State v. Black , 2014 Ohio 2976 ( 2014 )

[Cite as State v. Black, 2014-Ohio-2976.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100114
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CLIFFORD BLACK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-10-535173-C
BEFORE: Stewart, J., Celebrezze, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEY FOR APPELLANT
W. Scott Ramsey
The Standard Building, Suite 330
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Clifford Black and three codefendants broke into a
house, threatened and robbed the occupants at gunpoint, and then tried to run over two
police officers as they were fleeing the scene of the crime. In exchange for his
agreement to make a truthful statement to the police, Black pleaded guilty to aggravated
robbery with a firearm specification; aggravated burglary; felonious assault with a firearm
specification; two counts of felonious assault against a peace officer; and having a
weapon while under disability. The court imposed a total prison term of 18 years — the
longest term any of the four perpetrators received.
{¶2} Black raises three assigned errors for our review. He first argues that he
pleaded guilty only because he understood from defense counsel that he would receive
less than an eight-year sentence and that the court failed to inquire into that understanding
as a basis for ensuring that the plea was knowingly entered. Black also complains that
his sentence was inconsistent with his codefendants, particularly when he cooperated with
the police. And finally, Black claims that he was denied the effective assistance of
counsel.
I
{¶3} The plea bargain that Black entered into with the state required him to make a
statement to the police and testify against his three codefendants. He maintains that
defense counsel assured him that his cooperation with the state would result in a prison
term of less than eight years. With his sentence exceeding what he thought he would
receive, Black argues that the court should have undertaken a more detailed inquiry
during the plea colloquy to ensure that the guilty plea was being made voluntarily,
knowingly, and freely.
{¶4} Crim.R. 11(C)(2)(a) requires the trial court to determine “that the defendant is
making the 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” before accepting a guilty plea.
{¶5} There is no evidence in the record of any promises made to Black by the
state, the court, or defense counsel regarding Black’s sentence. On the contrary, the
record shows that the state explicitly informed the court that no agreement had been
reached with regard to sentencing. The prosecutor told the court: “[Black] agrees to
testify against co-defendants and sentencing would be up to the Court. No agreed
sentence would be part of this deal.” Tr. 4. Likewise, when asked by the court
whether there were any promises made to him in exchange for his guilty plea, Black
responded in the negative. Tr. 14. With Black having told the court that no promises
were made to him about sentencing, and there being nothing in the record on appeal to
contradict that assertion, the court had no obligation to inquire further into that which
Black had denied.
II
{¶6} All three of Black’s codefendants received shorter prison terms than Black
received. Citing R.C. 2929.11(B), Black complains that the length of his prison term is
inconsistent with the sentences given to these codefendants because he cooperated with
the state and provided a statement against those codefendants.
A
{¶7} Before addressing the merits of Black’s argument, we consider the state’s
contention that Black forfeited the right to raise the issue of consistency in sentencing by
failing to object at sentencing.
{¶8} We have held that “in order to support a contention that his or her sentence
is disproportionate to sentences imposed upon other offenders, a defendant must raise this
issue before the trial court and present some evidence, however minimal, in order to
provide a starting point for analysis and to preserve the issue for appeal.” State v.
Munson, 8th Dist. Cuyahoga No. 93229, 2010-Ohio-1982, ¶ 29. See also State v. Van
Horn, 8th Dist. Cuyahoga No. 98751, 2013-Ohio-1986, ¶ 28.
{¶9} The rule we stated in Munson applies when the defendant raises the issue of
consistency in the abstract, against other offenders in different cases. A judge should
not impose a sentence without knowing what kind of sentences are being given by other
judges — deciding what sentence is merited under any given situation necessarily
requires a judge to look to sentences given to other offenders as a reference. So it serves
no purpose for a defendant to complain that a sentence is inconsistent with those given to
similar offenders if the defendant cannot prove the point to the judge by giving some
sense of what kind of sentences similar offenders have received. Hence, the failure to
object at the time of sentencing is usually fatal to a consistency claim.
{¶10} Black’s situation is different, however. Black did not raise at the time of
sentencing that his sentence was inconsistent with those given to similar offenders. His
argument on appeal is that his sentence was inconsistent with those given to his three
codefendants. The same judge sentenced all four offenders, so it is possible that Black
could make a prima facie case of inconsistency. Under these circumstances, his failure
to object at sentencing is not fatal to his consistency claim.
B
{¶11} R.C. 2929.11(B) states:
A sentence imposed for a felony shall be reasonably calculated to achieve
the two overriding purposes of felony sentencing set forth in division (A) of
this section, commensurate with and not demeaning to the seriousness of
the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.
{¶12} While consistency in sentencing is a goal under R.C. 2929.11(B), the
statute does not require “uniformity” in sentences. State v. Sutton, 8th Dist. Cuyahoga
No. 97132, 2012-Ohio-1054, ¶ 16, citing State v. Battle, 10th Dist. Franklin No.
06AP-863, 2007-Ohio-1845, ¶ 24. By stating that a sentence shall be “reasonably”
calculated to be consistent with sentences given to similar offenders, R.C. 2929.11(B)
acknowledges that a judge has discretion in sentencing. If a judge is granted “full
discretion to impose a prison sentence” within the applicable statutory range, see State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 100, complete uniformity
would be at odds with that discretion. See State v. Warner, 8th Dist. Cuyahoga No.
100197, 2014-Ohio-1519, fn. 1.
C
{¶13} In the statement that Black gave to the police as part of his plea
agreement, he described how he and codefendants Sanchez Smith, Tameka Bohanon, and
Elbert Jones, acted collectively to perpetrate an armed break-in and robbery at a
residence. According to Black, Jones identified the house as a “sweet lick” because he
had been there before and knew that the occupants were unarmed and had money and
marijuana. Bohanon drove a van to the house identified by Jones: the other three
codefendants were occupants in the van. Black and Smith exited the van while Bohanon
and Jones remained in the van. Smith instructed Bohanon to drive around the corner and
wait for his and Black’s return. Black carried a shotgun; Smith carried a handgun.
They forcibly kicked open a door, ordered the occupants at gunpoint to the floor, and
robbed them of cash, marijuana, and a gaming system. When Black and Smith left the
house to rendezvous with the van, it was not where they expected it to be. Smith called
Bohanon to return with the van. When Bohanon returned, Black and Smith reentered
the van. As Bohanon prepared to pull away, two police officers appeared. Black told
Bohanon to drive away, even if it meant running down the police. Bohanon put the van
in gear and started moving toward the police officers as if she was going to run them
over, but the police shot the tires, forcing the van to stop. The defendants were then
arrested.
{¶14} All of the defendants eventually pleaded guilty. Jones received an agreed,
three-year sentence after pleading guilty to aggravated burglary and having a weapon
while under disability. See State v. Jones, 8th Dist. Cuyahoga No. 99648,
2013-Ohio-4802, ¶ 2. Bohanon received a 16-year sentence after pleading guilty to
burglary, felonious assault with a peace officer specification, and improperly handling a
motor vehicle. See State v. Bohanon, 8th Dist. Cuyahoga No. 98217, 2013-Ohio-261, ¶
3. Smith received a sentence of 16 years and 11 months after pleading guilty to two
counts of aggravated burglary with firearm specifications; two counts of aggravated
robbery with firearm specifications, having a weapon while under disability, theft, and
aggravated theft.
{¶15} Black, Bohanon, and Jones are not similar offenders for purposes of R.C.
2929.11(B). Even though all three participated in the robbery, neither Bohanon nor
Jones pleaded guilty to counts of aggravated robbery. On that basis alone, they were not
similar offenders in the sense that Black had any reasonable expectation that any sentence
he received would be commensurate with the sentences that those two received.
{¶16} Smith was a similar offender to Black. They both pleaded guilty to two
counts of aggravated robbery and, if Black’s statements regarding the crime are to be
credited, they acted similarly — they collectively kicked in the door to the premises, they
both carried a firearm, they both threatened the occupants, and they both robbed the
premises. We therefore find that Black can argue that his sentence was inconsistent with
that given to Smith.
D
{¶17} Black’s sentence is 13 months longer than the sentence given to Smith.
However, it is similar enough to Smith’s, that we are unable to say that Black’s sentence
is so inconsistent with the sentence given to Smith that it runs afoul of R.C. 2929.11(B),
particularly given the overall length of prison time both offenders received. Additionally,
the court had reason to sentence Black more severely than Smith given the nature of
Black’s involvement with the robbery. When the court asked the prosecutor whether
Black’s involvement in the crime was less than Smith’s or whether their involvement was
of the same gravity, the prosecutor responded that Black’s involvement was not less and
that the gravity was the same. The prosecutor went on to state, however, that “in
investigating this case, it was Mr. Black who was more of the point man in execution of
this home invasion and robbery.” Tr. 22. By his own admission, Black carried a
loaded shotgun while Smith carried only a handgun. In any event, Black raised no
objection to the state’s characterization of him as the “point man” in the robbery, so the
court could find that his involvement warranted a marginally longer sentence than that
given to Smith.
{¶18} Black claims that he was entitled to less time than Smith because he gave a
statement to the police that caused the other defendants to enter guilty pleas. While
Black did give the police a statement as part of his guilty plea, his assertion that his
codefendants pleaded guilty because of that statement has no proof in the record. The
state told the court at sentencing that Black was “upfront with the detectives” when
giving his statement and that “he definitely shed more light on the situation and provided
information that, had his co-defendants proceeded to trial, that definitely would have
assisted and aided the State in making its cases against them.” Tr. 19-20. These
comments do not indicate that Black’s statement coerced his codefendants to plead guilty,
only that it would have been helpful to the prosecution had the codefendants chosen to go
to trial. Without some proof in the record that his statement coerced his codefendants to
plead guilty, Black’s assertion appears to be post hoc, ergo propter hoc (a fallacy in
which a former event is said to be the cause of a later event simply because the former
event occurred earlier).
III
{¶19} Black’s third assignment of error is that defense counsel was ineffective in
failing to raise the issue of consistency. Having found that Black did not waive a
consistency claim under the facts of this case, his assertion that counsel was ineffective in
this regard is moot.
{¶20} Black also argues that his counsel was ineffective for inadequately
informing him of the benefits “he should have received” as a result of his plea agreement
and further, that counsel was ineffective for not arguing for a sentence that was less than
his codefendants received because he assisted the state and his codefendants did not. As
previously stated, there is nothing in the record to support the contention that Black had
any promises made to him by the state, the court, or defense counsel regarding his
sentence. The record is actually to the contrary. With regard to counsel being
ineffective for failing to argue for a lesser sentence, Black would have to demonstrate that
his counsel’s performance was so deficient that it constituted a substantial violation of
counsel’s essential duties, and also that the results of Black’s proceedings would have
been different if counsel had properly represented him. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In light of our analysis of the second
assigned error, there is no indication that the court would have sentenced Black to a lesser
amount of time had his trial counsel raised the issue. Furthermore, the record indicates
that the court was well aware of the assistance Black provided to the state and weighed it
against his involvement in the crime compared to the involvement of his
similarly-situated codefendant.
{¶21} The assigned errors are overruled.
{¶22} 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. The defendant’s
conviction having been affirmed, any bail pending appeal 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.
________________________________________
MELODY J. STEWART, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR