State v. Quigley , 2013 Ohio 3238 ( 2013 )

[Cite as State v. Quigley, 2013-Ohio-3238.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99002
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SEAN QUIGLEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-542618
BEFORE: Stewart, A.J., Kilbane, J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 25, 2013
ATTORNEYS FOR APPELLANT
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
Dean Valore
Valore & Gordillo, L.L.P.
21055 Lorain Road
Fairview Park, OH 44126
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. In 2010, defendant-appellant Sean Quigley pleaded guilty
in five different cases to charges of breaking and entering, theft, attempted theft, burglary,
carrying a concealed weapon, and having a weapon while under disability. The court
ordered the sentences in each case to be served consecutively, resulting in a total sentence
of ten years. We affirmed those convictions on direct appeal, see State v. Quigley, 8th
Dist. No. 96299, 2011-Ohio-5500, but later granted an App.R. 26(B) motion to reopen the
appeal and held that Quigley had been denied the effective assistance of counsel because
his appellate lawyer failed to raise an issue of allied offenses in CR-542618 relating to
counts of burglary and theft. See State v. Quigley, 8th Dist. No. 96299,
2012-Ohio-2751, reopening allowed, Motion No. 451401 (June 14, 2012). On remand,
the court found that offenses in CR-542618 were allied offenses of similar import, and
the state elected to have Quigley sentenced only on the burglary count. The court then
conducted a de novo resentencing in CR-542618, imposed a two-year sentence in that
case and ordered that sentence to be served concurrently with Quigley’s sentences in the
other four cases, thus resulting in a total prison term of six years. In this appeal, Quigley
complains that the court failed to consider the relevant sentencing guidelines when
imposing sentence and failed to merge the sentences in all five cases.
{¶2} We reject at the outset any argument that involves a sentence other than that
imposed in CR-542618. In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, the Supreme Court held that in a remand based only on an allied offenses
sentencing error, “only the sentences for the offenses that were affected by the appealed
error are reviewed de novo; the sentences for any offenses that were not affected by the
appealed error are not vacated and are not subject to review.” Id. at ¶ 15, citing State v.
Saxon, 109 Ohio St.3d 176, 2006- Ohio-1245, 846 N.E.2d 824, at paragraph three of the
syllabus. The court’s duty to resentence was thus limited to conducting a de novo
resentencing in CR-542618. Our review is likewise limited solely to errors occurring in
that resentencing.
{¶3} With that limitation, we find the court fully complied with all sentencing
requirements. As noted by Quigley, his resentencing occurred after the effective date of
H.B. 86 and its various amendments to the sentencing statutes, so the court was required
to comply with the revised sentencing statutes. State v. Jones, 8th Dist. No. 98371,
2013-Ohio-489, ¶ 18; State v. Huber, 8th Dist. No. 98206, 2012-Ohio-6139, ¶ 25. The
record shows that the court did consider the relevant guidelines before imposing sentence.
See Tr. 14. In doing so, the court pointedly considered Quigley’s present
circumstances, saying, for example, that “[s]o while I don’t necessarily agree with the
sentence that was given you by a prior judge [a new judge handled the resentencing], I’m
willing to look a little deeper and give you some benefit of the doubt with regard to this
case.” Indeed, the court’s willingness to consider Quigley’s present circumstances
explains why it halved the length of the sentence originally imposed in CR-542618 and
ordered that it be served concurrent to the sentences imposed in the other four cases.
This resulted in a significant reduction of Quigley’s total prison time — from ten years to
six years. Quigley’s argument that the court ignored his present circumstances is so
flatly contradicted by the record that it borders on intentional misrepresentation.
{¶4} Quigley’s remaining argument is that the court should have merged all the
sentences imposed in all five cases because it thought they were part of an “ongoing
course of criminal activity.” Not only is this argument beyond the scope of the limited
resentencing allowed under Wilson, it is a mischaracterization of the court’s remarks.
The court did not imply that the charges in all five cases were part of a single course of
criminal conduct, but rather that they were part of what even defense counsel agreed was
a one-man “crime spree.”
{¶5} In this same vein, we reject the argument offered in Quigley’s supplemental
brief that the court erred by refusing to merge the counts in CR-542618 with those in
CR-542638. Quigley claims that the court itself stated that “I would suggest that in all
honesty, had they been together those cases would have merged as well * * *.” This is a
misrepresentation of the record — the quoted text was from a statement made by defense
counsel at sentencing, not the trial judge. Appellate counsel conceded as much at oral
argument. At no point did the trial judge state or suggest that he believed the counts in
CR-542618 should have merged with those in CR-542638.
{¶6} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR