State v. Bollar

S
[Cite as State v. Bollar, 2021-Ohio-1578.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                          Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2020 CA 00077
MARQUIS BOLLAR                                 :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 2019-
                                                   CR-1620


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            May 5, 2021




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

KYLE L. STONE                                      TY GRAHAM
Prosecuting Attorney                               4450 Belden Village Street N.W.
110 Central Plaza South, Ste. 510                  Suite 703
Canton, OH 44702                                   Canton, OH 44718
[Cite as State v. Bollar, 2021-Ohio-1578.]


Gwin, P.J.

        {¶1}     Defendant-Appellant Marquis Bollar [“Bollar”] appeals the March 17, 2020

judgment of conviction and sentence of the Stark County Court of Common Pleas.

Plaintiff-Appellee is the State of Ohio.

                                   FACTS AND PROCEDURAL HISTORY

        {¶2}     On August 13, 2019, Bollar shot and killed Erica DeLong. At the time of the

shooting, Bollar was a convicted felon under disability and was not permitted to possess

a firearm.

        {¶3}      On October 17, 2019, the Stark County Grand Jury returned a four-count

indictment charging Bollar as follows:

                 Count one – felony murder;

                 Count two – involuntary manslaughter;

                 Count three -- felonious assault;

                 Count four – having weapons under disability.

        {¶4}      Each count of the indictment contained a firearm specification.

        {¶5}      On March 6, 2020, the state dismissed count one of the indictments and

Bollar entered pleas of guilty to counts two through four and the attendant gun

specifications.

        {¶6}     During the sentencing hearing Bollar argued, and the state did not dispute

that counts two and three, involuntary manslaughter and felonious assault merged for

purposes of sentencing but having weapons under disability did not. Transcript of trial (T.)

30, 32, 34.
Stark County, Case No. 2020 CA 00077                                                     3


       {¶7}   The state argued, however, R.C. 2929.14(B)(1)(g) required two of the three

gun specifications to run consecutively to one another and consecutive to the underlying

charge. T. 29-30. Counsel for Bollar disagreed, and advanced an allied offenses

argument – that all three specifications were the result of one act by one person and

therefore only one gun specification could be imposed. T. 35

       {¶8}   After taking a recess to consider matters presented during Bollar's plea as

well as the application of R.C. 2929.14(B)(1)(g), the trial court sentenced Bollar to a

minimum mandatory sentence of 11 years for involuntary manslaughter. The court

additionally imposed three years for the attendant firearm specification and ordered Bollar

to serve that sentence prior to any other sentence. T. 51.

       {¶9}   While the trial court imposed no sentence for the merged felonious assault,

it found it was required to impose the attached gun specification and sentenced Bollar to

three years on the specification. T. 51.

       {¶10} For having weapons under disability, the trial court imposed a thirty-six-

month sentence and merged the attendant firearm specification. After making the

appropriate findings, the trial court ordered Bollar to serve this sentence consecutive to

his sentence for involuntary manslaughter and the two gun specifications for an aggregate

minimum term of 20 years to a maximum term of 25.5 years. T. 52-54.

                                      Assignment of Error

       {¶11} Bollar raises one Assignment of Error,

       {¶12} "THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING

APPELLANT TO SERVE MAXIMUM CONSECUTIVE SENTENCES."
Stark County, Case No. 2020 CA 00077                                                   4


                                     Law and Analysis

      {¶13} In his sole assignment of error, Bollar argues the trial court erred when it

sentenced him to three years for the firearm specification attendant to the charge of

felonious assault after it had merged the charges of involuntary manslaughter and

felonious assault as allied offenses. Bollar argues because the two charges merged, he

could only be sentenced for one firearm specification and therefore his sentence is

contrary to law. We disagree.

                                Standard of Appellate Review

      {¶14} Bollar’s argument centers on an issue of law, not the discretion of the trial

court. “‘When a court’s judgment is based on an erroneous interpretation of the law, an

abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace

Brethren Church, 

163 Ohio App. 3d 96

, 2005-Ohio-4264, 

836 N.E.2d 619

, ¶ 6; Huntsman

v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 

2008 WL 2572598

, ¶

50.’ Med. Mut. of Ohio v. Schlotterer, 

122 Ohio St. 3d 181

, 2009-Ohio-2496, 

909 N.E.2d

1237

, ¶ 13.” State v. Fugate, 

117 Ohio St. 3d 261

, 2008-Ohio-856, 

883 N.E.2d 440

, ¶6.

Because the assignment of error involves the interpretation of a statute, which is a

question of law, we review the trial court’s decision de novo. Med. Mut. of Ohio v.

Schlotterer, 

122 Ohio St. 3d 181

, 2009-Ohio-2496, 

909 N.E.2d 1237

, ¶ 13; Accord, State

v. Pariag, 

137 Ohio St. 3d 81

, 2013-Ohio-4010, 

998 N.E.2d 401

, ¶ 9; Hurt v. Liberty

Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-

7820, ¶ 31.

       Issue for Appellate Review: Whether R.C. 2929.14(B)(1)(g) creates a statutory

exemption to the merger of multiple firearm specifications when the underlying felonies
Stark County, Case No. 2020 CA 00077                                                       5


     are merged at sentencing as allied offenses of similar import pursuant to R.C.

                                      2929.14(C)(4).

                    1. “Same Act or Transaction” and “Allied Offenses”

       {¶15} R.C. 2941.25 states:

              (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.

       {¶16} Under R.C. 2941.25(B), the allied offenses statute, a defendant whose

conduct supports multiple offenses may be convicted of all offenses if any one of the

following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct

shows that the offenses were committed separately, or (3) the conduct shows that the

offenses were committed with separate animus. State v. Ruff, 

143 Ohio St. 3d 114

, 2015-

Ohio-995, 

34 N.E.3d 892

, syllabus. In Ruff, the Court further held that “two or more

offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the

defendant’s conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.”

Id. (Emphasis added).
Stark

County, Case No. 2020 CA 00077                                                      6


       {¶17} Ordinarily, the trial court is forbidden from imposing sentences on multiple

firearm specifications for “felonies committed as part of the same act or transaction.” R.C.

2929.14(B)(1)(b). In State v. Wills, the Ohio Supreme Court defined “transaction” as used

in former R.C. 2929.71(B), the predecessor to the statute in question, as “* * * a series

of continuous acts bound together by time, space and purpose and directed toward a

single objective.” 

69 Ohio St. 3d 690

.691, 1994-Ohio-417, 635 N.E.2d 370(1994).

       {¶18} In the case at bar, the trial court merged the offense of involuntary

manslaughter and the offense of felonious assault for purposes of sentencing as allied

offenses. Thus, the trial court would necessarily have found that the crimes were not of

dissimilar import, that the crimes were not committed separately, and that the offenses

were not committed with a separate animus. Thus, these allied offenses must necessarily

have been committed as a series of continuous acts bound together by time, space and

purpose and directed toward a single objective. In other words, the involuntary

manslaughter and the felonious assault offenses were committed as part of the same act

or transaction.

                           2. The Legislative Authorized Exception

       {¶19} Except under circumstances not relevant to the case at bar, R.C.

2929.14(B)(1)(a) mandates the imposition of a prison sentence for an individual who

pleads guilty to or is convicted of a firearm specification under R.C. 2941.141.

       {¶20} R.C. 2929.14(B)(1)(b) contains an exception to the general rule that the trial

court is forbidden from imposing sentences on multiple firearm specifications for “felonies

committed as part of the same act or transaction.” The statute provides the following

exemption, “Except as provided in division (B)(1)(g) of this section, a court shall not
Stark County, Case No. 2020 CA 00077                                                           7


impose more than one prison term on an offender under division (B)(1)(a) of this section

for felonies committed as part of the same act or transaction.” (Emphasis added). R.C.

2929.14(B)(1)(g), the exception statute, states:

              If an offender is convicted of or pleads guilty to two or more felonies,

       if one or more of those felonies are aggravated murder, murder, attempted

       aggravated murder, attempted murder, aggravated robbery, felonious

       assault, or rape, and if the offender is convicted of or pleads guilty to a

       specification of the type described under division (B)(1)(a) of this section in

       connection with two or more of the felonies, the sentencing court shall

       impose on the offender the prison term specified under division (B)(1)(a) of

       this section for each of the two most serious specifications of which the

       offender is convicted or to which the offender pleads guilty and, in its

       discretion, also may impose on the offender the prison term specified under

       that division for any or all of the remaining specifications.

Emphasis added. The statute does not require that “an offender be sentenced” for two

or more felonies; rather, the statue only requires that an offender be “convicted or plead

guilty" to two or more felonies.

       {¶21} In the case at bar, Bollar plead guilty to both involuntary manslaughter with

a firearm specification and felonious assault with a firearm specification. Of importance

to the resolution of the issue in this case is that the plea of guilty by Bollar to the felonious

assault offense did not cease to exist when the trial court merged the felonies as allied

offenses for purposes of sentencing.
Stark County, Case No. 2020 CA 00077                                                      8


                        3. Convictions and Merger of Allied Offenses

       {¶22} In State v. Whitfield, the Ohio Supreme Court cautioned trial courts as

follows,

              On remand, the trial court should fulfill its duty in merging the

       offenses for purposes of sentencing, but remain cognizant that R.C.

       2941.25(A)’s mandate that a “defendant may be convicted of only one”

       allied offense is a proscription against sentencing a defendant for more than

       one allied offense. Nothing in the plain language of the statute or in its

       legislative history suggests that the General Assembly intended to interfere

       with a determination by a jury or judge that a defendant is guilty of allied

       offenses. As the state asserts, by enacting R.C. 2941.25(A), the General

       Assembly condemned multiple sentences for allied offenses, not the

       determinations that the defendant was guilty of allied offenses.

              Because R.C. 2941.25(A) protects a defendant only from being

       punished for allied offenses, the determination of the defendant’s guilt for

       committing allied offenses remains intact, both before and after the merger

       of allied offenses for sentencing. Thus, the trial court should not vacate or

       dismiss the guilt determination.

124 Ohio St. 3d 319

, 2010-Ohio-2, 

922 N.E.2d 182

(emphasis added), superseded by

statute on other grounds, United States v. Mackey, S.D. No. 3:04cr00096, 

2014 WL

6606434

, *2 (Nov. 12, 2014), fn. 4. Accordingly, the determination of Bollar’s guilt for

committing the offense of felonious assault remains intact even after the trial court merged

the offense with the involuntary manslaughter offense for sentencing purposes.
Stark County, Case No. 2020 CA 00077                                                   9


         4. The Legislature Has Authorized Cumulative Punishments for Multiple

                Firearm Specifications under Specific Circumstances

       {¶23} In State v. Bickerstaff, the Ohio Supreme Court followed federal

precedent concerning the imposition of multiple punishments,

              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 ensure that the trial judge did not exceed the

       sentencing authority granted by the General Assembly. Missouri v. Hunter

       (1983), 

459 U.S. 359

, 

103 S. Ct. 673

, 

74 L. Ed. 2d 535

; Albernaz v. United

       States (1981), 

450 U.S. 333

, 344, 

101 S. Ct. 1137

, 1145, 

67 L. Ed. 2d 275

;

       Whalen v. United States (1980), 

445 U.S. 684

, 688-689, 

100 S. Ct. 1432

, 

63

L. Ed. 2d 715

; 

Brown, supra

, 432 U.S. at 

165, 97 S. Ct. at 2225

; State v.

       Moss (1982), 

69 Ohio St. 2d 515

, 

433 N.E.2d 181

[

23 Ohio Op. 3d 447

],

       paragraph one of the syllabus, certiorari denied (1983), 

459 U.S. 1200

, 

103

S. Ct. 1183

, 

75 L. Ed. 2d 430

. Therefore, the dispositive question is whether

       the General Assembly authorized separate punishments for the crimes

       committed by the appellant.

10 Ohio St. 3d 62

, 65, 461 N.E.2d 892(1984).

       {¶24} Both the Fifth Amendment to the United States Constitution and Section 10,

Article I, Ohio Constitution, guard against successive prosecutions. Both provisions also

guard against cumulative punishments for the same offense. R.C. 2941.25, allied

offenses, was adopted by the General Assembly to effectuate these constitutional

principles.   State v. Thomas, 

61 Ohio St. 2d 254

, 259-260, 400 N.E.2d 897(1980),
Stark County, Case No. 2020 CA 00077                                                     10


overruled on other grounds, State v. Cargo, 

53 Ohio St. 3d 243

, 554 N.E.2d 1353(1990).

“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy

Clause does no more than prevent the sentencing court from prescribing greater

punishment than the legislature intended.” Missouri v. Hunter, 

459 U.S. 359

, 366,

103

S. Ct. 673

, 

74 L. Ed. 2d 535

(1983).     The case at bar involves only the protection against

cumulative punishments for the “same offense.”

       {¶25} In sum, the double jeopardy clause permits cumulative punishment if the

legislature has authorized it.     Ohio’s legislature intended to specifically authorize

cumulative punishment for multiple firearm specifications that were committed as part of

the same act or transaction under the narrowly tailored, specifically designated

circumstances set forth in R.C. 2929.14(B)(1)(g), those being, “that at least one of the

felonies must be aggravated murder, murder, attempted aggravated murder, attempted

murder, aggravated robbery, felonious assault, or rape.” In the case at bar, Bollar plead

guilty to felonious assault with a firearm specification and involuntary manslaughter with

a firearm specification. Thus, Bollar plead guilty to a felony for which the legislature has

specifically authorized cumulative punishments. Bollar’s guilt for committing the offense

of felonious assault with a firearm specification survives the trial court’s merger of that

offense for sentencing purposes with the involuntary manslaughter offense.

       {¶26} In State v. Cobb, 5th Dist. Stark No. 2014 CA00218, 2015-Ohio-3661, the

defendant was convicted after a jury trial on one count of complicity to murder, one count

of complicity to aggravated burglary and one count of aggravated robbery, each with

connected firearm specifications. 5th Dist. Stark No. 2014 CA 00218, 2015-Ohio-3661.

The trial court sentenced Cobb to 15 years to life on the Complicity to Murder charge. The
Stark County, Case No. 2020 CA 00077                                                     11


Complicity to Aggravated Robbery and Complicity to Aggravated Burglary counts were

merged with the Complicity to Murder count. The trial court also imposed the mandatory

3-year prison term for the three firearm specifications. The firearm specifications for the

Complicity (Murder) and Complicity (Aggravated Burglary) offenses were imposed

consecutively, but the firearm specification for the Complicity (Aggravated Robbery)

offense was imposed concurrently. The aggregate prison term was twenty-one (21) years

to life imprisonment.

Id. at ¶23.

On appeal, Cobb argued that the trial court erred in

imposing multiple, consecutive sentences for the gun specifications in his case.

Id. at ¶27.

This Court disagreed,

              In the instant case, the record is clear that appellant was convicted

       of multiple felonies, to wit: one count of complicity to murder, one count of

       complicity to aggravated robbery and one count of aggravated burglary. The

       trial court was required by R.C. § 2929.14(B)(1)(g) to sentence appellant to

       the two most serious firearm specifications that accompanied his felony

       convictions for complicity to murder and complicity to aggravated burglary

       or complicity aggravated robbery.

              “[R]egardless of whether [a defendant’s] crimes were a single

       transaction, when a defendant is sentenced to more than one felony,

       including [murder] and [aggravated robbery and/or aggravated burglary],

       the sentencing court ‘shall impose’ the two most serious gun specifications.”

       State v. Isreal, 12th Dist. Warren No. CA2011–11–115, 2012–Ohio–4876,

       ¶ 71. See also State v. Ayers, 12th Dist. Warren No. CA2011–11–123,
Stark County, Case No. 2020 CA 00077                                                      12


       2013–Ohio–2641, ¶ 20–25; State v. Cassano, 8th Dist. Cuyahoga No.

       97228, 2012–Ohio–4047, ¶ 32–34.

              We therefore find that the trial court did not err in concluding that the

       firearm specifications accompanying the complicity to murder count and the

       complicity to aggravated burglary were not subject to merger pursuant to

       R.C. § 2929.14(B).

              We therefore find the trial court did not err in ordering two of the

       three firearm specifications to run consecutively.

Cobb, ¶34-¶37.

                                           Conclusion

       {¶27} The legislature has specifically authorized cumulative punishment by

creating the exception to the general rule that the trial court is forbidden from imposing

sentences on multiple firearm specifications for “felonies committed as part of the same

act or transaction” contained within R.C. 2929.14(B)(1)(b), and pursuant to that exception,

with its command set forth in R.C. 2929.14(B)(1)(g) that the trial court “shall impose on

the offender the prison term specified under division (B)(1)(a) of this section for each of

the two most serious specifications of which the offender is convicted or to which the

offender pleads guilty....” (Emphasis added).

       {¶28} In the case at bar, Bollar pled guilty to multiple felonies, to wit: involuntary

manslaughter, felonious assault and having weapons while under a disability. The

determination of guilt based upon his guilty pleas to each offense survived the trial courts

merger of the felonious assault and involuntary manslaughter offenses. State v. Whitfield,

124 Ohio St. 3d 319

, 2010-Ohio-2, 

922 N.E.2d 182

. Therefore, the trial court was required
Stark County, Case No. 2020 CA 00077                                                       13


by R.C. 2929.14(B)(1)(g) to sentence Bollar to the two most serious firearm specifications

that accompanied his felony guilty pleas. R.C. 2929.14(B)(1)(g).

       {¶29} We therefore find that the trial court did not err in concluding that the firearm

specifications accompanying the involuntary manslaughter and felonious assault were

not subject to merger pursuant to R.C. 2929.14(B).

       {¶30} The trial court did not err in ordering two of the three firearm specifications

to run consecutively pursuant to R.C. 2929.14(B)(1)(g).

       {¶31} Bollar’s sole Assignment of Error is overruled.

       {¶32} The judgment of the Stark County Court of Common Pleas is affirmed.



By Gwin, P.J., and

Wise, John, J., concur;

Wise, Earle, J., dissents
Stark County, Case No. 2020 CA 00077                                                     14


Wise, Earle, J., dissents.

       {¶ 33} I respectfully dissent.

       {¶ 34} In this case the appellant plead guilty to three felony offenses each of which

contained identical firearm specifications pursuant to R.C. 2941.145(A). There is no

dispute the three offenses and attendant specifications resulted from the same incident.

On August 13, 2019, appellant possessed a firearm with which he shot and killed the

victim, resulting in the charged offenses of involuntary manslaughter and felonious

assault. He was further charged with having weapons while under a disability because he

had a prior felony conviction.

       {¶ 35} R.C. 2929.14(B)(1)(b) generally prohibits the imposition of multiple prison

sentences on the attendant specifications when the offenses are “committed as part of

the same act or transaction.” R.C. 2929.14(B)(1)(g) creates an exception to this rule and

mandates the imposition of a prison term for the two most serious specifications if certain

conditions are met.

       {¶ 36} But in this matter, because the felonious assault and involuntary

manslaughter offense were allied offenses of similar import, no underlying sentence was

imposed on the felonious assault. Without the imposition of a sentence there is no ability

to impose the attendant sentence-enhancing specification.

       {¶ 37} Not all offenses “committed as part of the same act or transaction,” would

necessarily be allied offenses of similar import. When the specifics of R.C.

2929.14(B)(1)(g) are met and the offense(s) do not merge separate sentences would be

imposed on those offenses and each attendant specifications would have a sentence to

enhance.
Stark County, Case No. 2020 CA 00077                                                    15


      {¶ 38} Addressing an identical challenge, the Ninth District in State v. Roper, 9th

Dist. Nos. 26631, 26632, 2013-Ohio-2176 found the appellant:



             * * *could not be sentenced for both aggravated robbery and

             aggravated burglary because the trial court found them to be allied

             offenses of similar import, and, thus, they could only be convicted of

             one of the two offenses. See Whitfield [

124 Ohio St. 3d 319

, 2010-

             Ohio-2, 

922 N.E.2d 182

] ¶17. The firearm specifications were

             contingent on there being a conviction (i.e. finding of guilt and

             sentence) for the underlying offense and attach to the predicate

             offense. See Ford [

128 Ohio St. 3d 398

, 2011-Ohio-765, 

945 N.E.2d

498

] at ¶ 16. Moreover, the classification of a firearm specification as

             “penalty enhancement” inherently implies that there is an underlying

             penalty to enhance. [State v.] Ford [

128 Ohio St. 3d 398

, 2011-Ohio-

             765, 

945 N.E.2d 498

] at ¶ 19. Thus, because one of the underlying

             offenses at issue merged into the other underlying offense, the

             merged offense could not be penalized.



      {¶ 39} More recently, in State v. Doyle, 8th Dist. No. 107001, 2019-Ohio-979, 

133

N.E.3d 890

, the Eighth District Court of Appeals also considered the same challenge. In

that matter, as here, the state argued R.C. 2929.14(B)(1)(g) authorized a sentence

imposed on a specification regardless of the merger of the underlying offense. The court

acknowledged upon a plain reading of the statute, the specification arguably survives

merger in situations in which the offender pleads guilty to an offense that is ultimately
Stark County, Case No. 2020 CA 00077                                                       16


merged. Doyle ¶ 24. The court also acknowledged the legislature used the phrase “pleads

guilty to” in the alternative to “convicted of.”

Id. citing State v.

Gwen, 

134 Ohio St. 3d 284

,

2012-Ohio-5046, 

982 N.E.2d 626

. The court ultimately concluded, however, "that a

sentence imposed for a firearm specification is dependent on the underlying conviction to

which the specification is attached." Citing State v. Ford, 

128 Ohio St. 3d 398

, 2011-Ohio-

765, 

945 N.E.2d 498

, at ¶ 16-19. The court reasoned at ¶ 25:

              The firearm specification merely enhances an underlying sentence,

              but it can only do so if one is imposed on the base offense.

Id. at ¶

16.

“[I]f a defendant is convicted of a felony offense and, during the

              commission of that offense, if the defendant * * * uses a firearm to

              facilitate the offense, the defendant's underlying felony sentence will

              be increased by three years.” (Emphasis sic) [Ford ¶ 16-19]. Thus,

              an underlying sentence must be imposed in order to implicate the

              enhancement. Firearm specifications, as sentencing enhancements,

              attach to a base sentence.

Id. Without a sentence

on the underlying

              or predicate offense, there is nothing to enhance or increase. [State

              v.] Florencio, 8th Dist. Cuyahoga No. 107023, 2019-Ohio-104, at ¶

              13, 19.

       {¶ 40} I am in agreement with the reasoning in Roper and Doyle. If, as here,

an offense is merged as an allied offense, there is no sentence and the attendant

firearm specification has no sentence to enhance. I therefore respectfully dissent.

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