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State v. Johnson

Court of Appeals of Ohio, Tenth District

December 28, 2017

State of Ohio, Plaintiff-Appellee,
v.
Thomas A. Johnson, Defendant-Appellant.

         APPEALS from the Franklin County Court of Common Pleas Nos. 14CR-5733, 15CR-4235, 15CR-6419.

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          The Law Office of Donald Gallick LLC and Donald Gallick, for appellant.

         Argued:

          Michael P. Walton.

          Donald Gallick.

          DECISION

          HORTON, J.

         {¶ 1} Defendant-appellant, Thomas A. Johnson, appeals the sentences he received in three separate criminal cases in the Franklin County Court of Common Pleas after pleading guilty to multiple violent and drug-related felonies. As explained below, the trial court did not err when sentencing Johnson. Accordingly, we affirm the judgments in all three cases.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         {¶ 2} On June 27, 2013, Johnson and a companion drove to the home of an individual who they believed had murdered one of their friends, got out of the car, and fired shots into the house. A person with no connection to the murder was inside. (June 13, 2016 Tr. at 9.) Johnson and his companion then drove to another residence, where they exited their vehicle and shot into the residence multiple times. Three persons were inside at the time.[1] (Tr. at 10.)

         {¶ 3} On October 28, 2014, Johnson and his companion were indicted on the following charges: two counts of improperly discharging a firearm at or into a habitation, a second degree felony under R.C. 2923.161, each count with a three-year firearm specification under R.C. 2941.145(A) and one with a five-year "drive by" firearm specification under R.C. 2941.146(A); four counts of felonious assault, a second degree felony under R.C. 2903.11, each count with a three-year firearm specification under R.C. 2941.145(A) and three with five-year "drive by" firearm specifications under R.C. 2941.146(A); one count of carrying a concealed weapon, a second degree felony under R.C. 2923.12; and one count of improperly handling a firearm in a motor vehicle under R.C. 2923.16, a felony of the fourth degree. (Oct. 28, 2014 Indictment in case No. 14CR-5733.)

         {¶ 4} On August 20, 2015, police officers observed Johnson driving and in pursuit of another vehicle, which he cut off. Johnson got out and went up to the driver of the car he was pursuing, at which time the officers drew their weapons and arrested him. A seven-month-old child was in the car. Johnson told the officers that he sold heroin and was in possession of over 10 grams of the substance. (June 13, 2016 Tr. at 12.) Johnson was subsequently indicted on one count of possession of heroin under R.C. 2925.11, a second degree felony, and one count of trafficking in heroin under R.C. 2925.03, a first degree felony, with a sentencing enhancement for committing the offense in the vicinity of a juvenile under R.C. 2925.01. (Aug. 28, 2015 Indictment in case No. 15CR-4235.)

         {¶ 5} On December 5, 2015, Johnson was arrested pursuant to an outstanding warrant and was discovered to be in possession of an ounce of heroin. (June 13, 2016 Tr. at 13.) He was subsequently indicted on one count of possession of heroin under R.C. 2925.11, a second degree felony, and one count of trafficking in heroin under R.C. 2925.03, a second degree felony. (Dec. 30, 2015 Indictment in case No. 15CR-6419.)

         {¶ 6} Johnson initially entered pleas of not guilty to all the charges, but subsequently reached a plea deal with the prosecutor. In exchange for pleading guilty, the prosecution dropped the five-year "drive by" specifications under R.C. 2941.146(A) from the June 27, 2013 shootings, the possession of heroin charge under R.C. 2925.11 and the sentencing enhancement from the August 20, 2015 incident, and the possession of heroin charge under R.C. 2925.11 from the December 5, 2015 arrest. (June 13, 2016 Tr. at 4-7.)

         {¶ 7} A sentencing hearing was held on November 16, 2016.[2] For the offenses arising from the June 27, 2013 shootings, the trial court sentenced Johnson to four years each for the two counts of improper discharge of a firearm into a residence and four felonious assault counts, nine months each for carrying a concealed weapon and improper handling of a firearm in a motor vehicle, and three years for two of the firearm specifications. The trial court ordered the two counts of improper discharge of a firearm into a residence to be served concurrently but consecutive to the counts of felonious assault, carrying a concealed weapon and improper handling of a firearm in a motor vehicle, which were all to be served concurrently. The two three-year firearm specifications were to be served consecutive to all other counts and consecutive to the sentences in Johnson's other cases. (Nov. 17, 2016 Jgmt. Entry in case No. 14CR-5733.) The trial court sentenced Johnson to two years on each of the trafficking in heroin charges in the other cases, for a total aggregate sentence of eighteen years imprisonment. (Nov. 17, 2016 Jgmt. Entry in case No. 15CR-4235 & Nov. 17, 2016 Jgmt. Entry in case No. 15CR-6419.)

         {¶ 8} Johnson filed timely notices of appeal of these sentences, and asserts the following assignments of error:

[I.] THE TRIAL COURT FAILED TO CONDUCT A MANDATORY ANALYSIS OF MERGER AND ALLIED OFFENSES OF SIMILAR IMPORT IN 14 CR 5733.
[II.] THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES WITHOUT ANNOUNCING AT THE SENTENCING HEARING WHICH FINDING REQUIRED [THAT] THE SENTENCES BE SERVED CONSECUTIVELY AS MANDATED BY STATE V. BONNELL.
[III.] THE TRIAL COURT ERRED BY IMPOSING SENTENCES ON FELONY CASES WITHOUT CONSIDERING THE OVERRIDING PURPOSE[S] OF FELONY SENTENCING.

         II. ANALYSIS

         {¶ 9} Before reaching Johnson's assignments of error, we consider the applicable standards of review. A defendant may appeal a sentence on the grounds that the sentence imposed by the trial court was "contrary to law." RC. 2953.08(A)(4). The statute expressly states that the standard of review "is not whether the sentencing court abused its discretion." RC. 2953.08(G)(2). Rather, an appellate court may overturn the trial court only if the appellate court "clearly and convincingly finds * * * [t]hat the record does not support the sentencing court's findings" required to be made under RC. ...


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