State v. Elder , 2011 Ohio 4438 ( 2011 )

[Cite as State v. Elder, 2011-Ohio-4438.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
TRAEVON B. ELDER
Defendant-Appellant
JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
:
:
: Case No. 2011-CA-00058
:
:
: OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
20009CR577H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 1, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. TRAEVON B. ELDER PRO SE
Richland County Prosecutor #580-693
By: DANIEL J. BENOIT Richland Correctional Institute
30 South Park, 2nd Floor Box 8107
Mansfield, OH 44902 Mansfield, OH 44901-8107
Gwin, P.J.
{¶1} Defendant-appellant Traevon B. Elder appeals a judgment of the Court of
Common Pleas of Richland County, Ohio, which overruled his motion for re-sentencing.
Appellant assigns a single error to the trial court:
{¶2} “I. TRIAL COURT (sic) ABUSED ITS DISCRETION IN ADOPTING A
CONCLUSION WHICH AFFRONTS STATE V. JOHNSON (2010), 128 OHIO ST. 3d
153’S PROPHYLACTIC PURPOSE.”
{¶3} Appellant pled guilty to one count of felonious assault with a firearm
specification and one count of having weapons under disability on December 7, 2009.
The court sentenced him to two years on count one, one year on count two, and three
years on the firearm specification to run concurrently for a total of six years of
incarceration. In April 2011, appellant filed a pro se petition for re-sentencing, arguing
that the offenses of felonious assault and having weapons under disability are allied
offenses and should have been merged for purposes of sentencing. The trial court
denied the petition for resentencing, and this appeal ensued.
{¶4} In 2010, the Ohio Supreme Court decided State v. Johnson, 128 Ohio St.
3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. As appellant asserts, the court found the
purpose of R.C. 2941.25 is to prevent “shotgun convictions”, that is, multiple findings of
guilt and corresponding punishments heaped on a defendant for closely related
offenses arising from the same occurrence. Id at paragraph 43, citation deleted.
{¶5} In Johnson, the Ohio Supreme Court crafted a new analysis for courts to
use in determining when two offenses are allied and subject to merger for sentencing.
The court found the statute emphasizes the importance of the defendant’s conduct,
while in the past, the analysis used an abstract comparison of offenses without first
considering the defendant’s actual conduct as established by the evidence. Id. at
paragraph 42, citation deleted. Under Johnson, if it is possible for multiple offenses to
be committed by the same conduct, then the trial court must determine whether the
offenses in the case before it were committed as part of a single act committed with a
single state of mind. Id. at paragraph 49, citation deleted. Conversely, if the court
determines that the commission of one offense will never result in the commission of the
other, or if the offenses were committed separately, or if the defendant has a separate
animus for each offense, then pursuant to statute, the offenses will not merge. Id.,
paragraph 59.
{¶6} Appellant’s argument is that the basis of his conviction for having weapons
under disability was his use of a firearm to commit the felonious assault. He suggests
the two offenses were committed simultaneously with the same animus of causing
physical harm.
{¶7} The trial court found the animus of having weapons under disability is
making a conscious choice to possess a weapon. Felonious assault requires a
conscious choice to attack someone using a weapon. The court found the commission
of the two offenses involves separate animi, and the fact a defendant chooses to
assault a victim with a firearm should not and cannot absolve the defendant of the
criminal liability which arises solely from his illegal possession of a weapon.
{¶8} We agree with the trial court that the animus for possessing a weapon
under disability is different from the animus for felonious assault. We find the trial court
did not err in rejecting appellant’s argument his convictions for felonious assault and for
weapons under disability should be merged.
{¶9} The assignment of error is overruled.
{¶10} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By Gwin, P.J., and
Farmer, J., concur
Hoffman, J., concurs
separately
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0824
Hoffman, J., concurring
{¶11} I concur in the majority’s analysis and disposition of Appellant’s sole
assignment of error.
{¶12} I write separately to note I also find Appellant’s alleged error barred by res
judicata because this issue was capable of being raised on direct appeal of the original
sentencing entry.
________________________________
HON. WILLIAM B. HOFFMAN
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TRAEVON B. ELDER :
:
:
Defendant-Appellant : CASE NO. 2011-CA-00058
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs
to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER