State v. Moore , 2018 Ohio 2111 ( 2018 )

[Cite as State v. Moore, 2018-Ohio-2111.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-45
:
v. : Trial Court Case No. 2016-CR-128
:
SHANE MOORE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of June, 2018.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 315 S. Monument Avenue, Hamilton,
Ohio 45011
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Shane Moore pled guilty in the Clark County Court of Common Pleas to two
counts of robbery, both felonies of the second degree, and one count of abduction, a
felony of the third degree. The trial court imposed maximum eight-year sentences for
both robberies and a maximum three-year sentence for the abduction, to be served
consecutively. The trial court also revoked Moore’s post-release control and imposed a
consecutive one-year prison term. Moore’s aggregate sentence was 20 years in prison.
{¶ 2} Moore’s original appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), indicating that she found
no non-frivolous issues for appeal. We found that a non-frivolous issue existed regarding
the trial court’s imposition of maximum, consecutive sentences and appointed new
counsel.
{¶ 3} Moore now raises three assignments of error on appeal, namely (1) the trial
court erred in entering judgments on allied offenses of similar import, (2) the trial court
erred in imposing consecutive sentences, and (3) Moore’s trial counsel rendered
ineffective assistance. For the following reasons, the trial court’s judgment will be
affirmed.
I. Procedural History
{¶ 4} On March 14, 2016, Moore was indicted on four counts of robbery, two
counts of abduction, and one count of kidnapping. The charges arose from four separate
robberies on three consecutive dates in February 2016. The State’s bill of particulars
described the offenses as follows:
Counts One and Two [robbery and abduction]:
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On February 6, 2016, * * * Shane Moore entered the [BP gas station] holding
a bb gun, pointed it at the back of the cashier’s [sic], grabbed her hair, and
demanded the money. Shane Moore then pushed the cashier onto the
ground while he removed money from the lottery drawer. He then ordered
her to open the cash register and threatened to kill her. He removed all of
the money and fled from the store. * * *
Count Three [robbery]:
On February 7, 2016, * * * Shane Moore entered the [Certified Gas Station,]
pointed a bb gun at the cashier, and demanded the money. Shane Moore
then pulled the cashier by the shirt and made her open the register. He
took all of the money and fled from the store. * * *
Count Four [robbery]:
On February 8, 2016, * * * Shane Moore entered the [Ooh Ooh Drive Thru,]
pointed a bb gun at the cashier, and demanded the money. He then
pushed the bb gun into her side while he removed the cash from the
register. * * *
Counts Five, Six, and Seven [robbery, kidnapping, abduction]:
On February 8, 2016, * * * Shane Moore entered the [Speedway Gas
Station] brandishing a bb gun. Moore jumped over the counter by the cash
register, and * * * one of the employees[ ] attempted to flee on foot. Moore
pursued [the employee] and escorted him back to the register using the bb
gun. Shane Moore then had the employee open the register, grabbed the
cash from the register and fled on foot * * *.
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The record reflects that Moore was on post-release control at the time of the offenses.
{¶ 5} On June 28, 2016, Moore pled guilty to Counts Four (Ooh Ooh robbery), Five
(Speedway robbery), and Seven (Speedway abduction). In exchange for the pleas, the
State agreed to dismiss the remaining counts in the indictment and not to refile charges
in another case (Clark C.P. No. 16-CR-77), in which the charges would have been forgery
and receiving stolen property. The court told Moore that his entering a guilty plea could
result in proceedings to revoke his post-release control, that the court could terminate his
post-release control, and that the court could sentence him to the greater of the time
remaining on his post-release control or one year; the court stated that any sentence for
the post-release control violation “would be in addition to any sentence the Court would
impose in this case.” The parties agreed that a presentence investigation would be
conducted.
{¶ 6} At sentencing, the trial court heard from defense counsel, Moore, and the
prosecutor. Moore read statements of apology to the victims and expressed remorse.
Moore also expressed that he has “a disease called addiction,” which led to the offenses.
The prosecutor described Moore, who was 32 years old at sentencing, as “a very
experienced criminal who, since he was a juvenile, has been engaged in very similar
activities.” The prosecutor played for the court a short video of the Speedway robbery
on February 8. The prosecutor argued that an appropriate sentence would be “very
close to, if not maximum” and consecutive sentences.
{¶ 7} The trial court imposed maximum eight-year sentences for the robberies and
a maximum three-year sentence for the abduction. All of the sentences were to be
served consecutively, for a total of 19 years; the court orally made the findings required
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by R.C. 2929.14(C)(4) and included them in its judgment entry. The trial court also
terminated Moore’s post-release control, imposed one year in prison (Moore had less
than one year remaining on his post-release control), and ordered that it be served
consecutively to Moore’s sentence. The trial court informed Moore that, upon his
release, he would be subject to three years of post-release control. The trial court orally
imposed restitution of $318, but did not include that order in its judgment entry. The trial
court did not orally impose court costs or include court costs in its judgment entry.
{¶ 8} Moore appeals from his convictions.
II. Allied Offenses of Similar Import
{¶ 9} In his first assignment of error, Moore claims that the trial court erred in failing
to merge Counts 5 (robbery) and 7 (abduction) as allied offenses of similar import. Both
of those offenses involved Moore’s conduct at the Speedway gas station on February 8,
2016.
{¶ 10} Moore did not raise allied offenses at sentencing. Accordingly, he has
forfeited all but plain error. See State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459,
38 N.E.3d 860, ¶ 3. Moore’s alleged error is not reversible error unless it affected the
outcome of the proceeding and reversal is necessary to correct a manifest miscarriage
of justice. Id.
{¶ 11} Ohio’s allied offense statute, R.C. 2941.25, provides that:
(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.
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(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} “ ‘[W]hen determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s
conduct supports multiple offenses: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be considered.’ ”
State v. Earley, 145 Ohio St. 3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State
v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶ 13} As to the question of import and significance, “two or more offenses of
dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s
conduct constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.” Ruff at ¶ 23.
{¶ 14} In regards to animus, “ ‘[w]here an individual’s immediate motive involves
the commission of one offense, but in the course of committing that crime he must, [a]
priori, commit another, then he may well possess but a single animus, and in that event
may be convicted of only one crime.’ ” State v. Ramey, 2015-Ohio-5389, 55 N.E.3d 542,
¶ 70 (2d Dist.), quoting State v. Logan, 60 Ohio St. 2d 126, 131, 397 N.E.2d 1345 (1979).
{¶ 15} The facts underlying the Speedway robbery are reflected in the prosecutor’s
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statement of facts at the plea hearing, the presentence investigation report, and a
surveillance video of the robbery, which was admitted at the sentencing hearing.
According to the record, two employees were in the Speedway gas station at the time of
the robbery on February 8, 2016; one employee was behind the counter. Moore entered
the business and brandished a BB gun. Moore jumped over the counter by the cash
register and the employee behind the counter attempted to flee through the back of the
store. Moore pursued the employee and escorted him back to the register using the BB
gun. Moore had the employees open the registers while pointing the BB gun at them,
and then had them lie on the ground. Moore grabbed the cash from the register, exited
the store, and got into a vehicle that was waiting to drive him away from the scene.
{¶ 16} Moore argues that “any restraint on the victim’s liberty was merely incidental
to the robbery being committed by [Moore].” Moore cites to State v. Winn, 121 Ohio
St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, in which the Ohio Supreme Court held that
aggravated robbery and kidnapping were allied offenses of similar import. The supreme
court commented in Winn, “It is difficult to see how the presence of a weapon that has
been shown or used, or whose possession has been made known to the victim during the
commission of a theft offense, does not also forcibly restrain the liberty of another.” Id.
at ¶ 21.
{¶ 17} Here, the record reflects that Moore did not simply display a weapon during
the commission of the robbery, thereby restraining the employees simultaneously with
the robbery. Rather, when an employee attempted to flee the building through the back
of the store, Moore pursued the employee and brought him back to the registers at
gunpoint. Moore’s actions in pursuing, stopping, and returning with the employee were
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separate acts and reflected an intention to prevent the employee’s escape, not simply to
rob the store. Accordingly, we find no error, plain or otherwise, in the trial court’s failure
to merge the robbery and abduction as allied offenses of similar import.
{¶ 18} Moore’s first assignment of error is overruled.
III. Imposition of Consecutive Sentences
{¶ 19} In his second assignment of error, Moore claims that the trial court’s
imposition of consecutive sentences was clearly and convincingly unsupported by the
record. Moore asserts that the record does not support findings that (1) a 19-year
sentence was not “disproportionate to the seriousness of defendant’s conduct,” and (2)
the harm caused by the offenses “was so great or usual that no single prison term
adequately reflects the seriousness” of his conduct. Moore also argues that the
aggregate sentence was not the minimum sanction needed to accomplish the purposes
and principles of sentencing without imposing an unnecessary burden on state resources.
{¶ 20} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it
may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law.
{¶ 21} In determining the sentence for an offense, the trial court has full discretion
to impose any sentence within the authorized statutory range, and the court is not required
to make any findings or give its reasons for imposing a maximum or more than minimum
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sentence. State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However,
in exercising its discretion, a trial court must consider the statutory criteria that apply to
every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v.
Leopard, 194 Ohio App. 3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing
State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 22} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need
for incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
{¶ 23} In general, it is presumed that prison terms will be served concurrently.
R.C. 2929.41(A); State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
¶ 16, ¶ 23 (“judicial fact-finding is once again required to overcome the statutory
presumption in favor of concurrent sentences”). However, after determining the
sentence for a particular crime, a sentencing judge has discretion to order an offender to
serve individual counts of a sentence consecutively to each other or to sentences
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imposed by other courts. R.C. 2929.14(C)(4) permits a trial court to impose consecutive
sentences if it finds that (1) consecutive sentencing is necessary to protect the public from
future crime or to punish the offender, (2) consecutive sentences are not disproportionate
to the seriousness of the offender’s conduct and to the danger the offender poses to the
public, and (3) any of the following applies:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶ 24} Moore asserts that the trial court’s imposition of consecutive sentences is
contrary to one of the overriding purposes of felony sentencing, namely “to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” In doing so, Moore conflates the analysis for determining the individual
sentences with the analysis for determining whether consecutive sentences are
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warranted. See State v. Fyffe, 2018-Ohio-112, __ N.E.3d __, ¶ 35 (2d Dist.). The thrust
of his argument is that the trial court erred in imposing an aggregate 19-year sentence;
he does not argue that the individual 8-year, 8-year, and 3-year sentences for the
robberies and abduction, respectively, were unsupported by the record.
{¶ 25} In imposing consecutive sentences, the trial court made the findings
required by R.C. 2929.14(C)(4). With respect to the third prong, the court found that
Moore’s history of criminal conduct demonstrated that consecutive sentences were
necessary to protect the public and that the harm from Moore’s course of conduct was so
“great or unusual” that no single term would adequately reflect the seriousness of the
offenses. The trial court stated at sentencing that it had reviewed the presentence
investigation report. The State also played for the court a surveillance video from the
Speedway, which showed the offense (State’s Exhibit 1).
{¶ 26} The presentence investigation report (PSI) reflects that Moore was 31 years
old at the time of the offenses. He has an extensive criminal history, both as a juvenile
and an adult. He was found delinquent for committing numerous offenses of theft,
receiving stolen property, and robbery, among other crimes. He was committed to the
Department of Youth Services as a minor, and was later bound over to adult court for
aggravated robbery charges, for which he was found guilty; Moore served seven years in
prison for aggravated robbery with a firearm specification. As an adult, he was
sentenced to two years in prison for burglary (2009), to six months in prison for
possession of cocaine (2010), and to three years in prison for another burglary (2010).
In 2014 and 2015, Moore had misdemeanor convictions for falsification, complicity to
theft, theft, and resisting arrest.
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{¶ 27} Moore acknowledged at his plea hearing that he was on post-release
control. Defense counsel stated at the plea hearing that Moore believed that the post-
release control was set to expire in November 2016; the trial court’s judgment entry
indicated that it was to expire on September 5, 2016. (The PSI indicates that, on
November 9, 2010, Moore was convicted of burglary in Mercer County, and he was
sentenced to three years in prison. The post-release control obligation appears to stem
from this Mercer County conviction, but that judgment entry is not before us.)
{¶ 28} Upon review of Moore’s extensive criminal history for similar offenses,
including the fact that he has previously been incarcerated for aggravated robbery and
two separate burglaries, we cannot find, as required by the Ohio Supreme Court, that the
trial court’s imposition of consecutive sentences was clearly and convincingly
unsupported by the record. Given that conclusion, we need not address whether the trial
court’s “course of conduct” finding was clearly and convincingly unsupported by the
record.
{¶ 29} Moore’s second assignment of error is overruled.
IV. Ineffective Assistance of Counsel
{¶ 30} In his third assignment of error, Moore claims that his trial counsel rendered
ineffective assistance by failing to raise that his robbery (Count 5) and abduction (Count
7) charges were allied offenses of similar import. Moore argues that those offenses were
allied offenses and that counsel’s actions prejudiced him in that the trial court imposed
consecutive sentences for those offenses. For the reasons stated above, we find that
the robbery and abduction charges for the Speedway robbery were not allied offenses of
similar import. Accordingly, counsel did not act deficiently in failing to seek the merger
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of those charges.
{¶ 31} Moore’s third assignment of error is overruled.
V. Conclusion
{¶ 32} The trial court’s judgment will be affirmed.
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WELBAUM, P. J. and DONOVAN, J., concur.
Copies mailed to:
Andrew P. Pickering
Scott N. Blauvelt
Hon. Douglas M. Rastatter