State v. Brown , 2015 Ohio 4764 ( 2015 )

[Cite as State v. Brown, 2015-Ohio-4764.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102549
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JASON BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585114-B
BEFORE: Keough, P.J., Blackmon, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: November 19, 2015
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian D. Kraft
John Patrick Colan
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Jason Brown, appeals his convictions and sentence.
For the reasons that follow, we affirm Brown’s convictions, but vacate his sentence and
remand for resentencing.
{¶2} In 2014, Brown and his codefendant, Jovon Fields, were named in a 40-count
indictment stemming from six robberies that occurred from December 9, 2013, to January
7, 2014. Brown was charged with seven counts of aggravated robbery with attendant
forfeiture and one- and three-year firearm specifications (Counts 1, 2, 10, 15, 22, 27, and
35), twenty-one counts of kidnapping with attendant forfeiture and one- and three-year
firearm specifications (Counts 3-7, 11-13, 16-20, 23-24, 29-31, and 36-38), six counts of
having weapons while under disability (Counts 9, 14, 21, 26, 33, and 40), three counts of
safecracking with attendant forfeiture and one- and three-year firearm specifications
(Counts 8, 25, and 32), one count of robbery with attendant forfeiture and one- and
three-year firearm specifications (Count 28), and one count of tampering with evidence
(Count 39). Brown pleaded not guilty and was appointed counsel.
{¶3} In September 2014, Brown entered into a plea agreement with the state. He
agreed to plead guilty to aggravated robbery with specifications as charged in Counts 1,
10, 15, and 22; kidnapping and the forfeiture specifications as amended in Counts 3, 11,
12, 16, 23, 29, 30, and 36; having weapons while under disability as charged in Counts 9,
14, 21, 26, 33, and 40; aggravated robbery with the forfeiture and one-year firearm
specifications as amended in Count 27, and aggravated robbery as amended in Count 35.
All other charges were nolled, and Brown agreed to testify against Fields. At the plea, a
sentence of 16-27 years was recommended.
{¶4} Brown was sentenced to a total of 19 years in prison for the offenses, which
included 13 years for firearm specifications. Brown appeals, raising five assignments of
error.
I. Pro Se Motion to Withdraw Guilty Plea
{¶5} After pleading guilty but prior to sentencing, Brown, pro se, filed a motion to
withdraw his guilty pleas arguing that his defense counsel was ineffective and that Brown
was “duped” into pleading guilty. The trial court did not give any consideration to
Brown’s motion prior to imposing Brown’s sentence. In his first assignment of error,
Brown contends that the trial court failed to conduct a complete and impartial hearing and
otherwise give full and fair consideration to his motion to withdraw his guilty pleas. We
disagree. Because Brown was represented by counsel and the motion was filed pro se,
the trial court did not have any obligation to consider the motion.
{¶6} This court in State v. Mongo, 8th Dist. Cuyahoga No. 100926,
2015-Ohio-1139, recently addressed the exact fact situation that is presented in this case.
In Mongo, the defendant was represented by counsel throughout the proceedings.
However, after pleading guilty, Mongo unilaterally filed a pro se motion to withdraw his
guilty plea. After he filed the motion, he continued to be represented by his attorneys
during sentencing, who addressed the court on his behalf. This court noted that there
was no indication in the record that his attorneys were even aware that Mongo filed the
motion to withdraw and when Mongo addressed the court during sentencing, he did not
raise the fact that he filed the motion. The court did not address the motion and
sentenced Mongo. In finding no error by the trial court, this court held that Mongo’s
unilateral pro se filing of his motion to withdraw his guilty plea while simultaneously
being represented by counsel constitutes “hybrid representation,” which is in violation of
established law. Id. at ¶ 13, citing State v Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,
816 N.E.2d 227, paragraph one of the syllabus. See also State v. Washington, 8th Dist.
Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531; State v. Pizzaro, 8th Dist. Cuyahoga
No. 94849, 2011-Ohio-611 (when counsel represents a criminal defendant, a trial court
may not entertain a defendant’s pro se motion).
{¶7} Just like in Mongo, Brown was represented by appointed counsel at all times
during the proceedings. Brown entered into a plea agreement where he indicated that he
was satisfied with the representation received by counsel. However, after the plea
hearing, Brown unilaterally moved to withdraw his guilty plea, contending that his
attorney was ineffective and had pressured him into pleading guilty. Nevertheless, he
allowed his appointed counsel to continue to represent him at sentencing. Furthermore,
when Brown personally addressed the court at sentencing, he did not raise the matter of
his pro se motion to withdraw his guilty pleas. From our review, it appears that no one
other than Brown knew that he filed the pro se motion.
{¶8} Therefore, because Brown filed the motion pro se and still allowed his
appointed counsel to represent him, the trial court was not in a position to consider the
motion because it would have effectively constituted hybrid representation. Mongo at ¶
17. Accordingly, we find no error by the trial court in failing to address Brown’s motion.
The first assignment of error is overruled.
II. Allied Offenses — Aggravated Robbery and Weapons Under Disability
{¶9} In his second assignment of error, Brown contends that the trial court failed
to properly merge the having-weapons-while-under-disability charges with the related
aggravated robbery offenses. We disagree.
{¶10} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Supreme Court of Ohio set forth the test for determining whether offenses merge under
R.C. 2941.25 for purposes of sentencing:
[W]hen determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must ask three questions when
defendant’s conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed separately?
and (3) Were they committed with separate animus or motivation? An
affirmative answer to any of the above will permit separate convictions.
The conduct, the animus, and the import must all be considered.
Id. at ¶ 31.
{¶11} First, we note that no objection was raised regarding the merger of these
offenses. Therefore, we review this assignment of error for plain error, which pursuant
to Crim.R. 52(B), may be corrected if it affects a substantial right and only to prevent a
manifest miscarriage of justice. Civ.R. 52(B); State v. Landrum, 53 Ohio St.3d 107, 110,
559 N.E.2d 710 (1990).
{¶12} Upon review, we do not find any error, plain or otherwise. This court has
previously addressed the issue of merging weapons under disability offenses in State v.
Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723.
[The] animus of having a weapon under disability is making a conscious
choice to possess a weapon. [The defendant] necessarily acquired the guns
sometime prior to committing the other crimes. The fact that he then used
the weapons to commit the other crimes does not absolve [the defendant] of
the criminal liability that arises solely from his decision to illegally possess
the weapons.
Id. at ¶ 39.
{¶13} In this case, the having weapons while under disability and aggravated
robbery offenses are not allied offenses that merge for sentencing. The facts as
presented show that Brown acquired and possessed the firearm prior to committing the
six separate robberies. Using the weapon during the commission of the robberies does
not absolve Brown of criminal liability for his illegal possession of the firearm.
Therefore, the trial court did not commit plain error in failing to merge these offenses for
sentencing. Brown’s second assignment of error is overruled.
III. Consecutive Sentences for Firearm Specifications
{¶14} The trial court sentenced Brown to four consecutive three-year terms of
incarceration for the three-year firearm specifications attendant to the aggravated robbery
convictions as charged in Counts 1, 10, 15, and 22. The court also sentenced Brown to a
one-year term of incarceration to be served consecutively to the one-year firearm
specification attendant to the amended aggravated robbery conviction as charged in Count
27 of the indictment. Therefore, Brown was sentenced to a term of 13 years
incarceration on the firearm specifications alone.
{¶15} In his third assignment of error, Brown contends that the trial court erred by
imposing consecutive mandatory three-year prison terms for the various firearm
specifications in violation of Ohio law. It is unclear if Brown is challenging the
imposition of the firearm specification sentence consecutive to the attendant aggravated
robbery charge or if he is challenging the imposition of multiple firearm specifications
consecutive to each other. Under either challenge, Brown’s argument fails.
{¶16} In this case, Brown was convicted of six aggravated robbery charges. Each
of these aggravated robbery charges stems from separate instances where, on six separate
occasions, Brown entered a store with a gun and used it to commit a robbery. Therefore,
these six separate aggravated robberies are not allied offenses because they were
committed separately. See generally Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892. Because the aggravated robbery convictions are not allied offenses, the
attendant firearm specifications are also not allied. See R.C. 2929.14(C)(1)(a) (if a
mandatory prison term is imposed upon an offender for having a firearm while
committing a felony, the offender shall serve any mandatory prison term imposed
consecutively to and prior to any prison term imposed for the underlying felony).
Therefore, the court properly ordered the sentences on the firearm specifications to be
served consecutively to the underlying aggravated robberies.
{¶17} Furthermore, the imposition of consecutive sentences for multiple firearm
specifications is authorized by law. R.C. 2929.14(B)(1)(g), provides in relevant part,
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are * * * aggravated robbery, * * * and if the
offender is convicted of or pleads guilty to a specification of the type
described under division (B)(1)(a) of [R.C. 2929.14] 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 [R.C. 2929.14] for
each of the two most serious specifications of which the offender is
convicted or to which the offender pleads guilty and, in its discretion, also
may impose on the offender the prison term specified under that division for
any or all of the remaining specifications.
{¶18} Therefore, R.C. 2929.14(B)(1)(g) mandates a trial court to impose the
three-year sentence on the firearm specifications associated with two of the aggravated
robbery convictions. The trial court then has discretion to impose a prison term for the
remaining specifications.
{¶19} In this case, the trial court, as mandated and in an exercise of discretion,
imposed consecutive sentences on the firearm specifications attendant to the aggravated
robbery charges. We find no error by the trial court. See State v. Vanderhorst, 8th Dist.
Cuyahoga No. 97242, 2013-Ohio-1785; State v. Isreal, 12th Dist. Warren No.
CA2011-11-115, 2012-Ohio-4876 (trial court commits no error in imposing multiple
consecutive sentences on firearm specifications). Furthermore, because the statute
requires the imposition of consecutive sentences for firearm specifications under R.C.
2929.14(B)(1)(g), the trial court is not required to make R.C. 2929.14(C)(4) findings
before imposing the multiple and consecutive firearm specifications sentence. State v.
Young, 8th Dist. Cuyahoga No. 102202, 2015-Ohio-2862, ¶ 7, 10.
{¶20} Accordingly, Brown’s third assignment of error is overruled.
IV. Jail Time Credit
{¶21} In his fourth assignment of error, Brown contends that the trial court
miscalculated his credit for time served. At sentencing, the trial court stated that it was
crediting Brown 277 days as time served. Brown argues that the actual credit should be
287 days because he was in jail from January 7, 2014, until sentencing on October 21,
2014. The state concedes, and we agree that Brown is entitled to 287 days of jail time
credit.
{¶22} Accordingly, his fourth assignment of error is sustained.
V. Consecutive Sentences
{¶23} In his fifth assignment of error, Brown contends that the consecutive
sentences imposed must be vacated under Ohio law because the trial court failed to make
the required statutory findings under R.C. 2929.14(C)(4).
{¶24} Consecutive sentences may be imposed only if the trial court makes the
required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22; State v. Trotter, 8th Dist. Cuyahoga No.
100617, 2014-Ohio-3588, ¶ 18. Under the statute, consecutive sentences may be
imposed if the trial court finds that (1) a consecutive sentence is necessary to protect the
public from future crime or to punish the offender, and (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public. In addition to these two factors, the court must find that any
one of the following apply:
(1) the offender committed one of more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or
more courses of the conduct, and the harm caused by two or more of the
offenses 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; or
(3) the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶25} In order to impose consecutive terms of imprisonment, a trial court must
both make the statutory findings mandated for consecutive sentences under R.C.
2929.14(C)(4) at the sentencing hearing and incorporate those findings into its sentencing
entry. Bonnell at the syllabus. However, a trial court is not required to give “a
talismanic incantation” of the words in the statute to satisfy its obligation. Id. at ¶ 37.
{¶26} On the day of sentencing, the trial court sentenced both Brown and Fields.
Prior to imposing each defendant’s individual sentence, the trial court addressed both
defendants together and recited the overriding purposes of sentencing found in R.C.
2929.11(A)-(D). After explaining those principles, the trial court then individually
addressed each defendant and imposed their respective sentence. The trial court
sentenced Brown to a total prison term of 19 years, which included some consecutive
sentences.
{¶27} However, our review of the record does not support a conclusion that the
trial court made any of the findings required by R.C. 2929.14(C)(4) when it imposed the
consecutive sentences. While the trial court recited the overriding purposes of
sentencing found in R.C. 2929.11(A)-(D) when addressing both defendants, these
principles cannot be used to satisfy the trial court’s separate obligation to make the
required findings under R.C. 2929.14(C) to support its conclusion that consecutive
sentences were necessary for each individual defendant, including Brown. See State v.
Marshall, 12th Dist. Warren No. CA2013-05-042, 2013-Ohio-5092, ¶ 12, citing State v.
Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 17, citing
State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999) (compliance with
R.C. 2929.14(C)(4) requires separate and distinct findings in addition to any findings
related to the purposes and principles of sentencing within R.C. 2929.11 or the recidivism
factors within R.C. 2929.12).
{¶28} According to the Ohio Supreme Court, “a word-for-word recitation of the
language of the statute is not required, and as long as the reviewing court can discern that
the trial court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29. “[T]he record must contain a
basis upon which a reviewing court can determine that the trial court made the findings
required by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Id. ¶ 28.
{¶29} Reviewing the record before this court, we cannot discern that the trial court
engaged in an analysis in imposing consecutive sentences. The factors and statements
the state would like us to consider in upholding the imposition of consecutive sentences
are not tailored to Brown; rather, they are general statutory statements about the
overriding purposes of sentencing. Therefore, the trial court failed to make the required
findings pursuant to R.C. 2929.14(C)(4) when imposing consecutive sentences.
{¶30} Accordingly, we vacate Brown’s sentence and remand the case for
resentencing for the trial court to consider whether consecutive sentences are appropriate
under R.C. 2929.14(C)(4) and, if so, to make the required findings on the record and
incorporate those findings in the sentencing journal entry in accordance with Bonnell.
Brown’s fifth assignment of error is sustained.
{¶31} Convictions affirmed; sentence is vacated, and the case is remanded for
resentencing.
It is ordered that the parties share equally the 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 common
pleas court to carry this judgment into execution. The defendant’s convictions 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR