[Cite as State v. Linde , 2013-Ohio-3503.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v.

ROBERT LINDE Appellant C.A. No. 26714

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 06 1461 (A)

DECISION AND JOURNAL ENTRY Dated: August 14, 2013

WHITMORE, Judge. {¶1} Defendant-Appellant, Robert Linde, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.

I {¶2} A grand jury indicted Linde on counts of aggravated robbery, aggravated burglary, and possession of criminal tools after he and another man, Angelo Santamaria, broke into the home of George Nemeth and later assaulted him. Linde pleaded guilty to aggravated robbery and aggravated burglary. In exchange fo r his guilty plea, the State dismissed the charge for possession of criminal tools. The court then sentenced Linde on both his aggravated robbery and aggravated burglary counts for a combined to tal of 15 years in prison. Linde appealed from

his convictions. {¶3} On appeal, this Court reversed Linde’s c onvictions because the trial court had not applied State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, in the first instance to determine2

whether Linde’s convictions were a llied offenses of similar import. State v. Linde , 9th Dist. Summit No. 26209, 2012-Ohio-2885, ¶ 4. The c ourt conducted a hearing upon remand and

determined that Linde’s convi ctions should not merge under Johnson . The court then ordered a pre-sentence investigation report (“PSI”) and set the matter for a sentencing hearing. Subsequently, the court ordered Linde’s sentences to run consecutively and sentenced him to a total of 15 years in prison. {¶4} Linde now appeals and raises two a ssignments of error for our review.

II {¶5} Linde argues on appeal that the trial court erred when it imposed sentences on allied offenses and when it imposed consecutive sentences. These issues are fact-intensive and

cannot be resolved without a co mplete understanding of all material and relevant facts. Unfortunately, Linde’s brief is devoi d of any facts about the offenses. {¶6} It is appellate counsel’s duty to pr eface legal arguments with a candid presentation of all relevant f acts, both good and bad. The clear command of Local Rule 7(B)(6)

is that the statement of the facts must be releva nt to the assignments of error and “should always be completely accurate, contain reference to a ll material facts, both fa vorable and unfavorable, and * * * be supported by references to the reco rd * * *.” To avoid any confusion about the importance of the facts to this Court, an appendix to the Local Rules further explains what the Court expects to see in the statement of the facts. This brief fails to meet these expectations. {¶7} Further, Linde’s brief lacks reference to sp ecific pages or paragraphs. Local Rule 7(G) requires citations to include case citations with the particul ar page or paragraph numbers relevant to the point of law for which the case is cited. Linde’s brief includes citations to several cases, including quotes and block quot es, but there is not a single pi npoint cite in the entire brief.3

{¶8} Local Rule 7(B)(7) requires a brief to include an argument and law. This section of the brief should include the appellant’s argu ment and supporting reasons with citations to authorities. Linde’s brief includes citations to authorities, but lacks a cogent argument. For example, the “argument” for the first assignme nt of error includes only two paragraphs and ignores the standard of review. The argument sect ion contains conclusory statements that are not supported by any facts about the offenses or analysis that would support them. {¶9} After having read the brief, we know only that Linde was convicted of aggravated robbery and aggravated burglary. We do not know anything else about the circumstances of the two offenses and, therefore, it is impossible to ev aluate whether the trial court erred by reading the brief. Although the brief concludes that Linde’s intent “was to commit a robbery, with the burglary being merely incidental to the robbery[, ]” the brief presents no facts to support this conclusion. The reader is at a complete lo ss to understand anything about the facts or circumstances of the offenses. This is particularly problematic when the facts are precisely what

this Court must consider when re viewing the trial court’s decision. {¶10} Notwithstanding the problems with the br ief highlighted above, we have reviewed the record and considered the claims raised by Linde. Assignment of Error Number One

THE TRIAL COURT ERRED IN DETER MINING THAT THE OFFENSES OF AGGRAVATED ROBBERY AND AGGRAVATED BURGLARY WERE NOT ALLIED OFFENSES OF SIMILAR IMPORT. {¶11} In his first assignment of error, Linde argues that the trial court erred by sentencing him on both his aggravated robbery an d aggravated burglary counts as the two counts are allied offenses of similar import. We disagree. {¶12} Ohio’s allied offense statute provides as follows:4

(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 de fendant may be convicted of only one. (B) Where the defendant’s conduct constitute s two or more offenses of dissimilar import, or where his conduct results in tw o or more offenses of the same or similar kind committed separate ly or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convict ed of all of them. R.C. 2941.25. Thus, two or more offenses aris ing from the same conduct and similar import only may result in one conviction. R.C. 2941.25( A). Two or more offenses may result in multiple convictions, however, if: (1) they are offenses of dissimilar import; (2) they are separately committed; or (3) th e defendant possesses a separate animus as to each. R.C. 2941.25(B). {¶13} “When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduc t of the accused must be considered.” Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, at syllabus. A plurality of the Ohio Supreme Court set forth a two-part test to analyze whether two offenses are allied offenses of similar import. First,

one must determine whether the offenses at issue could be committed by the same conduct. Id. at ¶ 47. One does so by asking “whether it is possible to commit one offense and commit the other with the same conduct, not wh ether it is possible to commit one without committing the other.” (Emphasis sic.) Id. at ¶ 48. See also id. at ¶ 66 (O’Connor, J., concurring.) (offenses are allied “when their elements align to such a degree that commission of one offense would probably result in the commission of the other o ffense”). Second, one must ask whether the offenses actually were committed by the same c onduct, “i.e., ‘a single act, committed with a single state of mind.’” Johnson at ¶ 49, quoting State v. Brown , 119 Ohio St.3d 447, 2008-Ohio-5

4569, ¶ 50 (Lanzinger, J., concurring in judgment only). If the answer to both inquiries is yes, the offenses will merge. Johnson at ¶ 50. {¶14} Linde argues that his convictions shoul d have merged because his “aggravated robbery charge was merely incidental to the sepa rate underlying charge of aggravated burglary.” Initially, we note that the record only contains limited facts because Linde was convicted as a result of pleading guilty. The following facts are facts that emerged at Linde’s sentencing hearing. {¶15} Both Linde and Santamaria struggled w ith drug dependencie s and believed that the victim, Nemeth, had a large amount of cash in his home. The two “cas[ed]” the house and eventually approached it armed with masks, hoods, gloves, a police scanner, a knife, and zip ties. Nemeth saw the men coming and called 911. He then hid until the police arrived, per the 911 dispatcher’s instructions. Meanwhile, Linde an d Santamaria knocked on Nemeth’s door and, after no one answered, broke it down. They were inside the home from the point in time that they broke down the door until the police arrived. 1 When Nemeth saw a cruiser appear at the front of the house, he emerged from his hiding place. Linde and Santamaria then attacked Nemeth, wrestled him to the ground, and threatened to cut him with their knife unless he kept quiet. The police stopped the attack as it was o ccurring. As a result of the attack, Nemeth suffered a split lip, bloody nose, and a hematoma. {¶16} “No person, in attempting or committing a theft offense, * * * shall * * * [h]ave a deadly weapon on or about the offender’s person or under the offender’s control and either

1 There is no indication in the record how much time elapsed between the period when Linde and Santamaria entered the home and when the police arrived.6

display the weapon, brandish it, indicate that th e offender possesses it, or use it.” R.C. 2911.01(A)(1). Moreover, “[n]o person, in attemp ting or committing a theft offense, * * * shall * * * [i]nflict, or attempt to inflict, serious physical harm on another.” R.C. 2911.01(A)(3). A violation of either R.C. 2911.01(A)(1) or (A )(3) constitutes aggravated robbery. R.C. 2911.01(C). Meanwhile, a violation of R.C. 2911.11 constitutes aggravated burglary. R.C. 2911.11(B). The aggravated burglary statute provides, in relevant part: No person, by force, stealth, or deception, sh all trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * (1) [t]he offender inflicts, or attempts or threatens to inflict physical harm on another[, or] (2) [t]he offender has a deadly weapon or dangerous ordnance on or about the offender’s person or under the offender’s control. R.C. 2911.11(A)(1)-(2). Linde’s indictment char ged him with the foregoing two alternative subdivisions of aggravated robbery and the foregoi ng two alternative subdivisions of aggravated burglary. He was then convicted, consistent with his indictment, of the alternative subdivisions

of both offenses. 2 {¶17} The trial court applied Johnson and determined that Linde’s aggravated robbery and aggravated burglary counts were not allied offe nses of similar import. The court held that the offenses were committed separately, such that the aggravated burglary was complete when Linde entered Nemeth’s home and the aggravat ed robbery did not occur until after Nemeth emerged and Linde and Santamaria attacked him with the knife. In the alternative, the court found that Linde possessed a separate animus fo r the two offenses, as he only broke into

2 We note that both Linde’s indictment and senten cing entry contain typographical errors as they both refer to R.C. 2911.11(A)(3) as a subdivisi on of aggravated burglary. R.C. 2911.11 only contains subdivisions (A)(1) and (A)(2). Accordingly, Linde should have been indicted and convicted of a violation of R.C. 2911.11(A)(1)/ (2), not R.C. 2911.11(A)(1)/(3). Because the record supports the conclusion that the error was cl erical in nature, however, we merely note it at this time for purposes of clarification.7

Nemeth’s house for the purpose of stealing money in it and did not decide to attack Nemeth until

Linde later discovered that Neme th was, in fact, at home. {¶18} Since Johnson , numerous appellate c ourts have determined that aggravated robbery and aggravated burglary are not allied of fenses of similar import because an aggravated burglary is complete upon an offender’s forced entrance and an aggravated robbery requires

additional conduct. See State v. Howard , 5th Dist. Stark No. 2012-CA-00061, 2013-Ohio-1972, ¶ 58-61; State v. Broomfield , 10th Dist. Franklin No. 12AP-469, 2013-Ohio-1676, ¶ 23; State v.

Adams , 1st Dist. Hamilton No. C-120059, 2013-Ohio-926, ¶ 25-28; State v. Jackson , 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 137; State v. Rowe , 3d Dist. Seneca No. 13-10-14, 2011-Ohio-5739, ¶ 52-53; State v. Hakim , 6th Dist. Lucas No. L-10-1153, 2011-Ohio-5525, ¶ 43. The exception to the general rule has been in cases where the offender was convicted strictly under the physical harm subsections of both the aggravated burglary and aggravated robbery statutes, as neither crime could be completed until the physical harm element was satisfied. See

State v. Shears , 1st Dist. Hamilton No. C-120212, 2013-Ohio-1196, ¶ 41-42; State v. Jarvi , 11th Dist. Ashtabula No. 2011-A-0063, 2012-Ohio-5590, ¶ 17-25. Here, Linde was not convicted strictly under the physical harm subsections of aggravated burglary and aggravated robbery. Rather, he was convicted under alterna tive subdivisions of both offenses. Compare Shears at ¶ 41-42; Jarvi at ¶ 17-25. {¶19} The record supports the conclusion that Linde’s aggravated burglary offense was complete when he broke into Nemeth’s house with a knife for the purpose of taking money from

the house. See R.C. 2911.11(A)(2). It further supports the conclusion that he then later committed aggravated robbery when Nemeth emerged from his hiding place and Linde attacked him, thereby causing him serious physical harm. See R.C. 2911.01(A)(3). Based on our review8

of the record, the two offenses were separately committed. See Howard at ¶ 58-61; Broomfield at ¶ 23; Adams at ¶ 25-28; Jackson at ¶ 137; Rowe at ¶ 52-53; Hakim at ¶ 43. They also were committed with a separate animus, as Linde broke into Nemeth’s seemingly empty home strictly for the purpose of stealing money and only later attacked him after discovering that Nemeth was, in fact, at home. See State v. Van Horn , 8th Dist. Cuyahoga No. 98751, 2013-Ohio-1986, ¶ 19- 21. Therefore, the trial court did not err by se ntencing Linde on both his aggravated robbery and aggravated burglary counts. Linde’s fi rst assignment of error is overruled. Assignment of Error Number Two

THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT BY IMPOSING MORE THAN THE MINIMUM SENTENCE AND BY IMPOSING AN IMPROPER SENTENCE. {¶20} In his second assignment of error, Linde argues that the trial court erred by sentencing him to more than the minimum prison term on each of his two offenses and by ordering his sentences to run consecutively. We consider each argument separately.

Sentences in Excess of the Statutory Minimum {¶21} Linde argues that his sentence is contrary to law because the trial court failed to consider the principals and purposes of sentencing before imposing more than the minimum prison term on each of his counts. R.C. 2929. 11 governs the overriding purposes of felony sentencing and defines those purposes as the need “to protect the public from future crime by the offender and others and to punish the offende r using the minimum sanctions that the court determines accomplish those purposes without im posing an unnecessary burden on [S]tate * * * resources.” R.C. 2929.11(A). It instructs a sent encing court, in selecting a sentence, to “consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, a nd making restitution to the victim of the offense, the public,9

or both.” Id. “R.C. 2929.12(A) sets forth the general gu idance factors associated with felony sentencing, including the seriousness of the conduc t, the likelihood of recidivism, and ‘any other factors that are relevant to achieving thos e purposes and principles of sentencing.’” State v.

Jones , 9th Dist. Summit No. 24469, 2010-Ohio-879, ¶ 39, quoting R.C. 2929.12(A). Although a sentencing judge must consider the principals a nd purposes of sentencing in imposing a sentence, he or she is not required to make findings or give their reasons before imposing a maximum

sentence. State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, para graph three of the syllabus. “[W]here the trial court does not put on the record its consideration of [R.C.] 2929.11 and 2929.12, it is presumed that the trial court gave proper consideration to those statutes.” (Alterations omitted.) State v. Steidl , 9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 18, fn. 4. {¶22} The trial court here specifically indicated in its sentencing entry that it considered

the factors set forth in R.C. 2929.11 and 2929.12 in imposing Linde’s sentence. Moreover, Linde’s prison terms were within the statutory range, as the trial court only sentenced him to eight years on each count out of a possible eleven years on each count. See R.C. 2929.14(A)(1). The record does not support Linde’s argument th at the court erred as a matter of law in sentencing him to more than the minimum sentence on each of his counts. See State v. Jackson , 9th Dist. Summit No. 26234, 2012-Ohio-3785, ¶ 25-26. {¶23} The record reflects that the court had several opportunities to consider and discuss

Linde’s sentence in this matter. The court cond ucted two sentencing hearings, one before this Court’s remand and one after, as well as a hearing on the allied offense issue. The court heard from the parties at both sentencing hearings and discussed its sentencing rationale. The court acknowledged Linde’s addiction to drugs, but also stated that Linde “mad e a terrible, terrible10

decision” by choosing to commit a crime that viol ated “the sanctity of [the] home.” The court also noted that “things could have gotten a lo t, lot worse” had the police not intervened. Additionally, the court or dered and reviewed PSIs prior to both sentencing hearings. It is clear that the trial court relied upon the PSIs in reachin g its sentencing decision. The PSIs, however, are not a part of the record on appeal. When a trial court has clear ly relied upon a PSI in imposing a sentence, a defendant challenging his se ntence bears the burden of ensuring that the PSI is included in the appellate record. State v. Vitt , 9th Dist. Medina No. 11CA0071-M, 2012- Ohio-4438, ¶ 12-15. In the absence of a comple te record, this Court has no choice but to presume regularity. Id. {¶24} Linde has not shown that the trial court erred in sentencing him to more than the minimum prison term on each of his two offenses. A trial court is not required to make findings before imposing more than a minimum sentence. State v. Foster , 109 Ohio St.3d 1, 2006-Ohio856, paragraph seven of the syllabus. Nevertheless, the court here di d set forth at least some of its rationale for imposing Linde’s sentence. The court also clearly relied upon PSIs in fashioning the exact length of Linde’s sentence. Yet, Linde failed to ensure that the PSIs were included in the appellate record. Given the record before us, we cannot conclude that the trial court failed to consider the appropriate sentencing factors befo re sentencing Linde or that its decision to sentence Linde to more than the maximum pr ison term on each offense constituted error. Linde’s argument to the contrary lacks merit.

Consecutive Sentences {¶25} R.C. 2929.14 provides, in relevant part, that: If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the of fender to serve the prison terms consecutively if the court finds that the c onsecutive service is necessary to protect the public from future crime or to puni sh the offender and that consecutive11

sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public , and if the court also finds any of the following: (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 Re vised Code, or was under postrelease 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 ha rm 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 th e 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 pub lic from future crime by the offender. R.C. 2929.14(C)(4). Thus, before a trial court may impose consecutive sentences, it must make three findings: (1) that consecutive sentences are necessary to protect the public from future crime or to punish the offender; (2) that consec utive sentences are not disproportionate to the

seriousness of the offender’s c onduct and to the danger the offend er poses to the public; and (3) that one of the three particular findings set fort h in R.C. 2929.14(C)(4)(a)-(c) applies. The court need not explicitly set forth its findings in its sentencing entry. State v. Just , 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 49. Even so, it must be clear from the record that the court did, in fact, make the required findings. State v. Brooks , 9th Dist. Summit Nos. 26437 & 26352, 2013-Ohio-2169, ¶ 12-13. {¶26} Linde’s brief contains a barebones argume nt that the court failed to make the required statutory findings before imposing c onsecutive sentences upon him. The court, however, specifically included in its sentencing entry that it was imposing consecutive sentences because (1) they were necessary to protect th e public or punish Linde; (2) they were not disproportionate to the seriousne ss of Linde’s conduct and to the danger he posed to the public; and (3) the harm caused by the two offenses wa s so great or unusual that no single prison term12

would adequately reflect the seriousness of Linde ’s conduct. Thus, the court’s sentencing entry set forth all three of R.C. 2929.14(C)(4)’s required findings. Compare Brooks at ¶ 15. Linde’s argument that the trial court failed to make the required statutory findings before imposing consecutive sentences upon him lacks merit. Lind e’s second assignment of error is overruled.

III {¶27} Linde’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT13

MOORE, P. J. CONCURS. BELFANCE, J. CONCURRING IN JUDGMENT ONLY. {¶28} I concur in the majority’s judgment. However, I would overrule Mr. Linde’s assignments of error in light of the limited arguments made on appeal. See App.R. 16(A)(7);

Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). {¶29} I also write to emphasize that although some Ohio Appellate Courts seemed to have come to the conclusion that aggravated robbery and aggravated burglary are not allied offenses under any circumstances, I believe that such an absolute position cannot be taken under

State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314. As indicated in the main opinion, some

courts have concluded that th ese offenses must merge. See, e.g., State v. Jackson , 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 137 (“Since Johnson was decided, we have held that aggravated robbery and aggravated burglary often are not allied offe nses of similar import, and therefore do not merge for sentencing, becaus e the a burglary is complete upon entry into the victim’s home, and a robbery subsequently committed inside the home constitutes a new, separate offense.”). However, under Johnson , it is necessary to examine: (1) whether the

offenses could be committed by the same conduct and (2) whether the offenses in the case at hand actually were committed w ith the same conduct. State v. Washington , 9th Dist. Lorain No. 11CA010015, 2012-Ohio-2117, ¶ 8, citing Johnson at ¶ 47-49. Moreover, the analysis must be guided by the theory advanced by the prosecution. “[I]n making its allie d offense determination, a trial court must be guided by a review of the evidence introduced at trial and constrained by the theories and legal arguments set forth by the State.” Washington at ¶ 9, citing Johnson at ¶ 69- 70 (O’Connor, J., concurring in judgment). Even t hough there may be alternative theories, a trial14

court’s determination of whether two offenses constitute offenses of similar import is guided by the arguments made by the State. Washington at ¶ 10. For these reasons, I believe that the question of whether aggravated robbery and a ggravated burglary merge should be decided on a case-by-case basis rather than in absolu te terms as some districts have done. 3

APPEARANCES: LEONARD J. BREIDING, II, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

3 Although some appellate courts have based their analysis upon the premise that the aggravated burglary is complete upon entry into the victim’s home, it is worth noting that the Supreme Court has held, albeit in a context different than allied offenses, that “[t]he crime of aggravated burglary continues so long as the defendant re mains in the structure being burglarized.” State v. Powell , 59 Ohio St.3d 62 (1991), paragraph one of the syllabus.