[Cite as State v. Newman, 2013-Ohio-2053.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             FAYETTE COUNTY



STATE OF OHIO,                                     :
                                                          CASE NO. CA2012-08-024
        Plaintiff-Appellee,                        :
                                                               OPINION
                                                   :            5/20/2013
   - vs -
                                                   :

MATTHEW NEWMAN,                                    :

        Defendant-Appellant.                       :




      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                            Case No. 12CRI0003


Jess C. Weade, Fayette County Prosecuting Attorney, Dan Drake, 110 East Court Street,
Washington C.H., Ohio 43160, for plaintiff-appellee

Matthew Newman, #658-361, Chillicothe Correction Institution, P.O. Box 5500, Chillicothe,
Ohio 45601, defendant-appellant, pro se



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Matthew Newman, appeals his sentence from the Fayette

County Court of Common Pleas for burglary, theft, receiving stolen property, having weapons

under disability, grand theft, safecracking and possession of criminal tools.

        {¶ 2} On January 13, 2012, Newman drove a stolen van to Fayette County where he

proceeded to burglarize the homes of Ralph Templin and Nicholas Gragg. Newman stole

money from the Templin residence, and a gun safe and two safe boxes from the Gragg
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residence.   Thereafter, Newman cracked open the gun safe and safe boxes with a

screwdriver and hatchet and took multiple guns found therein.

       {¶ 3} Sgt. Ryan A. McFarland of the Fayette County Sheriff's Office observed the

stolen van travelling on Ghormley Road shortly before the vehicle crashed. Newman was

found inside the vehicle along with the stolen guns from the Gragg residence. Because

Newman was previously convicted of an offense involving the trafficking of drugs, he was not

permitted to possess a firearm.

       {¶ 4} Newman subsequently plead guilty to the following: one count of burglary, a

felony of the second degree in violation of R.C. 2911.12(A)(2); one count of theft, a

misdemeanor of the first degree in violation of R.C. 2913.02(A)(2); one count of receiving

stolen property, a felony of the fourth degree, in violation of R.C. 2913.51(A); one count of

weapons under disability, a felony of the third degree in violation of R.C. 2923.13(A)(1); one

count of burglary, a felony of the third degree in violation of R.C. 2911.12(A)(3); one count of

grand theft, a felony of the third degree in violation of R.C. 2913.02(A)(2); one count of

safecracking, a felony of the fourth degree in violation of R.C. 2911.31(A); and one count of

possessing criminal tools, a felony of the fifth degree in violation of R.C. 2923.24(A).

       {¶ 5} Newman was sentenced to consecutive prison terms of five years for the first

burglary, one year for the weapons under disability, and three years for the second burglary

conviction. Newman was further sentenced to prison terms of 18 months for receiving stolen

property, 18 months for safecracking, 12 months for grand theft and 12 months for

possession of criminal tools. Those terms were to run concurrent with one another and the

aforementioned sentences, resulting in a total determinate term of nine years.

       {¶ 6} Appellant subsequently filed a motion to vacate and correct sentences, arguing

ineffective assistance of counsel and the trial court's failure to merge allied offenses. The

trial court treated the motion as a petition for postconviction relief and denied the motion.
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       {¶ 7} Newman appeals, raising a single assignment of error for our review.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} WHERE DEFENSE COUNSEL'S FAILURE TO CONVEY A PLEA OFFER OR

ERRONEOUS ADVICE ABOUT LEGAL STANDARDS CAUSES THE CLIENT TO LOSE

THE BENEFIT OF A FAVORABLE PLEA, COUNSEL'S PERFORMANCE SHOULD BE

DEEMED CONSTITUTIONALLY DEFICIENT.

       {¶ 10} Within this assignment of error, Newman argues that his counsel was

ineffective in three instances: (1) in causing him to "miss out on a favorable plea"; (2) in

failing to advise him that he could be given consecutive sentences when pleading guilty; and

(3) in failing to investigate and argue the merging of allied offenses in the plea agreement.

       {¶ 11} In determining whether counsel's performance constitutes ineffective

assistance, an appellate court must find that counsel's actions fell below an objective

standard of reasonableness and that appellant was prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984). In performing its review,

an appellate court is not required to examine counsel's performance under the first prong of

the Strickland test if an appellant fails to prove the second prong of prejudicial effect. State

v. Clark, 12th Dist. No. CA2008-09-113, 2009-Ohio-2101, ¶ 18. In demonstrating prejudice,

an appellant must show that there is a reasonable probability that, but for counsel's errors,

the result of the trial would have been different. Id., citing Strickland at 694.

                                     1. Favorable Plea

       {¶ 12} Newman argues that he proffered to the trial court clear documentation that

counsel was presented with a plea offer that he failed to allow Newman to accept. Newman

alleges that counsel was more interested in taking the matter to trial in order to generate

greater compensation.



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       {¶ 13} The Supreme Court has held that, "defense counsel has the duty to

communicate formal prosecution offers to accept a plea on terms and conditions that may be

favorable to the accused." Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012), syllabus.

However, Newman has failed to provide this court with a transcript wherein evidence of a

prior favorable plea offer was proffered to the trial court. The duty to provide a transcript for

appellate review falls upon the appealing party since he or she bears the burden of showing

error by reference to matters in the record. State v. Linville, 12th Dist. No. CA2002-06-057,

2003-Ohio-818, ¶ 5; Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980); see

App.R. 9; see also App.R. 16(A)(7).

       {¶ 14} Accordingly, we cannot find that Newman's counsel was ineffective in failing to

advise him of a prior favorable plea offer where there has been no evidence provided to this

court to indicate that such an offer existed or was improperly withheld from Newman.

                                 2. Consecutive Sentences

       {¶ 15} Newman next alleges ineffective assistance of counsel because his trial

counsel failed to advise him that the sentences for his offenses could be ordered to run

consecutively rather than concurrently.

       {¶ 16} Here again we note that Newman has failed to provide this court with the

transcript from the sentencing hearing. As cited above, the duty to provide a transcript for

appellate review falls upon the appealing party since he or she bears the burden of showing

error by reference to matters in the record. Linville, 2003-Ohio-818, ¶ 5; Knapp, 61 Ohio

St.2d 197, 199; see App.R.9; see also App.R. 16(A)(7). Where portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing court

has nothing to pass upon and thus has no choice but to presume the regularity or validity of

the lower court's proceedings and affirm. See Knapp; State v. Gregory, 12th Dist. No.

CA2006-05-016, 2006-Ohio-7037, ¶ 3.
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       {¶ 17} Accordingly, in presuming the regularity of the proceedings in the instant case,

we presume the trial court provided Newman with the proper Crim.R. 11 colloquy and

correctly informed Newman of the possible prison terms for all of the offenses for which he

was about to plead guilty. We are assisted in this matter by a written plea form contained in

the record. The written plea form includes the possible prison terms for each of the offenses

to which Newman was pleading guilty. Consequently, we presume Newman was made

aware of the possibility he could be sentenced to consecutive sentences regardless of

whether his trial counsel informed him of that personally.

       {¶ 18} In light of the foregoing, having presumed that Newman was made aware of the

consequences of accepting a plea and having signed a written plea detailing the possible

sentences to be imposed, we find that Newman's counsel was not ineffective in allegedly

failing to advise Newman that he may be sentenced to consecutive terms.

                                       3. Allied Offenses

       {¶ 19} Newman next argues that his counsel was ineffective in failing to argue that his

two burglary convictions should be merged as allied offenses.

       {¶ 20} The Ohio Supreme Court has set forth a two-part test to determine if offenses

are allied offenses of similar import under R.C. 2941.25. State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314.

              In determining whether offenses are allied offenses of similar
              import under R.C. 2941.25(A), the 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.

Id. at ¶ 48. (Emphasis in original.)

       {¶ 21} The court went on to state:

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              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." 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.

Id. at ¶ 49-51. (Emphasis in original.)

       {¶ 22} Applying the Johnson analysis to the case at bar, we must determine if

Newman committed both burglary offenses with the same conduct and with the same

animus. Newman pled guilty to two counts of burglary in violation of R.C. 2911.12(A)(2) and

R.C. 2911.12(A)(3), respectively. R.C. 2911.12(A)(2) forbids a person by force, stealth, or

deception from trespassing in an occupied structure "that is a permanent or temporary

habitation of any person when any person other than an accomplice of the offender is

present or likely to be present, with purpose to commit in the habitation any criminal offense."

R.C. 2911.12(A)(3) forbids a person by force, stealth, or deception from trespassing in an

occupied structure "with purpose to commit in the structure or separately secured or

separately occupied portion of the structure any criminal offense."

       {¶ 23} We find that the burglary offenses were committed separately and that

Newman had a separate animus for each offense. The burglary offenses were committed at

separate residences and therefore were not committed by, nor could they be committed by,

the same conduct. Accordingly, Newman's counsel was not ineffective in failing to argue that

the burglary offenses were allied offenses subject to merger.

       {¶ 24} However, after this appeal was filed and briefed, this court sua sponte raised

the issue of whether any of the remaining offenses were allied and subject to merger. The

parties were permitted to file supplemental briefs and did so.


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       {¶ 25} Having reviewed the record and the supplemental briefs, we find that the

offenses of grand theft and safecracking are allied offenses subject to merger. We find that

those offenses were committed with the same conduct and with the same animus.

       {¶ 26} R.C. 2913.02 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 in any of the following ways: * * * (2) Beyond
              the scope of the express or implied consent of the owner or
              person authorized to give consent. * * * (4) If the property stolen
              is a firearm or dangerous ordnance, a violation of this section is
              grand theft.

       {¶ 27} According to R.C. 2911.31(A), "no person, with purpose to commit an offense,

shall knowingly enter, force an entrance into, or tamper with any vault, safe, or strongbox."

       {¶ 28} Applying Johnson to those offenses in the instant case, we conclude that (1) it

is possible to commit the offenses of grand theft and safecracking with the same conduct,

and (2) appellant did, in fact, commit these offenses by a single act, performed with a single

state of mind, rather than separately or with a separate animus. Id. at ¶ 49, 51.

       {¶ 29} Here, Newman removed a gun safe and two strong boxes from the residence of

Nicholas Gragg. It is apparent that Newman committed these offenses at the same time and

with the same animus, which was to remove the safe and exert control over the contents

therein.

       {¶ 30} This court has previously held that the offenses of safecracking and grand theft

do not necessarily merge. State v. Crosby, 12th Dist. Nos. CA2010-10-81, CA2011-02-013,

2011-Ohio-4907. But see State v. Richardson, 12th Dist. No. CA2012-06-043, 2013-Ohio-

1953 (finding that safecracking and grand theft are allied offenses and should be merged for

sentencing). However, the Ohio Supreme Court acknowledged that the results of the allied

offenses analysis will vary on a case-by-case basis and while two crimes in one case may

merge, the same crimes in another may not. State v. Edwards, 11th Dist. No. 2012-L-034,
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2013-Ohio-1290, ¶ 62, citing Johnson at ¶ 52. Our decision in Crosby is distinguishable from

the instant case in that the Crosby case involved entry into a safe before the offense of theft

occurred. In the present case, the safe and strong boxes were removed from the Gragg

residence with the guns still inside, and then broken into once in the van. We find that

Newman's conduct in removing the safe from Gragg's home to the van constitutes

"tampering" for purposes of safecracking. It is clear that Newman's purpose in removing the

safe was so that he could subsequently break into the safe, therefore exercising dominion

and control over any potential valuables. Consequently, Newman's act of tampering with the

safe and strong boxes by removing them was committed with the same act and animus as

exerting control over the contents therein.

       {¶ 31} Furthermore, the trial court's decision to impose concurrent, rather than

consecutive, sentences on appellant for the offenses of grand theft and safecracking does

not render harmless the failure to merge those offenses for purposes of sentencing under

R.C. 2941.25. The Ohio Supreme Court has held that "even when the sentences are to be

served concurrently, a defendant is prejudiced by having more convictions than are

authorized by law." State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31.

       {¶ 32} In light of the foregoing, having found that the two separate burglaries were not

committed with the same conduct and the same animus, we find that Newman's counsel was

not ineffective in failing to argue that those offenses were allied. However, having found that

grand theft and safecracking are allied offenses, we find that Newman's counsel was

ineffective in failing to investigate and argue that those offenses should have been merged.

       {¶ 33} Accordingly, Newman's sole assignment of error is overruled insofar as it

pertains to: (1) counsel's alleged failure to advise him of a favorable plea offer; (2) counsel's

alleged failure to advise him that he may be sentenced to consecutive sentences; and (3)

counsel's failure to argue that the two burglary offenses were allied offenses subject to
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merger. However, Newman's assignment of error is sustained insofar as his trial counsel

was ineffective in failing to argue that the offenses of grand theft and safecracking are allied

offenses subject to merger.

       {¶ 34} The judgment of the trial court is reversed only to the extent that the convictions

and sentences for the offenses of grand theft and safecracking are vacated and the matter is

remanded for merger and resentencing. Upon remand, the state can elect which of the two

allied offenses it wishes to pursue for sentencing, and the trial court is bound by the state's

election. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 20, 24; State v. Clay, 12th

Dist. No. CA2011-02-004, 2011-Ohio-5086, ¶ 27. In all other respects, the trial court's

judgment is affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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