[Cite as State v. Adams, 2012-Ohio-4440.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 25088 

Plaintiff-Appellee : 

: Trial Court Case No. 10-CR-216/1 

v. : 

: 

DARRYL E. ADAMS : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 28th day of September, 2012. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by L. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post 

Office Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek, 

Ohio 45434 

Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

HALL, J. 

{¶ 1} Darryl E. Adams appeals from his re-sentencing following a remand for the 

trial court to hold a hearing to determine whether his theft and breaking-and-entering 
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convictions were allied offenses of similar import. 

{¶ 2} Adams advances two assignments of error on appeal. First, he contends the 

trial court erroneously limited its hearing to his theft and breaking-and-entering convictions. 

He claims the trial court also should have considered whether his conviction for possession of 

criminal tools was subject to merger. Second, Adams alleges ineffective assistance of trial 

counsel based on his attorney’s failure to argue that the criminal-tools conviction should have 

merged with the theft conviction. 

{¶ 3} The charges against Adams stemmed from his after-hours removal of a snow 

blower and a wood chipper from a Tractor Supply store. Police discovered Adams at the scene 

with the snow blower and wood chipper in the back of his van. The two pieces of equipment 

were connected to one another by a metal cable loop that was wired to an alarm. When Adams 

placed the items in his van, he unknowingly pulled the wire, tripped the alarm, and alerted 

police. In addition to the snow blower and wood chipper, police found bolt cutters in his van. 

{¶ 4} Based on the foregoing incident, Adams pled guilty to theft, breaking and 

entering, and possession of criminal tools. The trial court sentenced him to an aggregate prison 

term of twenty-one months. Adams appealed, arguing that the three convictions should have 

merged at sentencing as allied offenses of similar import. This court resolved the appeal in a 

December 9, 2011 opinion, reasoning: 

Upon review, we conclude that the record before us contains 

insufficient facts to render a determination regarding whether Adams’ 

convictions for theft and breaking and entering are allied offenses of similar 

import, and therefore, subject to merger. Accordingly, this matter is remanded 
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to the trial court to conduct a hearing and make a factual determination whether 

Adams’ convictions for theft and breaking and entering should be merged. 

Remanded for further proceedings consistent with this opinion. 

State v. Adams, 197 Ohio App.3d 491, 2011-Ohio-6305, 968 N.E.2d 16, ¶ 9 (2d Dist.). 

{¶ 5} The trial court held the required hearing on February 16, 2012. The only 

witness was Adams. He testified about seeing the snow blower and wood chipper outside the 

Tractor Supply store and deciding to steal them. (Tr. at 14-15). As he pulled the items to his 

van, Adams noticed a steel cable wrapped around both of them. (Id. at 16). He proceeded to 

place the items in his van with the cable around them. (Id.). He testified that it was not 

necessary for him to break the cable loose from the snow blower and wood chipper in order to 

steal them. (Id. at 18). Adams admitted not knowing the cable loop had been attached to an 

alarm that alerted police. (Id. at 16). Finally, he admitted that bolt cutters were present in the 

van when police arrived. He asserted, however, that they were present among other tools and 

that he had not used them in the theft. (Id. at 19-20). 

{¶ 6} Based on Adams’ testimony, the trial court found that the theft and breaking 

and entering were allied offenses of similar import under State v. Johnson, 128 Ohio St.3d 

153, 2010-Ohio-6314, 942 N.E.2d 1061. The State elected to proceed with sentencing on the 

theft conviction. The trial court re-sentenced Adams to twelve months in prison for theft and a 

consecutive nine months for the possession-of-criminal-tools conviction. (Id. at 28-29).These 

were the same sentences the trial court previously had imposed for those offenses. The result 

was that he again received an aggregate twenty-one-month prison term.1

 

 1

Despite the merger, Adams’ aggregate prison term did not change because the trial court previously had ordered two nine-month 
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{¶ 7} In his first assignment of error, Adams contends the trial court erred in 

restricting its remand hearing to his theft and breaking-and-entering convictions. As noted 

above, he claims the trial court additionally should have determined whether his 

possession-of-criminal-tools conviction was subject to merger under Johnson. In making this 

argument, Adams notes that our prior opinion did not address merger of the criminal-tools 

conviction. He asserts that this omission “was clearly a scrivener’s error and [that] it was an 

abuse of discretion for the trial judge to refuse to consider the possession of criminal tools 

conviction in the merger analysis.” (Appellant’s brief at 6). 

{¶ 8} We disagree. On remand, this court specifically instructed the trial court “to 

conduct a hearing and make a factual determination whether Adams’ convictions for theft and 

breaking and entering should be merged.” The trial court complied with this remand order, 

and it lacked the authority to do anything more. State v. Russell, 2d Dist. Montgomery Nos. 

18155, 18194, 2000 WL 1547085, *8 (Oct. 20, 2000); State v. Letts, 2d Dist. Montgomery No. 

17084, 1999 WL 42011, *3 (Jan. 29, 1999) (recognizing that “trial courts have no discretion 

to disregard the mandate of a reviewing court, and they have no authority to extend or vary the 

mandate given”). Accordingly, the first assignment of error is overruled. 

{¶ 9} In his second assignment of error, Adams contends he received ineffective 

assistance counsel on remand based on his attorney’s failure to seek merger of the 

possession-of-criminal-tools conviction. 

{¶ 10} Again, we disagree. The remand was for a specific, limited purpose. Given 

 

sentences for breaking and entering and possession of criminal tools to be served concurrent to each other but consecutive to a twelve-month 

sentence for theft. Therefore, removing the breaking-and-entering sentence from the equation did not change the result. 
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that our remand order did not permit the trial court to consider whether the criminal-tools and 

theft convictions merged, defense counsel did not provide deficient representation by failing to 

urge the trial court to exceed the purpose of the remand order. Adams’ second assignment of 

error is overruled. 

{¶ 11} The judgment of the Montgomery County Common Pleas Court is affirmed. 

. . . . . . . . . . . . . 

FAIN and DONOVAN, JJ., concur. 

Copies mailed to: 

Mathias H. Heck, Jr. 

R. Lynn Nothstine 

Robert Alan Brenner 

Hon. Steven K. Dankof