State v. Bollar

172 N.E.3d 499

STATE of Ohio, Plaintiff-Appellee

v.Marquis BOLLAR, Defendant-Appellant

No. 2020 CA 00077

Court of Appeals of Ohio, Fifth District, Stark County.

DATE OF JUDGMENT ENTRY: May 5, 2021

KYLE L. STONE, Prosecuting Attorney, 110 Central Plaza South, Ste. 510, Canton, OH 44702, For Plaintiff-Appellee.

TY GRAHAM, 4450 Belden Village Street N.W., Suite 703, Canton, OH 44718, For Defendant-Appellant.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Earle E. Wise, J.

OPINION

Gwin, P.J.

{¶1} Defendant-Appellant Marquis Bollar ["Bollar"] appeals the March 17, 2020 judgment of conviction and sentence of the Stark County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On August 13, 2019, Bollar shot and killed Erica DeLong. At the time of the shooting, Bollar was a convicted felon under disability and was not permitted to possess a firearm.

{¶3} On October 17, 2019, the Stark County Grand Jury returned a four-count indictment charging Bollar as follows:

Count one – felony murder;

Count two – involuntary manslaughter;

Count three – felonious assault;

Count four – having weapons under disability.

{¶4} Each count of the indictment contained a firearm specification.

{¶5} On March 6, 2020, the state dismissed count one of the indictments and Bollar entered pleas of guilty to counts two through four and the attendant gun specifications.

{¶6} During the sentencing hearing Bollar argued, and the state did not dispute that counts two and three, involuntary manslaughter and felonious assault merged for purposes of sentencing but having weapons under disability did not. Transcript of trial (T.) 30, 32, 34.

{¶7} The state argued, however, R.C. 2929.14(B)(1)(g) required two of the three gun specifications to run consecutively to one another and consecutive to the underlying charge. T. 29-30. Counsel for Bollar disagreed, and advanced an allied offenses argument – that all three specifications were the result of one act by one person and therefore only one gun specification could be imposed. T. 35

{¶8} After taking a recess to consider matters presented during Bollar's plea as well as the application of R.C. 2929.14(B)(1)(g), the trial court sentenced Bollar to a minimum mandatory sentence of 11 years for involuntary manslaughter. The court additionally imposed three years for the attendant firearm specification and ordered Bollar to serve that sentence prior to any other sentence. T. 51.

{¶9} While the trial court imposed no sentence for the merged felonious assault, it found it was required to impose the attached gun specification and sentenced Bollar to three years on the specification. T. 51.

{¶10} For having weapons under disability, the trial court imposed a thirty-six-month sentence and merged the attendant firearm specification. After making the appropriate findings, the trial court ordered Bollar to serve this sentence consecutive to his sentence for involuntary manslaughter and the two gun specifications for an aggregate minimum term of 20 years to a maximum term of 25.5 years. T. 52-54.

Assignment of Error

{¶11} Bollar raises one Assignment of Error,

{¶12} "THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING APPELLANT TO SERVE MAXIMUM CONSECUTIVE SENTENCES."

Law and Analysis

{¶13} In his sole assignment of error, Bollar argues the trial court erred when it sentenced him to three years for the firearm specification attendant to the charge of felonious assault after it had merged the charges of involuntary manslaughter and felonious assault as allied offenses. Bollar argues because the two charges merged, he could only be sentenced for one firearm specification and therefore his sentence is contrary to law. We disagree.

Standard of Appellate Review

{¶14} Bollar's argument centers on an issue of law, not the discretion of the trial court. " ‘When a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6 ; Huntsman v. Aultman Hosp ., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13."

State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶6. Because the assignment of error involves the interpretation of a statute, which is a question of law, we review the trial court's decision de novo. Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 ; Accord, State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9 ; Hurt v. Liberty Township, Delaware County, OH, 5th Dist., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 31.

Issue for Appellate Review : Whether R.C. 2929.14(B)(1)(g) creates a statutory exemption to the merger of multiple firearm specifications when the underlying felonies are merged at sentencing as allied offenses of similar import pursuant to R.C. 2929.14(C)(4).

1. "Same Act or Transaction" and "Allied Offenses"

{¶15} R.C. 2941.25 states:

(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.

{¶16} Under R.C. 2941.25(B), the allied offenses statute, a defendant whose conduct supports multiple offenses may be convicted of all offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, syllabus. In Ruff, the Court further held that "two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. (Emphasis added).

{¶17} Ordinarily, the trial court is forbidden from imposing sentences on multiple firearm specifications for "felonies committed as part of the same act or transaction." R.C. 2929.14(B)(1)(b). In State v. Wills , the Ohio Supreme Court defined "transaction" as used in former R.C. 2929.71(B), the predecessor to the statute in question, as "* * * a series of continuous acts bound together by time, space and purpose and directed toward a single objective." 69 Ohio St.3d 690, 691, 635 N.E.2d 370 (1994).

{¶18} In the case at bar, the trial court merged the offense of involuntary manslaughter and the offense of felonious assault for purposes of sentencing as allied offenses. Thus, the trial court would necessarily have found that the crimes were not of dissimilar import, that the crimes were not committed separately, and that the offenses were not committed with a separate animus. Thus, these allied offenses must necessarily have been committed as a series of continuous acts bound together by time, space and purpose and directed toward a single objective. In other words, the involuntary manslaughter and the felonious assault offenses were committed as part of the same act or transaction.

2. The Legislative Authorized Exception

{¶19} Except under circumstances not relevant to the case at bar, R.C. 2929.14(B)(1)(a) mandates the imposition of a prison sentence for an individual who pleads guilty to or is convicted of a firearm specification under R.C. 2941.141.

{¶20} R.C. 2929.14(B)(1)(b) contains an exception to the general rule that the trial court is forbidden from imposing sentences on multiple firearm specifications for "felonies committed as part of the same act or transaction." The statute provides the following exemption, "Except as provided in division (B)(1)(g) of this section , a court shall not impose more than one prison term on an offender under division (B)(1)(a) of this section for felonies committed as part of the same act or transaction." (Emphasis added). R.C. 2929.14(B)(1)(g), the exception statute, states:

If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.

Emphasis added. The statute does not require that "an offender be sentenced " for two or more felonies; rather, the statute only requires that an offender be "convicted or plead guilty " to two or more felonies.

{¶21} In the case at bar, Bollar plead guilty to both involuntary manslaughter with a firearm specification and felonious assault with a firearm specification. Of importance to the resolution of the issue in this case is that the plea of guilty by Bollar to the felonious assault offense did not cease to exist when the trial court merged the felonies as allied offenses for purposes of sentencing.

3. Convictions and Merger of Allied Offenses

{¶22} In State v. Whitfield, the ...