[Cite as State v. Jones, 2020-Ohio-1388.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 

 Plaintiff-Appellee, : 

 Nos. 108694, 108795, 

 v. : 108796, and 108797 

 

ELBERT JONES, : 

 

 Defendant-Appellant. : 

______________________________________ 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

 RELEASED AND JOURNALIZED: April 9, 2020 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case Nos. CR-18-631648-A, CR-18-631687-A, and CR-18-635092-A 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Lindsay Raskin, Assistant Prosecuting 

Attorney, for appellee. 

Ruth R. Fischbein-Cohen, for appellant. 

KATHLEEN ANN KEOUGH, J.: 

Defendant-appellant, Elbert Jones, appeals from the trial court’s 

judgment that sentenced him to an aggregate term of 21 years in prison. Jones 

contends that the trial court’s judgment was in error because the court should have 
merged various offenses as allied offenses of similar import, and the trial court failed 

to consider the R.C. 2929.11 and 2929.12 sentencing factors. Finding no merit to 

the appeal, we affirm. 

I. Background 

Jones was charged in three cases relating to three separate incidents 

that occurred on different dates but were similar in nature. In each incident, Jones 

and accomplices, with guns drawn, would approach individuals who had just pulled 

into their driveways and rob them. In two of the three incidents, they forced the 

victims into their homes and demanded money and other property from them. 

In Cuyahoga C.P. No. CR-18-635092, Jones was charged in a 13-

count indictment with three counts of aggravated robbery in violation of R.C. 

2911.01(A)(1); six counts of robbery in violation of RC. 2911.02(A)(2) and (3); one 

count of grand theft in violation of R.C. 2913.02(A)(1); two counts of theft in 

violation of R.C. 2913.02(A)(1); and one count of having weapons while under 

disability in violation of R.C. 2923.13(A)(2). Except for the having weapons while 

under disability charge, all of the charges carried one- and three-year firearm 

specifications. The offenses occurred on December 18, 2017, at a home on Chagrin 

Boulevard in Shaker Heights, Ohio; there were two victims. 

In Cuyahoga C.P. No. CR-18-631687, Jones was charged in an eightcount indictment with one count of aggravated burglary in violation of R.C. 

2911.11(A)(2); one count of aggravated robbery in violation of R.C. 2911.01(A)(1); 

three counts of robbery in violation of R.C. 2911.02(A)(1) and (2); one count of 
kidnapping in violation of R.C. 2905.01(A)(2); one count of theft in violation of R.C. 

2913.02(A)(1); and one count of having weapons while under disability in violation 

of R.C. 2923.13(A)(2). All charges other than the having weapons while under 

disability charge had one- and three-years firearm specifications. The offenses 

occurred on December 19, 2017, at a home on Charney Road in University Heights, 

Ohio; one victim was involved. 

In Cuyahoga C.P. No. CR-18-631648, Jones was charged in a sevencount indictment with: one count of aggravated robbery in violation of R.C. 

2911.01(A)(1); one count of grand theft in violation of R.C. 2913.02(A)(1); one count 

of theft in violation of R.C. 2913.02(A)(1); one count of criminal damaging in 

violation of R.C. 2909.06(A)(1); two counts of improperly handling firearms in a 

motor vehicle in violation of R.C. 2923.16(B); and one count of having weapons 

while under disability in violation of R.C. 2923.13(A)(2). Except for the criminal 

damaging charge, all counts had forfeiture of weapons specifications; the aggravated 

robbery, grand theft, and theft charges also had one- and three-year firearm 

specifications. The offenses occurred on January 4, 2018, at a home on Wilton Road 

in Cleveland Heights, Ohio; there was one victim. 

Jones subsequently entered into a plea agreement with the state. In 

CR-18-635092, he pleaded guilty to one count of aggravated robbery in violation of 

R.C. 2911.01(A)(1) with a three-year firearm specification; one count of aggravated 

robbery in violation of R.C. 2911.01(A)(1); grand theft in violation of R.C. 
2913.02(A)(1); and having weapons while under disability in violation of R.C. 

2923.13(A)(2). All remaining counts and specifications were nolled. 

In CR-18-631687, Jones pleaded guilty to aggravated robbery in 

violation of R.C. 2911.01(A)(1) with a one-year firearm specification; and having 

weapons while under disability in violation of R.C. 2923.13(A)(2). All remaining 

counts and specifications were nolled. 

In CR-18-631648, Jones pleaded guilty to aggravated robbery in 

violation of R.C. 2911.01(A)(1) with a three-year firearm specification and two 

forfeiture of weapons specifications; having weapons while under disability in 

violation of R.C. 2923.13(A)(2) with two forfeiture of weapons specifications; and 

grand theft in violation of R.C. 2913.02(A)(1). All remaining counts and 

specifications were dismissed. 

At sentencing, the trial court noted that the cases involved three 

separate incidents that occurred on different days and involved different victims, 

with two victims in CR-18-635092. The court also stated that it had “considered the 

purposes and principles of sentencing under Revised Code Section 2929.11,” as well 

as “the seriousness and recidivism factors relevant to the offenses and offender 

pursuant to 2929.12, and the need for deterrence, incapacitation, rehabilitation, and 

restitution.” (Tr. 65.) 

In CR-18-635092, the court sentenced Jones to three years on one 

aggravated robbery count and three years on the firearm specification (Count 1); and 

three years on the other aggravated robbery count (Count 6), noting that the counts 
involved separate victims. The court ordered the sentences be served consecutively. 

The court ruled that the grand theft conviction merged with the aggravated robbery 

counts, and did not sentence Jones on that count. The court sentenced Jones to 12 

months on the having weapons while under disability conviction, to be served 

concurrent with the aggravated robbery conviction, for a total of nine years 

incarceration. 

In CR-18-631687, the trial court sentenced Jones to four years for 

aggravated robbery and one year on the firearm specification. The court sentenced 

Jones to 18 months incarceration on the having weapons while under disability 

conviction, to be served concurrent with the total five-year sentence for aggravated 

robbery. 

In CR-18-631648, the court sentenced Jones to four years on the 

aggravated robbery conviction, consecutive to the three-year firearm specification. 

The court ruled that the grand theft conviction merged with the aggravated robbery 

conviction and did not sentence on that count. The court sentenced Jones to 24 

months incarceration on the having weapons while under disability conviction, to 

be served concurrent to the total seven-year sentence for aggravated robbery. 

After making the appropriate findings under R.C. 2929.14(C) to 

impose consecutive sentences, the trial court ordered that the sentences in the three 

cases be served consecutively, for a total sentence of 21 years. This appeal followed. 
II. Law and Analysis 

A. Allied Offenses of Similar Import 

In his first assignment of error, Jones contends that the trial court 

erred in not merging the sentences in each case. He contends that the offenses in 

each incident are allied because the date, address, and victim are the same. 

R.C. 2941.25, Ohio’s allied offenses statute, codifies Ohio’s double 

jeopardy protection regarding when multiple punishments may be imposed. State 

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 12. R.C. 2941.25(A) 

allows only a single conviction for offenses that constitute “allied offenses of similar 

import.” Under R.C. 2941.25(B), however, a defendant charged with multiple 

offenses may be convicted of all the offenses if (1) the offenses are dissimilar in 

import or significance; i.e., each offense caused separate identifiable harm; (2) the 

offenses were committed separately; or (3) the offenses were committed with 

separate animus or motivation. Ruff at ¶ 13. 

With respect to CR-18-635092, defense counsel conceded at the plea 

hearing that the two aggravated robbery counts to which Jones was pleading guilty 

did not merge for sentencing because each count involved a separate victim. (Tr. 

35.) State v. Crawley, 8th Dist. Cuyahoga No. 99636, 2014-Ohio-921, ¶ 14 (where a 

defendant commits the same offense against separate victims, a separate animus 

exists for each victim such that the offenses are not allied). With respect to the other 

counts, the trial court merged the grand theft conviction with one of the aggravated 

robbery counts, and did not sentence on that count. Accordingly, the only issue for 
appeal is whether the having a weapon while under disability count should have 

merged with the aggravated robbery convictions. Defense counsel raised this issue 

at sentencing but the trial court concluded the convictions did not merge. (Tr. 61, 

77.) 

In State v. Brown, 8th Dist. Cuyahoga No. 102549, 2015-Ohio-4764, 

this court considered whether a having weapons while under disability offense 

merged with an aggravated robbery offense. In concluding that the offenses did not 

merge, the court stated: 

“[The] animus of having a weapon under disability is making a 

conscious choice to possess a weapon. [The defendant] necessarily 

acquired the guns sometime prior to committing the other crimes. The 

fact that he then used the weapons to commit the other crimes does not 

absolve [the defendant] of the criminal liability that arises solely from 

his decision to illegally possess the weapons.” 

Id. at ¶ 12-13, quoting State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio5723, ¶ 39; see also State v. Carradine, 2015-Ohio-3670, 38 N.E.3d 936, ¶ 58 (8th 

Dist.) (carrying concealed weapon and having weapons while under disability did 

not merge because acquisition of the firearm was done with a separate animus than 

the carrying of the firearm in a concealed manner); State v. Beeler, 9th Dist. Summit 

No. 27309, 2015-Ohio-275, ¶ 27 (aggravated robbery does not merge with having 

weapons while under disability because defendant’s animus to possess a firearm was 

separate and distinct from his animus to rob pizza shop). 

Similarly, in this case, Jones necessarily acquired and possessed the 

firearm prior to committing the robberies. The offense of having a weapon while 
under disability occurred when Jones acquired and possessed the gun, and the 

robberies occurred when he used the gun to take the victims’ property. That Jones 

used the firearm to commit the robbery does not absolve him of the criminal liability 

arising from his illegal possession of the firearm. Accordingly, the trial court did not 

err in not merging these offenses for sentencing. 

With respect to CR-18-631648, the court merged the grand theft 

conviction with the aggravated robbery conviction and did not sentence on that 

count. Thus, the only issue for appeal is whether the trial court erred in not merging 

the having a weapon while under disability conviction with the aggravated robbery 

conviction. As discussed above, the offenses involved a separate animus and, 

therefore, the trial court did not err in not merging the offenses. 

Finally, with respect to CR-18-631687, we find that Jones waived any 

argument regarding merger of the offenses because defense counsel agreed that the 

two counts to which Jones pleaded guilty in that case1 would not merge for 

sentencing. (Tr. 30.) And even if counsel had not so conceded, in light of our 

determination that having a weapon while under a disability involves a separate 

animus from aggravated robbery, the trial court did not err in not merging the 

convictions in this case. 

Jones’s first assignment of error is therefore overruled. 

 1 Aggravated robbery and having weapons while under disability. 
B. The Trial Court’s Consideration of the Sentencing Factors in 

R.C. 2929.11 and 2929.12 

In his second assignment of error, Jones contends that the trial court 

failed to consider the principles and purposes of sentencing under R.C. 2929.11 and 

specifically, the recidivism factor under R.C. 2929.12. 

When sentencing a defendant for felony offenses, the court must 

consider the purpose and principles of felony sentencing set forth in R.C. 2929.11 

and the seriousness and recidivism factors in R.C. 2929.12. State v. Hodges, 8th 

Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. R.C. 2929.11(A) provides that a 

sentence imposed for a felony shall be reasonably calculated to (1) protect the public 

from future crime by the offender and others, (2) punish the offender using the 

minimum sanctions the court determines will accomplish those purposes, and (3) 

promote the effective rehabilitation of the offender. R.C. 2929.11(B) requires that 

the sentence be “commensurate with and not demeaning to the seriousness of the 

offender’s conduct and its impact upon the victim,” and “consistent with sentenced 

imposed for similar crimes committed by similar offenders.” 

The sentencing court must consider the seriousness and recidivism 

factors set forth in R.C. 2929.12 in determining the most effective way to comply 

with the purposes and principles of sentencing set forth in R.C. 2929.11. Hodges at 

¶ 9. R.C. 2929.12 sets forth a nonexhaustive list of factors a trial court must consider 

when determining the seriousness of the offense and the likelihood the offender will 

commit future offenses. 
Trial courts are not required to make factual findings under R.C. 

2929.11 or 2929.12. State v. White, 8th Dist. Cuyahoga No. 106580, 2018-Ohio3414, ¶ 9, citing State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio1020, ¶ 27. In fact, consideration of the factors is presumed unless the defendant 

affirmatively demonstrates otherwise. State v. Seith, 8th Dist. Cuyahoga No. 

104510, 2016-Ohio-8302, ¶ 12. This court has consistently found that a trial court’s 

statement in its sentencing journal entry that it considered the required statutory 

factors, without more, is sufficient to fulfill its obligations under R.C. 2929.11 and 

2929.12. White at ¶ 9, citing Kronenberg at ¶ 27. 

At the sentencing hearing, the trial court stated that it had considered 

the record, the statements made at the sentencing hearing, the presentence 

investigation report that included the victim impact statements, and the sentencing 

memorandum prepared and provided to the court by defense counsel. (Tr. 65.) The 

court stated further: 

The Court has considered the purposes and principles of sentencing 

under Revised Code Section 2929.11, and the seriousness and 

recidivism factors relevant to the offenses and offender pursuant to 

Revised Code Section 2929.12, and the need for deterrence, 

incapacitation, rehabilitation, and restitution. 

Id. Likewise, the court’s journal entries of sentencing in each of the three cases 

states that “[t]he court considered all required factors of the law,” and that “the court 

finds that prison is consistent with the purpose of R.C. 2929.11.” Thus, it is apparent 

that the trial court did indeed consider the required statutory factors before 

sentencing Jones. 
Jones contends, however, that the trial court did not adequately 

consider his apology to the court as a mitigating factor regarding the likelihood of 

recidivism. Jones contends that his remorse over his crimes demonstrated that he 

is not likely to reoffend in the future, and hence, the trial court should have imposed 

a lesser sentence.2 

The record refutes Jones’s argument. The court specifically 

addressed the issue of recidivism, finding that recidivism was more likely given 

Jones’s prior violent criminal conduct. (Tr. 71-72.) The court then stated, “I 

understand that Mr. Jones is apologizing, so he’s expressing remorse to this Court 

and apologizing to the victim. So there is a consideration of that.” (Tr. 72.) 

It is apparent the trial court considered Jones’s apology as a factor 

relevant to his sentence, but nevertheless concluded that a lengthy prison sentence 

was necessary to protect the public and punish him. Because the trial court 

considered the purposes and principles of sentencing set forth in R.C. 2929.11 and 

the sentencing factors of R.C. 2929.12, Jones’s argument is without merit. The 

second assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

 2 R.C. 2929.12(E) lists factors that demonstrate the offender is not likely to commit 

future crimes, including if “the offender shows genuine remorse for the offense.” R.C. 

2929.12(E)(5). 
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 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. 

 

KATHLEEN ANN KEOUGH, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

EILEEN A. GALLAGHER, J., CONCUR