[Cite as State v. Terrel, 2015-Ohio-4201.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                        MIAMI COUNTY

 STATE OF OHIO                                     :
                                                   :   Appellate Case No. 2014-CA-24
          Plaintiff-Appellee                       :
                                                   :   Trial Court Case No. 2013-CR-408
 v.                                                :
                                                   :   (Criminal Appeal from
 BRENDON TERREL                                    :    Common Pleas Court)
                                                   :
          Defendant-Appellant                      :
                                                   :

                                              ...........
                                             OPINION
                             Rendered on the 9th day of October, 2015.
                                              ...........

PAUL M. WATKINS, Atty, Reg. No. 0090868, Miami County Prosecutor’s Office, 201
West Main Street – Safety Building, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, and NICOLE RUTTER-HIRTH, Atty. Reg.
No.0081004, Rion, Rion & Rion, L.P.A., Inc., 130 West Second Street, Suite 2150, Post
Office Box 10126, Dayton, Ohio 45402
       Attorneys for Defendant-Appellant

                                             .............

FAIN, J.

        {¶ 1} Defendant-appellant Brenden Terrel appeals from his conviction and
                                                                                          -2-


sentence for Aggravated Robbery, Aggravated Burglary, both first degree felonies, and a

firearm specification. Terrel raises three assignments of error, arguing that the trial court

erred by imposing maximum sentences, by failing to merge the two felony convictions,

and by issuing an improper order for restitution. The State argues that no error occurred

regarding restitution because no restitution was ordered in the case. The State also

argues that Aggravated Robbery and Aggravated Burglary are not allied offenses of

similar import and therefore should not be merged. Finally, the State contends that the

maximum sentence was not contrary to law, and is not clearly and convincingly

unsupported by the record.

       {¶ 2} We conclude that the trial court did not order restitution and therefore no

error occurred with regard to restitution. We also conclude that Terrel did not meet his

burden of proving that a plain error occurred when the court failed to merge the offenses

of Aggravated Burglary and Aggravated Robbery.             Finally, we conclude that the

sentence was not contrary to law or unsupported by the record.             Accordingly, the

judgment will be Affirmed.



       I. Terrel’s Role as a Complicitor in the Aggravated Burglary and Aggravated

                                       Robbery Offenses

       {¶ 3} At the time of the actions that led to his convictions for Aggravated Burglary

and Aggravated Robbery, Terrel was 19 years old, and had recently been charged on

three different occasions with possession of drugs and possession of drug paraphernalia,

misdemeanor offenses. He also had a juvenile record for delinquencies related to drug

and alcohol abuse. Terrel admitted that he regularly smoked marijuana, and that on the
                                                                                          -3-


day of the offense, he had spent most of the day hanging out with his brother and friends,

smoking marijuana. Terrel claims that his 16-year-old friend, Patrick McGail, suggested

that they rob a local drug dealer to obtain money and more drugs. Terrel texted another

friend, Jason Sowers, who agreed to join them after he got off work at the Troy Country

Club. While waiting for Sowers, McGail and Terrel went with Terrel’s brother to go pick

up a gun, and they returned to the home of Terrel’s brother. Sowers picked them up in

his car around 9:00 P.M., and he also had a gun. Sowers drove Terrel and McGail to the

victim’s house and supplied all three with masks to hide their identity. Terrel agreed to act

as a lookout when McGail and Sowers entered the victim’s home to rob him. Terrel walked

around the house, while McGail and Sowers attempted to enter it. They regrouped when

they discovered the house was locked, and made plans to break a window as a train

passed, to block the noise. At this point, Terrel became nervous about his participation in

the venture, so he left the vicinity and started walking away. Terrel was not present when

McGail and Sowers gained access to the house, attempted to rob the victim, and shot the

victim in the head. The victim later died at the hospital, leaving behind a fiancé and a 2-

year-old son.

       {¶ 4} Terrel cooperated with the police investigation, and agreed to testify against

his accomplices in exchange for a plea agreement.



                               II. The Course of the Proceedings

       {¶ 5} Terrel was charged with one count of Complicity to Commit Aggravated

Robbery, and one count of Complicity to Commit Aggravated Burglary, both felonies of

the first degree, and both carrying a gun specification. Terrel waived his right to be
                                                                                       -4-


prosecuted by indictment, and consented to prosecution by information. Terrel agreed to

enter a plea of no contest, and signed a written plea form informing him of the possible

sentence and the possible fine for each of the two first-degree felonies and the gun

specification. The plea agreement specifically stated that promises had been made, “with

continued cooperation and testimony State will not pursue charge of conspiracy to commit

Murder/Aggravated Murder; State will also recommend concurrent sentencing (except for

gun specification). Both of Terrel’s co-defendants were charged and convicted of Murder,

in addition to Aggravated Burglary and Aggravated Robbery. Terrel did testify at the trial

of co-defendant McGail. After the completion of the McGail trial, sentencing hearings were

conducted for all three co-defendants.

       {¶ 6} Prior to his sentencing, a pre-sentence investigation was completed, which

included Terrel’s criminal history, a summary of the facts that supported the offenses, a

summary of sentencing factors, and numerous victim-impact statements. At the

sentencing hearing, both of the victim’s parents read their victim-impact statements.

Terrel also made a statement to express remorse and to apologize to the victim’s family.

Prior to announcing sentence, the trial court stated:

              In determining sentence, the Court has considered the Pre-Sentence

       Investigation that was done, the defendant’s statement here in open Court

       today, the statement from defendant’s counsel, and also the statement from

       the Prosecuting Attorney, and also the joint recommendation for concurrent

       sentences. The Court has also taken into consideration the Victim Impact

       Statements that were read here in open Court today, as well as all the

       various Victim Impact Statements that were submitted but not read, as well
                                                                                        -5-


       as also the statements that were submitted in support of the defendant,

       Brendon Terrel. The Court has read all of them and taken all of them into

       consideration.

              The Court has considered the purposes and principles of the

       sentencing statute, which include the recidivism factors and the seriousness

       factors.

Transcript Sentencing Hearing at pgs. 16-17.

       {¶ 7} At the sentencing hearing, the trial court found that the sentences for the

two offenses would not merge after asking defense counsel if he had any argument to

make about merger under R.C. 2941.25, and counsel responded “No” on the record. Id.

at 17. The trial court then addressed Terrel as follows:

              You’ve been convicted for being a willing accomplice to Aggravated

       Burglary and Aggravated Robbery. You’re older than either of your co-

       defendants with whom you conspired to engage in high-risk criminal

       conduct that demonstrates a callous disregard for the lives of others. You

       knew that each of your co-defendants was armed with a deadly weapon,

       yet you freely got into the car with them and then you willingly went with

       them and walked around the house and served as a lookout before you left.

              Your remorse, your acceptance of responsibility and your testimony

       that led to the conviction of a co-defendant are important. However, none

       of these factors alters the fact that you willingly assisted others in conduct

       that had the potential for and did end the life of an innocent human being,

       Nathan Wintrow, who had done nothing to provoke the con – provoke or
                                                                                          -6-


       contributed to the events that resulted in his murder.

Transcript Sentencing Hearing at 18.

       {¶ 8} Terrel was sentenced to serve eleven years on count one for Aggravated

Robbery, and eleven years on count two for Aggravated Burglary, plus three years for the

gun specification. The two counts were not merged, but the sentences, not including the

three-year sentence for the firearm specification (which by statute is required to be served

consecutively) were ordered to be served concurrently. The final judgment entry imposing

sentence confirms that the gun specification sentence must be served prior to and

consecutively to the sentences for the two felonies. The sentencing entry does not contain

any order of restitution. The entry further states,

              The Court has considered the record, oral statements, any victim

       impact statements and presentence report prepared. The Court has

       considered the purposes and principles of felony sentencing in ORC

       §2929.11 and the seriousness and recidivism factors in §2929.12.

       {¶ 9} From the judgment of conviction, Terrel appeals.



                                   III. The Standard of Review

       {¶ 10} Generally, a de novo standard of review is applied when reviewing an

alleged error regarding a merger determination, State v. Williams, 134 Ohio St. 3d 482,

2012-Ohio-5699, 983 N.E. 2d 1245.         However, in the case before us, the effect of

counsel’s decision not to argue for merger resulted in a failure to preserve this issue for

appellate review, although we may still review it for plain error. “We have found plain error

when three elements are met: 1) there must be an error or deviation from a legal rule, 2)
                                                                                          -7-


that error must be plain, defined as ‘an obvious defect in the trial proceedings,’ and 3) the

error must have affected a ‘substantial right,’ meaning the error must have affected the

ultimate outcome, and a correction is needed to ‘prevent a manifest miscarriage of

justice.’ ” State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 9, citing

State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240 (2002).

       {¶ 11} With respect to the issue raised regarding the length of the sentence, we

are guided by the standard of review set forth in R.C. 2953.08(G)(2). State v. Rodeffer,

2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.). “Under this statute, an appellate court may

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it ‘clearly and convincingly’ finds either (1) that the record does not

support certain specified findings or (2) that the sentence imposed is contrary to law.”

State v. Battle, 2d Dist. Clark No. 2014CA5, 2014-Ohio-4502, ¶ 7.                 We have

acknowledged that this is an “extremely deferential standard of review.” Rodeffer at ¶ 31.



                        IV. Terrel’s Sentence Is Not Contrary to Law

       {¶ 12} For his First Assignment of Error, Terrel asserts as follows:

              THE    TRIAL     COURT      ERRED       IN   IMPOSING       MAXIMUM

       SENTENCES ON COUNTS 1 AND 2, DESPITE THE PRESENCE OF

       SEVERAL MITIGATING FACTORS AND TERREL’S ROLE IN THE

       OFFENSES.

       {¶ 13} Terrel was convicted of two first-degree felonies, and ordered to serve the

maximum sentence of eleven years for each offense. Pursuant to R.C. 2929.14 (A)(1),

the trial court may impose a prison term ranging from three to eleven years for a first-
                                                                                          -8-


degree felony. The trial court accepted the party’s plea agreement, and ordered Terrel to

serve the two sentences concurrently. The additional three-year sentence for the gun

specification is required to be served consecutively pursuant to R.C. 2929.14(C)(1)(a).

      {¶ 14} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.’ State v. Nelson, 2d

Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶ 62. ‘However, the trial court must

comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12.’

Id.” State v. Eicholtz, 2d Dist. Clark No. 2012 CA 7, 2013-Ohio-302, ¶ 53.

      {¶ 15} In the case before us, Terrel’s eleven-year sentence was within the

statutory range. Prior to imposing sentence, the trial court reviewed and considered the

pre-sentence investigation, the defendant’s statement, the statement of defense counsel,

the statement from the State, and all the victim-impact statements. These documents

provided the court with a sufficient basis to consider the sentencing factors outlined in

R.C. 2929.11 and 2929.12. The trial court acknowledged Terrel’s youth and his lack of

recidivism factors, but these factors did not outweigh the seriousness of the offense

because the victim was murdered. Even though Terrel was not charged with Murder, it

was not error for the court to consider the seriousness of the harm that occurred during

the course of, and as a foreseeable result of, the Aggravated Robbery and Aggravated

Burglary offenses, as directed by the sentencing statutes, R.C. 2929.11 and R.C.

2929.12.

      {¶ 16} Terrel also argues that the trial court failed to consider whether his

sentence was “consistent with sentences imposed for similar crimes committed by similar
                                                                                          -9-


offenders” as required by R.C. 2929.11(B). Terrel suggests that his sentence was

inconsistent with two recent cases in which the defendants were only sentenced to seven

or eight years of imprisonment for convictions of Involuntary Manslaughter. As evidence,

Terrel provided the termination entry in State v. Spears, Montgomery C.P. Case No.

2013-CR-2195 (Jan. 23, 2015) and State v. Jordan, Miami C.P. Case No. 08CR464C

(April 29, 2009). “As explained by the Tenth District Court of Appeals, consistency in

sentencing does not necessarily equate with uniformity, ‘rather consistency has a goal of

similar sentences for similar offenses.’ ” State v. Mansley, 2d Dist. Montgomery No.

26417, 2015-Ohio-2785, quoting State v. Murphy, 10th Dist. Franklin No. 12AP-952,

2013-Ohio-5599, ¶ 14, citing State v. Battle, 10th Dist. Franklin No. 06AP-863, 2007-

Ohio-1845. The Franklin County appellate court explained:

            As a result, consistency includes a range of sentences, taking into

      consideration a trial court's discretion to weigh the relevant statutory factors.

      [State v. Battle]. Even though offenses may be similar, “distinguishing

      factors may justify dissimilar sentences.” Id. at ¶ 24.

            In addition, consistency in sentencing does not result from a case-by-

      case comparison, but by the trial court's proper application of the statutory

      sentencing guidelines. State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-

      6228, ¶ 10 (10th Dist.). An offender cannot simply present other cases in

      which an individual convicted of the same offense received a lesser

      sentence to demonstrate that his sentence is disproportionate. [State v.]

      Hayes, [10th Dist. Franklin No. O8AP-233, 2009-Ohio-1100] at ¶ 10, citing

      Battle at ¶ 23. Rather, to demonstrate that a sentence is inconsistent, an
                                                                                           -10-


       offender must show that the trial court did not properly consider applicable

       sentencing criteria found in R.C. 2929.11 and 2929.12. [State v.] Holloman,

       [10th Dist. Franklin No. 07AP-875, 2008-Ohio-2650] at ¶ 19; Battle at ¶ 21–

       22.

Murphy at ¶ 14-15.

       {¶ 17} As we concluded above, the record does support a finding that the trial

court did properly consider the sentencing factors set forth in R.C. 2929.11 and 2929.12.

Upon review of the record available to the trial court at the time of sentencing, we

conclude that the sentence is neither contrary to law nor clearly and convincingly

unsupported by the record. Terrel’s First Assignment of Error is overruled.



       V. The Trial Court Did Not Commit Plain Error When it Failed to Merge the

                Aggravated Burglary and Aggravated Robbery Convictions

       {¶ 18} For his Second Assignment of Error, Terrel asserts as follows:

              THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS I

       AND 2 AS THESE ARE ALLIED OFFENSES OF SIMILAR IMPORT AND

       TERREL POSSESSED A SINGLE ANIMUS

       {¶ 19} Initially, we note that Terrel forfeited all but plain error by failing to object

at his sentencing hearing to the failure of the trial court to merge his convictions. See

State v. Rogers, 2d Dist. Greene No. 2011 CA 0057, 2012-Ohio-4451, ¶ 5. However,

failure to merge allied offenses of similar import is plain error. Id.; State v. Bozeman, 2d

Dist. Clark No. 2014-CA-38, 2015-Ohio-616, ¶ 9.

       {¶ 20} R.C. 2941.25, Ohio's allied offense statute, provides that:
                                                                                      -11-




             (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.

      {¶ 21} “When determining whether two offenses are allied offenses of similar

import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

syllabus. The Supreme Court of Ohio explained:

             * * * [T]he question is whether it is possible to commit one offense

      and commit the other with the same conduct, not whether it is possible to

      commit one without committing the other. * * * If the offenses correspond to

      such a degree that the conduct of the defendant constituting commission of

      one offense constitutes commission of the other, then the offenses are of

      similar import.

             If the multiple offenses can be committed by the same conduct, then

      the court must determine whether the offenses were committed by the same

      conduct, i.e., “a single act, committed with a single state of mind.” * * *
                                                                                          -12-




              If the answer to both questions is yes, then the offenses are allied

       offenses of similar import and will be merged.

              Conversely, if the court determines that the commission of one

       offense will never result in the commission of the other, or if the offenses

       are committed separately, or if the defendant has separate animus for each

       offense, then, according to R.C. 2941.25(B), the offenses will not merge.

       (Citations and quotations omitted.)

Johnson at ¶ 48–51.

       {¶ 22} Although Terrel argues that his role in both of the offenses was simply to

act as a lookout, Terrel was charged and convicted of Complicity to Commit Aggravated

Burglary, and Complicity to Commit Aggravated Robbery. Pursuant to R.C. 2923.03(A)(2)

and (3), complicity involves aiding and abetting another in committing the offense and

conspiring with another to commit an offense, and “[w]hoever violates this section is guilty

of complicity in the commission of an offense, and shall be prosecuted and punished as

if he were a principal offender.” Therefore, for purposes of sentencing, the conduct of

Terrel’s co-defendants is imputed to Terrel, as if he was also a principal offender.

       {¶ 23} As a principal offender or an accomplice, a conviction for Aggravated

Burglary establishes a violation of R.C. 2911.11(A)(2), which provides in pertinent part

that “[n]o person, by force, stealth, or deception, shall trespass in an occupied structure *

* *with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender

has a deadly weapon * * *.” As a principal offender or an accomplice, a conviction for

Aggravated Robbery establishes a violation of R.C. 2911.01(A)(1) which provides that
                                                                                        -13-


“[n]o person in attempting or committing a theft offense * * * shall * * * [h]ave 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.”

       {¶ 24} We have held that “Aggravated Robbery and Aggravated Burglary are

often not allied offenses of similar import because they involve two separate crimes;

entering into the premises by force, stealth or deception, and then committing a theft

offense.” State v. Kay, 2d Dist. Montgomery No. 25761, 2014-Ohio-2676, ¶ 21. “A

burglary is complete upon entry into the victim's home, and a robbery subsequently

committed inside the home constitutes a new, separate offense.” Id., citing State v.

Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 137. See also State v.

McClurkin, 10th Dist. Franklin No. 11AP-944, 2013-Ohio-1140; State v. Adams, 1st Dist.

Hamilton No. C–120059, 2013-Ohio-926. “Aggravated Burglary is complete upon an

offender's entrance while the Aggravated Robbery requires additional conduct.” Kay at ¶

22.

       {¶ 25} In the case before us, the record does not provide any detail regarding the

sequence of events once Sowers and McGail left Terrel outside the victim’s home and

proceeded with their plan to gain entry into the victim’s home and rob him. To prevail on

a merger claim, the burden of proving entitlement to merger is on the defendant. Kay at

¶ 19, citing State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 134.

We cannot make assumptions about what transpired inside the victim’s home to

speculate whether the burglary was complete before the robbery occurred, or whether

the two offenses occurred at the same time. Therefore, Terrel has not met his burden of

establishing that merger was required. Upon the record, we conclude that the trial court
                                                                                          -14-


did not commit plain error when it failed to merge the two offenses or failed to find that

the two offenses were committed at the same time, with the same animus. Therefore,

Terrel’s Second Assignment of Error is overruled.



                                VI. No Restitution Was Ordered

       {¶ 26} For his Third Assignment of Error, Terrel asserts as follows:

              THE TRIAL COURT ERRED IN IMPOSING RESTITUTION

       WITHOUT ORDERING A SPECIFIC RESTITUTION FIGURE AT THE

       SENTENCING HEARING, IN THE TERMINATION ENTRY, AND

       WITHOUT HOLDING A HEARING.

       {¶ 27} Terrel argues that because the sentencing entry makes the following

statement, restitution was wrongfully ordered:

              The Defendant is ordered to pay any restitution, all prosecution

       costs, court appointed counsel costs and any fees permitted pursuant to

       R.C. 2929.18(A)(4).

       {¶ 28} However, neither the sentencing hearing, nor the sentencing entry

contains any reference to a specific order for the payment of restitution.1 Based on the

record before us, we conclude that Terrel has no obligation to pay restitution, and

therefore no error occurred. Terrel’s Third Assignment of Error is overruled.




1  The State asserts that the order to pay “any restitution” is boilerplate language in this
trial court’s sentencing entries, without regard to whether restitution has, in fact, been
ordered. We construe the reference, therefore, as being contingent upon the ordering
of restitution, which was not ordered in this case.
                                                                                      -15-




                                       VII. Conclusion

       {¶ 29} All of Terrel’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

                                    .............



HALL and WELBAUM, JJ., concur.


Copies mailed to:

Paul M. Watkins
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Christopher Gee
