[Cite as State v. Turner, 2011-Ohio-6714.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24421

vs.                                               :    T.C. CASE NO. 10CR511/1

MATTHEW TURNER                                     :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                       . . . . . . . . .

                                             O P I N I O N

                 Rendered on the 23rd day of December, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422

        Attorneys for Plaintiff-Appellee

Antony A. Abboud, Atty. Reg. No. 0078151, 130 W. Second Street,
Suite 1818, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

        GRADY, P.J.:

        {¶ 1} On August 20, 2009, Benjamin Gulley was shot and killed

when three men forced their way into his apartment.                      Defendant,

Matthew Turner, and two others, Brian Dewitt and David Moore, were

subsequently arrested in connection with the break-in and Gulley’s
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death.

     {¶ 2} Defendant      Turner   admitted     his    involvement      in    the

killing.   Turner told police that he, Dewitt and Moore went to

Gulley’s apartment in order to rob the tenants of money and drugs.

 Turner stated that during the ensuing robbery David Moore shot

Gulley in the head.        Dewitt likewise confessed his involvement

in the crimes.    Moore denied any involvement.

     {¶ 3} The State and Turner entered into a plea agreement.

The State agreed to not charge Turner with murder, and in exchange

Turner   agreed   to    plead   guilty    to   involuntary     manslaughter,

aggravated robbery, felonious assault, and a three-year firearm

specification.         Turner   further   agreed      to   imposition    of    an

aggregate sentence within a range of from sixteen to twenty years.

 Turner entered the promised guilty pleas and the trial court

indicated it would impose an aggregate term within the agreed range.

     {¶ 4} Following Turner’s guilty plea, but before he was

sentenced, the State entered into a plea agreement with David Moore.

 Because the evidence that Moore was the shooter who killed Gulley

was in the State’s estimate weak, the State and Moore entered into

a plea agreement similar to Turner’s.          A major difference was that

Moore would serve an aggregate sentence of between eight to twelve

years instead of the sixteen to twenty year range to which Turner

had agreed.
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     {¶ 5} When he appeared for sentencing, and in view of the lesser

aggregate terms that Moore was promised, Turner asked to be

sentenced within the same aggregate range of from eight to twelve

years Moore was promised, not to a sentence within the aggregate

range of from sixteen to twenty years to which Turner had agreed.

     {¶ 6} The trial court denied Turner’s request.       The court

noted that the terms of Turner’s and Moore’s plea agreements were

different, and that the facts and circumstances of their crimes

were different with respect to Turner and Moore.   The court imposed

an aggregate term of sixteen years.     Turner appeals.

     FIRST ASSIGNMENT OF ERROR

     {¶ 7} “THE COURT ABUSED ITS DISCRETION IN FAILING TO MERGE

THE AGGRAVATED ROBBERY AND AGGRAVATED BURGLARY OFFENSES AS ALLIED

OFFENSES OF SIMILAR IMPORT AND IN ISSUING A CONSECUTIVE SENTENCE

FOR THE AGGRAVATED BURGLARY OFFENSE.”

     {¶ 8} Defendant failed to argue in the proceedings before the

trial court that his aggravated burglary and aggravated robbery

offenses are allied offenses of similar import that must be merged.

 Defendant has therefore waived all error except plain error.

State v. Coffey, Miami App. No. 2006CA6, 2007-Ohio-21,       at ¶14.

 To prevail under the plain error standard, an appellant must

demonstrate both that there was an obvious error in the proceedings

and that but for the error, the outcome of the trial clearly would
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have   been   otherwise.        State    v.   Noling,    98    Ohio   St.3d     44,

2002-Ohio-7044.

       {¶ 9} Turner pled guilty to aggravated burglary in violation

of R.C. 2911.11(A)(2), which provides:

       {¶ 10} “No person, by force, stealth, or deception, shall

trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, when another

person other than an accomplice of the offender is present, with

purpose to commit in the structure or in the separately secured

or separately occupied portion of the structure any criminal

offense, if any of the following apply:

       {¶ 11} “The offender has a deadly weapon or dangerous ordnance

on or about the offender’s person or under the offender’s control.”

       {¶ 12} Turner   also   pled   guilty    to   aggravated        robbery    in

violation of R.C.2911.01(A)(1), which provides:

       {¶ 13} “No person, in attempting or committing a theft offense,

as defined in section 2913.01 of the Revised Code, or in fleeing

immediately after the attempt or offense, shall do any of the

following:

       {¶ 14} “Have 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.”

       {¶ 15} The   Double    Jeopardy    Clause    of   the    United    States
                                                                       5

Constitution, which applies to the States through the Fourteenth

Amendment, prohibits multiple punishments for the same offense.

 State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10.

However, the Double Jeopardy Clause only prohibits a sentencing

court from prescribing greater punishment than the legislature

intended.    Id., at ¶11.    The two-tiered test set forth in R.C.

2941.25,    Ohio’s   multiple   count   statute,   resolves   both   the

constitutional and state statutory inquiries regarding the General

Assembly’s intent to permit cumulative punishments for the same

conduct.    Id., at ¶12.    However, it is not necessary to resort

to that test when the legislature’s intent to impose multiple

punishments is clear from the language of the statute.         Id., at

¶37.

       {¶ 16} Ohio’s multiple counts statue, R.C. 2941.25, provides:

       {¶ 17} “(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.

       {¶ 18} “(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
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defendant may be convicted of all of them.”

     {¶ 19} Defendant relies on State v. Frazier (April 28, 1978),

Lucas App. No. L-77-184.    In Frazier, two men forced their way

into a home and, after assaulting husband and wife inside and

killing the husband, they stole cash and other valuables from the

home.   The Sixth District Court of Appeals held that the offenses

of aggravated robbery and aggravated burglary with which the

defendant was charged as a result of the incident are allied

offenses of similar import that must be merged pursuant to R.C.

2941.25.

     {¶ 20} Had Defendant dug a little further, he would have found

that the Supreme Court reversed the Sixth District in State v.

Frazier (1979), 58 Ohio St.2d 253.    The Supreme Court wrote:

     {¶ 21} “Assuming, arguendo, that the defendant's actions in

this cause constitute ‘allied offenses of similar import’ within

the contemplation of R.C. 2941.25(A), a conclusion certainly not

deducible merely by the proximity of the statutes in issue, R.C.

2941.25(B) nevertheless carves an exception to division (A) of

the same statute for conduct resulting in ‘two or more offenses

of the same or similar kind committed separately or with a separate

animus as to each * * *.’ Contrary to the belief of the Court of

Appeals, we find that the defendant's conduct falls within the

scope of division (B) of R.C. 2941.25.
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     {¶ 22} “The robbery and the burglary were committed separately.

When the defendant forced the victims' door open with intent to

assault Mrs. Dorr and take the victims' property, intentions fairly

attributable to the defendant from the record, the burglary was

completed. Whether an intended felony was committed is irrelevant

to the burglary charge. (See Boyer v. Maxwell (1963), 175 Ohio

St. 318, at page 319, 194 N.E.2d 574, for a similar analysis in

the context of breaking and entering.) But where the intended felony

is actually committed, a new crime arises for which the defendant

may be convicted. The subsequent injuries inflicted upon Mrs. Dorr,

in furtherance of, and in combination with, the taking of the Dorrs'

property, constituted a separate offense, robbery. We do not agree

with the Court of Appeals that it is impossible to separate these

two offenses with reference to the time committed. The forced entry

into the victims' home preceded the beating and was alone sufficient

to accomplish the burglary. The testimony indicates that the entry

itself could not have given rise to a charge of aggravated robbery

since the physical harm was caused not by Mrs. Dorr's fall as the

door was forced open, but by the subsequent beating. The fall gave

the defendant access to the victims and their house. The subsequent

beating facilitated the theft of the victims' property. The fall

and beating were accordingly distinct in time and in the functions

they served. For reason of the foregoing the judgment of the Court
                                                                   8

of Appeals is reversed.”   Id., at p. 255.

     {¶ 23} This court has likewise held that aggravated burglary

and robbery are not allied offenses of similar import that must

be merged because the burglary is complete upon entry into the

victim’s home, while a robbery subsequently committed once inside

constitutes a new, separate offense that was committed separately

in time.    State v. Parker (June 17, 1991), Montgomery App. No.

12010; State v. Williams (Sept. 22, 2000), Montgomery App. No.

18067.

     {¶ 24} In this case, when Defendant, armed with a shotgun,

forced his way into Gulley’s apartment, intending to steal drugs

and money from Gulley, the aggravated burglary offense was

complete.    Frazier; Parker; Williams.      When Defendant, once

inside, thereafter held Gulley at gunpoint while demanding drugs

and money and stealing Gulley’s television, a new, separate crime,

aggravated robbery, arose, which was committed separately from

the completed aggravated burglary offense.       Id.   Because one

offense was complete before the other offense occurred, the two

offenses were committed separately for purposes of R.C. 2941.25(B),

notwithstanding their proximity in time and that one was committed

in order to commit the other.

     {¶ 25} The rationale of the Supreme Court’s holding in Frazier,

and our holdings in Parker and Williams, was not affected by the
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recent   decision     in   State   v.   Johnson,   128    Ohio   St.3d   153,

2010-Ohio-6314.       Johnson was concerned with how the “same conduct”

constitutes allied offenses of similar import for purposes of R.C.

2941.25(A), which requires that allied offenses of similar import

be merged for purposes of sentencing.           State v. Whitfield, 124

Ohio   St.3d   319,    2010-Ohio-2.      R.C.   2941.25(B)       provides   an

exception to the merger requirement when the allied offenses were

committed separately or with a separate animus as to each.           Johnson

emphasized that “if the (allied) 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.”              ¶51.

       {¶ 26} On the authority of Frazier, we find that Defendant

Turner’s offenses of aggravated burglary and aggravated robbery

were committed separately.         Therefore, per R.C. 2941.25(B), their

merger for purposes of sentencing was not required, and plain error

in failing to merge the two offenses is not shown.

       {¶ 27} The trial court imposed a three-year sentence for

Turner’s aggravated burglary offense and ordered that the sentence

be served consecutive to Turner’s completion of the other sentence

the court imposed, instead of concurrently.              Turner argues that

the trial court erred, citing the provision in R.C. 2929.41(A)

that multiple prison terms must be served concurrently, except

as provided by R.C. 2929.14(E).         State v. Foster, 109 Ohio St.3d
                                                                   10

1, 2006-Ohio-856, held that the provisions of R.C. 2929.41(A) and

2929.14(E) are unconstitutional, to the extent they require

judicial fact-finding as a prerequisite to imposing consecutive

sentences.   Id., paragraph four of the syllabus.    As a result of

that holding, the trial court now has the discretion and inherent

authority to determine whether a prison sentence within the

statutory range may be served consecutively or concurrently to

a sentence for another offense imposed on the same offender by

that court or another Ohio court.    State v. Bates, 118 Ohio St.3d

174, 2008-Ohio-1983, at ¶19.

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

     SECOND ASSIGNMENT OF ERROR

     {¶ 29} “THE COURT ABUSED ITS DISCRETION IN SENTENCING MR. TURNER

TO 16 YEARS IN PRISON WHERE MR. MOORE, THE CO-DEFENDANT WHO WAS

THE ACTUAL SHOOTER OF THE VICTIM, WAS SENTENCED TO 12 YEARS IN

PRISON.”

     {¶ 30} Defendant argues that his sixteen year aggregate prison

sentence constitutes an abuse of the trial court’s discretion

because it is too harsh under the facts and circumstances, and

it was unfair to sentence him to sixteen years when the actual

shooter, co-defendant David Moore, only received a sentence of

twelve years.

     {¶ 31} Defendant agreed to a sentence within the sixteen to
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twenty year range as part of his negotiated plea agreement.         Agreed

 sentences are not reviewable on appeal.              R.C. 2953.08(D)(1)

provides:

      {¶ 32} “A sentence imposed upon a defendant is not subject to

review under this section if the sentence is authorized by law,

has been recommended jointly by the defendant and the prosecution

in the case, and is imposed by a sentencing judge.”

      {¶ 33} Defendant agreed to a sentence within the sixteen to

twenty year range, both Defendant and the State jointly recommended

that sentence, and the trial court imposed the jointly recommended

sentence.      Furthermore, the sentence imposed, sixteen years, is

authorized by law because it is less than the total maximum

aggregate sentence that Defendant faced on all counts, which was

over forty years with the firearm specifications.             Under those

circumstances, Defendant’s agreed upon sentence is not reviewable

on   appeal.      State   v.   Carson,   Montgomery    App.   No.   20285,

2004-Ohio-5809 at ¶20, 31.

      {¶ 34} Defendant’s second assignment of error is overruled.

The judgment of the trial court will be affirmed.



FAIN, J., concurs.

DONOVAN, J., concurs in judgment, only
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Copies mailed to:

Andrew T. French, Esq.
Antony A. Abboud, Esq.
Hon. Dennis J. Adkins
