State v. Robinson , 2019 Ohio 2330 ( 2019 )

[Cite as State v. Robinson, 2019-Ohio-2330.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107598
v. :
MICHAEL D. ROBINSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 13, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-628485-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carson M. Strang, Katherine E. Mullin, and
Eben McNair, Assistant Prosecuting Attorneys, for
appellee.
Jonathan N. Garver, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, Michael Robinson, appeals his consecutive
sentence and claims the following error:
Since the findings necessary for the imposition of a consecutive
sentence on the drug possession offense charged in Count VII of the
indictment are not supported by the evidence, the imposition of a
consecutive sentence on Count VII is contrary to law and a denial of
due process of law.
We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
Robinson was charged in a seven-count indictment with assault on a
police officer, resisting arrest, having weapons while under disability, carrying a
concealed weapon, improper handling of a firearm in a motor vehicle, receiving
stolen property, and drug possession. The drug possession charge, set forth in Count
7 of the indictment, alleged that Robinson knowingly possessed or used “a controlled
substance or a controlled substance analog” that was “a compound, mixture,
preparation, or substance containing cocaine” in an amount less than five grams.
The drug possession charge also included a one-year firearm specification.
Robinson pleaded guilty to all the charges in the indictment. The
prosecutor explained at the plea hearing that the plea agreement did not include a
reduction in the charges. Instead, the state agreed to forego a reindictment that
would include a first-degree felony charge and firearm specification in exchange for
Robinson’s agreement to plead guilty to the current indictment. The prosecutor
further explained that if the case were re-presented to the grand jury, the state would
omit the drug possession charge alleged in Count 7 because “the labs came back
negative on that count.” (Tr. 4.) The prosecutor concluded that even though there
was no reduction in charges, “the defendant is essentially getting a benefit by
pleading guilty to the indictment as currently charged rather than face
reindictment.” (Tr. 4.) Robinson indicated that he understood the terms of the plea
agreement. (Tr. 14.) He also denied that any threats or promises had been made
against him to induce his guilty pleas. (Tr. 8, 17.)
The court sentenced Robinson to 18 months for assaulting a police
officer, time served for resisting arrest, 36 months for having a weapon while under
disability, 18 months for carrying a concealed weapon, 18 months for improperly
handling a firearm in a motor vehicle, 18 months for receiving stolen property, and
one year for drug possession to be served consecutive to the one-year on the firearm
specification attendant to that charge. The court ordered the 36 months on the
having weapons while under disability charge and the two years on the drug
possession charge, including the one-year firearm specification, to be served
consecutive to each other and concurrent with all other sentences, for an aggregate
five-year prison term. Robinson now appeals the imposition of consecutive
sentences.
II. Law and Analysis
In his sole assignment of error, Robinson argues the trial court’s
findings in support of consecutive sentences are not supported by the record.
When reviewing felony sentences, we apply the standard of review set
forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231. R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, modify, or vacate and remand a challenged felony sentence if the court
clearly and convincingly finds either that the record does not support the sentencing
court’s findings or the sentence is otherwise “contrary to law.”
Robinson does not dispute that the trial court made all the findings
required by R.C. 2929.14(C)(4). He argues the consecutive sentence imposed on his
drug possession conviction is not supported by the record because the prosecutor
conceded that lab tests done on the suspected drugs found in Robinson’s possession
were negative. He argues:
Since the record affirmatively demonstrates that Robinson did not
engage in the conduct charged under Count VII, the finding that
consecutive sentences would not be disproportionate to the seriousness
of the offender’s conduct, as required by Ohio Rev. Code
§ 2929.14(C)(4), is not supported by the record. The imposition of a
consecutive sentence for an offense that was not committed is clearly
disproportionate to the seriousness of the offender’s conduct!
(Appellant’s merit brief at 8.) Robinson further contends the imposition of a
consecutive sentence on his drug conviction violates the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and Article I, Section 16
of the Ohio Constitution because the record shows he is innocent of the drug
possession charge.
However, R.C. 2929.14(C)(4) does not require the court to find that
factual circumstances support the conviction, and Robinson does not challenge the
validity of his drug possession conviction in this appeal. Indeed, Robinson
knowingly, intelligently, and voluntarily pleaded guilty to the indictment and
understood the state did not have evidence to prove the drug possession charge.
Courts, including this court, have affirmed convictions based on guilty pleas to
offenses the state could not prove where the defendant knowingly, intelligently, and
voluntarily entered the guilty pleas as part of a “negotiated plea agreement.” See,
e.g., State v. Lester, 8th Dist. Cuyahoga No. 106850, 2018-Ohio-4893; State v.
Brawley, 8th Dist. Cuyahoga No. 79705, 2002-Ohio-3115; State v. Wickham, 5th
Dist. Muskingum No. CA 76-40, 1977 Ohio App. LEXIS 10210 (Sept. 28, 1977).
Consecutive sentences are not imposed on a single conviction.
Consecutive sentences can only be imposed on multiple convictions and the purpose
of consecutive sentencing goes beyond the punishment for any particular, solitary
act. The findings required for the imposition of consecutive sentences involve
consideration of the defendant’s course of conduct as a whole as opposed to
individual acts considered in isolation. R.C. 2929.14(C)(4) provides that in order to
impose consecutive sentences, the trial court must find that consecutive sentences
are (1) necessary to protect the public from future crime or to punish the offender,
(2) that such sentences would not be disproportionate to the seriousness of the
conduct and to the danger the offender poses to the public, and (3) that one 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 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 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.
In making the findings in support of consecutive sentences in this
case, the trial court stated, in relevant part:
And I find that a consecutive prison sentence is necessary to protect the
community and to punish you and it’s not disproportionate and I find
the harm was so great or unusual that a single terms does not adequately
reflect the seriousness of your conduct and that you injured a police
officer, you had a gun on you, and I find that that is extremely serious.
And I also find that your criminal history shows that a consecutive
sentence is necessary to protect the public. I’ve already outlined your
lengthy criminal history that includes many crimes of violence as well.
Also you were on post-release control at the time that this crime was
committed as well. So for all of these reasons a consecutive prison
sentence is necessary.
(Tr. 41-42.) The court considered the seriousness of Robinson’s conduct as a whole
rather than focusing on separate convictions. The court found that a consecutive
sentence was not disproportionate to Robinson’s conduct generally, without regard
to any individual act.
Moreover, Robinson accepted the state’s offer and knowingly,
intelligently, and voluntarily pleaded guilty to the indictment, even though the state
conceded it could not prove the drug possession charge alleged in Count 7. To now
claim prejudice because the court imposed consecutive sentences on the drug
possession conviction, after he received the benefit of the negotiated plea bargain, is
invited error. See State v. Brawley, 8th Dist. Cuyahoga No. 79705, 2002-Ohio-3115,
¶ 20 (A plea to a nonexistent crime is invited error.). Under the invited error
doctrine, a party is not “permitted to take advantage of an error which he himself
invited or induced the trial court to make.” State ex rel. Bitter v. Missig, 72 Ohio
St.3d 249, 254, 648 N.E.2d 1355 (1995).
The sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
RAYMOND C. HEADEN, J., CONCURS IN JUDGMENT ONLY