Opinion
No. 109100
02-03-2021
STATE OF OHIO, Plaintiff-Appellee, v. RANDY COTTINGHAM, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Janna R. Lifford, Assistant Prosecuting Attorney, for appellee. Russell S. Bensing, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION GRANTED, SENTENCE VACATED IN PART, AND REMANDED Cuyahoga County Court of Common Pleas
Case No. CR-18-625113-A
Application for Reopening
Motion No. 542499
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Janna R. Lifford, Assistant Prosecuting Attorney, for appellee. Russell S. Bensing, for appellant. KATHLEEN ANN KEOUGH, J.:
{¶ 1} On November 25, 2020, the applicant, Randy Cottingham, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Cottingham, 8th Dist. Cuyahoga No. 109100, 2020-Ohio-4220, in which this court affirmed his convictions and sentences for multiple counts of aggravated burglary, aggravated robbery, kidnapping, theft, grand theft, improperly discharging into habitation, felonious assault, identity fraud, Medicaid fraud, forgery, carrying a concealed weapon, receiving stolen property, tampering with evidence, improperly handling firearms in a motor vehicle, drug possession, drug trafficking, possession of criminal tools, and having weapons while under disability. Cottingham now submits that his appellate counsel should have argued that the aggravated burglary counts merged as allied offenses. On December 28, 2020, the state of Ohio filed its brief in opposition. For the following reasons, this court grants the application to reopen, reinstates this appeal, and then remands the case to the trial court to merge the aggravated burglary counts and impose sentence on the count chosen by the state.
{¶ 2} On August 16, 2017, Myles McCall was having sex with his girlfriend in the girlfriend's bedroom. Cottingham, who had been the girlfriend's boyfriend, kicked in the bedroom while holding a gun. He fought with the girlfriend, hitting her numerous times in the head with his gun and kicking her in the stomach. Cottingham told McCall that the only thing that would make him happy would be money. Unsatisfied with McCall's credit card, he led McCall out of the house at gunpoint to go to an ATM machine. As they were entering an alley, McCall was able to run away and sought help at the CMHA police station.
{¶ 3} From this incident, the grand jury indicted Cottingham for four counts of aggravated burglary as follows: one count under R.C. 2911.11(A)(1) for recklessly inflicting or attempting or threatening to inflict physical harm on the girlfriend while committing burglary, one count under R.C. 2911.11(A)(1) for recklessly inflicting or attempting or threatening to inflict physical harm on McCall while committing burglary, one count under R.C. 2911.11 (A)(2) for committing burglary while having a deadly weapon under his control and specifying the girlfriend, and one count under R.C. 2911.11(A)(2) for committing burglary while having a deadly weapon under his control and specifying McCall. The grand jury also indicted Cottingham for two counts of aggravated robbery, two counts of kidnapping, and one count of theft. All these counts contained one- and three-year firearm specifications.
The other counts of the indictment concerned subsequent or independent events.
{¶ 4} The jury convicted Cottingham on all counts concerning the August 16, 2017 burglary. At sentencing, the trial judge merged the two burglary counts specifying the girlfriend and merged the two burglary counts specifying McCall. The judge imposed a seven-year sentence on each of the burglary counts, consecutive to the three-year firearm specifications. The judge ordered the two seven-year sentences for burglary to be served concurrently, but the two firearm specifications were to be served consecutively.
Cottingham's total sentence for this case was 23 years.
{¶ 5} Appellate counsel argued the following: (1) The verdict was not supported by sufficient evidence. (2) The verdict was against the manifest weight of the evidence. (3) The judge improperly joined the trial of the August 16, 2017 incident with subsequent incidents. (4) The judge improperly allowed other acts evidence. (5) The judge improperly allowed evidence of Cottingham's juvenile record. (6) The judge improperly imposed consecutive sentences.
{¶ 6} Cottingham now argues that his appellate counsel was ineffective for failing to assign as error that the two counts of aggravated burglary merged. In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. This argument is well-taken.
{¶ 7} R.C. 2941.25(A) provides: "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." Thus, the General Assembly intended not to punish conduct repeatedly when the same conduct amounts to two or more offenses. Furthermore, even if the sentences for the offenses that should be merged are to be served concurrently, the defendant is still prejudiced by having more convictions than are authorized by law. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.
{¶ 8} In State v. White, 8th Dist. Cuyahoga No. 92972, 2010-Ohio-2342, this court ruled that aggravated burglary offenses charged under R.C. 2911.11(A)(1) and (A)(2) are allied offenses. Both subsections "protect the same societal interest in reducing the risk of harm to persons present in a dwelling during a burglary. * * * With both subsections designed to protect the same societal interest, we find that they are allied offenses." White at ¶ 42. Furthermore, once the trespass has occurred, the crime is complete, and the number of people in the dwelling does not create a separate animus for each person. This court held "[t]he numbers of victims present inside the house was immaterial to the trespass count — there was only one house, so only one trespass." White at ¶ 43. This court concluded "that aggravated burglary under R.C. 2911.11(A)(1) and (A)(2) were allied offenses of similar import" and that the defendant could only be sentenced on one of those two counts, even though the defendant broke into a family's house in which several people were present. Similarly, in State v. Craig, 8th Dist. Cuyahoga No. 94455, 2011-Ohio-206, this court merged two counts of aggravated burglary under R.C. 2911.11 (A)(1) and (A)(2); although in that case, there was only one victim.
{¶ 9} In State v. Lynott, 8th Dist. Cuyahoga No. 89079, 2007-Ohio-5849, Lynott and two companions entered a house and fought and injured several people. A jury found him guilty of three counts of aggravated burglary. This court found plain error in convicting Lynott of more than one count of aggravated burglary. It reasoned that the offense of burglary is intended to punish "the breaking of the close." Although aggravated burglary raises the degree of offenses if certain factors attend the offender's entry, "it does not contain an additional penalty for each person affected by the conduct." Lynott at ¶ 29. Accordingly, it ordered two of the convictions for aggravated burglary vacated. This court reached the same result in State v. Williams, 8th Dist. Cuyahoga No. 96752, 2012-Ohio-1043.
{¶ 10} Other Ohio courts of appeals have also ruled that aggravated burglary offenses are allied offenses that should be merged. The Second District addressed this issue on an App.R. 26(B) application to reopen and concluded that the offenses of aggravated burglary merged even when there are separate victims for each count. State v. Marriott, 189 Ohio App.3d 98, 2010-Ohio-3115, 937 N.E.2d 614 (2d Dist.). It also affirmed the merger of aggravated burglary counts under R.C. 2911.11 (A)(1) and (A)(2) in State v. Brewer, 2d Dist. Montgomery No. 24109, 2011-Ohio-2966. In State v. Burton, 7th Dist. Jefferson No. 13 JE 39, 2015-Ohio-2247, Burton was convicted and sentenced on three counts of aggravated burglary, each count naming a different victim. The Seventh District ruled that the three counts merged. Burglary offenses punish trespass, and if there is only one trespass into one structure, there is only one burglary offense regardless of the number of people in the house. The Eleventh District has ruled that "although the indictment lists separate victims for each of appellant's two counts of Aggravated Burglary, both counts stemmed from the same trespass. Therefore, the two counts of Aggravated Burglary are allied offenses of similar import that must merge." State v. Long, 11th Dist. Lake No. 2017-L-094, 2018-Ohio-3013, ¶ 72.
{¶ 11} In its brief in opposition, the state of Ohio invokes the general principle that counts that involve separate victims do not merge. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892; State v. Johnson, 8th Dist. Cuyahoga No. 108311, 2020-Ohio-568; and State v. Crawley, 8th Dist. Cuyahoga No. 99636, 2014-Ohio-921. However, these cases are distinguishable. Johnson and Crawley concern arson cases, not burglary cases. Ruff concerns multiple, different incidents of rape and aggravated burglary on different dates. Weighing these cases against the decisions of this court and other district courts of appeals that address the specific issue of whether counts of aggravated burglary deriving from one trespass should merge, the state's position is unpersuasive.
{¶ 12} Accordingly, this court grants the application to reopen and reinstates this appeal to its docket. The court vacates the sentences for the two aggravated burglary counts, and remands this case to the trial court to merge the two counts of aggravated burglary and to resentence on the count elected by the state.
It is, therefore, ordered that each party bear its own costs.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR