John M. Scott,
Jr., Fayette County for plaintiff-appellee
H. Eckstein, for defendantappellant
1} Defendant-appellant, Bobby Joe Penwell, appeals
his convictions in the Fayette County Court of Common Pleas
and the imposition of consecutive sentences following his
guilty plea to burglary, breaking and entering, theft, and
grand theft of a motor vehicle.
2} The facts of this case involve two criminal
cases. In Case No. CR120160195 ("Case No. 195"),
appellant was indicted in August 2016 on one count of
burglary, a felony of the second degree. In Case No.
CR120160270 ("Case No. 270"), appellant was
indicted in October 2016 on 15 felony offenses involving
burglary, theft, breaking and entering, and grand theft of a
motor vehicle, and 6 misdemeanor theft offenses. Relevant to
this appeal are the burglary count in Case No. 195, and a
breaking and entering count (Count 10), a theft count (Count
11), and a grand theft of a motor vehicle count (Count 19),
all felonies, in Case No. 270.
3} Appellant appeared before the trial court on
December 14, 2016. Appellant pled guilty to the burglary
count in Case No. 195, and to two counts of burglary, five
counts of breaking and entering, seven counts of theft, and
one count of grand theft of a motor vehicle in Case No. 270.
In exchange for his guilty plea, the state dismissed the
4} The trial court then proceeded to sentencing. In
Case No. 270, the trial court merged Counts 1 and 2, Counts
12 and 13, Counts 14 and 15, Counts 16 and 17, and Counts 18
and 19, but refused to merge Counts 10 and 11. The trial
court sentenced appellant to five years in prison in Case No.
195. In Case No. 270, the trial court sentenced appellant to
consecutive five-year prison terms for his felony burglary
convictions in Counts 1 and 5 and to consecutive six-month
prison terms for his felony breaking and entering, theft, and
grand theft of a motor vehicle convictions in Counts 10, 11,
12, 14, 16, and 19, for an aggregate 13-year prison sentence.
The trial court further sentenced appellant to concurrent
180-day jail terms for his misdemeanor theft convictions in
Counts 20 and 21. The trial court ordered that
appellant's prison sentence in Case No. 270 be served
consecutively to appellant's prison sentence in Case No.
195, for an aggregate prison term of 18 years.
5} Appellant now appeals, raising four assignments
6} Assignment of Error No. 1:
7} THE TRIAL COURT ERRED IN NOT MERGING COUNTS TEN
AND ELEVEN DURING SENTENCING IN VIOLATION OF
DEFENDANT-APPELLANT'S RIGHTS UNDER THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE 1, SECTION
8} Appellant argues the trial court erred by not
merging his breaking and entering conviction in Count 10 and
his theft conviction in Count 11 in Case No. 270 because they
were allied offenses of similar import.
9} Whether offenses constitute allied offenses of
similar import subject to merger under R.C. 2941.25 is a
question of law that appellate courts review de novo.
State v. Stevens, 12th Dist. Butler No.
CA2015-09-020, 2017-Ohio-498, ¶ 9, citing State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28.
Pursuant to R.C. 2941.25, a trial court cannot impose
multiple punishments for the same criminal conduct.
10} In determining whether offenses are allied
offenses of similar import and should be merged for
sentencing, "courts must evaluate three separate factors
- the conduct, the animus, and the import." State v.
Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one
of the syllabus. Offenses do not merge and a defendant may be
convicted and sentenced for multiple offenses if any
of the following is true: (1) the defendant's conduct
constitutes offenses of dissimilar import, (2) the
defendant's conduct shows that the offenses were
committed separately, or (3) the defendant's conduct
shows that the offenses were committed with separate animus.
Id. at paragraph three of the syllabus.
11} "At its heart, the allied-offense analysis
is dependent upon the facts of a case because R.C. 2941.25
focuses on the defendant's conduct. The evidence at trial
or during a plea or sentencing hearing will reveal whether
the offenses have similar import." Id. at
¶ 26. Two or more offenses of dissimilar import exist
"when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from
each offense is separate and identifiable." Id.
The burden lies with the defendant to establish his
entitlement to the protection provided by R.C. 2941.25
against multiple punishments for a single criminal act.
Stevens, 2017-Ohio-498 at ¶ 10.
12} At the plea hearing, the prosecutor provided the
following statement of facts regarding the offenses in Counts
10 and 11:
On or about July 18, 2016, this is count ten, here in Fayette
County, the defendant did knowingly trespass on * * * Wentz
Road, Jeffersonville, Ohio, land or premises of another with
purpose to commit a felony in violation of section 2911.13(B)
and (C) of the revised code. In that case Your Honor the
defendant did break into a vehicle and removed items from the
car of one [J.B.]. In the car he removed * * * from a wallet
he removed a debit card belonging to [M.M.]. He removed cash
in the range of $40.00 to $100.00. This car was a 2002 Ford
13} At the sentencing hearing, the trial court
refused to merge Counts 10 and 11, finding that the breaking
and entering of the vehicle and the subsequent theft of the
wallet containing ...