State v. Moss

• Decision Date: 03 March 1982
• Docket Number: No. 81-515,81-515
• Parties: , 23 O.O.3d 447 The STATE of Ohio, Appellant, v. MOSS, Appellee.
• Court: Ohio Supreme Court

Page 515

69 Ohio St.2d 515

433 N.E.2d 181, 23 O.O.3d 447

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

No. 81-515.

Supreme Court of Ohio.

March 3, 1982.

Syllabus by the Court

1. In determining the constitutionality of the trial court's imposition in a single criminal proceeding of consecutive sentences, appellate review is limited to ensuring that the trial court did not exceed the sentencing authority which the General Assembly granted it. (Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275; Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715; Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, approved and followed.)

2. Aggravated murder, as defined by R.C. 2903.01(B), is not an "allied offense of similar import" to aggravated burglary, as defined by R.C. 2911.11(A)(1), for purposes of application of R.C. 2941.25(A).

3. The Blockburger test is a rule of statutory construction that is inapplicable where the intent of the General Assembly is manifest. (Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275; Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 approved and followed.)

4. The Blockburger test is not to be used alone to ascertain legislative intent, but is to be utilized in conjunction with other tests employed for purposes of statutory construction.

William L. Moss was indicted by the Franklin County grand jury for aggravated murder, in violation of R.C. 2903.01(B), ¹ and aggravated burglary, in violation of R.C. 2911.11(A)(1). ² Moss was tried to a jury.

Evidence adduced at the trial tended to show that, on January 23, 1980, at approximately 2:30 p. m. Moss illicitly entered the home of David and Virginia Adams, located at 2908 London-Groveport Road in Franklin County, Ohio, in order to steal Adams' coin collection and guns. After ransacking a bedroom in the house, where he found a pistol belonging to Adams, Moss was confronted by Adams who had just returned from work. Upon seeing Moss, Adams turned and ran; whereupon, Moss shot Adams first in the back and then again in the head to make certain that he was dead. Moss then removed money from Adams' billfold and departed.

Following the trial, the jury found Moss guilty of both offenses charged. The trial court sentenced Moss to life imprisonment on the charge of aggravated murder and seven to 25 years for aggravated burglary-the terms to run consecutively.

On appeal, the Court of Appeals affirmed the trial court's conviction and sentencing of Moss for aggravated murder but reversed the conviction and consecutive sentence for aggravated burglary, holding that the latter violated both the Double Jeopardy Clauses of the United States and Ohio Constitutions and the provisions of R.C. 2941.25.

The Court of Appeals finding its judgment to be in conflict with that of the Court of Appeals for Hamilton County, in State v. Lewingdon (December 24, 1980), No. C-790488, unreported, and with that of the Court of Appeals for Cuyahoga County, in State v. Jones (December 6, 1979), No. 39879, unreported, and State v. Zoppo (October 23, 1980), No. 41943, unreported, certified the record of the case to this court for review and final determination.

Michael Miller, Pros. Atty., and Alan C. Travis, Columbus, for appellant.

Michael Romanello, Columbus, for appellee.

LOCHER, Justice.

In a challenge predicated upon Ohio's multiple-count statute and the Double Jeopardy Clauses of both the United States and Ohio Constitutions appellant requests that this court reinstate appellee's conviction and sentence for aggravated burglary. Appellant contends that appellee's conviction and sentence in no way contravened his statutory and constitutional rights.

Any case which raises a constitutional question must first be approached by reciting the appropriate constitutional language. The Fifth Amendment to the United States Constitution provides, inter alia, " * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Similarly, Section 10 of Article I of the Ohio Constitution proclaims that " * * * No person shall be twice put in jeopardy for the same offense." Moreover, even absent the enactment of Ohio's constitutional provision prohibiting the placement of any person in double jeopardy, the Double Jeopardy Clause of the United States Constitution would still have been enforceable against the state through the Fourteenth Amendment. Benton v. Maryland (1968), 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707.

The apparent clarity of both the federal and state constitutional proscriptions against former jeopardy notwithstanding, the Double Jeopardy Clause has spawned a series of judicial interpretations that comprise a veritable labyrinth which would confound even the brightest jurisprudential scholars. ³ Nonetheless at least one principle has evolved through the decisions in the area of former jeopardy, that which delineates the scope of the safeguard that the Double Jeopardy Clause affords. The clause offers threefold protection for a defendant. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656. In the cause sub judice, it is the third of the tripartite guarantees that is in issue and which we address herein. Consequently, the decisional law pertaining to multiple punishments for the same criminal activity is the only constitutional focus for this court. Whalen v. United States (1980), 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (dissenting opinion by Mr. Justice Rehnquist). Thus, in the context of the case at bar, appellee's reliance on Harris v. Oklahoma (1977), 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054, its progeny and other cases of its genre, involving multiple prosecutions for the same crime, is misplaced.

Where, as here, it is asserted that the state, by levying in one criminal proceeding multiple punishments against a defendant for criminal activity emanating from one transaction, has contravened the defendant's constitutional rights, the courts have held that the proper ambit of appellate review is limited to ensuring that the trial court did not exceed the sentencing authority which the General Assembly has permitted the judiciary. Albernaz v. United States (1981), 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275; Whalen v. United States, supra; Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. R.C. 2929.41 does empower trial courts, in a single criminal proceeding, to sentence defendants to serve consecutive terms of imprisonment for the violation of more than one criminal statute. ⁴ The trial court's discretion to order such cumulative sentences is not, however, constitutionally unbridled. The General Assembly must have, in effect, authorized the imposition of the consecutive sentences.

In Brown v. Ohio, supra, the United States Supreme Court defined the scope of the test to be administered to determine the constitutionality of a court's levying of consecutive sentences against a defendant in one criminal proceeding. The court stated, 432 U.S. at page 165, 97 S.Ct. at 2225, " * * * (w)here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishment for the same offense." Thus, a determination of what punishments the General Assembly has authorized the court, in a single proceeding, to impose for conduct constituting both aggravated murder and the underlying felony of aggravated burglary must be made before the constitutionality of the trial court's sentencing of the appellee in the present case can be correctly appraised. Whalen v. United States, supra.

The only appropriate starting point for such an inquiry is the state's multiple-count statute, R.C. 2941.25, which provides:

"(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."

The General Assembly then has authorized trial courts, in a single criminal proceeding, to convict and to sentence a defendant for two or more offenses, having as their genesis the same criminal conduct or transaction, provided that the offenses (1) were not allied and of similar import, (2) were committed separately or (3) were committed with a separate animus as to each offense. We find that, as the offenses with which appellee was charged were not allied and were committed separately, the trial court did not exceed its legislatively- endowed authority by sentencing him to serve consecutive terms of imprisonment.

In interpreting State v. Donald (1979), 57 Ohio St.2d 73, 386 N.E.2d 1341, this court, in State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, declared at page 128, 397 N.E.2d 1345:

"In essence, Donald established that in order for two crimes to constitute allied offenses of similar import, there must be a recognized similarity between the elements of the crimes committed. The offenses and their elements must correspond to such a degree that commission of the one offense will result in the commission of the other." The court held, in State v. Donald, supra, that rape and kidnapping were "allied...