State v. Belton

[Cite as State v. Belton, 2016-Ohio-8416.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 15 MA 0142
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
DAVID BELTON )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 14 CR 870
JUDGMENT: Affirmed.
Modified.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Desirae DiPiero
7330 Market Street
Youngstown, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: December 23, 2016
[Cite as State v. Belton, 2016-Ohio-8416.]
WAITE, J.
{¶1} Appellant David Belton appeals his sentences following guilty pleas to
the following charges: aggravated riot in violation of R.C. 2917.02(A)(2), (C) with an
accompanying one-year firearm specification in violation of R.C. 2941.141(A);
involuntary manslaughter in violation of R.C. 2903.04(A), (C) with an accompanying
one-year firearm specification in violation of R.C. 2941.141(A); and one count of
aggravated assault, in violation of R.C. 2903.12(A)(2), (B) with an accompanying
three-year firearm specification in violation of R.C. 2941.145(A). Appellant contends
he was improperly sentenced to consecutive sentences on two firearm specifications
as the underlying felonies were part of the same transaction. Based on the following,
Appellant’s assignment of error is without merit and is overruled. The judgment of
the trial court is affirmed.
Factual and Procedural Background
{¶2} On August 16, 2014, following what appears to be a long history of
antagonism, two groups, Cortez and Jenkins, utilized social media to set up a fight
between them. The groups agreed to fight in a local park, but on arrival it was
discovered the park was too populated, so they moved the location to Winona Street.
A man living on the street, Carl Fleeton, Sr., attempted to intervene to break up the
fight but to no avail. The groups met on the street and began approaching one
another. The Cortez group gained an advantage during the fracas. The Jenkins
group retreated while firing eight shots at their opponents, hitting Shawn Cortez, who
later succumbed to his wounds. After the Jenkins gunfire, Fleeton also fired shots in
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an attempt to disburse the two groups. The groups fled in opposite directions, but
not before Appellant turned and fired eight shots into the Jenkins group.
{¶3} On August 21, 2014, Appellant was indicted on one count of
aggravated riot in violation of R.C. 2917.02(A)(2), (C), one count of involuntary
manslaughter in violation of R.C. 2903.04(A); one count of felonious assault in
violation of R.C. 2903.11(A)(2); and one count of aggravated assault in violation of
R.C. 2903.12(A)(1). Each count had accompanying three-year firearm specifications
pursuant to R.C. 2941.145(A).
{¶4} On August 26, 2014, the state and Appellant reached a plea
agreement. Under the terms of the agreement, Appellant agreed to plead guilty to
aggravated riot with the three-year firearm specification amended to a one-year
firearm specification, involuntary manslaughter with the three-year firearm
specification amended to a one-year firearm specification; and aggravated assault
with a three-year firearm specification. In exchange, he was to receive a total of eight
(8) years of incarceration on those counts and the felonious assault charge would be
dismissed. At the plea hearing, defense counsel confirmed the agreement. Prior to
entering a guilty plea, Appellant indicated that he understood the offenses to which
he would be pleading guilty and the sentences he would receive under the
agreement. Appellant further acknowledged that he understood that the trial court
had agreed to accept the recommended sentence. At the conclusion of a thorough
plea colloquy, the trial court accepted Appellant’s guilty pleas and the remaining
count was nolled.
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{¶5} At the sentencing hearing, the trial court imposed the agreed eight-year
aggregate prison sentence with eligibility for judicial release consideration after four
and one-half years. When imposing sentence, the trial court confirmed that this type
of offense was subject to mandatory sentencing and acknowledged that the parties
had agreed to the sentence imposed:
Your lawyer fashioned a plea agreement with the prosecutor in order to
get you the best possibility, best outcome. And that one of the
conditions of that plea agreement was an acknowledgment from the
State. And it would be part of the record that you’re eligible for judicial
release consideration at the end of four and a half years.
I have no discretion regarding the gun specifications. Therefore, that
four-year term, if I accept it, is something I have no control over. So
that’s the way that works.
(Tr., p. 8.)
{¶6} When imposing this sentence based on the Crim.R. 11 agreement, the
trial court determined that the recommended sentence was “appropriate when
considering the principles and purposes of sentencing to punish the defendant,
protect the public, recidivism factors, seriousness of the offense, incarceration,
restitution when necessary and rehabilitation is important.” (Tr., pp. 10-11.) On July
31, 2015, the trial court issued a sentencing journal entry imposing a prison sentence
of eight years with credit for 333 days served, indicating that it was an “agreed upon
recommended term.” (7/3/15 J.E., p. 1.)
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{¶7} Although not raised by the parties and having no effect on the overall
term of imprisonment, we note that the trial court’s judgment entry dated July 31,
2015, contains a clerical error in the last paragraph on the first page wherein the
firearm specifications attached to counts 1 and 4 are listed as requiring one (1) year
of imprisonment and the firearm specification attached to count 2 is listed as requiring
three (3) years of imprisonment. We hereby modify the judgment entry to clearly
reflect that the one year of imprisonment pertains to counts 1 and 2 and the three
years of imprisonment pertains to count 4.
{¶8} On August 25, 2015, Appellant filed a notice of appeal. Appellant
raises a single assignment of error for review:
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT IMPOSED SENTENCES ON
MULTIPLE FIREARM SPECIFICATIONS FOR FELONIES
COMMITTED AS PART OF THE SAME TRANSACTION.
{¶9} Appellant contends that the sentence is not authorized by law as it
violates the terms set forth in R.C. 2929.14(B)(1)(a)(ii) and (iii). Specifically,
Appellant complains that the firearm specifications for the felonies to which he
entered a guilty plea are part of the same transaction. He argues that this precluded
the trial court from imposing sentences for multiple firearm specifications. The state
argues that because Appellant agreed to all of the terms of the plea agreement, he
cannot appeal because the sentence is authorized by law.
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{¶10} In reviewing Appellant’s sentence, we utilize the standard set forth by
the Ohio Supreme Court in State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
59 N.E.3d 1231. Appellant’s sentence can be modified only if we find by clear and
convincing evidence that the record does not support any relevant findings under the
statute. Id.
{¶11} Initially, we note that Appellant’s argument is generally treated as
waived or forfeited on appeal because he entered into a Crim.R. 11 guilty plea,
waiving all issues except those related to whether the plea was voluntarily entered.
State v. Spates, 64 Ohio St. 3d 269, 272-273, 595 N.E.2d 321 (1992). Moreover, the
Ohio Supreme Court has held that a defendant may not appeal his sentence when,
“(1) both the defendant and the state agree to the sentence, (2) the trial court
imposes the agreed sentence, and (3) the sentence is authorized by law.” State v.
Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16; R.C.
2953.08(D)(1). In State v. Sergent, Slip Opinion No. 2016-Ohio-2696, the Ohio
Supreme Court recently held that where a jointly recommended sentence includes
nonmandatory consecutive sentences and the trial court fails to make the appropriate
consecutive-sentence findings as set forth in the statute relating to the prison terms,
the sentence is nevertheless “authorized by law” and is not appealable. Id. The
state and Appellant reached a sentencing agreement and Appellant was sentenced
accordingly. Therefore, we must determine whether Appellant’s sentence is
authorized by law and, thus, whether Appellant is precluded from appealing his
sentence.
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{¶12} Appellant argues that pursuant to the Ohio Supreme Court’s decision in
State v. Wills, 69 Ohio St. 3d 690, 691, 635 N.E.2d 370 (1994), the trial court erred in
imposing consecutive sentences because the underlying felonies to which the firearm
specifications are attached were committed as part of the same act or transaction.
Hence, the sentences are not “authorized by law.” R.C. 2953.08(D)(1). “A sentence
is authorized by law if it is within the statutory range of available sentences.” State v.
Hawkins, 7th Dist. No. 07 JE 14, 2008-Ohio-1529, ¶ 7.
{¶13} Appellant was convicted of aggravated riot, involuntary manslaughter,
and aggravated assault with two accompanying one-year firearm specifications
pursuant to R.C. 2941.141(A), and an accompanying three-year firearm specification
pursuant to R.C. 2941.145(A). The trial court ordered the one-year sentences for the
gun specifications attached to the aggravated riot and involuntary manslaughter
convictions to run concurrently. The trial court imposed a three-year sentence for the
firearm specification accompanying the aggravated assault conviction to run
consecutively to the one-year specifications. The sentences for the firearm
specifications fell within the mandatory statutory range.
{¶14} Appellant argues that pursuant to R.C. 2929.14(B)(1)(b), the trial court
erred in failing to merge the sentences for the gun specifications because the
underlying offenses occurred as a series of continuous acts in one transaction. The
purpose of firearm specification provisions is to separately punish each transaction
committed utilizing firearms. Wills at 691. R.C. 2941 et seq. serves to instruct the
courts on sentencing in instances where the same defendant commits multiple
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offenses utilizing a firearm. R.C. 2929.14(B)(1)(a)(ii) imposes a mandatory three-
year prison term when a defendant is convicted of or pleads guilty to a firearm
specification pursuant to R.C. 2941.145. In addition, R.C. 2929.14(B)(1)(a)(iii)
imposes a mandatory one-year prison term when a defendant is convicted of or
pleads guilty to a firearm specification pursuant to R.C. 2941.141. R.C.
2929.14(B)(1)(b) provides: “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 act or transaction.”
{¶15} At the sentencing hearing, the state noted:
We are asking that the two firearm specifications run consecutive to
one another; so three plus one for four. And obviously four years
concurrent -- or consecutive to the other four-year sentence, for a total
of eight years.
Legally speaking, the only reason we can do that, the reason we’re
asking to do that is that during the course of the aggravated riot the
defendant is in possession of the gun. He doesn’t necessarily brandish
it or use it or display it or anything like that, he simply has it on his
person, which would contemplate that the one year [sic].
When the aggravated assault happened, it’s after the rioting is -- I don’t
want to say over -- but near completion. And he can be seen running
up after the killers, if you will, and shooting at them, resulting in a three-
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year specification. That’s how we come to that; and that’s how we can
justify those running consecutive to one another.
(Tr., pp. 3-4.)
{¶16} In response, Appellant’s counsel appears to acquiesce, asking only that
Appellant be eligible for judicial release after four and one-half years. There was no
attempt by counsel to argue against the mandatory consecutive sentencing
provisions of the plea agreement. Appellant does not argue against the voluntary
nature of his plea nor did he once raise to the sentencing court that the sentences
should be merged. This record does not support Appellant’s contention and fails to
demonstrate, in a clear and convincing fashion, that Appellant’s sentence was not
authorized by law.
{¶17} The trial court made the requisite consecutive sentence findings on the
record. Based on this record, it is apparent that Appellant’s sentence was based on
an agreement between Appellant and the state, the trial court imposed that agreed
sentence, and the mandatory consecutive sentences for the firearm specifications
were authorized by law.
{¶18} Based on the foregoing, Appellant’s sole assignment of error is without
merit and is overruled. The judgment of the trial court is affirmed.
DeGenaro, J., concurs.
Robb, J., concurs.