State v. Tucker , 2017 Ohio 4215 ( 2017 )

[Cite as State v. Tucker, 2017-Ohio-4215.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 16CA010963
16CA010964
Appellee
v.
APPEAL FROM JUDGMENT
KAREEM TUCKER ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF LORAIN, OHIO
CASE Nos. 10CR081026
12CR084231
DECISION AND JOURNAL ENTRY
Dated: June 12, 2017
HENSAL, Presiding Judge.
{¶1} Kareem Tucker appeals his convictions and sentences in the Lorain County Court
of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} In March 2012, a jury found Mr. Tucker guilty of multiple counts of kidnapping,
as well as counts of aggravated robbery, aggravated burglary, robbery, burglary, and vandalism.
Following merger of some of the offenses, the trial court sentenced him to a total of 25 years
imprisonment. Eight months later, another jury found Mr. Tucker guilty of trafficking in drugs,
possession of drugs, having weapons while under disability, possessing criminal tools, and use or
possession of drug paraphernalia. After merging some of those offenses, the trial court
sentenced him to a total of thirteen years and four months imprisonment. It also ordered his
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sentences in the drug case to run consecutively to the prison term that had been imposed in the
kidnapping case.
{¶3} Mr. Tucker appealed both judgments. In the kidnapping case, this Court
concluded that some of the trial court’s statements made it appear that it had imposed a harsher
sentence on Mr. Tucker because he chose to go to trial. State v. Tucker, 9th Dist. Lorain No.
14CA010704, 2016-Ohio-1354, ¶ 30. We, therefore, vacated his sentence and remanded the
matter for a new sentencing hearing. Id. In the drug case, this Court concluded that the State
failed to present sufficient evidence to establish beyond a reasonable doubt that Mr. Tucker had a
weapon under disability. State v. Tucker, 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353, ¶
27. We also concluded that the record again suggested that the court had increased Mr. Tucker’s
sentence for exercising his right to a trial by jury. Id. at ¶ 33. We, therefore, vacated his
sentence, and remanded for further proceedings.
{¶4} On remand, a different judge held a combined resentencing hearing. In the
kidnapping case, the court sentenced Mr. Tucker to a total of 28 years imprisonment. In the drug
case, it sentenced him to a total of 13 years imprisonment. The court ordered the sentences to
run consecutive to each other, for a total prison term of 41 years. Mr. Tucker has appealed his
sentences, assigning seven errors. Because some of his assignments of error raise similar issues,
we will address them together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT,
BY ENTERING A JUDGMENT OF CONVICTION ON COUNT ONE OF THE
INDICTMENT, TRAFFICKING IN DRUGS, AS A FELONY OF THE FIRST
DEGREE, WHEN APPELLANT WAS CHARGED WITH, AND FOUND
GUILTY BY THE JURY OF, TRAFFICKING IN DRUGS AS A FELONY OF
THE FIFTH DEGREE.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT,
BY ENTERING A JUDGMENT OF CONVICTION AND SENTENCE ON
COUNT FIVE OF THE INDICTMENT, TRAFFICKING IN COCAINE, AS A
FELONY OF THE FOURTH DEGREE, WHEN APPELLANT WAS FOUND
GUILTY BY THE JURY OF TRAFFICKING IN COCAINE AS A FELONY OF
THE FIFTH DEGREE.
{¶5} Mr. Tucker argues that the trial court incorrectly wrote in its sentencing entry that
one of his drug trafficking convictions was a felony of the first degree and that another was a
felony of the fourth degree. According to Mr. Tucker, the jury’s verdict only supports the
conclusion that they were felonies of the fifth degree because the verdict forms do not contain
any of the additional findings that are necessary to enhance the level of the offenses.
{¶6} The State argues that Mr. Tucker’s arguments are barred by res judicata, asserting
that they could have been made in his first appeal. The doctrine of res judicata “bars the
assertion of claims against a valid, final judgment of conviction that have been raised or could
have been raised on appeal.” State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, ¶ 59, citing
State v. Perry, 10 Ohio St. 2d 175 (1967), paragraph nine of the syllabus.
{¶7} In its original sentencing entry, the trial court wrote that the jury had found Mr.
Tucker guilty of four counts of drug trafficking. The court wrote that one of the counts was a
felony of the first degree, one was a felony of the fourth degree, and the others were felonies of
the fifth degree. Mr. Tucker did not challenge the designations on appeal. On resentencing, the
court again wrote that a jury found Mr. Tucker guilty of four counts of drug trafficking and that
one of those counts is a felony of the first degree, one is a felony of the fourth degree, and two
are felonies of the fifth degree. Upon review of the record, we conclude that Mr. Tucker could
have challenged the offense level of his trafficking convictions in his initial appeal. His
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argument, therefore, is barred by the doctrine of res judicata. State v. D’Ambrosio, 73 Ohio St. 3d
141, 143 (1995) (“[If] an argument could have been raised on an initial appeal, res judicata
dictates that it is inappropriate to consider that same argument on a second appeal following
remand.”). Mr. Tucker’s first and second assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT,
BY IMPOSING CONSECUTIVE SENTENCES TOTALING 13 YEARS,
WHEN THE COURT’S FINDING UNDER R.C. 2929.14(C)(4), “THAT
CONSECUTIVE SENTENCES ARE NOT DISPROPORTIONATE TO THE
SERIOUSNESS OF THE OFFENDER’S CONDUCT,” IS NOT SUPPORTED
BY THE RECORD.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT,
BY IMPOSING CONSECUTIVE SENTENCES TOTALING 13 YEARS,
WHEN THE COURT FAILED TO MAKE A FINDING THAT IS SUFFICIENT
UNDER DIVISION (b) OF R.C. 2929.14(C)(4), EITHER IN HIS JUDGMENT
ENTRY, OR ON THE RECORD, BEFORE IMPOSING CONSECUTIVE
SENTENCES.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT,
BY IMPOSING CONSECUTIVE SENTENCES TOTALING 28 YEARS,
WHEN THE COURT’S FINDING UNDER R.C. 2929.14(C)(4), “THAT
CONSECUTIVE SENTENCES ARE NOT DISPROPORTIONATE TO THE
SERIOUSNESS OF THE OFFENDER’S CONDUCT,” IS NOT SUPPORTED
BY THE RECORD.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT,
BY IMPOSING CONSECUTIVE SENTENCES TOTALING 28 YEARS,
WHEN THE COURT FAILED TO MAKE A FINDING THAT IS SUFFICIENT
UNDER DIVISION (b) OF R.C. 2929.14(C)(4), EITHER IN HIS JUDGMENT
ENTRY, OR ON THE RECORD, BEFORE IMPOSING CONSECUTIVE
SENTENCES.
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ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT,
BY ORDERING THAT THE CONSECUTIVE SENTENCES IMPOSED IN
CASE NO. 12CR084231 BE SERVED CONSECUTIVELY TO THE
CONSECUTIVE SENTENCE IMPOSED IN CASE NO. 10CR081026, FOR AN
AGGREGATE PRISON TERM OF 41 YEARS, WITHOUT MAKING ANY OF
THE FINDINGS REQUIRED BY R.C. 2929.14(C)(4), EITHER IN ITS
JUDGMENT ENTRIES OR ON THE RECORD, BEFORE IMPOSING
CONSECUTIVE SENTENCES.
{¶8} Mr. Tucker argues that the trial court failed to comply with Revised Code Section
2929.14(C)(4) when it ordered him to serve his sentences in the kidnapping and drug cases
consecutively. In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant
statutes,” or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St. 3d
516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶9} Section 2929.14(C)(4) provides that, “[i]f multiple prison terms are imposed on
an offender for convictions of multiple offenses,” the sentencing court may require the offender
to serve the terms consecutively “if the court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger the offender
poses to the public[.]” The court must also find “any” of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant
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to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects
the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
R.C. 2929.14(C)(4)(a-c). At the sentencing hearing, the trial court found that “consecutive
sentences are necessary to protect the public from future crime and to punish the defendant and
that consecutive sentences are not disproportionate to the seriousness of defendant’s conduct and
the danger defendant poses to the public.” It also found that a “single prison term would not
adequately reflect the seriousness of defendant’s conduct.” It repeated those findings in its
sentencing entries.
{¶10} Regarding his drug case, Mr. Tucker argues that the circumstances do not indicate
that his case was any more serious than other cases. He notes that the quantity of drugs that
supported his felony of the first degree were merely in his possession and not part of any specific
sale. He asserts that the sales that formed the basis of his other convictions were small amounts
of cocaine, with nothing to distinguish them from other offenses involving the sale of small
quantities of cocaine.
{¶11} The trial court determined the seriousness of Mr. Tucker’s drug offenses by
examining the factors listed in Section 2929.12(B) and (C). It found that there were factors that
increased the seriousness of the offenses, but none that reduced the seriousness of the offenses.
It, therefore, found that the factors increasing seriousness outweighed the ones decreasing
seriousness. Mr. Tucker has not specifically challenged the trial court’s findings under Section
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2929.12. In addition, the court was not required to explain the reasoning behind its findings
under Section 2929.14(C)(4). State v. Brooks, 9th Dist. Summit Nos. 26352, 26437, 2013-Ohio-
2169, ¶ 13. Upon review of the record, we conclude that Mr. Tucker has not established by clear
and convincing evidence that the record does not support the trial court’s findings with respect to
the seriousness of his drug offenses.
{¶12} Mr. Tucker next argues that the trial court failed to make all the findings
necessary under Section 2929.14(C)(4)(b). Specifically, he argues that the court failed to find
that the harm caused by his drug offenses was so “great” or “unusual” that a single prison term
would not reflect the seriousness of his conduct. He also argues that the trial court failed to
include such a finding in its sentencing entry.
{¶13} In State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, the Ohio Supreme
Court held that, to impose consecutive sentences, “a trial court is required to make the findings
mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its
sentencing entry[.]” Id. at syllabus. It explained, however, that a “word-for-word recitation of
the language of the statute is not required[.]” Id. at ¶ 29. Instead, “as long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should be upheld.” Id.
{¶14} The trial court shortened the language of Section 2929.14(C)(4)(b) into a finding
that “[a] single prison term would not adequately reflect the seriousness of defendant’s conduct.”
Although the court’s finding does not specifically state that the harm Mr. Tucker caused was
great or unusual, we can discern from the court’s language that it engaged in the analysis
required under Section 2929.14(C)(4)(b). See State v. Kilmire, 9th Dist. Summit Nos. 27319,
27320, 2015-Ohio-665, ¶ 17-18 (concluding that the trial court undertook the appropriate
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analysis under Section 2929.14(C)(4) even though it did not use the precise language of the
statute). We conclude that Mr. Tucker has failed to establish that the trial court did not make the
proper findings under Section 2929.14(C)(4) at the sentencing hearing or that it failed to include
those findings in its sentencing entry concerning Mr. Tucker’s drug offenses.
{¶15} Mr. Tucker also argues that his sentence in the kidnapping case is not supported
by the record. He argues that his offenses do not nearly compare to the other types of offenses
that would warrant a 28-year sentence. According to Mr. Tucker, his sentence is not consistent
with the sentences imposed for similar crimes and is also much more severe than the sentence
imposed on his co-defendant, who received only four years. He also asserts that his conduct, and
the effect it had on the victims was not more serious than in other kidnapping cases.
{¶16} We explained the details of the kidnapping case in Mr. Tucker’s prior appeal:
In the early hours of the morning on July 17, 2010, Delno Clayton called his
friend Calvin Parker and asked him to go drinking. Instead, Mr. Clayton and
another man, who Mr. Parker identified as Kareem Tucker, stripped Mr. Parker to
his undergarments, bound him with duct tape, stole his wallet, phone, and
apartment key, and left him in a shed. Mr. Clayton returned a few hours later and,
with Mr. Tucker on a cell phone call, demanded the combination to a safe located
in Mr. Parker's bedroom. Mr. Parker initially gave incorrect information, but
complied when he could hear the cries of children from the phone. Near
daybreak, Mr. Parker escaped to a nearby gas station, where the attendant
provided him with clothing and allowed him to use her phone to call police.
On the same evening, two men entered Mr. Parker’s apartment in Lorain using a
key. One man grabbed the resident from behind while the other punched her in
the face, and then they dragged her to a bedroom where her three-year-old son
slept. The men covered her and her son with a blanket, and one of them lay down
on top of them while holding a gun near her head. The other man went to a
second bedroom, where two other young children were located. The resident
could hear their cries, but could not get away to help them. Over the course of
several hours, the men attempted to open a small safe kept in the bedroom. They
ultimately obtained the combination from the resident's boyfriend, Calvin Parker,
emptied the contents of the safe, and left the resident and her children as they
were. The resident identified the two men as Mr. Tucker and Mr. Clayton.
Tucker, 9th Dist. Lorain No. 14CA010704, 2016-Ohio-1354, at ¶ 2-3.
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{¶17} Section 2929.11(B) provides that a sentence imposed for a felony “shall be * * *
consistent with sentences imposed for similar crimes committed by similar offenders.” This
Court has explained that Section 2929.11(B) does not require uniformity, only consistency,
which is requiring “a trial court to weigh the same factors for each defendant, which will
ultimately result in an outcome that is rational and predictable.” State v. Quine, 9th Dist. Summit
No. 20968, 2002-Ohio-6987, ¶ 12. This Court has also explained that “Ohio’s sentencing
guidelines are just that, guidelines. Unless specifically stated, they do not require the imposition
of a specific sentence. Rather, they require that the trial court consistently consider the same
principles and characteristics prior to sentencing.” State v. Ruby, 9th Dist. Summit No. 23219,
2007-Ohio-244, ¶ 13.
{¶18} At the sentencing hearing, the trial court noted that it had an obligation to look at
the sentencing factors before imposing sentence. It discussed the factors pertaining to the
seriousness of Mr. Tucker’s crimes as well as the ones pertaining to recidivism. It also noted
that its role was “to properly punish the defendant and protect the public.” See R.C. 2929.11(A)
(explaining the purposes of felony sentencing). It, therefore, appears that the trial court
considered all of the appropriate factors when determining Mr. Tucker’s sentence. The details of
the offenses indicate that Mr. Tucker terrorized multiple people, including a child, over several
hours. The adult victims were all people he had known for a long time. Mr. Tucker also had a
significant criminal history. In addition, he has not directed this Court to any other similar cases.
Accordingly, we cannot say that he has established that the sentence imposed by the trial court
was clearly and convincingly contrary to law.
{¶19} Regarding Mr. Tucker’s co-defendant, “[t]here is no requirement that
codefendants receive equal sentences[.] * * * Differences between defendants allow trial courts
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to impose different sentences upon individuals convicted of similar crimes.” State v. Senz, 9th
Dist. Medina No. 10CA0042-M, 2011-Ohio-2604, ¶ 7, quoting State v. Allen, 10th Dist. Franklin
No. 10AP–487, 2011-Ohio-1757, ¶ 23. There is nothing in the record that indicates what
sentencing factors applied to Mr. Tucker’s co-defendant, including whether he had a similar
criminal history. The record also indicates that it was Mr. Tucker, not his co-defendant, who
punched one of the victims during the kidnapping and pointed a gun at her head. We, therefore,
conclude that Mr. Tucker has failed to demonstrate that his co-defendant was similarly situated
for sentencing purposes.
{¶20} Mr. Tucker next repeats his argument that the trial court failed to comply with
Section 2929.14(C)(4)(b) because it did not explicitly find that the harm caused by his
kidnapping case offenses was “great” or “unusual.” We reject this argument for the reasons
stated earlier regarding the consecutive sentences imposed in his drug case.
{¶21} Mr. Tucker’s final argument is that the trial court failed to explain why it was
running his sentences in the two cases consecutive to each other. According to Mr. Tucker, the
court was required to make separate additional findings about the appropriateness of running the
sentences imposed in the two cases consecutive to each other before imposing such a sentence.
{¶22} At the sentencing hearing, the trial court ordered Mr. Tucker to serve his
sentences in the kidnapping case consecutive to each other and to his sentences in the drug case,
which it had not imposed yet. It then explained its reasoning for imposing consecutive sentence.
Next, it imposed Mr. Tucker’s sentences in the drug case, which it ordered to run consecutive to
each other and to the sentences it had imposed in the kidnapping case. It then explained its
reasons for imposing those sentences consecutively. The trial court, therefore, did not fail to
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explain its reasons for running the sentences it imposed in the two cases consecutive to each
other.
{¶23} Upon review of the record, the trial court did not violate Section 2929.14(C)(4)
when it ordered Mr. Tucker to serve consecutive sentences in either the kidnapping case or the
drug case. Mr. Tucker’s third, fourth, fifth, sixth, and seventh assignments of error are
overruled.
III.
{¶24} Mr. Tucker’s assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JAMES M. BURGE, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.