State v. Vintson

2019 Ohio 3894

• Court: Ohio Court of Appeals
• Decided: September 26, 2019
• Docket: 108477
• Status: Published

Opinion

[Cite as State v. Vintson, 2019-Ohio-3894.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108477 v. :

ANTONIO VINTSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED IN PART; SENTENCE MODIFIED RELEASED AND JOURNALIZED: September 26, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630579-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Melissa Riley, Assistant Prosecuting Attorney, for appellee.

Ariel E. Burr, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Antonio Vintson appeals from his ten-year

prison sentence. Because we find the trial court failed to merge allied offenses, we

remand the matter to the trial court to vacate the sentence imposed on Count 13. On August 10, 2018, Vintson was charged as follows: Counts 1-6 —

illegal use of a minor in nudity-oriented material or performance in violation of R.C.

2907.323(A)(1); Counts 7-12 — disseminating matter harmful to juveniles in

violation of R.C. 2907.31(A)(1); Count 13 — illegal use of a minor in nudity-oriented

material or performance in violation of R.C. 2907.323(A)(3); and Count 14 —

possessing criminal tools in violation of R.C. 2923.24(A). On January 14, 2019,

Vintson entered into a plea agreement wherein he pleaded guilty to Counts 1-4

(illegal use of a minor), Counts 7-9 (disseminating matter harmful to juveniles),

Count 13 (illegal use of a minor), and Count 14 (criminal tools). In exchange for

Vintson’s guilty plea, the state agreed to request that the court nolle Counts 5-6 and

10-12. The state also agreed, as part of the plea, that Count 13 would merge with

Counts 1-4, and the state noted its intention to proceed under Counts 1-4. The trial

court accepted Vintson’s plea and found him guilty.

On April 2, 2019, the court held a sentencing hearing. At the hearing,

the court noted that although Counts 1-4 “are the same,” they “represent separate

charges.” The court then sentenced Vintson to three years in prison on Count 1,

three years on Count 2, two years on Count 3, and two years on Count 4. The court

ordered Counts 1-4 to be served consecutively. The court sentenced Vintson to a

one-year prison term on each of Counts 7-9, Count 13, and Count 14, to be served

concurrently with the sentence imposed on Counts 1-4, for a total prison term of ten

years. Contrary to the agreement placed on the record at the plea hearing, there was

no further discussion regarding allied offenses, the trial court did not merge Count 13 with Counts 1-4 for sentencing purposes, and defense counsel made no

objections.

Vintson now appeals from his sentence, assigning one error for our

review: The trial court committed error in separately sentencing allied offenses of

similar import instead of merging them. In response, the state filed a notice of

conceded error pursuant to Loc.App.R. 16(B), asserting that during the plea hearing,

it agreed that Count 13 should merge with Counts 1-4. Upon review, we find the

error is supported by the record.

R.C. 2941.25 codifies the defendant’s constitutional protection

against Double Jeopardy. See State v. Robertson, 2018-Ohio-1640, 111 N.E.3d 659,

¶ 50 (8th Dist.). The statute provides that where the defendant’s conduct constitutes

two or more allied offenses of similar import, “the indictment may contain counts

for all such offenses, but the defendant may be convicted of only one.” R.C.

2941.25(A). Thus, the trial court has no authority to impose separate sentences on

offenses that are deemed to be allied under R.C. 2941.25. State v. Shearer, 8th Dist.

Cuyahoga No. 107335, 2019-Ohio-1352, ¶ 4. “[T]he court has a mandatory duty to

merge the allied offenses by imposing a single sentence, and the imposition of

separate sentences for those offenses — even if imposed concurrently — is contrary

to law because of the mandate of R.C. 2941.25(A).” State v. Williams, 148 Ohio St.3d

403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 28.

Here, because this appeal concerns a plea agreement, there is little in

the record concerning the conduct associated with each offense. However, the record demonstrates that the state agreed that Count 13 would merge with Counts 1-

4, and it specifically asserted that it would elect to proceed under Counts 1-4. There

is nothing in the record to the contrary. Indeed, the state concedes the error. The

trial court’s sentence on Count 13, an allied offense, was therefore contrary to law.

Accordingly, we sustain Vintson’s sole assignment of error. We

vacate the sentence imposed for Count 13, illegal use of a minor in nudity-oriented

material or performance in violation of R.C. 2907.323(A)(3), consistent with the

state’s concession that the court should not have imposed sentence on an allied

offense of similar import and consistent with the state’s election to sentence on

Counts 1-4. See State v. White, 2018-Ohio-3673, 119 N.E.3d 928, ¶ 17 (8th Dist.),

citing Williams, supra. Although we recognize that this decision does not change

the aggregate sentence Vintson received, “the imposition of concurrent sentences is

not the equivalent of merging allied offenses of similar import.” Williams at ¶ 34.

Judgment reversed in part. The sentence in this case is modified.

It is ordered that appellant recover of appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. Case remanded to the

trial court for execution of sentence. The trial court is hereby directed to vacate its

prior sentencing order journalized April 3, 2019, and issue a journal entry consistent

with this opinion. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MICHELLE J. SHEEHAN, JUDGE

PATRICIA ANN BLACKMON, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR