Summary
holding that "a motion to dismiss acts to toll the time in which a defendant must be brought to trial. * * * Therefore, the time that elapsed while the motions were pending is not included for purposes of R.C. 2945.71."
Summary of this case from State v. CimpayeOpinion
No. 83-85
Decided April 11, 1984.
Criminal law — Aggravated murder, R.C. 2903.01, not allied offense of aggravated robbery, R.C. 2911.01 — R.C. 2941.25(A).
O.Jur 3d Criminal Law §§ 398, 1055.
Aggravated murder, as defined in R.C. 2903.01, is not an allied offense of similar import to aggravated robbery, as defined in R.C. 2911.01, for purposes of R.C. 2941.25(A).
APPEAL from the Court of Appeals for Medina County.
This case stems from multiple crimes committed by the appellant, Teresa M. Bickerstaff, and a lengthy criminal proceeding resulting therefrom.
From the record, it is apparent that appellant and a male companion decided to run away because her parents did not approve of their relationship. Part of their plan was to take various handguns and rifles that belonged to appellant's father, Fred Bickerstaff, Sr. The guns were to be sold in order to provide the couple with spending money. They also planned to take an automobile owned by appellant's father.
After her father went to work during the late evening hours of August 28, 1980, appellant took a handgun from a dresser drawer in her parents' bedroom while her mother was asleep downstairs. Shortly after her mother retired for the evening, appellant's companion came to the Bickerstaff home and assisted her in gathering additional items. Appellant proceeded to take a .22 caliber rifle owned by Fred Bickerstaff, Jr., and an antique shotgun owned by her father. Teresa also confiscated money, a checkbook, and a set of car keys from her mother's purse, as well as her mother's coat from a closet within the residence. From the record, it is apparent that appellant had the handgun in her possession when she confiscated the above-mentioned items.
While appellant was collecting her own clothing, she was confronted by Mrs. Bickerstaff. The record indicates that Teresa fatally shot her mother. Appellant also shot and wounded two younger brothers who awoke during the argument. A short time later, she returned and inflicted fatal gunshot wounds to the children. Thereupon, her companion obtained gasoline and set the house ablaze. The couple then stole the vehicle and left the scene of the crimes.
Appellant was arrested on October 4, 1980 for the murders of her mother and two brothers. Being a minor, Bickerstaff appeared before the Medina County Juvenile Court which bound her over as an adult to the Medina County Grand Jury. The juvenile court thereby relinquished jurisdiction on October 28, 1980.
The grand jury returned an indictment in November 1980 on three counts of aggravated murder and one count of grand theft. The grand theft charge included the automobile and firearms stolen from members of the Bickerstaff family. In January 1981, appellant was further indicted on three counts of aggravated robbery, and three counts of aggravated murder pursuant to this state's felony murder statute.
Appellant made numerous pretrial motions, including a motion for a continuance and two motions for psychiatric examinations. Finally, on May 19, 1981, appellant appeared and pled guilty to the grand theft charge contained in the November indictment. Immediately thereafter, she moved to dismiss all charges within the January indictment on the basis that her plea of guilty to grand theft precluded a conviction for aggravated robbery.
The trial court sustained appellant's motion and dismissed the January indictment. The court of appeals reversed the dismissal by holding that the guilty plea was merely a severance of a single prosecution and not a violation of double jeopardy. See State v. Bickerstaff (1981), 2 Ohio App.3d 153. This court subsequently overruled appellant's motion for leave to appeal.
On remand, the jury found appellant not guilty on the three counts of aggravated murder contained in the November indictment, but found her guilty of three lesser included offenses of murder. The jury also returned guilty verdicts on three counts of aggravated robbery and three counts of aggravated murder under the January indictment.
The six homicide verdicts were merged for the purpose of sentencing. Thereupon, appellant received a life sentence for one count of aggravated murder, and sentences of fifteen years to life for two lesser included murder offenses. In addition, appellant was sentenced to five to twenty-five years for each count of aggravated robbery, and two to five years for grand theft. The sentences were ordered to run concurrently with the exception of the lesser included murder convictions which were ordered to run consecutively.
The court of appeals upheld the trial court's determination in allowing the jury to consider the aggravated robbery charges even though appellant had previously pled guilty to grand theft. However, the court ruled that an aggravated robbery conviction precluded a conviction for the underlying grand theft offense and, thereby, vacated the grand theft conviction. The appellate court also vacated one of three aggravated robbery convictions, as it found that only two separate offenses were committed against Fred Bickerstaff, Sr.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Gregory W. Happ, prosecuting attorney, Mr. Dean Holman and Mr. John N. Porter, for appellee.
Messrs. Palecek, McIlvaine Foreman and Mr. James R. McIlvaine, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. George J. Sadd, urging affirmance for amicus curiae, Cuyahoga County Prosecutor.
The issues presented on appeal are twofold. One, does the Ohio multiple-count statute, as provided in R.C. 2941.25, bar appellant's convictions for aggravated robbery and aggravated murder? And, two, was there a violation of appellant's right to a speedy trial pursuant to R.C. 2945.71 et seq.?
The court of appeals answered each of the above issues in the negative. For the reasons set forth below, we affirm.
As a prelude to the first issue, we feel compelled to address whether appellant's guilty plea to grand theft invokes double jeopardy protection against the charges for aggravated robbery and aggravated murder based upon felony murder.
It is well-established that the Double Jeopardy Clause prohibits the state from trying a defendant for a greater offense after a conviction of a lesser included offense. Brown v. Ohio (1977), 432 U.S. 161. However, in the case sub judice, we are not confronted with a previous conviction of a lesser included offense.
Appellant no longer stands convicted of grand theft as the court of appeals vacated that portion of the jury's verdict. Notwithstanding that fact, we believe that appellant committed numerous crimes which were distinctly separate and her guilty plea to grand theft was nothing more than her election to sever a portion of a single prosecution. See Jeffers v. United States (1977), 432 U.S. 137. In reality, counsel has attempted to create an issue of double jeopardy where none had previously existed.
In specifically addressing the first issue, appellant argues that Ohio's multiple-count statute as set forth in R.C. 2941.25 bars her convictions for grand theft, aggravated robbery, and aggravated murder. However, as previously stated, the appellate court vacated appellant's grand theft conviction. Therefore, we need not address the issue of whether grand theft is a lesser included offense of aggravated robbery as in the absence of a cross-appeal by the prosecution the grand theft conviction is not before this court.
Also due to the appellate court's ruling, we are not confronted with the situation presented in State v. Johnson (1983), 6 Ohio St.3d 420, certiorari granted (1984), 52 U.S.L.W. 3550. In Johnson, this court held that aggravated robbery was an allied offense of similar import to theft for the purposes of R.C. 2941.25(A), and that a conviction for involuntary manslaughter entered upon a guilty plea barred a subsequent conviction for murder under the Double Jeopardy Clause, since involuntary manslaughter was a lesser included offense of murder. Id. at paragraphs one and two of the syllabus. However, with the absence of the underlying theft offense in the present appeal, we must only ascertain whether appellant may be consecutively sentenced on her numerous convictions for aggravated robbery and aggravated murder.
In determining the constitutionality of a trial court's imposition of consecutive sentences in a single criminal proceeding, the ambit of appellate review is limited to insure that the trial judge did not exceed the sentencing authority granted by the General Assembly. Missouri v. Hunter (1983), 74 L.Ed. 2d 535; Albernaz v. United States (1981), 450 U.S. 333, 344; Whalen v. United States (1980), 445 U.S. 684, 688-689; Brown, supra, at 165; State v. Moss (1982), 69 Ohio St.2d 515 [23 O.O.3d 447], paragraph one of the syllabus, certiorari denied (1983), 75 L.Ed. 2d 430. Therefore, the dispositive question is whether the General Assembly authorized separate punishments for the crimes committed by the appellant.
To answer this inquiry, we must indeed turn to this 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."
In State v. Moss, supra, at 519, this court found that the clear language of the statute "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." Today, we reaffirm this interpretation of the statute and note that the standard is disjunctive in nature. Furthermore, we are of the opinion that the crimes of aggravated robbery and aggravated murder are not allied offenses of similar import.
In reaching this conclusion we are guided by principles set forth in previous decisions of this court. In State v. Donald (1979), 57 Ohio St.2d 73 [11 O.O.3d 242], we recognized that in order for two crimes to constitute allied offenses, the crimes and their elements must correspond to such a degree that commission of one offense constitutes commission of the other offense. See, also, State v. Logan (1979), 60 Ohio St.2d 126 [14 O.O.3d 373].
Further, in State v. Moss, supra, we held that aggravated burglary and aggravated murder were not allied offenses of similar import. Id. at paragraph two of the syllabus. In explaining our rationale, Justice Locher stated, "[t]he two offenses are not prerequisites, one for the other. To consummate either offense, the other need not be committed. Aggravated murder and aggravated burglary are never merely incidental to each other * * *." State v. Moss, supra, at 520.
Today, we find that aggravated murder, as defined in R.C. 2903.01, is not an allied offense of similar import to aggravated robbery, as defined in R.C. 2911.01, for purposes of R.C. 2941.25(A). Clearly, the crimes and their elements do not correspond to such a degree that commission of one offense constitutes commission of the other, nor is the commission of one merely incidental to the other. Thus, the trial judge acted within the sentencing authority of R.C. 2941.25(B) when he sentenced appellant on the convictions for aggravated robbery and aggravated murder.
Inasmuch as it is apparent from a reading of R.C. 2941.25 that the trial court did not exceed its sentencing authority, appellant nonetheless contends that the rule pronounced in Blockburger v. United States (1932), 284 U.S. 299, compels this court to reach a contrary result. However, we do not need to resort to the Blockburger test in determining the constitutionality of the trial court's pronouncement of sentence. In Albernaz, supra, at 340, the United States Supreme Court recognized that the rule pronounced in Blockburger is a rule of statutory construction and is not controlling where there is a clear indication of legislative intent. See, also, Hunter, supra. We believe that R.C. 2941.25 is a clear indication of the General Assembly's intent to permit cumulative sentencing for the commission of certain offenses. We, therefore, decline to apply the Blockburger test in the case sub judice.
Finally, appellant contends that she was not brought to trial on the charges contained in the January indictment in a timely manner pursuant to the requirements of R.C. 2945.71. Appellant asserts that the numerous motions presented to the court on her behalf were made in reference to charges within the November indictment and did not apply to the January indictment. We are not persuaded by appellant's argument as it does not reach the crux of this issue.
Under R.C. 2945.71(C)(2), a person against whom a felony charge is pending must be brought to trial within two hundred and seventy days after arrest. In addition, each day that the accused is incarcerated in lieu of bail is counted as three days under the statute.
R.C. 2945.72 allows certain well-defined extensions of time in calculating the speedy trial requirement of R.C. 2945.71. Specifically, division (E) provides:
"Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused."
It is evident from a reading of the statute that a motion to dismiss acts to toll the time in which a defendant must be brought to trial. Appellant filed separate motions to dismiss the January indictment on January 13 and 20, 1981. The trial court did not rule upon the motions until May 11, 1981. Therefore, the time that elapsed while the motions were pending is not included for purposes of R.C. 2945.71.
The time for speedy trial commences to run the day after a juvenile court relinquishes jurisdiction. See State, ex rel. Williams, v. Court of Common Pleas (1975), 42 Ohio St.2d 433, 435 [71 O.O.2d 410]. Under the facts of this case, appellant was bound over to the grand jury on October 28, 1980. Therefore, time began to run on October 29, 1980. However, even including the time that the first indictment was pending, as required by State v. Bonarrigo (1980), 62 Ohio St.2d 7 [16 O.O.3d 4], appellant was timely brought to trial on May 19, 1981, as ninety days had not elapsed on such date.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.