Opinion
No. 107038
01-10-2019
STATE OF OHIO PLAINTIFF-APPELLEE v. RODNEY A. HARDNETT DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Gayl Berger 30799 Pinetree Road, Suite 275 Cleveland, Ohio 44124 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Jonathan Block Assistant Prosecuting Attorney Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-624230-A BEFORE: S. Gallagher, J., Kilbane, A.J., and Jones, J.
ATTORNEY FOR APPELLANT
Gayl Berger
30799 Pinetree Road, Suite 275
Cleveland, Ohio 44124
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Jonathan Block
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Rodney Hardnett appeals his conviction for felonious assault and discharging a firearm on or near a prohibited premises, and the resulting seven-year aggregate term of imprisonment. We affirm.
{¶2} Hardnett and the victim spent the day arguing about Hardnett's previously spanking the victim's children. Hardnett and the victim spoke several times on the phone in an effort to arrange a place to fight. At one point, Hardnett attempted to find the victim in a parking lot of a retail establishment, but the victim drove off before the two could "settle" the matter. Hardnett followed, drove up to the victim's vehicle at a stop light, and fired three shots into the vehicle.
{¶3} Hardnett pleaded guilty to attempted felonious assault and discharging a firearm on or near a roadway, along with the associated three-year firearm specifications attached to both counts. Both base charges are felonies of the third degree. Unless the crimes were allied offenses of similar import, the minimum aggregate term of imprisonment is seven years in light of the fact that the firearm specifications were required to be imposed consecutive to each other and the underlying sentences on the base charges under R.C. 2929.14(B)(1)(g). State v. Sheffey, 8th Dist. Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 28. For this reason, Hardnett focuses on the merger issue because if the two offenses were subject to merger, the minimum term of imprisonment would be reduced by three years — eliminating the firearm specification attached to the merged offense renders R.C. 2929.14(B)(1)(g) inapplicable.
{¶4} R.C. 2923.162 prohibits the discharging of a firearm on or over a public road or highway irrespective of whether a person is present. The victim is considered to be the public, and the offense is considered a strict liability one. State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 33 (8th Dist.). It is well settled that the offense of improperly discharging a firearm and an associated assault charge are not allied offenses subject to merger under R.C. 2941.25 because the two offenses are of dissimilar import. Grayson at ¶ 26; State v. Johnson, 10th Dist. Franklin Nos. 16AP-860, 16AP-868, and 16AP-869, 2017-Ohio-9286, ¶ 19 (the improper discharge of a firearm results in a separate harm from the assault on a human victim even if the two crimes occur simultaneously).
R.C. 2923.161, prohibiting the discharging of a firearm at or into habitation, shares this characteristic — no person need actually be in or near the habitation for the crime to have occurred. State v. Grayson, 2017-Ohio-7175, 95 N.E.3d 1025, ¶ 24 (8th Dist.). In light of this shared characteristic, the case law interpreting the improper discharge of a firearm crimes is generally interchangeable.
{¶5} Under R.C. 2941.25, multiple sentences may be imposed if the conduct constituting the offenses are of dissimilar import or if the conduct demonstrates that the crimes were committed separately or with a separate animus. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of the syllabus. Two or more offenses are of dissimilar import if the conduct constituting the offenses involves separate victims or if the resulting harm of the two offenses is separate and identifiable. Id. at paragraph two of the syllabus.
{¶6} In reaching the conclusion that the improper discharge of a firearm and felonious assault offenses are not allied, courts rely on two rationales — the crimes resulted in separate identifiable harms or were committed against separate victims. In Grayson, for example, it was concluded that the resulting harms, of the improper discharging of a firearm and the felonious assault committed against a victim who happened to be present, were separate and identifiable. Grayson, 2017-Ohio-7175, 95 N.E.3d 1025, at ¶ 25; see also State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 206 (concluding that attempted murder and discharging a firearm into a habitation caused a separate, identifiable harm). The harm against the victim of the assault is the risk of physical harm caused by the offender's conduct to the victim, whereas the harm resulting from the improper discharge of a firearm at or into a habitation is the risk posed to the habitation itself. Id. at ¶ 24-25. Other courts have concluded that there are separate victims involved — the victim of the assault-type crime is the person being shot at, and the "victim" of the improper discharging of a firearm is habitation or the public at large. See, e.g., State v. Scott, 8th Dist. Cuyahoga Nos. 106451 and 106474, 2018-Ohio-3791, ¶ 35 (different victims because the discharging a firearm into a habitation is a crime against the habitation, not the individual person present); State v. Shoecraft, 2d Dist. Montgomery No. 27860, 2018-Ohio-3920, ¶ 58 (victim of improper discharge of a firearm on a roadway is the public at large).
{¶7} Two or more offenses are considered of dissimilar import if the offender's conduct constitutes offenses against "separate victims or if the harm that results from each offense is separate and identifiable." Ruff at paragraph two of the syllabus. Thus, and regardless of the rationale offered as explained in Grayson and Scott, the outcome is the same — the crimes are considered to be of dissimilar import, and therefore, the offenses are not subject to merger. State v. Wright, 7th Dist. Mahoning No. 15 MA 0092, 2017-Ohio-1211, ¶ 24 (felonious assault and improper discharge counts do not merge because the crimes involved separate victims and separate identifiable harms); State v. Williams, 2d Dist. Montgomery No. 27663, 2018-Ohio-1647, ¶ 24 (same).
{¶8} In this case, regardless of whether we conclude that separate sentences are permitted under R.C. 2941.25 because of having separate victims (in this case the individual victim on the felonious assault and the victimized public on the discharging a firearm on a public roadway), or we conclude there are separate and distinct harms caused by Hardnett's conduct of discharging his firearm at an individual on a public roadway — under either line of cases and the disjunctive analysis in Ruff, the trial court did not err by imposing separate sentences on crimes of dissimilar import.
{¶9} In light of the fact that there is no error in the merger analysis, we summarily overrule Hardnett's argument that his trial counsel provided ineffective assistance by failing to "fully research" the merger issue before sentencing. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the law as it stands, there is nothing particular to the facts of this case that would permit the offenses to merge under R.C. 2941.25. Johnson, 10th Dist. Franklin Nos. 16AP-860, 16AP-868, and 16AP-869, 2017-Ohio-9286, at ¶ 19. The convictions are affirmed.
It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SEAN C. GALLAGHER, JUDGE MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR