State v. Adkins , 2021 Ohio 1294 ( 2021 )

[Cite as State v. Adkins, 2021-Ohio-1294.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
Nos. 109184 and 109185
v. :
BRANDON ADKINS, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: April 15, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-635599-A and CR-18-635599-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Anthony T. Miranda and Michael Barth,
Assistant Prosecuting Attorneys, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellee Brandon Adkins.
Timothy Young, Ohio Public Defender, and Stephen P.
Hardwick, Assistant State Public Defender, for appellee
Charles Trowbridge.
EILEEN T. GALLAGHER, P.J.:
In this consolidated appeal, plaintiff-appellant, the state of Ohio,
appeals from sentences imposed on defendants-appellees, Brandon Adkins and
Charles Trowbridge (collectively “appellees”). The state claims the following error:
The trial court erred in ordering concurrent prison terms for firearm
specifications when the felonies were not committed as part of the same
act or transaction.
We find merit to the appeal, reverse the trial court’s judgment in part,
affirm it in part, and remand the case to the trial court to impose sentences on all
firearm specifications.
I. Facts and Procedural History
Adkins was charged with numerous felonies allegedly committed
against multiple victims in November 2018. In August 2019, he pleaded guilty to
one count of burglary, two counts of receiving stolen property, one count of
aggravated robbery, one count of attempted burglary, one count of robbery, and one
count of improper handling of a firearm. The two receiving stolen property counts,
the aggravated robbery count, and the robbery count included one-year firearm
specifications. The three-year firearm specifications attendant to the charges and
all other charges were nolled pursuant to a plea agreement. As part of the plea
agreement, Adkins and the state agreed to a recommended sentencing range of 7 to
12 years and that “[e]ach side is free to argue for whatever number they choose in
between” 7 to 12 years. (Adkins tr. 40.)
The trial court sentenced Adkins to an aggregate 11-year prison term.
The court ordered the prison terms on all the base counts to be served concurrently.
It also ordered prison terms on the one-year firearm specifications attendant to the
aggravated burglary and improper handling of a firearm charges alleged in Counts
11 and 25, to be served consecutive to each other and to the underlying felonies. The
state argued that the firearm specifications attendant to the two receiving stolen
property charges, alleged in Count 11 and 25, had to be served consecutive to the
other firearm specifications attendant to the robbery and aggravated robbery
charges alleged in Counts 26 and 31 because they were committed during “separate
transactions.” (Adkins tr. 141.) Over the state’s objection, the trial court did not
impose prison terms on the firearm specifications alleged in Counts 26 and 31.
Trowbridge was charged with offenses in three criminal cases. Two of
the cases, namely Cuyahoga C.P. CR-18-625121-A and Cuyahoga C.P. CR-19-
638417-A, are not at issue in this appeal because they did not involve any firearm
specifications. In Cuyahoga C.P. CR-18-635599-B, Trowbridge pleaded guilty to five
counts of aggravated robbery, three counts of receiving stolen property, two counts
of burglary, two counts of felonious assault, and one count each of
telecommunications fraud, breaking and entering, improper discharge of a firearm,
and having a weapon while under disability. Trowbridge and the state agreed to a
recommended sentencing range of 20 to 25 years and that “[e]ach side is free to
argue for whatever number they choose in between” 20 and 25 years. (Trowbridge
tr. 88.)
The trial court sentenced Trowbridge to an aggregate 24-year prison
term. The court ordered the prison terms on all base counts to be served
concurrently except for the felonious assault charge alleged in Count 43, which was
to be served consecutive to all other counts. The trial court ordered prison terms on
the three-year firearm specifications attendant to the aggravated robbery and
felonious assault charges alleged in Counts 26 and 38 to be served consecutive to
each other and to the underlying felony counts. The state asserted that, by law, the
trial court was required to impose prison terms on the firearm specifications
attendant to the aggravated robbery, improper discharge of a firearm, and felonious
assault charges alleged in Counts 1, 21, 31, 41, and 43 because they involved separate
transactions. (Trowbridge tr. 181-189.) Over the state’s objection, the court did not
impose prison sentences on the firearm specifications alleged in Counts 1, 21, 31, 41,
and 43.
The state now appeals the sentences imposed on both Adkins and
Trowbridge.
II. Law and Analysis
In its sole assignment of error, the state argues “[t]he trial court erred
in ordering concurrent prison terms for firearm specifications when the felonies
were not committed as part of the same act or transaction.” However, the court did
not sentence appellees to concurrent prison terms on certain firearm specifications.
Indeed, the court did not sentence them to any prison terms on the disputed firearm
specifications. Nevertheless, the state contends appellees’ sentences are illegal
because the court failed to impose consecutive prison terms on all the firearm
specifications attendant to appellees’ felony convictions as required by law.
Both Adkins and Trowbridge agreed to an aggregate range of potential
sentences. Adkins agreed to a jointly recommended sentence of 7 to 12 years, and
Trowbridge agreed to a jointly recommend sentence of 20 t0 25 years.
R.C. 2953.08(D)(1) limits our authority to review agreed sentences and 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.
A jointly recommended sentencing range is a “jointly recommended
sentence” for purposes of R.C. 2953.08(D)(1). State v. Grant, 8th Dist. Cuyahoga
No. 104918, 2018-Ohio-1759. Therefore, appellees’ jointly recommended sentences
are not reviewable if they were “authorized by law.”
A sentence is “authorized by law” and not appealable within the
meaning of R.C. 2953.08(D)(1) “if it comports with all mandatory sentencing
provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, paragraph two of the syllabus.
The state contends the trial court erred because it failed to impose
consecutive prison terms on Adkins and Trowbridge for firearm specifications as
mandated by R.C. 2929.14(B)(1)(a) and 2929.14(C)(1)(a). The state argues the trial
court failed to comply with mandatory sentencing provisions applicable to the
firearm specifications attendant to appellees’ convictions.
R.C. 2929.14(B)(1)(a) provides that “if an offender * * * is convicted of
or pleads guilty to” a firearm specification, the court “shall” impose a one-year,
three-year, six-year, or nine-year prison term on the specification, depending on the
specification.1 R.C. 2929.14(C)(1)(a) provides that when a trial court imposes a
prison term on a firearm specification, the court must run the prison term
consecutive to all other prison terms. R.C. 2929.14(C)(1)(a) states, in relevant part:
[I]f a mandatory prison term is imposed upon an offender pursuant to
division (B)(1)(a) of this section for having a firearm on or about the
offender’s person or under the offender’s control while committing a
felony, * * * the offender shall serve any mandatory prison term
imposed * * * consecutively to any other mandatory prison term
imposed [for a firearm specification] * * * consecutively to and prior to
any prison term imposed for the underlying felony * * * and
consecutively to any other prison term or mandatory prison term
previously or subsequently imposed upon the offender.
R.C. 2929.14(B)(1)(b) provides an exception to consecutive service of
firearm specifications and states, in relevant part: “Except as provided in division
(B)(1)(g) of this section, a court shall not impose more than one prison term on an
offender under division (B)(1)(a) of this section for felonies committed as part of the
same transaction.” However, R.C. 2929.14(B)(1)(g) states that if an offender is
convicted of “two or more felonies,” at least one of the felonies is aggravated
robbery,2 and the offender is convicted of two or more firearm specifications, then
1 There are exceptions for carrying concealed weapons and illegal conveyance of a
deadly weapon into a courthouse, which are inapplicable here. See R.C. 2929.14(B)(1)(e).
2 This section also applies where the offender is convicted of, or pleads guilty to,
two or more felonies and one or more of the felonies are aggravated murder, murder,
attempted aggravated murder, attempted murder, felonious assault, or rape.
the sentencing court must impose prison terms for the two most serious
specifications, but gives the court discretion to choose whether to impose prison
terms on any other specifications. 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.
R.C. 2929.14(B)(1)(b) and 2929.14(C)(1)(a) are mandatory sentencing
provisions because R.C. 2929.14(B)(1)(a) requires the imposition of prison terms on
firearm specifications, and R.C. 2929.14(C)(1)(a) generally requires consecutive
service of all firearm specifications. And, R.C. 2929.14(B)(1)(g) is mandatory to the
extent that it requires the trial court to impose prison terms on the two most serious
felonies if the defendant is convicted of at least one of seven specified felonies,
including aggravated robbery, and gives the court discretion to impose time on more
than two. R.C. 2929.14(B)(1)(b) is also a mandatory provision that limits the general
rule requiring consecutive prison terms on firearm specifications and only permits
one prison term for multiple firearm specifications arising from the same act or
transaction. Appellees’ sentences are, therefore, not reviewable, if the trial court
complied with these mandatory provisions.
The state argues the trial court should have imposed consecutive
prison terms on Adkins and Trowbridge for firearm specifications attendant to all of
their felony convictions because they were committed as separate acts or
transactions. The state also contends that Adkins and Trowbridge waived their claim
that some specifications related to the same act or transaction when they agreed they
were separate transactions at the plea hearing. However, Adkins and Trowbridge
are not the ones appealing their sentences.
The Ohio Supreme Court has defined the term “transaction,” for
purposes of R.C. 2929.14(B)(1)(b) as “‘a series of continuous acts bound together by
time, space and purpose, and directed toward a single objective.’” State v. Wills, 69
Ohio St.3d 690, 691, 635 N.E.2d 370 (1994), quoting State v. Caldwell, 9th Dist.
Summit No. 14720, 1991 Ohio App. LEXIS 5879 (Dec. 4, 1991). If the sentencing
court determines that the offenses and attendant firearm violations occurred at
separate times, locations, and to different victims, then they are not part of the same
act or transaction for purposes of R.C. 2929.14(B)(1)(b). State v. Dean, 146 Ohio
St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 214 (holding that drive-by shootings
and a murder that occurred on different days and at different locations and involved
different victims were not a single transaction).
Appellees acknowledged at the plea hearing that their convictions
were committed as separate and distinct transactions. (Adkins tr. 43-44;
Trowbridge tr. 86.) At the plea hearing, the court asked the following with respect
to Adkins:
THE COURT: * * * But the point is you both agree that I am required
to, if this goes through, have the separate four — four separate one-year
firearm specs served consecutively before anything else no matter what
the sentences are on the underlying felony?
[PROSECUTOR]: Yes, your Honor.
[DEFENSE COUNSEL]: Yes, your Honor.
(Adkins tr. 43-44.)
At sentencing, Adkins’s lawyer again acknowledged that Counts 11 and
25 constituted separate acts and transactions, but asserted the court had discretion
to determine whether Counts 26 and 31 were a single transaction because they
occurred on the same day. The trial court, however, concluded that Counts 26 and
31 were separate transactions because although they occurred on the same day, one
offense occurred in Parma, the other offense occurred in Cleveland, and they
involved different victims. Consequently, the trial court concluded that the four
counts with firearm specifications were “four separate transactions.” (Adkins tr.
141). The court stated, in relevant part: “[B]ased upon the evidence, I’m going to
conclude as a matter of fact that Counts 11, 25, 26, and 31 represent separate
transactions.” (Adkins tr. 140.)
The trial court asked Trowbridge at the plea hearing if he “agreed then
that all of the firearm specs, not just the two highest, are required to be served
consecutively before beginning any felony sentence?” (Trowbridge tr. 86.)
Trowbridge’s counsel replied: “That has been the nature of our agreement * * * .”
Counsel also acknowledged that “there would be no argument for merger of these
remaining firearm counts.” (Trowbridge tr. 86.) Although the counts were not
subject to merger, Trowbridge’s trial counsel asserted that the trial court had
discretion to run some of the firearm specifications concurrently. (Trowbridge tr.
87.)
At Trowbridge’s sentencing hearing, the state asserted that all prison
terms for firearm specifications had to be served consecutively because they were
not part of the same act or transaction. (Trowbridge tr. 182.) Trowbridge’s counsel
replied: “Well, I think there is an argument to be made either way.” (Trowbridge tr.
182.) However, Counts 1, 21, 26, 31, 38, 41, and 43, which contained the subject
firearm specifications, were committed against seven different victims. Many of the
counts were also committed on different dates and at different locations. For
example, Count 1, which alleged aggravated robbery, was the only offense
committed on November 8, 2018. Count 21, which also alleged aggravated robbery,
was the only offense committed on November 23, 2018. Although Counts 26, 31,
and 38, which alleged two counts of aggravated robbery and one count of felonious
assault, were all committed on November 25, 2018, the offenses occurred in
different cities or on different streets. Finally, Counts 41 and 43, which alleged
discharge of a firearm on or near a prohibited premises and felonious assault, were
both committed on November 25, 2018, but in different locations. Therefore, these
seven counts were separate transactions for purposes of R.C. 2929.14(B)(1)(b). Yet,
the trial court did not impose prison sentences on the one-year firearm
specifications alleged in Counts 1, 21, 31, 41, and 43.
The trial court apparently believed it was not required to impose
prison terms on the firearm specifications attendant to Counts 1, 21, 31, 41, and 43
because R.C. 2929.14(B)(1)(g) states that if an offender is convicted of “two or more
felonies,” at least one of the felonies is aggravated robbery, and the offender is
convicted of two or more firearm specifications, then the sentencing court is only
required to impose prison terms for the two most serious specifications and may, in
its discretion decline to impose prison terms on the remaining specifications.
As previously stated, R.C. 2929.14(C)(1)(a) generally requires
consecutive service of all firearm specifications. R.C. 2929.14(B)(1)(b) provides an
exception to the consecutive service of firearm specifications mandated by R.C.
2929.14(C)(1)(a), if they were committed as part of the same act or transaction.
However, R.C. 2929.14(B)(1)(b) provides an exception to the exception “as provided
in R.C. 2929.14(B)(1)(g).” Thus, R.C. 2929.14(B)(1)(g), which requires consecutive
prison terms on the two most serious specifications in certain specified situations,
only applies if the underlying felonies and attendant firearm specifications were
committed as part of the same act or transaction. See, e.g., State v. Burton, 8th Dist.
Cuyahoga No. 105470, 2018-Ohio-95 (Court must impose consecutive prison terms
on firearm specifications that were not committed as part of the same act or
transaction.). If the felonies and attendant firearm specifications were committed
separately, then the trial court must follow the default rule set forth in R.C.
2929.14(C)(1)(a), which requires mandatory consecutive service of all firearm
specifications.3
The trial court failed to comply with this mandatory sentencing
provision when it failed to impose consecutive prisons terms on all firearm
specifications even though it found they were committed as separate transactions.
Therefore, the sole assignment of error is sustained.
The trial court’s judgment is affirmed in part, reversed in part, and we
remand the case to the trial court to impose sentences on all firearm specifications.
It is ordered that appellant and appellees share 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR
3 The legislative synopsis of 2007 Ohio S.B. 184, which amended R.C. 2929.14,
states that the intent of the bill was “to remove current sentencing restrictions and impose
new sentencing requirements when a court sentences an offender convicted of multiple
felonies and multiple gun specifications.” In other words, the legislature intended to
increase, rather than reduce, sentences for violent offenders who use firearms.