State v. Priest

2021 Ohio 3418

• Court: Ohio Court of Appeals
• Decided: September 27, 2021
• Docket: 19-CA-14
• Status: Published

Opinion

[Cite as State v. Priest, 2021-Ohio-3418.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 19-CA-14 : GLENN J. PRIEST : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 18CR321

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING

DATE OF JUDGMENT ENTRY: September 27, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM C. HAYES JAMES A. ANZELMO LICKING CO. PROSECUTOR 446 Howland Dr. PAULA M. SAWYERS Gahanna, OH 43230 20 S. Second St., Fourth Floor Newark, OH 43055 Licking County, Case No. 19-CA-14 2

Delaney, J.

{¶1} Appellant Glenn J. Priest appeals from the February 14, 2019 Judgment

Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from appellee’s bill of particulars filed June

7, 2018.

{¶3} On May 11, 2018, Newark police were dispatched to an address on Hancock

Street for a report of shots fired. Upon arrival police located a deceased white male, later

identified as Jessie Moffitt Sr.

{¶4} Upon investigation, police learned Moffitt went to the Hancock Street address

to retrieve a cell phone. At the residence, a verbal altercation ensued between Moffitt

and a third party. During the altercation, appellant came up from the basement and shot

and killed Moffitt.

{¶5} Appellant then fled the area but was found around 48 hours later. A firearm

was found upon appellant’s person at the time of arrest. Appellant was Mirandized and

interviewed. He admitted killing Moffitt. The investigation determined that after the

shooting, appellant fled in a gold Ford F150.

{¶6} On the evening of May 12, 2018, Newark police learned the Ohio State

Highway Patrol was investigating appellant’s involvement in a road-rage incident, during

which he was also driving the gold Ford F150 on Interstate 70 westbound near mile post

137 in Licking County. Licking County, Case No. 19-CA-14 3

{¶7} In this incident, appellant passed victim R.E.’s vehicle, went onto the berm

of the highway, stopped in front of R.E.’s vehicle, and fired at least one shot at R.E.’s

vehicle. R.E. drove around appellant and fled.

{¶8} On the morning of May 13, 2018, Newark police found the gold Ford F150

abandoned near railroad tracks behind a residence on Hudson Avenue in Newark. Police

surveilled the vehicle until appellant was arrested later that evening.

{¶9} Appellant has a prior felonious assault conviction in Licking County Court of

Common Pleas Case Number 2008-CR-00686.

{¶10} Appellant was charged by indictment as follows: one count of murder

pursuant to R.C. 2903.02(A), an unclassified felony [Count I]; one count of involuntary

manslaughter pursuant to R.C. 2903.04(A), a felony of the first degree [Count II]; one

count of having weapons while under disability pursuant to R.C. 2923.13(A)(2), a felony

of the third degree [Count III]; one count of felonious assault pursuant to R.C.

2903.11(A)(2), a felony of the second degree [Count IV]; one count of having weapons

while under disability pursuant to R.C. 2923.13(A)(2), a felony of the third degree [Count

V]; and one count of improperly handling firearms in a motor vehicle pursuant to R.C.

2923.26(B), a felony of the fourth degree [Count VI]. Counts I, II, and IV are accompanied

by repeat-violent-offender specifications pursuant to R.C. 2941.149(A) and firearm

specifications pursuant to R.C. 2941.145(A).

{¶11} The bill of particulars noted appellant has a prior felony conviction for an

offense of violence, to wit, felonious assault in Licking County Court of Common Pleas

Case Number 2008-CR-00686. The felony predicate for Count II, involuntary

manslaughter, is weapons under disability. The offenses occurred on two separate dates, Licking County, Case No. 19-CA-14 4

therefore, appellee asserted, two separate firearms specifications, two charges of

weapons under disability, and two repeat-violent-offender specifications were filed.

{¶12} On February 14, 2019, appellee moved to dismiss Counts I and III and the

accompanying firearm specifications in exchange for appellant’s guilty pleas to Counts II,

IV, V and VI. The trial court granted appellee’s motion to dismiss.

{¶13} Also on that date, appellant appeared before the trial court and changed his

previously-entered pleas of not guilty to ones of guilty upon Counts II, IV, V, and VI. The

trial immediately sentenced appellant to prison terms of 6 years upon Count II, 8 years

upon Count IV, 3 years upon Count V, 1 year upon Count VI, and a mandatory term of 3

years upon the remaining firearm specification. The trial court further ordered that the

prison terms upon Counts II, IV, V, and the firearm specification are to be served

consecutively, and those terms are to be served concurrently with the term upon Count

VI. Appellant was therefore sentenced to an aggregate prison term of 20 years.

{¶14} Appellant appealed from the trial court’s judgment entry of conviction and

sentence dated February 14, 2019.

{¶15} On September 16, 2019, we dismissed the appeal for want of prosecution

pursuant to App.R. 18(C). On December 1, 2020, appellant filed an application to reopen

the appeal pursuant to App.R. 26(B), and we granted the application to reopen on January

25, 2021.

{¶16} Appellant now raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶17} “I. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE GLENN

PRIEST’S OFFENSES FOR FELONIOUS ASSAULT AND IMPROPER HANDLING OF Licking County, Case No. 19-CA-14 5

A FIREARM, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.”

{¶18} “II. THE TRIAL COURT UNLAWFULLY ORDERED PRIEST TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.”

ANALYSIS

I.

{¶19} In his first assignment of error, appellant argues the trial court should have

merged Count IV (felonious assault) and Count VI (improper handling of firearms in a

motor vehicle). We disagree.

{¶20} R.C. 2941.25, Ohio's allied-offense statute, provides:

(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.

(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 same or similar kind committed separately or

with a separate animus to each, the indictment or information may

contain counts for all such offenses, and the defendant may be

convicted of all of them. Licking County, Case No. 19-CA-14 6

{¶21} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held the following:

1. In determining whether offenses are allied offenses of

similar import within the meaning of R.C. 2941.25, courts must

evaluate three separate factors—the conduct, the animus, and the

import.

2. Two or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant's conduct

constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct

supports multiple offenses may be convicted of all the offenses if any

one of the following is true: (1) the conduct constitutes offenses of

dissimilar import, (2) the conduct shows that the offenses were

committed separately, or (3) the conduct shows that the offenses

were committed with separate animus.

{¶22} The Ruff court explained at paragraph 26:

At its heart, the allied-offense analysis is dependent upon the

facts of a case because R.C. 2941.25 focuses on the defendant's

conduct. The evidence at trial or during a plea or sentencing hearing

will reveal whether the offenses have similar import. When a

defendant's conduct victimizes more than one person, the harm for

each person is separate and distinct, and therefore, the defendant Licking County, Case No. 19-CA-14 7

can be convicted of multiple counts. Also, a defendant's conduct that

constitutes two or more offenses against a single victim can support

multiple convictions if the harm that results from each offense is

separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist

within the meaning of R.C. 2941.25(B) when the defendant's conduct

constitutes offenses involving separate victims or if the harm that

{¶23} Appellate review of an allied-offense question is de novo. State v. Williams,

134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.

{¶24} At sentencing, appellant argued Counts IV, V, and VI should merge

because the same firearm was involved in each of those offenses, and in the firearm

specification accompanying Count IV. Appellee responded that Counts IV, V, and VI were

each supported by separate conduct: appellant, a convicted felon, fled in a motor vehicle

with a firearm [Count VI], despite his disability [Count V], which he then discharged at

R.E. [Count IV] and again fled with the firearm in the motor vehicle. T. 19, 23. The trial

court did not explicitly address the merger argument; the sentences upon Counts IV and

VI were imposed separately, with Count VI to be served concurrently.1

{¶25} Appellant relies upon State v. Parsons, 2017-Ohio-1315, 88 N.E.3d 624, ¶

88 (3rd District), in which the Court found that separate counts of attempted murder,

felonious assault, and improper handling of firearms in a motor vehicle merge for

1 As appellant notes, “The imposition of concurrent sentences is not the equivalent of merging allied offenses.” State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. Licking County, Case No. 19-CA-14 8

sentencing purposes, but in that case the state of Ohio agreed to merger because the

three counts arose from a single incident with a single victim. The Third District Court of

Appeals did not analyze whether those offenses were in fact allied offenses of similar

import because the appellant challenged the trial court’s imposition of separate sentences

despite the agreed-upon merger. Id., ¶ 86. We therefore find Parsons inapposite to the

case sub judice.

{¶26} In the instant case, appellant had a firearm in his vehicle. He passed R.E.,

pulled onto the berm in front of R.E., exited his vehicle, and fired at least one shot at

R.E.’s vehicle. Appellant committed felonious assault upon firing the weapon at R.E. after

exiting the vehicle; he committed improper handling of a firearm in a motor vehicle when

he drove with the firearm in the vehicle before and after the felonious assault. We

therefore agree with appellee that the trial court was not required to merge the counts of

felonious assault and improper handling because the counts represented separate

harms. Ruff, supra, at paragraph two of the syllabus. Appellant was therefore properly

convicted of, and sentenced upon, separate counts. State v. Chester, 5th Dist. Stark No.

2020CA00028, 2021-Ohio-918, ¶ 54, appeal not allowed, 163 Ohio St.3d 1495, 2021-

Ohio-2270, 169 N.E.3d 1282.

{¶27} We note the offenses are objectively of dissimilar import and subjectively

as applied to the facts of the instant case. Appellant was convicted and sentenced upon

improper handling of firearms in a motor vehicle pursuant to R.C. 2923.16(B): “No person

shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner

that the firearm is accessible to the operator or any passenger without leaving the

vehicle.” Appellant was also convicted and sentenced upon felonious assault pursuant Licking County, Case No. 19-CA-14 9

to R.C. 2903.11(A)(2): “No person shall knowingly * * * [c]ause or attempt to cause

physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”

These offenses, and appellant’s commission of each, were “not alike in their significance

and their resulting harm.” Ruff at ¶ 21. Based on our de novo review, appellant has failed

to explain how his conduct could be analyzed under Ruff to overcome the trial court's

implicit determination that the offenses were of dissimilar import.

{¶28} Accordingly, appellant’s first assignment of error is overruled.

II.

{¶29} In his second assignment of error, appellant argues the trial court

improperly imposed consecutive prison terms without making the requisite findings on the

record at the sentencing hearing. We agree.

{¶30} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,

2014-Ohio-3177, syllabus.

{¶31} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption

by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). Bonnell,

supra, 2014-Ohio-3177 at ¶ 23. R.C. 2929.14(C)(4) concerns the imposition of

consecutive sentences and provides:

If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the offender Licking County, Case No. 19-CA-14 10

to serve the prison terms consecutively if the court finds that the

consecutive service is necessary to protect the public from future

crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and

to the danger the offender poses to the public, and if the court also

finds any of the following:

(a) The offender committed one or more of the multiple

offenses while the offender was awaiting trial or sentencing, was

under a sanction imposed pursuant to section 2929.16, 2929.17, or

2929.18 of the Revised Code, or was under post-release control for

a prior offense.

(b) At least two of the multiple offenses were committed as

part of one or more courses of conduct, and the harm caused by two

or more of the multiple offenses so committed was so great or

unusual that no single prison term for any of the offenses committed

as part of any of the courses of conduct adequately reflects the

seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶32} In the instant case, the record does not establish the trial court made the

findings required by R.C. 2929.14(C)(4)(b) at the time it imposed consecutive sentences.

We note, however, that in the sentencing judgment entry, the trial court found that Licking County, Case No. 19-CA-14 11

consecutive sentences are necessary to protect the public from future crime or to punish

the offender; are not disproportionate to appellant's conduct and to the danger he poses

to the public; and appellant’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future harm by the offender. Judgment

Entry, Feb. 14, 2019, page 3. However, these findings were not made on the record at

the sentencing hearing.

{¶33} We have previously held that the trial court must state these findings during

the sentencing hearing as well as incorporate them into the judgment entry. State v.

Smith, 5th Dist. Licking No. 2019 CA 119, 2020-Ohio-4048, ¶ 47; State v. Bryan, 5th Dist.

Muskingum No. CT2016-0056, 2017-Ohio-1532, ¶ 13; State v. Hunter, 5th Dist. Licking

No. 15-CA-18, 2015-Ohio-3498, ¶ 15; State v. Fisher, 5th Dist. Stark No. 2012CA00031,

2013-Ohio-2081, ¶ 25; State v. Kennedy, 5th Dist. Guernsey No. 16-CA-27, 2017-Ohio-

5547, ¶ 33.

{¶34} Appellant’s second assignment of error is therefore sustained, appellant’s

sentence is vacated, and this matter is remanded for resentencing. Licking County, Case No. 19-CA-14 12

CONCLUSION

{¶35} Appellant’s first assignment of error is overruled and the second assignment

of error is sustained. The judgment of the Licking County Court of Common Pleas is

therefore affirmed in part and reversed in part. The sentence is vacated and the matter

is remanded to the trial court upon the issue of findings in support of consecutive

sentencing. Smith, supra, 2020-Ohio-4048, ¶ 49.

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.