[Cite as State v. James, 2015-Ohio-4987.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102604
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
BYRON JAMES DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-566251-A
BEFORE: Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 3, 2015 ATTORNEY FOR APPELLANT
P. Andrew Baker 17877 St. Clair Avenue, Suite 150 Cleveland, OH 44110
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
Anna M. Faraglia Oscar E. Albores Assistant County Prosecutors Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Byron James repeatedly shot his victim in front of a
group of people after chasing the victim around a neighborhood — he did not even bother
to hide his identity from the group of people, all of whom knew him. A jury found these
facts sufficient to find James guilty of aggravated murder, two counts of felonious assault,
discharging a weapon near prohibited premises and into a habitation, along with firearm
specifications for those respective counts. In this direct appeal of his conviction, James
argues that trial counsel was ineffective for failing to seek a dismissal of the charges on
speedy trial grounds and for failing to object to certain trial testimony, that his conviction
was against the manifest weight of the evidence, that counts for discharging a weapon
near prohibited premises and discharging a weapon into a habitation should have merged
for sentencing, and that the court erred by concluding that the discharge specifications
were subject to mandatory consecutive service. We affirm in part, reverse in part, and
remand.
{¶2} James’s first assignment of error complains that defense counsel was
ineffective for three reasons: (1) trial counsel failed to seek a dismissal of the indictment
on speedy trial grounds; (2) trial counsel failed to object when the state improperly
bolstered the credibility of its witnesses; and (3) trial counsel failed to request merger of
the firearm discharge specifications. {¶3} A defendant claiming ineffective assistance of counsel bears the burden of
establishing two elements: (1) that trial counsel’s performance fell below objective
standards for reasonably effective representation, and (2) that counsel’s deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
{¶4} To satisfy the first element of the Strickland test, appellant must direct the
court to specific acts or omissions by his counsel. Id. at 690. We consider whether in
light of all the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Id. Our assessment of counsel’s performance is
“highly deferential” so we indulge in “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance * * *.” Id. at 689. Further,
counsel’s performance is evaluated in light of an attorney’s discretion to develop
appropriate trial strategies according to the attorney’s independent judgment, given the
facts of the case, at least some of which may not be reflected in the trial record. Id. at
689-690.
{¶5} To satisfy the second Strickland element, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, the result of the proceedings
would have been different. Id. at 694. A “reasonable probability” is defined as one that
is “sufficient to undermine confidence in an outcome.” Id. at 694.
{¶6} Trial counsel did not perform outside the wide range of professionally
competent assistance required in the context of speedy trial issues. {¶7} Although the state is required to bring a criminal defendant to trial within 270
days after arrest, see R.C. 2945.71(C), James was held in jail in lieu of bail, so the
triple-count provisions of R.C. 2945.71(E) applied. This means that the state had to
bring James to trial within 90 days of his arrest. James was arrested on December 9,
2013, so his trial should have started no later than March 10, 2014. Trial did not
commence until January 26, 2015, well outside the 90-day speedy trial time.
{¶8} The speedy trial time can be tolled on the accused’s own motion. See R.C.
2945.72(E). James concedes that the speedy trial time was tolled many times at his
request, but claims that one continuance ordered by the court did not come at his request
and is dispositive of the speedy trial issue. That continuance, granted on October 15,
2014, stated: “Pretrial not held. Defense counsel in trial in another courtroom. Final
pretrial set at 10/29/14 at 9:00 AM. Trial set at 1/26/15 at 9:00 AM.” James argues that
this entry does not indicate that the trial date was set at his request, nor does it indicate
that he agreed to waive his speedy trial time from October 15, 2014 through January 26,
2015. {¶9} While James may not have specifically acquiesced to the January 26, 2015
trial date, a defendant is bound by the actions of counsel in waiving speedy trial rights by
seeking or agreeing to a continuance, even if no formal motion for a continuance has been
filed. See State v. Davis, 46 Ohio St.2d 444, 449, 349 N.E.2d 315 (1976). There is no
question that trial counsel’s inability to attend the October 15, 2014 pretrial necessitated a
delay chargeable to James that tolled the speedy trial time. See, e.g., State v. Humphries,
8th Dist. Cuyahoga No. 99924, 2014-Ohio-5423, ¶ 9 (continuances of pretrials granted at
defendant’s request tolled speedy trial time); State v. Walker, 8th Dist. Cuyahoga No.
99239, 2013-Ohio-3522, ¶ 22. The court rescheduled the pretrial for October 29, 2014,
but that pretrial was continued “at the request of defendant” for “further discussions” — a
notation that, given prior references to “ongoing plea negotiations,” we understand as
indicating that the parties were engaged in plea negotiations. Likewise, pretrials
scheduled for November and December were continued at James’s request, with the court
noting the reason for the continuances as “further discussions.” So even though James
may have not agreed to the January 2015 trial date, counsel, on his behalf, did request
additional continuances that tolled the speedy trial time regardless of that trial date. 1
With no speedy trial issue manifest on the record, trial counsel had no duty to file a
motion to dismiss on that basis.
There was one continuance of the “final” pretrial requested by the state on November 17, 1
2014, causing the court to reschedule the pretrial to November 20, 2014, at which time James asked for another continuance. James makes no argument that this three-day delay occasioned by the state’s request, standing alone, was what violated his speedy trial right. {¶10} James next argues that trial counsel failed to object on numerous occasions
where the state improperly bolstered the credibility of its own witnesses by inquiring into
whether they were currently employed or had children. He argues that these questions
violated Evid.R. 608(A)(2), which states that “evidence of truthful character is admissible
only after the character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.”
{¶11} It is important to understand that the “evidence of truthful character”
referred to in Evid.R. 608(A)(2) is not the same thing as “credibility.” “Truthfulness” is
a facet of “credibility.” State v. Markland, 8th Dist. Cuyahoga No. 45137, 1983 Ohio
App. LEXIS 13748 (Apr. 21, 1983). The Staff Note to Evid.R. 608(A)(2) makes this
point, noting that a 1992 amendment to the rule “substitutes the phrase ‘character for
truthfulness’ for the term ‘credibility.’ The latter term is too broad and, therefore, may
cause confusion.” {¶12} None of the questions posed by the state remotely touched on Evid.R.
608(A)(2) and the witness’s character for truthfulness. They were general background
questions asked of the witnesses as they began their testimony: their age, where they
lived, whether they had a family, and their employment status. Although these kinds of
questions may indirectly give the trier of fact reason to find the witness more or less
credible, this is not the type of testimony prohibited by Evid.R. 608(A)(2). What is
more, James himself testified and answered very similar questions on direct examination
regarding whether he graduated from high school, whether he was employed, and whether
he had any children. James cannot be heard to complain that trial counsel was deficient
for failing to object to the same type of trial strategy.
{¶13} James also complains that the state improperly asked its own witnesses
whether they had any prior convictions. The state is entitled to ask its own witnesses
whether they have any prior convictions as a preemptive attempt to “take the wind out of
the defendant’s sails regarding the witness’ credibility.” United States v. Handly, 591
F.2d 1125, 1128, fn. 1 (5th Cir.1979); see also Ohler v. United States, 529 U.S. 753, 758,
120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) (noting that defendants often introduce evidence
of prior convictions on direct examination to “remove the sting”). While one of the
state’s witnesses did not have a prior conviction, that fact alone did not make the question
objectionable on the grounds that the answer bolstered that witness’s truthful character.
Counsel therefore had no reason to object to the state’s questions. {¶14} For his second assignment of error, James complains that the jury’s verdict
is against the manifest weight of the evidence. He argues that there was no physical
evidence to prove his identity as the shooter and that the state’s witnesses had credibility
issues.
{¶15} The manifest weight of the evidence standard of review requires us to
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that
the trier-of-fact’s decision must be plainly or obviously contrary to all of the evidence.
This is a difficult burden for an appellant to overcome because the resolution of factual
issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or
disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). {¶16} The state’s evidence consisted of the testimony of several witnesses who
collectively testified that the victim and a group of his friends had gathered in front of a
house when James pulled up in his car. James, who was not wearing anything that might
hide his identity, exited the car in the plain sight of those present. He said something to
the victim that the witnesses could not hear. He then pulled out a handgun and began
firing. The victim fled, moving between parked cars on the street. James pursued the
victim, continuing to fire between three to seven shots. One of those gunshots struck the
victim in the back and caused his death. In addition to the shot that killed the victim, one
of the shots fired by James struck a house on the street. After killing the victim, James
reentered his car and drove away. James subsequently sold the car for $80 and then
traveled to Georgia. He remained there for nearly one year despite knowing that he was
wanted for the murder, until his arrest and return to Cuyahoga County.
{¶17} James testified in his own defense and claimed that two witnesses to the
shooting fabricated his involvement based on “differences” they had. He testified that
one of the witnesses was upset because he had been talking to the witness’s “girl”; he
testified that the other witness was “trying to be tough all the time.” James claimed that
these two witnesses had broken the front and rear windows of his car. He claimed that
he left Ohio after the shooting to attend a funeral. After learning that the police had
issued a warrant for his arrest, James said that he decided to “chill out” in Georgia until
his family was able to finance the services of an attorney. {¶18} James also attacks the credibility of the witnesses, arguing that they did not
identify him as the shooter in their 911 call for emergency services despite later claiming
to know who he was when the shooting occurred. One witness explained that he did not
immediately identify James based on the “code of the streets” not to “snitch.” The
witness said that at the time he made the 911 call, he believed that the victim was “okay,”
but when he learned that the victim had died, he decided to come forward and identify
James.
{¶19} Another witness testified that he was walking down the street at the time
James drove by in his car. This witness, who had known James since they were children,
said hello to James and kept walking. He then heard, but did not see, shots being fired.
The witness ran for cover and saw the victim on the ground. He acknowledged that he
did not immediately identify James by name to the police because he did not actually see
the shooting.
{¶20} A fourth witness, whom James claims “did absolutely nothing to contact the
police or report what he had witnessed” testified that after witnessing the shooting, he
asked his mother to call the police as he went out to attend to the victim. This witness
went to the hospital to await the victim’s treatment and stayed there for two hours before
returning to his home. He spoke to the police the following day and identified James as
the shooter. {¶21} Finally, James acknowledged that another witness immediately identified
him as the shooter to the police, but claimed that this witness was a convicted felon who
gave such sarcastic and flippant testimony that nothing he said was worthy of belief.
While this witness may not have been as decorous as James would wish him to be, the
witness’s testimony was consistent in all material respects with that given by the other
witnesses to the shooting. We have no basis to conclude that the jury lost its way by
finding the state’s witnesses believable.
{¶22} James also complains that the jury’s guilty verdict on the count relating to
discharging into a habitation was against the manifest weight of the evidence because
there was no evidence to show that he knowingly fired a shot into the residence. This is
really an argument going to the sufficiency, not the weight, of the evidence. And
because the sufficiency of the evidence has not been assigned as error on this issue, it is
not properly before us for review.2 See App.R. 16(A)(7).
However, even had the argument been properly presented, it would be 2
meritless: there was testimony from the occupant of the house concerning a bullet hole in the house that did not exist prior to the shooting and another witness testified that one of James’s missed shots left a bullet hole in the side of the house. That evidence was sufficient to establish that James discharged a firearm into a habitation. {¶23} The third assignment of error complains that the court erred by failing to
merge Counts 5 and 6 — discharging a firearm on or near prohibited premises and
discharging into a habitation — into the other four counts, all of which the court had
otherwise merged for sentencing. James acknowledges that trial counsel conceded that
Counts 5 and 6 were not allied, but argues that trial counsel was wrong to make that
concession and that plain error exists.
{¶24} Ordinarily, the issue raised in this assignment of error would not be subject
to review on appeal under authority of R.C. 2953.08(D)(1). That section 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.” Because trial counsel
agreed with the state that Counts 5 and 6 do not merge, R.C. 2953.08(D)(1) would seem
to deprive this court of jurisdiction to consider this issue. {¶25} However, in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922
N.E.2d 923, paragraph one of the syllabus states: “When a sentence is imposed for
multiple convictions on offenses that are allied offenses of similar import in violation of
R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence even
though it was jointly recommended by the parties and imposed by the court.” The
Supreme Court reached this conclusion by finding that the term “authorized by law” as
used in R.C. 2953.08(D)(1) encompassed not only what the law permits, but what the law
requires. Id. at ¶ 20. As applicable here, the allied offenses statute, R.C. 2941.25(A),
states that “there may be only one conviction for allied offenses of similar import.” Id. at
¶ 26 (Emphasis sic.). The Supreme Court interpreted this language to mean that “a trial
court is prohibited from imposing individual sentences for counts that constitute allied
offenses of similar import.” Id.
{¶26} Nevertheless, Underwood understood that a defendant can expressly waive
the protections of R.C. 2945.21 by “stipulating in the plea agreement that the offenses
were committed with separate animus.” Id. at ¶ 29. In this context, a defendant’s
waiver of statutory protection (the intentional relinquishment of a known right) is
substantively different than a forfeiture (the failure to timely assert a right) of an issue for
appeal. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20. {¶27} In Underwood, the parties entered into a plea agreement with an agreed
sentence, but they said nothing about whether the offenses that were the subject of the
plea agreement would merge. In this case, there was no plea agreement, but at
sentencing the state told the court that it did not believe that Counts 5 and 6 merged for
sentencing and trial counsel agreed, stating that “Count [sic] 5 and 6 do not merge into
the first four counts * * *.” Tr. 945-946. This statement by trial counsel was enough to
constitute a waiver of R.C. 2941.25 and distinguish this case from Underwood.
{¶28} Under similar circumstances, some appellate courts have invoked the invited
error doctrine in light of trial counsel’s agreement that offenses do not merge for
sentencing. “Invited” error is a doctrine that prevents a party from benefitting from an
action that the party induced the court to make. State v. Smith, 148 Ohio App.3d 274,
2002-Ohio-3114, 772 N.E.2d 1225, ¶ 30 (8th Dist.). In State v. Gardner, 7th Dist.
Mahoning No. 10 MA 52, 2011-Ohio-2644, the court found on very similar facts to those
in this case that a representation by defense counsel at sentencing that counts do not
merge for sentencing constituted “invited error.” Id. at ¶ 36. Similarly, in State v.
Oehler, 6th Dist. Williams No. WM-11-001, 2011-Ohio-6501, the court held that defense
counsel’s agreement to the state’s representation that two counts of an indictment were
not allied offenses and would not merge for sentencing was invited error. Id. at ¶ 11-12.
We agree with these courts and conclude that James cannot take advantage of any error
that trial counsel may have made by agreeing that Counts 5 and 6 do not merge for
sentencing. {¶29} Despite trial counsel having invited error with respect to the court’s failure
to merge Counts 5 and 6 for sentencing, James has a viable claim of ineffective assistance
based on trial counsel inviting the error. We have in prior cases held that an ineffective
assistance of counsel claim would not lie when a claimed error had been invited because
“[t]here is no point in having a stringent invited error doctrine only to allow it to be
overcome by finding counsel ineffective for having invited the error.” State v. Doss, 8th
Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 9. See also State v. West, 8th Dist.
Cuyahoga Nos. 97391 and 97900, 2013-Ohio-96, ¶ 27; State v. Benitez, 8th Dist.
Cuyahoga No. 98930, 2013-Ohio-2334, ¶ 35. We applied this rule, however, because the
claimed error had been the result of trial counsel’s exercise of trial strategy. For
example, in Doss, trial counsel informed the court that his client would waive a Bruton3
issue; in West, trial counsel did not request separate trials for the defendant and his
codefendant brother. In this case, there is no colorable trial strategy that would have
James serve a longer sentence than he might otherwise serve had trial counsel not
conceded the allied offenses issue. So we refuse to apply the rule that the invited error
doctrine forbids consideration of ineffective assistance of counsel claims based on the
invited error doctrine because there is no colorable trial strategy that would support the
invited error.
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United 3
States Supreme Court held that in a joint trial of two defendants, a confession of one codefendant who did not testify could not be admitted into evidence, even with a limiting instruction that the confession could only be used against the confessing defendant. {¶30} The issue, then, is whether trial counsel was ineffective for agreeing that
discharging a firearm upon or over a public road or highway should not merge with the
offense of improperly discharging a firearm into an occupied structure that is a permanent
or temporary habitation. James could not be sentenced separately for each offense under
R.C. 2941.25(A) if these were allied offenses of similar import.
{¶31} In Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the
Supreme Court held that “allied offenses are not offenses of similar import if the
offender’s conduct constitutes offenses against different victims or if the harm that results
from each offense is separate and identifiable.” Id. at ¶ 4. This conclusion followed
from its decision in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
where the court stated, “when the defendant’s conduct put more than one individual at
risk, that conduct could support multiple convictions because the offenses were of
dissimilar import.” Id. at ¶ 23. In other words, offenses are of dissimilar import when
they “constitute offenses involving separate victims.” Id. at ¶ 26.
{¶32} Count 6, improperly discharging into a habitation in violation of R.C.
2923.161(A)(1), charged James with knowingly discharging a firearm into an occupied
structure that was the permanent or temporary habitation of its resident. There was a
stated victim for Count 6, that being the person who was inhabiting the house that had
been struck by a gunshot that James fired. {¶33} Count 5, discharging a firearm on or near prohibited premises, was brought
under R.C. 2923.162(A)(3) and charged James with discharging a firearm over a public
road. As defined, R.C. 2923.162(A)(3) does not contain a culpable mental element: “No
person shall do any of the following * * * [d]ischarge a firearm upon or over a public
road or highway.” When a statute does not specify a degree of culpability and does not
plainly indicate a purpose to impose strict liability, the culpable mental state is
“recklessness.” See R.C. 2901.21(B). Even though a statute may not contain a “plain”
indication of an intent to impose strict liability, the intention to impose strict liability can
be inferred from the purpose of the statute; for example, when “the acts are made
unlawful for the good of the public welfare regardless of the [offender’s] state of mind.”
State v. Schlosser, 79 Ohio St.3d 329, 333, 681 N.E.2d 911 (1997). Unlike some strict
liability offenses where there is a specific victim (for example, statutory rape), the victim
of the offense of discharging a firearm upon or over a public road or highway is the
public. This is because it is the act itself that is prohibited. The offense can be
completed with no one remotely near the location where the firearm is discharged upon or
over the public road or highway. R.C. 2923.162(A)(3) is a statute intended to benefit the
public good and thus imposes strict liability. Our conclusion is consistent with the
Comment to Ohio Jury Instruction 523.162: “The Committee believes that R.C. 2923.162
imposes strict liability.” The Ohio Jury Instructions are not authoritative, but are
“helpful” as a “generally accepted interpretation” of a statute. State v. Gardner, 118
Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 97. Consistent with the model jury instruction, the court charged the jury, with no objection from James, that the offense of
discharging a firearm over a public road or highway is a strict liability offense.
{¶34} Because the offense of discharging a firearm over a public road or highway
is a strict liability offense, the public was the victim for that offense. The victim of the
offense of discharging a firearm into a habitation was the person occupying the house
struck by the bullet. We thus find that there were separate victims for each offense, so
the counts would not merge for sentencing. On that basis, trial counsel’s concession that
the two counts do not merge did not amount to ineffective assistance of counsel.
{¶35} Even if there were not separate victims of the two offenses, we agree with
the court’s finding that the offenses were committed with a separate animus and were not
allied. See Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at paragraph
three of the syllabus.
{¶36} “[I]t is a question of fact whether a separate animus has been established or
whether the offenses have been committed separately.” State v. Kohr, 5th Dist. Licking
No. 2008 CA 00147, 2009-Ohio-5297, ¶ 41, citing State v. Hunt, 9th Dist. Summit No.
10632, 1982 Ohio App. LEXIS 14455 (Nov. 24, 1982). As with any other question of
fact, we defer to the findings of the trier of fact, but review the court’s application of the
law to those facts de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983
N.E.2d 1245, ¶ 26. {¶37} The evidence showed that James fired four to seven shots, and only two of
those shots were accounted for: the shot that killed the victim and the shot that lodged in a
house. The house that had been fired upon was located on a corner of two streets.
James drove up in front this house, exited his vehicle, said something to the victim, and
then fired his gun. James missed and the victim ran down the street with James in
pursuit, continuing to fire his gun. The rational conclusion is that the missed shot, fired
when James was in front of the house facing the group who had been gathered in front the
house, was the one that struck the house. As James pursued the victim, he continued to
fire. The victim was found more than one block away, on another street, having been
shot in the back.
{¶38} With witnesses testifying that they heard as few as three and as many as
seven shots fired, the court could easily have concluded that some of those missed shots
would have crossed the public road. This was not a situation where James fired a
successive volley of shots, but one where the gunshots were separated by time in the
course of his pursuing the victim. It follows that the offenses of discharging a firearm
into a habitation and discharging a firearm over a public roadway were separate acts that
did not merge for sentencing. Trial counsel’s acknowledgment of this fact did not
constitute ineffective assistance of counsel. {¶39} The court ordered James to serve a total sentence of life with parole
eligibility after 39 years. The primary sentence was a term of life in prison with parole
eligibility after 30 years on Count 1. Counts 2-4 were merged into Count 1. The court
ordered James to serve three years on Counts 5 and 6, but ordered those counts to be
served concurrent and concurrent to the life term in Count 1. Each count of the
indictment carried one- and three-year firearm specifications, and the court merged the
one-year firearm specification for each count into the corresponding three-year firearm
specification. The court merged the specifications for Counts 2-4 into the specification
for Count 1, but refused to merge the three-year firearm specifications for Counts 5 and 6.
Instead, it ran the firearm specifications for Counts 5 and 6 consecutive to each other,
and in turn ran those specifications consecutive to the firearm specification on the
aggravated murder charge in Count 1. James argues that the court not only should have
merged the firearm specifications for Counts 5 and 6, but that the merged firearm
specifications should have been merged into the firearm specification for the aggravated
murder count. We disagree.
{¶40} “Ordinarily, the court is forbidden from imposing sentence on multiple
firearm specifications for ‘felonies committed as part of the same act or transaction.’”
State v. Cassano, 8th Dist. Cuyahoga No. 97229, 2012-Ohio-4047, ¶ 33, quoting former
R.C. 2929.14(D)(1)(b) (now R.C. 2929.14(B)(1)(b)). However, 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.
{¶41} We have construed R.C. 2929.14(B)(1)(g) to mean that in cases like this,
where James was found guilty of three or more felonies, one of which was aggravated
murder, and those felony counts contained firearm specifications, the trial judge is
required to impose prison terms for the two most serious specifications, and could also, in
its discretion, impose a sentence for any other specification. Id. at ¶ 34; State v. Sheffey,
8th Dist. Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 28.
{¶42} James next argues that the court mistakenly believed that it was required to
run all three firearm specifications consecutively when, in fact, R.C. 2929.14(B)(1)(g)
requires only that two specifications be run consecutively and that the court has the
discretion to run any other firearm specifications consecutively. {¶43} The trial transcript supports James’s argument on this point. The court
stated: “The gun specifications, I believe by law, pursuant to the memorandums and the
law cited therein, will have to — the three year gun specifications will have to run
consecutive to each other and consecutive to the three year firearm specification now
under sentence in Count 1.” By indicating that all three firearm specifications would
“have to” run consecutively, the court showed its mistaken belief that consecutive service
of all three firearm specifications was compulsory.
{¶44} The state makes no direct attempt to counter James’s argument that the court
believed it to be required to order consecutive service on the firearm specifications apart
from suggesting that the court could have ordered consecutive service on the third firearm
specification “for public safety reasons.” This is nothing more than an argument that the
court exercised its discretion to order consecutive service of the third firearm
specification. There can be no exercise of sentencing discretion when the court so
plainly indicates its belief that it is compelled by statute to impose consecutive sentences.
We agree with James that the court erred by indicating that it had to order consecutive
service on the third firearm specification (Count 6). We remand this part of James’s
sentence for resentencing.
{¶45} James’s final argument is that to the extent that the court has discretion to
order consecutive service of the third firearm specification, it was required to comply
with R.C. 2929.14(C)(4) and make the findings required under that statute before
ordering consecutive service. {¶46} We have held that the mandatory requirement to order consecutive service
of certain specifications under R.C. 2929.14(B)(1)(g) supersedes the findings required by
R.C. 2929.14(C)(4). See State v. Young, 8th Dist. Cuyahoga No. 102202,
2015-Ohio-2862, ¶ 10. We have not, however, specifically addressed whether the
discretionary decision to order consecutive service of a third specification should be
similarly treated. There are several appellate decisions addressing whether the court
abused its discretion by ordering consecutive service of a third specification under R.C.
2929.14(B)(1)(g), but none of them consider whether the sentencing judge had to make
the findings required by R.C. 2929.14(C)(4). See, e.g., State v. Vanderhorst, 8th Dist.
Cuyahoga No. 97242, 2013-Ohio-1785; State v. Fortune, 11th Dist. Lake No.
2014-L-117, 2015-Ohio-4019; State v. Isreal, 12th Dist. Warren No. CA2011-11-115,
2012-Ohio-4876. {¶47} The consecutive sentencing statute applies to “multiple prison terms [that]
are imposed on an offender for convictions of multiple offenses[.]” (Emphasis added.)
R.C. 2929.14(C)(4). A specification is a sentencing enhancement, not a separate
criminal offense, State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶
16. By its own terms, R.C. 2929.14(C)(4) does not apply to penalty enhancing
specifications. R.C. 2929.14(B)(1)(g) specifically applies to penalty enhancing
specifications, so this statute controls. With there being no requirement in R.C.
2929.14(B)(1)(g) for the court to make findings of any kind before ordering a third
penalty enhancing specification to be served consecutively, the court had no obligation to
make any findings.
{¶48} Judgment affirmed in part; reversed in part; and remanded.
It is ordered that appellant and appellee share the 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.
______________________________________________ MELODY J. STEWART, JUDGE
EILEEN T. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR