[Cite as State v. Reed, 2013-Ohio-3302.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 12AP080049 : RUSSELL J. REED : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2012 CR 03 0062
JUDGMENT: AFFIRMED IN PART: REVERSED IN PART, AND REMANDED
DATE OF JUDGMENT ENTRY: July 19, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RYAN STYER GEORGE URBAN TUSCARAWAS CO. PROSECUTOR 116 Cleveland Ave. NW MICHAEL J. ERNEST Suite 808 125 East High Ave. Canton, OH 44702 New Philadelphia, OH 44663 Tuscarawas County, Case No.12AP080049 2
Delaney, J.
{¶1} Appellant Russell J. Reed appeals from the judgment entries of conviction
and sentence in the Tuscarawas County Court of Common Pleas. Appellee is the State
of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on February 22, 2012, when Bobby Beller stole heroin
from appellant, his dealer. Appellant subsequently hunted down Beller and fired three
shots into the vehicle in which Beller was riding, striking both Beller and John Lineberry.
Bobby Beller Steals Heroin from Appellant
{¶3} Bobby Beller is an admitted heroin addict with a felony criminal history
who lives in New Philadelphia, Ohio. For several months in late 2011 and early 2012,
he bought his heroin daily or every other day from appellant, whom he knew as “J.R.”
and who lived in an apartment behind the Dairy Queen in New Philadelphia. Beller and
appellant had a deal whereby Beller would tattoo appellant in exchange for heroin.
{¶4} John Lineberry is described as an “independent taxi driver” who does not
use drugs himself but would ferry drug users about their daily errands in his vehicle, no
questions asked. Lineberry routinely gave Beller rides to appellant’s apartment but did
not go inside. Lineberry and appellant never met face to face.
{¶5} Around 10:00 a.m. on February 22, 2012, Beller stopped by appellant’s
apartment. A number of other drug users were present, including Toni Quillen and Cole
Hurst. At some point, appellant dropped a bag of heroin and didn’t realize some fell out.
Beller grabbed a quantity of heroin, observed by both Quillen and Hurst but unnoticed Tuscarawas County, Case No.12AP080049 3
by appellant. Beller and Quillen left the apartment hurriedly, claiming they were leaving
to pick up guns from Quillen’s boyfriend to exchange for more heroin.
{¶6} Beller and Quillen got into Lineberry’s car, a green Ford Taurus. Beller
and Quillen used some of the stolen heroin. Lineberry dropped Beller off at Wal-Mart,
then took Quillen home to her apartment. Lineberry then returned to Wal-Mart to pick
up Beller. Lineberry drove and Beller sat in the front passenger seat. All of the car
windows were up because it was very cold outside.
{¶7} In the meantime, appellant realized some of his “dope” was missing and
suspected either Beller or Quillen had taken it. Appellant repeatedly called Beller on his
cell phone, but Beller only answered once. Appellant asked if Beller and Quillen were
returning to the apartment, and Beller said yes, but in fact he had no intention of
returning. Beller ignored the rest of appellant’s calls because he had the “sense”
appellant knew some of his dope was missing and was trying to track it down.
{¶8} Toni Quillen called appellant as soon as Lineberry dropped her off at
home to tell him it was Beller who stole the heroin. Appellant was very angry and she
wanted to make sure he knew she didn’t take it. Appellant later called Quillen back,
looking for Beller. Appellant also used Cole Hurst to track down Beller, promising him
drugs if Hurst could find Beller and reveal his whereabouts. Hurst was able to reach
Beller on his cell phone, found out he was at Wal-Mart, and reported this information
back to appellant.
Beller and Lineberry are Shot in the Parking Lot
{¶9} Upon leaving Wal-Mart, Lineberry drove Beller back to Lineberry’s
apartment complex in the 1000 block of Maple Avenue and pulled into the parking lot. Tuscarawas County, Case No.12AP080049 4
Lineberry parked the car and turned it off. Beller began to gather his grocery bags
when something caught his eye in his peripheral vision. He looked up and saw
appellant outside the car, with a gun pointed at Beller’s face. Suddenly there was a
“pop” and the window broke.
{¶10} Beller scrambled from his spot in the front passenger seat across the
console, into the back seat, and out the rear driver’s-side door as appellant fired more
shots. In the meantime, Lineberry was already out of the car, lying on the ground.
Beller crawled on top of him. When the shots stopped, Beller waited a moment and
then got up in time to see appellant running away. Beller attempted to chase after
appellant, but realized he had been shot in the left leg. The bullet went completely
through Beller’s leg, entering his mid-thigh below his jeans pocket and exiting through
the cheek of his left buttock. When paramedics cut his pants off to treat him, the bullet
rolled out of his pant leg and was recovered for evidence.
{¶11} Lineberry was also shot. A bullet struck him in the right leg behind his
knee, and passed completely through the leg. Lineberry’s injury required surgery and
extensive aftercare in a nursing home for over four months.
{¶12} Beller and Lineberry were able to make their way into Lineberry’s
apartment and his roommate called 911.
The Neighborhood Reacts
{¶13} Two independent witnesses observed the aftermath of the shootings.
Wayne Everhart was changing a gas tank at his workplace when he heard a pop,
followed by two more pops. He realized the sound was gunfire, and seconds later saw
a man run up the sidewalk, talking into a cell phone, wearing a brown hoodie. Everhart Tuscarawas County, Case No.12AP080049 5
heard the man say “he” shot “him” several times. Everhart called 911. Nancy Charnock
was returning from her lunch break, heading west on Maple Avenue, when she heard
“pop, pop” and saw a man in a brown hoodie running up the street. Everhart continued
to drive past the parking lot of the apartment complex, and saw one man trying to help
another man up off of the ground. Charnock asked if the men needed help and they
said no. She then saw blood running down one man’s pant leg, and drove off.
Charnock called 911 upon her return to her office.
{¶14} Deputy Matt Stein of the Tuscarawas County Sheriff’s Office was in the
vicinity of the shootings and was dispatched to Maple Avenue. He saw kids outside at
an elementary school playground very close to the scene of the reported shooting, and
knew the gunman had not yet been located. Stein directed school authorities to lock
down the school. Stein then walked through the playground and down an alley. Within
200 feet of the playground, Stein discovered a black handgun lying on the ground in the
yard of a residence on Grant Street.
{¶15} Appellant’s DNA was found on the 9-millimeter Hi-Point semi-automatic
pistol found near the school. This weapon was determined to have fired the two bullet
jackets recovered at the scene in the parking lot.
Appellant Testifies at Trial
{¶16} Appellant testified on his own behalf at trial, largely confirming the
testimony of appellee’s witnesses and adding the detail that he committed the shootings
while he was high.
{¶17} Appellant stated he is from Detroit and freely admitted he came to New
Philadelphia for the purpose of selling drugs. On February 22, 2012, he was so busy Tuscarawas County, Case No.12AP080049 6
cutting up drugs for his customers, and doing drugs himself, that he didn’t realize his
heroin stash dropped out of his basketball shorts and Beller took $600 worth of it.
Appellant stated he was “popping pills,” smoking marijuana, and drinking beer on the
morning of February 22. He thought it was strange when Beller and Quillen took off
because Beller was supposed to give appellant a tattoo. “Chaz,” another drug user
present in the apartment, told appellant he saw Beller take some heroin, so appellant
began to track appellant down. Beller wouldn’t answer appellant’s calls, so he used
“Chaz’s” phone to call and Beller answered. Appellant asked Beller when he was
coming back and Beller claimed he would return soon with some guns Quillen had
planned to trade for heroin. Appellant kept asking Beller where he was but Beller
wouldn’t answer the question.
{¶18} Appellant testified he told Cole Hurst to find out where Beller was and in
exchange he would “throw him some dope.” Hurst determined Beller was at Wal-Mart,
so appellant went there first and scoured the aisles, looking for him. He eventually
tracked Beller to a Dollar Store and then followed Lineberry’s green Taurus to the
apartment complex parking lot on Maple Avenue. He watched Beller and Lineberry
gather bags of groceries and prepare to exit the car.
{¶19} Appellant claimed he ran up to the car when Beller’s door was open,
pointed the gun down at Beller’s leg, and fired. The car door closed so “[he] popped the
glass out the door then I s—then he started scramblin’ and he jumped on Mr. John
Lineberry towards his way and I shot another shot at him and I believe he scrambled to
the back and got in the back and I shot another shot towards his leg and I ran after Tuscarawas County, Case No.12AP080049 7
that.” (T. 457). Appellant claimed he only wanted to injure Beller, not kill him, because
“if I’d wanted to kill him, I could have.”
{¶20} Upon cross-examination, appellant admitted he was under the influence of
narcotics, marijuana, and beer on the morning of February 22, and he was “really mad”
at Beller; he knew he was going to shoot him. Appellant did tell Cole Hurst in reference
to Beller, “I’m going to pop his bitch ass,” but he meant he would scare Beller, not kill
him.
Indictment, Conviction, and Sentence: Strife between Appellant and Defense Trial Counsel
{¶21} Appellant was charged by indictment with two counts of attempted murder
pursuant to R.C. 2923.02(A) and R.C. 2903.02(A), both felonies of the first degree, and
both with gun specifications pursuant to R.C. 2941.145; two counts of felonious assault
pursuant to R.C. 2903.11(A)(2), both felonies of the second degree and both with gun
specifications pursuant to R.C. 2941.145; and three counts of drug trafficking pursuant
to R.C. 2925.03(A), all felonies of the fifth degree.
{¶22} Appellant entered pleas of not guilty and counsel was appointed to
represent him.1 A jury trial was scheduled for July 11, 2012, and on July 9, 2012, a final
pretrial was held, during which defense trial counsel stated he had visited appellant in
jail and appellant wanted him to withdraw from the case.
{¶23} Appellant stated he felt defense counsel was working with the prosecution
and not advocating for him effectively because no suppression motion was filed and
defense counsel didn’t seek to have the judge recuse herself. When the trial court
inquired further, appellant stated he heard talk at the jail about the judge making an
1 Attorney Matthew Petit. Tuscarawas County, Case No.12AP080049 8
example of another defendant during sentencing; he asked counsel to bring him a
newspaper article about the judge’s comment but counsel had not done so. The trial
court stated she was not inclined to permit counsel to withdraw two days before trial
unless another attorney entered a notice of appearance.
{¶24} The case proceeded to jury trial. During a break in the trial, the issue of
appellant’s rejection of defense trial counsel arose again. The trial court asked
appellant to specify what he didn’t like about his attorney, and appellant stated he didn’t
like being characterized as though he was a “ruthless animal” over dope and did not
approve of counsel’s opening statement. Appellant’s claim was that he didn’t intend to
kill Bobby Beller, only to wound or scare him because Beller had stolen his dope. The
trial court noted this was exactly the thrust of counsel’s opening statement. Defense
trial counsel noted he tried repeatedly in the weeks preceding trial to get appellee to
reduce the charges from attempted murder to felonious assault and/or to offer less than
twenty years in prison, but appellee was unwilling to do so.
{¶25} Appellant again raised counsel’s decision not to file a motion to suppress.
Counsel noted he reviewed videos of taped drug buys with appellant and appellant was
not willing to watch the videos in their entirety. Defense trial counsel stated he could
find no arguable basis for a suppression motion, and therefore had not filed one.
{¶26} Finally, defense trial counsel noted that although the trial was in its early
stages, appellant insisted on testifying despite being strongly advised against doing so.
{¶27} The trial court found there was not a complete breakdown in the attorney-
client relationship and no irreconcilable conflict between appellant and defense trial
counsel. Counsel was still willing to proceed with trial, his opening statement was Tuscarawas County, Case No.12AP080049 9
consistent with the theory of the case appellant wanted to argue, and new counsel was
not retained. The trial court noted appellant’s objection for the record and the trial
continued.
{¶28} Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the
close of appellee’s evidence and at the close of all of the evidence, and the motions
were overruled. Appellant was found guilty as charged.2 Appellee acknowledged the
counts of felonious assault merge with the counts of attempted murder, and elected to
sentence on the two counts of attempted murder plus firearm specifications and the
three counts of drug trafficking. The trial court sentenced appellant to consecutive
prison terms of ten years on each count of attempted murder, three years on each
firearm specification, and 12 months on each count of drug trafficking, for an aggregate
prison term of 29 years.
{¶29} Appellant now appeals from the judgment entry of his conviction and
sentence.
{¶30} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶31} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶32} “II. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND
OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
2 Prior to trial, appellant had entered pleas of guilty to the three counts of drug trafficking. Tuscarawas County, Case No.12AP080049 10
ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.”
{¶33} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
PERMITTING APPELLANT TO HAVE NEW TRIAL COUNSEL.”
{¶34} “IV. THE TRIAL COURT ERRED BY NOT MERGING THE SENTENCES
FOR THE FIREARM SPECIFICATIONS.”
ANALYSIS
I.
{¶35} In his first assignment of error, appellant asserts that his convictions for
two counts of attempted murder are not supported by sufficient evidence and are
against the manifest weight of the evidence.3 We disagree.
{¶36} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution, any
3 Appellant does not challenge his convictions upon two counts of felonious assault plus gun specifications nor three counts of drug trafficking. Tuscarawas County, Case No.12AP080049 11
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.”
{¶37} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶38} Appellant was found guilty of two counts of attempted murder pursuant to
R.C. 2923.02 and R.C. 2903.02, which, to paraphrase, prohibit any person from
purposely engaging in conduct that, if successful, would cause the death of another.
Appellant’s specific challenge to the manifest weight and sufficiency of the evidence on
appeal is similar to his argument at trial: he had no intention of killing Beller or Lineberry
and appellee failed to prove otherwise. We find, though, that the record contains
sufficient evidence of attempted murder of both victims, and appellant has failed to
establish the jury lost its way in considering the evidence.
{¶39} The most compelling evidence in support of appellant’s convictions is the
fact that he approached a car with two people inside and point-blank fired three shots
into it with a semi-automatic firearm. We have only appellant’s self-serving testimony
that Beller’s car door was open when appellant fired the first shot, allegedly allowing him Tuscarawas County, Case No.12AP080049 12
to fire at Beller’s legs. The physical evidence discounts appellant’s testimony.
Appellant admitted he continued to shoot at Beller as he scrambled to get out of the car.
Appellee’s crime scene investigator suggested that the evidence showed one of the
three shots in fact struck the pillar of the vehicle, near where Beller’s head would have
been. If only three shots were fired, the physical evidence establishes the first shot was
most likely fired into the pillar, Beller started climbing over the seat, and two more shots
were fired, one of which struck Beller in the left leg and one which struck Lineberry. The
physical evidence therefore belies appellant’s account of a more deliberate, cautious,
aimed attack.
{¶40} Appellant’s own testimony about his drug and alcohol use on the day of
the shootings is impossible to reconcile with his argument as well. Appellant argues he
was such a good shot that he was able to deliberately strike two men in the legs as they
moved about inside and clambered out of a vehicle, and yet he was, by his own
account, under the influence of narcotics, marijuana, and beer while doing so.
{¶41} Appellant’s claim that he merely sought to scare or warn Beller is also
undermined by his actions in the immediate aftermath of discovering some of his dope
had been stolen. Other users rushed to tell appellant Beller stole the dope to deflect
blame from themselves, and he became enraged. He told Cole Hurst he wanted to
shoot Beller. In his statement to police, he admitted that he wanted to “fuck [Beller] up.”
In light of the circumstances surrounding the shootings, the jury could reasonably find
appellant acted with purpose to cause the deaths of Beller and Lineberry.
{¶42} Appellant’s convictions are not against the manifest weight or sufficiency
of the evidence and appellant’s first assignment of error is overruled. Tuscarawas County, Case No.12AP080049 13
II.
{¶43} In his second assignment of error, appellant argues he received
ineffective assistance of trial counsel. We disagree.
{¶44} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such
claims, “a court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,
101, 76 S.Ct. 158 (1955).
{¶45} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted
“outside the wide range of professionally competent assistance.” Id. at 690.
{¶46} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Tuscarawas County, Case No.12AP080049 14
Matters outside the Record
{¶47} Appellant alleges a number of bases for ineffective assistance which are
outside the record. He claims counsel did not view all of the discovery, that he argued
with counsel the day before trial, and that his poor relationship with counsel affected his
preparedness for testifying in his own defense.
{¶48} We have previously noted, however, that where an ineffective assistance
of counsel claim cannot be supported solely on the trial court record, it should not be
brought on direct appeal. State v. Radel, 5th Dist. No. 2009-CA-00021, 2009-Ohio-
3543, ¶ 15, citing State v. Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983);
See, State v. Leeper, 5th Dist. No. 2004CAA07054, 2005-Ohio-1957; State v. Fryer, 90
Ohio App.3d 37, 627 N.E.2d 1065 (8th Dist.1993). In Cooperrider, the Ohio Supreme
Court held that where an appellant alleges matters outside the record as the basis for a
claim of ineffective assistance of counsel, the proper procedure is not direct appeal but
the post conviction remedies of R.C. 2953.21, which permit an appellant to present
evidence of counsel’s ineffectiveness at a hearing before the trial court. Id. See also,
State v. Barnett, 73 Ohio App.3d 244, 249, 596 N.E.2d 1101(1991); State v. Day,
Cuyahoga App. No. 89777, 2008-Ohio-4122 at ¶ 42.
{¶49} In the instant case, the discussions between appellant and trial counsel
took place off the record, although the trial court and the parties went to great lengths to
document appellant’s complaints. There is no evidence in the record from which we can
find that trial counsel did not show appellant the entire discovery, or argued with his
client to the extent that the attorney-client relationship was irretrievably broken.
Because a determination of this portion of appellant's claim of ineffective assistance of Tuscarawas County, Case No.12AP080049 15
counsel involves facts outside the record, appellant's argument concerning his alleged
conflicts with defense counsel must fail on direct appeal. Radel, supra 2009-Ohio-3543
at ¶ 17.
Failure to Object to Consecutive Sentence on Gun Specifications
{¶50} Appellant further argues counsel was ineffective in failing to object to the
trial court’s decision to run the sentences on the gun specifications concurrently. Based
on our discussion infra in appellant’s fourth assignment of error, we find this issue to be
moot.
{¶51} Appellant’s second assignment of error is therefore overruled.
III.
{¶52} In his third assignment of error, appellant argues the trial court erred in not
appointing new counsel two days prior to trial. We disagree.
{¶53} We have noted the right to competent counsel does not require that a
criminal defendant develop and share a “meaningful relationship” with his attorney.
State v. Swogger, 5th Dist. No. 2011-CA-007, 2011-Ohio-5607, ¶ 12, citing Morris v.
Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).
{¶54} In the context of reviewing a claim by a defendant that the trial court
abused its discretion by overruling the defendant's request to discharge court-appointed
counsel and to substitute new counsel, courts have taken the approach that the
defendant must show a complete breakdown in communication in order to warrant a
reversal of the trial court's decision. Swogger, supra, 2011-Ohio-5607 at ¶ 13. Hostility,
tension, or personal conflicts between an attorney and a client that do not interfere with
the preparation or presentation of a competent defense are insufficient to justify a Tuscarawas County, Case No.12AP080049 16
change in appointed counsel. See State v. Henness, 79 Ohio St.3d 53, 65–66, 679
N.E.2d 686 (1997). Furthermore, “[m]erely because appointed counsel's trial tactics or
approach may vary from that which appellant views as prudent is not sufficient to
warrant the substitution of counsel.” State v. Glasure, 132 Ohio App.3d 227, 239, 724
N.E.2d 1165 (7th Dist.1999); State v. Evans, 153 Ohio App.3d 226, 2003–Ohio–3475,
792 N.E.2d 757, ¶ 31 (7th Dist.); State v. Newland, 4th Dist. No. 02CA2666, 2003–
Ohio–3230 at ¶ 11.
{¶55} A defendant has no constitutional right to determine trial tactics and
strategy of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999);
State v. Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842 N.E.2d 996, ¶ 150; State v.
Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007–Ohio–1557, ¶ 183 (11th Dist.).
Rather, decisions about viable defenses are the exclusive domain of defense counsel
after consulting with the defendant. Id. When there is no demonstration that counsel
failed to research the facts or the law or that counsel was ignorant of a crucial defense,
a reviewing court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio
St.2d 45, 49, 402 N .E.2d 1189 (1980), citing People v. Miller, 7 Cal.3d 562, 573–574,
102 Cal.Rptr. 841, 498 P.2d 1089 (1972); State v. Wiley, 10th Dist. No. 03AP–340,
2004–Ohio–1008, ¶ 21.
{¶56} In the instant case, appellant has not established that appointment of new
counsel was warranted. Our review of the record indicates trial counsel’s strategy was
consistent with the defense appellant wanted him to pursue: he didn’t intend to kill the
victims, only to “frighten” Beller or shoot him in the leg. Appellant argues he didn’t have
enough time to discuss his testimony with counsel, and their relationship made Tuscarawas County, Case No.12AP080049 17
discussion difficult, but it is evident from the record counsel strongly advised appellant
against testifying but appellant disregarded the advice. Appellant then proceeded to
admit to drug and alcohol use on the day of the offense, among other damaging
admissions. In light of the evidence at trial, we find no demonstration that counsel failed
to research the facts or the law or was ignorant of a crucial defense.
{¶57} Appellant has failed to demonstrate a complete breakdown in
communication which would have required the trial court to appoint new counsel.
Appellant’s third assignment of error is overruled.
IV.
{¶58} In his fourth assignment of error, appellant argues his convictions and
sentences upon the two firearms specifications should have merged. We agree.
{¶59} Appellant noted in his second assignment of error that no objection was
raised to the trial court’s decision to sentence appellant consecutively on the two
firearms specifications. We find the decision to be reviewable as plain error. See, State
v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923.
{¶60} R.C. 2929.14(B)(1) states in pertinent part:
(a) Except as provided in division (B)(1)(e) of this section, if an
offender who is convicted of or pleads guilty to a felony also is
convicted of or pleads guilty to a specification of the type described
in section 2941.141, 2941.144, or 2941.145 of the Revised Code,
the court shall impose on the offender one of the following prison
terms:
* * * *. Tuscarawas County, Case No.12AP080049 18
(ii) A prison term of three years if the specification is of the type
described in section 2941.145 of the Revised Code that charges
the offender with having a firearm on or about the offender's person
or under the offender's control while committing the offense and
displaying the firearm, brandishing the firearm, indicating that the
offender possessed the firearm, or using it to facilitate the offense;
* * * *.
(b) If a court imposes a prison term on an offender under division
(B)(1)(a) of this section, the prison term shall not be reduced
pursuant to section 2967.19, section 2929.20, section 2967.193, or
any other provision of Chapter 2967 or Chapter 5120 of the
Revised Code. Except as provided in division (B)(1)(g) of this
section, a court shall not impose more than one prison term on an
offender under division (B)(1)(a) of this section for felonies
committed as part of the same act or transaction.
{¶61} Both parties have directed us to State v. Stevens, in which the Second
District Court of Appeals examined merger of firearm specifications in the context of
whether an offender committed multiple acts with a common purpose, rarely an easy
question when an offender has committed multiple offenses against multiple victims.
179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037 (2nd Dist.). The question is
whether the offenses were committed with a single objective for the purposes of R.C.
2929.14(B)(1)(b), and upon our review of the record, we find appellant committed the Tuscarawas County, Case No.12AP080049 19
offenses as part of the same act or transaction, and the trial court should therefore have
merged the firearms specifications for sentencing. As in Stevens, the evidence does
not support the conclusion that appellant had targeted each victim individually. Id.
{¶62} Appellant’s fourth assignment of error is sustained.
CONCLUSION
{¶63} Having overruled appellant’s first, second, and third assignments of error,
and sustained his fourth assignment of error, we hereby remand this matter to the trial
court for further proceedings consistent with this opinion.
By: Delaney, J. and
Hoffman, P.J.
Wise, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE