[Cite as State v. Knight, 2016-Ohio-7991.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2016-02-028

                                                   :           OPINION
    - vs -                                                      12/5/2016
                                                   :

JESSE C. KNIGHT,                                   :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-06-0870



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Jesse Knight, appeals his convictions in the Butler County

Court of Common Pleas after pleading guilty to aggravated robbery with a firearm

specification, kidnapping, and felonious assault.

        {¶ 2} Knight, along with an accomplice, robbed a Papa John's Pizza store while

employees were present.             Knight and his accomplice, who were armed with a gun,

demanded that employees open the cash registers. While Knight took money from the cash
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registers, Knight's accomplice duct-taped the employees and forced them into the freezer.

       {¶ 3} Knight and his accomplice later removed the manager from the freezer, made

the manager open the vault, and then stole money from inside the vault. After robbing the

vault, Knight and his accomplice forced the manager back toward the freezer, and Knight

used a gun to hit the manager on the side of the head. Knight and his accomplice also stole

money and cell phones from the employees.

       {¶ 4} Police arrived while Knight and his accomplice were still in the Papa John's,

and the men fled when they became aware of police presence. A police dog located Knight

in a water pipe near the scene of the crime where he was immediately arrested. Police also

located the stolen cash and cell phones in the same pipe in which Knight was found.

       {¶ 5} Knight was charged with several counts of aggravated robbery, kidnapping, and

felonious assault, as well as several firearm specifications. Knight pled guilty to one count of

aggravated robbery with a firearm specification, one count of kidnapping, and one count of

felonious assault, and the remaining counts and specifications were dismissed. During the

trial court's plea colloquy, Knight waived a recitation of the facts from the state. The trial

court discussed with Knight the charges, possible sentences, and other required aspects of a

plea colloquy.

       {¶ 6} While Knight confirmed that he understood all the information presented,

defense counsel indicated that Knight would be making an allied offense argument before

sentencing. However, the trial court clearly expressed that it was not going to make an allied

offense determination at the plea hearing, and that Knight was facing a possible 31-year

sentence if the crimes were not allied offenses and all sentences were to run consecutive to

each other. Knight indicated that he understood the sentence he was facing should the trial

court not merge the convictions. The trial court ordered a presentence investigation, and set

sentencing for a future date.
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       {¶ 7} At sentencing, the trial court considered the presentence investigation report

("PSI"), and merged the kidnapping conviction into the aggravated robbery conviction as

allied offenses. The trial court then sentenced Knight to ten years on the aggravated robbery

charge, one year on the specification, and four years on the felonious assault. The trial court

ran the sentences consecutive for an aggregate sentence of 15 years in prison. Knight now

appeals the trial court's decision not to merge the felonious assault conviction into the

aggravated robbery conviction, raising the following assignment of error.

       {¶ 8} THE TRIAL COURT ERRED IN IMPOSING MULTIPLE PUNISHMENTS FOR

THE SAME OFFENSE.

       {¶ 9} Knight argues in his assignment of error that the trial court erred by not merging

his convictions for felonious assault and aggravated robbery.

       {¶ 10} R.C. 2941.25 prohibits the imposition of multiple punishments for the same

criminal conduct, and provides that:

              (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.

       {¶ 11} In determining whether offenses are allied, courts are instructed to consider

three separate factors: the conduct, the animus, and the import. State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. Convictions do not merge and a

defendant may be sentenced for multiple offenses if any of the following are true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses

were committed separately, or (3) the conduct shows that the offenses were committed with
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separate animus. Id. at ¶ 25. Two or more offenses of dissimilar import exist "when the

defendant's conduct constitutes offenses involving separate victims or if the harm that results

from each offense is separate and identifiable." Id. at paragraph two of the syllabus.

       {¶ 12} "At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. As a result, this

analysis "may result in varying results for the same set of offenses in different cases." State

v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 52. When determining whether multiple

offenses merge pursuant to R.C. 2941.25, a court must review the entire record. State v.

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 24. The burden is on the defendant to

establish his entitlement to the protection provided by R.C. 2941.25 against multiple

punishments for a single criminal act. State v. Lewis, 12th Dist. Clinton No. CA2008-10-045,

2012-Ohio-885, ¶ 14.

       {¶ 13} While the trial court must consider whether convictions that result from a

defendant's plea must merge as allied offenses, we have "recognized the 'challenges

inherent in allowing a criminal defendant to raise, on appeal, an allied offense attack to a

negotiated plea because the reviewing court has a limited record of facts, if any, upon which

to make an allied offenses analysis.'" State v. Tannreuther, 12th Dist. Butler No. CA2013-04-

062, 2014-Ohio-74, ¶ 16, quoting State v. Vitt, 9th Dist. Medina App. No. 11CA0071-M, 2012-

Ohio-4438, ¶ 10. Even when salient facts are lacking, a trial court must make an allied

offenses determination, and will look to the information contained in the record to make its

determination, including the indictment, bill of particulars, and the presentence investigation

report ("PSI"). See State v. Gebhardt, 8th Dist. Cuyahoga Nos. 97865, 97866, 2013-Ohio-

166 (affirming trial court's decision not to merge several counts of gross sexual imposition

where the facts contained in the PSI indicated that the offenses were each committed with a

separate animus); and State v. Cisco, 5th Dist. Delaware App. No. 13 CAA 04 0026, 2013-
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Ohio-5412 (analyzing why a trial court is permitted to consider facts in the PSI when

determining whether convictions should be merged as allied offenses).

       {¶ 14} We note that the record in the case at bar contains limited facts to be used

when conducting the necessary analysis given that Knight chose to waive a recitation of the

facts by the state. Even so, the record contains sufficient facts, taken from the discussions at

the plea hearing and the PSI, for us to perform a meaningful review. The record does not

indicate that Knight objected to the information contained in the PSI, and again, he chose to

waive the reading of facts during his plea.

       {¶ 15} Within Knight's appellate brief, he quotes from portions of a transcript from his

sentencing hearing. However, the record does not contain a transcript of that particular

sentencing hearing. It appears that the trial court held two sentencing hearings, a second of

which was conducted so that the trial court could make findings necessary for consecutive

sentences. The record contains a transcript of this second hearing. However, a transcript of

the main sentencing hearing, which occurred on January 21, 2016, is absent from the record.

Regardless, Knight asserts in his brief that the trial court stated its intention during the

January 21st hearing to not rely on any facts stated during that sentencing hearing. While

Knight now asserts that the state invited an error by not giving more facts during the plea

hearing and trying to supplement the record at the sentencing hearing, we remind Knight that

he chose to waive the reading of facts during his plea hearing, and that he had the burden to

establish that his convictions were allied offenses.

       {¶ 16} Knight now argues that his convictions for felonious assault and aggravated

robbery should merge because he perpetrated the crimes upon the same victim and with a

single animus. The record demonstrates that the three charges to which Knight pled guilty

were specific to the manager, whom Knight robbed, locked in a freezer, and later hit on the

side of the head with a gun. Despite the charges being specific to one victim, however, we
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find that the trial court correctly found that the two convictions should not merge.

       {¶ 17} Knight was convicted of aggravated robbery in violation of R.C. 2911.01(A)(1),

which provides, "No person, in attempting or committing a theft offense, * * * shall do any of

the following: 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." Knight was also convicted of felonious assault in violation of R.C.

2903.11(A)(2), which provides, "No person shall knowingly * * * [c]ause or attempt to cause

physical harm to another or to another's unborn by means of a deadly weapon or dangerous

ordnance."

       {¶ 18} The facts in the record, from multiple sources, indicate that Knight committed

aggravated robbery while using a gun to commit a theft offense. More specifically, Knight

and his accomplice removed the manager from the freezer at gun point, took him to the

store's safe, and then forced the manager to open the safe. Knight and his accomplice then

stole money from the safe. At that point, the aggravated robbery was complete and all

elements of the offense were present. Knight then separately committed felonious assault

when he caused the manager physical harm by hitting him on the side of the head with a

gun, or as explained in the PSI, when he "pistol whipped" the manager in the head. Although

limited, the facts show that after the aggravated robbery had already occurred, Knight and his

accomplice took the manager back to the freezer. At that time, Knight used the gun to hit the

manager in the head, thus causing him physical harm separate and apart from the already-

completed aggravated robbery.

       {¶ 19} Thus, and according to the Ruff standard, the conduct and harm of robbing the

manager at gunpoint was separate from the conduct and harm of hitting the manager in the

head with a gun. The aggravated robbery occurred when Knight used a gun while stealing

money from the vault. The felonious assault occurred later when Knight hit the manager on
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the head with a gun, which resulted in the manger being physically injured. Knight had the

burden to establish that he committed aggravated robbery and felonious assault with the

same conduct and animus, but failed to offer sufficient facts to demonstrate as much.

Instead, the limited facts in the record indicate that the crimes were separate, and not allied

offenses of similar import.

       {¶ 20} Given the facts and circumstances of the case, we find that Knight separately

committed aggravated robbery and felonious assault and they are not crimes of similar

import. As such, the trial court was correct in not merging the convictions for sentencing

purposes, and Knight's single assignment of error is overruled.

       {¶ 21} Judgment affirmed.


       M. POWELL, P.J., and HENDRICKSON, J., concur.




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