[Cite as State v. Adams, 197 Ohio App.3d 491, 2011-Ohio-6305.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO,                                       :

        Appellee,                                            :C.A. CASE NO. 24372

v.                                                        :T.C. NO.10CR216/1

ADAMS,                                                   :(Criminal appeal from
                                                           Common Pleas Court)
        Appellant.                                       :


                                            ..........

                                           OPINION

                        Rendered on the          9th    day of       December   , 2011.

                                            ..........

Mathias Heck, Montgomery County Prosecuting Attorney, and R. Lynn Nothstine,
Assistant Prosecuting Attorney, for appellee.

Thomas W. Kidd Jr., for appellant.

                                            ..........

        DONOVAN, Judge.

        {¶ 1} Defendant-appellant, Darryl E. Adams Sr., appeals his conviction and

sentence for one count of theft, in violation of R.C. 2913.02(A)(1), one count of

breaking and entering, in violation of 2911.13(B), and one count of possession of

criminal tools, in violation of 2923.24(A), all felonies of the fifth degree.

                                                  I

        {¶ 2} The incident that forms the basis for this appeal occurred on January
                                                                                      2

15, 2010, when Officer Shoemaker of the Englewood Police Department was

dispatched to a tractor-supply store located on Salem Avenue after a report that an

alarm had been activated inside the store. Upon arriving at the scene, Shoemaker

observed a green van parked next to a dumpster behind the store. Shoemaker

parked his cruiser next to the vehicle and got out. Shoemaker observed that the rear

hatch on the van was open, and two pieces of equipment, a snow blower and a wood

chipper, were located inside the rear of the vehicle. Shoemaker also observed an

individual, later identified as Adams, attempting to force the items into the van.

Adams was subsequently arrested along with his son, Darryl Adams Jr., as well as a

female, Diane Jones, who were also at the scene. Adams Sr. was later found by the

police to be in possession of a pair of bolt cutters.

       {¶ 3} On March 15, 2010, Adams was indicted for one count of theft, one

count of breaking and entering, and one count of possession of criminal tools. At his

arraignment on March 30, 2010, Adams stood mute, and the trial court entered a plea

of not guilty on his behalf.

       {¶ 4} On July 8, 2010, Adams entered negotiated pleas of guilty to the

charges of theft and possession of criminal tools, after the state agreed to dismiss the

breaking-and-entering charge. At the state’s recommendation, the court agreed to a

concurrent sentence if a prison term was imposed. During the sentencing hearing

on September 2, 2010, however, the court refused to honor the agreement and

recommended sentence. Thus, the trial court permitted Adams to withdraw his plea.

       {¶ 5} On October 18, 2010, Adams entered guilty pleas to all three counts,

and the trial court sentenced Adams to a 21-month prison term. Because the trial
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court failed to properly outline the terms of the aggregate sentence, Adams was

resentenced to 12 months in prison for the theft offense, nine months for possession

of   criminal   tools,   and   nine   months    for   breaking   and   entering.   The

possession-of-criminal-tools and breaking-and-entering convictions were to run

concurrently with each other, but consecutive to the theft conviction, resulting in an

aggregate sentence of 21 months in prison.

       {¶ 6} It is from this decision that Adams now appeals.

                                           II

       {¶ 7} Adams’s sole assignment of error is as follows:

       {¶ 8} “The trial court erred to the prejudice of the appellant in failing to find

theft, breaking and entering, and possession of criminal tools are allied offenses of

similar import involving the same act of theft and thus the convictions should be

merged at sentencing.”

       {¶ 9} Upon review, we conclude that the record before us contains

insufficient facts to render a determination regarding whether Adams’s convictions for

theft and breaking and entering are allied offenses of similar import and therefore

subject to merger. Accordingly, this matter is remanded to the trial court to conduct

a hearing and make a factual determination whether Adams’s convictions for theft

and breaking and entering should be merged.

                                                                       Cause remanded.

                                      ..........

FROELICH and HALL, JJ., concur.
