STATE OF OHIO v. KENNETH BOOKER
No. 101886
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 25, 2015
[Cite as State v. Booker, 2015-Ohio-2515.]
BEFORE: Blackmon, J., Celebrezze, A.J., and Stewart, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-582017-A
vs.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Anita Barthol Staley
7327 Center Street
Mentor, Ohio 44060
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Gregory Mussman
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
- The trial court abused its discretion and erred to the prejudice of appellant by sentencing him to a total of nineteen years imprisonment, in that the prison term is excessive for the purposes set forth in
Ohio Revised Code Section 2929.11(A) , and (B), and is not necessary to protect the public. - The trial court abused its discretion and erred to the prejudice of appellant by sentencing him to a total of nineteen years imprisonment, including consecutive sentences, in that a consecutive sentence is not necessary to protect the public, and is disproportionate to the seriousness of the offender‘s conduct.
- The appellant was denied the effective assistance of counsel, as his attorney agreed to stipulate that the charges in the case were not allied offense of similar import, thus leading to the lengthy consecutive sentences totaling nineteen years.
- The trial court erred to the prejudice of the appellant by not finding that involuntary manslaughter, kidnapping, and felonious assault are allied offenses of similar import, and by sentencing him to consecutive and concurrent terms for each one.
{¶2} Having reviewed the record and pertinent law, we affirm Booker‘s sentence. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Booker for murder, kidnapping, felonious assault, domestic violence, and violating a protection order. The charges arose from Booker strangling his wife in a drunken, jealous rage.
{¶5} The trial court sentenced Booker to 11 years for involuntary manslaughter, five years for felonious assault, and three years for domestic violence, all to run consecutively. Additionally, the trial court sentenced Booker to three years for kidnapping and three years for the violation of the protection order, to be served concurrently. As a result, Booker received a total sentence of 19 years in prison.
Purposes and Principles of R.C. 2929.11(A) and (B)
{¶6} In his first and second assigned errors, Booker contends that due to mitigating factors, the 19-year sentence did not comply with the purposes and principles of sentencing set forth in
{¶7}
{¶8} A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing under
{¶9} Although the trial court has a mandatory duty to consider the statutory factors, the trial court is not required to explain its analysis of those factors in a given case. State v. Townsend, 8th Dist. Cuyahoga No. 99896, 2014-Ohio-924, ¶ 11-12. The trial court‘s statement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes. State v. Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 18.
{¶10} However, Booker does not claim that the trial court failed to consider
{¶11} A reviewing court cannot review the sentencing judge‘s exercise of its discretion as [t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion.
Ineffective Assistance of Counsel
{¶12} In his third assigned error, Booker argues that his counsel was ineffective for stipulating that the counts were not allied offenses and, therefore, did not merge.
{¶14} In Strickland, the United States Supreme Court also stated that a court‘s scrutiny of an attorney‘s work must be deferential. The court further stated that it is too tempting for an appellant to second-guess his attorney after conviction and appeal, and that it would be all too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Accordingly, this court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. at 689. Further, to establish resulting prejudice, a defendant must show that the outcome of the proceedings would have been different but for counsel‘s deficient performance. Id. at 694.
{¶15} We conclude counsel was not ineffective for advising Booker to accept the plea in which it was stipulated the counts would not merge. Given the evidence against Booker, the advice to accept the plea could be viewed as sound trial strategy. Moreover,
{¶16} Moreover, the trial court advised Booker after imposing the sentence that the fact he received 19 years in prison versus a longer sentence, was based in part on the fact that he acknowledged [his] responsibility and took the plea and saved the family a trial * * *. Tr. 43. Therefore, if he had not agreed to the plea, he could have received even more time, perhaps even the maximum of 30 years. Accordingly, Booker‘s third assigned error is overruled.
Allied Offenses
{¶17} In his fourth assigned error, Booker argues that the trial court erred by not concluding that the felonious assault and kidnapping counts merged.
{¶18} As we stated above, the transcript from the plea hearing shows that the prosecutor and defense counsel stipulated that as part of the plea bargain, the counts would not merge. The trial court also explained the stipulation to Booker, and he responded that he understood.
{¶19} This court has held that when the transcript demonstrates the state and defense counsel specifically agreed that the offenses were not allied, the issue of allied offenses is waived. State v. Adams, 8th Dist. Cuyahoga No. 100500, 2014-Ohio-3496, ¶
{¶20} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to 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.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
MELODY J. STEWART, J., CONCUR