State v. Marriott

937 N.E.2d 614, 189 Ohio App. 3d 98
CourtOhio Court of Appeals
DecidedJuly 2, 2010
DocketNo. 2008 CA 48
StatusPublished
Cited by14 cases

This text of 937 N.E.2d 614 (State v. Marriott) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Marriott, 937 N.E.2d 614, 189 Ohio App. 3d 98 (Ohio Ct. App. 2010).

Opinions

Froelich, Judge.

{¶ 1} James R. Marriott was convicted by a jury in the Clark County Court of Common Pleas of two counts of aggravated burglary, in violation of R.C. 2911.11(A)(1), a first-degree felony. The court sentenced him to eight years in prison on each count, to be served concurrently, and ordered him to pay a fine of $2,500, restitution in the amount of $3,000, and court costs. On May 15, 2009, we affirmed Marriott’s conviction and sentence, holding that his convictions were based on sufficient evidence and were not against the manifest weight of the evidence and that his sentence was not an abuse of discretion, even though it was harsher than those received by his co-defendants. State v. Marriott, Clark App. No. 2008 CA 48, 2009-Ohio-2323, 2009 WL 1387474.

{¶ 2} In August 2009, Marriott filed an application to reopen his direct appeal, pursuant to App.R. 26(B). Marriott claimed that his appellate counsel has been ineffective in failing to argue that he had been sentenced on multiple allied offenses of similar import and that his sentence was void due to the trial court’s improper notification of postrelease control. We granted Marriott’s App.R. 26(B) application, and the matter is now ripe for a decision on the merits of those two issues.

{¶ 3} For the following reasons, the trial court’s judgment will be vacated in part, and the matter will be remanded for resentencing in accordance with R.C. 2929.191. In all other respects, the judgment will be affirmed.

[100]*100I

{¶ 4} We set forth the relevant facts in our original opinion in this action, as follows:

{¶ 5} On September 28, 2007, Betty and Bill McCreary, who were 75 and 79 years old, respectively, resided at 3429 Christina Drive in the Brookwood Mobile Home Park in New Carlisle (Clark County). Between 8:30 p.m. and 9:00 p.m., Mrs. McCreary was preparing for a bus trip that she was planning to take the following day while her husband was using the computer in another room.

{¶ 6} As Mrs. McCreary was packing, she heard a knock on her front door. She opened the door to find a man standing at the door and two other men standing behind him. The man at the door was later identified as Dustin Cable; the other two men were later identified as Joshua Kelsey, the McCrearys’ former stepgrandson, and Marriott.

{¶ 7} Cable asked Mrs. McCreary whether she had a car missing. Mrs. McCreary responded that she did not, but her son did. Cable then asked her, “Harold Bartley?” When Mrs. McCreary responded affirmatively, Cable told her to “look out here.” As Mrs. McCreary looked, the three men ran into the house; Mrs. McCreary noticed that the two men who had been standing behind Cable were wearing masks.

{¶ 8} The first man into the house pushed Mrs. McCreary onto her couch, pulled her hair, slapped her, and told her, “You sit there.” Mrs. McCreary began to scream and holler, “Who are you? What are you doing here? We don’t know you.” Upon hearing a commotion, Mr. McCreary left the computer room and headed into the short hallway toward his wife. One of the men hit him, knocking him unconscious. When Mr. McCreary began to “come out of it,” two men were shouting at him, “Where’s your safe?” The men hit Mr. McCreary a second time, causing him to lose consciousness again.

{¶ 9} Fearing that the men “were going to beat [her] husband to death,” Mrs. McCreary ran to a neighbor’s home to call the police. When Mr. McCreary regained consciousness, no one was in the house. He located his wife at the neighbor’s home. Mrs. McCreary discovered that $8,000 in jewelry and her purse were missing. Her purse had contained approximately $700, her identification, her social security card, and credit cards.

{¶ 10} Cable and Kelsey pleaded guilty to burglary for committing the offense at the McCrearys’ home. Both identified Marriott as the third participant in the home invasion. Marriott was also identified by Randy and Dawn Sinclair, other residents of Christina Drive, as being in a vehicle with Cable and another person on Christina Drive shortly before the burglary.

[101]*101{¶ 11} On November 20, 2007, Marriott was indicted on two counts of aggravated burglary. After a jury trial, Marriott was convicted of both counts. The court sentenced him to eight years in prison on each count, to be served concurrently. At sentencing, Marriott was notified that he would be subject to a mandatory term of five years of postrelease control; the trial court’s judgment entry, however, stated that he would be subject to mandatory postrelease control “up to a maximum of five years.”

II

{¶ 12} Marriott’s first assignment of error states:

{¶ 13} “The trial court erred in convicting the appellant of two counts of aggravated burglary, which are allied offenses of similar import.”

{¶ 14} In his first assignment of error, Marriott claims that the trial court should have merged the two counts of aggravated burglary, because there was only one entry into an occupied residence, and the sole animus was to burglarize the McCrearys’ residence. Marriott argues that the fact that physical harm was inflicted upon two individuals in the residence does not demonstrate a separate animus; rather, the infliction or threat of physical harm “merely serves to inform the level of the offense.” Marriott cites State v. Allen, Cuyahoga App. No. 82618, 2003-Ohio-6908, 2003 WL 22972696, to support his argument.

{¶ 15} The state responds that the two counts of aggravated burglary were not allied offenses of similar import, because “there was a separate animus to injure each of the occupants in the residence.” The state notes that we addressed a situation of multiple counts of aggravated burglary in State v. Butt,1 Montgomery App. No. 22105, 2008-Ohio-2587, 2008 WL 2222718, and affirmed the conviction on both aggravated-robbery counts.

{¶ 16} R.C. 2941.25, concerning allied offenses of similar import, provides:

{¶ 17} “(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.

{¶ 18} “(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 [102]*102same 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.”

{¶ 19} “R.C. 2941.25 codifies the double jeopardy protections in the federal and Ohio constitutions, which prohibit courts from imposing cumulative or multiple punishments for the same criminal conduct unless the legislature has expressed an intent to impose them. R.C. 2941.25 expresses the legislature’s intent to prohibit multiple convictions for offenses that are allied offenses of similar import per paragraph (A) of that section, unless the conditions of paragraph (B) are also satisfied.” State v. Barker, 183 Ohio App.3d 414, 2009-Ohio-3511, 917 N.E.2d 324, ¶ 22, citing State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699.

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Cite This Page — Counsel Stack

Bluebook (online)
937 N.E.2d 614, 189 Ohio App. 3d 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marriott-ohioctapp-2010.