[Cite as State v. Mullins, 2013-Ohio-1826.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 12 CA 17
CLARENCE E. MULLINS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 11 CR 489


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        May 1, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GREGG MARX                                     THOMAS R. ELWING
PROSECUTING ATTORNEY                           60 West Columbus Street
JOCELYN S. KELLY                               Pickerington, Ohio 43147
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 12 CA 17                                                     2

Wise, J.

         {¶1}   Appellant Clarence E. Mullins appeals his conviction on one count of

breaking and entering, subsequent to his plea of no contest, in the Court of Common

Pleas, Fairfield County. The relevant facts leading to this appeal are as follows.

         {¶2}   On July 25, 2011, appellant twice went to a fenced-in area of a Sam’s

Club store in Fairfield County with an accomplice and removed used automotive

batteries belonging to the store. The first incident took place before noon on that date;

the second incident took place at about 11:00 PM that night. Shortly after the first

incident, appellant and his accomplice thereupon took some of the batteries to a scrap

yard in Franklin County, Ohio, and sold them.

         {¶3}   The matter was investigated by Reynoldsburg Police Officer William Early.

As a result of his investigation, Officer Early filed a criminal complaint in the Franklin

County Municipal Court against appellant for receiving stolen property on September 4,

2011, which states as follows in pertinent part:

         {¶4}   “Complainant, being duly sworn, states that the above named defendant,

at Franklin County/ Columbus, Ohio, on or about the 25th day of July, 2011 did: receive,

retain, or dispose of property of another knowing or having reasonable cause to believe

that the property has been obtained through commission of a theft offense, to-wit, the

defendant sold 865 lbs. of used car batteries to PCS Metals that were stolen from Sam's

Club.”

         {¶5}   See Defendant’s Exhibit A.

         {¶6}   On October 11, 2011, appellant, with the assistance of a public defender,

entered a guilty plea to a second-degree misdemeanor charge of attempted receiving
Fairfield County, Case No. 12 CA 17                                                        3


stolen property in the Franklin County Municipal Court in Columbus, Ohio, based on the

aforesaid events of July 25, 2011. A Franklin County municipal judge thereupon

sentenced appellant to ninety days in jail, with seventy-nine days suspended and

community control of two years.

       {¶7}   On October 28, 2011, the Fairfield County Grand Jury indicted appellant

on one count of breaking and entering, a felony of the fifth degree. The indictment was

based on events at the Reynoldsburg Sam’s Club on July 25, 2011. On November 4,

2011, appellant filed a motion to dismiss said Fairfield County felony charge, arguing

that the State’s pursuit of the charge violated his right to be free from double jeopardy.

Appellant testified at the hearing on the motion to dismiss, explaining what had occurred

when he appeared in Franklin County Municipal Court on October 11, 2011 on the

receiving stolen property charge: "Well, when I went to court, they told me if I pled guilty

to receiving stolen property, that we could get it all tooken [sic] care of, so I did. Then I

done jail time and I took two years probation." Tr., Motion to Dismiss Hearing.

December 5, 2011, at 39.

       {¶8}   After a hearing and review of post-hearing briefs, the trial court overruled

appellant’s motion to dismiss. On February 28, 2012, appellant appeared with counsel

and entered a plea of no contest to breaking and entering. Via a judgment entry filed on

March 1, 2012, the trial court sentenced appellant to nine months in prison, suspended,

with five years of community control.

       {¶9}   On March 30, 2012, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:
Fairfield County, Case No. 12 CA 17                                                      4


      {¶10} “I.    THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S

MOTION TO DISMISS THE INDICTMENT.”

                                                I.

      {¶11} In his sole Assignment of Error, appellant contends the trial court erred in

overruling his motion to dismiss the breaking and entering indictment, which motion was

premised on his claim of a double jeopardy violation. We disagree.

                                    Successive Prosecution

      {¶12} Appellant first contends his prosecution in Fairfield County on the charge

of breaking and entering violated his protections from double jeopardy, specifically

concerning successive prosecutions, under the Fifth Amendment to the United States

Constitution and Article I, Section 10 of the Ohio Constitution. These clauses “*** protect

a defendant from successive prosecutions and multiple punishments for the same

offense.” State v. Kelly, Columbiana App.No. 08 CO 23, 2009-Ohio-1509, ¶ 18,

(additional citations omitted). “[T]he successive prosecution branch of the Double

Jeopardy Clause prohibits the state from trying a defendant for a greater offense after a

conviction of a lesser included offense and from twice trying a defendant for the same

offense.” State v. Morton, Montgomery App.No. 20358, 2005-Ohio-308, ¶ 8 (internal

quotations and additional citations omitted). In comparison, “[u]nder the ‘cumulative

punishment’ prong, double jeopardy protections do ‘no more than prevent the

sentencing court from prescribing greater punishment than the legislature intended.’”

State v. Coe, Stark App.No. 2009 CA 00050, 2010-Ohio-1840, ¶ 109, quoting Missouri

v. Hunter (1983), 459 U.S. 359, 366, 103 S.Ct. 673.
Fairfield County, Case No. 12 CA 17                                                      5


      {¶13} A de novo standard applies when an appellate court reviews the denial of

a motion to dismiss an indictment on the grounds of double jeopardy. See State v.

Betts, Cuyahoga App.No. 88607, 2007-Ohio-5533, ¶ 20, citing In re Ford (C.A. 6, 1992),

987 F.2d 334, 339.

      {¶14} Appellant first challenges the trial court’s reliance on the case of

Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, in

which the United States Supreme Court set forth its test for determining double jeopardy

claims as follows: “The applicable rule is that where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each provision

requires proof of a fact which the other does not.” Appellant maintains that Blockburger

addresses the “multiple punishment” prong of double jeopardy, i.e., multiple offenses

charged in single prosecution, not “successive prosecutions” as presented in the

circumstances of the case sub judice. However, in State v. Tolbert, (1991) 60 Ohio

St.3d 89, 573 N.E.2d 617, the Ohio Supreme Court clearly held: “To determine whether

a subsequent prosecution is barred by the Double Jeopardy Clause of the Fifth

Amendment, a court must first apply the Blockburger test. If application of that test

reveals that the offenses have identical statutory elements or that one is a lesser

included offense of the other, the subsequent prosecution is barred.” Id. at para. 1 of the

syllabus. See, also, Univ. of Cincinnati v. Tuttle, Hamilton App.No. C–080357, 2009-

Ohio-4493, ¶ 12: (“Because this case concerns only the issue of successive

prosecution, it is not controlled by R.C. 2941.25 or State v. Cabrales. Rather, we must

employ the test outlined in Blockburger v. United States and its progeny.”)
Fairfield County, Case No. 12 CA 17                                                        6


       {¶15} In the case sub judice, it is undisputed that Officer Early, who had filed the

misdemeanor complaint against appellant in Franklin County, also assisted the Fairfield

County Prosecutor in obtaining the aforesaid indictment. At the hearing on December 5,

2011 in the Fairfield County Court of Common Pleas on appellant’s motion to dismiss

the indictment, Officer Early testified that the Franklin County charge of attempted

receiving stolen property stemmed from the stolen batteries “from the first incident,” i.e.,

the daytime break-in at Sam’s Club on July 25, 2011, rather than the break-in later that

night. See Tr., Motion to Dismiss Hearing, at 30. Early explained: “If [appellant and his

accomplice] would have sold batteries out of there or some place else, it would have

appeared the next day, the next business day.” Tr. at 31. The batch of batteries from

the daytime break-in thus became the basis for the selling of the “865 lbs. of used car

batteries to PCS Metals” referenced in the Franklin County charge. See Tr. at 30-31.

       {¶16} Early was also specifically asked what he conveyed to the Fairfield County

Grand Jury as the basis for the felony breaking and entering charge in Fairfield County,

to which he responded:

       {¶17} “* * * What I introduced to them was essentially the investigation that I’ve

explained this morning, and then, obviously, the fact that I was        --   after filing the

receiving stolen property warrant, I was able to interview Mr. Mullins and he, in fact, told

me that yeah, he had, at least for the earlier incident, had been there, had stolen the

batteries, and then gone and sold them at PCS Metals.

       {¶18} “So the only thing that really changed between the filing of the receiving

stolen property affidavit in Franklin County and the testimony at Grand Jury here was
Fairfield County, Case No. 12 CA 17                                                     7


the fact that he admitted to me yeah, that he broke into the        -- or entered there,

however you want to word it, and then took the batteries.”

       {¶19} Tr. at 35-36.

       {¶20} The Fairfield County Grand Jury’s indictment of October 28, 2011, which

charged appellant with one count of breaking and entering at the Reynoldsburg Sam’s

Club store, was issued a little more than two weeks after appellant’s plea and sentence

in Franklin County. The indictment states in pertinent part:

       {¶21} “On or about the 25th day of July, 2011 at the County of Fairfield, State of

Ohio aforesaid, CLARENCE E. MULLINS unlawfully, did, by stealth or deception,

trespass in an unoccupied structure, to-wit: an attached enclosed storage unit located at

Reynoldsburg Sam's Club, with purpose to commit therein, a theft offense, as defined in

§2913.01 of the Ohio Revised Code, or any felony, in violation of §2911.13(A) of the

Ohio Revised Code.”

       {¶22} In comparison, appellant’s Franklin County attempted receiving stolen

property charge was based on R.C. 2913.51(A), which states: “No person shall receive,

retain, or dispose of property of another knowing or having reasonable cause to believe

that the property has been obtained through commission of a theft offense.”

       {¶23} In comparing the offenses under Blockburger, we find that the offense of

breaking and entering requires proof that the defendant trespassed in an unoccupied

structure, while the offense of receiving stolen property does not. Furthermore, the

offense of receiving stolen property requires proof that the property “received, retained,

or disposed of” by the defendant belonged to another, while breaking and entering does

not require proof of taking action with someone else’s property, or even that the
Fairfield County, Case No. 12 CA 17                                                   8

defendant actually completed a theft offense. Applying the Blockburger "same

elements" test, we hold appellant was not successively prosecuted for the same offense

in violation of the Double Jeopardy Clause.

       {¶24} Finally, appellant’s reliance on Rashad v. Burt (C.A. 6, 1997), 108 F.3d

677, and State v. Edwards, Cuyahoga App.Nos. 94568, 94929, 2011-Ohio-95, is

unpersuasive. In Rashad, the defendant was prosecuted for possession with intent to

deliver cocaine found in his automobile after he had been convicted for possession with

intent to distribute cocaine found in his house; both convictions stemmed from the

execution of a single search warrant. Id. at 678.1 In Edwards, the defendants were

charged with drug trafficking, drug possession, and possession of criminal tools based

on a search of one defendant’s car. After the defendants had entered a plea and were

sentenced on the first charges, prosecutors filed new charges based on additional drugs

that were found in the car, which in the meantime had been kept on an impound lot. Id.

at ¶ 9 - ¶13. These scenarios are distinguishable from the facts of the case sub judice,

as appellant herein was first convicted on the specific additional acts of taking the

Sam’s Club batteries to a scrap facility in Franklin County and attempting to sell them,

which acts were subsequent to his act of breaking and entering at said Sam’s Club in

Fairfield County.

               Reasonable Expectation of Final Disposition by Plea Agreement

       {¶25} Appellant next argues that when he entered into a plea agreement in the

Franklin County Municipal Court for the reduced charge of attempted receiving stolen



1
   We also note the Sixth Circuit Court of Appeals has since suggested that Rashad
should be limited in its application to the circumstances in that case. See U.S. v.
Forman (C.A.6, 1999), 180 F.3d 766, 770.
Fairfield County, Case No. 12 CA 17                                                      9


property, he reasonably would have concluded that his guilty plea resolved all possible

criminal charges related to the stolen batteries from Sam's Club, asserting that both

prosecuting attorney offices involved in this matter are agents of the same

governmental entity, the State of Ohio. Appellant relies on State v. Carpenter (1993), 68

Ohio St.3d 59. In that case, the Supreme Court of Ohio held: "The state cannot indict a

defendant for murder after the court has accepted a negotiated guilty plea to a lesser

offense and the victim later dies of injuries sustained in the crime, unless the state

expressly reserves the right to file additional charges on the record at the time of the

defendant's plea." Id. at syllabus.

       {¶26} Carpenter, however, involved a defendant’s knife assault that became a

potential murder case based on the subsequent death of the victim, more than a year

after the defendant pled guilty to attempted felonious assault. In other words, whether

the attack on the victim in Carpenter was ultimately classified as an assault or a murder,

no additional acts by the defendant were involved that would have affected the status of

the original crime. As we discussed earlier, in the case sub judice, appellant’s additional

acts of selling or attempting to sell the stolen batteries in Franklin County formed the

basis of the attempted receiving stolen property charge in that jurisdiction.

       {¶27} Furthermore, in State v. Zima, 102 Ohio St.3d 61, 806 N.E.2d 542, 2004-

Ohio-1807, the Ohio Supreme Court explained that a defendant may not rely on a

municipal court plea to resolve felony charges. Id. at ¶14. There is nothing in the record

before us to indicate that the Franklin County municipal prosecutor promised appellant

that his plea would resolve any other charges in another jurisdiction. Just as it was

unreasonable for the defendant in Zima to assume that a misdemeanor plea resolved
Fairfield County, Case No. 12 CA 17                                                    10


felony charges in the same county, it was unreasonable for the appellant in the case

sub judice to think that a misdemeanor plea in Franklin County would resolve possible

felony charges in the county from which the stolen items were taken.          Appellant’s

argument is also diminished by the case of State v. Billingsley, 133 Ohio St.3d 277,

2012-Ohio-4307, in which the Ohio Supreme Court held that “[a] county prosecuting

attorney does not have authority to enter into a plea agreement on behalf of the state for

crimes committed wholly outside the county in which the prosecuting attorney has been

elected.” Id. at the syllabus.

       {¶28} We are therefore unpersuaded that appellant was entitled to rely on his

plea agreement in Franklin County as a guarantee that no further charges in Fairfield

County would stem from the Reynoldsburg Sam’s Club incidents of July 25, 2011.

       {¶29} Appellant's sole Assignment of Error is overruled.

       {¶30} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Fairfield County, is hereby affirmed.



By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                  JUDGES
JWW/d 0408
Fairfield County, Case No. 12 CA 17                                             11


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
CLARENCE E. MULLINS                        :
                                           :
       Defendant-Appellant                 :         Case No. 12 CA 17




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
