[Cite as State v. DeWitt, 2012-Ohio-635.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                          :         C.A. CASE NO. 24437

v.                                                  :         T.C. NO.   10CR511/2

BRIAN C. DEWITT                                     :          (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                         Rendered on the        17th       day of   February   , 2012.

                                            ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney,
301 W. Third Street, 5th Floor, Dayton, Ohio 45422
     Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd.,
Springboro, Ohio 45066
      Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Brian Clark Dewitt appeals his conviction and

sentence for one count of involuntary manslaughter, in violation of R.C. 2903.04(A),

a felony of the first degree; one count of aggravated burglary (deadly weapon), in

violation of R.C. 2911.11(A)(2), a felony of the first degree; one count of aggravated
                                                                                   2

robbery (deadly weapon), in violation of R.C. 2911.01(A)(1); and one count of

felonious assault (deadly weapon), in violation of 2903.11(A)(2), a felony of the

second degree. All of the count were accompanied by a mandatory three-year

firearm specification.

        {¶ 2} Dewitt filed a timely notice of appeal with this Court on January 18,

2011.

                                          I

        {¶ 3} On August 20, 2009, Benjamin Gulley was shot and killed when three

men forced their way into his apartment. Dewitt, and two others, Matthew Turner

and David Moore, were subsequently arrested in connection with the break-in and

Gulley’s death.

        {¶ 4} Dewitt subsequently admitted his involvement in the killing. Dewitt

told police that he, Turner and Moore went to Gulley’s apartment in order to rob him

of money and drugs. Dewitt stated that during the ensuing robbery David Moore

shot Gulley in the head. Turner likewise confessed his involvement in the crimes.

Moore denied any involvement.

        {¶ 5} The State and Dewitt entered into a plea agreement.         The State

agreed to not charge Dewitt with murder, and in exchange, Dewitt agreed to plead

guilty to involuntary manslaughter, aggravated robbery, felonious assault, and a

three-year firearm specification.    Dewitt further agreed to imposition of an

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

the promised guilty pleas, and the trial court indicated it would impose an aggregate

term within the agreed range.
                                                                                   3

      {¶ 6} Following Dewitt’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 Dewitt’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 Dewitt had

agreed.

      {¶ 7} When he appeared for sentencing, and in view of the lesser

aggregate terms that Moore was promised, Dewitt asked to be sentenced within the

same aggregate range of from eight to twelve years Moore was promised, not to a

sentence within the agreed range of from sixteen to twenty years.

      {¶ 8} The trial court denied Dewitt’s request.        The court noted that the

terms of Dewitt’s and Moore’s plea agreements were different, and that the facts

and circumstances of their crimes were different with respect to Dewitt and Moore.

The court imposed an aggregate term of sixteen years.

      {¶ 9} It is from this judgment that Dewitt now appeals.

                                          II

      {¶ 10} Dewitt’s first assignment of error is as follows:

      {¶ 11} “THE TRIAL COURT ERRED IN IMPOSING A SENTENCE UPON

THE    DEFENDANT-APPELLANT            THAT     WAS     NOT       CONSISTENT   WITH

SENTENCES FOR SIMILAR CRIMES COMMITTED BY SIMILAR OFFENDERS.”

      {¶ 12} In his first assignment, Dewitt contends that the trial court erred when

it sentenced him to sixteen years when the actual shooter, co-defendant David
                                                                                  4

Moore, only received a sentence of twelve years.

      {¶ 13} Dewitt agreed to a sentence within the sixteen to twenty year range as

part of his negotiated plea agreement. As we recently held in State v. Turner, 2d

Dist. Montgomery No. 24421, 2011-Ohio-6714, agreed                sentences are not

reviewable on appeal. R.C. 2953.08(D)(1) provides:

      {¶ 14} “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.”

      {¶ 15} Dewitt agreed to a sentence within the sixteen to twenty year range,

both he and the State jointly recommended that sentence, and the trial court

imposed the jointly recommended sentence. Additionally, the sentence imposed,

sixteen years, is authorized by law because it is less than the total maximum

aggregate sentence that Dewitt faced on all counts, which was over forty years with

the firearm specifications.   Accordingly, Dewitt’s agreed upon sentence is not

reviewable on appeal. State v. Carson, 2d Dist. Montgomery No. 20285,

2004-Ohio-5809 at ¶20, 31; Turner, 2011-Ohio-6714.

      {¶ 16} Dewitt’s first assignment of error is overruled.

                                          III

      {¶ 17} Dewitt’s second assignment of error is as follows:

      {¶ 18} “THE    TRIAL    COURT      ERRED      BY    DISAPPROVING      SHOCK

INCARCERATION, INTENSIVE PROGRAM PRISON, AND TRANSITIONAL

CONTROL AT SENTENCING.”
                                                                                   5

       {¶ 19} In his second assignment, Dewitt argues that the trial court erred

when it disapproved of his        placement in a shock incarceration program and

intensive prison program in the judgment entry without first making specific findings

required by R.C. 2929.14.

       {¶ 20} R.C. 2929.19(D) provides that:

       {¶ 21} “The sentencing court, pursuant to division (K) of section 2929.14 of

the Revised Code, may recommend placement of the offender in a program of

shock incarceration under section 5120.031 of the Revised Code or an intensive

program prison under section 5120.032 of the Revised Code, disapprove

placement of the offender in a program or prison of that nature, or make no

recommendation.         If the court recommends or disapproves placement, it shall

make a finding that gives its reasons for its recommendation or disapproval.”

       {¶ 22} In State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283 (2d Dist.),

we held that a trial court errs when it disapproves of shock incarceration or

intensive program prison without making certain findings required by R.C. 2929.14.

We also held that it is premature for a trial court, at sentencing, to disapprove

transitional control.

       {¶ 23} However, with respect to the trial court’s error in having disapproved

of shock incarceration and intensive program prison in this case, this error is

necessarily harmless, because Dewitt, as a first-degree felon, is not eligible for

either program. R.C. 5120.031(A)(4) and R.C. 5120.032(B)(2)(a). See also State

v. Porcher, 2d Dist. Montgomery No. 24058, 2011-Ohio-5976; State v. Griffie, 2d

Dist. Montgomery No. 24102, 2011-Ohio-6704.
                                                                                     6

       {¶ 24} Lastly, we note that the trial court erred in prematurely disapproving

Dewitt for transitional control in the amended judgment entry. This error, however,

can be cured by remanding this cause to the trial court for the limited purpose of

amending the judgment entry to delete the disapproval of Dewitt for transitional

control. See State v. Howard, 2010-Ohio-5283; State v. Porcher, 2011-Ohio-5976;

State v. Griffie, 2011-Ohio-6704.

       {¶ 25} Dewitt’s second assignment of error is sustained to the limited extent

indicated; otherwise, it is overruled as harmless error.

                                          IV

       {¶ 26} Dewitt’s third assignment of error is as follows:

       {¶ 27} “THE TRIAL COURT ERRED IN FAILING TO MERGE EACH COUNT

OF DEFENDANT’S CONVICTION AS EACH COUNT CONSTITUTES ALLIED

OFFENSES OF SIMILAR IMPORT.”

       {¶ 28} In his third assignment, Dewitt argues that the trial court erred when it

failed to merge all of the counts for which he was convicted. Dewitt 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. Dewitt has therefore waived all error except plain error. State v. Coffey,

2d Dist. Miami 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

have been otherwise. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044.

       {¶ 29} The Double Jeopardy Clause of the United States Constitution, which
                                                                                    7

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.

       {¶ 30} R.C. 2941.25, Ohio’s allied offense statute, protects against multiple

punishments for the same criminal conduct, which could violate the Double

Jeopardy Clauses of the United States and Ohio constitutions.          It 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 this 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
                                                                                 8

      convicted for all of them.

      {¶ 31} Dewitt pled guilty to aggravated robbery, in violation of R.C.

2911.01(A)(1), which states in pertinent part:

             No person, in attempting or committing a theft offense, as

      defined in R.C. § 2913.01 of the Revised Code, or in fleeing

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

             (1) 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.

      {¶ 32} Dewitt also pled guilty to aggravated burglary in violation of R.C.

2911.11(A)(2), which provides:

             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:

             The offender has a deadly weapon or dangerous ordnance on

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

      {¶ 33} In State v. Turner, 2d Dist. Montgomery No. 24421, 2011-Ohio-6714,

we recently found that the crimes of aggravated burglary and aggravated robbery

were 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
                                                                                   9

committed once inside constitutes a new, separate offense that was committed

separately in time. “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.” Id. Accordingly, per R.C. 2941.25(B), merger of the

aggravated burglary and the aggravated robbery was not required, and plain error

in failing to merge the two offenses is not shown.

      {¶ 34} Upon review, we conclude that the same rationale applies, and the

aggravated burglary merges with neither the count for felonious assault nor the

count for involuntary manslaughter.      It is also clear from the record that the

aggravated robbery was committed separately from the felonious assault as well as

the involuntary manslaughter. Thus, merger of the aggravated robbery with those

offenses is not required.

      {¶ 35} Lastly, Dewitt was found guilty of felonious assault and involuntary

manslaughter. Involuntary manslaughter is proscribed by R.C. 2903.04(A), which

provides that “[n]o person shall cause the death of another *** as a proximate result

of the offender’s committing or attempting to commit a felony.” Dewitt was found

guilty of felonious assault under R.C. 2903.11(A)(2), which provides that “[n]o

person shall knowingly *** cause or attempt to cause physical harm to another ***

by means of a deadly weapon or dangerous ordnance.”            Count I of the bill of

information to which Dewitt pled provides in pertinent part:

             “[T]he Defendant, [Dewitt] *** on or about August 20, 2009, did

      in Montgomery County, Ohio violate Section 2903.04(A) [Involuntary
                                                                                     10

       Manslaughter] of the Revised Code in that he did as a proximate

       result of committing or attempting to commit a felony, to wit:

       AGGRAVATED BURGLARY, did cause the death of another, to wit:

       BENJAMIN GULLEY ***.

       {¶ 36} The bill of information clearly states that the predicate felony for the

involuntary manslaughter count was aggravated burglary, not felonious assault.

Moreover, evidence adduced by the State established that the basis for the

felonious assault count occurred when Dewitt’s accomplice, Turner, hit Gulley in the

head with a shotgun in an effort to force his compliance with their requests. The

actual shooting of Gulley occurred thereafter during the home invasion. Thus, the

felonious assault and the involuntary manslaughter constituted distinct conduct

committed separately, and the trial court did not err when it failed to merge those

counts.

       {¶ 37} Dewitt’s third assignment of error is overruled.

                                           V

       {¶ 38} Dewitt’s fourth and final assignment of error is as follows:

       {¶ 39} “THE TRIAL COURT ERRED IN FAILING TO GRANT THE

DEFENDANT ALL THE JAIL-TIME CREDIT HE WAS ENTITLED TO.”

       {¶ 40} In his final assignment, Dewitt asserts that the trial court erred when it

failed to give him credit for all of the jail-time he had served prior to his conviction

and sentence in Case No. 2010 CR 511/2. Specifically, Dewitt argues that he is

entitled to three hundred and twenty-two days of jail-time credit, and not just the

one hundred and thirty-two days awarded by the trial court.
                                                                                      11

       {¶ 41} Initially, we note that Dewitt filed his notice of appeal in the instant

case on January 18, 2011, which specified he was appealing the final judgment

rendered on December 21, 2010.           In his motion for leave to file a second

supplemental brief filed on July 5, 2011, Dewitt’s appellate counsel stated that he

“just learned that there was an issue of jail-time credit that the Defendant pursued

with the trial court pro se that should be addressed in the Defendant’s direct appeal

in this matter.” The record before us does not contain any pro se motions filed with

the trial court from Dewitt regarding the issue of jail-time credit. In fact, the order

appealed from does not contain any jail-time credit figures. Neither party disputes,

however, that in subsequent orders the trial court awarded Dewitt one hundred and

thirty-two days of jail-time credit.

       {¶ 42} Dewitt’s challenge to the trial court’s award of jail-time credit

necessarily fails because the record before us on appeal fails to support his

argument. The record in the instant appeal consists of only the docket entries,

pleadings, and transcripts from Case No. 2010 CR 511/2. The dates upon which

Dewitt relies that allegedly establish that he is entitled to additional jail-time credit

are from Case No. 2009 CR 2789, which is not part of this record. Simply put,

Dewitt’s claim that the trial court miscalculated his jail-time credit is not apparent

from the record that he provided.

       {¶ 43} An appellant bears the burden of establishing error by reference to

matters in the record. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400

N.E.2d 384 (1980). When the record before us on appeal fails to demonstrate

appellant’s assigned errors, we must presume the regularity and validity of the
                                                                                  12

lower court’s proceedings and affirm. Id. The record before us on appeal fails to

support Dewitt’s argument that he is entitled to the jail-time credit he claims.

Accordingly, we must presume the regularity and affirm.

       {¶ 44} Dewitt’s final assignment of error is overruled.

                                            VI

       {¶ 45} Dewitt’s second assignment of error having been sustained in part

and overruled in part, the judgment of the trial court is reversed, in part, and this

matter is remanded to the trial court for proceedings consistent with this opinion.

In all other respects, the judgment of the trial court is affirmed.

                                      ..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Kirsten A. Brandt
Marshall G. Lachman
Hon. Dennis Adkins
