Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum County Court of Common Pleas, Case No.
Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney
Muskingum County, Ohio GERALD V. ANDERSON II Assistant
Defendant-Appellant JAMES ANZELMO
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A.
Delaney, J. Hon. Earle E. Wise, Jr., J.
HOFFMAN, P. JUDGE
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.
OF THE FACTS AND CASE
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.
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.
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.
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.
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.
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.
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.
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.
It is from the December 20, 2017 judgment of conviction and
sentence Appellant prosecutes this appeal, assigning as
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
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.
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 ...