[Cite as State v. Adkins, 2014-Ohio-1237.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                   Nos. 100107 and 100108



                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     EDWARD ADKINS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeals from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-13-572134-A and CR-13-575187-A

        BEFORE: Stewart, J., Boyle, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                     March 27, 2014
ATTORNEY FOR APPELLANT

John A. Powers
The Powers Law Firm, L.L.C.
700 W. St. Clair Avenue, Suite 214
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Milko Cecez
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} In CR-13-575187-A, defendant-appellant Edward Adkins pleaded guilty to

one count of theft and no contest to one count of breaking and entering.1 The court

found him guilty on both charges. Taking note that Adkins had “122 arrest cycles”

dating back to 1980 and had been sent to prison 14 different times, the court ordered him,

over objection, to serve the sentences for those counts consecutively. Adkins complains

on appeal that the court committed plain error by failing to consider whether any of the

counts were allied offenses of similar import that should have merged.

       {¶2} Adkins cites to our holding in State v. Rogers, 2013-Ohio-3235, 994 N.E.2d

499 (8th Dist.), conflict certified, 136 Ohio St.3d 1508, 2013-Ohio-4657, 995 N.E.2d

1212, as authority for the proposition that a trial judge commits plain error by failing to

inquire whether multiple offenses are allied before sentencing a defendant who pleads

guilty to multiple counts, when there is a facial question of whether those counts might be

allied offenses of similar import under R.C. 2941.25.

       {¶3} Rogers, however, does not apply to this appeal. Crucial to the holding in

Rogers was that even in a case where the defendant pleaded guilty and did not raise the

issue of allied offenses, the trial judge nonetheless committed plain error by failing to

ensure that any sentence imposed did not include separate terms for offenses that were


        At the same time, Adkins entered guilty pleas in CR-13-572134-A to two counts of theft.
       1


Those counts are not at issue in this appeal.
allied and potentially subject to merger. Id. at ¶ 19. (“The record before us reveals that

no discussion took place in the trial court about merger of the counts in either of the

underlying cases.”) In this case, the allied offenses issue was raised in detail by the state

at sentencing. See tr. 42. (“I do want to also point out for the Court that these crimes

are not allied offenses, breaking and entering, as well as the thefts.”) Adkins remained

silent and did not counter the state’s argument on allied offenses, so the court’s refusal to

merge the counts for sentencing must be viewed as an implicit rejection of any contention

that sentences should merge. So unlike Rogers where the issue of allied offenses was not

raised at all, the issue of offenses merging was raised below so this court reviews for

simple error, not plain error.

       {¶4} This conclusion leads to the second reason why Rogers is inapplicable:

Rogers stressed that there must be a “facial question” that offenses are allied and should

merge for sentencing.        See State v. Rembert, 8th Dist. Cuyahoga No. 99707,

2014-Ohio-300, ¶ 47. The two offenses at issue — theft and breaking and entering —

have long been considered to be nonallied offenses. Under the test set forth in State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, we will conclude that

multiple offenses are allied and should merge for sentencing “if the defendant’s conduct

is such that a single act could lead to the commission of separately defined offenses, but

those separate offenses were committed with a state of mind to commit only one act.”

State v. Thompson, 8th Dist. Cuyahoga No. 99628, 2014-Ohio-202, ¶ 18.
       {¶5} The court found Adkins guilty of breaking and entering in violation of R.C.

2911.13(B). That section states: “[n]o person shall trespass on the land or premises of

another, with purpose to commit a felony.” In cases addressing breaking and entering

under R.C. 2911.13(A) (trespass into an occupied structure with the intent to commit a

felony), we have held that the offense is complete upon entry into an unoccupied

structure, so any subsequent theft offense is the result of conduct different from that

involved in the breaking and entering. See State v. Ballard, 8th Dist. Cuyahoga No.

98355, 2013-Ohio-373, ¶ 13-14. See also State v. Sludder, 3d Dist. Allen No. 1-11-69,

2012-Ohio-4014, ¶ 14. That rationale applies with equal force to breaking and entering

under R.C. 2911.13(B) as charged in this case — the crime is complete upon trespass

onto the land or premises of another and the theft offense was the result of conduct

different from breaking and entering.       It follows that the offenses of breaking and

entering and theft did not present a facial issue of merger.

       {¶6} The preceding paragraph necessarily disposes of Adkins’s final argument —

that the court erred by refusing to merge the breaking and entering offense with the theft

offense. Not only are the two offenses nonallied as a matter of law, but Adkins offers no

facts from which we could conclude otherwise.          Having raised the issue of merger

below, Adkins cannot prevail on appeal unless he provides an adequate record

exemplifying his claimed error. App.R. 16(A)(7); In re Edwards, 117 Ohio App.3d 108,

111, 690 N.E.2d 22 (8th Dist.1996). The record on appeal contains no facts to show why

this case is any different from those cases in which we found that the offenses of breaking
and entering and theft do not merge. With the absence of any facts, we have no choice

but to conclude that the court did not err by refusing to merge the sentences. The

assignments of error are overruled.

       {¶7} Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.       Case remanded

to the trial court for execution of sentence.

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

the Rules of Appellate Procedure.




MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS
IN JUDGMENT ONLY
