State v. Downey

[Cite as State v. Downey, 2013-Ohio-4924.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99685
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHASE DOWNEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-558274
BEFORE: Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: November 7, 2013
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ATTORNEY FOR APPELLANT
Michael J. Cheselka, Jr.
Michael J. Cheselka, Jr., L.L.C.
75 Public Square
Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Erica Barnhill
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
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{¶1} Appellant Chase Downey appeals his sentence and assigns the following
sole error for our review:
The trial court erred when it failed to journalize appellant’s sentence in a
way consistent with the guidelines and principles of Ohio Revised Code
2929.19 and Rule 11 of the Ohio Rules of Criminal Procedure.
{¶2} Having reviewed the record and pertinent law, we affirm Downey’s
sentence. The apposite facts follow.
Facts
{¶3} On January 19, 2012, the Cuyahoga County Grand Jury indicted Downey on
19 counts. The counts consisted of two counts for aggravated robbery, two counts for
attempted murder, one count for grand theft, six counts for felonious assault, two counts
for drug trafficking, one count for drug possession, one count for failure to comply, one
count for improper handling of a firearm in a motor vehicle, one count for improperly
discharging a firearm into a habitation, one count for contributing to the unruliness or
delinquency of a child, and one count for possession of criminal tools. Most counts also
contained firearm and forfeiture specifications.
{¶4} The charges arose from Downey engaging in a drug deal that turned violent,
resulting in Downey shooting the confidential reliable informant two times. Downey and
his codefendants fled the scene in an automobile, with gunfire being exchanged between
Downey and pursing officers. The automobile ultimately crashed into a guard rail, and
a foot chase ensued. Downey was shot by a police officer and arrested.
4
{¶5} Downey entered into a plea agreement with an agreed sentence. As part of
the agreement, Downey entered a guilty plea to one count of aggravated robbery with a
firearm specification, two counts of felonious assault with a firearm specification, and
one count of drug trafficking with firearm and major drug offender specifications. The
parties requested, and the trial court accepted, a recommended sentence of 19 years. The
trial court also recommended that the sentence run concurrently with Downey’s federal
time and that Downey serve his time at the federal facility.1
Journal Entry
{¶6} In his assigned error, Downey does not dispute the actual sentence, but
argues the trial court’s sentencing entry contains multiple errors.
{¶7} Prior to addressing his claims, we note that this was an agreed sentence.
According to R.C. 2953.08(D)(1), “[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.” Thus, if these requirements are met, we do not have jurisdiction to review the
sentence. State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 22.
The federal charges arose out of the same events underlying the Cuyahoga
1
County Common Pleas Court charges. In the federal case, Downey entered guilty
pleas to one count of conspiracy to possess with intent to distribute and distribution
of cocaine and one count of interstate travel in aid of racketeering. The federal
court sentenced Downey to 112 months in prison with eight years of supervised
release.
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{¶8} Here, the sentence imposed was recommended jointly and imposed by the
sentencing judge. However, Downey argues the sentencing entry does not comply with
statutory sentencing requirements. Although under prior law, a sentence was
considered authorized by law as long as it was within the statutory range in State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, the Ohio Supreme Court
clarified that
a sentence is ‘authorized by law’ and is not appealable within the meaning
of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
provisions. A trial court does not have the discretion to exercise its
jurisdiction in a manner that ignores mandatory statutory provisions.”
(Emphasis added.)
Id. at ¶ 20. Thus, we must entertain the appeal to determine if the court comported with
statutory sentencing requirements.
{¶9} Downey argues the sentencing entry is defective because the trial court
failed to impose a sentence for Count 9 in the sentencing entry. However, the entry
states as follows regarding count nine:
Defendant retracts former plea of not guilty and enters a plea of guilty to
trafficking offenses 2953.03(A)(2) F1 with firearm specification(s) — 1
year (2941.141), major drug offender specification(s) 2941.141, forfeiture
specification(s) 2941.1417) as charged in Count(s) 9 of the indictment.
Defendant advised of mandatory 11 year sentence on this count due to
MDO specification and as to mandatory driver’s license suspension (6 mos.
- 5 years) and mandatory fine of at least $10,000.
Journal Entry, March 14, 2013.
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{¶10} In addition, near the end of the lengthy sentencing entry, the court
summarizes the underlying sentences and states “Count nine: 11 years.”
{¶11} Although Downey contends otherwise, the court also imposed a mandatory
five years of postrelease control. In the sentencing entry, the court ordered, “Defendant
advised of postrelease control for 5 years mandatory.” The court later in the entry also
ordered:
Postrelease control is part of this prison sentence for 5 years mandatory for
the above felony(s) under R.C. 2967.28. Defendant advised that if
postrelease control supervision is imposed following his/her release from
prison, and if he/she violates that supervision of condition of postrelease
control under R.C. 2967.131(B), parole board may impose a prison term as
part of the sentence of up to one-half of the stated prison term originally
imposed upon the offender.
Journal Entry, March 14, 2013.
{¶12} The trial court’s use of the language “if postrelease control supervision is
imposed” does not dilute the trial court’s imposition of the mandatory five-years
postrelease control that it ordered two times prior to this statement. See State v. Ali, 8th
Dist. Cuyahoga No. 97612, 2012-Ohio-2510 (the second advisement stating “if”
postrelease control was imposed, did not create an ambiguity in the mandatory nature of
the imposed postrelease control).
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{¶13} Downey also argues that the trial court’s statement in the entry that it
“recommends that this sentence be served concurrently with the defendant’s federal
sentence in Case 1:12CR285, which arises from the same incident,” was ambiguous
because the court only “recommended” that the state sentence run concurrently with the
federal sentence. If the sentence is ambiguous as to whether a sentence should be served
concurrently or consecutively, the ambiguity must be resolved in favor of the defendant
and the sentences must be served concurrently. State v. Carr, 167 Ohio App.3d 223,
2006-Ohio-3073, 854 N.E.2d 571 (3d Dist.).
{¶14} Moreover, pursuant to R.C. 2929.41(A), a sentence imposed in state court
“shall” be imposed concurrently to a federal court sentence, unless one of the listed
exceptions applies. R.C. 2929.41(A) provides as follows:
Except as provided in division (B) of this section, division (C) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a
prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States.
None of the exceptions apply in the instant case.
{¶15} Finally,
while state courts possess authority pursuant to R.C. 2929.41 to order that
state sentences be served concurrently to federal sentences, in reality such
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authority amounts to a mere recommendation. State courts have no
statutory authority to place state convicts in federal prison systems and vice
versa.
State v. Pollard, 8th Dist. Cuyahoga No. 66571, 1994 Ohio App. LEXIS 3899 (Sept. 1,
1994), citing to United States v. Herb, 436 F.2d 566 (6th Cir.1971).
{¶16} Accordingly, Downey’s assigned error has no merit.
{¶17} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR