State v. Sadowski , 2014 Ohio 4211 ( 2014 )

[Cite as State v. Sadowski, 2014-Ohio-4211.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100819
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEVEN SADOWSKI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-577713-A
BEFORE: Blackmon, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 25, 2014
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Steven Sadowski (“Sadowski”) appeals his sentence and assigns
the following error for our review:
The trial court acted contrary to law when it conducted an allied offense
hearing without a proper analysis under State v. Johnson [128 Ohio St. 3d
153, 2010-Ohio-6314, 942 N.E.2d 1061].
{¶2} Having reviewed the record and pertinent law, we affirm Sadowski’s
sentence. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Sadowski in a three-count
indictment for burglary with notice of prior conviction and a repeat violent offender
specification, theft, and drug possession. Sadowski entered into a plea agreement and
agreed to plead to an amended count of burglary with the notice of prior conviction and
repeat violent offender specification nolled. He also pled to the theft and drug
possession counts.
{¶4} At the hearing, the prosecutor gave a factual statement as follows:
[J]ust briefly for a factual statement, I think there’s no question that the
defendant has admitted both in his PSI and to the detectives that he was the
one who broke into this lady’s house, took her purse, took her objects and
her items and later discarded the purse and some of those items and was
caught after that.
Tr. 48.
{¶5} The prosecutor stressed that this occurred around 2:30 or 3:00 a.m. while
the victim was sleeping.
{¶6} Prior to sentencing Sadowski, the trial court discussed with the attorneys
whether the burglary and theft counts merged. The trial court concluded that they did not
merge because they were committed with “a different mind set.” The trial court
sentenced Sadowski to two years for the burglary count and six months for the theft
count, to be served concurrently. In addition, he was sentenced to one year of
community control for the drug possession count.
Allied Offenses
{¶7} In his sole assigned error, Sadowski argues the trial court failed to engage
in the correct analysis in determining that the burglary and theft counts did not merge.
{¶8} When a defendant’s conduct results in the commission of two or more allied
offenses of similar import, that conduct can be charged separately, but the defendant can
be convicted and sentenced for only one offense. R.C. 2941.25(A). In determining
whether offenses merge, we consider the defendant’s conduct. State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44. “If the multiple offenses can be
committed by the same conduct, then the court must determine whether the offenses were
committed by the same conduct, i.e., ‘a single act, committed with a single state of
mind.’” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, 895
N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). If we answer both questions affirmatively,
then the offenses are allied offenses of similar import and will be merged.
Johnson at ¶ 50.
{¶9} Here, after hearing the arguments of the prosecutor and defense counsel, the
trial court concluded the offenses did not merge because they were committed with a
“different mind set.” This could refer to the second prong of the Johnson test, because as
we set forth above, Johnson refers to determining if the act was “committed with a single
state of mind” when deciding whether the acts were committed by the same conduct.
{¶10} Sadowski also contends that the trial court committed plain error in
imposing separate sentences on the burglary and theft convictions when both offenses
were committed by the same conduct. We disagree. As this court recently explained in
holding that burglary and theft were not allied offenses of similar import, “‘once
defendant entered the apartment with an intent to commit a felony inside, the crime of
burglary was complete.’” State v. Richardson, 8th Dist. Cuyahoga No. 100115,
2014-Ohio-2055, quoting State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-Ohio-3051,
¶ 80; see also State v. Smith, 8th Dist. Cuyahoga No. 100641, 2014-Ohio-3420 (burglary
and theft not allied offenses because the burglary was completed prior to the theft).
Thus, we have concluded that theft and burglary are separate acts committed with
different conduct.
{¶11} Thus, once Sadowski entered the victim’s home without her permission, the
offense of burglary was complete. Then, when Sadowski proceeded to take the victim’s
purse, he committed the separate offense of theft. Based on this record, we cannot say
that the trial court erred by imposing separate sentences for the two offenses.
Accordingly, Sadowski’s sole assigned error is overruled.
{¶12} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN
JUDGMENT ONLY