IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
:
:
:
MARLIN THOMAS,
Defendant-Appellant.
:
APPEAL NO. C-100321
TRIAL NO. B-0010201(A)
JUDGMENT ENTRY.
:
We consider this appeal on the accelerated calendar, and this judgment entry
is not an opinion of the court.1
Defendant-appellant Marlin Thomas appeals his convictions for four counts
of aggravated robbery, three counts of felonious assault, having a weapon while
under a disability, and receiving stolen property, with accompanying firearm
specifications.
In his first assignment of error, Thomas argues that he was denied due
process of law where the trial court’s sentencing entry “incorrectly state[d] the
imprisonment conditions on Count 5.” According to the sentencing entry, the trial
court merged count five with another count, so the court imposed no sentence for the
fifth count. However, the entry incorrectly stated that the sentence for count five was
to be consecutive to the sentences for several other counts.
Because no sentence had been imposed for count five, the entry’s statement
that the “sentence” for count five should be served consecutively was clearly a clerical
1
See S.Ct.R.Rep.Op. 3(A), App.R. 11.1(E), and Loc.R. 12.
OHIO FIRST DISTRICT COURT OF APPEALS
error. Accordingly, we overrule the first assignment of error. However, we remand
this case to the trial court to correct the clerical error in the sentencing entry.
In his second assignment of error, Thomas argues that the 45-year aggregate
prison term constituted cruel and unusual punishment as prohibited by the Eighth
Amendment to the United States Constitution.
Generally, a sentence that falls within the applicable statutory range cannot
amount to cruel and unusual punishment.2 In this case, none of Thomas’s sentences
exceeded the statutory range for the offense. The trial court imposed a maximum
prison term for only one of Thomas’s nine offenses. In light of the viciousness of
Thomas’s crime spree in which four victims were injured, the sentences were not
disproportionate to the seriousness of his conduct.3 Accordingly, we overrule the
second assignment of error.
In his third assignment of error, Thomas argues that his sentences were not
consistent with the sentencing factors under R.C. 2929.11 or 2929.12. But even
where the trial court does not explicitly put on the record its consideration of
applicable sentencing statutes, it is nonetheless presumed that the court properly
considered those statutes.4
In this case, the sentences reflected the consideration of the relevant
sentencing factors.5 In its consideration of the offenses, the trial court specifically
noted that Thomas and his associate had shot an elderly woman in the arm and had
pistol-whipped her in the head, breaking her nose. The two men had also shot a man
in one leg after robbing him, had stolen another’s wallet at gunpoint, and, as they
See McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69-70, 203 N.E.2d 334.
Id.
4 State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at fn. 4.
5 See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
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OHIO FIRST DISTRICT COURT OF APPEALS
were pursued by police, had rammed their van into another victim’s vehicle. In light
of the seriousness of the offenses, we cannot say that the trial court acted
unreasonably in imposing a significant term of imprisonment. We overrule the third
assignment of error.
In his fourth assignment of error, Thomas argues that he was improperly
convicted of multiple counts of aggravated robbery where the indictment was
defective due to the omission of mens rea elements for the offenses.
He was
convicted of three counts of aggravated robbery in violation of R.C. 2911.01(A)(1), as
well as one count of aggravated robbery in violation of R.C. 2911.01(A)(3). For each
of these counts, the indictment tracked the language of the applicable statute, so it
provided Thomas with adequate notice of the charges against him.6 Consequently,
the indictment was not defective. We overrule the fourth assignment of error.
In his fifth assignment of error, Thomas argues that the trial court erred by
imposing sentences for allied offenses of similar import. Thomas first argues that he
could not have been sentenced for both the aggravated robbery of Mary Barnett as
charged in count four of the indictment and the aggravated robbery involving
Anthony Jones as charged in count 14. Because the offenses were committed against
two different victims, they were of dissimilar import and separate sentences were
proper.7
But as for counts seven and eight, Thomas’s argument is well taken. In count
seven, he was charged with felonious assault in violation of R.C. 2903.11(A)(2), for
causing physical harm to Mary Barnett by means of a deadly weapon. In count eight,
he was charged with felonious assault in violation of R.C. 2903.11(A)(1), for causing
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7
State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶45.
See R.C. 2941.25(B); State v. Jones (1985), 18 Ohio St.3d 116, 480 N.E.2d 408.
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OHIO FIRST DISTRICT COURT OF APPEALS
serious physical harm to her. The evidence presented at trial was that Thomas and a
codefendant had stolen Barnett’s purse, pistol-whipped her, and shot her in the arm.
Felonious assault as defined in R.C. 2903.11(A)(1) and felonious assault as
defined in R.C. 2903.11(A)(2) are allied offenses of similar important, so a defendant
cannot be convicted of both offenses where both are committed with a single animus
against the same victim.8 Therefore, the trial court erred by sentencing Thomas for
both felonious assaults against Barnett. We sustain the fifth assignment of error in
part and overrule the assignment of error in part.
Consequently, we vacate the sentences imposed for felonious assault as
charged in counts seven and eight of the indictment and remand the case for
resentencing for only one of the two offenses. Moreover, the trial court is to correct
the clerical error in its sentencing entry in accordance with our discussion of the first
assignment of error. In all other respects, we affirm the judgment of the trial court.
A certified copy of this judgment entry is the mandate, which shall be sent to
the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
HILDEBRANDT, P.J., HENDON and DINKELACKER, JJ.
To the Clerk:
Enter upon the Journal of the Court on December 1, 2010
per order of the Court ____________________________.
Presiding Judge
See State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, paragraph two of the
syllabus.
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