State v. Juan , 2020 Ohio 1245 ( 2020 )

[Cite as State v. Juan, 2020-Ohio-1245.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-496
v. : (C.P.C. No. 16CR-4807)
Juan A. Stewart, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 31, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee. Argued: Barbara A.
Farnbacher.
On brief: William T. Cramer, for appellant. Argued:
William T. Cramer.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Defendant-appellant, Juan A. Stewart, appeals a judgment of the Franklin
County Court of Common Pleas entered on May 23, 2018, finding him guilty of having a
weapon while under disability with a three-year firearm specification and sentencing him
to serve five years in prison.
{¶ 2} On September 1, 2016, a Franklin County Grand Jury indicted appellant for
murder, felony murder, and having a weapon while under disability in relation to the
shooting death of Edward Williams. Related to both murder counts, the indictment alleged
repeat violent offender specifications, and for all three counts, the indictment alleged
firearm specifications.
{¶ 3} Appellant waived his right to be tried by a jury as to the weapon under
disability offense and related firearm specification. He also waived his right to a jury as to
No. 18AP-496 2
the repeat violent offender specifications, but those specifications were not ultimately
decided and are not relevant to this appeal. A jury trial began on the murder charges and
related specifications on May 14, 2018. The jury trial ended on May 21, 2018 with a hung
jury on both murder counts. Therefore, the trial court declared a mistrial. The trial court
then heard arguments on the weapon under disability count and related gun specification.
Based on the evidence presented at trial, the trial court found appellant guilty of the weapon
under disability count and related firearm specification and made the finding that appellant
had used, possessed, and brandished the firearm the night of the shooting.
{¶ 4} The trial court proceeded immediately to sentencing. The defense argued the
trial court should not sentence consecutively on the weapon under disability offense and
the firearm specification; the prosecution argued that consecutive sentencing on the offense
and specification was legally required. Initially, the defense also offered argument that the
firearm specification was not related to the weapon under disability offense but then
withdrew that argument after taking a moment to review the indictment. The defense did
not, however, withdraw its argument that the specification was not to be sentenced
consecutively to the weapon under disability offense. Neither the prosecution nor the
defense explained the legal reasoning for why the sentences for the offense and
specification must or must not be consecutively served.
{¶ 5} During trial, defense stipulated "that on or about September 16, 2011, in
Franklin County Court of Common Pleas, General Division, Franklin County, Ohio, Juan
Antonio Stewart was convicted in a plea of guilty to felonious assault in violation of 2903.11
of the Revised Code." (Tr. Vol. II at 431.) Based on appellant's stipulated criminal history
and the trial court finding appellant was guilty of the weapon under disability count of the
indictment and related gun specification, the trial court sentenced appellant to serve two
years on the weapon under disability offense and imposed a consecutive three-year
sentence on the specification, for a total prison term of five years. The judgment entry was
subsequently "amended" to reflect that the sentencing was held on May 22, rather than
May 21, 2018. Appellant appeals the judgment, asserting the following two assignments of
error:
[I.] The trial court imposed a sentence that is unsupported by
the record and contrary to law in violation of R.C.
2929.14(B)(1)(e) by sentencing appellant for a firearm use
No. 18AP-496 3
specification attached to a weapons under disability charge
absent evidence that the defendant was previously convicted of
at least a second-degree felony and that less than five years had
passed since the offender was released from prison or post-
release control for the prior offense.
[II.] Appellants right to the effective assistance of counsel
under the state and federal constitutions was violated when
counsel failed to challenge the imposition of a firearm use
specification attached to a weapons under disability charge in
violation of R.C. 2929.14(B)(1)(e).
{¶ 6} Appellant argues in his first assignment of error the trial court imposed a
sentence that is unsupported by the record and in violation of R.C. 2929.14(B)(1)(e) when
it sentenced him for the firearm use specification attached to the weapon under disability
charge absent evidence that he was previously convicted of at least a second-degree felony
and that less than five years had passed since he was released from prison or post-release
control for the prior offense. The Ohio Revised Code prohibits a court from imposing an
additional prison term for a firearm specification under R.C. 2941.145(A) with respect to
persons convicted of possessing a weapon under disability unless both of the following are
true:
(i) The offender previously has been convicted of aggravated
murder, murder, or any felony of the first or second degree.
(ii) Less than five years have passed since the offender was
released from prison or post-release control, whichever is later,
for the prior offense.
R.C. 2929.14(B)(1)(e)(i) and (ii); see also 2929.14(B)(1)(a)(ii); 2941.145(A).
{¶ 7} We first note that appellant failed to raise the present issues before the trial
court. Pursuant to Crim.R. 52(B), failure to raise these issues in the trial court waives all
but plain error. "Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court." Id. "To prevail [on a plain-error
analysis], appellant must show that an error occurred, that the error was plain, and that the
error affected his substantial rights." State v. Wilks, 154 Ohio St. 3d 359, 2018-Ohio-1562,
¶ 52. The Supreme Court of Ohio has interpreted "substantial rights" to mean that the
"error must have affected the outcome of the trial" or proceeding. State v. Barnes, 94 Ohio
St.3d 21, 27 (2002). "The power afforded to notice plain error, whether on a court's own
No. 18AP-496 4
motion or at the request of counsel, is one which courts exercise only in exceptional
circumstances, and exercise cautiously even then." State v. Long, 53 Ohio St. 2d 91, 94
(1978).
{¶ 8} Upon review, we find that appellant has failed to show that the court
committed any error, much less plain error, under R.C. 2929.14(B)(1)(e). With regard to
R.C. 2929.14(B)(1)(e)(i), appellant stipulated "that on or about September 16, 2011, in
Franklin County Court of Common Pleas, General Division, Franklin County, Ohio, Juan
Antonio Stewart was convicted in a plea of guilty to felonious assault in violation of 2903.11
of the Revised Code." (Tr. Vol. II at 431.) Felonious assault can be a first or a second-
degree felony depending on the nature of the assault and the victim. R.C. 2903.11. Thus,
R.C. 2929.14(B)(1)(e)(i) was clearly satisfied.
{¶ 9} We begin our analysis of R.C. 2929.14(B)(1)(e)(ii) by recognizing that,
depending on the degree of the offense, a person found guilty of felonious assault is subject
to a prison term of 2 to 11 years followed by a 3 or 5-year period of post-release control. R.C.
2929.14(A)(1) and (2), and 2967.28(B)(1) and (2). In this case, we take judicial notice, see
Stancourt v. Worthington City School Dist. Bd. of Edn., 164 Ohio App. 3d 184, 2005-Ohio-
5702, ¶ 14 (10th Dist.), fn.3 (an appellate court may take judicial notice of a court's finding
in another case), that appellant was sentenced on September 16, 2011 in the Franklin C.P.
No. 10CR-5213, to serve 2 years of imprisonment followed by a 3-year term of post-release
control. We also take judicial notice of the fact that appellant was granted judicial release
on September 25, 2012 and that five years of community control were imposed. Finally, we
judicially notice that the period of community control was terminated (albeit
unsuccessfully) on May 3, 2016. On May 22, 2018, appellant was sentenced in this case.
{¶ 10} The offense at issue in the present case was committed on January 20, 2015.
Therefore, appellant committed the current offense within five years of being released from
prison in 2012. Although appellant argues the date of sentencing for the current offense is
the dispositive date in applying R.C. 2929.14(B)(1)(e)(ii), we find the date of the
commission of the current offense is the proper date to use. Initally, the Eighth District
Court of Appeals came to the same conclusion in State v. Wiley, 8th Dist. No. 107417, 2019-
Ohio-3092 (finding R.C. 2929.14(B)(1)(e)(ii) was satisfied when it was clear the defendant
was under the supervision of the Ohio Adult Parole Authority at the time of the crimes and
No. 18AP-496 5
arrest). Furthermore, the date of the commission of the current offense is also the more
logical date to use for purposes of R.C. 2929.14(B)(1)(e)(ii) for several reasons. First, in
enacting the statute, the General Assembly would be concerned about the span of time
between the release from prison or post-release control and the subsequent use of a
firearm; not the span of time between the release from prison or post-release control and
the sentencing for the use of a firearm. Certainly, the General Assembly sought to prevent
the use of a firearm within a specific period after being released from prison or post-release
control and using the date of sentencing for the use of a firearm as the operative date would
not serve as a deterrent. Second, as the State of Ohio, plaintiff-appellee, points out, the
firearm specification must be alleged in the indictment, which supports the conclusion that
the date of sentencing must be irrelevant for determining whether the specification applies.
If the date of sentencing was the operative date, it would be impossible to know that date at
the time of indictment. Third, the use of the date of sentencing as the operative date would
be procedurally problematic. If the date of sentencing were the pertinent date, a defendant
could thwart the imposition of the specification by continuing the sentencing date for the
conviction until after the expiration of the five-year period in R.C. 2929.14(B)(1)(e)(ii). For
all of these reasons, we reject appellant's argument that the date of sentencing for the
current offense is the dispositive date in applying R.C. 2929.14(B)(1)(e)(ii) and, instead,
find that the relevant date is the date of the current offense. Therefore, we conclude the trial
court properly sentenced appellant for the firearm specification attached to the weapon
under disability charge because he was previously convicted of at least a second-degree
felony and less than five years had passed between the time he was released from prison or
post-release control for the prior offense and the commission of the current offense. We
overrule appellant's first assignment of error.
{¶ 11} Appellant argues in his second assignment of error that his right to effective
assistance of counsel under the state and federal constitutions was violated when counsel
failed to challenge the imposition of the firearm specification attached to the weapon under
disability charge in violation of R.C. 2929.14(B)(1)(e). Appellant must satisfy a two-prong
test to prevail on a claim of ineffective assistance of counsel. First, he must demonstrate
that his trial counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668,
687 (1984); State v. Bradley, 42 Ohio St. 3d 136, 141-42 (1989). Second, he must establish
that the deficient performance prejudiced his defense. Strickland at 687; Bradley at 141-
No. 18AP-496 6
42. "To show that a defendant has been prejudiced by counsel's deficient performance, the
defendant must prove that there exists a reasonable probability that, were it not for
counsel's errors, the result of the trial would have been different." Bradley at paragraph
three of the syllabus. In considering claims of ineffective assistance of counsel, we indulge
in a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. Strickland at 689; Bradley at 142. "Decisions on trial strategy and
tactics are generally afforded a wide latitude of professional judgment, and it is not the duty
of a reviewing court to analyze trial counsel's legal tactics and maneuvers." State v. Phillips,
10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 86.
{¶ 12} Here, appellant asserts that, at sentencing, in arguing the two counts merged
and should run concurrently, his counsel admitted "I haven't had time to review [the
indictment]." After reviewing the indictment, defense counsel asked the court to strike part
of his argument, after which, the trial court imposed a 2-year sentence on the weapon under
disability count and a 3-year sentence for the firearm specification, to be served
consecutively. Appellant asserts his counsel performed ineffectively by failing to review the
indictment prior to trial, failing to understand that the firearm specification was attached
to the weapon under disability count, and failing to challenge the firearm specification
under R.C. 2929.14(B)(1)(e). Appellant claims there existed prejudice here because the
record contains no evidence that 5 years had passed between his release from prison and
his sentence on the current weapon under disability charge, in satisfaction of R.C.
2929.14(B)(1)(e).
{¶ 13} However, appellant cannot demonstrate ineffective assistance of counsel.
Initially, although appellant would read his counsel's statement, "I haven't had time to
review [the indictment]," as meaning he never read it prior to trial, a more reasonable and
believable interpretation of the statement is that his counsel had merely forgotten the
details of the indictment while arguing the merger issue after a multi-day trial that resulted
in a hung jury on the most serious charges. It is apparent from the transcript that the trial
court's decision to hold a sentencing hearing immediately after the conclusion of the
murder trial resulted in neither side having additional time to prepare specifically for the
sentencing hearing. Thus, we find appellant's argument, in this respect, without merit.
No. 18AP-496 7
{¶ 14} With regard to appellant's argument that his counsel failed to challenge the
imposition of the firearm specification attached to the weapon under disability charge in
violation of R.C. 2929.14(B)(1)(e), his argument is based on the same argument underlying
his first assignment of error; that is, the record contains no evidence that 5 years had passed
between his release from prison and his sentence on the new weapon under disability
charge, in satisfaction of R.C. 2929.14(B)(1)(e). As we have already found above that the
trial court properly sentenced appellant for the firearm specification attached to the
weapon under disability charge because less than 5 years had passed between the time he
was released from prison or post-release control for the prior offense and his commission
of the subsequent offense, we must also reject appellant's current argument on the same
basis, as raised in the context of an ineffective assistance of counsel claim. Therefore, we
overrule appellant's second assignment of error.
{¶ 15} Accordingly, we overrule appellant's two assignments of error and affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and KLATT, J., concur.
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