State v. Moore, 84-542

• Decision Date: 03 April 1985
• Docket Number: No. 84-542,84-542
• Citation: 476 N.E.2d 355,16 Ohio St.3d 30
• Parties: , 16 O.B.R. 410 The STATE of Ohio, Appellee, v. MOORE, Appellant.
• Court: Ohio Supreme Court

Page 30

16 Ohio St.3d 30

476 N.E.2d 355, 16 O.B.R. 410

The STATE of Ohio, Appellee, v. MOORE, Appellant.

No. 84-542.

Supreme Court of Ohio.

April 3, 1985.

Syllabus by the Court

Prior to July 1, 1983, the sentence of an individual convicted of a violation of R.C. 2911.01(A)(1) was subject to enhancement pursuant to R.C. 2929.71(B), regardless of whether the offender was an unarmed accomplice or principal.

On January 15, 1983, Larry Dean Moore, appellant herein, and Edward Lee Cession entered a dry cleaning store located in Summit County. Cession pulled out a gun and pointed it at the clerk behind the counter. Appellant pushed the clerk aside and placed the cash drawer into a bag. Appellant and Cession then left the store.

Cession was arrested several days later and implicated appellant as a participant in the crime. Cession pled guilty and agreed to testify against appellant.

Appellant was indicted for aggravated robbery under R.C. 2911.01(A)(1). Appellant's first trial resulted in a hung jury. Appellant was convicted at his second trial and sentenced to an indeterminate term of six to twenty-five years with an additional term of three years of actual incarceration pursuant to R.C. 2929.71, both terms to run consecutively.

The court of appeals upheld appellant's conviction and sentence, holding, inter alia, that an unarmed accomplice to an armed robbery is subject to the enhanced penalty provisions of R.C. 2929.71.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Lynn C. Slaby, Pros. Atty., and Philip D. Bogdanoff, Akron, for appellee.

J. Dean Carro, Akron, and Appellate Review Office, School of Law, University of Akron, for appellant.

CELEBREZZE, Chief Justice.

The question posed by this appeal is whether an unarmed accomplice to an armed robbery, convicted of violating R.C. 2911.01(A)(1), is subject to the enhancement provision of R.C. 2929.71 as it existed prior to the amendment of R.C. 2929.71 effective July 1, 1983.

Prior to July 1, 1983, R.C. 2929.71 read in part as follows:

"(B) The court shall impose a term of actual incarceration of three years in addition to imposing an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code if the offender is convicted of, or pleads guilty to, a violation of division (A)(2) of section 2903.11 or 2903.12, division (A)(1) of section 2911.01, division (A)(2) of section 2911.11, or division (A)(3) of section 2917.02 of the Revised Code for which violation the use of a firearm, or the offender's having a firearm on or about his person or under his control, is an element of the offense. * * * " ¹

Appellant was found guilty of violating R.C. 2911.01(A)(1) which, at the time of appellant's conviction, read:

"No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:

"(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control;"

R.C. 2911.01(B) read:

"Whoever violates this section is guilty of aggravated robbery, an aggravated felony of the first degree. If the deadly weapon that the offender had on or about his person or under his control in violating division (A)(1) of this section was a firearm, as defined in section 2923.11 of the Revised Code, the offender shall be sentenced to a term of actual incarceration of three years and an indefinite term of imprisonment pursuant to division (B) of section 2929.71 of the Revised Code." ²

The parties herein agree that appellant was unarmed throughout the commission of the instant offense. Appellant contends that, as such, he is not subject to enhancement of his sentence pursuant to R.C. 2929.71(B), inasmuch as the state never established that appellant had a firearm on or about his person or under his control during the commission of the offense. The state maintains that, as long as appellant was found guilty of one of the offenses enumerated in R.C. 2929.71(B), enhancement under that same section is proper. We agree with the state's interpretation of R.C. 2929.71(B) as it existed prior to July 1, 1983.

At that time, R.C. 2929.71(B) specifically required enhancement of sentences for violations of R.C. 2903.11(A)(2), 2903.12(A)(2), 2911.01(A)(1), 2911.11(A)(2) and 2917.02(A)(3). Each of the foregoing offenses has as an element thereof, generally, the use, possession, or control of a firearm. Nevertheless, there is no requirement that the state establish an additional element of possession or control of a firearm in order to invoke the enhancement provision under former R.C. 2929.71(B). Rather, all that is necessary is that the offender be convicted of or plead guilty to one of the offenses enumerated in R.C. 2929.71(B). ³

In the case at bar, appellant was indicted for and convicted of, a violation of R.C. 2911.01(A)(1), a felony listed in former R.C. 2929.71(B). It follows that appellant is thus subject to enhancement of his sentence pursuant to R.C. 2929.71(B).

We are unpersuaded by appellant's argument that, as an unarmed accomplice, he is not subject to former R.C. 2929.71(B). At the time of appellant's conviction, R.C. 2929.71(B) spoke to convictions for a specified group of offenses and not to the necessity of establishing a further element of possession or control of a firearm. R.C. 2923.03(F) provides that an accomplice "shall be prosecuted and punished as if he were a principal offender." Furthermore, R.C. 2923.03(F) goes on to...