[Cite as State v. Franklin, 2012-Ohio-6223.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25125
v. : T.C. NO. 09CR1117
ANTHONY J. FRANKLIN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 31st day of December , 2012.
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 1210 Talbott Tower, 131 N. Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Anthony James Franklin appeals from a judgment of the Montgomery 2
County Court of Common Pleas, which amended its termination entry to exclude a
conviction and sentence for engaging in a pattern of corrupt activity, in accordance with our
conclusion in his prior appeal that the jury had not been properly instructed on that charge,
but which did not modify the other sentences imposed in the case. For the following
reasons, the judgment of the trial court will be affirmed.
{¶ 2} In Case No. 2009 CR 01117/1, Franklin was convicted, following a jury
trial, of one count of possession of heroin in an amount greater than ten grams but less than
50 grams, five counts of possession of criminal tools, and one count of engaging in a pattern
of corrupt activity. He was sentenced to eight years for possession of heroin, to eight years
for engaging in a pattern of corrupt activity, and to twelve months on each count of
possession of criminal tools. The trial court ordered that all of the sentences in this case be
served concurrently, for an aggregate term of eight years, and that they also be served
concurrently with the sentence imposed for possession of heroin in another case.
{¶ 3} Franklin appealed from his conviction. In response to one of his
arguments on appeal, we concluded that the jury had not been properly instructed on all of
the elements of engaging in a pattern of corrupt activity; we overruled all of his other
assignments of error. In our conclusion, we stated: “Franklin’s conviction for Engaging in
a Pattern of Corrupt Activity is Reversed, the judgment of the trial court is Affirmed in all
other respects, and this cause is Remanded for further proceedings consistent with this
opinion.” State v. Franklin, 2d Dist. Montgomery No. 24012, 2011-Ohio-6802, ¶ 157.
{¶ 4} Franklin filed an Application for Reconsideration in this court, in which he
argued that we were required to vacate his entire sentence and remand the matter to the trial 3
court for disposition of the entire case or, in the alternative, that our reversal of the judgment
effectively did reverse the entire sentence imposed by the court. We rejected this argument:
“Franklin was sentenced on separate counts, with all sentences to run concurrently.
Although the conviction for Engaging in a Pattern of Corrupt Activity was reversed, making
the eight-year term for that sentence no longer effective, Franklin’s remaining convictions
were affirmed. * * * There is no reason to vacate the entire sentence, and Franklin has not
furnished us with any legal authority indicating that we should do so.” State v. Franklin, 2d
Dist. Montgomery No. 24012, Decision & Entry (Feb. 28, 2012). Thus, Franklin’s
application for reconsideration was denied.
{¶ 5} On remand, Franklin filed a Motion to Modify Sentences, arguing, as he
had in his application for reconsideration, that this court (the court of appeals) had been
required to vacate and effectively had vacated Franklin’s “entire sentence”; he asked that he
be resentenced on all counts. The trial court overruled the motion. The trial court filed an
amended termination entry which confirmed the prior sentences of eight years for possession
of heroin and twelve months on each of the five counts of possession of criminal tools, all to
be served concurrently, for an aggregate term of eight years. The count of engaging in a
pattern of corrupt activity was dismissed without prejudice.
{¶ 6} Franklin appeals from the amended judgment, raising three assignments of
error, which he argues together. Franklin contends that the trial court erred in failing to
modify all of Franklin’s sentences, because there was “some correlation” between the
possession charge and the charge of engaging in a pattern of corrupt activity, and because the
case “must have [been] sent * * * back for some reason.” Notwithstanding the language 4
contained in our decision on his application for reconsideration, Franklin surmises that the
“reason” was for a review of all of Franklin’s sentences. Franklin also asserts that the
charge of engaging in a pattern of corrupt activity “totally incorporated” the possession
charge as its sole predicate act, that there is no longer a charge “for the possession of heroin
sentence to run concurrent with,” and that it is “legal hogwash” for the State to argue or for
this court to conclude that the remaining sentences were unaffected by our decision to
reverse one conviction.
{¶ 7} More specific to the facts of this case, Franklin argues that, as a first-time
offender, it is unlikely that he would have received the maximum sentence for possession
but for the count of engaging in a pattern of corrupt activity, and that he did not contest the
court’s eight-year sentence for possession in his earlier appeal “because it was * * * a
rational sentence assuming [he] had been convicted of the companion major F1 charge,
which incorporated this exact count as one of its predicate acts.” He asserts that our
decision to reverse the conviction for engaging in a pattern of corrupt activity “change[d] the
entire dynamics of the sentence,” making it irrational and defying “basic logic and common
sense.”
{¶ 8} Ohio law does not permit sentencing according to a “sentencing package,”
in which the court fashions a single, comprehensive sentence based on multiple offenses;
instead, it recognizes that “[a] sentence is the sanction or combination of sanctions imposed
for each separate, individual offense.” State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, paragraph one of the syllabus; State v. Thomas, 8th Dist.
Cuyahoga No. 97185, 2012-Ohio-2626, ¶ 3; State v. Wright, 2d Dist. Montgomery No. 5
24276, 2011-Ohio-4874, ¶ 86. In this respect, Ohio has rejected the federal model, which
allows the modification or vacation of all sentences imposed for multiple offenses, even
when there is an appeal from and reversal of only one of the sentences imposed. State v.
Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 16. Ohio’s
felony-sentencing scheme focuses on each offense and sentence individually, and not as a
group. Saxon at ¶ 8-9.
{¶ 9} Franklin essentially argues that we should treat his multiple convictions and
sentences as a “package,” rather than as separate and independent. The legislature and the
supreme court have spoken on this issue and have rejected this view. As the supreme court
stated in Saxon:
[R.C. 2929.14] makes no provision for grouping offenses together and
imposing a single, “lump” sentence for multiple felonies. Although
imposition of concurrent sentences in Ohio may appear to involve a “lump”
sentence approach, the opposite is actually true.
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[Cite as State v. Franklin, 2012-Ohio-6223.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25125
v. : T.C. NO. 09CR1117
ANTHONY J. FRANKLIN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 31st day of December , 2012.
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 1210 Talbott Tower, 131 N. Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Anthony James Franklin appeals from a judgment of the Montgomery 2
County Court of Common Pleas, which amended its termination entry to exclude a
conviction and sentence for engaging in a pattern of corrupt activity, in accordance with our
conclusion in his prior appeal that the jury had not been properly instructed on that charge,
but which did not modify the other sentences imposed in the case. For the following
reasons, the judgment of the trial court will be affirmed.
{¶ 2} In Case No. 2009 CR 01117/1, Franklin was convicted, following a jury
trial, of one count of possession of heroin in an amount greater than ten grams but less than
50 grams, five counts of possession of criminal tools, and one count of engaging in a pattern
of corrupt activity. He was sentenced to eight years for possession of heroin, to eight years
for engaging in a pattern of corrupt activity, and to twelve months on each count of
possession of criminal tools. The trial court ordered that all of the sentences in this case be
served concurrently, for an aggregate term of eight years, and that they also be served
concurrently with the sentence imposed for possession of heroin in another case.
{¶ 3} Franklin appealed from his conviction. In response to one of his
arguments on appeal, we concluded that the jury had not been properly instructed on all of
the elements of engaging in a pattern of corrupt activity; we overruled all of his other
assignments of error. In our conclusion, we stated: “Franklin’s conviction for Engaging in
a Pattern of Corrupt Activity is Reversed, the judgment of the trial court is Affirmed in all
other respects, and this cause is Remanded for further proceedings consistent with this
opinion.” State v. Franklin, 2d Dist. Montgomery No. 24012, 2011-Ohio-6802, ¶ 157.
{¶ 4} Franklin filed an Application for Reconsideration in this court, in which he
argued that we were required to vacate his entire sentence and remand the matter to the trial 3
court for disposition of the entire case or, in the alternative, that our reversal of the judgment
effectively did reverse the entire sentence imposed by the court. We rejected this argument:
“Franklin was sentenced on separate counts, with all sentences to run concurrently.
Although the conviction for Engaging in a Pattern of Corrupt Activity was reversed, making
the eight-year term for that sentence no longer effective, Franklin’s remaining convictions
were affirmed. * * * There is no reason to vacate the entire sentence, and Franklin has not
furnished us with any legal authority indicating that we should do so.” State v. Franklin, 2d
Dist. Montgomery No. 24012, Decision & Entry (Feb. 28, 2012). Thus, Franklin’s
application for reconsideration was denied.
{¶ 5} On remand, Franklin filed a Motion to Modify Sentences, arguing, as he
had in his application for reconsideration, that this court (the court of appeals) had been
required to vacate and effectively had vacated Franklin’s “entire sentence”; he asked that he
be resentenced on all counts. The trial court overruled the motion. The trial court filed an
amended termination entry which confirmed the prior sentences of eight years for possession
of heroin and twelve months on each of the five counts of possession of criminal tools, all to
be served concurrently, for an aggregate term of eight years. The count of engaging in a
pattern of corrupt activity was dismissed without prejudice.
{¶ 6} Franklin appeals from the amended judgment, raising three assignments of
error, which he argues together. Franklin contends that the trial court erred in failing to
modify all of Franklin’s sentences, because there was “some correlation” between the
possession charge and the charge of engaging in a pattern of corrupt activity, and because the
case “must have [been] sent * * * back for some reason.” Notwithstanding the language 4
contained in our decision on his application for reconsideration, Franklin surmises that the
“reason” was for a review of all of Franklin’s sentences. Franklin also asserts that the
charge of engaging in a pattern of corrupt activity “totally incorporated” the possession
charge as its sole predicate act, that there is no longer a charge “for the possession of heroin
sentence to run concurrent with,” and that it is “legal hogwash” for the State to argue or for
this court to conclude that the remaining sentences were unaffected by our decision to
reverse one conviction.
{¶ 7} More specific to the facts of this case, Franklin argues that, as a first-time
offender, it is unlikely that he would have received the maximum sentence for possession
but for the count of engaging in a pattern of corrupt activity, and that he did not contest the
court’s eight-year sentence for possession in his earlier appeal “because it was * * * a
rational sentence assuming [he] had been convicted of the companion major F1 charge,
which incorporated this exact count as one of its predicate acts.” He asserts that our
decision to reverse the conviction for engaging in a pattern of corrupt activity “change[d] the
entire dynamics of the sentence,” making it irrational and defying “basic logic and common
sense.”
{¶ 8} Ohio law does not permit sentencing according to a “sentencing package,”
in which the court fashions a single, comprehensive sentence based on multiple offenses;
instead, it recognizes that “[a] sentence is the sanction or combination of sanctions imposed
for each separate, individual offense.” State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, paragraph one of the syllabus; State v. Thomas, 8th Dist.
Cuyahoga No. 97185, 2012-Ohio-2626, ¶ 3; State v. Wright, 2d Dist. Montgomery No. 5
24276, 2011-Ohio-4874, ¶ 86. In this respect, Ohio has rejected the federal model, which
allows the modification or vacation of all sentences imposed for multiple offenses, even
when there is an appeal from and reversal of only one of the sentences imposed. State v.
Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 16. Ohio’s
felony-sentencing scheme focuses on each offense and sentence individually, and not as a
group. Saxon at ¶ 8-9.
{¶ 9} Franklin essentially argues that we should treat his multiple convictions and
sentences as a “package,” rather than as separate and independent. The legislature and the
supreme court have spoken on this issue and have rejected this view. As the supreme court
stated in Saxon:
[R.C. 2929.14] makes no provision for grouping offenses together and
imposing a single, “lump” sentence for multiple felonies. Although
imposition of concurrent sentences in Ohio may appear to involve a “lump”
sentence approach, the opposite is actually true. Instead of considering
multiple offenses as a whole and imposing one, overarching sentence to
encompass the entirety of the offenses as in the federal sentencing regime, a
judge sentencing a defendant pursuant to Ohio law must consider each
offense individually and impose a separate sentence for each offense. Only
after the judge has imposed a separate prison term for each offense may the
judge then consider in his discretion whether the offender should serve those
terms concurrently or consecutively. Under the Ohio sentencing statutes, the
judge lacks the authority to consider the offenses as a group and to impose 6
only an omnibus sentence for the group of offenses.
(Internal citations omitted.) Id. at ¶ 8-9. We have neither the authority nor the inclination to
take a different approach to sentencing in Ohio.
{¶ 10} As we stated in our Decision & Entry denying Franklin’s application for
reconsideration, he “was sentenced on separate counts, with all sentences to run
concurrently. Although the conviction for Engaging in a Pattern of Corrupt Activity was
reversed, making the eight-year term for that sentence no longer effective, Franklin’s
remaining convictions were affirmed. Thus, Franklin still must serve * * * eight years on
[the charge of possession],” to be served concurrently with his other sentences. “There is
no reason to vacate the entire sentence, and Franklin has not furnished us with any legal
authority indicating that we should do so.” The trial court acted properly in abiding by our
mandate to conduct further proceedings only with respect to his conviction for engaging in a
pattern of corrupt activity.
{¶ 11} Finally, Franklin suggests that, because he was a first-time offender, he
would not have received the maximum sentence of eight years for possession of heroin if he
had not also been convicted of engaging in a pattern of corrupt activity, and that, “due to a
dramatic change in circumstances,” the sentences on the other offenses are no longer
appropriate.
{¶ 12} Franklin’s assertion that he would have been sentenced differently on the
other offenses if he had not also been convicted of engaging in a pattern of corrupt activity is
speculative; the record contains no support for this conclusion. Furthermore, if Franklin
believed that any of the sentences were too harsh due to his alleged status as a first-offender, 7
he should and could have raised that argument in his direct appeal. He did not. He may
not raise it – and we will not address it – for the first time in response to the trial court’s
judgment implementing our order on remand.
{¶ 13} The assignments of error are overruled.
{¶ 14} The judgment of the trial court will be affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Kirsten A. Brandt Daniel J. O’Brien Hon. Steven K. Dankof