[Cite as State v. Parcher, 2020-Ohio-293.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-19-1006

        Appellee                                 Trial Court No. CR0201801821

v.

Cardell L. Parcher                               DECISION AND JUDGMENT

        Appellant                                Decided: January 31, 2020

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        Eric Allen Marks, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} Appellant, Cardell Parcher, appeals from the December 14, 2018 judgment

of the Lucas County Court of Common Pleas convicting of and sentencing him for

robbery, a violation of R.C. 2911.02(A)(2) and (B), and theft of drugs, a violation of R.C.
2913.02(A)(4) and (B)(6), following acceptance of his no contest plea. Appellant appeals

and asserts the following assignments of error:

              I. Whether the trial court erred in denying defendant’s request to

       merge the robbery and theft convictions.

              II. Whether the trial court erred at sentencing by not giving defense

       counsel an opportunity to present mitigating information.

       {¶ 2} On May 4, 2018, appellant was indicted in a multi-count indictment

regarding the robbery of a Rite Aid pharmacy on February 12, 2018. On December 13,

2018, appellant entered a no contest plea to the lesser included offense of robbery, R.C.

2911.02(A)(2) and (B), and theft of drugs. The remaining counts and the specifications

attached to Count 1 were dismissed.

       {¶ 3} The prosecution described the evidence it would have presented at trial. On

February 12, 2018, appellant approached a Rite Aid pharmacy and handed the pharmacist

a note and threatened to kill him if he set off any alarms or called the police. The note

instructed the pharmacist to place Percocet in a bag. Appellant tapped his side indicating

he had a firearm. The pharmacist put three bottles of Percocet and three fake bottles in a

bag which contained GPS trackers. After receiving the bottles, appellant ordered another

employee to follow him to the front of the store and showed her the butt of a handgun.

The police recovered the note written on the back of a piece of paper which belonged to

appellant’s family, an ID that belonged to a different family member, and the mask and




2.
gloves used by appellant. DNA taken from the mask and gloves was analyzed and found

to match appellant’s DNA with the frequency of rarer than one in 1 trillion.

       {¶ 4} After the trial court gave appellant the required Crim.R. 11 notifications, the

trial court accepted the no contest plea and found appellant guilty of the amended

charges. The court asked appellant’s counsel if he had a statement to make on behalf of

appellant. Counsel emphasized the agreement provided the sentence would be capped at

eight years of incarceration. He argued Counts 1 and 3 should merge because the same

conduct constituted the theft and the robbery. The court denied the oral motion to merge

the counts. After addressing appellant, the court sentenced appellant to eight years of

imprisonment as to Count 1 and 12 months as to Count 3. Appellant appeals from this

judgment.

       {¶ 5} In his first assignment of error, appellant argues the trial court erred in

denying his request for merger of the robbery and theft convictions relying upon State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 and R.C. 2941.25(A).

       {¶ 6} R.C. 2941.25 codifies the double-jeopardy protection which prohibits the

imposition of multiple punishments for convictions of allied offenses of similar import.

In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 11. The trial court

must apply a three-part test for determining whether the defendant has been convicted of

allied offenses of similar import. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-

7658, 71 N.E.3d 234, ¶ 18, quoting Ruff at 25. The court “must evaluate three separate

factors--the conduct, the animus, and the import--” to determine if the offenses constitute




3.
a single offense or separate offenses. Separate offenses are: (1) “dissimilar in import or

significance—in other words, each offense caused separate, identifiable harm” to a single

victim or there was harm to multiple victims, (2) “committed separately,” or (3)

“committed with separate animus or motivation.” Id. Multiple offenses do not merge if

there is more than one victim harmed or there is more than one type of harm. State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 4, citing Ruff; State v.

Potts, 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 98 (3d Dist.). We review the trial court’s

determination de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983

N.E.2d 1245, ¶ 28.

       {¶ 7} Appellant’s conviction for robbery was based on R.C. 2911.02(A)(2), which

provides that “[n]o person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten

to inflict physical harm on another.” Appellant’s conviction for theft was based on R.C.

2913.02(A)(4), which provides that “[n]o person, with purpose to deprive the owner of

property or services, shall knowingly obtain or exert control over either the property or

services * * * [b]y threat.”

       {¶ 8} The two convictions arose out of a single incident involving theft and threats

made against two victims, the pharmacist and another store employee. Thus, there was

separate, identifiable harm caused by the separate threats made during the separate theft

offenses. Rogers at ¶ 4; Ruff at ¶ 23. Therefore, we find appellant’s first assignment of

error not well-taken.




4.
       {¶ 9} In his second assignment of error, appellant argues that the trial court failed

to allow appellant’s counsel an opportunity to present mitigating information prior to

sentencing.

       {¶ 10} At sentencing, a defendant must be given the opportunity to present

mitigating evidence regarding sentencing. Crim.R. 32(A)(1). If the trial court does not

provide such opportunity, “resentencing is required unless the error was invited or

harmless.” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028,

¶ 200, citing State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 179.

       {¶ 11} We find appellant’s argument unfounded. After the plea agreement was

put into the record and the prosecution presented a statement of the evidence the state

was prepared to present at trial, the trial court asked appellant’s attorney if he would like

to make a statement on behalf of appellant. At that point, the attorney challenged the

convictions must merge for sentencing. After counsel and the prosecution addressed that

issue, the trial court ruled it rejected counsel’s argument, and the trial court then inquired

of appellant whether he would like to make any statement before sentence was imposed.

       {¶ 12} There is no requirement that the court repeatedly ask appellant’s counsel to

make statements on behalf of the offender. Clearly, the trial court gave appellant’s

counsel an opportunity to present mitigating evidence. Appellant’s second assignment of

error is found not well-taken.




5.
       {¶ 13} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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