STATE OF OHIO v. MICHAEL BLACKFORD
Case No. 12 CA 3
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 16, 2012
[Cite as State v. Blackford, 2012-Ohio-4956.]
Hоn. Patricia A. Delaney, P. J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 09 CR 0052; JUDGMENT: Affirmed
For Plaintiff-Appellee
JOSEPH A. FLAUTT
PROSECUTING ATTORNEY
111 North High Street, P. O. Box 569
New Lexington, Ohio 43764-0569
For Defendant-Appellant
DENNIS PUSATERI
ASSISTANT STATE PUBLIC DEFENDER
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
{¶1} Appellant Michael Blackford appeals from his cоnvictions, in the Court of Common Pleas, Perry County, on charges of aggravated burglary, aggravated robbery, and kidnapping. The relevant procedural facts leading to this appeal are as follows.
{¶2} In August 2009, appellant was indicted by the Perry County Grand Jury on one count of aggravated burglary (
{¶3} On October 26, 2009, appellant entered pleas of guilty to one cоunt of aggravated burglary (
{¶4} On November 23, 2009, the trial court, hаving accepted the aforesaid pleas, sentenced appellant to three years on the aggravated burglary count, three years on the aggravated robbеry count, and two years each on the kidnapping counts, all to be served consecutively, for an aggregate term of fourteen years.
{¶5} On February 1, 2012, appellant filed a motion for leave to file a delayed appeal, which this Court subsequently granted. He herein raises the following three Assignments of Error:
{¶6} “I. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON DEFENDANT-APPELLANT‘S FOUR KIDNAPPING COUNTS IN VIOLATION OF
{¶8} “III. DEFENDANT-APPELLANT RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL‘S FAILURE TO OBJECT TO SENTENCES WHICH VIOLATED THE ALLIED OFFENSE PROVISIONS OF
I.
{¶9} In his First Assignment of Error, appellant argues the trial cоurt erred in imposing consecutive sentences on his four kidnapping counts, in violation of
{¶10}
{¶11} “(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.
{¶12} “(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
{¶13} For approximately the first decade of this century, law interpreting
{¶14} However, the Ohio Supreme Court, in State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314, specifically overruled the 1999 Rance decision. The Court held: “When determining whether two offenses are allied offenses of similar import subjеct to merger under
{¶15} Appellant herein was convicted of four counts of kidnapping under
{¶16} Appellant‘s First Assignment of Error is overruled.
II.
{¶17} In his Second Assignment of Error, appellant contends the trial court erred in failing to merge one of the four kidnapрing counts with the aggravated robbery count. We disagree.
{¶18} Appellant essentially maintains that the trial court‘s failure to at least find one of the kidnapping counts [
{¶20} Nonetheless, because Winn predated Johnson, supra, we are reluctant to apply Winn as a precedential rule for all allied offense questions involving kidnapping and aggravatеd robbery convictions. We are instead inclined to apply a Johnson analysis to the issue presented; however, the record before us contains scant documentation, outsidе of the indictment itself and a single paragraph in the plea hearing transcript, of the specific “conduct of the accused” as required by Johnson. Appellant‘s trial counsel filed a demand for a bill of particulars on September 8, 2009, but the trial court file does not reflect a response by the State. A discovery response is in the file, but it consists chiefly of unlabeled photocopies of crime scene photos. A review of the sentencing transcript likewise provides few details about the nature of the acts of kidnapрing and aggravated robbery perpetrated by appellant. Under these circumstances, we invoke the principle that “[a]n adequate appellate record is the appellant‘s responsibility; in the absence of an adequate record, this court presumes the regularity of the proceedings below.” State v. Grice, Cuyahoga App.No. 97046, 2012-
{¶21} Apрellant‘s Second Assignment of Error is therefore overruled.
III.
{¶22} In his Third Assignment of Error, appellant contends his trial counsel was ineffective for failing to object to appellant‘s sentences on the basis of
{¶23} Our standard of review for ineffective assistance claims is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis: First, we must determine whether counsel‘s assistаnce was ineffective; whether counsel‘s performance fell below an objective standard of reasonable representation and was violative of any of his essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel‘s ineffectivenеss such that the reliability of the outcome of the trial is suspect. This requires a showing that there is a reasonable probability that but for counsel‘s unprofessional error, the outcome of the trial would have been different. Id. Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistancе. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.
{¶25} Appellant‘s Third Assignment of Error is therefore overruled.
{¶26} For the reasons stated in thе foregoing opinion, the judgment of the Court of Common Pleas, Perry County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, J., concurs.
Delaney, P. J., dissents.
JWW/d 0906
STATE OF OHIO v. MICHAEL BLACKFORD
Case No. 12 CA 3
{¶27} I concur in the majority‘s opinion as to Appellant‘s First Assignment of Error; but respectfully dissent from the majority opinion in regards to the disposition of the Second Assignment of Error.
{¶28} In the interest of justice and following our prior rulings in State v. Mowery, 5th Dist. No. 10-26, 2011-Ohio-1709 and State v. Bobb, 5th Dist. No. CT2007-0076, 2011-Ohio-1709, I would sustain the Second Assignment of Error to the extent this matter should be remanded for a new sentencing hearing to analyze Appellant‘s conduct in the offenses at issue (kidnapping and aggravated robbery) pursuant to Johnson and, if necessary, to review potential merger of the offenses for sentencing.
JUDGE PATRICIA A. DELANEY
STATE OF OHIO v. MICHAEL BLACKFORD
Case No. 12 CA 3
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES