Youngstown Daily Legal News

Court of appeals upholds 20-year sentence for burglar

ANNIE YAMSON
Special to the Legal News
Published: July 1, 2014

In Ohio’s 9th District, a panel of judges recently ruled that a man’s burglary and robbery convictions handed down in the Summit County Court of Common pleas should not have merged for sentencing.

The defendant, Marid Asefi, was indicted on charges of aggravated burglary, aggravated robbery, felonious assault, grand theft and theft from the elderly.

The charges stemmed from a June 26, 2011 robbery that Asefi committed with accomplices.

They broke into the home of David Allen then assaulted and robbed him, according to case summary.

The state dismissed the remaining charges after Asefi agreed to plead guilty to the aggravated burglary and aggravated robbery counts.

He was sentenced to a total of 20 years in prison.

After his direct appeal, the 9th District remanded Asefi’s case for the trial court to consider State v. Johnson.

The Summit County court held a hearing and considered the issue of merger but Asefi objected, arguing that the hearing needed to be an evidentiary hearing.

The objection was overruled and the trial court proceeded to impose the same 20-year sentence.

In his most recent appeal, Asefi argued that the trial court was required to hold an evidentiary hearing to determine whether his offenses were allied offenses of similar import and subject to merger.

“We disagree,” wrote Presiding Judge Eve Belfance on behalf of the court of appeals.

Judge Belfance noted that, pursuant to the Ohio Supreme Court’s holding in State v. Johnson, a trial court has a duty to conduct an inquiry regarding the circumstances of a defendant’s offenses when the question of merger is at stake.

The state contended that the allied offense inquiry required a less formal hearing but neither the state or Asefi cited any case directly on point.

“Nevertheless, we are not without some guidance,” wrote Judge Belfance.

Citing the Supreme Court’s holding in State v. Washington, Judge Belfance stated that “merger is a sentencing question, not an additional burden of proof shouldered by the state at trial.”

The appellate panel also consulted R.C. 2929.19, which sets out a “procedure less formal than an evidentiary hearing for interested parties to submit arguments and information to the trial court.”

“While the trial court must conduct an inquiry into the circumstances of the offense, the procedures set forth in R.C. 2929.19 do not require an evidentiary hearing with sworn testimony and cross-examination,” wrote Judge Belfance.

Asefi argued that, since there was a guilty plea, the trial court never had the opportunity to review evidence during a trial, therefore, that opportunity should have been provided before sentencing via a formal hearing.

“We are not persuaded by this argument given that R.C. 2929.19 provides wide latitude for a defendant to present any information relevant to the merger issue including the defendant’s own statements as to the conduct surrounding the offenses that may be subject to merger,” wrote Judge Belfance.

The appellate panel concluded that the trial court properly determined that an evidentiary hearing was unnecessary and it overruled Asefi’s argument.

The court of appeals went on to find that the offenses did not merge for sentencing and affirmed the judgment of the Summit County court with judges Beth Whitmore and Donna Carr concurring.

The case is cited State v. Asefi, 2014-Ohio-2510.

[Back]