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State v. Toney

Court of Appeals of Ohio, Seventh District, Mahoning

December 28, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
AUBREY TONEY DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2010 CR 1135 A

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney.

          For Defendant-Appellant: Atty. Desirae DiPiero.

          JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro.

          OPINION

          WAITE, J.

         {¶1} Appellant Aubrey Toney appeals a July 13, 2016 Mahoning County Common Pleas Court judgment entry. This matter involves Appellant's resentencing. Appellant argues that the trial court erroneously imposed consecutive sentences on two firearm specifications that arise out of the same transaction. Appellant also argues that the trial court improperly imposed mandatory consecutive sentences and failed to properly make the R.C. 2929.14(C)(4) findings within its sentencing entry. Appellant's merger argument is without merit. However, Appellant's argument regarding consecutive sentences has merit. Accordingly, the trial court's imposition of consecutive sentences is vacated and the matter is remanded for the limited purpose of addressing consecutive sentences.

         Factual and Procedural History

         {¶2} On October 7, 2010, Appellant was indicted on one count of aggravated murder in violation of R.C. 2903.01(A), (F), with a death specification pursuant to R.C. 2929.04(A)(5); one count of attempted murder, a felony of the first degree in violation of R.C. 2923.02(A); one count of felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(1); and one count of felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(2). Each of these charges carried an attendant firearm specification in violation of R.C. 2941.145(A).

         {¶3} Appellant was convicted by a jury of murder as the lesser-included offense of aggravated murder, both counts of felonious assault, and three counts of attendant firearm specifications. However, no verdict was reached on the attempted murder charge.

         {¶4} On June 19, 2014, Appellant was sentenced as follows: fifteen years to life in prison for the murder conviction, eight years of incarceration for felonious assault, and six years for the attendant firearm specifications. The trial court merged the felonious assault convictions as well as the attendant firearm specifications. In the aggregate, Appellant was sentenced to twenty-nine years to life in prison

         {¶5} On direct appeal, we affirmed Appellant's convictions but remanded the matter for resentencing, because the trial court failed to properly impose consecutive sentences. State v. Toney, 7th Dist. No. 14 MA 0083, 2016-Ohio-3296. The trial court held a resentencing hearing and imposed the identical sentence. This timely appeal followed.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ERRED WHEN IT IMPOSED TWO, THREE-YEAR CONSECUTIVE SENTENCES FOR FIREARM SPECIFICATIONS THAT AROSE FROM THE SAME TRANSACTION.

         {¶6} Appellant argues that the trial court erroneously imposed consecutive sentences for the firearm specifications attached to his murder and felonious assault convictions. Appellant asserts that R.C. 2929.14(B)(1)(b) allows for only one prison term for offenses that are committed as part of the same act or transaction. Appellant argues that both of these ...


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