[Cite as State v. Moore, 2018-Ohio-2111.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

SHANE MOORE 

Defendant-Appellant 

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Appellate Case No. 2016-CA-45 

Trial Court Case No. 2016-CR-128 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 1st day of June, 2018. 

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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office, 

Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501 

 Attorney for Plaintiff-Appellee 

 

SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 315 S. Monument Avenue, Hamilton, 

Ohio 45011 

 Attorney for Defendant-Appellant 

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FROELICH, J. 

{¶ 1} Shane Moore pled guilty in the Clark County Court of Common Pleas to two 

counts of robbery, both felonies of the second degree, and one count of abduction, a 

felony of the third degree. The trial court imposed maximum eight-year sentences for 

both robberies and a maximum three-year sentence for the abduction, to be served 

consecutively. The trial court also revoked Moore’s post-release control and imposed a 

consecutive one-year prison term. Moore’s aggregate sentence was 20 years in prison. 

{¶ 2} Moore’s original appellate counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that she found 

no non-frivolous issues for appeal. We found that a non-frivolous issue existed regarding 

the trial court’s imposition of maximum, consecutive sentences and appointed new 

counsel. 

{¶ 3} Moore now raises three assignments of error on appeal, namely (1) the trial 

court erred in entering judgments on allied offenses of similar import, (2) the trial court 

erred in imposing consecutive sentences, and (3) Moore’s trial counsel rendered 

ineffective assistance. For the following reasons, the trial court’s judgment will be 

affirmed. 

I. Procedural History 

{¶ 4} On March 14, 2016, Moore was indicted on four counts of robbery, two 

counts of abduction, and one count of kidnapping. The charges arose from four separate 

robberies on three consecutive dates in February 2016. The State’s bill of particulars 

described the offenses as follows: 

Counts One and Two [robbery and abduction]: 
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On February 6, 2016, * * * Shane Moore entered the [BP gas station] holding 

a bb gun, pointed it at the back of the cashier’s [sic], grabbed her hair, and 

demanded the money. Shane Moore then pushed the cashier onto the 

ground while he removed money from the lottery drawer. He then ordered 

her to open the cash register and threatened to kill her. He removed all of 

the money and fled from the store. * * * 

Count Three [robbery]: 

On February 7, 2016, * * * Shane Moore entered the [Certified Gas Station,] 

pointed a bb gun at the cashier, and demanded the money. Shane Moore 

then pulled the cashier by the shirt and made her open the register. He 

took all of the money and fled from the store. * * * 

Count Four [robbery]: 

On February 8, 2016, * * * Shane Moore entered the [Ooh Ooh Drive Thru,] 

pointed a bb gun at the cashier, and demanded the money. He then 

pushed the bb gun into her side while he removed the cash from the 

register. * * * 

Counts Five, Six, and Seven [robbery, kidnapping, abduction]: 

On February 8, 2016, * * * Shane Moore entered the [Speedway Gas 

Station] brandishing a bb gun. Moore jumped over the counter by the cash 

register, and * * * one of the employees[ ] attempted to flee on foot. Moore 

pursued [the employee] and escorted him back to the register using the bb 

gun. Shane Moore then had the employee open the register, grabbed the 

cash from the register and fled on foot * * *. 
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The record reflects that Moore was on post-release control at the time of the offenses. 

{¶ 5} On June 28, 2016, Moore pled guilty to Counts Four (Ooh Ooh robbery), Five 

(Speedway robbery), and Seven (Speedway abduction). In exchange for the pleas, the 

State agreed to dismiss the remaining counts in the indictment and not to refile charges 

in another case (Clark C.P. No. 16-CR-77), in which the charges would have been forgery 

and receiving stolen property. The court told Moore that his entering a guilty plea could 

result in proceedings to revoke his post-release control, that the court could terminate his 

post-release control, and that the court could sentence him to the greater of the time 

remaining on his post-release control or one year; the court stated that any sentence for 

the post-release control violation “would be in addition to any sentence the Court would 

impose in this case.” The parties agreed that a presentence investigation would be 

conducted. 

{¶ 6} At sentencing, the trial court heard from defense counsel, Moore, and the 

prosecutor. Moore read statements of apology to the victims and expressed remorse. 

Moore also expressed that he has “a disease called addiction,” which led to the offenses. 

The prosecutor described Moore, who was 32 years old at sentencing, as “a very 

experienced criminal who, since he was a juvenile, has been engaged in very similar 

activities.” The prosecutor played for the court a short video of the Speedway robbery 

on February 8. The prosecutor argued that an appropriate sentence would be “very 

close to, if not maximum” and consecutive sentences. 

{¶ 7} The trial court imposed maximum eight-year sentences for the robberies and 

a maximum three-year sentence for the abduction. All of the sentences were to be 

served consecutively, for a total of 19 years; the court orally made the findings required 
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by R.C. 2929.14(C)(4) and included them in its judgment entry. The trial court also 

terminated Moore’s post-release control, imposed one year in prison (Moore had less 

than one year remaining on his post-release control), and ordered that it be served 

consecutively to Moore’s sentence. The trial court informed Moore that, upon his 

release, he would be subject to three years of post-release control. The trial court orally 

imposed restitution of $318, but did not include that order in its judgment entry. The trial 

court did not orally impose court costs or include court costs in its judgment entry. 

{¶ 8} Moore appeals from his convictions. 

II. Allied Offenses of Similar Import 

{¶ 9} In his first assignment of error, Moore claims that the trial court erred in failing 

to merge Counts 5 (robbery) and 7 (abduction) as allied offenses of similar import. Both 

of those offenses involved Moore’s conduct at the Speedway gas station on February 8, 

2016. 

{¶ 10} Moore did not raise allied offenses at sentencing. Accordingly, he has 

forfeited all but plain error. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 

38 N.E.3d 860, ¶ 3. Moore’s alleged error is not reversible error unless it affected the 

outcome of the proceeding and reversal is necessary to correct a manifest miscarriage 

of justice. Id.

{¶ 11} Ohio’s allied offense statute, R.C. 2941.25, provides that: 

(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. 
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(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. 

{¶ 12} “ ‘[W]hen determining whether offenses are allied offenses of similar import 

within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s 

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or 

significance? (2) Were they committed separately? and (3) Were they committed with 

separate animus or motivation? An affirmative answer to any of the above will permit 

separate convictions. The conduct, the animus, and the import must all be considered.’ ” 

State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State 

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. 

{¶ 13} As to the question of import and significance, “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.” Ruff at ¶ 23. 

{¶ 14} In regards to animus, “ ‘[w]here an individual’s immediate motive involves 

the commission of one offense, but in the course of committing that crime he must, [a] 

priori, commit another, then he may well possess but a single animus, and in that event 

may be convicted of only one crime.’ ” State v. Ramey, 2015-Ohio-5389, 55 N.E.3d 542, 

¶ 70 (2d Dist.), quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). 

{¶ 15} The facts underlying the Speedway robbery are reflected in the prosecutor’s 
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statement of facts at the plea hearing, the presentence investigation report, and a 

surveillance video of the robbery, which was admitted at the sentencing hearing. 

According to the record, two employees were in the Speedway gas station at the time of 

the robbery on February 8, 2016; one employee was behind the counter. Moore entered 

the business and brandished a BB gun. Moore jumped over the counter by the cash 

register and the employee behind the counter attempted to flee through the back of the 

store. Moore pursued the employee and escorted him back to the register using the BB 

gun. Moore had the employees open the registers while pointing the BB gun at them, 

and then had them lie on the ground. Moore grabbed the cash from the register, exited 

the store, and got into a vehicle that was waiting to drive him away from the scene. 

{¶ 16} Moore argues that “any restraint on the victim’s liberty was merely incidental 

to the robbery being committed by [Moore].” Moore cites to State v. Winn, 121 Ohio 

St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, in which the Ohio Supreme Court held that 

aggravated robbery and kidnapping were allied offenses of similar import. The supreme 

court commented in Winn, “It is difficult to see how the presence of a weapon that has 

been shown or used, or whose possession has been made known to the victim during the 

commission of a theft offense, does not also forcibly restrain the liberty of another.” Id. 

at ¶ 21. 

{¶ 17} Here, the record reflects that Moore did not simply display a weapon during 

the commission of the robbery, thereby restraining the employees simultaneously with 

the robbery. Rather, when an employee attempted to flee the building through the back 

of the store, Moore pursued the employee and brought him back to the registers at 

gunpoint. Moore’s actions in pursuing, stopping, and returning with the employee were 
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separate acts and reflected an intention to prevent the employee’s escape, not simply to 

rob the store. Accordingly, we find no error, plain or otherwise, in the trial court’s failure 

to merge the robbery and abduction as allied offenses of similar import. 

{¶ 18} Moore’s first assignment of error is overruled. 

III. Imposition of Consecutive Sentences 

{¶ 19} In his second assignment of error, Moore claims that the trial court’s 

imposition of consecutive sentences was clearly and convincingly unsupported by the 

record. Moore asserts that the record does not support findings that (1) a 19-year 

sentence was not “disproportionate to the seriousness of defendant’s conduct,” and (2) 

the harm caused by the offenses “was so great or usual that no single prison term 

adequately reflects the seriousness” of his conduct. Moore also argues that the 

aggregate sentence was not the minimum sanction needed to accomplish the purposes 

and principles of sentencing without imposing an unnecessary burden on state resources. 

{¶ 20} In reviewing felony sentences, appellate courts must apply the standard of 

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under 

R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it 

may vacate the sentence and remand for resentencing, only if it “clearly and convincingly” 

finds either (1) that the record does not support certain specified findings or (2) that the 

sentence imposed is contrary to law. 

{¶ 21} In determining the sentence for an offense, the trial court has full discretion 

to impose any sentence within the authorized statutory range, and the court is not required 

to make any findings or give its reasons for imposing a maximum or more than minimum 
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sentence. State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, 

in exercising its discretion, a trial court must consider the statutory criteria that apply to 

every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v. 

Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing 

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. 

{¶ 22} R.C. 2929.11 requires trial courts to be guided by the overriding purposes 

of felony sentencing. Those purposes are “to protect the public from future crime by the 

offender and others and to punish the offender using the minimum sanctions that the court 

determines accomplish those purposes without imposing an unnecessary burden on state 

or local government resources.” R.C. 2929.11(A). The court must “consider the need 

for incapacitating the offender, deterring the offender and others from future crime, 

rehabilitating the offender, and making restitution to the victim of the offense, the public, 

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony 

shall be reasonably calculated to achieve the two overriding purposes of felony 

sentencing * * *, commensurate with and not demeaning to the seriousness of the 

offender’s conduct and its impact upon the victim, and consistent with sentences imposed 

for similar crimes committed by similar offenders.” 

{¶ 23} In general, it is presumed that prison terms will be served concurrently. 

R.C. 2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, 

¶ 16, ¶ 23 (“judicial fact-finding is once again required to overcome the statutory 

presumption in favor of concurrent sentences”). However, after determining the 

sentence for a particular crime, a sentencing judge has discretion to order an offender to 

serve individual counts of a sentence consecutively to each other or to sentences 
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imposed by other courts. R.C. 2929.14(C)(4) permits a trial court to impose consecutive 

sentences if it finds that (1) consecutive sentencing is necessary to protect the public from 

future crime or to punish the offender, (2) consecutive sentences are not disproportionate 

to the seriousness of the offender’s conduct and to the danger the offender poses to the 

public, and (3) any of the following applies: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed 

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or 

was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or 

more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by the 

offender. 

{¶ 24} Moore asserts that the trial court’s imposition of consecutive sentences is 

contrary to one of the overriding purposes of felony sentencing, namely “to punish the 

offender using the minimum sanctions that the court determines accomplish those 

purposes without imposing an unnecessary burden on state or local government 

resources.” In doing so, Moore conflates the analysis for determining the individual 

sentences with the analysis for determining whether consecutive sentences are 
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warranted. See State v. Fyffe, 2018-Ohio-112, __ N.E.3d __, ¶ 35 (2d Dist.). The thrust 

of his argument is that the trial court erred in imposing an aggregate 19-year sentence; 

he does not argue that the individual 8-year, 8-year, and 3-year sentences for the 

robberies and abduction, respectively, were unsupported by the record. 

{¶ 25} In imposing consecutive sentences, the trial court made the findings 

required by R.C. 2929.14(C)(4). With respect to the third prong, the court found that 

Moore’s history of criminal conduct demonstrated that consecutive sentences were 

necessary to protect the public and that the harm from Moore’s course of conduct was so 

“great or unusual” that no single term would adequately reflect the seriousness of the 

offenses. The trial court stated at sentencing that it had reviewed the presentence 

investigation report. The State also played for the court a surveillance video from the 

Speedway, which showed the offense (State’s Exhibit 1). 

{¶ 26} The presentence investigation report (PSI) reflects that Moore was 31 years 

old at the time of the offenses. He has an extensive criminal history, both as a juvenile 

and an adult. He was found delinquent for committing numerous offenses of theft, 

receiving stolen property, and robbery, among other crimes. He was committed to the 

Department of Youth Services as a minor, and was later bound over to adult court for 

aggravated robbery charges, for which he was found guilty; Moore served seven years in 

prison for aggravated robbery with a firearm specification. As an adult, he was 

sentenced to two years in prison for burglary (2009), to six months in prison for 

possession of cocaine (2010), and to three years in prison for another burglary (2010). 

In 2014 and 2015, Moore had misdemeanor convictions for falsification, complicity to 

theft, theft, and resisting arrest. 
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{¶ 27} Moore acknowledged at his plea hearing that he was on post-release 

control. Defense counsel stated at the plea hearing that Moore believed that the postrelease control was set to expire in November 2016; the trial court’s judgment entry 

indicated that it was to expire on September 5, 2016. (The PSI indicates that, on 

November 9, 2010, Moore was convicted of burglary in Mercer County, and he was 

sentenced to three years in prison. The post-release control obligation appears to stem 

from this Mercer County conviction, but that judgment entry is not before us.) 

{¶ 28} Upon review of Moore’s extensive criminal history for similar offenses, 

including the fact that he has previously been incarcerated for aggravated robbery and 

two separate burglaries, we cannot find, as required by the Ohio Supreme Court, that the 

trial court’s imposition of consecutive sentences was clearly and convincingly 

unsupported by the record. Given that conclusion, we need not address whether the trial 

court’s “course of conduct” finding was clearly and convincingly unsupported by the 

record.

{¶ 29} Moore’s second assignment of error is overruled. 

IV. Ineffective Assistance of Counsel 

{¶ 30} In his third assignment of error, Moore claims that his trial counsel rendered 

ineffective assistance by failing to raise that his robbery (Count 5) and abduction (Count 

7) charges were allied offenses of similar import. Moore argues that those offenses were 

allied offenses and that counsel’s actions prejudiced him in that the trial court imposed 

consecutive sentences for those offenses. For the reasons stated above, we find that 

the robbery and abduction charges for the Speedway robbery were not allied offenses of 

similar import. Accordingly, counsel did not act deficiently in failing to seek the merger 
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of those charges. 

{¶ 31} Moore’s third assignment of error is overruled. 

V. Conclusion 

{¶ 32} The trial court’s judgment will be affirmed. 

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

WELBAUM, P. J. and DONOVAN, J., concur. 

Copies mailed to: 

Andrew P. Pickering 

Scott N. Blauvelt 

Hon. Douglas M. Rastatter