State v. Snowden

2020 Ohio 5412

• Court: Ohio Court of Appeals
• Decided: November 25, 2020
• Docket: 28608
• Status: Published

Opinion

[Cite as State v. Snowden, 2020-Ohio-5412.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28608 : v. : Trial Court Case No. 2016-CR-1809 : DEONTE DWAYNE SNOWDEN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 25th day of November, 2020.

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOE CLOUD, Attorney Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio 45432 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-Appellant, Deonte Dwayne Snowden, appeals from his

resentencing following a remand from our court in State v. Snowden, 2019-Ohio-3006,

140 N.E.3d 1112 (2d Dist.). Specifically, we sustained the fifth of Snowden’s nine

assignments of error and remanded the case so the trial court could “orally make the

additional findings to support the imposition of consecutive sentences.” Id. at ¶ 80.

{¶ 2} On April 7, 2020, Snowden’s appellate counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that

he found no potential assignments of error having arguable merit. Counsel, therefore,

asked us to conduct an independent review of the record to decide if there were any

meritorious issues to present on appeal. Counsel did not suggest any possible issues.

{¶ 3} On April 9, 2020, we notified Snowden that his appellate counsel was unable

to find any meritorious claims to present for review and granted him leave to file a pro se

brief within 60 days. On April 14, 2020, the State filed a response to the Anders brief

and asked for an opportunity to respond if we found an appealable issue and appointed

new counsel.

{¶ 4} On September 1, 2020, Snowden filed a pro se brief, raising two assignments

of error. The State then filed a notice on September 14, 2020, stating that it did not

intend to respond to Snowden’s pro se brief. However, as before, the State indicated

that it would like a chance to respond if we found an appealable issue and appointed new

counsel.

{¶ 5} After reviewing the record and conducting our independent Anders review,

we find no issues with arguable merit for Snowden to advance on appeal. Accordingly,

the judgment of the trial court will be affirmed. -3-

I. Factual Background

{¶ 6} In July 2018, a jury found Snowden guilty of several offenses, including two

counts of murder, two counts of felonious assault, one count of having weapons while

under disability, and one count of bribery (corrupting a witness). The murder and

felonious assault charges had firearm specifications as well. All the charges except the

bribery offense were related to the June 6, 2016 murder of William Sarver. Snowden,

2019-Ohio-3006, 140 N.E.3d 1112, at ¶ 1 and 13-14.

{¶ 7} Previously, the jury in Snowden’s initial trial had been unable to reach a

verdict, and the court had declared a mistrial. Id. at ¶ 12. After that trial, it was

discovered that Snowden had offered one witness money to provide favorable trial

testimony and had asked another witness to change her testimony. Id. at ¶ 14. This

resulted in a “B Indictment,” charging Snowden with one count of bribery. As described

above, the second trial in July 2018, involving all charges in the A and B indictments,

resulted in guilty verdicts on all counts, except the charge of having weapons under

disability. The court held a bench trial on that charge and found Snowden guilty. Id. at

¶ 15.

{¶ 8} At the August 7, 2018 sentencing hearing, the trial court merged the two

murder counts as well as the two felonious assault counts. In addition, the court merged

all the accompanying firearm specifications. The State then elected to proceed on

murder as charged in Count I, which carried a mandatory sentence of 15 years to life in

prison. The court also sentenced Snowden to three years in prison for having weapons

under disability, to be served concurrently to the murder sentence. Finally, the court -4-

sentenced Snowden to three years in prison on the bribery conviction and to three years

for the firearm specification, both of which were to be served consecutively to the murder

sentence. Thus, Snowden’s aggregate sentence was 21 years to life in prison. Id.

{¶ 9} As indicated, Snowden appealed to our court, raising nine assignments of

error. These matters included: (1) error in overruling Snowden’s motion to suppress; (2)

error in overruling the motion to sever the bribery count from the trial for the other

offenses; (3) error in various evidentiary rulings; (4) a claim the verdict was against the

manifest weight of the evidence; (5) failure to make the findings needed for imposing

consecutive sentences; (6) error in imposing restitution; (7) ineffective assistance of

counsel; (8) prosecutorial misconduct; and (9) cumulative error. Snowden, 2019-Ohio-

3006, 140 N.E.3d 1112, at ¶ 17, 43, 52, 66, 75, 82, 97, 106, and 119. We overruled all

the assignments of error other than the sentencing error, and remanded the case to the

trial court for resentencing. Id. at ¶ 77-81 and 123.

{¶ 10} After the case was remanded, the trial court held a new sentencing hearing

on February 21, 2020, and reimposed the same sentence, including consecutive

sentences on the firearm specification and bribery convictions, for a total sentence of 21

years to life in prison. Snowden then filed a timely appeal from the court’s judgment.

II. Anders Standards

{¶ 11} Under Anders, we must conduct an independent review of the record to

decide if an appeal is “wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18

L.Ed.2d 493. See also Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300

(1988). If we decide an appeal is frivolous, we may grant counsel’s request to withdraw -5-

and then dismiss the appeal without violating any constitutional requirements; we can

also decide the case on the merits if state law requires it. State v. McDaniel, 2d Dist.

Champaign No. 2010-CA-13, 2011-Ohio-2186, ¶ 5, citing Anders at 744. However, if we

find that any issue involves “legal points that are arguable on their merits, and therefore

are not wholly frivolous, * * * we must appoint other counsel to argue the appeal.” State

v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 2, citing Anders at 744.

{¶ 12} “Anders equates a frivolous appeal with one that presents issues lacking in

arguable merit. An issue does not lack arguable merit merely because the prosecution

can be expected to present a strong argument in reply, or because it is uncertain whether

a defendant will ultimately prevail on that issue on appeal. An issue lacks arguable merit

if, on the facts and law involved, no responsible contention can be made that it offers a

basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242,

¶ 8, citing Pullen.

III. Potential Issues

{¶ 13} After conducting an independent review of the record pursuant to Anders,

we agree with Snowden’s appellate counsel that, based on the facts and relevant law,

there are no issues with arguable merit to present on appeal. Snowden’s case was

remanded solely because the trial court failed to comply with the requirements for

imposing consecutive sentences. In this regard, we commented that:

Initially, we note that the trial court incorporated the requisite findings

for the imposition of consecutive sentences into Snowden's judgment entry

pursuant to R.C. 2929.14(C)(4). The State concedes, however, that the -6-

trial court failed to make the requisite findings for imposing consecutive

sentences at Snowden's sentencing hearing. At Snowden's sentencing

hearing, the trial court stated the following with respect to the imposition of

consecutive sentences:

The State: And I believe the Court needs to make the

consecutive findings on the record for those sentences for Count

I, and again the B indictment, based on its additional three years

to run consecutive.

The Court: Well, the Court – thank you. The Court finds that

consecutive sentences are necessary to punish the Defendant for

the activities in which he has engaged, particularly with regard to

the bribery which was consecutive – the Court finds that is the

worst form of that offense and consecutive sentencing is

necessary then to punish the Defendant for that.

***

Although the trial court explicitly state[d] that consecutive sentences

were necessary to punish Snowden, the trial court did not find that

consecutive sentences were not disproportionate to the seriousness of the

offender's conduct and to the danger the offender posed to the public.

Additionally, the trial court's statement does not contain any of the requisite

findings set forth in R.C. 2929.14(C)(4)(a)-(c). Accordingly, the trial court's

findings at the sentencing hearing were not consistent with the judgment

entry. Therefore, the case will be remanded to the trial court for it to orally -7-

make the additional findings to support the imposition of consecutive

sentences.

(Emphasis sic.) Snowden, 2019-Ohio-3006, 140 N.E.3d 1112, at ¶ 79-80.

{¶ 14} When the new sentencing hearing was held on September 10, 2019, the

trial court stated as follows:

The Court: * * * The Court has reviewed – well, reviewed again the

presentencing investigation report provided by the Division of Criminal

Justice Services in this case and has considered it in connection with its

sentencing hearing and decision. Considering the principles and purposes

of sentencing in the revised code, the seriousness and recidivism factors

contained therein, it’s the judgment and sentence of this Court that

Defendant, Deonte Dwayne Snowden, be sentenced to the Ohio

Department of Rehabilitation and Correction as follows:

As to Counts I and III, this Court finds that those merge, and the State

has opted for sentencing on Count I. That sentence is fifteen years to life,

together with a three-year firearm specification. And the Court finds that

Counts II and IV merge, together with their firearm specifications. The

State – and merged with Count I.

So as to the A indictment, again, a mandatory fifteen years to life with

a three-year firearm specification. As to Count V, three years to run

concurrently to Count I.

So as to the B indictment, three years to run consecutively to Count

I, the Court finding that consecutive sentencing is required to protect the -8-

public from future crime and to punish the offender, that consecutive

sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger * * * the offender poses to the public, and that at

least two of the multiple offenses were committed as part of one or more

courses of conduct. And the harm posed by two or more of the multiple

offenses so committed was so great or unusual that no single prison term

for any of the offenses committed, as part of the course of conduct,

adequately reflect the seriousness of the offender’s conduct.

Transcript of Proceedings (Resentencing Hearing) (“Tr.), p. 6-8.

{¶ 15} The court then filed a nunc pro tunc judgment entry on October 16, 2019,

reflecting the court’s findings and imposing, as before, an aggregate prison term of 21

years to life.

{¶ 16} Our review indicates that the trial court corrected the error we found, and

any arguments in that respect are wholly frivolous. Nonetheless, Snowden has

presented two proposed assignments of error. We will discuss them separately.

A. Requirement of Findings

{¶ 17} The first proposed assignment of error states:

The Nunc Pro Tunc Termination Entry of the Trial Court Is in Violation

of the Due Process and Equal Protection Clauses of the United States and

Ohio Constitution, Where the Trial Record Does Not Support the

Sentencing Court’s Findings Under the Protected Liberty Interest of Ohio

Revised Code Section 2929.14(C). -9-

{¶ 18} Under this proposed assignment of error, Snowden contends that the trial

court merely made a “rote reading” of the statutory language in R.C. 2929.14(C) at the

sentencing hearing, without stating the required findings. Snowden also argues that he

was not convicted of multiple courses of conduct; instead, his conviction for bribery arose

from events that occurred months later.

{¶ 19} As to the first point, the Supreme Court of Ohio has held that “[i]n order to

impose consecutive terms of imprisonment, a trial court is required to make the findings

mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings

into its sentencing entry, but it has no obligation to state reasons to support its findings.”

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Accord

State v Bustos, 2d Dist. Miami No. 2019-CA-19, 2020-Ohio-5028, ¶ 11. The trial court

here did all that was required under the law and by our remand.

{¶ 20} Concerning Snowden’s second point, committing a second crime (bribery)

is the very meaning of multiple courses of conduct. The fact that both crimes were

connected is irrelevant. Furthermore, the crime was committed while Snowden was in

jail awaiting trial for murder, and he attempted to bribe witnesses to the murder.

{¶ 21} Based on the preceding discussion, Snowden’s arguments regarding this

issue are wholly frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493.

B. Alleged Ineffective Assistance of Counsel

{¶ 22} Snowden’s second proposed assignment of error states:

Appellant Was Denied Effective Assistance of Counsel, as

Guaranteed by the Sixth Amendment to the United States Constitution, -10-

Where His Trial Counsel Was Ineffective for Failing to Object to the

Imposition of a Consecutive Sentence Contrary to Law.

{¶ 23} Concerning this proposed assignment of error, Snowden contends that trial

counsel rendered ineffective assistance because he failed to object to the trial court’s

failure to make adequate findings. Given our previous discussion, this argument is

wholly frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493.

{¶ 24} Snowden’s second point is that his trial counsel was ineffective because he

failed “to direct the trial court’s attention to the underlying facts of the case, as well as the

information set forth in the presentence investigation, which unequivocally demonstrates

that the trial court’s findings were unsupported by the record.” Merit Brief of Deonte

Dwayne Snowden, p. 6.

{¶ 25} “In order to prevail on a claim of ineffective assistance of counsel, the

defendant must show both deficient performance and resulting prejudice.” State v.

Matthews, 189 Ohio App.3d 446, 2010-Ohio-4153, 938 N.E.2d 1099, ¶ 39 (2d Dist.), citing

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Trial

counsel is entitled to a strong presumption that his conduct falls within the wide range of

effective assistance, and to show deficiency, the defendant must demonstrate that

counsel's representation fell below an objective standard of reasonableness.” Id.

{¶ 26} Furthermore, “[t]he adequacy of counsel's performance must be viewed in

light of all of the circumstances surrounding the trial court proceedings.” State v.

Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland.

“Hindsight may not be allowed to distort the assessment of what was reasonable in light

of counsel's perspective at the time.” Id., citing State v. Cook, 65 Ohio St.3d 516, 524, -11-

605 N.E.2d 70 (1992).

{¶ 27} “Even assuming that counsel's performance was ineffective, this is not

sufficient to warrant reversal of a conviction. ‘An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the

error had no effect on the judgment.’ ” State v. Bradley, 42 Ohio St.3d 136, 142, 538

N.E.2d 373 (1989), quoting Strickland at 691. “To warrant reversal, ‘[t]he 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. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’ ” Id., quoting Strickland

at 694.

{¶ 28} Before Snowden was sentenced the first time, the State filed a sentencing

memorandum, seeking the maximum term of imprisonment for the charges – 24 years to

life. See State’s Sentencing Memorandum (August 2. 2018), p. 1. In discussing its

reasoning, the State noted that Snowden had accelerated a dispute and had shot a family

friend in front of his aunt and young cousins, who witnessed the friend dying. Id. at p. 2-

3. Snowden then fled the scene and disposed of the gun and his cell phone in order to

escape detection. Id. at p. 3. He also attempted to disguise his car and fled to Arizona,

where he was located four months later. Id. While Snowden was in jail, he contacted a

cousin shortly before his trial and offered him $2,500 to lie and tell the jury that he did not

recall what had happened. Id. at p. 3-4.

{¶ 29} Before Snowden was sentenced, the trial court also reviewed the

presentence investigation report (“PSI”), which revealed that Snowden, who was then 36

years old, had an extensive criminal record beginning when he was a juvenile. -12-

Snowden’s first offense as a juvenile was a domestic violence charge that occurred when

he was 16. PSI, p. 2. Shortly thereafter, Snowden was charged with assault; he was

also charged as a juvenile with drug abuse and theft. Id. at p. 3. After becoming an

adult, Snowden was charged with 15 misdemeanor offenses, including assault, domestic

violence, disorderly conduct, intoxication, and drug abuse. Id. at p. 4-5. In addition,

Snowden had 34 traffic violations, several felony convictions, and numerous instances of

failing to pay child support for children he had fathered. Id. at p. 5-6 and 8. Finally,

Snowden had a history of drug and alcohol abuse beginning at ages 19 and 21,

respectively, and ending only when he was incarcerated in October 2016. Id. at p. 8.

{¶ 30} When the matter was before the trial court on resentencing, the trial court

stated that it had again reviewed the PSI. Tr. at p. 6. Snowden does not suggest what

circumstances or facts differed from when the court initially sentenced him, nor does he

suggest what trial counsel should have said or how alerting the court would have made

any difference. We have also not discovered a shred of evidence in the record to indicate

that trial counsel acted ineffectively in this regard. Snowden’s extensive criminal history,

failure to refrain from committing criminal actions, and actions after the crime occurred

strongly supported the trial court’s findings.

{¶ 31} Accordingly, this proposed assignment of error is also wholly frivolous.

Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493.

IV. Conclusion

{¶ 32} We have examined the entire record and have conducted our independent

review in accordance with Penson, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We -13-

agree with appellate counsel that no non-frivolous issues exist for appeal. Accordingly,

the trial court’s judgment is affirmed.

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Joe Cloud Deonte Dwayne Snowden Hon. Gregory F. Singer