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State v. McLaughlin

Court of Appeals of Ohio, Fifth District, Muskingum

June 11, 2018

STATE OF OHIO Plaintiff-Appellee
v.
KENNETH MCLAUGHLIN Defendant-Appellant

          Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0296

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney Muskingum County, Ohio GERALD V. ANDERSON II Assistant Prosecuting Attorney

          For Defendant-Appellant JAMES ANZELMO

          JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          HOFFMAN, P. JUDGE

         {¶1} Appellant Kenneth McLaughlin appeals the judgment entered by the Muskingum County Common Pleas Court convicting him of aggravated robbery (R.C. 2911.01(A)(1)), felonious assault with a firearm specification (R.C. 2903.11(A)(2), R.C. 2941.145), kidnapping with a firearm specification (R.C. 2905.01(A)(2), R.C. 2941.141), theft of firearms (R.C. 2913.02(A)(1)) and theft of an elderly victim (R.C. 2913.02(A)(1)), and sentencing him to sixteen years incarceration. Appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} Before 3:00 a.m. on August 24, the 87-year-old victim woke up to use the bathroom. He did not have his hearing aids in his ears. While sitting on the toilet, he realized there was a person in the bathroom talking to him, but he could not hear what the person was saying. He described the person, later identified as Appellant, as a white male with a bandana on his face. Appellant had a knife which he waved at the victim. Appellant continued to yell and talk at the victim, who could not hear what Appellant was saying.

         {¶3} Appellant took the victim from the toilet, walked him to a chair in the living room, and told the victim to sit in the chair. Appellant tied the victim's feet with an electric extension cord and pushed the chair, with the victim in it, to the bedroom. The chair would not fit through the bedroom door, so Appellant took the victim out of the chair, placed him on the bed, and pushed him backwards.

         {¶4} Appellant yelled at the victim, asking for the keys to two safes in the bedroom. Appellant tied the victim's hands together, and used packaging tape to cover his mouth. Appellant found an AK47 on a gun rack, which he threatened to hit the victim with unless he was given the keys to the safe.

         {¶5} Appellant then took the butt of the rifle and hit the victim in the forehead. The gun discharged into the ceiling. Appellant took six guns and a guitar from the house and left.

         {¶6} The victim waited until he believed Appellant was gone, then unbound his hands and feet and drove to his son's house. He was so nervous and shaken he could not pull the tape off his mouth, so he sat outside the house and honked his car horn until his son came out.

         {¶7} Family members identified Appellant as a possible suspect in the case. On the garage floor of the home, police found a wallet and identification belonging to Appellant.

         {¶8} Appellant was indicted by the Muskingum County Grand Jury with one count of aggravated burglary with a firearm specification, one count of aggravated robbery with a firearm specification, one count of felonious assault with a firearm specification, two counts of kidnapping with firearm specifications, one count of theft of firearms, and one count of theft from an elderly victim. The State dismissed the charge of aggravated burglary and the accompanying firearm specification, and one count of kidnapping with a firearm specification, as well as the firearm specification attached to the charge of aggravated robbery. Appellant entered a plea of guilty to the remaining charges.

         {¶9} The trial court sentenced Appellant to six years incarceration for aggravated robbery, two years incarceration for felonious assault with an additional three years incarceration for the accompanying firearm specification, three years incarceration for kidnapping with an additional one year for the firearm specification, twelve months incarceration for theft of firearms, and twelve months incarceration for theft from an elderly victim. The court ordered all sentences to be served consecutively except for the twelve months for theft from an elderly victim which was to be served concurrently to the remaining charges, for an aggregate term of sixteen years.

         {¶10} It is from the December 20, 2017 judgment of conviction and sentence Appellant prosecutes this appeal, assigning as error:

I. THE TRIAL COURT COMMITTED PREJUDICIAL PLAIN ERROR IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES IN VIOLATION OF R.C. §2941 25(A) THUS MANDATING THE REVERSAL OF HIS CONVICTIONS AND SENTENCES FOR AGGRAVATED ROBBERY, FELONIOUS ASSAULT, THEFT OF A FIREARM, THEFT FROM AN ELDERLY VICTIM AND KIDNAPPING ALONG WITH THE FIREARM SPECIFICATIONS FOR EACH.[1]
II. SHOULD THIS COURT FIND THAT IT CANNOT CONSIDER APPELLANTS MERGER ARGUMENT BECAUSE TRIAL COUNSEL FAILED TO PRESERVE THE ISSUE BY RAISING IT AT SENTENCING PURSUANT TO STATE V. ROGERS, 143 OHIO ST. 3D 385, 2015-OHIO-2459, 38 N.E.3D 860, APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THUS MANDATING THE REVERSAL OF HIS CONVICTIONS AND SENTENCES FOR AGGRAVATED ROBBERY, FELONIOUS ASSAULT, THEFT OF A FIREARM, THEFT FROM AN ELDERLY VICTIM AND KIDNAPPING ALONG WITH THE FIREARM SPECIFICATIONS FOR EACH.[2]

         {¶11} We note, this matter comes before this Court pursuant to the accelerated calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule 12(A) for the statement of the reason for the ...


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