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State v. Rose

Court of Appeals of Ohio, Third District, Hardin

November 6, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JOSHUA ALAN ROSE, DEFENDANT-APPELLANT.

         Appeal from Hardin County Common Pleas Court Trial Court No. 20162168 CRI

          Michael B. Kelley for Appellant.

          Jason M. Miller for Appellee.

          OPINION

          WILLAMOWSKI, J.

         {¶1} Defendant-appellant Joshua A. Rose ("Rose") brings this appeal from the judgment of the Court of Common Pleas of Hardin County accepting Rose's pleas of guilty to one count of grand theft, and two counts of burglary and for sentencing him to an aggregate prison term of fourteen years and six months. Rose claims that the trial court erred by failing to merge to sentences as they were allied offenses and by imposing consecutive sentences. For the reasons set forth below, the judgment is affirmed in part and reversed in part.

         {¶2} On or about June 17, 2016, Rose broke into the home of Lavonda Bowman and stole several items, including a firearm. Doc. 18. Rose also broke into the home of Margaret Osbun and stole several items. Id. On or about June 18, 2016, Rose broke into the home of Vivian Stuck and stole several items. Id. On December 14, 2016, the Hardin County Grand Jury indicted Rose on 18 counts: 1) Burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree; 2) Grand Theft in violation of R.C. 2913.02(A)(1), (B)(4) with a firearm specification, a felony of the third degree; 3) Theft in violation of R.C. 2913.02(A)(1), (B)(2), a felony of the fifth degree; 4) Theft in violation of R.C. 2913.02(A)(1), (B)(2), a felony of the fifth degree; 5) Theft in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; 6) Theft from a Person in a Protected Class in violation of R.C. 2913.02(A)(1), (B)(3), a felony of the fourth degree; 7) Burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree; 8) Theft from a Person in a Protected Class in violation of R.C. 2913.02(A)(1), (B)(3), a felony of the fourth degree; 9) Burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree; 10) Theft from a Person in a Protected Class in violation of R.C. 2913.02(A)(1), (B)(3), a felony of the fourth degree; 11) Theft of Drugs in violation of R.C. 2913.02(A)(1), (B)(6), a felony of the fourth degree; 12) Receiving Stolen Property in violation of R.C. 2913.51(A), a felony of the fifth degree; 13) Possessing Criminal Tools in violation of R.C. 2923.24(A), a felony of the fifth degree; 14) Complicity to Forgery in violation of R.C. 2923.03(A)(2) and 2913.31(A)(1), (C)(1)(c), a felony of the fifth degree; 15) Complicity to Forgery in violation of R.C. 2923.03(A)(2) and 2913.31(A)(1), (C)(1)(c), a felony of the fifth degree; 16) Additional Money Laundering Prohibition in violation of R.C. 1315.55(A)(1), a felony of the third degree; 17) Additional Money Laundering Prohibition in violation of R.C. 1315.55(A)(3), a felony of the third degree; and 18) Engaging in a Pattern of Corrupt Activity in violation of R.C. 2923.32(A)(1), (B)(1), a felony of the first degree. Doc. 1. Counts 1-6 and 14-17 resulted from the thefts at the Bowman home. Doc. 18. Counts 7 and 8 resulted from the thefts at the Osbun home. Id. Counts 9-11 resulted from the thefts at the Stuck home. Id. Pleas of not guilty were entered to all counts. On May 4, 2017, Rose and the State reached a negotiated plea agreement. Doc. 37. The trial court held a hearing on that day at which the following agreement was specified.

Bailey: My understanding through the negotiations, Mr. Rose would enter a plea of guilty to count two of the indictment, which is a charge of grand theft, and specifically spec property which is a firearm. That is a felony of the third degree, a violation of 2913.02A1B4, a felony of the third degree, Ohio Revised Code. Count seven, he would plead guilty to 2911.12A1, burglary, a felony of the second degree. Count nine, burglary, a felony of the second degree, in violation of 2911.12A1. The joint sentence recommendation for the Court is [twenty-four] months for count two; two years for count seven; three years for count nine. All these counts run consecutive to each other for an aggregate total of seven years. This case, which is that aggregate total seven years consecutive to case number 20162089, which is a Hardin County Case, CRI. There is [sic] no mandatory fines in this case, we'd leave the fines to the Court's discretion. He pay [sic] the costs of this action. There is restitution - we do have three victims in this case, however to the moment only one victim has turned in issues for restitution. That would be jointly and severally liable with one Damien Stewart - that's a total under count two of five hundred [twenty-nine] dollars and [twenty-five] cents to one LaVonda Bowman. Other counts seven and nine do not have any reports turned in for restitution claim, though we've made contact numerous times. * * *
Judge: Mr. Fischmann. Is that your understanding of the plea negotiations - that your client intends to enter pleas to counts two, seven and nine?
Fischmann: Yes sir.
Judge: And then did you hear the terms Mr. Bailey stated of a recommendation of a sentence/
Fischmann: Yes sir, that is a joint sentence recommendation, yes sir.
Judge: And you believe you've accurately communicated that to Mr. Rose?
Fischmann: I have.
Judge: Alright. So you are joining in that ...

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