State v. Parker

2013 Ohio 2898

• Court: Ohio Court of Appeals
• Decided: July 3, 2013
• Docket: 98272
• Status: Published

Opinion

[Cite as State v. Parker, 2013-Ohio-2898.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98272

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CEDRIC PARKER DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-554064

BEFORE: Keough, J., Jones, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: July 3, 2013 ATTORNEYS FOR APPELLANT

Robert L. Tobik Chief Public Defender By: Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

APPELLANT

Cedric Parker No. 623-848 P.O. Box 57 Marion Correctional Institution Marion, Ohio 43301

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Brian R. Radigan Christopher D. Schroeder Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Cedric Parker, appeals his sentence. For the reasons

that follow, we reverse Parker’s sentence and remand to the trial court (1) to correct the

plea journal entry to reflect that Parker pled guilty to the three-year firearm specification

attendant to Count 8; (2) to correct the sentencing journal entry to reflect that Parker pled

guilty to the three-year firearm specification on Count 8, but that the State dismissed the

specification at sentencing; thus, no firearm specification sentence should have been

imposed on Count 8; (3) for resentencing with consideration that it is not mandatory that

the seven-year firearm specification run consecutive to the three-year firearm

specification; and (4) for consideration on the record the required findings under R.C.

2929.14(C)(4) on whether consecutive sentences should be imposed.

{¶2} In June 2011, the grand jury issued a 14-count indictment against Parker

arising from a robbery and police shoot-out. Counts 1 through 5 charged Parker with

aggravated robbery, each containing one- and three-year firearm specifications. Under

Counts 6 and 7, Parker was charged with felonious assault of a peace officer, each count

contained one-, three-, and seven-year firearm specifications. Counts 8 through 13

charged Parker with kidnapping, each containing one- and three-year firearm

specifications. Count 14 charged Parker with disrupting public services, containing one-

and three-year firearm specifications. {¶3} Pursuant to a plea agreement, Parker agreed to plead guilty to amended

Counts 1 and 2 aggravated robbery in violation of R.C. 2911.01(A)(1), Count 6, as

amended, to felonious assault of a peace officer, in violation of R.C. 2903.11(A)(2), and

Count 8, as amended, to kidnapping in violation of R.C. 2905.01(A)(2). Parker also

agreed to plead guilty to the attendant three-year firearm specifications on all four

counts, 1 and the seven-year firearm specification included with Count 6. All other

counts and specifications were dismissed.

{¶4} During the plea hearing, a discussion occurred between the trial court and the

parties about whether the seven-year firearm specification attendant to Count 6 was

required to run consecutive to the three-year firearm specifications attendant to Counts 1,

2, and 8. The trial court stated that while the three- and seven-year specifications under

Count 6 merged for sentencing, it was the court’s position that the three-year

specifications under Counts 1, 2, and 8 would not merge into that seven-year specification

under Count 6, but that the two specifications were to be served consecutively.

Accordingly, the court believed it was statutorily required that he order the firearm

specifications consecutively. The trial judge stated: “Counts 1, 2, and 8 all related back

to the original robbery, thus merge into one three-year firearm specification. But Count

6, the seven-year would be consecutive to the three years on Counts 1, 2, and 8.”

We note that the court’s plea journal entry is incorrect regarding the firearm specification 1

Parker pled to in Count 8 — the journal entry reflects he pled to the one-year specification, but the transcript shows Parker pled guilty to the three-year firearm specification. On remand the trial court is ordered to correct the plea journal entry to correct the clerical error pursuant to Crim.R. 36. {¶5} At sentencing, the court found that Counts 1 and 2, aggravated robbery,

merged and the State elected to proceed to sentencing on Count 1, with the three-year

firearm specification. The trial court also merged the three- and seven-year

specifications in Count 6 for a single seven-year specification. The State voluntarily

dismissed the three-year specification under Count 8.2

{¶6} The trial court sentenced Parker to four years under Count 1 consecutive to

the three-year firearm specification, and six years on Count 8 to be served concurrently

with the four year base sentence under Count 1, for a total of nine years. Additionally,

the court imposed an eight year sentence on Count 6, consecutive to the mandatory

seven-year firearm specification and also consecutive to the three-year firearm

specification under Count 1. Parker’s total prison sentence was 24 years.

{¶7} Parker appeals, with two appellate briefs before us for review. His

appointed appellate counsel filed a brief setting forth one assignment of error, and Parker

filed a brief setting forth three pro se supplemental assignments of error.

{¶8} In the sole assignment of error filed by counsel, Parker contends that the trial

court erred when it found it was mandatory to run the seven-year gun specification under

Count 6 consecutively with the three-year gun specification for Counts 1 when R.C.

2929.14(B)(1)(f) requires only that the seven-year gun specification be served

consecutively and prior to the underlying offense. The State concedes the error and we

agree.

We note that the court’s sentencing journal entry is incorrect regarding the firearm 2

specification sentence imposed on Count 8. On remand the trial court is ordered to correct the sentencing journal entry to correct the clerical error pursuant to Crim.R. 36. {¶9} Parker pled guilty to two counts of aggravated robbery and the attendant

three-year firearm specifications, pursuant to R.C. 2929.145. Under

2929.14(B)(1)(a)(ii), a court must impose a three-year prison term upon an offender who

is convicted of a felony and an attendant firearm specification under R.C. 2929.145.

Additionally, the mandatory three-year firearm specification must be served consecutively

and prior to any prison term imposed for the underlying felony. R.C. 2929.14(C)(1)(a).

{¶10} Parker also pled guilty to one count of felonious assault of a police officer

in violation of R.C. 2903.11(A)(2), and the corresponding three- and seven-year firearm

specifications pursuant to R.C. 2929.145 and R.C. 2929.1412 respectively. According to

2929.14(B)(1)(f), if the offender pleads to a specification under R.C. 2941.1412, the

sentencing court is required to impose a mandatory seven-year prison term, which shall

run consecutively to the sentence imposed for the underlying felony offense. See also

R.C. 2929.14(C)(1)(c). Moreover, if the court imposes the seven-year specification

relative to this offense, the court cannot impose a “prison term under division (B)(1)(a) or

(c) of this section relative to the same offense.” Therefore, the trial court was required to

merge the three-year and seven-year firearm specifications attendant to the felonious

assault offense, but order the seven-year sentence to be served consecutively and prior to

the prison term imposed for felonious assault.

{¶11} Therefore, the trial court was correct in ordering that the three-year firearm

specification be served consecutively to Count 1 and the seven-year specification

consecutively to Count 6. However, the issue before this court is whether the trial court

was then required to order that the three-year firearm specification attendant to Count 1 be served consecutively to the seven-year firearm specification attendant to Count 6.

The answer to this issue lies in R.C. 2929.14(C), which governs the imposition of

consecutive sentences for mandatory prison terms associated with various specifications,

including firearms. R.C. 2929.14(C)(1) provides:

(a) Subject to division (C)(1)(b) of this section, 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.

(b) If a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(d) of this section for wearing or carrying body armor while committing an offense of violence that is a felony, the offender shall serve the mandatory term so imposed consecutively to any other mandatory prison term imposed under that division or under division (B)(1)(a) or (c) of this section, consecutively to and prior to any prison term imposed for the underlying felony under 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.

(c) If a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(f) of this section, the offender shall serve the mandatory prison term so imposed consecutively to and prior to any prison term imposed for the underlying felony under 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. (d) If a mandatory prison term is imposed upon an offender pursuant to division (B)(7) or (8) of this section, the offender shall serve the mandatory prison term so imposed consecutively to any other mandatory prison term imposed under that division or under any other provision of law and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.

{¶12} A reading of these divisions indicate that certain firearm specifications are

required to run consecutively to each other. Specifically, in division (C)(1)(a), the

mandatory three-year specification must be ordered to run not only consecutive to the

prison term for the underlying felony, but also “consecutive to any other mandatory prison

term imposed under either division [(B)(1)(a) or (B)(1)(c)] or under division (B)(1)(d) of

[R.C. 2929.14].”

{¶13} Furthermore, division (C)(1)(b) requires that the mandatory prison term must be served consecutive to the prison term imposed for the underlying felony, but also “consecutively to any other mandatory prison term imposed under [(B)(1)(d)] or under division (B)(1)(a) or (c) of [R.C. 2929.14] * * * .”

{¶14} Additionally, division (C)(1)(d) also requires that the mandatory prison

terms imposed pursuant to R.C. 2929.14(B)(7) and (8) be served consecutively to any

other mandatory prison term under [R.C. 2929.14(B)(7) and (8)] or under any other

provision of law.

{¶15} Therefore, and unlike the divisions cited and explained above — (C)(1)(a),

(b), and (d) — division (C)(1)(c) does not have the express mandates of consecutive

sentencing to any other divisions of R.C. 2929.14(B) or any other mandatory prison

terms, except for the underlying felony. Therefore, we can only assume that the

legislature did not intend that the mandatory seven-year firearm specification was required to run consecutively to any other mandatory firearm specification or any other

mandatory prison term.

{¶16} We note that all the divisions under R.C. 2929.14(C) contain the catchall

language of “and consecutive to any other prison term or mandatory prison term

previously or subsequently imposed upon the offender.” However, it appears that this

language pertains to prior sentences or any additional sentence imposed upon an offender

unrelated to the indictment the offender is currently being sentenced on.

{¶17} While nothing in R.C. 2929.14 requires that the seven-year firearm

specification run consecutively to any other mandatory prison term, the trial court can, in

its discretion, choose to impose consecutive sentences for the underlying felonies and

attendant firearm specifications if the court deems it warranted, the proper findings are

made, and the sentence is not contrary to law. See State v. Williams, 12th Dist. No.

CA2007-12-136, 2009-Ohio-435 (court can impose prison term for gun specifications for

felonies that are not part of the same act or transaction; those sentences could be

consecutive if the offenses are not allied). But regarding the issue presented before this

court, we conclude that insofar as the trial court believed it was obligated to run the

mandatory three- and seven-year firearm specifications consecutively, the trial court’s

belief was in error.

{¶18} Also contained in this assigned error, Parker contends his plea should be

vacated because the advisement that the two firearm specifications were required to be

ordered to run consecutively was erroneous. Upon review of the record, we find that the

trial court substantially complied with Crim.R. 11 in accepting Parker’s plea. The trial court advised Parker of the maximum penalty that could be imposed on each offense.

Although the trial court advised Parker that the court was required to run the firearm

specifications consecutively, the court advised him that the court could order all the

sentences to be served consecutively, for a maximum penalty of 30 years. Accordingly,

while his plea was valid and remains intact, we sustain this assignment of error regarding

the consecutive firearm specification sentence.

{¶19} In Parker’s first pro se assignment of error, he contends that the trial court

erred when it imposed sentences on allied offenses that were subject to merger pursuant

to R.C. 2941.25. Parker argues that all the offenses are allied; thus, he should only

receive one sentence, or in the alternative, that the matter should be remanded to the trial

court for a factual inquiry whether the offenses are allied.

{¶20} The test for determining whether two or more offenses are allied under R.C.

2941.25 was redefined in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061. The Johnson court held that rather than compare the elements of the

crimes in the abstract, courts must consider the defendant’s conduct. Johnson at

syllabus. “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., quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting).

{¶21} We find that the record adequately sets forth facts that reveal that all the

offenses are not allied. “It is well-settled in this district that when an offense is defined

in terms of conduct towards another, there is dissimilar import for each person affected by the conduct.” State v. Piscura, 8th Dist. No. 98712, 2013-Ohio-1793, ¶ 17. In this case,

the victims of the aggravated robbery, who were all civilians, and the victims of the

felonious assault, who were police officers, were different victims; thus, this is sufficient

to establish the existence of a separate animus for the aggravated robbery and felonious

assault charges.

{¶22} Moreover, although the kidnapping victim was also a victim named under

the aggravated robbery count, the kidnapping of that victim was committed with a

separate animus from the aggravated robbery. Parker completed the aggravated robbery

when he held up the Family Dollar Store at gunpoint. Parker then exited the store and

took the victim hostage while he fired on police officers. This was a separate, later

offense that was committed with an animus that did not exist until Parker exited the store

and was confronted by the officers. His decision to take the victim hostage and use her

as a human shield against law enforcement officers subjected her “to an increase in the

risk of harm that was separate and apart from the aggravated robbery.” State v. Martin,

11th Dist. No. 2012-L-043, 2013-Ohio-1944, ¶ 38, citing State v. Chaffer, 1st Dist. No.

C-090602, 2010-Ohio-4471, ¶11; State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345,

syllabus (“where the asportation or restraint exposes the victims to a substantial increase

in the risk of harm separate and apart from the underlying crime of robbery, a separate

animus exists for kidnapping.”)

{¶23} Accordingly, all the offenses are not allied, the trial court did not err in

sentencing Parker for each of the offenses, and this pro se assignment of error is

overruled. {¶24} In his second pro se assignment of error, Parker contends that the trial court

abused its discretion in failing to apply the purposes and principles of felony sentencing

pursuant to R.C. 2929.11 consistent with Am.Sub.H.B. No. 86 (“H.B. 86”).

{¶25} R.C. 2929.11(A) provides that when a trial court sentences an offender for a

felony conviction, it must be guided by the “overriding purposes of felony sentencing.”

Those purposes are “to protect the public from future crime by the offender and others

and to punish the offender.” R.C. 2929.11(B) requires a felony sentence to be reasonably

calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with

and not demeaning to the seriousness of the crime and its impact on the victim and

consistent with sentences imposed for similar crimes committed by similar offenders.

{¶26} Parker was convicted of three first-degree felonies. Accordingly, his

convictions are governed by R.C. 2929.13(D)(1), which provides in part: “for a felony

of the first degree * * * it is presumed that a prison term is necessary in order to comply

with the purposes and principles of sentencing under section 2929.11 of the Revised

Code.”

{¶27} At sentencing, the trial court stated that it “had the opportunity to review the

Presentence Investigation Report, [R.C.] Sections 2929.11 for the principles and purposes

of sentencing, [R.C.] Section 2929.12 for the seriousness and recidivism factors, and

[R.C.] Section 2929.13 and other Revised Code sections for felony sentencing of the first

degree.” Moreover, the trial court’s sentencing journal entry stated that “prison is

consistent with the purpose of R.C. 2929.11.” {¶28} Contrary to Parker’s assertion, he was not sentenced to a maximum sentence

and the trial court is not required to make any specific findings or give any reasons

justifying its decision for imposing more than the minimum sentence. See R.C. 2929.11;

State v. Saunders, 8th Dist. No. 98379, 2013-Ohio-490, ¶ 4. Accordingly, his second pro

se assignment of error is overruled.

{¶29} Parker raises in his third pro se assignment of error that the trial court erred

by imposing consecutive prison terms without making the requisite statutory findings

pursuant to H.B. 86.

{¶30} H.B. 86 revived the requirement that statutory findings by the trial court are

necessary prior to imposing consecutive sentences under R.C. 2929.14(C)(4). State v.

Venes, 8th Dist. No. 98682, 2013-Ohio-1891, ¶ 4. While H.B. 86 revived the “findings”

requirement for consecutive sentences, “it did away with the requirement that the court

justify its findings by giving reasons for making those findings.” Id. at ¶ 16, citing State

v. Goins, 8th Dist. No. 98256, 2013-Ohio-263; State v. Blackburn, 8th Dist. Nos. 97811

and 97812, 2012-Ohio-4590, ¶ 35.

{¶31} Pursuant to R.C. 2929.14(C)(4) consecutive sentences can be imposed if

the court finds them “necessary to protect the public from future crime or to punish the

offender,” and that “consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public.” Finally, a

judge must find the existence of at least one of three enumerated factors under R.C.

2929.14(C)(4)(a)-(c). {¶32} This court recently restated in Venes that “[w]hen a statute directs a court to

make findings before imposing a particular sentence, a failure to make those findings is

‘contrary to law.’” Venes at ¶ 12, quoting State v. Jones, 93 Ohio St.3d 391, 399,

2001-Ohio-1342, 754 N.E.2d 1252.

Because the statute so clearly requires specific findings for the imposition of consecutive sentences, those findings must be entered at the time the court orders sentences to be served consecutively. What we mean by this is that regardless of what the trial judge might say during sentencing regarding the purposes and goals of criminal sentencing, compliance with R.C. 2929.14(C)(4) requires separate and distinct findings in addition to any findings relating to purposes and goals of criminal sentencing.

Id. at ¶ 17.

{¶33} In this case, the trial court stated,

Now let me explain a little bit here as to the sentence. Although the Defendant does not have a prior criminal — felony criminal record, you know, this is — this was a terror situation in terms of, you know, the taking of hostages, using an eighty-year-old woman as a shield against police officers, firing at police officers, placing people in danger of their lives. And this is — this is, you know, the combination of the two require, all the three cases here, require the imposition of — of prison terms that run consecutive. I believe that the harm indicated is — is not disproportionate to the sentences imposed here. And the harm is so great or unusual that the single term will not adequately reflect the seriousness of the conduct.

And although somebody’s led a fairly decent life beforehand, you know, he got himself into situations where he compounded it, you know, terrorizing an eighty-year-old woman, placing officers in fear of their lives. ***.

{¶34} Although the trial court made two of the required findings under R.C.

2929.14(C), the trial court failed to make the finding that consecutive sentences are

“necessary to protect the public from future crime or to punish the offender.” Therefore, because the trial court failed to make all the required findings under R.C. 2929.14(C)(4),

Parker’s third pro se assignment of error is sustained.

{¶35} Sentence reversed and case remanded to the trial court for resentencing for

the limited purposes of (1) conducting a resentencing with consideration that it is not

mandatory that the seven-year firearm specification run consecutive to the three-year

firearm specification; and (2) to conduct a resentencing with consideration of the required

findings under R.C. 2929.14(C)(4) if the court intends to impose consecutive sentences.

{¶36} On remand the trial court is also ordered (1) to correct the plea journal entry

to reflect that Parker pled guilty to the three-year firearm specification attendant to Count

8; and (2) to correct the sentencing journal entry to reflect that Parker pled guilty to the

three-year firearm specification on Count 8, but that the State dismissed the specification

at sentencing; thus, no firearm specification sentence should have been imposed on Count

8.

It is ordered that the parties share equally in 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. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for resentencing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE

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