[Cite as State v. Redmyer, 2017-Ohio-572.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.       15CA0012-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MATTHEW REDMYER                                      COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   14CR0182

                                 DECISION AND JOURNAL ENTRY

Dated: February 21, 2017



        CARR, Presiding Judge.

        {¶1}     Appellant, Matthew Redmyer, appeals the judgment of the Medina County Court

of Common Pleas. This Court affirms in part, reverses in part, and remands this matter for

further proceedings.

                                                I.

        {¶2}     This matter stems from three separate burglaries of the same house in Medina,

Ohio, in November 2013. On March 26, 2014, the Medina County Grand Jury indicted Redmyer

on three counts of burglary and three counts of grand theft. All of the charges included firearm

specifications. Redmyer pleaded not guilty to the charges at arraignment.

        {¶3}     The State subsequently moved to amend the indictment. The trial court issued a

journal entry amending the indictment by dismissing one count of grand theft and the attendant

firearm specification, dismissing several additional firearm specifications, and amending one

count of grand theft to delete any reference to the property being firearms and specifying that the
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value of the property was greater than $1000 but less than $7500. Redmyer entered pleas of no

contest to the charges in the amended indictment. After finding Redmyer guilty, the trial court

ordered a presentence investigation report and set the matter for sentencing. After the sentencing

hearing, the trial court issued a sentencing entry on January 13, 2015, imposing an aggregate

prison term of seven years and giving Redmyer credit for 145 days served. The trial court

ordered Redmyer to pay $75,000 in restitution to the victims. The trial court also imposed an

“optional” post-release control term of three years.

       {¶4}    On appeal, Redmyer raises three assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE COURT ERRED BY NOT FINDING THAT COUNTS IV AND VI
       MERGED INTO COUNT[] I AND COUNT[] III.

       {¶5}    In his first assignment of error, Redmyer argues that the trial court erred by

refusing to merge certain charges in the indictment. This Court disagrees.

       {¶6}    In support of his assignment of error, Redmyer contends that the burglary charge

contained in count one, which included a firearm specification, and the grand theft of a firearm

charge contained in count four, should have merged as allied offenses for sentencing purposes.

Redmyer argues that the firearm specification attached to the burglary charge transformed the

intent of that crime from “an abstract intent to commit any number of crimes” to a specific intent

to commit theft of a firearm. Redmyer renews this line of reasoning in regard to the burglary

charge in count three and the theft charge in count six, arguing that the burglary should have

been merged into the count of theft.

       {¶7}    This Court applies a de novo standard of review when reviewing a trial court's

decision regarding the merger of convictions for the purposes of sentencing. State v. Williams,
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134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. “R.C. 2941.25 codifies the protections of the Double

Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution, which prohibits multiple punishments for the same offense.”

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 states as follows:

       (A) Where the same conduct by the 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 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.

       {¶8}    The Supreme Court of Ohio has held that two or more offenses may result in

multiple convictions if “(1) the offenses are dissimilar in import or significance – in other words,

each offense caused separate, identifiable harm, (2) the offenses were committed separately, or

(3) the offenses were committed with separate animus or motivation.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, ¶ 25. The Supreme Court stressed that this inquiry “is dependent

upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26.

       {¶9}    As noted above, Redmyer was convicted of three counts of burglary in violation

of R.C. 2911.12(A)(3), which states “[n]o person, by force, stealth, or deception, shall * * *

[t]respass in an occupied structure * * * with purpose to commit in the structure * * * any

criminal offense.” The burglary charge in count one contained a firearm specification, which is

applicable when the indictment “specifies that the offender had a firearm on or about the

offender’s person or under the offender’s control while committing the offense.”               R.C.

2941.141(A). Redmyer was also convicted of theft in violation of R.C. 2913.02(A)(1), which

states “[n]o person, with purpose to deprive the owner of property * * *, shall knowingly obtain
                                                 4


or exert control over the property * * * [w]ithout the consent of the owner or person authorized

to give consent[.]” Count four of the amended indictment stated that the property stolen by

Redmyer was a firearm. R.C. 2913.02(B)(4) specifies that if the property stolen during the

commission of a theft is a firearm, the offense is characterized as grand theft.

       {¶10} It is the defendant’s burden to establish that the trial court failed to merge the

sentences for allied offenses of similar import and that the defendant is entitled to the protection

of R.C. 2941.25. State v. Dembie, 9th Dist. Lorain No. 14CA010527, 2015-Ohio-2888, ¶ 8.

Here, Redmyer’s convictions stem from three separate home invasions that occurred in

November 2013. Redmyer was convicted of burglary with a firearm specification and grand

theft of a firearm in regard to the events that unfolded on November 11, 2013. He was convicted

of burglary in relation to a second invasion of the same house on November 12, 2013. He was

also convicted of burglary and theft with respect to a third entry into the same house later in

November 2013.

       {¶11} Redmyer has not offered any legal authority in support of his argument that the

firearm specification attached to count one transformed the intent of the underlying burglary

charge from an abstract intent to commit any number of crimes to a specific intent to commit

theft of a firearm. This Court finds no legal authority in support of that proposition. With

respect to the burglary and grand theft offenses committed on November 11, 2013, at the point in

time when Redmyer entered the apartment without permission with the intent to commit a

criminal offense, he had committed the crime of burglary. It was not until later when Redmyer

took the victim’s gun that he committed the crime of grand theft of a firearm. See State v. Evett,

9th Dist. Medina No. 14CA0008-M, 2015-Ohio-2722, ¶ 39 (holding that the offenses of burglary

and theft were committed separately where the burglary was completed upon the unlawful entry
                                                5


into an apartment with the intent to commit a criminal offense and the commission of the theft

came subsequently). The same logic holds true for the burglary offense in count three and theft

offense in count six that were committed on the same day later in November.       As Redmyer has

not cited any authority in support of his position that the firearm specification attached to count

one fundamentally altered the nature of the underlying burglary offense, he has failed to carry his

burden on appeal in this regard. App.R. 16(A)(7). If there is an argument that can support his

interpretation, “it is not this [C]ourt’s duty to root it out.” See Cardone v. Cardone, 9th Dist.

Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).

       {¶12} The first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE COURT ABUSED ITS DISCRETION BY SENTENCING MR.
       REDMYER TO CONSECUTIVE SENTENCES.

       {¶13} In his second assignment of error, Redmyer contends that the trial court did not

make the finding necessary under R.C. 2929.14(C)(4) in order to impose consecutive sentences.

This Court agrees.

       {¶14} The trial court imposed a 24-month prison term on the burglary charge in count

one along with a 12-month prison term for the attendant firearm specification. The trial court

also imposed 24-month prison terms for the burglary charges in counts two and three. With

respect to the grand theft of a firearm charge in count four, the trial court imposed a 24-month

prison term. The trial court also imposed a 12-month prison term on the theft charge in count

six. The trial court ordered that the prison terms for count one and the attendant firearm

specification, as well as the prison terms for counts two and three, run consecutively to each

other, and concurrently with the prison terms for counts four and six, for a total prison term of

seven years.
                                                 6


       {¶15} In support of his assignment of error, Redmyer contends that the trial court never

made the additional finding under R.C. 2929.14(C)(4)(a), (b), or (c) in order to impose

consecutive sentences. Redmyer further argues that the findings made at the sentencing hearing

are incongruent with the findings made in the sentencing entry.

       {¶16} Pursuant to R.C. 2929.14(C)(4):

       [i]f multiple prison terms are imposed on an offender for convictions of multiple
       offenses, the court may require the offender 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.

       {¶17} The Supreme Court of Ohio in State v. Bonnell held that, “[i]n 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.” Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, at syllabus.

       {¶18} At the sentencing hearing, the trial court noted that it had considered all of the

relevant factors outlined under R.C. 2929.12 through R.C. 2929.14, and it appeared to make

findings pursuant to R.C. 2929.14(C)(4)(c).          The trial court stated on the record that its
                                                  7


sentencing decision was based on the seriousness of the offense, the recidivism factors, the need

to protect the public from future crime, and the need to punish Redmyer for his actions in this

matter. The trial court also stated that its review of the PSI suggested that Redmyer had a history

of failing to comply with past attempts at supervision and that he had a continuing criminal

history after he committed the offenses that gave rise to this case.

       {¶19} Subsequently, in the June 19, 2015 sentencing entry, the trial court made findings

pursuant to R.C. 2929.14(C)(4)(b):

       The Court hereby finds pursuant to 2929.14(C)(4) that consecutive prison
       sentences are necessary to protect the public from future crime and to punish the
       offender and the consecutive sentences are not disproportionate to the seriousness
       of the offenders conduct and to the danger the offender poses to the public and the
       multiple offenses were committed to one or more courses of conduct and the harm
       causes by the multiple offenses committed is so great or unusual that no single
       prison term for any of the offenses adequately reflects the seriousness of the
       offenders conduct. [Sic]

       {¶20} Given the trial court’s disparity in findings, we are compelled to reverse and

remand this matter. While the trial court made a finding pursuant to R.C. 2929.14(C)(4)(c) at the

sentencing hearing, its findings in support of consecutive sentences in the sentencing entry

invoked R.C. 2929.14(C)(4)(b). Accordingly, this matter must be remanded for the trial court to

clarify its findings in support of imposing consecutive sentences.

       {¶21} The assignment of error is sustained.

                                ASSIGNMENT OF ERROR III

       THE COURT COMMITTED PLAIN ERROR BY FAILING TO ORDER
       RESTITUTION AS JOINT AND SEVERAL WITH CODEFENDANTS.

       {¶22} In his third assignment of error, Redmyer argues that because he had

codefendants, the trial court committed plain error by not ordering that the $75,000 restitution be

divided jointly and severally. Redmyer alleges that one of his codefendants was also ordered to
                                                8


pay $75,000 in restitution and the trial court should have included language assuring that their

restitution payments to the victims would offset. This Court disagrees.

       {¶23} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” To constitute plain

error, the error must be obvious and have a substantial adverse impact on both the integrity of,

and the public’s confidence in, the judicial proceedings. State v. Tichon, 102 Ohio App.3d 758,

767 (9th Dist.1995). A reviewing court must take notice of plain error only with the utmost

caution, and only then to prevent a manifest miscarriage of justice. State v. Bray, 9th Dist.

Lorain No. 03CA008241, 2004-Ohio-1067, ¶12. This Court may not reverse the judgment of the

trial court on the basis of plain error, unless appellant has established that the outcome of trial

clearly would have been different but for the alleged error. State v. Kobelka, 9th Dist. Lorain

No. 01CA007808, 2001 WL 1379440 (Nov. 7, 2001), *2, citing State v. Waddell, 75 Ohio St.3d

163, 166 (1996).

       {¶24} R.C. 2929.18(A)(1) states that “[i]f the court imposes restitution, the court may

base the amount of restitution it orders on an amount recommended by the victim * * * provided

that the amount the court orders as restitution shall not exceed the amount of the economic loss

suffered by the victim as a direct and proximate result of the commission of the offense.” See

also State v. Farnsworth, 9th Dist. Medina No. 15A0038-M, 2016-Ohio-7919, ¶ 15. The victims

in this case testified that their economic loss was $75,000. The amount of restitution was not

disputed below and the trial court ordered that Redmyer pay $75,000 in restitution. “[W]here co-

defendants act in concert in committing the same offense that causes economic harm to the

victim, holding one of the defendant’s responsible for the full amount of restitution is

permissible and consistent with established principles of tort liability, because one who commits
                                                 9


a tort cannot escape liability by showing that another person is also liable.” State v. Dawson, 2d

Dist. Montgomery No. 21768, 2007-Ohio-5172, ¶ 13. Though Redmyer captions his argument

in terms of plain error, he does not cite to Crim.R. 52(B) in his merit brief, nor does he argue

how the result before the trial court would have been different, other than to assert that the

amount of the restitution order should have offset. As this Court has repeatedly stated, “‘an

appellant’s assignment of error provides this Court with a roadmap to guide our review.’” Akron

v. Johnson, 9th Dist. Summit No. 26047, 2012-Ohio-1387, ¶ 3 quoting Taylor v. Hamlin-

Scanlon, 9th Dist. Summit No. 23873, 2008-Ohio-1912, ¶ 12, citing App.R. 16(A). We decline

to construct a plain error argument on behalf of Redmyer.

       {¶25} The final assignment of error is overruled.

                                 POST-RELEASE CONTROL

       {¶26}    The State conceded at oral argument that the trial court erred in imposing post-

release control in this matter. At the sentencing hearing, the trial court notified Redmyer that he

would be subject to a post-release control term of “up to” three years. In its January 13, 2015

sentencing entry, the trial court indicated that the post-release control term was “optional.” R.C.

2901.01(A)(9)(a) specifies that a burglary conviction pursuant to R.C. 2911.12(A)(3) is an

“[o]ffense of violence.” Pursuant to R.C. 2967.28(B)(3), a mandatory three-year term of post-

release control is required for a felony of the third degree that constitutes an offense of violence.

Thus, as Redmyer is subject to a mandatory three-year term of post-release control, the trial court

should exercise its authority to address post-release control on remand.

                                                III.

       {¶27} Redmyer’s first and third assignments of error are overruled.              The second

assignment of error is sustained. The trial court must also address post-release control on
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remand. The judgment of the Medina County Court of Common Pleas is affirmed in part,

reversed in part, and the cause is remanded for further proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.



                                                     DONNA J. CARR
                                                     FOR THE COURT

HENSAL, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

SEAN C. BUCHANAN, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and MATTHEW A. KERN, Assistant
Prosecuting Attorney, for Appellee.
