STATE OF OHIO v. CLIFFORD BLACK
No. 100114
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 3, 2014
[Cite as State v. Black, 2014-Ohio-2976.]
MELODY J. STEWART, J.
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-535173-C
BEFORE: Stewart, J., Celebrezze, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 3, 2014
W. Scott Ramsey
The Standard Building, Suite 330
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
{1} Defendant-appellant Clifford Black and three codefendants broke into a house, threatened and robbed the occupants at gunpoint, and then tried to run over two police officers as they were fleeing the scene of the crime. In exchange for his agreement to make a truthful statement to the police, Black pleaded guilty to aggravated robbery with a firearm specification; aggravated burglary; felonious assault with a firearm specification; two counts of felonious assault against a peace officer; and having a weapon while under disability. The court imposed a total prison term of 18 years — the longest term any of the four perpetrators received.
{2} Black raises three assigned errors for our review. He first argues that he pleaded guilty only because he understood from defense counsel that he would receive less than an eight-year sentence and that the court failed to inquire into that understanding as a basis for ensuring that the plea was knowingly entered. Black also complains that his sentence was inconsistent with his codefendants, particularly when he cooperated with the police. And finally, Black claims that he was denied the effective assistance of counsel.
I
{3} The plea bargain that Black entered into with the state required him to make a statement to the police and testify against his three codefendants. He maintains that defense counsel assured him that his cooperation with the state would result in a prison
{4}
{5} There is no evidence in the record of any promises made to Black by the state, the court, or defense counsel regarding Black‘s sentence. On the contrary, the record shows that the state explicitly informed the court that no agreement had been reached with regard to sentencing. The prosecutor told the court: “[Black] agrees to testify against co-defendants and sentencing would be up to the Court. No agreed sentence would be part of this deal.” Tr. 4. Likewise, when asked by the court whether there were any promises made to him in exchange for his guilty plea, Black responded in the negative. Tr. 14. With Black having told the court that no promises were made to him about sentencing, and there being nothing in the record on appeal to contradict that assertion, the court had no obligation to inquire further into that which Black had denied.
{6} All three of Black‘s codefendants received shorter prison terms than Black received. Citing
A
{7} Before addressing the merits of Black‘s argument, we consider the state‘s contention that Black forfeited the right to raise the issue of consistency in sentencing by failing to object at sentencing.
{8} We have held that “in order to support a contention that his or her sentence is disproportionate to sentences imposed upon other offenders, a defendant must raise this issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal.” State v. Munson, 8th Dist. Cuyahoga No. 93229, 2010-Ohio-1982, ¶ 29. See also State v. Van Horn, 8th Dist. Cuyahoga No. 98751, 2013-Ohio-1986, ¶ 28.
{9} The rule we stated in Munson applies when the defendant raises the issue of consistency in the abstract, against other offenders in different cases. A judge should not impose a sentence without knowing what kind of sentences are being given by other judges — deciding what sentence is merited under any given situation necessarily requires a judge to look to sentences given to other offenders as a reference. So it serves no purpose for a defendant to complain that a sentence is inconsistent with those given to
{10} Black‘s situation is different, however. Black did not raise at the time of sentencing that his sentence was inconsistent with those given to similar offenders. His argument on appeal is that his sentence was inconsistent with those given to his three codefendants. The same judge sentenced all four offenders, so it is possible that Black could make a prima facie case of inconsistency. Under these circumstances, his failure to object at sentencing is not fatal to his consistency claim.
B
{11}
A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
{12} While consistency in sentencing is a goal under
C
{13} In the statement that Black gave to the police as part of his plea agreement, he described how he and codefendants Sanchez Smith, Tameka Bohanon, and Elbert Jones, acted collectively to perpetrate an armed break-in and robbery at a residence. According to Black, Jones identified the house as a “sweet lick” because he had been there before and knew that the occupants were unarmed and had money and marijuana. Bohanon drove a van to the house identified by Jones: the other three codefendants were occupants in the van. Black and Smith exited the van while Bohanon and Jones remained in the van. Smith instructed Bohanon to drive around the corner and wait for his and Black‘s return. Black carried a shotgun; Smith carried a handgun. They forcibly kicked open a door, ordered the occupants at gunpoint to the floor, and robbed them of cash, marijuana, and a gaming system. When Black and Smith left the house to rendezvous with the van, it was not where they expected it to be. Smith called Bohanon to return with the van. When Bohanon returned, Black and Smith reentered the van. As Bohanon prepared to pull away, two police officers appeared. Black told Bohanon to drive away, even if it meant running down the police. Bohanon put the van in gear and started moving toward the police officers as if she was going to run them
{14} All of the defendants eventually pleaded guilty. Jones received an agreed, three-year sentence after pleading guilty to aggravated burglary and having a weapon while under disability. See State v. Jones, 8th Dist. Cuyahoga No. 99648, 2013-Ohio-4802, ¶ 2. Bohanon received a 16-year sentence after pleading guilty to burglary, felonious assault with a peace officer specification, and improperly handling a motor vehicle. See State v. Bohanon, 8th Dist. Cuyahoga No. 98217, 2013-Ohio-261, ¶ 3. Smith received a sentence of 16 years and 11 months after pleading guilty to two counts of aggravated burglary with firearm specifications; two counts of aggravated robbery with firearm specifications, having a weapon while under disability, theft, and aggravated theft.
{15} Black, Bohanon, and Jones are not similar offenders for purposes of
{16} Smith was a similar offender to Black. They both pleaded guilty to two counts of aggravated robbery and, if Black‘s statements regarding the crime are to be credited, they acted similarly — they collectively kicked in the door to the premises, they both carried a firearm, they both threatened the occupants, and they both robbed the
D
{17} Black‘s sentence is 13 months longer than the sentence given to Smith. However, it is similar enough to Smith‘s, that we are unable to say that Black‘s sentence is so inconsistent with the sentence given to Smith that it runs afoul of
{18} Black claims that he was entitled to less time than Smith because he gave a statement to the police that caused the other defendants to enter guilty pleas. While Black did give the police a statement as part of his guilty plea, his assertion that his
III
{19} Black‘s third assignment of error is that defense counsel was ineffective in failing to raise the issue of consistency. Having found that Black did not waive a consistency claim under the facts of this case, his assertion that counsel was ineffective in this regard is moot.
{20} Black also argues that his counsel was ineffective for inadequately informing him of the benefits “he should have received” as a result of his plea agreement and further, that counsel was ineffective for not arguing for a sentence that was less than his codefendants received because he assisted the state and his codefendants did not. As previously stated, there is nothing in the record to support the contention that Black had
{21} The assigned errors are overruled.
{22} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
MELODY J. STEWART, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and EILEEN T. GALLAGHER, J., CONCUR