State v. Murphy

[Cite as State v. Murphy, 2013-Ohio-2196.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98124
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHRISTOPHER MURPHY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-558029
BEFORE: Rocco, J., Stewart, A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: May 30, 2013
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Adrienne E. Linnick
Assistant County Prosecutor
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Christopher Murphy appeals from his sentence for
aggravated burglary and felonious assault, both with firearm specifications. Murphy
argues that the trial court should have merged the firearm specifications, that his plea was
not entered knowingly and voluntarily, that his trial counsel was ineffective, and that the
trial court should have merged the aggravated burglary and the felonious assault charges.
We disagree. The trial court’s final judgment is affirmed.
{¶2} On November 11, 2011, Murphy and three unknown juveniles entered the
Terrace Tower apartment building with firearms. Murphy and the juveniles entered one
of the apartments, robbing at gunpoint Lawrence Tanner, Tonia Colvin-Ward, and
Khalilah Thomas. Murphy pistol-whipped Tanner and Colvin-Ward. After exiting the
apartment, Murphy attempted to flee the building and, in doing so, he brandished a
firearm, threatening security guard Timothy St. Clair.
{¶3} As a result of the incident, Murphy was charged in a thirteen-count
indictment. Murphy pleaded guilty to aggravated burglary (R.C. 2911.11(A)(2)) and to
felonious assault (R.C. 2903.11(A)(1)). The state nolled the other counts. Both counts
included one and three-year firearm specifications (R.C. 2941.141(A); R.C.
2941.145(A)). The two charges were divided amongst the four victims as follows:
Tanner (both counts), Colvin-Ward (both counts), Thomas (aggravated burglary), and St.
Clair (felonious assault).
{¶4} Murphy was sentenced to twenty-years imprisonment. Murphy’s sentence
included eight years on the aggravated burglary charge and six years on the felonious
assault charge to be served consecutively. The trial court merged the one-year firearm
specifications with the three-year firearm specifications but imposed the two three-year
specifications consecutively to each other and to the underlying offenses.
{¶5} Murphy filed his notice of appeal from the trial court’s entry of final
judgment and presents four assignments of error for review.
I. The trial court violated Murphy’s rights under the double jeopardy clause
by failing to merge the firearm specifications, because the offenses were
committed as part of the same transaction.
II. The trial court violated Murphy’s rights under the double jeopardy clause
by failing to merge the aggravated burglary and felonious assault charges,
because the offenses were allied.
III. Murphy’s plea was not entered knowingly and intelligently because the
trial court advised him during his plea colloquy that his sentences on the
firearm specifications would merge, but the trial court ultimately ordered
the sentences to run consecutively.
IV. Murphy received ineffective assistance of counsel at the plea colloquy,
because his counsel advised him that the law required that the two firearm
specifications would merge, when the law requires that the
firearm-specification sentences run consecutively.
{¶6} We consider the assignments of error out of order for ease of discussion. In
his first assignment of error, Murphy argues that the trial court should have merged the
firearm specification for the aggravated burglary with the firearm specification for the
felonious assault. We disagree, because the trial court lacked discretion to merge the
firearm specifications. Under R.C. 2929.14(B)(1)(g) (former R.C. 2929.14(D)(1)(g)):
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies [is] * * * felonious assault * * *, and if the
offender is convicted of or pleads guilty to a [firearm] specification * * *
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 * * * .
(Emphasis added.) State v. Cassano, 8th Dist. No. 97228, 2012-Ohio-4047, ¶ 34
(interpreting the statute under former R.C. 2929.14(D)(1)(g) and concluding on similar
facts that “the court was required to impose * * * prison terms for the two most serious
specifications * * * .”); State v. Lozado, 8th Dist. No. 94902, 2012-Ohio-8, ¶ 9
(discussing former R.C. 2929.14(D)(1)(g) and stating that the statute “requires the trial
court to impose the two most serious specifications if the defendant has been convicted of
multiple felonies at least one of which is * * * felonious assault * * * .”). See also State
v. Bonner, 8th Dist. Nos. 93168 and 93176, 2010-Ohio-2885, ¶ 14, fn. 1.
{¶7} The plain language of the statute and our accompanying case law dictates that
a trial court is precluded from merging firearm specifications underlying separate charges
where: (1) a defendant pleads guilty to two felonies, one of which is felonious assault;
and (2) the defendant also pleads guilty to firearm specifications under R.C.
2929.14(B)(1)(a) in connection with both of those felonies.
{¶8} In the instant case, Murphy pleaded guilty to two felonies, one of which was
felonious assault. Murphy also pleaded guilty to firearm specifications in connection
with both of these felonies, under R.C. 2941.141(A) and R.C. 2941.145(A). Both of
these firearm-specification provisions are listed under R.C. 2929.14(B)(1)(a).
Accordingly, R.C. 2929.14(B)(1)(g) applies and the trial court was precluded from
merging the firearm specification underlying the aggravated burglary with the firearm
specification underlying the felonious assault. Because the trial court could not merge
the firearm specifications, Murphy’s argument that the trial court should have done so is
without merit. We overrule the first assignment of error.1
{¶9} In his third assignment of error, Murphy argues that his plea was not entered
knowingly and intelligently because, according to Murphy, the trial court told him at the
plea colloquy that the firearm specification underlying the aggravated burglary would
merge with the firearm specification underlying the felonious assault. The record does
not support Murphy’s contention, and we overrule the assignment of error.
{¶10} According to Crim.R. 11(C)(2)(a) and (b), before a trial court may accept a
guilty plea, it must make several findings, including that the defendant is making the plea
voluntarily, that the defendant understands the nature of the charges against him and the
maximum penalty involved, and that the defendant understands the effect of his guilty
plea. On appeal, we review whether the trial court substantially complied with the
procedures set forth in Crim.R. 11(C)(2)(a) and (b). State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 14-17. “Substantial compliance means that under
the totality of the circumstances the defendant subjectively understands the implications
1
This does not mean the trial court could not merge the one-year specification with the
three-year specification for the aggravated burglary and the one-year specification with the three-year
specification for the felonious assault. The trial court did, in fact, merge those specifications. What
the trial court could not do was merge the specifications underlying one felony with the specifications
underlying the other felony.
of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990).
{¶11} Even where we determine that the trial court did not substantially comply
with Crim.R. 11(C)(2)(a) and (b), we will not vacate a guilty plea unless the defendant
can show prejudice. Veney at ¶ 15. The test for prejudice is whether the plea would
have otherwise been made. Id.{¶12} Murphy asserts that at two different points during the plea colloquy the trial
court misled him into believing that the firearm specifications for the aggravated burglary
would merge with the firearm specifications for the felonious assault. But the portions
of the transcript relied on by Murphy do not support this contention.
{¶13} Murphy first points to a section of the plea colloquy where the trial court
separately discussed the aggravated burglary charge and the felonious assault charge.
When discussing the aggravated burglary charge, the trial court informed Murphy that it
would merge the one-year specification with the three-year specification. Next, the trial
court discussed the felonious assault charge and explained that the one-year specification
in conjunction with that charge would merge with the three-year specification. The trial
court did not state that the firearm specification for the aggravated burglary would merge
with the firearm specification for the felonious assault.
{¶14} Next, Murphy points to a hypothetical that the trial court presented at the
plea colloquy. In that hypothetical, the firearm specification for the aggravated burglary
charge merged with the firearm specification for the felonious assault. But nowhere in
the transcript does the trial court state that it planned to sentence Murphy as such. In
fact, just the opposite: the trial court started the hypothetical by stating, “This is not a
promise of a sentence.” Tr. 8. Later, the trial court asked Murphy, “Do you understand
there’s no promise of a particular sentence?” to which Murphy replied, “I understand.”
Id. at 11.
{¶15} Importantly, the trial court informed Murphy that the maximum sentence
that it could impose was 25 years. Id. at 14. This amount of time reflects a maximum
sentence of eleven years for the aggravated burglary, with three years for the firearm
specification, and eight years for the felonious assault, with three years for the firearm
specification, all of which would run consecutively. Accordingly, when the trial court
informed Murphy that the maximum sentence was 25 years, the trial court was also
making clear that it was not promising Murphy that the firearm specifications would
merge. Murphy indicated that he understood that the maximum time he could receive
was 25 years and that he wanted to plead guilty. Id. at 15.
{¶16} At another point during the plea colloquy, the trial court informed Murphy
that he could serve six years on the firearm specifications, which, again, indicates that
Murphy was informed that the firearm specifications could run consecutively. Id. at 11.
The trial court made no promise to Murphy that the firearm specifications would merge,
and the trial court substantially complied with Crim.R. 11.
{¶17} Finally, Murphy has not argued that he suffered prejudice. He makes no
assertion in his appeal briefs that he would not have pleaded if he knew that the firearm
specifications would not merge. We overrule Murphy’s third assignment of error.
{¶18} We also reject Murphy’s fourth assignment of error that asserts that his trial
counsel was ineffective in advising him that the law required that the sentences imposed
on the two firearm specifications would merge. This contention is not supported by the
record.
{¶19} A criminal defendant has the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To determine whether a defendant received ineffective assistance of counsel, we first
evaluate whether counsel’s performance was deficient, meaning errors were so serious
that counsel was not functioning as “counsel” guaranteed to the defendant under the Sixth
Amendment. Id. at 687.
{¶20} If we determine that counsel’s performance was deficient under the first
prong, we must then determine whether the errors prejudiced the defendant such that the
defendant was deprived of a fair and reliable trial. Id. We determine prejudice by
analyzing whether “there is a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
“Reasonable probability” is defined as probability sufficient to undermine confidence in
the outcome. Id.{¶21} Murphy argues, unpersuasively, that his counsel had informed him that the
firearm specifications would merge. First, Murphy points to a portion of the plea
colloquy where the trial court set forth a hypothetical scenario regarding Murphy’s
sentence, including a scenario where the firearm specifications merged.2 At the end of
the hypothetical, the trial court discussed the possibility of judicial release, stating that if
Murphy was to get five years for the felonious assault:
* * * I could say, I’m sending you to prison for all the time, you can apply
for judicial release, and after you serve your mandatory period of time
and/or after the required statutory time before you apply for judicial release,
and I grant it, then that five years will be held over your head.
Tr. 9. In response, Murphy’s trial counsel stated:
Actually, what we talked about is just that scenario, if you did give him a
five-year sentence potential on the underlying count, then he would have to
serve the full five years before he could file * * *
Id.{¶22} This interaction does not demonstrate that Murphy’s trial counsel told him
that the law required the trial court to merge the firearm specifications. Although it is
unclear as to what exactly Murphy and his trial counsel had talked about, the implication
is that they had been talking about how much of the sentence Murphy would have to serve
before he could apply for judicial release. Regardless, this portion of the transcript does
not support Murphy’s contention that his trial counsel misstated the law to him.
2
This is the same hypothetical that Murphy relies on in his third assignment of error.
{¶23} Murphy also attempts to prove that his trial counsel misunderstood the law
by pointing to a portion of the sentencing transcript where his counsel argues that the
firearm specifications should merge. But just because Murphy’s trial counsel requested
that the trial court merge the firearm specifications, does not mean that Murphy’s counsel
misunderstood the sentencing law or misstated the law to Murphy. In fact, Murphy’s
appellate counsel continues to press this very same merger argument on appeal in the first
assignment of error, while also conceding that the law might preclude merger. The
record does not reveal that Murphy’s counsel performed deficiently at the plea colloquy
or at the sentencing hearing and we overrule the fourth assignment of error.
{¶24} In his second assignment of error, Murphy asserts that the trial court erred
because it should have merged the aggravated burglary charge with the felonious assault
charge. We find no merit to this argument.
{¶25} When a defendant’s conduct results in the commission of two or more
“allied” offenses of similar import, that conduct can be charged separately, but the
defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A). In
determining whether offenses merge, we consider the defendant’s conduct. State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44.
{¶26} “If multiple offenses can be committed by the same conduct, then the court
must determine whether the offenses were committed by the same conduct, i.e., ‘a single
act, committed with a single state of mind.’” Id. at ¶ 49, quoting State v. Brown, 119
Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149,
¶ 50 (Lanzinger, J., dissenting). If we answer both questions affirmatively, then the
offenses are allied offenses of similar import and will be merged. Id. at ¶ 50.
{¶27} Although we concluded in an earlier case that an aggravated burglary could
merge with a felonious assault, the facts of this case do not lead us to such a conclusion.
In State v. Lacavera, 8th Dist. No. 96242, 2012-Ohio-800, one of the defendants knocked
on the elderly victim’s back door. The victim, who was hard of hearing, opened the
locked door. The defendant pushed the door in, and shoved the victim up against the
wall. The defendant asked the victim where the money was and then pushed her down
the basement stairs. Id. at ¶ 4. We concluded that the defendant’s “breaking into the
house and inflicting physical harm on the victim by pushing her down the stairs (and thus
completing the aggravated burglary) occurred as part of the same transaction as the
[felonious assault],” and that the crimes were borne of the same animus. Id. at ¶ 46.
{¶28} Murphy relies on Lacavera, arguing that he committed the felonious assault
and aggravated burglary with the same conduct, as well as the same animus — to steal
from the occupants of the apartment. According to Murphy, when he forced his way into
the apartment and pistol-whipped the occupants, he did so to accomplish the aggravated
burglary. The argument follows that the offenses should merge.
{¶29} Murphy’s argument completely ignores the fact that he was also convicted
for felonious assault against St. Clair, a security guard who was not an occupant of the
apartment. The aggravated burglary was already complete when Murphy committed the
felonious assault against St. Clair. It follows that when Murphy drew his weapon against
St. Clair, he did not do so with the intent to accomplish the aggravated burglary, and thus,
he acted with a separate animus. Accordingly, the felonious assault against St. Clair
does not merge with the aggravated burglary charge. Murphy’s argument is not well
taken and we overrule the second assignment of error.
{¶30} The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
____________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, A.J., and
EILEEN A. GALLAGHER, J., CONCUR