State v. Slager

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[Cite as State v. Slager, 2010-Ohio-1797.] COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vsCase No. 08 CAA 11 0067 MICHAEL W. SLAGER Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 07 CR I 09 0539 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: April 21, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant DAVID A. YOST PROSECUTING ATTORNEY MARIANNE T. HEMMETER ASSISTANT PROSECUTOR 140 North Sandusky Street Delaware, Ohio 43015 JOHN CORNELY 94 Chatham Lane Suite 201 Columbus, Ohio 43221 Delaware County, Case No. 08 CAA 11 0067 2 Wise, J. {¶1} Appellant Michael Slager appeals from his multi-count theft and receiving stolen property conviction in the Delaware County Court of Common Pleas. The relevant facts leading to this appeal are as follows. {¶2} On September 28, 2007, the Delaware County Grand Jury indicted appellant on one count of breaking and entering (in violation of R.C. 2911.13(A)), seven counts of breaking and entering (in violation of R.C. 2911.13(B)), nine counts of theft (R.C. 2913.02(A)(1)), four counts of receiving stolen property (R.C. 2913.51(A)), and one count of engaging in a pattern of corrupt activity (R.C. 2932.23(A)(1)). {¶3} Appellant was thereafter arrested, and on October 29, 2007 he entered pleas of not guilty to all charges. On May 29, 2008, appellant entered a plea of no contest to Count 2 (theft), and pleas of guilty to Counts 3 (receiving stolen property), 6 (receiving stolen property), 9 (receiving stolen property), and 12 (theft). {¶4} The court thereupon sentenced appellant to seventeen months in prison on Count 3, seventeen months on Count 6, and seventeen months on Count 9, to be served consecutively, for a total of fifty-one months. Appellant was also sentenced to community control on Counts Two and Twelve. {¶5} On November 14, 2008, appellant filed a notice of appeal, with leave to file on a delayed basis. He herein raises the following two Assignments of Error: {¶6} I. APPELLANT S SENTENCE IS CONTRARY TO LAW AS HE WAS SENTENCED FOR THEFT AND RECEIVING STOLEN PROPERTY WHERE THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT. Delaware County, Case No. 08 CAA 11 0067 {¶7} 3 II. THE TRIAL COURT VIOLATED APPELLANT S RIGHT TO EQUAL PROTECTION OF THE LAW WHEN IT FAILED TO CREDIT HIM WITH THE JAIL TIME CREDIT REQUESTED AT SENTENCING. I. {¶8} In his First Assignment of Error, appellant challenges his sentence on the basis that the charge for theft of a John Deere lawnmower (Count 2) was an allied offense of similar import to the charge of receiving stolen property concerning the same mower (Counts 3). We agree. {¶9} R.C. 2941.25 reads as follows: {¶10} (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. {¶11} (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. {¶12} In State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699, 1999-Ohio291, the Ohio Supreme Court held that offenses are of similar import if the offenses correspond to such a degree that the commission of one crime will result in the commission of the other. Id. The Rance court further held that courts should compare the statutory elements in the abstract. Id. Delaware County, Case No. 08 CAA 11 0067 4 {¶13} In further clarifying Rance, the Court, in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181, 2008-Ohio-1625, syllabus, instructed as follows: {¶14} In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in the commission of the other, then the offenses are allied offenses of similar import. {¶15} According to Cabrales, the sentencing court, if it has initially determined that two crimes are allied offenses of similar import, then proceeds to the second part of the two-tiered test and determines whether the two crimes were committed separately or with a separate animus. Id. at 57, 886 N.E.2d 181, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. {¶16} This court has referred to the Cabrales test as a common sense approach. State v. Varney, Perry App. No. 08-CA-3, 2009-Ohio-207, ¶ 23. Recently, in State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2 and State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, the Ohio Supreme Court upheld its Cabrales rationale in this arena. {¶17} Appellant's theft conviction in question was based on R.C. 2913.02(A)(1), which states: No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services *** [w]ithout the consent of the owner or person authorized to give consent. Delaware County, Case No. 08 CAA 11 0067 5 {¶18} Appellant's possession for receiving stolen property was based on R.C. 2913.51(A), which states: No person shall receive, retain, or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense. {¶19} As appellant points out, in State v. Farley (Jan. 3, 1986), Knox App.No. 85CA14, 1986 WL 797, this Court held: A defendant may not be convicted of both theft (R.C. 2913.02) and receiving the property which he stole (R.C. 2913.51). Theft and receiving stolen property are considered allied offenses of similar import. Id., citing Maumee v. Geiger (1976), 45 Ohio St.2d 238, 344 N.E.2d 133; State v. Botta (1971), 27 Ohio St.2d 196, 271 N.E.2d 776. We also note that in a post-Rance, pre-Cabrales decision, the Ohio Supreme Court concluded that receiving stolen property and theft of the same property are clearly allied offenses of similar import. State v. Yarbrough, 104 Ohio St.3d 1, 817 N.E.2d 845, 2004-Ohio-6087, ¶ 99. {¶20} Under a Cabrales analysis, we find a defendant who steals an item will, however briefly, also receive and retain the item, and may likely eventually dispose of it as well. Whether the defendant keeps the item or not, his or her actions stem from the original intent to benefit from taking another s property. The issue is thus resolvable under a fundamental comparison of the statutory elements and the second question of separate commission or separate animus under Cabrales. Having reviewed the recent case law developments from the Ohio Supreme Court in the realm of allied offenses, we find Yarbrough and Farley remain good law on the issue before us. Accordingly, we hold appellant s conviction for theft of the lawnmower was an allied offense of similar import to the conviction for receiving stolen property concerning the same mower. Delaware County, Case No. 08 CAA 11 0067 6 {¶21} Appellant's First Assignment of Error is therefore sustained, and the matter will be remanded for the trial court to review merger of the offenses for sentencing regarding Counts 2 and 3, as provided by the Ohio Supreme Court in Whitfield, supra. II. {¶22} In his Second Assignment of Error, appellant contends the trial court erroneously failed to credit him with jail time credit as he requested at his sentencing hearing. {¶23} Under R.C. 2967.191 requires the ODRC to reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner's competence to stand trial or sanity, and confinement while awaiting transportation to the place where the prisoner is to serve the prisoner's prison term. {¶24} Appellant maintains that he is entitled to two-hundred and forty-nine (249) days of credit. The State of Ohio concedes on appeal that appellant is entitled to twohundred and forty-four (244) days of credit. See Appellee s Brief at 5. The State correctly posits that the credit should only be applied once to appellant s total sentence. {¶25} Appellant's Second Assignment of Error is sustained for purposes of recalculation of jail time credit by the trial court. Delaware County, Case No. 08 CAA 11 0067 7 {¶26} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Delaware County, Ohio, is reversed and remanded for further proceedings consistent with this opinion. By: Wise, J. Gwin, P. J., and Delaney, J., concur. /S/ JOHN W. WISE___________________ /S/ W. SCOTT GWIN__________________ /S/ PATRICIA A. DELANEY____________ JUDGES JWW/d 0325 Delaware County, Case No. 08 CAA 11 0067 8 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsMICHAEL W. SLAGER Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 08 CAA 11 0067 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio, is reversed and remanded for further proceedings consistent with this opinion. Costs assessed to appellee. /S/ JOHN W. WISE___________________ /S/ W. SCOTT GWIN__________________ /S/ PATRICIA A. DELANEY____________ JUDGES

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