State v. Habbas

2017 Ohio 2653

• Court: Ohio Court of Appeals
• Decided: May 4, 2017
• Docket: 104532
• Status: Published

Opinion

[Cite as State v. Habbas, 2017-Ohio-2653.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104532

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

SALEM S. HABBAS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593574-F

BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Jones, J.

RELEASED AND JOURNALIZED: May 4, 2017 ATTORNEYS FOR APPELLANT

Mark Stanton Cuyahoga County Public Defender

BY: Noelle A. Powell Jeffrey M. Gamso Assistant Public Defenders Courthouse Square, Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Mary M. Dyczek Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Salem S. Habbas (“Habbas”), appeals his sentence and

raises one assignment of error:

1. The trial court erred by improperly employing a sentencing package in sentencing Mr. Habbas.

{¶2} We find no merit to the appeal and affirm the trial court’s judgment.

I. Facts and Procedural History

{¶3} Habbas pleaded guilty to three counts of trafficking, all third-degree felonies,

and three counts of possessing criminal tools, all fifth-degree felonies. Although none of

the charges included mandatory prison time, the parties agreed Habbas would serve

prison as part of the plea agreement. The length of the prison term was left to the court’s

discretion.

{¶4} The trial court sentenced Habbas to 36 months on each of the trafficking

convictions to be served concurrently, and 12 months on each of the possessing criminal

tools convictions to be served concurrently. However, the trial court ordered the

36-month sentences on the trafficking convictions to be served consecutive to the

12-month prison terms on the possessing criminal tools convictions for an aggregate

four-year prison term.

{¶5} Habbas now appeals his sentence.

{¶6} In his sole assignment of error, Habbas argues his sentence is contrary to law

because it improperly employed a sentencing packaging in violation of State v. Saxon,

109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. {¶7} In Saxon, the Ohio Supreme Court held that Ohio’s sentencing scheme does

not permit sentencing packages. Id. at ¶ 6. The “sentencing package doctrine” is a

federal doctrine that requires a sentencing court to consider the sanctions imposed on

multiple offenses as the components of a single, comprehensive sentencing plan. Id. at ¶

5. The doctrine arises from the Federal Sentencing Guidelines, which require courts to

consider “many multicount and interrelated sentencing enhancements.” Id. at ¶ 7. Thus,

under the sentencing package doctrine, an error within the sentencing package as a whole,

even if only on one of multiple offenses, may require modification or vacation of the

entire sentencing package due to the interdependency of the sentences for each offense.

Id. at ¶ 6, citing United States v. Clements, 86 F.3d 599, 600-601 (6th Cir.1996). Ohio’s

felony sentencing scheme is designed to focus the judge’s attention on one offense at a

time. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 6, citing

Saxon at ¶ 8. The court in Saxon explained that

[i]nstead of considering multiple offenses as a whole and imposing one, overarching sentence to encompass the entirety of the offenses as in the federal sentencing regime, a judge sentencing a defendant pursuant to Ohio law must consider each offense individually and impose a separate sentence for each offense. See R.C. 2929.11 through 2929.19. Only after the judge has imposed a separate prison term for each offense may the judge consider in his discretion whether the offender should serve those terms concurrently or consecutively.

Saxon at ¶ 9.

{¶8} At the sentencing hearing in this case, the court stated in relevant part:

I do think, also, in looking at this overall that the appropriate amount of

prison time is four years. So I am imposing a total of four years for all of

these counts, and I’m going to divide them up so that it is as follows. Thus, the court indicated it intended to sentence Habbas to a four-year prison term.

However, it did not impose a single comprehensive sentence on Habbas’s multiple

convictions. Rather, the court imposed individual sentences on each conviction and

ordered the sentences on the trafficking convictions to be served concurrently and the

sentences on the possessing criminal tools convictions to be served concurrently. It was

only after these individual sentences were imposed did the court order the two groups of

concurrent sentences to be served consecutive to each other for an aggregate four-year

sentence. Therefore, Habbas’s sentence is not in violation of Saxon’s prohibition against

sentencing packages.

{¶9} The sole assignment of error is overruled.

{¶10} Judgment 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 issue out of this court directing the common

pleas court 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.

EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and LARRY A. JONES, SR., J., CONCUR