[Cite as State v. Parker, 183 Ohio App.3d 431, 2009-Ohio-3667.]




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




The STATE OF OHIO,

        APPELLEE,                                                 CASE NO. 2-09-11

        v.

PARKER,                                                           OPINION

        APPELLANT.




                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2008 CR 189

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                             Date of Decision:        July 27, 2009




APPEARANCES:

        Amy Otley Beckett, for appellee.

        Sarah M. Schregardus, for appellant.
Case No. 2-09-11


       WILLAMOWSKI, Judge.

       {¶1} The defendant-appellant, Jason Parker, appeals the judgment of the

Auglaize County Common Pleas Court convicting him of attempted theft,

breaking and entering, and vandalism and ordering him to pay restitution as part of

his sentence. On appeal, Parker contends that the trial court erred by convicting

him of both breaking and entering and vandalism because the crimes constitute

allied offenses of similar import, and that the trial court erred by failing to

consider his present and future ability to pay before ordering restitution. For the

reasons set forth herein, the judgment of the trial court is affirmed in part and

reversed in part.

       {¶2} On December 8, 2008, Parker and his brother, Randy Parker, broke a

window and punched the ignition in a van owned by Lear Fire Equipment in an

attempt to steal the vehicle. The van had been parked in a garage on the property

of Lear Fire Equipment. A passerby noticed the crime and chased the brothers

away. Investigating law-enforcement officers observed two sets of shoeprints in

the snow and traced the shoeprints to a residence, where they observed Parker

wearing shoes with the same tread pattern they had been tracking.

       {¶3} On December 18, 2008, the Auglaize County Grand Jury indicted

Parker on one count of attempted theft, a violation of R.C. 2923.02(A) and

2913.02(A)(1), a fifth-degree felony; one count of breaking and entering, a



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violation of R.C. 2911.13(B), a fifth-degree felony; and one count of vandalism, a

violation of R.C. 2909.05(B)(1)(a), a fifth-degree felony. Parker pleaded not

guilty to each of the charges, and the case proceeded to jury trial on February 25-

26, 2009.   The jury found Parker guilty on each offense, and the trial court

immediately proceeded to sentencing.          The court ordered Parker to serve

consecutive prison terms of nine months for the attempted theft conviction, 12

months for the breaking-and-entering conviction, and 12 months for the vandalism

conviction, for an aggregate prison term of 33 months. The court also ordered

Parker to pay restitution to the victim in the amount of $1,280.27. Parker appeals

the judgment of the trial court, raising two assignments of error for our review.

                            First Assignment of Error

              The trial court erred by entering convictions for breaking and
       entering and vandalism against [Appellant] for allied offenses of
       similar import, in violation of R.C. 2941.25(A).

                           Second Assignment of Error

              The trial court committed plain error by ordering [Appellant]
       to pay $1,280.27 in restitution without considering his present and
       future ability to pay, as required by R.C. 2929.19(B)(6).

       {¶4} In the first assignment of error, Parker contends that the trial court

erred by sentencing him for both breaking and entering and vandalism because the

crimes are allied offenses of similar import. Parker argues that “the physical harm

[he] caused was incidental to the breaking and entering.         Vandalism here is



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implicit within the breaking and entering charge.” In response, the state of Ohio

claims that under Parker’s argument, “by virtue of the fact that the breaking and

entering for purpose to commit a felony requires a felony, the breaking and

entering statute would always be a single animus and thus moot to prosecute,” and

the General Assembly did not intend such a result.

      {¶5} Parker did not object when the court imposed sentence for each

offense and has therefore waived all but plain error under Crim.R. 52. State v.

Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, at ¶ 52, citing

State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d 1364, at paragraph one of

the syllabus; State v. Comen (1990), 50 Ohio St.3d 206, 211, 553 N.E.2d 640.

Plain error will be recognized “ ‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’ ” State v.

Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, quoting State v. Long

(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.

Plain error will exist if the trial court deviated from a legal rule, the error

constituted an obvious defect in the proceedings, and the error affected a

substantial right of the accused. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759

N.E.2d 1240.

      {¶6} R.C. 2941.25 codifies the General Assembly’s intent that cumulative

punishments for “two separate offenses stemming from the same conduct violate



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the Double Jeopardy Clause.” State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-

1059, 905 N.E.2d 154, at ¶ 6, citing State v. Rance (1999), 85 Ohio St.3d 632, 635,

710 N.E.2d 699.     The statute is also “ ‘ “a clear indication of the General

Assembly’s intent to permit cumulative sentencing for the commission of certain

offenses,” ’ which ‘precludes an “unconstitutional” label.’ ” Winn at ¶ 6, quoting

Rance at 635-636, quoting State v. Bickerstaff (1984), 10 Ohio St.3d 62, 66, 461

N.E.2d 892, fn. 1. R.C. 2941.25 provides:

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

      {¶7} In evaluating whether crimes are allied offenses of similar import,

the court has implemented a two-tiered test. Winn at ¶ 10, citing State v. Brown,

119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 18, citing State v.

Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶ 14.

      “ ‘In the first step, the elements of the two crimes are compared. If
      the elements of the offenses correspond to such a degree that the
      commission of one crime will result in the commission of the other,
      the crimes are allied offenses of similar import and the court must
      then proceed to the second step. In the second step, the defendant's
      conduct is reviewed to determine whether the defendant can be


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       convicted of both offenses. If the court finds either that the crimes
       were committed separately or that there was a separate animus for
       each crime, the defendant may be convicted of both offenses.’ ”

(Emphasis sic.) Id. at ¶ 10, quoting Brown at ¶ 19, quoting State v.
Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.

       {¶8} In the first step of the test, the elements of the offenses must be

compared in the abstract and not under a “ ‘strict textual comparison.’ ” Winn,

121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, ¶ 11, quoting Cabrales at

¶ 22, citing Rance at 637-638.

              “To interpret Rance as requiring a strict textual comparison
       would mean that only where all the elements of the compared
       offenses coincide exactly will the offenses be considered allied
       offenses of similar import under R.C. 2941.25(A).” (Emphasis sic.)
       Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶
       22.

               We rejected a “strict textual comparison” and stated, “Instead,
       if, in comparing the elements of the offenses in the abstract, the
       offenses are so similar that the commission of one offense will
       necessarily result in commission of the other, then the offenses are
       allied offenses of similar import.” Id. at ¶ 26. Cabrales explained
       that elements need not be identical for offenses to be allied.

Id. at ¶ 11-12.

       {¶9} Parker was convicted of breaking and entering in violation of R.C.

2911.13(B), which states, “No person shall trespass on the land or premises of

another, with purpose to commit a felony.” The definition of “trespass” is found

in R.C. 2911.21 and, as it relates to this case, essentially precludes a person from

entering the land, including buildings and structures, of another without privilege


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to do so.     Parker was also convicted of vandalism in violation of R.C.

2909.05(B)(1)(a), which states:

               No person shall knowingly cause physical harm to property
       that is owned or possessed by another, when either of the following
       applies: The property is used by its owner or possessor in the
       owner's or possessor's profession, business, trade, or occupation, and
       the value of the property or the amount of physical harm involved is
       five hundred dollars or more.

       {¶10} In what is a question of first impression in the state, we hold that

under an abstract analysis of the above-stated statutes, breaking and entering under

R.C. 2911.13(B) and vandalism under R.C. 2909.05(B)(1)(a) are not allied

offenses of similar import.       Although Parker was convicted under different

subsections of the statutes, we note that the Eighth Appellate District has rejected

the argument that breaking and entering committed under R.C. 2911.13(A) and

vandalism committed under R.C. 2909.05(B)(1)(b) are allied offenses of similar

import. State v. Hawkins, 8th Dist. No. 90704, 2008-Ohio-6475, citing State v.

Payton (Dec. 14, 2000), 8th Dist. No. 76967, 2000 WL 1867406.

       {¶11} In regard to the statutes addressed in this case, a person may be

guilty of breaking and entering under R.C. 2911.13(B) by simply trespassing onto

another’s property with the intent to commit any felony thereon. A conviction for

breaking and entering will not necessarily result in a conviction for vandalism

under R.C. 2909.05(B)(1)(a), which requires physical harm to limited types of

property and with a value restriction. Likewise, a conviction for vandalism under


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R.C. 2909.05(B)(1)(a) will not necessarily result in a conviction for breaking and

entering under R.C. 2911.13(B), as the offense of vandalism could be committed

on one’s own land or on land the offender was privileged to enter. Having held

that the offenses do not satisfy the first step of the Rance test, we need not

consider the second step of the test. The first assignment of error is overruled.

       {¶12} In the second assignment of error, Parker contends that the trial court

erred by not considering his present and future ability to pay before ordering

restitution as part of the sentence. The state argues, “In light of [Parker’s] consent

to pay the restitution, the lack of a fine, the obviously able-bodied, young man

with no afflictions present in the courtroom, additional consideration of Ohio

Revised Code § 2929.19(B)(6) was not necessary in order to order the payment of

restitution and costs.”    The state has apparently construed Parker’s lack of

objection to be his “consent” to pay restitution.

       {¶13} R.C. 2929.18(A)(1) permits a trial court to impose financial

sanctions, including restitution, as part of a sentence. However, before the court

may impose financial sanctions, it has a mandatory duty to “consider the

offender’s present and future ability to pay the amount of the sanction or fine.”

R.C. 2929.19(B)(6). The trial court is not required to hold a hearing on ability to

pay, nor are there any specific factors to consider or findings to make. State v.

Clifford, 3d Dist. No. 11-04-06, 2005-Ohio-958, at ¶ 14, reversed on other grounds



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in In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-

Ohio-2109, 847 N.E.2d 1174, citing State v. Martin (2000), 140 Ohio App.3d 326,

338, 747 N.E.2d 318. The court must merely consider the offender’s ability to

pay. Id. “ ‘[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. Haney, 180 Ohio App.3d 554, 2009-Ohio-149, 906 N.E.2d 472, at ¶ 22, quoting

State v. Henderson, 4th Dist. No. 07CA659, 2008-Ohio-2063, at ¶ 5, citing State v.

Bemmes (Apr. 5, 2002), 1st Dist. No. C-010522, 2002 WL 507337.

       {¶14} In Clifford, there was no indication that the trial court had

considered the defendant’s ability to pay. We recognized that a pre-sentence

investigation report (“PSI”) containing information such as “a defendant's age,

health, education and employment history has been found sufficient to comply

with R.C. 2929.19(B)(6) when taken into consideration by the trial court.” Id. at ¶

15, citing Martin at 338-339. However, no PSI had been prepared. Id. In

Clifford, the state argued that the court had received and considered similar

information through its review of a computerized criminal history.          Id.   The

computerized criminal history was not part of the appellate record, nor did the trial

court indicate that it had considered that information. Id. We therefore refused to




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infer that the trial court considered the defendant’s present and future ability to

pay. Id.

       {¶15} In State v. Frock, 2d Dist. No. 2004 CA 76, 2007-Ohio-1026, at ¶ 8-

9, 19, the appellate court reversed the trial court’s order of restitution based on its

failure to consider the defendant’s present and future ability to pay. In Frock, a

PSI included information about the defendant’s age (21 years old), his educational

background, his mental-health diagnoses, his dependency on illegal drugs, his

“extensive” criminal background, and his “sporadic” employment background.

The amount of restitution was established based on amounts reported by the

victims, and the trial court never mentioned Frock’s present or future ability to

pay, let alone inquired on the topic. Id. at ¶ 8.

       {¶16} In this case, the trial court proceeded to sentencing immediately after

the conclusion of trial, without the benefit of a PSI. The court discussed Parker’s

criminal history with him and considered exhibit 6, admitted during trial, to

establish the amount of restitution. During trial, the court heard evidence that

Parker was addicted to drugs and alcohol, that he had been laid off from his

employment prior to the offenses, that Parker had been seeking both a drug-

rehabilitation program and somebody to subsidize the $500 fee for the

rehabilitation, and that Parker had attempted to steal the van from Lear Fire

Equipment because he needed a ride. We find the facts of this case to be similar to



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those in Clifford and refuse to infer or presume that the trial court did consider

Parker’s present and future ability to pay restitution. The second assignment of

error is sustained.

       {¶17} The judgment of the Auglaize County Common Pleas Court is

affirmed in part and reversed in part, and the cause is remanded for additional

proceedings.

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


       ROGERS and SHAW, JJ., concur.




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