State v. James , 2015 Ohio 4987 ( 2015 )


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  • [Cite as State v. James, 
    2015-Ohio-4987
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 102604
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    BYRON JAMES
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED IN PART, REVERSED IN PART
    AND REMANDED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-12-566251-A
    BEFORE:           Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.
    RELEASED AND JOURNALIZED: December 3, 2015
    ATTORNEY FOR APPELLANT
    P. Andrew Baker
    17877 St. Clair Avenue, Suite 150
    Cleveland, OH 44110
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    Anna M. Faraglia
    Oscar E. Albores
    Assistant County Prosecutors
    Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, OH 44113
    MELODY J. STEWART, J.:
    {¶1} Defendant-appellant Byron James repeatedly shot his victim in front of a
    group of people after chasing the victim around a neighborhood — he did not even bother
    to hide his identity from the group of people, all of whom knew him. A jury found these
    facts sufficient to find James guilty of aggravated murder, two counts of felonious assault,
    discharging a weapon near prohibited premises and into a habitation, along with firearm
    specifications for those respective counts. In this direct appeal of his conviction, James
    argues that trial counsel was ineffective for failing to seek a dismissal of the charges on
    speedy trial grounds and for failing to object to certain trial testimony, that his conviction
    was against the manifest weight of the evidence, that counts for discharging a weapon
    near prohibited premises and discharging a weapon into a habitation should have merged
    for sentencing, and that the court erred by concluding that the discharge specifications
    were subject to mandatory consecutive service. We affirm in part, reverse in part, and
    remand.
    {¶2} James’s first assignment of error complains that defense counsel was
    ineffective for three reasons: (1) trial counsel failed to seek a dismissal of the indictment
    on speedy trial grounds; (2) trial counsel failed to object when the state improperly
    bolstered the credibility of its witnesses; and (3) trial counsel failed to request merger of
    the firearm discharge specifications.
    {¶3} A defendant claiming ineffective assistance of counsel bears the burden of
    establishing two elements: (1) that trial counsel’s performance fell below objective
    standards for reasonably effective representation, and (2) that counsel’s deficiency
    prejudiced the defense. Strickland v. Washington, 
    466 U.S. 668
    , 687-688, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984).
    {¶4} To satisfy the first element of the Strickland test, appellant must direct the
    court to specific acts or omissions by his counsel. 
    Id. at 690
    . We consider whether in
    light of all the circumstances counsel’s performance was outside the wide range of
    professionally competent assistance. 
    Id.
     Our assessment of counsel’s performance is
    “highly deferential” so we indulge in “a strong presumption that counsel’s conduct falls
    within the wide range of reasonable professional assistance * * *.” 
    Id. at 689
    . Further,
    counsel’s performance is evaluated in light of an attorney’s discretion to develop
    appropriate trial strategies according to the attorney’s independent judgment, given the
    facts of the case, at least some of which may not be reflected in the trial record. 
    Id. at 689-690
    .
    {¶5} To satisfy the second Strickland element, the defendant must show that there
    is a reasonable probability that, but for counsel’s errors, the result of the proceedings
    would have been different. 
    Id. at 694
    . A “reasonable probability” is defined as one that
    is “sufficient to undermine confidence in an outcome.” 
    Id. at 694
    .
    {¶6} Trial counsel did not perform outside the wide range of professionally
    competent assistance required in the context of speedy trial issues.
    {¶7} Although the state is required to bring a criminal defendant to trial within 270
    days after arrest, see R.C. 2945.71(C), James was held in jail in lieu of bail, so the
    triple-count provisions of R.C. 2945.71(E) applied. This means that the state had to
    bring James to trial within 90 days of his arrest. James was arrested on December 9,
    2013, so his trial should have started no later than March 10, 2014. Trial did not
    commence until January 26, 2015, well outside the 90-day speedy trial time.
    {¶8} The speedy trial time can be tolled on the accused’s own motion. See R.C.
    2945.72(E). James concedes that the speedy trial time was tolled many times at his
    request, but claims that one continuance ordered by the court did not come at his request
    and is dispositive of the speedy trial issue. That continuance, granted on October 15,
    2014, stated: “Pretrial not held. Defense counsel in trial in another courtroom. Final
    pretrial set at 10/29/14 at 9:00 AM. Trial set at 1/26/15 at 9:00 AM.” James argues that
    this entry does not indicate that the trial date was set at his request, nor does it indicate
    that he agreed to waive his speedy trial time from October 15, 2014 through January 26,
    2015.
    {¶9} While James may not have specifically acquiesced to the January 26, 2015
    trial date, a defendant is bound by the actions of counsel in waiving speedy trial rights by
    seeking or agreeing to a continuance, even if no formal motion for a continuance has been
    filed. See State v. Davis, 
    46 Ohio St.2d 444
    , 449, 
    349 N.E.2d 315
     (1976). There is no
    question that trial counsel’s inability to attend the October 15, 2014 pretrial necessitated a
    delay chargeable to James that tolled the speedy trial time. See, e.g., State v. Humphries,
    8th Dist. Cuyahoga No. 99924, 
    2014-Ohio-5423
    , ¶ 9 (continuances of pretrials granted at
    defendant’s request tolled speedy trial time); State v. Walker, 8th Dist. Cuyahoga No.
    99239, 
    2013-Ohio-3522
    , ¶ 22. The court rescheduled the pretrial for October 29, 2014,
    but that pretrial was continued “at the request of defendant” for “further discussions” — a
    notation that, given prior references to “ongoing plea negotiations,” we understand as
    indicating that the parties were engaged in plea negotiations.                Likewise, pretrials
    scheduled for November and December were continued at James’s request, with the court
    noting the reason for the continuances as “further discussions.” So even though James
    may have not agreed to the January 2015 trial date, counsel, on his behalf, did request
    additional continuances that tolled the speedy trial time regardless of that trial date. 1
    With no speedy trial issue manifest on the record, trial counsel had no duty to file a
    motion to dismiss on that basis.
    There was one continuance of the “final” pretrial requested by the state on November 17,
    1
    2014, causing the court to reschedule the pretrial to November 20, 2014, at which time James asked
    for another continuance. James makes no argument that this three-day delay occasioned by the state’s
    request, standing alone, was what violated his speedy trial right.
    {¶10} James next argues that trial counsel failed to object on numerous occasions
    where the state improperly bolstered the credibility of its own witnesses by inquiring into
    whether they were currently employed or had children. He argues that these questions
    violated Evid.R. 608(A)(2), which states that “evidence of truthful character is admissible
    only after the character of the witness for truthfulness has been attacked by opinion or
    reputation evidence or otherwise.”
    {¶11} It is important to understand that the “evidence of truthful character”
    referred to in Evid.R. 608(A)(2) is not the same thing as “credibility.” “Truthfulness” is
    a facet of “credibility.” State v. Markland, 8th Dist. Cuyahoga No. 45137, 
    1983 Ohio App. LEXIS 13748
     (Apr. 21, 1983). The Staff Note to Evid.R. 608(A)(2) makes this
    point, noting that a 1992 amendment to the rule “substitutes the phrase ‘character for
    truthfulness’ for the term ‘credibility.’ The latter term is too broad and, therefore, may
    cause confusion.”
    {¶12} None of the questions posed by the state remotely touched on Evid.R.
    608(A)(2) and the witness’s character for truthfulness. They were general background
    questions asked of the witnesses as they began their testimony: their age, where they
    lived, whether they had a family, and their employment status. Although these kinds of
    questions may indirectly give the trier of fact reason to find the witness more or less
    credible, this is not the type of testimony prohibited by Evid.R. 608(A)(2). What is
    more, James himself testified and answered very similar questions on direct examination
    regarding whether he graduated from high school, whether he was employed, and whether
    he had any children. James cannot be heard to complain that trial counsel was deficient
    for failing to object to the same type of trial strategy.
    {¶13} James also complains that the state improperly asked its own witnesses
    whether they had any prior convictions. The state is entitled to ask its own witnesses
    whether they have any prior convictions as a preemptive attempt to “take the wind out of
    the defendant’s sails regarding the witness’ credibility.” United States v. Handly, 
    591 F.2d 1125
    , 1128, fn. 1 (5th Cir.1979); see also Ohler v. United States, 
    529 U.S. 753
    , 758,
    
    120 S.Ct. 1851
    , 
    146 L.Ed.2d 826
     (2000) (noting that defendants often introduce evidence
    of prior convictions on direct examination to “remove the sting”). While one of the
    state’s witnesses did not have a prior conviction, that fact alone did not make the question
    objectionable on the grounds that the answer bolstered that witness’s truthful character.
    Counsel therefore had no reason to object to the state’s questions.
    {¶14} For his second assignment of error, James complains that the jury’s verdict
    is against the manifest weight of the evidence. He argues that there was no physical
    evidence to prove his identity as the shooter and that the state’s witnesses had credibility
    issues.
    {¶15} The manifest weight of the evidence standard of review requires us to
    review the entire record, weigh the evidence and all reasonable inferences, consider the
    credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the
    trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
    conviction must be reversed and a new trial ordered. State v. Otten, 
    33 Ohio App.3d 339
    , 340, 
    515 N.E.2d 1009
     (9th Dist.1986). The use of the word “manifest” means that
    the trier-of-fact’s decision must be plainly or obviously contrary to all of the evidence.
    This is a difficult burden for an appellant to overcome because the resolution of factual
    issues resides with the trier of fact. State v. DeHass, 
    10 Ohio St.2d 230
    , 
    227 N.E.2d 212
    (1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or
    disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
    Antill, 
    176 Ohio St. 61
    , 67, 
    197 N.E.2d 548
     (1964).
    {¶16} The state’s evidence consisted of the testimony of several witnesses who
    collectively testified that the victim and a group of his friends had gathered in front of a
    house when James pulled up in his car. James, who was not wearing anything that might
    hide his identity, exited the car in the plain sight of those present. He said something to
    the victim that the witnesses could not hear. He then pulled out a handgun and began
    firing. The victim fled, moving between parked cars on the street. James pursued the
    victim, continuing to fire between three to seven shots. One of those gunshots struck the
    victim in the back and caused his death. In addition to the shot that killed the victim, one
    of the shots fired by James struck a house on the street. After killing the victim, James
    reentered his car and drove away. James subsequently sold the car for $80 and then
    traveled to Georgia. He remained there for nearly one year despite knowing that he was
    wanted for the murder, until his arrest and return to Cuyahoga County.
    {¶17} James testified in his own defense and claimed that two witnesses to the
    shooting fabricated his involvement based on “differences” they had. He testified that
    one of the witnesses was upset because he had been talking to the witness’s “girl”; he
    testified that the other witness was “trying to be tough all the time.” James claimed that
    these two witnesses had broken the front and rear windows of his car. He claimed that
    he left Ohio after the shooting to attend a funeral. After learning that the police had
    issued a warrant for his arrest, James said that he decided to “chill out” in Georgia until
    his family was able to finance the services of an attorney.
    {¶18} James also attacks the credibility of the witnesses, arguing that they did not
    identify him as the shooter in their 911 call for emergency services despite later claiming
    to know who he was when the shooting occurred. One witness explained that he did not
    immediately identify James based on the “code of the streets” not to “snitch.” The
    witness said that at the time he made the 911 call, he believed that the victim was “okay,”
    but when he learned that the victim had died, he decided to come forward and identify
    James.
    {¶19} Another witness testified that he was walking down the street at the time
    James drove by in his car. This witness, who had known James since they were children,
    said hello to James and kept walking. He then heard, but did not see, shots being fired.
    The witness ran for cover and saw the victim on the ground. He acknowledged that he
    did not immediately identify James by name to the police because he did not actually see
    the shooting.
    {¶20} A fourth witness, whom James claims “did absolutely nothing to contact the
    police or report what he had witnessed” testified that after witnessing the shooting, he
    asked his mother to call the police as he went out to attend to the victim. This witness
    went to the hospital to await the victim’s treatment and stayed there for two hours before
    returning to his home. He spoke to the police the following day and identified James as
    the shooter.
    {¶21} Finally, James acknowledged that another witness immediately identified
    him as the shooter to the police, but claimed that this witness was a convicted felon who
    gave such sarcastic and flippant testimony that nothing he said was worthy of belief.
    While this witness may not have been as decorous as James would wish him to be, the
    witness’s testimony was consistent in all material respects with that given by the other
    witnesses to the shooting. We have no basis to conclude that the jury lost its way by
    finding the state’s witnesses believable.
    {¶22} James also complains that the jury’s guilty verdict on the count relating to
    discharging into a habitation was against the manifest weight of the evidence because
    there was no evidence to show that he knowingly fired a shot into the residence. This is
    really an argument going to the sufficiency, not the weight, of the evidence.         And
    because the sufficiency of the evidence has not been assigned as error on this issue, it is
    not properly before us for review.2 See App.R. 16(A)(7).
    However, even had the argument been properly presented, it would be
    2
    meritless: there was testimony from the occupant of the house concerning a bullet
    hole in the house that did not exist prior to the shooting and another witness
    testified that one of James’s missed shots left a bullet hole in the side of the house.
    That evidence was sufficient to establish that James discharged a firearm into a
    habitation.
    {¶23} The third assignment of error complains that the court erred by failing to
    merge Counts 5 and 6 — discharging a firearm on or near prohibited premises and
    discharging into a habitation — into the other four counts, all of which the court had
    otherwise merged for sentencing. James acknowledges that trial counsel conceded that
    Counts 5 and 6 were not allied, but argues that trial counsel was wrong to make that
    concession and that plain error exists.
    {¶24} Ordinarily, the issue raised in this assignment of error would not be subject
    to review on appeal under authority of R.C. 2953.08(D)(1). That section states: “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.” Because trial counsel
    agreed with the state that Counts 5 and 6 do not merge, R.C. 2953.08(D)(1) would seem
    to deprive this court of jurisdiction to consider this issue.
    {¶25} However, in State v. Underwood, 
    124 Ohio St.3d 365
    , 
    2010-Ohio-1
    , 
    922 N.E.2d 923
    , paragraph one of the syllabus states: “When a sentence is imposed for
    multiple convictions on offenses that are allied offenses of similar import in violation of
    R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence even
    though it was jointly recommended by the parties and imposed by the court.” The
    Supreme Court reached this conclusion by finding that the term “authorized by law” as
    used in R.C. 2953.08(D)(1) encompassed not only what the law permits, but what the law
    requires. Id. at ¶ 20. As applicable here, the allied offenses statute, R.C. 2941.25(A),
    states that “there may be only one conviction for allied offenses of similar import.” Id. at
    ¶ 26 (Emphasis sic.). The Supreme Court interpreted this language to mean that “a trial
    court is prohibited from imposing individual sentences for counts that constitute allied
    offenses of similar import.” Id.
    {¶26} Nevertheless, Underwood understood that a defendant can expressly waive
    the protections of R.C. 2945.21 by “stipulating in the plea agreement that the offenses
    were committed with separate animus.” Id. at ¶ 29. In this context, a defendant’s
    waiver of statutory protection (the intentional relinquishment of a known right) is
    substantively different than a forfeiture (the failure to timely assert a right) of an issue for
    appeal. See State v. Rogers, 
    143 Ohio St.3d 385
    , 
    2015-Ohio-2459
    , 
    38 N.E.3d 860
    , ¶ 20.
    {¶27} In Underwood, the parties entered into a plea agreement with an agreed
    sentence, but they said nothing about whether the offenses that were the subject of the
    plea agreement would merge.       In this case, there was no plea agreement, but at
    sentencing the state told the court that it did not believe that Counts 5 and 6 merged for
    sentencing and trial counsel agreed, stating that “Count [sic] 5 and 6 do not merge into
    the first four counts * * *.” Tr. 945-946. This statement by trial counsel was enough to
    constitute a waiver of R.C. 2941.25 and distinguish this case from Underwood.
    {¶28} Under similar circumstances, some appellate courts have invoked the invited
    error doctrine in light of trial counsel’s agreement that offenses do not merge for
    sentencing. “Invited” error is a doctrine that prevents a party from benefitting from an
    action that the party induced the court to make. State v. Smith, 
    148 Ohio App.3d 274
    ,
    
    2002-Ohio-3114
    , 
    772 N.E.2d 1225
    , ¶ 30 (8th Dist.). In State v. Gardner, 7th Dist.
    Mahoning No. 10 MA 52, 
    2011-Ohio-2644
    , the court found on very similar facts to those
    in this case that a representation by defense counsel at sentencing that counts do not
    merge for sentencing constituted “invited error.” Id. at ¶ 36. Similarly, in State v.
    Oehler, 6th Dist. Williams No. WM-11-001, 
    2011-Ohio-6501
    , the court held that defense
    counsel’s agreement to the state’s representation that two counts of an indictment were
    not allied offenses and would not merge for sentencing was invited error. Id. at ¶ 11-12.
    We agree with these courts and conclude that James cannot take advantage of any error
    that trial counsel may have made by agreeing that Counts 5 and 6 do not merge for
    sentencing.
    {¶29} Despite trial counsel having invited error with respect to the court’s failure
    to merge Counts 5 and 6 for sentencing, James has a viable claim of ineffective assistance
    based on trial counsel inviting the error. We have in prior cases held that an ineffective
    assistance of counsel claim would not lie when a claimed error had been invited because
    “[t]here is no point in having a stringent invited error doctrine only to allow it to be
    overcome by finding counsel ineffective for having invited the error.” State v. Doss, 8th
    Dist. Cuyahoga No. 84433, 
    2005-Ohio-775
    , ¶ 9.                  See also State v. West, 8th Dist.
    Cuyahoga Nos. 97391 and 97900, 
    2013-Ohio-96
    , ¶ 27; State v. Benitez, 8th Dist.
    Cuyahoga No. 98930, 
    2013-Ohio-2334
    , ¶ 35. We applied this rule, however, because the
    claimed error had been the result of trial counsel’s exercise of trial strategy.                    For
    example, in Doss, trial counsel informed the court that his client would waive a Bruton3
    issue; in West, trial counsel did not request separate trials for the defendant and his
    codefendant brother. In this case, there is no colorable trial strategy that would have
    James serve a longer sentence than he might otherwise serve had trial counsel not
    conceded the allied offenses issue. So we refuse to apply the rule that the invited error
    doctrine forbids consideration of ineffective assistance of counsel claims based on the
    invited error doctrine because there is no colorable trial strategy that would support the
    invited error.
    In Bruton v. United States, 
    391 U.S. 123
    , 
    88 S.Ct. 1620
    , 
    20 L.Ed.2d 476
     (1968), the United
    3
    States Supreme Court held that in a joint trial of two defendants, a confession of one codefendant who
    did not testify could not be admitted into evidence, even with a limiting instruction that the confession
    could only be used against the confessing defendant.
    {¶30} The issue, then, is whether trial counsel was ineffective for agreeing that
    discharging a firearm upon or over a public road or highway should not merge with the
    offense of improperly discharging a firearm into an occupied structure that is a permanent
    or temporary habitation. James could not be sentenced separately for each offense under
    R.C. 2941.25(A) if these were allied offenses of similar import.
    {¶31} In Rogers, 
    143 Ohio St.3d 385
    , 
    2015-Ohio-2459
    , 
    38 N.E.3d 860
    , the
    Supreme Court held that “allied offenses are not offenses of similar import if the
    offender’s conduct constitutes offenses against different victims or if the harm that results
    from each offense is separate and identifiable.” Id. at ¶ 4. This conclusion followed
    from its decision in State v. Ruff, 
    143 Ohio St.3d 114
    , 
    2015-Ohio-995
    , 
    34 N.E.3d 892
    ,
    where the court stated, “when the defendant’s conduct put more than one individual at
    risk, that conduct could support multiple convictions because the offenses were of
    dissimilar import.” Id. at ¶ 23. In other words, offenses are of dissimilar import when
    they “constitute offenses involving separate victims.” Id. at ¶ 26.
    {¶32} Count 6, improperly discharging into a habitation in violation of R.C.
    2923.161(A)(1), charged James with knowingly discharging a firearm into an occupied
    structure that was the permanent or temporary habitation of its resident. There was a
    stated victim for Count 6, that being the person who was inhabiting the house that had
    been struck by a gunshot that James fired.
    {¶33} Count 5, discharging a firearm on or near prohibited premises, was brought
    under R.C. 2923.162(A)(3) and charged James with discharging a firearm over a public
    road. As defined, R.C. 2923.162(A)(3) does not contain a culpable mental element: “No
    person shall do any of the following * * * [d]ischarge a firearm upon or over a public
    road or highway.” When a statute does not specify a degree of culpability and does not
    plainly indicate a purpose to impose strict liability, the culpable mental state is
    “recklessness.” See R.C. 2901.21(B). Even though a statute may not contain a “plain”
    indication of an intent to impose strict liability, the intention to impose strict liability can
    be inferred from the purpose of the statute; for example, when “the acts are made
    unlawful for the good of the public welfare regardless of the [offender’s] state of mind.”
    State v. Schlosser, 
    79 Ohio St.3d 329
    , 333, 
    681 N.E.2d 911
     (1997). Unlike some strict
    liability offenses where there is a specific victim (for example, statutory rape), the victim
    of the offense of discharging a firearm upon or over a public road or highway is the
    public.     This is because it is the act itself that is prohibited.     The offense can be
    completed with no one remotely near the location where the firearm is discharged upon or
    over the public road or highway. R.C. 2923.162(A)(3) is a statute intended to benefit the
    public good and thus imposes strict liability. Our conclusion is consistent with the
    Comment to Ohio Jury Instruction 523.162: “The Committee believes that R.C. 2923.162
    imposes strict liability.”    The Ohio Jury Instructions are not authoritative, but are
    “helpful” as a “generally accepted interpretation” of a statute. State v. Gardner, 
    118 Ohio St.3d 420
    , 
    2008-Ohio-2787
    , 
    889 N.E.2d 995
    , ¶ 97. Consistent with the model jury
    instruction, the court charged the jury, with no objection from James, that the offense of
    discharging a firearm over a public road or highway is a strict liability offense.
    {¶34} Because the offense of discharging a firearm over a public road or highway
    is a strict liability offense, the public was the victim for that offense. The victim of the
    offense of discharging a firearm into a habitation was the person occupying the house
    struck by the bullet. We thus find that there were separate victims for each offense, so
    the counts would not merge for sentencing. On that basis, trial counsel’s concession that
    the two counts do not merge did not amount to ineffective assistance of counsel.
    {¶35} Even if there were not separate victims of the two offenses, we agree with
    the court’s finding that the offenses were committed with a separate animus and were not
    allied. See Ruff, 
    143 Ohio St.3d 114
    , 
    2015-Ohio-995
    , 
    34 N.E.3d 892
    , at paragraph
    three of the syllabus.
    {¶36} “[I]t is a question of fact whether a separate animus has been established or
    whether the offenses have been committed separately.” State v. Kohr, 5th Dist. Licking
    No. 2008 CA 00147, 
    2009-Ohio-5297
    , ¶ 41, citing State v. Hunt, 9th Dist. Summit No.
    10632, 
    1982 Ohio App. LEXIS 14455
     (Nov. 24, 1982). As with any other question of
    fact, we defer to the findings of the trier of fact, but review the court’s application of the
    law to those facts de novo. State v. Williams, 
    134 Ohio St.3d 482
    , 
    2012-Ohio-5699
    , 
    983 N.E.2d 1245
    , ¶ 26.
    {¶37} The evidence showed that James fired four to seven shots, and only two of
    those shots were accounted for: the shot that killed the victim and the shot that lodged in a
    house.     The house that had been fired upon was located on a corner of two streets.
    James drove up in front this house, exited his vehicle, said something to the victim, and
    then fired his gun. James missed and the victim ran down the street with James in
    pursuit, continuing to fire his gun. The rational conclusion is that the missed shot, fired
    when James was in front of the house facing the group who had been gathered in front the
    house, was the one that struck the house. As James pursued the victim, he continued to
    fire. The victim was found more than one block away, on another street, having been
    shot in the back.
    {¶38} With witnesses testifying that they heard as few as three and as many as
    seven shots fired, the court could easily have concluded that some of those missed shots
    would have crossed the public road. This was not a situation where James fired a
    successive volley of shots, but one where the gunshots were separated by time in the
    course of his pursuing the victim.    It follows that the offenses of discharging a firearm
    into a habitation and discharging a firearm over a public roadway were separate acts that
    did not merge for sentencing. Trial counsel’s acknowledgment of this fact did not
    constitute ineffective assistance of counsel.
    {¶39} The court ordered James to serve a total sentence of life with parole
    eligibility after 39 years. The primary sentence was a term of life in prison with parole
    eligibility after 30 years on Count 1. Counts 2-4 were merged into Count 1. The court
    ordered James to serve three years on Counts 5 and 6, but ordered those counts to be
    served concurrent and concurrent to the life term in Count 1.          Each count of the
    indictment carried one- and three-year firearm specifications, and the court merged the
    one-year firearm specification for each count into the corresponding three-year firearm
    specification. The court merged the specifications for Counts 2-4 into the specification
    for Count 1, but refused to merge the three-year firearm specifications for Counts 5 and 6.
    Instead, it ran the firearm specifications for Counts 5 and 6 consecutive to each other,
    and in turn ran those specifications consecutive to the firearm specification on the
    aggravated murder charge in Count 1. James argues that the court not only should have
    merged the firearm specifications for Counts 5 and 6, but that the merged firearm
    specifications should have been merged into the firearm specification for the aggravated
    murder count. We disagree.
    {¶40} “Ordinarily, the court is forbidden from imposing sentence on multiple
    firearm specifications for ‘felonies committed as part of the same act or transaction.’”
    State v. Cassano, 8th Dist. Cuyahoga No. 97229, 
    2012-Ohio-4047
    , ¶ 33, quoting former
    R.C. 2929.14(D)(1)(b) (now R.C. 2929.14(B)(1)(b)). However, R.C. 2929.14(B)(1)(g)
    states:
    If an offender is convicted of or pleads guilty to two or more felonies, if one
    or more of those felonies are aggravated murder, murder, attempted
    aggravated murder, attempted murder, aggravated robbery, felonious
    assault, or rape, and if the offender is convicted of or pleads guilty to a
    specification of the type described under division (B)(1)(a) of this section in
    connection with two or more of the felonies, the sentencing court shall
    impose on the offender the prison term specified under division (B)(1)(a) of
    this section for each of the two most serious specifications of which the
    offender is convicted or to which the offender pleads guilty and, in its
    discretion, also may impose on the offender the prison term specified under
    that division for any or all of the remaining specifications.
    {¶41} We have construed R.C. 2929.14(B)(1)(g) to mean that in cases like this,
    where James was found guilty of three or more felonies, one of which was aggravated
    murder, and those felony counts contained firearm specifications, the trial judge is
    required to impose prison terms for the two most serious specifications, and could also, in
    its discretion, impose a sentence for any other specification. Id. at ¶ 34; State v. Sheffey,
    8th Dist. Cuyahoga No. 98944, 
    2013-Ohio-2463
    , ¶ 28.
    {¶42} James next argues that the court mistakenly believed that it was required to
    run all three firearm specifications consecutively when, in fact, R.C. 2929.14(B)(1)(g)
    requires only that two specifications be run consecutively and that the court has the
    discretion to run any other firearm specifications consecutively.
    {¶43} The trial transcript supports James’s argument on this point. The court
    stated: “The gun specifications, I believe by law, pursuant to the memorandums and the
    law cited therein, will have to — the three year gun specifications will have to run
    consecutive to each other and consecutive to the three year firearm specification now
    under sentence in Count 1.” By indicating that all three firearm specifications would
    “have to” run consecutively, the court showed its mistaken belief that consecutive service
    of all three firearm specifications was compulsory.
    {¶44} The state makes no direct attempt to counter James’s argument that the court
    believed it to be required to order consecutive service on the firearm specifications apart
    from suggesting that the court could have ordered consecutive service on the third firearm
    specification “for public safety reasons.” This is nothing more than an argument that the
    court exercised its discretion to order consecutive service of the third firearm
    specification.   There can be no exercise of sentencing discretion when the court so
    plainly indicates its belief that it is compelled by statute to impose consecutive sentences.
    We agree with James that the court erred by indicating that it had to order consecutive
    service on the third firearm specification (Count 6). We remand this part of James’s
    sentence for resentencing.
    {¶45} James’s final argument is that to the extent that the court has discretion to
    order consecutive service of the third firearm specification, it was required to comply
    with R.C. 2929.14(C)(4) and make the findings required under that statute before
    ordering consecutive service.
    {¶46} We have held that the mandatory requirement to order consecutive service
    of certain specifications under R.C. 2929.14(B)(1)(g) supersedes the findings required by
    R.C. 2929.14(C)(4).      See State v. Young, 8th Dist. Cuyahoga No. 102202,
    
    2015-Ohio-2862
    , ¶ 10.     We have not, however, specifically addressed whether the
    discretionary decision to order consecutive service of a third specification should be
    similarly treated. There are several appellate decisions addressing whether the court
    abused its discretion by ordering consecutive service of a third specification under R.C.
    2929.14(B)(1)(g), but none of them consider whether the sentencing judge had to make
    the findings required by R.C. 2929.14(C)(4). See, e.g., State v. Vanderhorst, 8th Dist.
    Cuyahoga No. 97242, 
    2013-Ohio-1785
    ; State v. Fortune, 11th Dist. Lake No.
    2014-L-117, 
    2015-Ohio-4019
    ; State v. Isreal, 12th Dist. Warren No. CA2011-11-115,
    
    2012-Ohio-4876
    .
    {¶47} The consecutive sentencing statute applies to “multiple prison terms [that]
    are imposed on an offender for convictions of multiple offenses[.]” (Emphasis added.)
    R.C. 2929.14(C)(4).     A specification is a sentencing enhancement, not a separate
    criminal offense, State v. Ford, 
    128 Ohio St.3d 398
    , 
    2011-Ohio-765
    , 
    945 N.E.2d 498
    , ¶
    16.   By its own terms, R.C. 2929.14(C)(4) does not apply to penalty enhancing
    specifications.   R.C. 2929.14(B)(1)(g) specifically applies to penalty enhancing
    specifications, so this statute controls.     With there being no requirement in R.C.
    2929.14(B)(1)(g) for the court to make findings of any kind before ordering a third
    penalty enhancing specification to be served consecutively, the court had no obligation to
    make any findings.
    {¶48} Judgment affirmed in part; reversed in part; and remanded.
    It is ordered that appellant and appellee share the 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.
    ______________________________________________
    MELODY J. STEWART, JUDGE
    EILEEN T. GALLAGHER, P.J., and
    PATRICIA ANN BLACKMON, J., CONCUR
    

Document Info

Docket Number: 102604

Citation Numbers: 2015 Ohio 4987

Judges: Stewart

Filed Date: 12/3/2015

Precedential Status: Precedential

Modified Date: 3/3/2016

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