State v. Hess

2024 Ohio 5722

Opinion

[Cite as State v. Hess, 2024-Ohio-5722.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : CHARLES HESS, : Case No. CT2024-0052 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Apeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0472

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 6, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOE PALMER APRIL F. CAMPBELL Assistant Prosecuting Attorney Campbell Law, LLC 27 North 5th Street 545 Metro Place South, Suite 100 Zanesville, Ohio 43701 Dublin, Ohio 43017 Muskingum County, Case No. CT2024-0052 2

Baldwin, J.

{¶1} The appellant, Charles Hess, appeals his sentence in the Muskingum

County Court of Common Pleas for his convictions on theft and burglary. Appellee is the

State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On July 27, 2023, the Muskingum County Grand Jury indicted the appellant

on one count of Burglary in violation of R.C. §2911.12(A)(1) and one count of Theft in

violation of R.C. §2913.02(A)(1).

{¶3} On February 7, 2024, the appellant entered a plea of no contest to an

amended indictment of one count of Burglary in violation of R.C. §2911.12(A)(3) and one

count of Theft in violation of R.C. §2913.02(A)(1). The plea specifically stated, “[t]he

parties stipulate the counts herein do not merge.”

{¶4} On February 8, 2024, the trial court found the appellant guilty of one count

of Burglary in violation of R.C. §2911.12(A)(3) and one count of Theft in violation of R.C.

§2913.02(A)(1).

{¶5} On March 27, 2024, the trial court held a sentencing hearing. The trial court

sentenced the appellant to twenty-four months in prison for Burglary and one hundred

eighty days of local incarceration for Theft to be served concurrently.

{¶6} The appellant filed a timely notice of appeal and set forth the following

assignment of error:

{¶7} “I. THE TRIAL COURT REVERSIBLY ERRED IN NOT MERGING HESS’S

THEFT OFFENSE WITH HESS’S BURGLARY OFFENSE, BECAUSE THOSE

OFFENSES ARE ALLIED.” Muskingum County, Case No. CT2024-0052 3

ANALYSIS

{¶8} In the appellant’s sole assignment of error, the appellant argues the trial

court erred by failing to merge the appellant’s Theft offense with the appellant’s Burglary

offense. We disagree.

{¶9} According to the change of plea agreement, the appellant agreed the two

charges do not merge for the purposes of sentencing. Under similar circumstances,

appellate courts have found this to be invited error. State v. James, 2015-Ohio-4987 (8th

Dist.).

{¶10} “Under [the invited-error] doctrine, a party is not entitled to take advantage

of an error that he himself invited or induced the court to make.” State ex rel. Kline v.

Carroll, 2002-Ohio-4849, ¶47.

{¶11} In State v. Gardner, 2011-Ohio-2644 (7th Dist.), the defense counsel made

a representation to the trial court that counts did not merge for the purposes of sentencing.

The Seventh District Court of Appeals found that error to be invited. Also, in State v.

Oehler, 2011-Ohio-6501 (6th Dist.), the Sixth District Court of Appeals held a defense

counsel’s agreement to the state’s representation that counts do not merge for sentencing

constituted invited error.

{¶12} Similarly, in this case, the appellant’s negotiated plea agreement stated the

counts do not merge for the purposes of sentencing. Therefore, the appellant invited any

error the trial court made by not merging the two counts.

{¶13} Accordingly, the appellant’s sole assignment of error is overruled. Muskingum County, Case No. CT2024-0052 4

CONCLUSION

{¶14} Based upon the foregoing, the decision of the Muskingum County Court of

Common Pleas is, hereby, affirmed.

By: Baldwin, J.

Wise, P.J. and

King, J. concur.