[Cite as State v. Terrel, 2015-Ohio-4201.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
STATE OF OHIO : : Appellate Case No. 2014-CA-24 Plaintiff-Appellee : : Trial Court Case No. 2013-CR-408 v. : : (Criminal Appeal from BRENDON TERREL : Common Pleas Court) : Defendant-Appellant : :
........... OPINION Rendered on the 9th day of October, 2015. ...........
PAUL M. WATKINS, Atty, Reg. No. 0090868, Miami County Prosecutor’s Office, 201 West Main Street – Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, and NICOLE RUTTER-HIRTH, Atty. Reg. No.0081004, Rion, Rion & Rion, L.P.A., Inc., 130 West Second Street, Suite 2150, Post Office Box 10126, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Brenden Terrel appeals from his conviction and -2-
sentence for Aggravated Robbery, Aggravated Burglary, both first degree felonies, and a
firearm specification. Terrel raises three assignments of error, arguing that the trial court
erred by imposing maximum sentences, by failing to merge the two felony convictions,
and by issuing an improper order for restitution. The State argues that no error occurred
regarding restitution because no restitution was ordered in the case. The State also
argues that Aggravated Robbery and Aggravated Burglary are not allied offenses of
similar import and therefore should not be merged. Finally, the State contends that the
maximum sentence was not contrary to law, and is not clearly and convincingly
unsupported by the record.
{¶ 2} We conclude that the trial court did not order restitution and therefore no
error occurred with regard to restitution. We also conclude that Terrel did not meet his
burden of proving that a plain error occurred when the court failed to merge the offenses
of Aggravated Burglary and Aggravated Robbery. Finally, we conclude that the
sentence was not contrary to law or unsupported by the record. Accordingly, the
judgment will be Affirmed.
I. Terrel’s Role as a Complicitor in the Aggravated Burglary and Aggravated
Robbery Offenses
{¶ 3} At the time of the actions that led to his convictions for Aggravated Burglary
and Aggravated Robbery, Terrel was 19 years old, and had recently been charged on
three different occasions with possession of drugs and possession of drug paraphernalia,
misdemeanor offenses. He also had a juvenile record for delinquencies related to drug
and alcohol abuse. Terrel admitted that he regularly smoked marijuana, and that on the -3-
day of the offense, he had spent most of the day hanging out with his brother and friends,
smoking marijuana. Terrel claims that his 16-year-old friend, Patrick McGail, suggested
that they rob a local drug dealer to obtain money and more drugs. Terrel texted another
friend, Jason Sowers, who agreed to join them after he got off work at the Troy Country
Club. While waiting for Sowers, McGail and Terrel went with Terrel’s brother to go pick
up a gun, and they returned to the home of Terrel’s brother. Sowers picked them up in
his car around 9:00 P.M., and he also had a gun. Sowers drove Terrel and McGail to the
victim’s house and supplied all three with masks to hide their identity. Terrel agreed to act
as a lookout when McGail and Sowers entered the victim’s home to rob him. Terrel walked
around the house, while McGail and Sowers attempted to enter it. They regrouped when
they discovered the house was locked, and made plans to break a window as a train
passed, to block the noise. At this point, Terrel became nervous about his participation in
the venture, so he left the vicinity and started walking away. Terrel was not present when
McGail and Sowers gained access to the house, attempted to rob the victim, and shot the
victim in the head. The victim later died at the hospital, leaving behind a fiancé and a 2-
year-old son.
{¶ 4} Terrel cooperated with the police investigation, and agreed to testify against
his accomplices in exchange for a plea agreement.
II. The Course of the Proceedings
{¶ 5} Terrel was charged with one count of Complicity to Commit Aggravated
Robbery, and one count of Complicity to Commit Aggravated Burglary, both felonies of
the first degree, and both carrying a gun specification. Terrel waived his right to be -4-
prosecuted by indictment, and consented to prosecution by information. Terrel agreed to
enter a plea of no contest, and signed a written plea form informing him of the possible
sentence and the possible fine for each of the two first-degree felonies and the gun
specification. The plea agreement specifically stated that promises had been made, “with
continued cooperation and testimony State will not pursue charge of conspiracy to commit
Murder/Aggravated Murder; State will also recommend concurrent sentencing (except for
gun specification). Both of Terrel’s co-defendants were charged and convicted of Murder,
in addition to Aggravated Burglary and Aggravated Robbery. Terrel did testify at the trial
of co-defendant McGail. After the completion of the McGail trial, sentencing hearings were
conducted for all three co-defendants.
{¶ 6} Prior to his sentencing, a pre-sentence investigation was completed, which
included Terrel’s criminal history, a summary of the facts that supported the offenses, a
summary of sentencing factors, and numerous victim-impact statements. At the
sentencing hearing, both of the victim’s parents read their victim-impact statements.
Terrel also made a statement to express remorse and to apologize to the victim’s family.
Prior to announcing sentence, the trial court stated:
In determining sentence, the Court has considered the Pre-Sentence
Investigation that was done, the defendant’s statement here in open Court
today, the statement from defendant’s counsel, and also the statement from
the Prosecuting Attorney, and also the joint recommendation for concurrent
sentences. The Court has also taken into consideration the Victim Impact
Statements that were read here in open Court today, as well as all the
various Victim Impact Statements that were submitted but not read, as well -5-
as also the statements that were submitted in support of the defendant,
Brendon Terrel. The Court has read all of them and taken all of them into
consideration.
The Court has considered the purposes and principles of the
sentencing statute, which include the recidivism factors and the seriousness
factors.
Transcript Sentencing Hearing at pgs. 16-17.
{¶ 7} At the sentencing hearing, the trial court found that the sentences for the
two offenses would not merge after asking defense counsel if he had any argument to
make about merger under R.C. 2941.25, and counsel responded “No” on the record. Id.
at 17. The trial court then addressed Terrel as follows:
You’ve been convicted for being a willing accomplice to Aggravated
Burglary and Aggravated Robbery. You’re older than either of your co-
defendants with whom you conspired to engage in high-risk criminal
conduct that demonstrates a callous disregard for the lives of others. You
knew that each of your co-defendants was armed with a deadly weapon,
yet you freely got into the car with them and then you willingly went with
them and walked around the house and served as a lookout before you left.
Your remorse, your acceptance of responsibility and your testimony
that led to the conviction of a co-defendant are important. However, none
of these factors alters the fact that you willingly assisted others in conduct
that had the potential for and did end the life of an innocent human being,
Nathan Wintrow, who had done nothing to provoke the con – provoke or -6-
contributed to the events that resulted in his murder.
Transcript Sentencing Hearing at 18.
{¶ 8} Terrel was sentenced to serve eleven years on count one for Aggravated
Robbery, and eleven years on count two for Aggravated Burglary, plus three years for the
gun specification. The two counts were not merged, but the sentences, not including the
three-year sentence for the firearm specification (which by statute is required to be served
consecutively) were ordered to be served concurrently. The final judgment entry imposing
sentence confirms that the gun specification sentence must be served prior to and
consecutively to the sentences for the two felonies. The sentencing entry does not contain
any order of restitution. The entry further states,
The Court has considered the record, oral statements, any victim
impact statements and presentence report prepared. The Court has
considered the purposes and principles of felony sentencing in ORC
§2929.11 and the seriousness and recidivism factors in §2929.12.
{¶ 9} From the judgment of conviction, Terrel appeals.
III. The Standard of Review
{¶ 10} Generally, a de novo standard of review is applied when reviewing an
alleged error regarding a merger determination, State v. Williams, 134 Ohio St. 3d 482,
2012-Ohio-5699, 983 N.E. 2d 1245. However, in the case before us, the effect of
counsel’s decision not to argue for merger resulted in a failure to preserve this issue for
appellate review, although we may still review it for plain error. “We have found plain error
when three elements are met: 1) there must be an error or deviation from a legal rule, 2) -7-
that error must be plain, defined as ‘an obvious defect in the trial proceedings,’ and 3) the
error must have affected a ‘substantial right,’ meaning the error must have affected the
ultimate outcome, and a correction is needed to ‘prevent a manifest miscarriage of
justice.’ ” State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 9, citing
State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240 (2002).
{¶ 11} With respect to the issue raised regarding the length of the sentence, we
are guided by the standard of review set forth in R.C. 2953.08(G)(2). State v. Rodeffer,
2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.). “Under this statute, an appellate court may
increase, reduce, or modify a sentence, or it may vacate the sentence and remand for
resentencing, only if it ‘clearly and convincingly’ finds either (1) that the record does not
support certain specified findings or (2) that the sentence imposed is contrary to law.”
State v. Battle, 2d Dist. Clark No. 2014CA5, 2014-Ohio-4502, ¶ 7. We have
acknowledged that this is an “extremely deferential standard of review.” Rodeffer at ¶ 31.
IV. Terrel’s Sentence Is Not Contrary to Law
{¶ 12} For his First Assignment of Error, Terrel asserts as follows:
THE TRIAL COURT ERRED IN IMPOSING MAXIMUM
SENTENCES ON COUNTS 1 AND 2, DESPITE THE PRESENCE OF
SEVERAL MITIGATING FACTORS AND TERREL’S ROLE IN THE
OFFENSES.
{¶ 13} Terrel was convicted of two first-degree felonies, and ordered to serve the
maximum sentence of eleven years for each offense. Pursuant to R.C. 2929.14 (A)(1),
the trial court may impose a prison term ranging from three to eleven years for a first- -8-
degree felony. The trial court accepted the party’s plea agreement, and ordered Terrel to
serve the two sentences concurrently. The additional three-year sentence for the gun
specification is required to be served consecutively pursuant to R.C. 2929.14(C)(1)(a).
{¶ 14} “ ‘The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.’ State v. Nelson, 2d
Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶ 62. ‘However, the trial court must
comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12.’
Id.” State v. Eicholtz, 2d Dist. Clark No. 2012 CA 7, 2013-Ohio-302, ¶ 53.
{¶ 15} In the case before us, Terrel’s eleven-year sentence was within the
statutory range. Prior to imposing sentence, the trial court reviewed and considered the
pre-sentence investigation, the defendant’s statement, the statement of defense counsel,
the statement from the State, and all the victim-impact statements. These documents
provided the court with a sufficient basis to consider the sentencing factors outlined in
R.C. 2929.11 and 2929.12. The trial court acknowledged Terrel’s youth and his lack of
recidivism factors, but these factors did not outweigh the seriousness of the offense
because the victim was murdered. Even though Terrel was not charged with Murder, it
was not error for the court to consider the seriousness of the harm that occurred during
the course of, and as a foreseeable result of, the Aggravated Robbery and Aggravated
Burglary offenses, as directed by the sentencing statutes, R.C. 2929.11 and R.C.
2929.12.
{¶ 16} Terrel also argues that the trial court failed to consider whether his
sentence was “consistent with sentences imposed for similar crimes committed by similar -9-
offenders” as required by R.C. 2929.11(B). Terrel suggests that his sentence was
inconsistent with two recent cases in which the defendants were only sentenced to seven
or eight years of imprisonment for convictions of Involuntary Manslaughter. As evidence,
Terrel provided the termination entry in State v. Spears, Montgomery C.P. Case No.
2013-CR-2195 (Jan. 23, 2015) and State v. Jordan, Miami C.P. Case No. 08CR464C
(April 29, 2009). “As explained by the Tenth District Court of Appeals, consistency in
sentencing does not necessarily equate with uniformity, ‘rather consistency has a goal of
similar sentences for similar offenses.’ ” State v. Mansley, 2d Dist. Montgomery No.
26417, 2015-Ohio-2785, quoting State v. Murphy, 10th Dist. Franklin No. 12AP-952,
2013-Ohio-5599, ¶ 14, citing State v. Battle, 10th Dist. Franklin No. 06AP-863, 2007-
Ohio-1845. The Franklin County appellate court explained:
As a result, consistency includes a range of sentences, taking into
consideration a trial court's discretion to weigh the relevant statutory factors.
[State v. Battle]. Even though offenses may be similar, “distinguishing
factors may justify dissimilar sentences.” Id. at ¶ 24.
In addition, consistency in sentencing does not result from a case-by-
case comparison, but by the trial court's proper application of the statutory
sentencing guidelines. State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-
6228, ¶ 10 (10th Dist.). An offender cannot simply present other cases in
which an individual convicted of the same offense received a lesser
sentence to demonstrate that his sentence is disproportionate. [State v.]
Hayes, [10th Dist. Franklin No. O8AP-233, 2009-Ohio-1100] at ¶ 10, citing
Battle at ¶ 23. Rather, to demonstrate that a sentence is inconsistent, an -10-
offender must show that the trial court did not properly consider applicable
sentencing criteria found in R.C. 2929.11 and 2929.12. [State v.] Holloman,
[10th Dist. Franklin No. 07AP-875, 2008-Ohio-2650] at ¶ 19; Battle at ¶ 21–
22.
Murphy at ¶ 14-15.
{¶ 17} As we concluded above, the record does support a finding that the trial
court did properly consider the sentencing factors set forth in R.C. 2929.11 and 2929.12.
Upon review of the record available to the trial court at the time of sentencing, we
conclude that the sentence is neither contrary to law nor clearly and convincingly
unsupported by the record. Terrel’s First Assignment of Error is overruled.
V. The Trial Court Did Not Commit Plain Error When it Failed to Merge the
Aggravated Burglary and Aggravated Robbery Convictions
{¶ 18} For his Second Assignment of Error, Terrel asserts as follows:
THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS I
AND 2 AS THESE ARE ALLIED OFFENSES OF SIMILAR IMPORT AND
TERREL POSSESSED A SINGLE ANIMUS
{¶ 19} Initially, we note that Terrel forfeited all but plain error by failing to object
at his sentencing hearing to the failure of the trial court to merge his convictions. See
State v. Rogers, 2d Dist. Greene No. 2011 CA 0057, 2012-Ohio-4451, ¶ 5. However,
failure to merge allied offenses of similar import is plain error. Id.; State v. Bozeman, 2d
Dist. Clark No. 2014-CA-38, 2015-Ohio-616, ¶ 9.
{¶ 20} R.C. 2941.25, Ohio's allied offense statute, provides that: -11-
(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 as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 21} “When determining whether two offenses are allied offenses of similar
import subject to merger under R.C. 2941.25, the conduct of the accused must be
considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
syllabus. The Supreme Court of Ohio explained:
* * * [T]he question is whether it is possible to commit one offense
and commit the other with the same conduct, not whether it is possible to
commit one without committing the other. * * * If the offenses correspond to
such a degree that the conduct of the defendant constituting commission of
one offense constitutes commission of the other, then the offenses are of
similar import.
If the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by the same
conduct, i.e., “a single act, committed with a single state of mind.” * * * -12-
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses
are committed separately, or if the defendant has separate animus for each
offense, then, according to R.C. 2941.25(B), the offenses will not merge.
(Citations and quotations omitted.)
Johnson at ¶ 48–51.
{¶ 22} Although Terrel argues that his role in both of the offenses was simply to
act as a lookout, Terrel was charged and convicted of Complicity to Commit Aggravated
Burglary, and Complicity to Commit Aggravated Robbery. Pursuant to R.C. 2923.03(A)(2)
and (3), complicity involves aiding and abetting another in committing the offense and
conspiring with another to commit an offense, and “[w]hoever violates this section is guilty
of complicity in the commission of an offense, and shall be prosecuted and punished as
if he were a principal offender.” Therefore, for purposes of sentencing, the conduct of
Terrel’s co-defendants is imputed to Terrel, as if he was also a principal offender.
{¶ 23} As a principal offender or an accomplice, a conviction for Aggravated
Burglary establishes a violation of R.C. 2911.11(A)(2), which provides in pertinent part
that “[n]o person, by force, stealth, or deception, shall trespass in an occupied structure *
* *with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender
has a deadly weapon * * *.” As a principal offender or an accomplice, a conviction for
Aggravated Robbery establishes a violation of R.C. 2911.01(A)(1) which provides that -13-
“[n]o person in attempting or committing a theft offense * * * shall * * * [h]ave a deadly
weapon on or about the offender's person or under the offender's control and either
display the weapon, brandish it, indicate that the offender possesses it, or use it.”
{¶ 24} We have held that “Aggravated Robbery and Aggravated Burglary are
often not allied offenses of similar import because they involve two separate crimes;
entering into the premises by force, stealth or deception, and then committing a theft
offense.” State v. Kay, 2d Dist. Montgomery No. 25761, 2014-Ohio-2676, ¶ 21. “A
burglary is complete upon entry into the victim's home, and a robbery subsequently
committed inside the home constitutes a new, separate offense.” Id., citing State v.
Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 137. See also State v.
McClurkin, 10th Dist. Franklin No. 11AP-944, 2013-Ohio-1140; State v. Adams, 1st Dist.
Hamilton No. C–120059, 2013-Ohio-926. “Aggravated Burglary is complete upon an
offender's entrance while the Aggravated Robbery requires additional conduct.” Kay at ¶
{¶ 25} In the case before us, the record does not provide any detail regarding the
sequence of events once Sowers and McGail left Terrel outside the victim’s home and
proceeded with their plan to gain entry into the victim’s home and rob him. To prevail on
a merger claim, the burden of proving entitlement to merger is on the defendant. Kay at
¶ 19, citing State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 134.
We cannot make assumptions about what transpired inside the victim’s home to
speculate whether the burglary was complete before the robbery occurred, or whether
the two offenses occurred at the same time. Therefore, Terrel has not met his burden of
establishing that merger was required. Upon the record, we conclude that the trial court -14-
did not commit plain error when it failed to merge the two offenses or failed to find that
the two offenses were committed at the same time, with the same animus. Therefore,
Terrel’s Second Assignment of Error is overruled.
VI. No Restitution Was Ordered
{¶ 26} For his Third Assignment of Error, Terrel asserts as follows:
THE TRIAL COURT ERRED IN IMPOSING RESTITUTION
WITHOUT ORDERING A SPECIFIC RESTITUTION FIGURE AT THE
SENTENCING HEARING, IN THE TERMINATION ENTRY, AND
WITHOUT HOLDING A HEARING.
{¶ 27} Terrel argues that because the sentencing entry makes the following
statement, restitution was wrongfully ordered:
The Defendant is ordered to pay any restitution, all prosecution
costs, court appointed counsel costs and any fees permitted pursuant to
R.C. 2929.18(A)(4).
{¶ 28} However, neither the sentencing hearing, nor the sentencing entry
contains any reference to a specific order for the payment of restitution.1 Based on the
record before us, we conclude that Terrel has no obligation to pay restitution, and
therefore no error occurred. Terrel’s Third Assignment of Error is overruled.
1 The State asserts that the order to pay “any restitution” is boilerplate language in this trial court’s sentencing entries, without regard to whether restitution has, in fact, been ordered. We construe the reference, therefore, as being contingent upon the ordering of restitution, which was not ordered in this case. -15-
VII. Conclusion
{¶ 29} All of Terrel’s assignments of error having been overruled, the judgment of
the trial court is Affirmed.
HALL and WELBAUM, JJ., concur.
Copies mailed to:
Paul M. Watkins Jon Paul Rion Nicole Rutter-Hirth Hon. Christopher Gee