State v. Collins ( 2013 )


Menu:
  • [Cite as State v. Collins, 
    2013-Ohio-3726
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 99111
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    DEVIN K. COLLINS
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED IN PART AND REMANDED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-562160
    BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
    RELEASED AND JOURNALIZED:                   August 29, 2013
    ATTORNEY FOR APPELLANT
    Ruth Fischbein-Cohen
    3552 Severn Road
    Suite 613
    Cleveland Hts., OH 44118
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    By: Marc D. Bullard
    Assistant County Prosecutor
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, OH 44113
    EILEEN A. GALLAGHER, J.:
    {¶1} Devin Collins appeals from his sentencing in the Cuyahoga County Court of
    Common Pleas. For the following reasons, we reverse in part and remand.
    {¶2} Collins pled guilty to felonious assault in violation of R.C. 2903.11(A)(1)
    with a one-year firearm specification, aggravated robbery in violation of R.C.
    2911.01(A)(1) with a one-year firearm specification, having weapons while under
    disability and tampering with evidence.
    {¶3} The trial court sentenced Collins to prison terms of 10 years for felonious
    assault and aggravated robbery with consecutive one-year sentences for the firearm
    specifications, 36 months for having weapons while under disability and 36 months for
    tampering with evidence. The trial court ordered the prison terms for felonious assault
    and aggravated robbery to be served concurrently with each other but consecutively to the
    prison term for having weapons while under disability and consecutively to the prison term
    for tampering with evidence for a cumulative prison term of 17 years. This appeal
    followed.
    {¶4} In his first assignment of error appellant argues that the trial court erred in
    determining that his convictions for felonious assault in violation of R.C. 2903.11(A)(1)
    and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied offenses of
    similar import.
    {¶5} Our review of an allied offenses question is de novo. State v. Webb, 8th
    Dist. Cuyahoga No. 98628, 
    2013-Ohio-699
    , ¶ 4, citing State v. Williams, 
    134 Ohio St.3d 482
    , 
    2012-Ohio-5699
    , 
    983 N.E.2d 1245
    , ¶ 28.
    {¶6} Under Ohio law, “[w]here the same conduct by defendant can be construed
    to constitute two or more allied offenses of similar import, the indictment or information
    may contain counts for all such offenses, but the defendant may be convicted of only
    one.” R.C. 2941.25(A). However,
    [w]here the defendant’s conduct constitutes two or more offenses of
    dissimilar import, or where his conduct results in two or more offenses of
    the same or similar kind committed separately or with a separate animus as
    to each, the indictment or information may contain counts for all such
    offenses, and the defendant may be convicted of all of them.
    R.C. 2941.25(B).
    {¶7} In State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    , the Ohio Supreme Court redefined the test for determining whether two offenses
    are allied offenses of similar import subject to merger under R.C. 2941.25. The Johnson
    court expressly overruled State v. Rance, 
    85 Ohio St.3d 632
    , 
    1999-Ohio-291
    , 
    710 N.E.2d 699
    , which required a “comparison of the statutory elements in the abstract” to determine
    whether the statutory elements of the crimes correspond to such a degree that the
    commission of one crime will result in the commission of the other.           Pursuant to
    Johnson, the conduct of the accused must be considered in determining whether two
    offenses should be merged as allied offenses of similar import under R.C. 2941.25. 
    Id.
     at
    syllabus. The determinative inquiry is two-fold: (1) “whether it is possible to commit
    one offense and commit the other with the same conduct,” and (2) “whether the offenses
    were committed by the same conduct, i.e., ‘a single act, committed with a single state of
    mind.’” Id. at ¶ 48-49, quoting State v. Brown, 
    119 Ohio St.3d 447
    , 
    2008-Ohio-4569
    ,
    
    895 N.E.2d 149
    , ¶ 50 (Lanzinger, J., dissenting). “If the answer to both questions is yes,
    then the offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50.
    Conversely, if the court determines that the commission of one offense will
    never result in the commission of the other, or if the offenses are committed
    separately, or if the defendant has separate animus for each offense, then,
    according to R.C. 2941.25(B), the offenses will not merge.
    Id. at ¶ 51.
    {¶8} The term “animus,” as defined by the Ohio Supreme Court in State v.
    Logan, 
    60 Ohio St.2d 126
    , 131, 
    397 N.E.2d 1345
     (1979), means “purpose or, more
    properly, immediate motive.”
    {¶9} The trial court found that appellant’s guilty pleas to felonious assault in
    violation of R.C. 2903.11(A)(1) and aggravated robbery in violation of R.C.
    2911.01(A)(1) were not allied offenses of similar import because the statutory language of
    those sections demonstrated a separate animus. In other words, the trial court found that
    the first prong of the Johnson test was not satisfied in that the commission of one offense
    will never result in the commission of the other.
    {¶10}     Appellant plead guilty to felonious assault in violation of R.C.
    2903.11(A)(1) which provides:
    (A) No person shall knowingly do either of the following:
    (1) Cause serious physical harm to another or to another’s unborn;
    R.C. 2911.01 defines aggravated robbery in relevant part as:
    (A) No person, in attempting or committing a theft offense, as defined in
    section 2913.01 of the Revised Code, or in fleeing immediately after the
    attempt or offense, shall do any of the following:
    (1) Have a deadly weapon on or about the offender’s person or under the
    offender’s control and either display the weapon, brandish it, indicate that
    the offender possesses it, or use it;
    ***
    (3) Inflict, or attempt to inflict, serious physical harm on another.
    R.C. 2911.01.
    {¶11}     Because appellant pled guilty to a violation of R.C. 2911.01(A)(1) as
    opposed to (A)(3) the trial court found that his conviction of felonious assault involving
    serious physical harm necessarily possessed a separate animus. We disagree. While
    ordinarily a violation of R.C. 2903.11(A)(1) would most likely match with a violation of
    R.C. 2911.01(A)(3) if the offenses were allied offenses of similar import, considering the
    broad language of R.C. 2911.01(A)(1) we cannot agree with the trial court’s conclusion
    that the commission of one offense could never result in the commission of the other.
    Therefore, the court must consider the conduct of the accused to determine whether the
    offenses were committed by the same conduct. Our holding is consistent with how other
    districts have treated these offenses. See, e.g., State v. Shields, 1st Dist. Hamilton No.
    C-100362, 
    2011-Ohio-1912
    , ¶ 14-20; State v. Maple, 9th Dist. Summit No. 25313,
    
    2011-Ohio-1216
    .
    {¶12} The record before us is insufficient to properly determine if the offenses
    were committed by the same conduct. Although the appellant and the state both spoke
    briefly prior to sentencing about the events underlying appellant’s convictions for
    felonious assault and aggravated robbery neither account adequately detailed the felonious
    assault such that the court could properly determine if it was committed with a separate
    animus from the aggravated robbery. Specifically, the presentence investigation report
    reflects that the victim in this case, a police officer, was shot by appellant’s codefendant
    during an attempted theft offense and essentially is a mere recitation of the language of
    the indictment. Although the state argued that the felonious assault occurred subsequent
    to, and separate from, the aggravated robbery, the state’s recitation of facts failed to
    explain precisely when during the course of events the victim was shot.
    {¶13}     We find that the trial court erred in holding that violations of R.C.
    2903.11(A)(1) and R.C. 2911.01(A)(1) could not be allied offenses of similar import.
    The trial court has a duty to inquire and determine whether multiple charges are allied
    offenses of similar import. 1 State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584,
    98585, 98586, 98587, 98588, 98589, and 98590, 
    2013-Ohio-1027
    , ¶ 55. This includes
    the duty to apply R.C. 2941.25 and the Johnson test to the multiple charges. 
    Id.
     As the
    record lacks sufficient factual detail to determine whether the offenses are allied offenses
    1
    Our analysis is not changed by the fact that the trial court ordered appellant’s prison terms
    for aggravated robbery and felonious assault to be served concurrently. The imposition of
    concurrent sentences is not the equivalent of merging allied offenses. State v. Damron, 
    129 Ohio St.3d 86
    , 
    2011-Ohio-2268
    , 
    950 N.E.2d 512
    . “Even when the sentences are to be served
    concurrently, a defendant is prejudiced by havng more convictions than are authorized by law.”
    State v. Underwood, 
    124 Ohio St.3d 365
    , 
    2010-Ohio-1
    , 
    922 N.E.2d 923
    , ¶ 31.
    of similar import, a remand is necessary to establish the underlying facts of appellant’s
    conduct so that the trial court is able to properly determine whether the subject crimes
    should merge for sentencing purposes. Appellant’s first assignment of error is sustained.
    {¶14} Appellant argues in his second assignment of error that the trial court
    abused its discretion in neglecting to waive court costs and that his trial counsel was
    ineffective in neglecting to request such a waiver.
    {¶15} R.C. 2947.23(A)(1) governs the imposition of costs and provides:
    In all criminal cases, including violations of ordinances, the judge or
    magistrate shall include in the sentence the costs of prosecution, including
    any costs under section 2947.231 of the Revised Code, and render a
    judgment against the defendant for such costs.
    {¶16} This statute has been held to apply even to indigent defendants. State v.
    Vanderhorst, 8th Dist. Cuyahoga No. 97242, 
    2012-Ohio-2762
    , ¶ 78. A trial court may,
    in its discretion, waive these costs. 
    Id.,
     citing State v. White, 
    103 Ohio St.3d 580
    ,
    
    2004-Ohio-5989
    , 
    817 N.E.2d 393
    , ¶ 8. However, the defendant must first make a motion
    for waiver at the time of sentencing. 
    Id.,
     citing State v. Clevenger, 
    114 Ohio St.3d 258
    ,
    
    2007-Ohio-4006
    , 
    871 N.E.2d 589
    , ¶ 5.
    {¶17} The record reflects that appellant’s trial counsel did not make a motion for
    waiver at sentencing but instead asserted that appellant was indigent and moved for court
    costs to be imposed after he was released from prison. The trial court refused to find
    appellant indigent at sentencing but stated that appellant could submit an affidavit of
    indigency and the court would consider it.
    {¶18} To substantiate a claim of ineffective assistance of counsel, an appellant
    must demonstrate that (1) the performance of defense counsel was seriously flawed and
    deficient, and (2) the result of appellant’s trial or legal proceeding would have been
    different had defense counsel provided proper representation. Strickland v. Washington,
    
    466 U.S. 668
    , 687, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984).
    {¶19} This court has found counsel ineffective for failing to file an affidavit of
    indigency for a defendant when the “record shows there is a reasonable probability the
    defendant would have been found indigent.” State v. Hubbard, 8th Dist. Cuyahoga No.
    99093, 
    2013-Ohio-1999
    , ¶ 9.
    {¶20}   At the sentencing hearing, defense counsel stated that, although he was
    retained, appellant had “no more money left.”        On the day after the sentencing hearing,
    appellant’s trial counsel filed a motion for the appointment of appellate counsel and
    attached an affidavit in which appellant averred that he was indigent, was unemployed
    and had no assets or money. The trial court did appoint appellate counsel but failed to
    consider the attached affidavit of indigency for purposes of the suspension of court costs
    as it indicated it would do. We find that counsel was not ineffective but that the trial
    court abused its discretion in failing to consider a waiver of court costs.
    {¶21}   Appellant’s second assignment of error is sustained, in part.
    {¶22}   In his third assignment of error appellant argues that the trial court erred in
    failing to calculate the number of days for which he was entitled to receive jail-time
    credit.    Appellant further argues that his attorney provided ineffective assistance of
    counsel by failing to object to this omission.
    {¶23}        R.C. 2929.19(B)(2)(g)(i) provides that at the sentencing hearing, the trial
    court shall:
    [d]etermine, notify the offender of, and include in the sentencing entry the
    number of days that the offender has been confined for any reason arising
    out of the offense for which the offender is being sentenced and by which
    the department of rehabilitation and correction must reduce the stated prison
    term * * *.
    {¶24}        The record reveals that the trial court failed to comply with R.C.
    2929.19(B)(2)(g)(i) in that the court did not determine the proper jail-time credit, did not
    notify the offender of the days at sentencing and did not include the calculated time in its
    sentencing entry. The state concedes this assignment of error.
    {¶25}        Therefore, we sustain appellant’s third assignment of error and remand the
    case for the trial court to properly calculate and apply jail-time credit. State v. Barker,
    8th Dist. Cuyahoga No. 93574, 
    2010-Ohio-4480
    , ¶ 18.
    {¶26}        Finally, we sua sponte note that the trial court’s sentencing entry contains
    a clerical error.     At sentencing, the trial court ordered appellant’s prison terms for having
    weapons while under disability and tampering with evidence to be served consecutively to
    one another and ordered both prison terms to be served consecutively to appellant’s prison
    terms for felonious assault and aggravated robbery.               The trial court imposed a
    cumulative prison term of 17 years in this manner. However, the trial court’s sentencing
    entry, while imposing the same cumulative prison term, fails to clarify that the prison
    terms for having weapons while under disability and tampering with evidence are to be
    served consecutively to one another. Further, the journal entry of sentencing also fails to
    indicate whether the sentences imposed for the firearm specifications merge.          The trial
    court retains continuing jurisdiction to correct clerical errors in judgments by nunc pro
    tunc entry to reflect what the court actually decided. State v. Mackey, 5th Dist. Licking
    No. 10-CA-74, 
    2011-Ohio-2651
    , ¶ 11. The trial court’s ambiguous language in the
    sentencing entry qualifies as a clerical error that the court may correct on remand. Id. at
    ¶ 14.
    {¶27}   The judgment of the trial court is reversed in part. We reverse appellant’s
    sentences for aggravated robbery and felonious assault and remand for the trial court to
    conduct an allied offenses hearing as to those offenses.      We further remand the cause for
    the proper calculation of the jail-time credit, the correction of the clerical error in the
    sentencing entry and to allow appellant to move for the waiver of court costs.
    It is ordered that appellant recover of said appellee 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
    lower court 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.
    EILEEN A. GALLAGHER, JUDGE
    MARY EILEEN KILBANE, J., CONCURS;
    FRANK D. CELEBREZZE, JR., P.J., DISSENTS
    IN PART WITH SEPARATE OPINION
    FRANK D. CELEBREZZE, JR., P.J., DISSENTING IN PART:
    {¶28} I respectfully dissent from the majority’s position that the record before us is
    insufficient to properly conduct a de novo review of whether the trial court erred in
    determining that appellant’s convictions for felonious assault in violation of R.C.
    2903.11(A)(1) and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied
    offenses of similar import.
    {¶29} Initially, I note that in an effort to avoid remands like this in the future, I feel
    obligated to reiterate a relevant statement made by this court over 30 years ago in State v.
    Kent, 
    68 Ohio App.2d 151
    , 155, 
    428 N.E.2d 453
     (8th Dist.1980), fn.1. In Kent, Judge
    Alvin Krenzler stated:
    When there is a probability that the allied offense issue may arise in a
    case, the prosecutor and defense counsel would be well advised to squarely
    confront the issue in any plea bargaining that takes place. By resolving this
    question at the plea bargaining stage and incorporating the resolution of the
    allied offense issue in the plea bargain to be placed on the record, the
    prosecutor and defense counsel will act to avoid later problems in the
    validity of the plea bargain, in the entering of the plea, in the acceptance of
    the plea, in the judgment of conviction, and any appeal of the case.
    {¶30} Nevertheless, in the case at hand, I believe that the record contains sufficient
    facts to conduct a de novo review. As this court recently stated in State v. Rogers, 8th
    Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590,
    
    2013-Ohio-3235
    , “at any point in the process, prosecutors can put facts on the record that
    would support a determination that certain offenses are not allied.” This does not have to
    involve long or complicated hearings or witnesses. Historically, merger of offenses has
    always been viewed as a part of the sentencing process. Thus, “the sentencing process is
    less exacting than the process of establishing guilt.” State v. Bowser, 
    186 Ohio App.3d 162
    , 
    2010-Ohio-951
    , 
    926 N.E.2d 714
    , ¶ 14 (2d Dist.), citing Nichols v. United States, 
    511 U.S. 738
    , 747, 
    114 S.Ct. 1921
    , 
    128 L.Ed.2d 745
     (1994). Therefore, this process can
    easily be satisfied by a brief recitation of facts or circumstances by the prosecutor,
    preferably prior to the plea, to aid the trial court in its determination. Nothing more
    should be required.
    {¶31} In my view, the prosecutor’s brief recitation of the facts relevant to
    appellant’s aggravated robbery and felonious assault convictions was enough to support
    the trial court’s determination that the offenses were not allied.      At the sentencing
    hearing, the prosecutor reminded the court that although codefendant Patrick Minifee was
    in fact the shooter in this case, his conduct was attributable to appellant for the purposes
    of conducting an allied offenses review. In arguing that the aggravated robbery and
    felonious assault convictions were committed with separate animus, the prosecutor
    presented the following statement:
    Your honor, I would say that the factual difference between the two
    offenses * * * that would make them non-allied would be initially
    [codefendant] gets out to rob Officer Borders. He approaches him with a
    gun, states language consistent with a robbery. And [Officer Borders is] a
    police officer and armed.
    Believing this makes himself even more at risk, [Officer Borders]
    produces the gun. I submit to you only then, when [codefendant] sees the
    gun or it’s fired, [codefendant] takes it in [his] hands to shoot at Officer
    Borders. I say that this was done by [codefendant] to injure Officer Borders
    and/or kill Officer Borders and then leave him to avoid detection. That
    would be a separate purpose. They have initially the purpose to commit the
    aggravated robbery and then when it doesn’t go well, [codefendant] takes it
    on himself to shoot it out with him. That would be the purpose.
    {¶32} Based on the foregoing, I am satisfied that appellant committed aggravated
    robbery in violation of R.C. 2911.01(A)(1) and felonious assault in violation of R.C.
    2903.11(A)(1) with a separate animus. As appellant approached Officer Borders, his
    immediate motive was apparently to rob him. Thus, the ultimate physical attack on
    Officer Borders was not “slavishly tied to that initial criminal goal,” but was made once
    the robbery did not go according to plan. See State v. Shields, 1st Dist. Hamilton No.
    C-100362, 
    2011-Ohio-1912
    , ¶ 18, citing State v. Williams, 8th Dist. Cuyahoga No. 94616,
    
    2011-Ohio-925
    , at ¶ 75 (S. Gallagher, J., concurring).
    {¶33} Accordingly, I would hold, based on these facts, that the aggravated robbery
    and the felonious assault were motivated by a separate animus, and therefore should not
    have merged for the purposes of sentencing.
    {¶34} I concur with the remainder of the majority’s opinion.