State v. Habbas , 2017 Ohio 2653 ( 2017 )

[Cite as State v. Habbas, 2017-Ohio-2653.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104532
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SALEM S. HABBAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-593574-F
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Jones, J.
RELEASED AND JOURNALIZED: May 4, 2017
ATTORNEYS FOR APPELLANT
Mark Stanton
Cuyahoga County Public Defender
BY: Noelle A. Powell
Jeffrey M. Gamso
Assistant Public Defenders
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Mary M. Dyczek
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Salem S. Habbas (“Habbas”), appeals his sentence and
raises one assignment of error:
1. The trial court erred by improperly employing a sentencing package in
sentencing Mr. Habbas.
{¶2} We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
{¶3} Habbas pleaded guilty to three counts of trafficking, all third-degree felonies,
and three counts of possessing criminal tools, all fifth-degree felonies. Although none of
the charges included mandatory prison time, the parties agreed Habbas would serve
prison as part of the plea agreement. The length of the prison term was left to the court’s
discretion.
{¶4} The trial court sentenced Habbas to 36 months on each of the trafficking
convictions to be served concurrently, and 12 months on each of the possessing criminal
tools convictions to be served concurrently. However, the trial court ordered the
36-month sentences on the trafficking convictions to be served consecutive to the
12-month prison terms on the possessing criminal tools convictions for an aggregate
four-year prison term.
{¶5} Habbas now appeals his sentence.
{¶6} In his sole assignment of error, Habbas argues his sentence is contrary to law
because it improperly employed a sentencing packaging in violation of State v. Saxon,
109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824.
{¶7} In Saxon, the Ohio Supreme Court held that Ohio’s sentencing scheme does
not permit sentencing packages. Id. at ¶ 6. The “sentencing package doctrine” is a
federal doctrine that requires a sentencing court to consider the sanctions imposed on
multiple offenses as the components of a single, comprehensive sentencing plan. Id. at ¶
5. The doctrine arises from the Federal Sentencing Guidelines, which require courts to
consider “many multicount and interrelated sentencing enhancements.” Id. at ¶ 7. Thus,
under the sentencing package doctrine, an error within the sentencing package as a whole,
even if only on one of multiple offenses, may require modification or vacation of the
entire sentencing package due to the interdependency of the sentences for each offense.
Id. at ¶ 6, citing United States v. Clements, 86 F.3d 599, 600-601 (6th Cir.1996). Ohio’s
felony sentencing scheme is designed to focus the judge’s attention on one offense at a
time. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 6, citing
Saxon at ¶ 8. The court in Saxon explained that
[i]nstead of considering multiple offenses as a whole and imposing one,
overarching sentence to encompass the entirety of the offenses as in the
federal sentencing regime, a judge sentencing a defendant pursuant to Ohio
law must consider each offense individually and impose a separate sentence
for each offense. See R.C. 2929.11 through 2929.19. Only after the judge
has imposed a separate prison term for each offense may the judge consider
in his discretion whether the offender should serve those terms concurrently
or consecutively.
Saxon at ¶ 9.
{¶8} At the sentencing hearing in this case, the court stated in relevant part:
I do think, also, in looking at this overall that the appropriate amount of
prison time is four years. So I am imposing a total of four years for all of
these counts, and I’m going to divide them up so that it is as follows.
Thus, the court indicated it intended to sentence Habbas to a four-year prison term.
However, it did not impose a single comprehensive sentence on Habbas’s multiple
convictions. Rather, the court imposed individual sentences on each conviction and
ordered the sentences on the trafficking convictions to be served concurrently and the
sentences on the possessing criminal tools convictions to be served concurrently. It was
only after these individual sentences were imposed did the court order the two groups of
concurrent sentences to be served consecutive to each other for an aggregate four-year
sentence. Therefore, Habbas’s sentence is not in violation of Saxon’s prohibition against
sentencing packages.
{¶9} The sole assignment of error is overruled.
{¶10} Judgment affirmed.
It is ordered that appellee recover from appellant 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 conviction 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.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, SR., J., CONCUR