State v. Norwood

2016 Ohio 3437

• Court: Ohio Court of Appeals
• Decided: June 15, 2016
• Docket: 27378
• Status: Published

Opinion

[Cite as State v. Norwood, 2016-Ohio-3437.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27378

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DARELLE S. NORWOOD COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2013 12 3329 (A)

DECISION AND JOURNAL ENTRY

Dated: June 15, 2016

WHITMORE, Judge.

{¶1} Defendant, Darelle S. Norwood, appeals his sentence from the Summit County

Court of Common Pleas. We affirm.

I

{¶2} Norwood and an accomplice entered a residence in Akron, Ohio, threatened the

residents, and left with a bag of marijuana, electronics, and $10.00. Norwood’s accomplice had

a gun. Officers arrested Mr. Norwood a short time later at a nearby apartment complex after

observing him dispose of a firearm.

{¶3} After a trial, a jury convicted Norwood of: (1) aggravated burglary, a felony, with

a firearm specification (count 1); (2) two counts of aggravated robbery, felonies, each with a

firearm specification (counts 2 and 3); (3) carrying concealed weapons, a felony; (4) trafficking

in marijuana, a felony; (5) obstructing official business, a misdemeanor; and (6) resisting arrest,

a misdemeanor. 2

{¶4} The trial court conducted a sentencing hearing. The court imposed a fourteen-

year sentence. The court found that counts 1 and 3, consisting of charges for aggravated burglary

and aggravated robbery respectively, were subject to merger pursuant to State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314. The court sentenced Norwood to eight years of imprisonment

on the merged charges to run concurrently with sentences of equal or lesser length imposed on

each of the other charges. The court also merged the firearm specifications associated with

counts 1 and 3. The court then sentenced Norwood to three years imprisonment each for the

nonmerged firearm specification (count 2) and the merged firearm specifications (counts 1 and

3). Thus, Norwood received six years total for the firearm specifications. The court found that

the sentences for the firearm specifications had to “be served CONSECUTIVELY to each other

and CONSECUTIVELY to the sentence imposed” for the underlying offenses “for a total term

of [f]ourteen (14) years.”

{¶5} Norwood filed a timely notice of appeal. After several months and various

extensions, Norwood’s appointed appellate counsel failed to file a merit brief and the appeal was

dismissed.

{¶6} This Court reinstated Norwood’s appeal. We appointed new appellate counsel,

who filed a brief stating that there are no viable issues to be pursued on appeal.

II

{¶7} Norwood’s new appellate counsel has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), stating that counsel has reviewed the record and concluded that

there are no viable issues to pursue on appeal. Counsel also has moved to withdraw as counsel

of record in this matter. The record reflects that Norwood was served with a copy of counsel’s 3

Anders brief. This Court issued a magistrate’s order affording Norwood an opportunity to raise

arguments after review of the Anders brief. Norwood has not responded.

{¶8} In the Anders brief, Norwood’s appellate counsel raised one possible issue for

appeal regarding Norwood’s sentence, but concluded that it was not viable. Counsel questioned

“whether the trial court erred by not merging [the] two firearms specifications” associated with

counts 2 and 3. However, counsel concluded that, under R.C. 2929.14(C)(1)(a), merger was not

available for the separate firearm specifications. R.C. 2929.14(C)(1)(a) states in pertinent part:

* * * if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender’s person or under the offender’s control while committing a felony, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(c) of this section for committing a felony specified in that division by discharging a firearm from a motor vehicle, or if both types of mandatory prison terms are imposed, the offender shall serve any mandatory prison term imposed under either division consecutively to any other mandatory prison term imposed under either division or under division (B)(1)(d) of this section, consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.

{¶9} We agree that, in this matter, merger is not available for the separate firearm

specifications pursuant to R.C. 2929.14(C)(1)(a), and that sentences for those specifications must

run consecutively to one another and to Norwood’s sentence for the underlying charges. See

State v. Webb, 9th Dist. Summit No. 27424, 2015-Ohio-2380, ¶ 35. Moreover, upon this Court’s

own full, independent examination of the record, we agree that there are no appealable, non-

frivolous issues in this case. See State v. Randles, 9th Dist. Summit No. 23857, 2008-Ohio-662,

¶ 6. Accordingly, we grant counsel’s motion to withdraw. 4

III

{¶10} Having reviewed the entire record and having found that no appealable issues

exist, this Court concludes that Norwood’s appeal is meritless and wholly frivolous under

Anders. See Anders, 386 U.S. 738. On this basis, appellate counsel’s motion to withdraw is

granted. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

CARR, P. J. HENSAL, J. CONCUR. 5

APPEARANCES:

MICHAEL B. WASHINGTON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.