[Cite as State v. Brown, 2015-Ohio-3402.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                               CASE NO. 13-15-06

       v.

GARRETT N. BROWN,                                        OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 14-CR-0133

                     Judgment Affirmed in Part, Reversed in Part

                            Date of Decision: August 24, 2015



APPEARANCES:

        Scott B. Johnson for Appellant

        Derek W. DeVine for Appellee
Case No. 13-15-06



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Garrett N. Brown (“Brown”) brings this appeal

from the judgment of the Court of Common Pleas of Seneca County. Brown

challenges the imposition of consecutive sentences and the order of restitution

imposed by the trial court. For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

       {¶2} On May 21, 2014, Brown, along with Tyson Ogg (“Ogg”) and Dallas

Salaz (“Salaz”) went to the residence of Janelle Mauricio (“Mauricio”) and Caleb

Barto (“Barto”) with the intention of stealing marijuana and cash from the

residence. Ogg stayed in the car while Brown and Salaz went up to the house and

forced their way into the home. Salaz then beat Barto with a tire tool. Mauricio

recognized Brown, despite the mask he was wearing, and called him by name.

Mauricio was pushed onto the couch and Brown shot her in the leg. Brown and

Salaz then fled the home. Barto and a friend took Mauricio to the hospital for the

gunshot wound, but she later died from her injury.

       {¶3} On June 2, 2014, a complaint was filed in Juvenile Court alleging that

Brown, who was born in June 1996, so was seventeen years old at the time of the

offense, was delinquent for causing the death of another while committing an

aggravated robbery or an aggravated burglary. Doc. 1. Brown was found to be

indigent and counsel was appointed for him. Id.       The State filed a motion to


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transfer the case to the general division of the Seneca County Court of Common

Pleas pursuant to statute. Id. A hearing was held on the motion on June 6, 2014,

and the juvenile court granted the motion to transfer the case to the general

division. Id.

       {¶4} On June 12, 2014, the Seneca County Grand Jury indicted Brown on

three counts: 1) Aggravated Burglary in violation of R.C. 2911.11(A)(1), (B), a

felony of the first degree; 2) Aggravated Burglary in violation of R.C.

2911.01(A)(1), (C), a felony of the first degree; and 3) Aggravated Murder in

violation of R.C. 2903.01(B), (F), a special felony. Doc. 2. Additionally, gun

specifications were filed on each count. Id. On June 27, 2014, Brown filed his

affidavit of indigence showing that he had no income. Doc. 11. Brown was

arraigned on June 26, 2014, and entered pleas of not guilty to all charges in the

indictment. Doc. 12. The trial court found that Brown was indigent and appointed

counsel for him. Id.

       {¶5} On February 9, 2015, a change of plea hearing was held. Doc. 100.

As part of the plea agreement, Brown entered pleas of guilty to Counts One and

Two, and a guilty plea to an amended Count Three of Murder in violation of R.C.

2903.02(B) with a gun specification. Doc. 99. The gun specifications as to

Counts One and Two were dismissed. Doc. 100. The trial court accepted the

guilty pleas and referred the matter for a pre-sentence investigation. Id.   As part

of the plea agreement, Brown acknowledged that restitution could be imposed, but

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no amount was stipulated. Doc. 99. The sentencing hearing was held on February

24, 2015. Doc. 101. The trial court imposed prison terms of nine years for Count

One, three years for Count Two, and an indefinite prison term of fifteen years to

life plus a mandatory term of three years for the gun specification. Id. The

sentences were all ordered to be served consecutively for an aggregate prison term

of thirty years to life. Id. The trial court also ordered that Brown “pay restitution

in the amount of $2,400.00 to Freddie Mauricio and $8,599.00 to the Victims of

Crime Compensation, joint and severally with co-defendants * * *.” Id. at 6.

Brown filed his notice of appeal from this judgment on March 9, 2015. Doc. 106.

On appeal, Brown raises the following assignments of error.

                            First Assignment of Error

       The trial court erred and abused its discretion in sentencing
       [Brown] to consecutive and aggregate prison terms in excess of
       the statutory minimums for the offenses.

                          Second Assignment of Error

       The trial court erred by assessing restitution and costs without
       conducting an ability to pay hearing.

       {¶6} In the first assignment of error Brown alleges that the trial court erred

by sentencing him to more than the minimum sentences and by ordering the

sentences to be served consecutively. Brown argues that the trial court did not

correctly apply the sentencing factors and that the aggravated burglary and




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aggravated robbery convictions should have merged.1                              Appt. Brief.        Brown

concedes that the sentence imposed was within the statutory range of sentences

and was not contrary to law. A sentence that is within the statutory range will not

be reversed absent a showing that the sentence is not supported by the record, that

the statutory procedures were not followed, or that the sentence is contrary to law.

State v. Curry, 3d Dist. Hancock No. 5-14-26, 2015-Ohio-227, ¶ 8.

           {¶7} In this case, the trial court was aware that Brown was the one who

carried the weapon into the house and was the one who shot Mauricio. The trial

court heard the victim impact statements made by friends and family members of

Mauricio. The trial court also heard the statement made by Brown. Additionally,

the trial court reviewed the pre-sentence investigation report and listened to the

arguments of the State and Brown’s counsel.                         The trial court then made the

following statements.

           Court has considered the principals and purposes of felony
           sentencing under [R.C. 2929.11], and has balanced the
           seriousness and recidivism factors under [R.C. 2929.12].

           ***

           By his plea of guilty, Mr. Brown has been convicted of two
           Felonies of the First Degree. And an unclassified felony in
           Count Three. The Court has looked at all sentencing factors,
           including those factors and presumptions under [R.C.
           2929.13(D)].




1
    These arguments were raised at the sentencing hearing so are properly before this court on appeal.

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       After consideration of all sentencing factors under Ohio law,
       after consideration of the various recommendations presented to
       this Court, the Court does find that a prison term not only is
       consistent but required under the principals and purposes of
       felony sentencing under Section 2929.11. And the shortest
       prison term will demean the seriousness of the Defendant’s
       conduct and will not adequately protect the public from future
       crime by this Defendant or others.

       ***

       The Court finds based upon all matters before it, including the
       Pre-Sentence Report, that consecutive sentences are necessary to
       protect the public from future crime or to punish the Defendant.
       And that consecutive sentences are not disproportionate to the
       seriousness of the Defendant’s conduct and to the danger the
       Defendant possess [sic] to the public.

       The Court finds also 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 Defendant’s
       conduct.

       The Court further finds the Defendant’s history of criminal and
       juvenile conduct demonstrates that consecutive sentences are
       necessary to protect the public from future crimes by this
       Defendant. The Court notes that the juvenile record of the
       Defendant is one, two, three, four, five, almost six pages long.

Sentencing Tr. 38-40. These statements were reiterated in the sentencing entry.

Doc. 101. The trial court is not required to use any specific language regarding

the sentencing factors. Curry, supra at ¶6. The record indicates that evidence was

presented to the trial court regarding the sentencing factors and that the trial court

considered the relevant ones, including the youth of the defendant. The sentence

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was within the range specified by law and was not a maximum sentence that could

have been imposed. Thus, the trial court did not err in its consideration of the

statutory factors and in imposing the sentences imposed.

      {¶8} The next issue raised is whether the trial court erred by imposing

consecutive sentences. The imposition of consecutive sentences is governed by

R.C. 2929.14(C)(4).

      If 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.

R.C. 2929.14(C)(4).    Here, the trial court specifically found that consecutive

sentences were necessary to protect the public from future crime and to punish the

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offender, that consecutive sentences were not disproportionate to the seriousness

of the conduct or to the danger Brown posed to the public. Tr. 39-40. The trial

court also found that the offenses were committed as part of one or more courses

of conduct, that the harm was so great as to justify consecutive sentences and that

Brown had an extensive criminal and juvenile record making it necessary to

protect the public. Tr. 40. These findings were supported by the record. Thus,

the trial court did not err in imposing consecutive sentences.

       {¶9} Finally, Brown raises the issue as to whether the convictions should

merge. Brown claims that both Count One for Aggravated Burglary and Count

Two for Aggravated Robbery were both committed with the same goal of

committing the theft, so should merge for sentencing purposes. Ohio’s allied

offense statute provides as follows:

       (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 my contain counts for all such offenses, and the
       defendant may be convicted of all of them.

R.C. 2941.25 “Two or more offenses may result in multiple convictions, however,

if: (1) they are offenses of dissimilar import; (2) they are separately committed; or



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(3) the defendant possesses a separate animus as to each.” State v. Santamaria,

2014-Ohio-4787, ¶21, 22 N.E.3d 288 (9th Dist.).

      {¶10} Here, Brown was convicted of three counts: aggravated burglary,

aggravated robbery, and murder with a gun specification. To convict one of

aggravated burglary as charged in this case, the State had to show that Brown

trespassed in an occupied structure through the use of force and that the offender

inflicted, attempted to inflict or threatened to inflict physical harm on another.

R.C. 2911.11(A)(1). To convict one of aggravated robbery as charged in this case,

the State had to show that Brown had a deadly weapon while committing or

attempting to commit a theft offense and brandished the weapon. Per the third

count of the indictment as amended pursuant to the guilty plea, the State had to

prove that Brown caused the death of another while committing an offense of

violence. The facts stated in the indictment, to which Brown admitted through his

guilty plea, indicates that the aggravated burglary resulted from Brown trespassing

into the home when Mauricio and Barto were present with the intent to commit a

criminal offense and that while doing so, inflicted physical harm on Mauricio and

Barto. Doc. 2. Once inside Barto was beaten with the tire iron by Salaz, Brown’s

codefendant. This supports the conviction for aggravated burglary. While in the

house, Brown had the firearm in his possession and threatened Barto and Mauricio

with it while committing or attempting to commit the theft offense. This supports

the conviction for aggravated robbery. Finally, Brown shot Mauricio with the

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gun, which caused her death. The underlying events indicate that each of these

offenses occurred at different times and with separate animus. Therefore, the

offenses do not merge pursuant to R.C. 2941.25. Having found no error in the

sentencing, the first assignment of error is overruled.

       {¶11} In the second assignment of error, Brown claims that the trial court

erred by ordering restitution without holding a hearing regarding ability to pay.

The trial court has the authority to require the offender to pay restitution to the

victim or survivor of the victim to compensate for economic loss.               R.C.

2929.18(A)(1). “A court that imposes a financial sanction upon an offender may

hold a hearing if necessary to determine whether the offender is able to pay the

sanction or is likely in the future to be able to pay it.” R.C. 2929.18(E). As long

as the record contains information concerning the defendant’s ability to pay the

restitution and supports the trial court’s determination, a hearing is not required.

State v. Robinson, 3d Dist. Hancock No. 5-04-12, 2004-Ohio-5346, ¶17.

However, R.C. 2929.19(B)(5) requires the trial court to consider the offender’s

present and future ability to pay a financial sanction, including restitution before

imposing it. “‘[W]hen a trial court has imposed a financial sanction without even

a cursory inquiry into the offender's present and future means to pay the amount

imposed, the failure to make the requisite inquiry is an abuse of discretion.’” State

v. Parker, 183 Ohio App.3d 431, 2009-Ohio-3667, ¶13, 917 N.E.2d 338 (3d Dist.)



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(quoting State v. Haney, 180 Ohio App.3d 554, 2009-Ohio-149, ¶22, 906 N.E.2d

472 (4th Dist.)).

       {¶12} In this case, the trial court did not discuss Brown’s present or future

ability to pay restitution prior to imposing it. The evidence before the trial court

was that Brown was indigent and had no income. At the time of the offense, he

was seventeen years of age and reached his 18th birthday in jail. Brown received

an aggregate prison term of thirty years to life for these offenses. According to the

PSI, Brown had no employment history, no income, no assets, and owed

$1,500.00 to the juvenile courts. Additionally, the PSI indicated that the highest

level of education achieved by Brown was to complete the 11th grade. There is

nothing in the record to indicate upon what the trial court made the determination

that Brown had the ability or would have the ability in the future to pay the

restitution ordered prior to imposing it. The trial court did not address the issue in

any way prior to ordering restitution. Although the language of the guilty plea

warned Brown that restitution may be ordered as part of his sentence, he did not

agree to pay restitution or to the amount of any restitution.         Without some

evidence in the record to support the trial court’s apparent conclusion that Brown

had or would have the ability to pay restitution, this court must reverse the




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judgment as to restitution for failure to comply with R.C. 2929.19(B)(5). The

second assignment of error is sustained.2

        {¶13} Having found error prejudicial to the appellant, the judgment of the

Court of Common Pleas of Seneca County is affirmed as to the sentence, but is

reversed as to the order of restitution.                 The matter is remanded for further

proceedings in accord with this opinion.

                                                                      Judgment Affirmed in Part,
                                                                               Reversed in Part

ROGERS, P.J., concurs in Judgment Only
PRESTON, J., concurs.
/hlo




2
  While this court is only addressing the errors assigned, this court does note that the record contains no
indication as to how the amounts of restitution were determined. No testimony was presented at the
sentencing hearing and the PSI contained no information regarding the amount of restitution. Additionally,
the guilty plea merely stated that restitution may be imposed, but no amounts were included.

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