State v. Parker , 2022 Ohio 2355 ( 2022 )

[Cite as State v. Parker, 2022-Ohio-2355.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110563
v. :
ALTON PARKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: July 1, 2022
Cuyahoga County Court of Common Pleas
Case No. CR-18-629839-A
Application for Reopening
Motion No. 553274
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Alton D. Parker, pro se.
CORNELIUS J. O’SULLIVAN, JR., J.:
Alton Parker has filed a timely App.R. 26(B) application for
reopening. Parker is attempting to reopen the appellate judgment, rendered in State
v. Parker, 8th Dist. Cuyahoga No. CA-21-110563, 2021-Ohio-3468, that affirmed his
convictions and sentence of incarceration imposed in State v. Parker, Cuyahoga C.P.
No. CR-18-629839, for four counts of rape (R.C. 2907.02(A)(2)), two counts of
sexual battery (R.C. 2907.03(A)(1)), and three counts of kidnapping
(R.C. 2905.01(A)(4)). We decline to reopen Parker’s appeal.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
An application for reopening shall be granted if there exists a genuine
issue as to whether an applicant was deprived of the effective assistance of his
appellate counsel. See App.R. 26(B)(5). To establish a claim of ineffective assistance
of appellate counsel, Parker is required to establish that the performance of his
appellate counsel was deficient and the deficiency resulted in prejudice. 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 Strickland, the United States Supreme Court held that a court's
scrutiny of an attorney's work must be highly deferential. The court further stated
that it is all too tempting for a defendant to second-guess his attorney after
conviction and that it would be too easy for a court to conclude that a specific act or
omission was deficient, especially when examining the matter in hindsight. Thus, a
court must indulge in a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Strickland.
Moreover, even if Parker establishes that an error by his appellate
counsel was professionally unreasonable, Parker must further establish that he was
prejudiced; but for the unreasonable error there exists a reasonable probability that
the results of his appeal would have been different. Reasonable probability,
regarding an application for reopening, is defined as a probability sufficient to
undermine confidence in the outcome of the appeal. State v. May, 8th Dist.
Cuyahoga No. 97354, 2012-Ohio-5504.
II. First Proposed Assignment of Error – Consecutive Sentences
Parker’s first assignment of error in support of his application for
reopening, is:
The trial court erred by imposing consecutive sentences that were
clearly and convincingly unsupported by record and contrary to law.
Parker, through his first proposed assignment of error, argues that his
appellate counsel failed to argue on appeal the issue of consecutive sentences of
incarceration. Specifically, Parker argues that consecutive sentences of
incarceration were not warranted under R.C. 2929.14(C)(4).
In order to impose consecutive prison terms of incarceration, the trial
court must make three findings on the record. Initially, the trial court must find that
consecutive sentences are “necessary to protect the public from future crime or to
punish the offender.” R.C. 2929.14(C)(4). The trial court must next find that
“consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.” Id. Finally, the trial
court must find on the record one or more of the following:
(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 post-release 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.
Id.The trial court, in order to make the required statutory findings, must
state that it engaged in the required analysis, that it considered the statutory criteria,
and must specify the factors that resulted in the decision to impose consecutive
sentences of incarceration. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659; State v. Edmonson, 86 Ohio St.3d 324, 715 N.E.2d 131 (1999); State
v. Liddy, 8th Dist. Cuyahoga No. 110848, 2022-Ohio-1673; State v. Scott, 8th Dist.
Cuyahoga No. 109689, 2022-Ohio-1486. Finally, the trial court is required to
incorporate its findings into its sentencing journal entry but need not recite a
“talismanic incantation of the words of the statute.” Bonnell at ¶ 37.
A review of the record demonstrates that the trial court considered all
the statutory requirements and made the necessary findings for imposing
consecutive sentences pursuant to R.C. 2929.14(C)(4): (1) the harm to the victims
was so great that a single prison term would not adequately reflect the seriousness
of the offenses, (2) consecutive sentences were necessary to protect the public and
to punish Parker, and (3) the consecutive sentences were not disproportionate to the
seriousness of Parker’s conduct. (Tr. 970 - 976). Further, the record demonstrates
sufficient evidence to support the trial court's findings and the trial court also
included the required findings in its judgment entry.
Parker’s first proposed assignment of error is not well taken and does
not support the claim of ineffective assistance of appellate counsel.
III. Second Proposed Assignment of Error – Allied Offenses
Parker’s second proposed assignment of error, in support of his
application for reopening, is:
The trial court violated the Double Jeopardy Clause when it failed to
merge all allied offenses of similar import.
Parker, through his second proposed assignment of error, argues that
appellate counsel should have raised the issue of allied offenses on appeal.
Specifically, Parker argues that the kidnapping offense associated with victims N.C.
and J.R. should have merged with the sexual battery or rape offenses “because all of
the kidnappings were incidental to the rapes or lesser-included sexual batteries.”
Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following
is true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the
conduct shows that the offenses were committed with separate animus.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three
of the syllabus.
The counts of kidnapping associated with victims N.C. and J.R.
occurred when the victims were transported in a motor vehicle from where they
were originally found to another location where the offenses of rape or sexual battery
were committed by Parker. There exists a separate animus as to each offense
sufficient to support separate convictions. State v. Logan, 60 Ohio St.2d 126, 397
N.E.2d 1345 (1979); State v. Fuller, 8th Dist. Cuyahoga No. 108915, 2020-Ohio-
6735; State v. Cook, 8th Dist. Cuyahoga No. 95987, 2011-Ohio-5156.
Parker’s second proposed assignment of error is not well taken and
does not support the claim of ineffective assistance of appellate counsel.
IV. Third Proposed Assignment of Error – Bifurcation
Parker’s third proposed assignment of error is:
The trial court prejudiced Appellant to an unfair trial in failing to
severance all separate victims.
Parker, through his third proposed assignment of error, argues that
the trial court erred by failing to conduct four separate trials. Specifically, Parker
argues that he was prejudiced by the failure of the trial court to bifurcate the one
trial into four separate and distinct trials with regard to each victim.
It is well established that Ohio law and Crim.R. 8(A) favor the joinder
of multiple offenses into a single trial. In fact, “‘[t]he law favors joining multiple
offenses in a single trial under Crim.R. 8(A) if the offenses charged are of the same
or similar character.’” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990),
quoting State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). Joinder is
liberally permitted to conserve judicial resources, reduce the chance of incongruous
results in successive trials, and diminish inconvenience to the witnesses. State v.
Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661 (1992).
Herein, three victims separately testified as to the offenses committed
by Parker, and we find that the evidence presented was simple and direct enough so
that the jury easily segregated the evidence. State v. Brinkley, 105 Ohio St.3d 231,
2005-Ohio-1507, 824 N.E.2d 959; State v. Johnson, 88 Ohio St.3d 95, 723 N.E.2d
1054 (2000); State v. Wilson, 8th Dist. Cuyahoga No. 102921, 2016-Ohio-2718. It
must also be noted that Parker entered a plea of guilty to a bifurcated count of rape,
that involved a fourth victim, and thus waived any error associated with the plea of
guilty via bifurcation. Parker's guilty plea waived any complaint as to claims of
constitutional violations not related to the entry of the guilty plea. See State v.
Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927; State v. Spates,
64 Ohio St.3d 269, 595 N.E.2d 351 (1992), paragraph two of the syllabus (guilty plea
waives defendant's right to challenge deprivation of counsel at preliminary hearing
stage); State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of
the syllabus (a plea of guilty effectively waives all appealable errors at trial unrelated
to the entry of the plea).
Parker’s third proposed assignment of error is not well taken and does
not support the claim of ineffective assistance of appellate counsel.
Application for reopening is denied.
CORNELIUS J. O’SULLIVAN, JR., JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR