State v. Norris ( 2017 )

[Cite as State v. Norris, 2017-Ohio-1570.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
CLARENCE P. NORRIS : Case No. CT2016-0037
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2016-0042
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 26, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ELIZABETH N. GABA
Prosecuting Attorney 1231 East Broad Street
Columbus, Ohio 43205
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
27 North Fifth Street, PO Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2016-0037 2
Baldwin, J.
{¶1} Appellant Clarence P. Norris appeals a judgment convicting him upon a plea
of guilty to aggravated burglary (R.C. 2911.11(A)(1)), three counts of aggravated robbery
(R.C. 2911.01(A)(1)), and six counts of kidnapping (R.C. 2905.01(A)(2) &(3)), with
accompanying firearm specifications (R.C. 2941.145), and one count of theft (R.C.
2913.02(A)(1)). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 26, 2014, appellant, along with a group of other individuals, invaded
a home. They entered with a firearm and a taser gun, and one of them stole a gun from
a kitchen drawer inside the house. After kicking in the door, they searched the home and
threatened the owner and her two young children. They tased the homeowner and
demanded money.
{¶3} Appellant was indicted on eleven felony counts: one count of aggravated
burglary, three counts of aggravated robbery, six counts of kidnapping and one count of
theft. All counts except the theft carried accompanying firearm specifications. Appellant
agreed to enter a plea of guilty. The State and appellant agreed to recommend a
sentence of ten years incarceration, and appellant agreed to testify against the others
involved in the home invasion.
{¶4} At the plea hearing, the trial court ascertained that appellant understood that
each of the first ten counts carried a firearm specification, and that a firearm specification
carries a three-year mandatory sentence, to be served consecutively to any other
sentence. Tr. (Plea) 6. Further, the plea form reflected that the sentences on the firearm
specifications were mandatory and mandatory consecutive. The plea form further recited
Muskingum County, Case No. CT2016-0037 3
that appellant understood that any sentencing recommendation did not have to be
followed by the court. Appellant argued at the plea hearing that the firearm specifications
should merge into a single three-year sentence, and the trial court asked counsel to
submit his argument in writing.
{¶5} The case proceeded to sentencing. At sentencing, the issue of the merger
of the firearm specifications was discussed. Appellant argued that the firearm
specifications should merge, and only one three-year mandatory sentence should be
served. The State disagreed. The court noted that if they all had to be consecutive, the
State could not live up to its plea negotiations. The State then argued that the court must
impose two consecutive firearm specifications pursuant to statute, and after that it was
discretionary with the court as to whether to impose any additional specifications. When
counsel for appellant noted that it did not make a difference if the time served was
pursuant to the firearm specifications or the underlying crime, the court stated that it did
make a difference, as the firearm specifications were mandatory time as opposed to
regular time. The court stated that it wanted to make sure appellant understood this
difference. Counsel for appellant informed the court that appellant did understand that
the second three years would make a difference as to his eligibility for earned days of
credit and some programs he could participate in. The court then clarified once again
that two firearm specifications are the minimum, especially when there were three victims.
{¶6} The court immediately thereafter asked appellant if there was anything he
wanted to say in his own behalf, and appellant said that he wanted to say he was sorry
to his family. The court merged three of the kidnapping counts into the other three
kidnapping counts, and sentenced appellant to ten years incarceration on each of the
Muskingum County, Case No. CT2016-0037 4
convictions for aggravated burglary, aggravated robbery, and kidnapping, and eighteen
months incarceration on the theft conviction, to be served concurrently. The court
sentenced appellant to three-year mandatory terms of incarceration on the firearm
specifications accompanying the aggravated burglary charge and one of the kidnapping
charges, to be served consecutively, for an aggregate term of sixteen years.
{¶7} Appellant assigns four errors on appeal:
{¶8} “I. IF THE TRIAL COURT IS CORRECT THAT NORRIS WOULD BE
SUBJECT TO THE MANDATORY IMPOSITION OF A CONSECUTIVE SENTENCE FOR
AT LEAST TWO OF THE FIREARM SPECIFICATIONS HE WAS ABOUT TO PLEAD
TO, WHERE, THE SENTENCE FOR EACH FIREARM SPECIFICATION MUST
MANDATORILY BE CONSECUTIVE TO THE OTHER PURSUANT TO R.C.
2929.14(B)(1)(g) AND ALSO CONSECUTIVE TO THE UNDERLYING CHARGES, THEN
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND ABUSED ITS
DISCRETION DURING THE PLEA HEARING, WHEN IT FAILED TO ADVISE NORRIS
OF THIS. APPELLANT’S PLEAS WERE NOT ENTERED KNOWINGLY
INTELLIGENTLY AND VOLUNTARILY BECAUSE THE TRIAL COURT FAILED TO
INFORM HIM THAT HIS GUILTY PLEAS REQUIRED THE COURT TO IMPOSE
MANDATORY CONSECUTIVE SENTENCES IN THAT FASHION.
{¶9} “II. IF THE TRIAL COURT IS WRONG IN ITS APPLICATION OF
2929.4(B)(1)(g), THEN THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT AND ABUSED ITS DISCRETION AT SENTENCING WHEN IT RULED
THAT THE COURT WAS REQUIRED BY LAW, MANDATORILY, TO RUN THE
FIREARM SPECIFICATION ASSOCIATED WITH COUNT ONE, AGGRAVATED
Muskingum County, Case No. CT2016-0037 5
BURGLARY, AND THE FIREARM SPECIFICATION ASSOCIATED WITH COUNT FIVE,
KIDNAPPING, CONSECUTIVE TO ONE ANOTHER AND TO THE UNDERLYING
COUNTS. R.C. 2929.14(B)(1)(g) ONLY APPLIES IF THE COURT SENTENCES A
DEFENDANT ON A FIREARM SPECIFICATION THAT IS ASSOCIATED WITH ONE OF
THE OFFENSES LISTED IN THAT SECTION; ANY OTHER RESULT WOULD BE
ABSURD.
{¶10} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION AT SENTENCING, WHEN IT DID NOT COMPLETELY
STOP THE SENTENCING HEARING ONCE IT DETERMINED THAT THE STATE AND
TRIAL COUNSEL COULD NOT ‘LIVE UP TO YOUR PLEA NEGOTIATIONS.’
{¶11} “IV. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES
CONSTITUTION.”
I.
{¶12} In his first assignment of error, appellant argues that his pleas were not
knowing, intelligent, and voluntary because the trial court failed to inform him that
mandatory consecutive sentences were required by law on at least two of the firearm
specifications.
{¶13} Criminal Rule 11(C)(2) details the trial court's duty in a felony plea hearing
to address the defendant personally and to convey certain information to such defendant,
and makes clear that the trial court shall not accept a guilty plea without performing these
duties. State v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010–Ohio–428. Crim.R.
11(C)(2)(a) states the trial court must determine, “* * * that the defendant is making the
Muskingum County, Case No. CT2016-0037 6
plea voluntarily, with the understanding of the nature of the charges and of the maximum
penalty involved, and, if applicable, that the defendant is not eligible for probation or for
the imposition of community control sanctions at the sentencing hearing.”
{¶14} Although literal compliance with Crim. R. 11 is preferred, the trial court need
only “substantially comply” with the rule when dealing with the non-constitutional elements
of Crim.R. 11(C). State v. Dunham, 5th Dist. Licking No.2011–CA–121, 2012–Ohio–2957,
citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981). Among the non-
constitutional rights enumerated under Crim.R. 11 are that the defendant be informed of
the maximum penalty. State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-
4044, ¶ 5. Compliance with the “maximum penalty” provision of Crim.R. 11(C)(2) requires
the court to inform the defendant, prior to taking a guilty plea, that a charge carries a
mandatory consecutive sentence. Id. at ¶12.
{¶15} Appellant argues that the court did not advise him that he would be required
to serve at least two of the mandatory, consecutive sentences imposed on the firearm
specifications. The following colloquy occurred during the plea hearing:
THE COURT: You understand that there’s a firearm specification as to
each and every one of those counts?
THE DEFENDANT: Yes, sir.
THE COURT: You understand that a firearm specification carries a three-
year mandatory sentence, which must be served consecutively to any other
sentence you receive?
THE DEFENDANT: Yes, sir.
Tr. (Plea) 6.
Muskingum County, Case No. CT2016-0037 7
{¶16} Therefore, the trial court informed appellant that he could serve up to ten
mandatory three-year consecutive sentences on the firearm specifications. Further, the
court informed appellant that the prosecutor’s recommendation of a ten-year sentence
was not binding on the court, and appellant stated that he understood. Tr. (Plea) 9. The
trial court substantially complied with Crim. R. 11 in the plea colloquy, and appellant’s
plea was entered knowingly, intelligently, and voluntarily.
{¶17} The first assignment of error is overruled.
II.
{¶18} In his second assignment of error, appellant argues that the trial court erred
in sentencing him to two mandatory consecutive terms on the firearm specifications
pursuant to R.C. 2929.14(B)(1)(g).
{¶19} Ordinarily, the court may not impose sentences on multiple firearm
specifications for felonies committed as part of the same act or transaction. R.C.
2929.14(B)(1)(b). However, R.C. 2929.14(B)(1)(g) provides an exception:
If an offender is convicted of or pleads guilty to two or more felonies,
if one or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in its
Muskingum County, Case No. CT2016-0037 8
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.
{¶20} The trial court imposed sentences on the firearm specifications for
aggravated burglary and one of the counts of kidnapping. Appellant argues that because
the court did not impose sentence on the firearm specification for aggravated robbery,
this statute does not apply.
{¶21} The statute does not specifically require that one of the firearm
specifications on which the court chooses to impose sentence be the specification
attached to one of the enumerated offenses. The statute simply requires that if the
offender is convicted or pleads guilty to two or more felonies, one of those felonies is
enumerated in the statute, and the offender is convicted of or pleads guilty to a firearm
specification in connection with two or more of the felonies, the court shall impose the
prison term for each of the two most serious specifications. The statute further does not
specify how the trial court is to determine which are the most serious specifications of
which the offender was convicted, and does not expressly state that the “most serious
specifications” are those attached to the listed crimes.
{¶22} In the instant case, appellant pled guilty to aggravated robbery and the
associated firearm specification. He pled guilty to ten felonies with associated firearm
specifications carrying mandatory three-year sentences. Pursuant to the statute, the
court did not err in imposing sentence on two of the felonies, even though the court
elected not to impose the firearm specification on one of the aggravated robbery
convictions.
{¶23} The second assignment of error is overruled.
Muskingum County, Case No. CT2016-0037 9
III.
{¶24} In his third assignment of error, appellant argues that the trial court erred in
not stopping the sentencing hearing once it determined that the State could not live up to
its plea negotiations.
{¶25} At the sentencing hearing, the following discussion took place concerning
the imposition of the firearm specifications:
MR. MCNAMARA: Ended up being two before they left. But nevertheless,
I believe all the specifications merge so that there is one three-year
mandatory to be served prior to any other time. Is that---
MR. LITTLE: I’m going to disagree with that. Firearm specifications don’t
merge. And it could only be one gun and it could not – they would
nonetheless still not merge. I think that’s 2929.14(B)(1)(g).
THE COURT: And they are all consecutive.
MR. LITTLE: What? I’m sorry?
THE COURT: Then they all have to be consecutive, and you can’t live up
to your plea negotiations.
Tr.(Sentencing) 6.
{¶26} The prosecutor went on to explain that the court must impose the first two
consecutively, and then it would be discretionary as to whether the court imposes any
additional firearm specifications. Counsel for appellant maintained that the court should
impose one three-year consecutive sentence, but even if there were two three-year
mandatory sentences on the firearm specifications, imposed consecutive to four years of
incarceration on the underlying felonies, it still adds up to ten. Thus, it was possible to
Muskingum County, Case No. CT2016-0037 10
live up to the recommendation in the plea agreement even with the imposition of two
mandatory firearm specifications.
{¶27} As discussed in the first assignment of error, appellant was informed by the
court that the firearm specifications carried mandatory three-year consecutive sentences.
Further, he was advised orally at the plea hearing and in the written plea agreement that
the recommendation of ten years was not binding on the court. The record does not
support appellant’s claim that the State did not live up to its representation to recommend
a sentence of ten years; rather, the sixteen year sentence was imposed as a result of the
court’s decision to not follow the joint recommendation. The trial court further ensured
that appellant understood the difference between mandatory time and regular time at the
sentencing hearing. Appellant did not at any point in the hearing express a desire to
withdraw his plea, nor did he express a lack of understanding of the possible sentence.
The trial court did not err in failing to sua sponte terminate the sentencing hearing in order
to allow appellant to withdraw his guilty plea when appellant expressed no indication that
desired to do so.
{¶28} The third assignment of error is overruled.
Muskingum County, Case No. CT2016-0037 11
IV.
{¶29} In his final assignment of error, appellant argues that trial counsel was
ineffective in his deficient understanding of R.C. 2929.14(B)(1)(g), by his failure to object
to the trial court’s lack of an appropriate colloquy at the plea hearing as set forth in the
first assignment of error, and by his failure to move to withdraw the plea at sentencing
when warned by the court that there was “no real plea agreement,” as set forth in the third
assignment of error.
{¶30} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). In other words, appellant must show that counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied upon as
having produced a just result. Id.{¶31} Appellant has not demonstrated prejudice. Although counsel continued to
argue on appellant’s behalf that only one firearm specification should be imposed, the
record does not demonstrate that appellant entered the plea based on counsel’s
representations concerning the merger of the firearm specifications into a single three-
year sentence. As discussed in the first assignment of error, the court informed appellant
that a three-year mandatory consecutive sentence was possible on each of the ten
firearm specifications, and the trial court thus complied with Crim. R. 11. At the
Muskingum County, Case No. CT2016-0037 12
sentencing hearing, the trial court’s comment concerning the plea agreement was based
on the State’s initial representation that firearm specifications don’t merge, which
suggested that a three-year mandatory term must be imposed on each of the firearm
specifications. The State then clarified that sentence on only two of the firearm
specifications must be imposed, thereby rendering it possible for the court to sentence
appellant in accordance with the joint recommendation. Appellant further was notified
both orally and in writing that the sentencing recommendation was not binding on the
court. Appellant has not demonstrated that but for counsel’s alleged errors, the result of
the proceeding would have been different.
{¶32} The fourth assignment of error is overruled.
{¶33} The judgment of the Muskingum County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.