State v. Cammack , 2020 Ohio 2942 ( 2020 )

[Cite as State v. Cammack, 2020-Ohio-2942.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108705
v. :
JAMAL CAMMACK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 14, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-632481-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Marc D. Bullard and Brandon A. Piteo, Assistant
Prosecuting Attorneys, for appellee.
Anzelmo Law and James A. Anzelmo, for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Jamal Cammack (“Cammack”) appeals his ten-
year prison sentence issued after he pled guilty to multiple offenses. We affirm.
I. Background and Facts
In 2015, in response to the local councilman’s complaint, the
Cleveland Police Department began working to eradicate gang activity in the area of
East 156th Street and St. Clair Avenue in the Collinwood area. While operations
were ongoing, Cammack became a target of a drug sting investigation by the
department’s gang impact unit (“GIU”) who received reports in August 2016 that
Cammack was selling heroin. The GIU was also advised that Cammack was a high-
ranking member of the 156 Bricks gang that was affiliated with the Heartless Felons.
GIU detectives conducted eight undercover drug buys from Cammack for a total of
10.20 grams of heroin and purchased a firearm.
On September 27, 2016, without the knowledge of the GIU, Cammack
was detained by police for traffic violations and officers allegedly observed suspected
drug activities. Cammack was arrested, handcuffed, and attempted to escape but
was apprehended down the block. Cammack had 4.09 grams of heroin, 0.5 grams
of cocaine, $1,665 in currency, two cell phones, and a scale with residue. The search
warrant execution at Cammack’s residence revealed drug packaging materials with
cocaine residue, a scale with heroin residue, a shotgun barrel, gloves, and 82.93
grams of heroin.
Two cases were filed for a total of 38 charges for gang activity, drug
trafficking and possession, and possession of criminal tools. Counts 1-31 arose from
the undercover operation and serve as the underlying case in this appeal. Counts
32-38 for drug possession and trafficking, possession of criminal tools, resisting
arrest and escape were issued due to the traffic stop in State v. Cammack, Cuyahoga
C.P. No. CR-18-631454.
On April 30, 2019, Cammack entered a guilty plea to what the state
labeled “a packaged plea” that encompassed the charges in the instant case and the
traffic stop case. Cammack pled guilty to the following:
Count 1: Criminal gang activity 2923.42(A), second-degree felony.
Count 2: Trafficking offense 2925.03(A)(2), first-degree felony.
Count 5: Possessing criminal tools 2923.24(A), fifth-degree felony
with forfeiture specification(s) (R.C. 2941.1417).
Count 9: Trafficking offense 2925.03(A)(1), fourth-degree felony.
Count 15: Trafficking offense 2925.03(A)(1), fifth-degree felony.
Count 21: Trafficking offense 2925.03(A)(1), fifth-degree felony,
with firearm specification(s) - 1 year (2941.141), forfeiture
specification(s) (2941.1417).
Count 24: Having weapons while under disability 2923.13(A)(2) F3.
Count 29: Trafficking offense 2925.03A(1) F3.
Count 32: Trafficking offense 2925.03A(2) F3 with forfeiture
specification(s) (2941.1417), schoolyard specification(s).
Count 34: Trafficking offense 2925.03A(2) F4 with forfeiture
specification(s) (2941.1417), schoolyard specification(s).
Remaining counts are nolled. The [trial] court accepts defendant’s
guilty plea. Defendant to forfeit to the state: digital scale, gloves and/or
shotgun case with barrel, gun, serial # PBR6291, 2 cell phones, and
$1,665.00 U.S. currency. 3 years discretionary post release control
explained for Counts 5, 9, 15, 21, 24, 29, 32, and 34.
Journal entry no. 108825412 (May 21, 2019), p. 1.
On May 21, 2019, Cammack was sentenced to imprisonment for ten
years. Consecutive terms of two years were imposed on the Count 1 conviction for
criminal gang activity and eight years for the Count 2 trafficking offense. The
remaining sentences, including specifications, were run concurrent with the ten-
year period.
Cammack appeals.
II. Assignments of Error
Cammack assigns as plain error the trial court’s sentence in this case:
I. The trial court erred by failing to merge the Count 1 gang activity
offense with the remaining offenses.
II. The trial court unlawfully ordered consecutive sentences in
violation of Cammack’s constitutional rights.
III. Discussion
A. Merger
R.C. 2941.25 governs allied offenses and provides that “[w]here the
same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted of only one.” R.C. 2941.25(A).
“An allied offenses claim is consistent with an admission of guilt and therefore is not
waived by pleading guilty to offenses that might be allied offenses of similar import.”
State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 19. A trial
court does not have a duty to inquire about allied offenses if defense counsel fails to
raise the issue at sentencing. Id. at ¶ 6.
In addition,
An accused’s failure to raise the issue of allied offenses of similar import
in the trial court forfeits all but plain error, and a forfeited error is not
reversible error unless it affected the outcome of the proceeding and
reversal is necessary to correct a manifest miscarriage of justice.
Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus;
absent that showing, the accused cannot demonstrate that the trial
court’s failure to inquire whether the convictions merge for purposes of
sentencing was plain error.
Rogers at ¶ 3.
Shortly before Rogers was issued, the Ohio Supreme Court explained
the logistics of a merger analysis:
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must
focus on the defendant’s conduct to determine whether one or more
convictions may result because an offense may be committed in a
variety of ways and the offenses committed may have different import.
No bright-line rule can govern every situation.
As a practical matter, when 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.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 30-31.
The state explained at the hearing that the offer was a “packaged
plea” for both cases. (Tr. 24.) Cammack was offered two plea options in the instant
case as part of the first component of the package:
[O]ption one essentially results in the deletion of Count 1, participating
in criminal gang activity, and also would result in the deletion of the
three-year firearm specification contained in Counts 21, 22, and 23.
That would require — less those amendments and deletions it would be
a plea of guilty to the remainder of the indictment. An additional term
of that plea would be an agreed ten years of incarceration.
(Tr. 24-25.)
The state continued:
Having said that, it’s my understanding the defendant wishes to
exercise plea option number two, and your Honor, plea option number
two would require defendant’s guilty plea to Count 1 as indicted,
participating in a criminal gang in violation of code section 2923.42
subsection A. That’s a felony of the second degree.
Also defendant would enter plea of guilty to Count 2 as indicted, drug
trafficking, in violation of code section 2925.03 subsection (A)(2).
That’s a felony of the first degree. That carries with it a mandatory term
of incarceration of 3 to 11 years and a mandatory fine.
(Tr. 25.)
The state detailed the remaining elements of the instant case’s
second option that required a plea to a number of the remaining counts and clarified
that the option did not include a sentencing agreement. “The state would be free to
argue for * * * as much time as it wants and that’s what the state’s intention is as
part” of the case. (Tr. 27.)
Next, the state addressed the second component of the package
arising from the traffic stop case:
Next, your Honor, as part and parcel of that plea is 631454. It’s my
understanding defendant will enter a plea of guilty to Count 2 as
indicted, drug possession, felony of the fifth degree with the forfeiture,
and Count number 4, possession of criminal tools as indicted with
forfeiture specifications, and then Count 6, resisting arrest,
misdemeanor of the first degree as indicted.
If these pleas are forthcoming the state would ask this Court to nolle
the remaining counts as relevant to this defendant.
(Tr. 27-28.)
The trial court confirmed Cammack’s understanding of the plea
package options. The trial court emphasized that the first option involved a
mandatory ten-year sentence and, while the second option involved a lower
mandatory minimum, the sentencing range would allow for a total sentence that
exceeds ten years.
Court: So do you understand the difference? What you’re doing
right now you’re taking four that you know, all right, but
you know what the high end is as opposed to taking the
ten and then you don’t know if you could have done better.
Is that what you’re saying?
Cammack: Yes, your Honor.
Court: Okay. All right. I just want to make sure he understands.
***
State: [Four years is] the mandatory minimum. [The] State
doesn’t agree to that. The state intends on asking for a
lengthy sentence in this case, your Honor.
(Tr. 29-30.)
The R.C. 2923.42 criminal gang activity statute provides in relevant
part:
(A) No person who actively participates in a criminal gang, with
knowledge that the criminal gang engages in or has engaged in a
pattern of criminal gang activity, shall purposely promote,
further, or assist any criminal conduct, as defined in division (C)
of section 2923.41 of the Revised Code, or shall purposely
commit or engage in any act that constitutes criminal conduct,
as defined in division (C) of section 2923.41 of the Revised Code.
(B) Whoever violates this section is guilty of participating in a
criminal gang, a felony of the second degree.
R.C. 2923.42(A)-(B).
Criminal conduct is defined as:
the commission of, an attempt to commit, a conspiracy to commit,
complicity in the commission of, or solicitation, coercion, or
intimidation of another to commit, attempt to commit, conspire to
commit, or be in complicity in the commission of an offense listed in
division (B)(1)(a), (b), or (c) of this section or an act that is committed
by a juvenile and that would be an offense, an attempt to commit an
offense, a conspiracy to commit an offense, complicity in the
commission of, or solicitation, coercion, or intimidation of another to
commit, attempt to commit, conspire to commit, or be in complicity in
the commission of an offense listed in division (B)(1)(a), (b), or (c) of
this section if committed by an adult.
R.C. 2923.41(C).
The state argues that merger is not appropriate under Ruff because
the offenses: (1) were not similar in significance or import; (2) were separately
committed; and (3) were committed with separate motivation or animus. Ruff, 143
Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 30-31. “An affirmative answer to
any of the above will permit separate convictions.” Id.Cammack offers that the gang activities are effectively all-
encompassing for purposes of merger. In the beginning of 2015, the local
councilman requested police intervention to curb the violent heavy gang activity in
the area. Law enforcement “converged upon the neighborhood in several locations
and started doing proactive law enforcement techniques.” (Tr. 58.) While the gang
activity investigation began in 2015, GIU detectives testified that they did not initiate
the drug sting operation until August 2016, after receiving notice that Cammack was
selling drugs. The detectives were also informed that Cammack was a high-level
member of the 156 Bricks gang.
The gang activity indictment covers the January 1, 2015, to
October 17, 2016 timeframe. The indictment lists: drug trafficking, drug
possession, having weapons while under disability, carrying concealed weapon,
possession of criminal tools, aggravated riot, participating in criminal gang,
felonious assault, and burglary. The counts that specifically relate to drug sale and
related activities cover the August and September 2016 timeframe. The indictments
are for transactions and activities that were separately committed, at separate times,
and resulted in separate, identifiable harm. According to the record, Cammack said
that he sold narcotics to support himself, thus providing a motive separate from that
of the gang activity involvement.
Based on the foregoing, we do not find by our plain error review that
Cammack has presented a “reasonable probability that the convictions are for allied
offenses of similar import committed with the same conduct and without a separate
animus.” Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 3.
Cammack’s first assignment of error is overruled.
B. Consecutive Sentences
Cammack’s second assigned error is that the trial court unlawfully
ordered consecutive sentences in violation of his constitutional rights.
R.C. 2953.08(G)(2) provides, in part, that when reviewing felony
sentences, the appellate court’s standard is not whether the sentencing
court abused its discretion; rather, if this court “clearly and
convincingly” finds that (1) “the record does not support the sentencing
court’s findings under” R.C. Chapter 2929 or (2) “the sentence is
otherwise contrary to law,” then we may conclude that the court erred
in sentencing. See also State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231.
State v. Johnson, 8th Dist. Cuyahoga No. 107528, 2019-Ohio-4668, ¶ 6.
A trial court is also required to consider the principles and purposes
of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in
R.C. 2929.12. See State v. McGowan, 8th Dist. Cuyahoga No. 105806, 2018-Ohio-
2930, ¶ 11-12. Review of R.C. 2929.11 and 2929.12 applies to the imposition of
individual sentences and consecutive service may not be ordered until the trial court
imposes a sentence for each individual count. State v. Gwynne, 158 Ohio St.3d 279,
2019-Ohio-4761, 141 N.E.3d 169, ¶ 17. However, Cammack does not argue that the
trial court failed to consider the felony sentencing factors under R.C. 2929.11 and
2929.12, but focuses on the imposition of consecutive sentences under
R.C. 2929.14(C)(4).
“Although a general presumption exists for the imposition of
concurrent sentences, R.C. 2929.41(A) expressly recognizes certain exceptions,
including when the record requires the imposition of consecutive sentences under
R.C. 2929.14(C) for multiple offenses.” State v. Rice, 8th Dist. Cuyahoga
No. 102443, 2015-Ohio-3885, ¶ 9.
A trial court must make specified findings pursuant to
R.C. 2929.14(C)(4) before it imposes consecutive sentences. State v. Magwood, 8th
Dist. Cuyahoga No. 105885, 2018-Ohio-1634, ¶ 62. Specifically, the court must find:
(1) consecutive terms are required to protect the public from future crime or to
punish the offender, (2) consecutive terms are not disproportionate to the
seriousness of the conduct and danger posed to the public, and (3) either the
offender committed at least one offense while awaiting trial or sentencing, that
multiple offenses were part of a course of conduct and the harm caused was so great
or unusual that a single term does not adequately reflect the seriousness of the
offender’s conduct, or that the offender’s criminal history is such that consecutive
terms are necessary to protect the public. R.C. 2929.14(C)(4); State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 22, 26. In addition to making the
findings at the sentencing hearing, the trial court must also “incorporate its findings
into its sentencing entry, but it has no obligation to state reasons to support its
findings.” Bonnell at ¶ 37.
The trial court stated:
Count 2 and Count 21 will run consecutive to each other and
consecutive to the firearm specification for a total sentence of 10 years
at the Lorain Correctional Institution. I do find that a consecutive
sentence is necessary pursuant to 2929.19(B)(2)(b) and 2929.14(C)(4).
The Court finds it is necessary to punish the offender and protect the
public from future crime, and is not disproportionate to the seriousness
of the conduct and the danger posed by the defendant.
One or more offenses were committed while offender was awaiting
trial, on community control sanctions or postrelease control.
That two or more offenses are part of one or more courses of conduct,
and the harm caused is so great or unusual that a single prison term
would not adequately reflect the seriousness of the conduct.
So those are my reasons for the consecutive sentences. I’m not going
to impose any fines or court costs. Again, you have previously been
declared indigent.
(Tr. 75-76.)
Cammack concedes the trial court addressed the requisite factors for
consecutive sentences but argues the record does not support proper contemplation
of mitigation factors such as his lack of a lengthy criminal record, no prior
incarcerations, and his remorsefulness. R.C. 2929.12(E). Cammack also cites his
participation in honors classes in school and in skills and training classes during his
incarceration as additional fodder for consideration. R.C. 2929.12(C)(3).
Cammack also states that the gun offense was instigated by the
undercover detective with whom Cammack had “developed a relationship.”
(Tr. 68.) The detective told Cammack that his girlfriend’s ex-boyfriend broke into
their house and they needed protection. As defense counsel stated, “[b]asically, he’s
asking [Cammack] to give him a gun. I hope the court takes that into consideration.”
(Tr. 68.) Cammack contended he was not in the business of selling weapons and did
not commit any violent acts.
In addition to informing the trial court of the mitigation factors,
defense counsel also expressed concern that the activities of Cammack’s
codefendant in the traffic stop case did not taint the sentencing process for
Cammack.
As I stated, my client — we’re here hoping that he’s judged for his own
actions. He’s never served a prison term. I believe that there is a
presumption that if a person has not served a prior prison term, that
the presumption is he would be sentenced to the minimum period of
incarceration, and we’re hoping that the Court takes that into
consideration, and in fact sentences [Cammack] to a period of four
years.
(Tr. 68.) In addition, Cammack expressed his remorse to the trial court and advised
that he would use his time to become a better man.
The trial court expressed great concern about the drug activities and
the form of violence that it visited on the community but also acknowledged hopes
for rehabilitation:
You’re violent in the harm you’re causing your community. I appreciate
the government wants me to send you away. The total amount of years
you’re somewhere in the neighborhood of about 38 years I can give you
right now. That’s like a life sentence for you. That’s what they would
want.
Your lawyer is correct, and I sat with your lawyer for a long time. You
have taken responsibility so that is a plus for you. You don’t have a
significant criminal history. That’s a plus for you, but your conduct
deserves to be punished, and you by your own words said, I’m taking
my punishment like a man, I get what I deserve.
So I hope you go down there, and I hope you do use that degree, and I
hope your lawyer is right but what a waste. Your community needs
somebody who is strong. You’re a big guy. You should be a leader in
the community. You should be telling all those folks in the back and
setting an example.
Their hearts must be breaking back there looking at you sitting in
orange, so I do hope you come out. I hope you rehabilitate yourself. I
hope you set an example to the next generation[.] * * *
All right. I’m done preaching.
(Tr. 71-72.)
The record supports the trial court’s lawful imposition of consecutive
sentences and incorporation of those findings in its journal entry. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 22, 26, 37.
Cammack’s second assignment of error is overruled.
IV. Conclusion
The trial court’s judgment is 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___
ANITA LASTER MAYS, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION
LARRY A. JONES, SR., J., DISSENTING:
Respectfully, I dissent. I would sustain Cammack’s first assignment
of error and find that Count 1, participating in criminal gang, should have merge
with the other offenses.
In State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150 (4th Dist.), the
appellant made a similar argument, claiming that the trial court committed plain
error when it did not merge his conviction for engaging in pattern of corrupt activity
with his conviction for participating in criminal gang because the harm resulting
from each offense, to wit: drug trafficking, was the same, the conduct was the same,
and the convictions resulted from the same motivations. The Fourth Appellate
District agreed with the appellant, finding that there was “no evidence in the record
that demonstrates that one charge produced separate harm from the other.” Id. at
¶ 118. The court further found that there was no evidence that the offenses were
committed separately; the appellant’s incriminating conduct was his active role in a
drug operation. Id. Finally, the court determined that there was no evidence to
support the existence of different motivations for the two offenses; thus, the offenses
should merge. Id.
In this case, the sergeant who spoke at Cammack’s sentencing hearing
told the court that he and another detective from the gang unit were already working
on gang activity in the area when Cammack’s name came up as a high-level gang
member and a drug dealer, so the detectives conducted a sting operation. The
almost two-year period of criminal gang activity in Count 1 of the indictment
includes drug trafficking, having weapons while under disability, drug possession,
and possession of criminal tools. Thus, the dates of the sting operation activity fall
within the dates of the criminal gang activity. As in Smith, the state relied on the
exact same predicate events to support both the participating in criminal gang
charge and the predicate offenses charges. See Smith at id. I also cannot discern
from the limited record before us that the harm resulting from participating in
criminal gang offense and the predicate offenses is separate and identifiable;
although it is certainly possible, there is no evidence in the record that demonstrates
that Smith’s activity in a criminal gang produced harm separate from his other
offenses.
According to the state, Cammack was “not only selling dangerous
drugs” but was “doing so as part of a dangerous gang.” The majority notes that
Cammack sold narcotics to support himself and that motive was separate from his
participation in a gang. As part of the presentence investigation report, Cammack
stated that his only job was selling drugs. He sold drugs as part of a gang. Thus, he
was part of a gang as a way to support himself and his motivation for committing
the offense of participating in a criminal gang and the other offenses is the same.
Thus, the evidence of the drug operation, specifically the predicate
offenses of drug trafficking, drug possession, possessing criminal tools, and having
weapons while under disability, served to show that Cammack was both engaging in
those offenses and participating in a criminal gang. The evidence in the record does
not demonstrate that his conduct served to commit the participating in criminal
gang offense separate from the other offenses.
Therefore, I would find that the offenses of participating in criminal
gang would merge into the other offenses and would sustain the first assignment of
error.