STATE OF OHIO v. MICHAEL E. ADKINS
No. 95279
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 6, 2011
2011-Ohio-5149
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-522496
BEFORE: Rocco, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: October 6, 2011
Rufus Sims
75 Public Square
Suite 1111
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: James Hofelich
Katherine Mullin
Assistant County Prosecutors
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{1} Defendant-appellant Michael E. Adkins appeals from his convictions and the sentences imposed after a jury found him guilty of four counts of kidnapping, one count of aggravated robbery, one count of robbery, four counts of aggravated burglary, and four counts of felonious assault, all with firearm specifications.
{2} Adkins presents three assignments of error. He argues the trial court failed to provide a full hearing on his pre-trial request that new counsel be appointed, that his convictions were allied offenses that should have been merged pursuant to
{4} Adkins‘s convictions result from an incident that occurred on October 30, 2008. Deborah Barr‘s landlords, Joseph and June Ament, arrived at Barr‘s small house at approximately noon to pick up the rent money, and Barr invited them to sit at her dining room table and chat while she watched her four-year-old grandchild.
{5} While Barr and the Aments were speaking, two men walked into the dining room from the kitchen; one of the men was Adkins. Barr knew him because he had dated her girlfriend, Angela. Barr “looked over at him and [saw] he had one hand in his pocket and had a gun down [to] his side.”
{7} As Adkins pointed the gun at Barr and then at her granddaughter, he ordered everyone to place all of their valuables onto the table, where Barr‘s rent money lay. The Aments complied. Adkins gathered up all the money while his cohort “ransacked” the rest of the house. Adkins also stated that he should kill all of them because they had seen his face.
{8} Eventually, Adkins ordered everyone into the living room. His cohort called out that the bedroom had a closet; Adkins began to consider putting his captives into it. Upon hearing this, Joseph Ament decided to escape. Adkins was moving the others ahead of him when Ament turned and ran into the kitchen and out the rear door. Once outside, he sought help.
{9} Adkins turned to discover Joseph Ament missing. He asked, “where is he?” Adkins also cried that he was going to kill everyone, but he and his cohort then fled.
{10} When the police arrived, Barr provided Adkins‘s first name and Angela‘s telephone number. Det. Horval spoke with Angela, assembled a photo array containing Adkins‘s picture, and showed it to Barr and each of the Aments separately; each chose Adkins‘s photo as the main perpetrator of the home invasion.
{12} Adkins‘s case proceeded to trial in November 2009. After considering the evidence, the jury found him guilty on all counts. The trial court subsequently sentenced Adkins to a prison term that totaled twenty-three years, i.e., three years for all the firearm specifications, prior to and consecutive with consecutive terms of ten years each on Counts 1 and 2; the terms imposed on the other counts were ordered to be served concurrently with Counts 1 and 2.
{13} Adkins presents the following three assignments of error in this appeal.
{14} “I. The trial court abused its discretion by not granting Defendant a full hearing regarding his request for new counsel prior to trial.
{15} “II. The trial court erred in not merging the kidnapping, aggravated robbery, aggravated burglary and felonious assault convictions at sentencing.
{16} “III. Appellant was denied the effective assistance of counsel for failure to investigate & file a motion to suppress his identification where there was reasonable probability that the successful motion would have affected the outcome.”
{18} When a defendant asks the trial court for a new attorney during the course of the proceeding, the court must adequately investigate the defendant‘s complaint. State v. Jones, Montgomery App. No. 20349, 2005-Ohio-1208, at ¶ 12, citing State v. Deal (1969), 17 Ohio St.2d 17, 18-19, 244 N.E.2d 742. The court is required to balance the accused‘s right to counsel of his choice against the public‘s interest in the prompt and efficient administration of justice in evaluating a request for substitute counsel. State v. Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112, 747 N.E.2d 765, citing United States v. Jennings (C.A.6, 1996), 83 F.3d 145.
{19} The trial court‘s decision is reviewed under an abuse-of-discretion standard. Murphy, citing State v. Cowans, 87 Ohio St.3d 68, 1999-Ohio-250, 717 N.E.2d 298. Only in the most extreme circumstances should appointed counsel be substituted. State v. Glasure (1999), 132 Ohio App.3d 227, 239, 724 N.E.2d 1165.
{20} Adkins‘s assigned counsel had been working on the case for nearly five months by the time trial was to proceed. Before voir dire took place, defense counsel informed the trial court that Adkins had a problem with his representation.
{22} The trial court continued to inquire of Adkins in an effort to understand his specific complaints. According to Adkins, he and defense counsel “had a couple arguments” over whether the entire incident leading to the indictment had ever occurred, and Adkins did not like the way counsel talked to him.
{23} The trial court asked if defense counsel had visited him regularly, read the police report to him, contacted Adkins‘s witnesses, and worked on his behalf. Adkins admitted defense counsel had done all those things. The trial court ultimately told Adkins that it was in his best interest to keep such an attorney, and asked if Adkins had anything else to say about the matter. Adkins replied, “No.” Trial proceeded.
{24} On this record, it is impossible to conclude the trial court could have done anything more; Adkins‘s complaint related only to his counsel‘s perceived lack of empathy, and Adkins raised no further concerns. State v. Satterwhite, Montgomery App. No. 23142, 2009-Ohio-6593, at ¶ 41. Adkins‘s first assignment of error, accordingly, is overruled.
{25} In his second assignment of error, Adkins argues that some of his convictions constituted allied offenses pursuant to
{27} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{28} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{29} Subsequent to sentencing in Adkins‘s case, the Ohio Supreme Court issued its opinion in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Johnson clarified the process by which courts determine whether offenses are allied offenses of similar import. “When determining whether two offenses are allied offenses of similar import subject to merger under
{30} The supreme court held that “the intent of the General Assembly is controlling.” Id. at ¶ 46. “We determine the General Assembly‘s intent by applying
{31} “In determining whether offenses are allied offenses of similar import under
{32} “If the 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.’ * * *
{33} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.”
{34} “Conversely, if the court determines that * * * the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{35} In this case, the facts demonstrate all of Adkins‘s convictions stem from his conduct in entering Barr‘s home uninvited and with a gun, threatening the four occupants with that firearm, ordering them to provide all their valuables, and restraining their liberty
{36} The supreme court previously determined that a defendant‘s violation of
{37} Based upon the analyses set forth in Wilson, ¶¶ 91-96, and, more recently, in State v. Darnell, Delaware App. No. 10 CAA 10 9983, 2011-Ohio-3647, ¶ 84, Adkins‘s convictions on Counts 1 through 6, viz., kidnapping, aggravated robbery, and robbery, and for felonious assault in Counts 11 through 14, constituted allied offenses, since they constituted a single course of conduct upon four separate victims. Ordering the sentences to be served concurrently does not cure the error. Hicks.
{39} “Although the seriousness of a burglary offense is related to the relative risk to persons, the burglary offenses punish trespasses into structures. Addressing whether jurors must unanimously agree regarding the nature of the crime that the offender was intending to commit after unlawfully entering the structure, the Supreme Court concluded that unanimity was not required, because ‘“there is no difference in penalty irrespective of which underlying felony or combination of felonies was intended. Rather, it is [the defendant‘s] single entry into the dwelling with the requisite intent that constitutes the crime.“’ [State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995] at ¶ 67, quoting State v. Hammer (1997), 216 Wis.2d 214, 576 N.W.2d 285.” State v. Marriott, 189 Ohio App.3d 98, 2010-Ohio-3115, 937 N.E.2d 614, ¶ 29 (appeal not allowed, State v. Marriott, 127 Ohio St.3d 1461, 2010-Ohio-6008, 938 N.E.2d 363). (Emphasis added.)
{40} In this case, Adkins made a single entry into Barr‘s house. Regardless of the number of people in the house, he committed that particular act with a single animus; thus, he could not be convicted for more than one count of aggravated burglary. State v. Allen, Cuyahoga App. No. 82618, 2003-Ohio-6908; State v. Powers, Cuyahoga App. No. 86365, 2006-Ohio-2458; State v. Lynott, Cuyahoga App. No. 89079, 2007-Ohio-5849.
{42} Adkins‘s convictions for aggravated burglary in Counts 8, 9, and 10, therefore, are vacated.
{43} Adkins argues in his third assignment of error that his trial counsel rendered ineffective assistance, thus requiring reversal of his convictions and sentences. He contends defense counsel should have filed a motion to suppress the identification evidence introduced by the state. This court disagrees.
{44} In State v. Hill (1996), 75 Ohio St.3d 195, 211, 661 N.E.2d 1068, the Ohio Supreme Court stated the standard of appellate review to apply to Adkins‘s claim as follows:
{45} “[R]eversal of a conviction or sentence on ineffective assistance requires that the defendant show, first, that ‘counsel‘s performance was deficient’ and, second,
{46} Adkins cannot show his trial counsel‘s performance fell below an objective standard of reasonable representation. Bradley, at paragraph two of the syllabus. “Counsel need not raise meritless issues.” Hill. Counsel is thus not required to file a motion to suppress evidence in every case. State v. Flors (1987), 38 Ohio App.3d 133, 528 N.E.2d 950.
{47} A court is not required to suppress an identification of a suspect unless the confrontation was unnecessarily suggestive of the suspect‘s guilt and the identification was unreliable under all the circumstances. In re Henderson, Cuyahoga App. No. 79716, 2002-Ohio-483. No due process violation will be found where an identification does not stem from an impermissibly suggestive confrontation but instead is the result of observations at the time of the crime. Id.
{48} In determining whether an identification is reliable, a court must consider the following: 1) the witness‘s opportunity to view the suspect at the time of the incident; 2) the witness‘s degree of attention; 3) the accuracy of the witness‘s prior description; 4) the witness‘s certainty when identifying the suspect at the time of the confrontation; and, 5) the length of time elapsed between the crime and the identification. State v. Waddy (1992), 63 Ohio St.3d 424, 439, 588 N.E.2d 819.
{50} Since Adkins cannot rebut the applicable strong presumption that counsel‘s conduct in this case fell within the wide range of reasonable professional assistance, his third assignment of error is overruled.
{51} Based upon this court‘s disposition of his second assignment of error, although the jury‘s determinations of Adkins‘s guilt of the offenses in Counts 1 through 6 and Counts 11 through 14 remain, his convictions are reversed. This case is remanded for the state to choose which of the crimes against each victim it wishes to pursue, and for a new sentencing hearing. Whitfield, ¶ 25; accord, Wilson, ¶ 13. Adkins‘s aggravated burglary conviction on Count 7 is affirmed, and his convictions on Counts 8, 9, and 10 are vacated.
Judgment accordingly.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR