State v. Champion , 2022 Ohio 3146 ( 2022 )

[Cite as State v. Champion, 2022-Ohio-3146.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-210534
C-210604
Plaintiff-Appellee, : TRIAL NO. B-2000001
:
VS. O P I N I O N.
:
JERMAINE CHAMPION, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 9, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Clyde Bennett, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Jermaine Champion appeals the judgment of the
Hamilton County Court of Common Pleas. In three assignments of error, Champion
argues the underlying offenses and firearm specifications for which he was sentenced
should have merged as a matter of law, and that his trial counsel was ineffective for
failing to raise this issue. Because Champion entered into a plea agreement with an
agreed sentence and stipulated that the offenses were committed with a separate
animus, we affirm the judgment of the trial court.
Facts and Procedure
{¶2} On January 3, 2020, Champion was charged with aggravated murder,
murder, felony murder, felonious assault, and having weapons under disability. The
aggravated-murder, murder, felony-murder, and felonious-assault charges each
carried firearm specifications. The matter proceeded to a jury trial, but ended in a
mistrial.
{¶3} On October 6, 2021, Champion waived his right to a jury trial and
entered into a plea agreement. Champion pleaded guilty to an amended and reduced
charge of involuntary manslaughter, in violation of R.C. 2903.04(A), with a three-year
firearm specification (count 3),1 felonious assault, in violation of R.C. 2903.11A(A)(1),
with a three-year firearm specification (count 4), and having weapons while under
disability, in violation of R.C. 2923.13(A)(3) (count 5). The plea agreement included
an agreed recommended aggregate sentence of 19 years and specified that the
sentences for counts 3 and 4, including the attendant firearm specifications would be
1At the plea hearing, the prosecutor stated, “Count 3 has been amended and reduced, Your Honor,
from murder to involuntary manslaughter, 2903.04(A).”
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OHIO FIRST DISTRICT COURT OF APPEALS
served consecutively, while the sentence for count 5 would be served concurrently. In
exchange, the state dismissed the remaining charges and specifications.
{¶4} At the plea hearing, Champion stipulated that counts 3 and 4 were not
allied offenses of similar import:
PROSECUTOR: And it is my understanding, Your Honor, that
the Defense is stipulating that there was a separate animus in the
commission of * * * Counts 3 and 4.
DEFENSE COUNSEL: That is correct, Your Honor.
THE COURT: Thank you.
{¶5} After a thorough Crim.R. 11 plea colloquy, the trial court accepted the
plea agreement and sentenced Champion to the agreed recommended 19-year
aggregate sentence, followed by five years of postrelease control.
{¶6} Champion timely appealed.
R.C. 2953.08(D)(1)
{¶7} In his first assignment of error, Champion contends that the trial court
erred when it ordered Champion’s sentences for involuntary manslaughter and
felonious assault to be served consecutively because they were allied offenses.
Champion argues that the offenses were “based on the exact same conduct for the
exact same individual victim” and thus were not committed separately and were not
committed with separate animus. He further argues that the resulting harm from the
offenses is not separate and identifiable.
{¶8} In his second assignment of error, Champion contends that because the
involuntary-manslaughter and felonious-assault convictions were allied offenses, the
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OHIO FIRST DISTRICT COURT OF APPEALS
trial court further erred in sentencing him to consecutive sentences for the firearm
specifications attendant to those convictions.
{¶9} R.C. 2953.08(D)(1) provides: “A sentence imposed upon a defendant is
not subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is imposed
by a sentencing judge.” See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922
N.E.2d 923, ¶ 16; State v. Williams, 1st Dist. Hamilton No. C-150320, 2016-Ohio-376,
¶ 4.
{¶10} The Ohio Supreme Court explained in Underwood that “a sentence is
authorized by law only if it comports with all mandatory sentencing provisions.”
Underwood at ¶ 23. R.C. 2941.25(A) is among those mandatory provisions, and
mandates that there may be only one conviction, and thus one sentence, for allied
offenses of similar import. Underwood at ¶ 26; but see State v. Lee, 2018-Ohio-1839,
112 N.E.3d 65, ¶ 14 (8th Dist.) (“the burden to raise R.C. 2941.25 at sentencing falls on
the defendant and only then does the trial court have an obligation under R.C.
2941.25.”). Thus, a court’s failure to merge allied offenses of similar import at
sentencing may result in a sentence that is not authorized by law. In those instances,
appellate review is not barred by R.C. 2953.08(D)(1) even if the sentence was jointly
recommended and imposed by the court. Underwood at ¶ 26; Williams at ¶ 5.
{¶11} However, “[i]t is possible for an accused to expressly waive the
protection afforded by R.C. 2941.25 such as ‘by stipulating in the plea agreement that
the offenses were committed with separate animus.’ ” (Emphasis added.) State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20, quoting
Underwood at ¶ 29; see Williams at ¶ 5. But, “[w]aiving rights under R.C. 2941.25
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OHIO FIRST DISTRICT COURT OF APPEALS
arises in a variety of ways and is not limited to an agreement expressly referencing
R.C. 2941.25.” State v. Lee, 2018-Ohio-1839, 112 N.E.3d 65, ¶ 7 (8th Dist.). For
instance, waiver can also occur “where the transcript demonstrates that the state and
defense counsel agreed that offenses were not allied.” State v. Black, 2016-Ohio-383,
58 N.E.3d 561 ¶ 17-19 (8th Dist.). And a defendant’s “[a]gree[ment] to serve
consecutive sentences is equivalent to agreeing that multiple offenses are separate
under R.C. 2941.25.” Lee at ¶ 8.
{¶12} At the sentencing hearing, Champion, through counsel, stipulated that
there was separate animus in the commission of counts 3 and 4. And Champion’s
signed plea agreement provided that the sentences for counts 3 and 4 would be served
consecutively.
{¶13} It follows that Champion’s stipulation that the offenses were committed
with separate animus also applies to the firearm specifications. A firearm specification
is not a separate criminal offense, but “merely a sentencing provision that requires an
enhanced penalty upon certain findings.” State v. Ford, 128 Ohio St.3d 398, 2011-
Ohio-765, 945 N.E.2d 498, ¶ 19. In other words, the specification is contingent upon
the underlying offense. Id.; see State v. Hayes, 2d Dist. Clark No. 2014-CA-27, 2014-
Ohio-5362, ¶ 25.
{¶14} Because Champion stipulated that counts 3 and 4 were committed with
separate animus, he expressly waived the allied-offenses issue. Accordingly, the
sentences imposed by the trial court were authorized by law and are not subject to
appellate review. The first and second assignments of error are overruled.
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Ineffective Assistance of Counsel
{¶15} In Champion’s third assignment of error, he argues that he received
ineffective assistance because his counsel “drafted a plea agreement and had his client
enter into an agreement that stated that two clearly allied offenses would be served
consecutively.” Champion contends that, but for his counsel’s ineffective assistance,
his sentences would not be served consecutively, and he would be serving less time in
prison. The state contends that Champion readily agreed to enter into the plea
agreement, and that without the stipulation, he would be facing life in prison.
{¶16} To prevail on his ineffective-assistance-of-counsel claim, Champion
must demonstrate that “counsel’s performance fell below an objective standard of
reasonableness, and that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” State v. James, 1st Dist. Hamilton No.
C-210319, 2021 Ohio App. LEXIS 4456, ¶ 21 (Dec. 22, 2021); see State v. Collins, 2022-
Ohio-452, 185 N.E.3d 146, ¶ 12 (1st Dist.); Hill v. Lockhart, 474 U.S. 52, 58-59, 106
S.Ct. 366, 88 L.Ed.2d 203 (1985). “A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
syllabus.
{¶17} First, Champion has not demonstrated that his counsel’s performance
was deficient. Rather, defense counsel secured a plea deal that significantly reduced
Champion’s prison time and resulted in the state reducing his felony murder charge
to involuntary manslaughter, and dismissing charges for murder and aggravated
murder, which carried a potential life sentence. Moreover, stipulating to the
allied-offense issue was permissible pursuant to Underwood, Rogers, and Williams,
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and was reasonable given the circumstances. See Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, 922 N.E.2d 923, at ¶ 29 (“nothing in this decision precludes the state
and a defendant from stipulating in the plea agreement that the offenses were
committed with separate animus, thus subjecting the defendant to more than one
conviction and sentence.”).
{¶18} Even if Champion had satisfied the first prong, his claim would fail on
the second prong because he has not demonstrated that, but for counsel’s
performance, he would have insisted on going to trial instead of entering a guilty plea.
Rather, the record demonstrates that Champion was advised multiple times of the plea
deal, understood the alternatives,2 and signed a written plea agreement that clearly
listed the maximum sentences and recommended sentences. At the plea hearing, the
court told Champion, “I am choosing to tell you that I intend to follow that
recommendation when we get through with this. Do you understand that?” Champion
said that he understood. The court then sentenced him to the recommended
sentences.
{¶19} Thus, Champion has not met his burden to demonstrate ineffective
assistance of counsel. The third assignment of error is overruled.
Conclusion
{¶20} For the foregoing reasons, we overrule Champion’s first, second, and
third assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
2At sentencing, counsel for Champion stated, “Following the trial, we’ve had intense discussions
about the case and he, without hesitation, agreed to enter this guilty plea. * * * He is prepared to
serve the consequences of his actions.”
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OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, P. J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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