[Cite as State v. Sadowski, 2014-Ohio-4211.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100819


                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                  STEVEN SADOWSKI
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-577713-A

               BEFORE:          Blackmon, J., Celebrezze, P.J., and S. Gallagher, J.

              RELEASED AND JOURNALIZED:                     September 25, 2014
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Amy Venesile
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
          {¶1} Appellant Steven Sadowski (“Sadowski”) appeals his sentence and assigns

the following error for our review:

          The trial court acted contrary to law when it conducted an allied offense
          hearing without a proper analysis under State v. Johnson [128 Ohio St.3d
          153, 2010-Ohio-6314, 942 N.E.2d 1061].

          {¶2} Having reviewed the record and pertinent law, we affirm Sadowski’s

sentence. The apposite facts follow.

          {¶3} The Cuyahoga County Grand Jury indicted Sadowski in a three-count

indictment for burglary with notice of prior conviction and a repeat violent offender

specification, theft, and drug possession. Sadowski entered into a plea agreement and

agreed to plead to an amended count of burglary with the notice of prior conviction and

repeat violent offender specification nolled.        He also pled to the theft and drug

possession counts.

          {¶4} At the hearing, the prosecutor gave a factual statement as follows:

          [J]ust briefly for a factual statement, I think there’s no question that the
          defendant has admitted both in his PSI and to the detectives that he was the
          one who broke into this lady’s house, took her purse, took her objects and
          her items and later discarded the purse and some of those items and was
          caught after that.

Tr. 48.

          {¶5} The prosecutor stressed that this occurred around 2:30 or 3:00 a.m. while

the victim was sleeping.

          {¶6} Prior to sentencing Sadowski, the trial court discussed with the attorneys

whether the burglary and theft counts merged. The trial court concluded that they did not

merge because they were committed with “a different mind set.”               The trial court
sentenced Sadowski to two years for the burglary count and six months for the theft

count, to be served concurrently.       In addition, he was sentenced to one year of

community control for the drug possession count.

                                     Allied Offenses

       {¶7} In his sole assigned error, Sadowski argues the trial court failed to engage

in the correct analysis in determining that the burglary and theft counts did not merge.

       {¶8} When a defendant’s conduct results in the commission of two or more allied

offenses of similar import, that conduct can be charged separately, but the defendant can

be convicted and sentenced for only one offense. R.C. 2941.25(A). In determining

whether offenses merge, we consider the defendant’s conduct. State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44. “If the multiple offenses can be

committed by the same conduct, then the court must determine whether the offenses were

committed by the same conduct, i.e., ‘a single act, committed with a single state of

mind.’” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895

N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). If we answer both questions affirmatively,

then the offenses are allied offenses of similar import and will be merged.

Johnson at ¶ 50.

       {¶9} Here, after hearing the arguments of the prosecutor and defense counsel, the

trial court concluded the offenses did not merge because they were committed with a

“different mind set.” This could refer to the second prong of the Johnson test, because as

we set forth above, Johnson refers to determining if the act was “committed with a single

state of mind” when deciding whether the acts were committed by the same conduct.
       {¶10} Sadowski also contends that the trial court committed plain error in

imposing separate sentences on the burglary and theft convictions when both offenses

were committed by the same conduct. We disagree. As this court recently explained in

holding that burglary and theft were not allied offenses of similar import, “‘once

defendant entered the apartment with an intent to commit a felony inside, the crime of

burglary was complete.’”       State v. Richardson, 8th Dist. Cuyahoga No. 100115,

2014-Ohio-2055, quoting State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-Ohio-3051,

¶ 80; see also State v. Smith, 8th Dist. Cuyahoga No. 100641, 2014-Ohio-3420 (burglary

and theft not allied offenses because the burglary was completed prior to the theft).

Thus, we have concluded that theft and burglary are separate acts committed with

different conduct.

       {¶11} Thus, once Sadowski entered the victim’s home without her permission, the

offense of burglary was complete. Then, when Sadowski proceeded to take the victim’s

purse, he committed the separate offense of theft. Based on this record, we cannot say

that the trial court erred by imposing separate sentences for the two offenses.

Accordingly, Sadowski’s sole assigned error is overruled.

       {¶12} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to 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.



PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN
JUDGMENT ONLY
