[Cite as State v. VanValkenburg, 2012-Ohio-1213.]


                                      COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


STATE OF OHIO                                       :      JUDGES:
                                                    :
                                                    :      Hon. W. Scott Gwin, P.J.
                       Plaintiff-Appellee           :      Hon. John W. Wise, J.
                                                    :      Hon. Patricia A. Delaney, J.
-vs-                                                :
                                                    :      Case No. 11-CA-91
PAUL VANVALKENBURG                                  :
                                                    :
                                                    :
                      Defendant-Appellant           :      OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Licking County Court of
                                                        Common Pleas, Case No. 11 CR 00074


JUDGMENT:                                               REVERSED AND REMANDED FOR
                                                        RESENTENCING



DATE OF JUDGMENT ENTRY:                                 March 20, 2012



APPEARANCES:

For Appellant:                                             For Appellee:

THOMAS S. GORDON                                           KENNETH OSWALT
P.O. Box 314                                               LICKING COUNTY PROSECUTOR
Pickerington, OH 43147
                                                           EARL L. FROST
                                                           ASST. PROSECUTING ATTORNEY
                                                           20 S. Second St., 4th Floor
                                                           Newark, OH 43055
[Cite as State v. VanValkenburg, 2012-Ohio-1213.]


Delaney, J.

        {¶1} Defendant-appellant Paul VanValkenburg appeals the September 2,

2011 sentencing entry of the Licking County Court of Common Pleas.                 Plaintiff-

appellee is the State of Ohio.

                            FACTS AND PROCEDURAL HISTORY

        {¶2} On February 18, 2011, appellant was indicted by the Licking County

Grand Jury with breaking and entering, a fifth-degree felony in violation of R.C.

2911.13(A) and/or (B), and possession of criminal tools, a fifth-degree felony in

violation of R.C. 2923.24(A)(B)(3).             Appellant pled no contest to the charges on

September 2, 2011. At the change of plea hearing and sentencing hearing, the State

presented the facts of the State’s case against appellant:

                * * *, on or about January 3rd of 2011, detectives of the Newark

        Police Department received a complaint about a breaking and entering

        which occurred at Sherman’s Iron & Metal, located at 101 – 1001, rather,

        East Main Street, Newark, Licking County, Ohio.

                Upon arrival contact was made with the victim, Richard Sherman,

        who advised that three persons had broken into his business on January

        1st, 2011, and stolen various items. Mr. Sherman recognized the three

        individuals from the security video surveillance system as being Ronald

        Lees, Betty Hottinger and Paul VanValkenburg.

                The aforementioned business meets the definition of               an

        unoccupied structure as found in the Ohio Revised Code. The value of

        the property stolen was greater than $500. Some of the property was
Licking County, Case No. 11-CA-91                                                   3


       sold at Legends Smelting in Newark, Licking County, Ohio as scrap

       metal.

                The police interviewed the three aforementioned suspects, and all

       three admitted that together they had broken into the business and

       stolen the aforementioned property. They further advised that they used

       a crowbar to gain entrance into and help commit the aforementioned

       crime. * * *

(T. 9-10.)

       {¶3} The trial court accepted appellant’s change of plea and found appellant

guilty of the charges.      During the sentencing portion of the hearing, counsel for

appellant stated during the pretrial it was discussed the counts might merge for

sentencing.     (T. 17.)   The trial court stated Mr. Lees and Ms. Hottinger received

eighteen-month sentences and the trial court did not merge the sentences, so the trial

court would not merge appellant’s sentences. (T. 18.) The record is silent as to the

charges against Lees and Hottinger. The trial court sentenced appellant to eleven

months for breaking and entering and eleven months for possession of criminal tools,

to be served consecutively. (T. 18; Sept. 2, 2011 Judgment Entry.)

       {¶4} It is from this decision appellant now appeals.

                                ASSIGNMENT OF ERROR

       {¶5} Appellant raises one assignment of error:

       {¶6}     “I. THE TRIAL COURT ERRED BY NOT RUNNING THE APPELLANT’S

SENTENCES CONCURRENTLY.”
Licking County, Case No. 11-CA-91                                                     4


                                         ANALYSIS

       {¶7} Appellant argues the charges against appellant for breaking and entering

and possession of criminal tools were allied offenses of similar import, which should

have merged for sentencing purposes. We agree.

       {¶8} Breaking and entering in violation of R.C. 2911.13(A) consists of

trespassing by force in an unoccupied structure with the purpose to commit a theft

offense. Possession of criminal tools in violation of R.C. 2923.24(A) requires that a

person possess or have under the person’s control any device or instrument with

purpose to use it criminally.

       {¶9} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d

1061, the Ohio Supreme Court ruled that 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. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699

(1999), overruled.)

       {¶10} In 1972, the General Assembly enacted R.C. 2941.25 in order to guide

courts in the determination of offenses subject to merger. State v. Logan, 60 Ohio

St.2d 126, 131, 397 N.E.2d 1345 (1979) (“the statute has attempted to codify the

judicial doctrine * * * sometimes referred to as the doctrine of merger, and other times

as the doctrine of divisibility of offenses.”

       {¶11} R.C. 2941.25 provides:

              (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or
Licking County, Case No. 11-CA-91                                                     5


      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.

      {¶12} In Johnson, supra, the Supreme Court stated that they have “consistently

recognized that the purpose of R.C. 2941.25 is to prevent shotgun convictions, that is,

multiple findings of guilt and corresponding punishments heaped on a defendant for

closely related offenses arising from the same occurrence. Geiger, 45 Ohio St.2d at

242, 344 N.E.2d 133. This is a broad purpose and ought not to be watered down with

artificial and academic equivocation regarding the similarities of the crimes. When ‘in

substance and effect but one offense has been committed,’ the defendant may be

convicted of only one offense.      Botta, 27 Ohio St.2d at 203, 271 N.E.2d 776.”

Johnson, supra, at ¶ 43.

      {¶13} The court continued to state:

              [g]iven the purpose and language of R.C. 2941.25, and based on

      the ongoing problems created by Rance, we hereby overrule Rance to

      the extent that it calls for a comparison of statutory elements solely in the

      abstract under R.C. 2941.25. When determining whether two offenses
Licking County, Case No. 11-CA-91                                                  6


       are allied offenses of similar import subject to merger under R.C.

       2941.25, the conduct of the accused must be considered.

             In overruling Rance, we need not apply the test of Westfield v.

       Galatis, 100 Ohio St.3d 216, 2003–Ohio–5849, 797 N.E.2d 1256,

       because R.C. 2941.25 is a prophylactic statute that protects a criminal

       defendant's rights under the Double Jeopardy Clauses of the United

       States and Ohio Constitutions.      Because there is a constitutional

       protection underlying the proper application of R.C. 2941.25, stare

       decisis does not compel us with the same force as it does in other areas

       of the law. See, e.g., State v. Bodyke, 126 Ohio St.3d 266, 2010–Ohio–

       2424, 933 N.E.2d 753, ¶ 35–37.

Id. at ¶¶ 44–45.

       {¶14} Accordingly, the new standard as set forth in Johnson appears to be the

following:

             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.

       Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J.,

       concurring) (“It is not necessary that both crimes are always committed

       by the same conduct but, rather, it is sufficient if both offenses can be

       committed by the same conduct. It is a matter of possibility, rather than

       certainty, that the same conduct will constitute commission of both
Licking County, Case No. 11-CA-91                                                     7


       offenses.” [Emphasis sic]). 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.” Brown, 119 Ohio St.3d 447, 2008–Ohio–4569, 895 N.E.2d 149, at

       ¶ 50 (Lanzinger, J., dissenting).

              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 ¶ 48-51.

       {¶15} At the time of sentencing, appellee did not object to the lack of merger.

Counsel mentioned during the hearing that merger was discussed at pretrial. Because

there was no objection, our review of this matter is subject to a plain error standard.

State v. Lemmons, 5th Dist. No. 10-CA-48, 2011-Ohio-3322, ¶ 40. However, the Ohio

Supreme Court has held that it was plain error to sentence a defendant for multiple

counts that were allied offenses of similar import. State v. Underwood, 124 Ohio St.3d
Licking County, Case No. 11-CA-91                                                   8

365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1,

2004-Ohio-6087, 817 N.E.2d 845.

       {¶16} The Ohio Supreme Court held in State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 122, that upon guilty verdicts on allied offenses, the state

must elect which of the offenses it chooses to seek sentencing for, and the court must

accept the state’s choice and merge the crimes into a single offense for purposes of

sentencing. Id. at ¶ 24.

       {¶17} Applying Johnson to the facts of this case, we find the breaking and

entry and possession of criminal tools stem from appellant’s conduct of using a crow

bar to enter the business to steal items. Appellant committed both offenses through a

single course of conduct and with single state of mind. Therefore, the charges are

allied offenses and should have been merged. The state retains the right to elect

which allied offense to pursue on resentencing.

       {¶18} The assignment of error is sustained.
Licking County, Case No. 11-CA-91                                          9


      {¶19} We therefore reverse the sentence of the Licking County Court of

Common Pleas and remand this matter to the trial court for resentencing.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. W. SCOTT GWIN



                                      HON. JOHN W. WISE
[Cite as State v. VanValkenburg, 2012-Ohio-1213.]


              IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT

STATE OF OHIO                                         :
                                                      :
                                                      :
                       Plaintiff-Appellee             :
                                                      :
-vs-                                                  :   JUDGMENT ENTRY
                                                      :
PAUL VANVALKENBURG                                    :
                                                      :
                                                      :   Case No. 11-CA-91
                      Defendant-Appellant             :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is reversed. The cause is remanded to the

trial court for resentencing. Costs assessed to appellee.




                                                    HON. PATRICIA A. DELANEY



                                                    HON. W. SCOTT GWIN



                                                    HON. JOHN W. WISE
