STATE OF OHIO v. BRANDON ADKINS, ET AL.
Nos. 109184 and 109185
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 15, 2021
2021-Ohio-1294
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-635599-A and CR-18-635599-B
RELEASED AND JOURNALIZED: April 15, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Anthony T. Miranda and Michael Barth, Assistant Prosecuting Attorneys, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and Robert B. McCaleb, Assistant Public Defender, for appellee Brandon Adkins.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant State Public Defender, for appellee Charles Trowbridge.
{¶ 1} In this consolidated appeal, plaintiff-appellant, the state of Ohio, appeals from sentences imposed on defendants-appellees, Brandon Adkins and Charles Trowbridge (collectively “appellees“). The state claims the following error:
The trial court erred in ordering concurrent prison terms for firearm specifications when the felonies were not committed as part of the same act or transaction.
{¶ 2} We find merit to the appeal, reverse the trial court‘s judgment in part, affirm it in part, and remand the case to the trial court to impose sentences on all firearm specifications.
I. Facts and Procedural History
{¶ 3} Adkins was charged with numerous felonies allegedly committed against multiple victims in November 2018. In August 2019, he pleaded guilty to one count of burglary, two counts of receiving stolen property, one count of aggravated robbery, one count of attempted burglary, one count of robbery, and one count of improper handling of a firearm. The two receiving stolen property counts, the aggravated robbery count, and the robbery count included one-year firearm specifications. The three-year firearm specifications attendant to the charges and all other charges were nolled pursuant to a plea agreement. As part of the plea agreement, Adkins and the state agreed to a recommended sentencing range of 7 to 12 years and that “[e]ach side is free to argue for whatever number they choose in between” 7 to 12 years. (Adkins tr. 40.)
{¶ 5} Trowbridge was charged with offenses in three criminal cases. Two of the cases, namely Cuyahoga C.P. CR-18-625121-A and Cuyahoga C.P. CR-19-638417-A, are not at issue in this appeal because they did not involve any firearm specifications. In Cuyahoga C.P. CR-18-635599-B, Trowbridge pleaded guilty to five counts of aggravated robbery, three counts of receiving stolen property, two counts of burglary, two counts of felonious assault, and one count each of telecommunications fraud, breaking and entering, improper discharge of a firearm, and having a weapon while under disability. Trowbridge and the state agreed to a recommended sentencing range of 20 to 25 years and that “[e]ach side is free to argue for whatever number they choose in between” 20 and 25 years. (Trowbridge tr. 88.)
{¶ 7} The state now appeals the sentences imposed on both Adkins and Trowbridge.
II. Law and Analysis
{¶ 8} In its sole assignment of error, the state argues “[t]he trial court erred in ordering concurrent prison terms for firearm specifications when the felonies were not committed as part of the same act or transaction.” However, the court did not sentence appellees to concurrent prison terms on certain firearm specifications. Indeed, the court did not sentence them to any prison terms on the disputed firearm specifications. Nevertheless, the state contends appellees’ sentences are illegal
{¶ 9} Both Adkins and Trowbridge agreed to an aggregate range of potential sentences. Adkins agreed to a jointly recommended sentence of 7 to 12 years, and Trowbridge agreed to a jointly recommend sentence of 20 to 25 years.
A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.
{¶ 10} A jointly recommended sentencing range is a “jointly recommended sentence” for purposes of
{¶ 11} A sentence is “authorized by law” and not appealable within the meaning of
{¶ 12} The state contends the trial court erred because it failed to impose consecutive prison terms on Adkins and Trowbridge for firearm specifications as mandated by
[I]f 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, * * * the offender shall serve any mandatory prison term imposed * * * consecutively to any other mandatory prison term imposed [for a firearm specification] * * * consecutively to and prior to any prison term imposed for the underlying felony * * * and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
{¶ 14}
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.
{¶ 15}
{¶ 17} The Ohio Supreme Court has defined the term “transaction,” for purposes of
{¶ 18} Appellees acknowledged at the plea hearing that their convictions were committed as separate and distinct transactions. (Adkins tr. 43-44; Trowbridge tr. 86.) At the plea hearing, the court asked the following with respect to Adkins:
THE COURT: * * * But the point is you both agree that I am required to, if this goes through, have the separate four — four separate one-year firearm specs served consecutively before anything else no matter what the sentences are on the underlying felony?
[PROSECUTOR]: Yes, your Honor.
[DEFENSE COUNSEL]: Yes, your Honor.
(Adkins tr. 43-44.)
{¶ 19} At sentencing, Adkins‘s lawyer again acknowledged that Counts 11 and 25 constituted separate acts and transactions, but asserted the court had discretion to determine whether Counts 26 and 31 were a single transaction because they occurred on the same day. The trial court, however, concluded that Counts 26 and 31 were separate transactions because although they occurred on the same day, one offense occurred in Parma, the other offense occurred in Cleveland, and they involved different victims. Consequently, the trial court concluded that the four counts with firearm specifications were “four separate transactions.” (Adkins tr. 141). The court stated, in relevant part: “[B]ased upon the evidence, I‘m going to conclude as a matter of fact that Counts 11, 25, 26, and 31 represent separate transactions.” (Adkins tr. 140.)
{¶ 20} The trial court asked Trowbridge at the plea hearing if he “agreed then that all of the firearm specs, not just the two highest, are required to be served consecutively before beginning any felony sentence?” (Trowbridge tr. 86.) Trowbridge‘s counsel replied: “That has been the nature of our agreement * * * .” Counsel also acknowledged that “there would be no argument for merger of these
{¶ 21} At Trowbridge‘s sentencing hearing, the state asserted that all prison terms for firearm specifications had to be served consecutively because they were not part of the same act or transaction. (Trowbridge tr. 182.) Trowbridge‘s counsel replied: “Well, I think there is an argument to be made either way.” (Trowbridge tr. 182.) However, Counts 1, 21, 26, 31, 38, 41, and 43, which contained the subject firearm specifications, were committed against seven different victims. Many of the counts were also committed on different dates and at different locations. For example, Count 1, which alleged aggravated robbery, was the only offense committed on November 8, 2018. Count 21, which also alleged aggravated robbery, was the only offense committed on November 23, 2018. Although Counts 26, 31, and 38, which alleged two counts of aggravated robbery and one count of felonious assault, were all committed on November 25, 2018, the offenses occurred in different cities or on different streets. Finally, Counts 41 and 43, which alleged discharge of a firearm on or near a prohibited premises and felonious assault, were both committed on November 25, 2018, but in different locations. Therefore, these seven counts were separate transactions for purposes of
{¶ 23} As previously stated,
{¶ 24} The trial court failed to comply with this mandatory sentencing provision when it failed to impose consecutive prisons terms on all firearm specifications even though it found they were committed as separate transactions.
{¶ 25} Therefore, the sole assignment of error is sustained.
{¶ 26} The trial court‘s judgment is affirmed in part, reversed in part, and we remand the case to the trial court to impose sentences on all firearm specifications.
It is ordered that appellant and appellees share 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR