STATE OF OHIO v. QWENTIN DONNELL ALLISON
No. 105212
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
September 21, 2017
[Cite as State v. Allison, 2017-Ohio-7720.]
FRANK D. CELEBREZZE, JR., J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605458-A
BEFORE: Celebrezze, J., E.A. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: September 21, 2017
Judith M. Kowalski
333 Babbitt Road, Suite 323
Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Carson Strang
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Qwentin Allison (“appellant“), brings this appeal challenging the trial court‘s sentence for felonious assault, having weapons while under disability, and tampering with evidence. Specifically, appellant argues that the sentence was excessive, the trial court imposed consecutive sentences without making the required findings under
I. Factual and Procedural History
{¶2} The instant matter arose from an April 26, 2016 incident, during which shots were fired at two East Cleveland police officers, Officer Lakessa Taylor and Auxiliary Officer Daniel Seidel. In Cuyahoga C.P. No. CR-16-605458-A, the Cuyahoga County Grand Jury returned a five-count indictment charging appellant with two counts of felonious assault, first-degree felonies in violation of
{¶3} During pretrial proceedings, the parties reached a plea agreement. Pursuant to the plea agreement, the felonious assault offense charged in Count 1 would be amended to a second-degree felony, and the state agreed to delete the one- and seven-year firearm specifications. Additionally, the state amended Count 1 to reflect the names of both officers.
{¶4} On August 4, 2016, appellant pled guilty to Count 1 as amended with the three-year firearm specification, having weapons under disability as charged in Count 4, and tampering with evidence as charged in Count 5. The remaining counts and specifications were nolled. The trial court ordered a presentence investigation report (“PSI“), a mitigation of penalty report, and set the matter for sentencing.
{¶5} The trial court held a sentencing hearing on September 7, 2016. Defense counsel, appellant, and the prosecutоr addressed the trial court. The trial court imposed an aggregate prison sentence of six years and nine months: three years on the felonious assault count to be served consecutively to the three-year firearm specification; nine months on the having weapons while under disability count; and nine months on the tampering with evidence count. The trial court ordered the having weapons while under disability count and the tampering with evidence count to run concurrent with one another but consecutive to the felonious assault count.
{¶6} On November 29, 2016, appellant filed the instant appeal challenging the trial
I. The trial court abused its discretion and erred to the prejudice of appellant by sentencing him to six years and nine months in prison, as consecutive sentences were excessive for the purposes set forth in Ohio Revised Code Section
R.C. 2929.11 (A) and (B), and not necessary to protect the public, and were disproportionate to the crime charged pursuant toO.R.C. 2929.14(C)(4) .II. The trial court erred to the prejudice of the appellant by not finding that felonious assault, tampering with evidence, and having weapons under disability are allied offenses of similar import, and by sentencing him consecutively.
II. Law and Analysis
A. Consecutive Sentences
{¶7} In his first assignment of error, appellant argues that the trial court abused its discretion in imposing consecutive sentences and failed to make the requisite
{¶8} In reviewing felony sentences, this court does not review the sentence for an abuse of discretion.
{¶9}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused 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 any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal cоnduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶10} Compliance with
Under our Revised Code Section
2929.14(C)(4) , it mentions that a court can impose a multiple prison term, imposed upon someone with multiple offenses, but I‘m required to find a number of items. And here‘s the items:One, does the court find that consecutive sentences are necessary to protect the public from future crimes.
Two, conseсutive sentence is not disproportionate to the seriousness of the offender‘s conduct, and to the danger the offender posed to the public. So those two things have to be found by the court.
And then any of the third section. And the third section gives you three things to look up as a court; that the offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a community control sanction, or was under post release control. I don‘t believe any of those existed for you. So you weren‘t under a sentence, you weren‘t awaiting trial and you were not on post release control.
The second one is, and again, the court has to find one of the three, the second one is at least two of the multiple offenses were committed as part of one or more course of conduct and the harm caused by these multiple offenses were so great or unusual that no single prison term adequately reflects the seriousness of the offender‘s conduct. Or three, your history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from any future crimes.
(Tr. 39-40.)
{¶12} After identifying the requisite findings under
{¶13} Regarding the third finding, the trial court determined that
And then third, you‘re prior criminal history does show and demonstrate that you have been under supervision, not been able to follow supervision. And also that that‘s multiple offenses, the felonious assault, with the gun spec, having weapons while under disability, and tampering with evidencе. All three of those arise out of a single course of conduct. And that it‘s not unusual that someone would receive a consecutive sentence.
(Tr. 41.) The trial court concluded, “I believe I can find under the discretionary portion of the revised code that a consecutive sentence would be warranted[,]” and “that a consecutive sentence is consistent with the purposes and princiрles of sentencing.” (Tr. 41, 44.)
{¶14} Appellant challenges the trial court‘s first and third
{¶15} As noted above, the record clearly reflects that the trial court made the first finding, as required by
{¶16} Regarding the third finding, appellant argues that the trial court imposed consecutive sentences based on its predetermined policy rather than appellant‘s criminal record or the specific facts of the case. Specifically, appellant takes issue with the following statement made by the trial court during the sentencing hearing: “Regarding then whether a consecutive sentence should be handed down, the court‘s position is pretty clear in my courtroom, that when we have prior criminal history and someone carries a gun, that the court is likely to impose a consecutive sentence when warranted.” (Emphasis added.) (Tr. 43.)
{¶17} After review, we find no merit to appellant‘s challenge to the trial court‘s third finding. The record reflects that the trial court did not impose consecutive sentences based solely on a predetermined policy or position. Rather, the trial court concluded that consecutive sеntences were, in fact, warranted, explaining:
[b]ecause you have three prior felony cases, you were charged with carry[ing a] concealed weapon on a prior case and now you‘re carrying a loaded weapon, and have pled to carrying a loaded weapon and a weapons under disability, the court is going to find that pursuant to
2929.14(C)(4) , that a consecutive sеntence is consistent with the purposes and principles of sentencing.
{¶18} For all of the foregoing reasons, we conclude that the trial court made the appropriate consecutive sentence findings, and the record clearly reflects that the trial court engaged in the correct analysis required under
{¶19} In addition to making the requisite
B. Length of Sentence
{¶20} Although appellant‘s brief focuses on the trial court‘s imposition of consecutive sentences, he also contends that the trial court‘s sentence was “excessive for the purposes set forth in [
{¶21} As noted above, appellate review of felony sentences is governed by
{¶22}
{¶23}
{¶24} In the instant matter, appellant suggests that the trial court‘s sentence is not consistent with the purposes and principles of felony sentencing set forth in
{¶25} In State v. Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145, this court explained,
[t]he weight given to the sentencing factors is discretionary, and that discretion purely rests with the trial court. All that
R.C. 2929.11 and2929.12 require is for the trial court to consider the factors. [State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10]; State v. Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶10-11 ( R.C. 2953.08 precluded appellate review of the trial court‘s discretion in weighing the consistency in sentencing principles underR.C. 2929.11(B) because the final sentence was within the applicable statutory range and the trial court expressly indicated it considered all the required statutory factors and principles).
Jones at ¶ 14.
{¶26} The trial court‘s sentences for appellant‘s second- and third-degree felonies were within the statutory ranges under
{¶27} During the sentencing hearing, the trial court indicated that it had reviewed and considered the PSI, the mitigation report, and the police report. The trial court indicated that it considered the fаct that appellant accepted responsibility for his actions. In imposing its sentence, the trial court stated that it considered the purposes and principles of sentencing. The trial court explained that a three-year sentence on the felonious assault count “fits the nature of this offense, a shooting at two officers while you were being searched out during this incident.” (Tr. 42.)
{¶28} The trial court dеtermined that a minimum sentence was not warranted
{¶29} For all of the foregoing reasons, appellant‘s first assignment of error is overruled. The trial court did not err by imрosing consecutive sentences, and appellant‘s sentence is not contrary to law.
C. Merger
{¶30} In his second assignment of error, appellant argues that the trial court erred by failing to merge his convictions for sentencing purposes.
{¶31} Initially, we note that appellant‘s reliance on State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, is misplaced. The Johnson analysis has been rendered obsolete and supplanted by the analysis set forth in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. See State v. Dennis, 8th Dist. Cuyahoga No. 104742, 2017-Ohio-4437, ¶ 21-22.
{¶32} Nevertheless, the record reflects that appellant waived the issue of alliеd offenses. This court has held that when the state and defense counsel agree that offenses are not allied, the issue of allied offenses is waived. State v. Black, 8th Dist. Cuyahoga No. 102586, 2016-Ohio-383, ¶ 18, citing State v. Booker, 8th Dist. Cuyahoga No. 101886, 2015-Ohio-2515, ¶ 18-19; State v. Adams, 8th Dist. Cuyahoga No. 100500, 2014-Ohio-3496, ¶ 10-13; State v. Crockett, 8th Dist. Cuyahoga No. 100923, 2014-Ohio-4576, ¶ 4-7, 15-16; State v. Carman, 8th Dist. Cuyahoga No. 99463, 2013-Ohio-4910, ¶ 17-18; and State v. Ward, 8th Dist. Cuyahoga No. 97219, 2012-Ohio-1199, ¶ 20.
{¶33} During the change of plea hearing, the trial court opined that the felonious assault, having weapons while under disability, and tampering with evidence offenses would not merge for sentencing purposes. The court requested the parties’ input on the mеrger issue. The prosecutor confirmed that the offenses do not merge. Appellant‘s counsel acknowledged that the offenses would not merge for sentencing purposes. (Tr. 14.) During the sentencing hearing, the trial court stated, “[w]e did note on the record that for purposes of sentencing none of the three counts merged for purposes of sentencing.” (Tr. 29.)
{¶34} Accordingly, appellant waived the issuе of allied offenses. Appellant‘s second assignment of error is overruled.
{¶35} After thoroughly reviewing the record, we find that the trial court did not err in imposing consecutive sentences, the trial court‘s sentence is not contrary to law, and the trial court did not err by failing to merge appellant‘s convictions for sentencing purposes.
{¶36} The trial court failed to incorporate its
{¶37} Judgment affirmed; case remanded to the trial court for the issuance of a nunc pro tunc sentencing journal entry.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grоunds 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 execution of sentence.
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR