STATE OF OHIO, PLAINTIFF-APPELLEE, v. LAMAR L. CARTLIDGE, DEFENDANT-APPELLANT.
CASE NO. 13-18-33
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
Date of Decision: April 8, 2019
[Cite as State v. Cartlidge, 2019-Ohio-1283.]
Trial Court No. 17 CR 0166
Judgment Affirmed
APPEARANCES:
Jennifer L. Kahler for Appellant
Stephanie J. Kiser for Appellee
{¶1} Dеfendant-appellant, Lamar L. Cartlidge (“Cartlidge”), appeals the September 13, 2018 judgment entry of sentence of the Seneca County Court of Common Pleas finding him guilty of: Count One, aggravated trafficking in drugs; Count Two, trafficking in cocaine; Count Three, failure to comply with an order or signal of a police officer; Count Four, tampering with evidence; Count Five, possession of cocaine; Count Six aggravated trafficking in drugs; and Count Seven, aggravated possession of drugs.
{¶2} On appeal, Cartlidge asserts that: 1) the prosecution breached the plea agreement thereby denying Cartlidge due process of law, 2) the trial court erred in ordering Cartlidge to serve consecutive sentences, 3) Cartlidge was denied the effective assistance of counsel when he failed to file а motion to withdraw his guilty plea and failed to request a continuance to file said motion, and 4) the trial court erred by not merging allied offenses of similar import for the purposes of sentencing. For the reasons that follow, we affirm the judgment of the trial court.
{¶3} On November 8, 2017 and later in a superceding indictment, Cartlidge was indicted by the Seneca County Grand Jury on seven counts: Count One, aggravated trafficking in drugs in violation of
{¶4} On November 17, 2017, Cartlidge appeared for his initial arraignment without counsel. (Doc. No. 6). On November 30, 2017, Cartlidge appeared for his re-scheduled arraignment togеther with court appointed counsel. (Doc. No. 9). At that hearing, the trial court entered a plea of not guilty (for Cartlidge), and the matter was scheduled a pre-trial conference. (Id.).
{¶5} However, on March 16, 2018, Ronnie L. Wingate (“Wingate”), entered his appearance as counsel of record on behalf of Cartlidge. Wingate filed a demand for discovery pursuant Ohio Criminal Rule 16 and a mоtion for bill of particulars (Doc. No. 15, 16). Thereafter, Cartlidge’s court appointed counsel was granted leave of court to withdraw on the basis that Cartlidge had privately retained Wingate. (Doc. No. 17, 19).
{¶7} Ultimately, on August 3, 2018, Cartlidge withdrew his pleas of not guilty and pled guilty to all counts in the superceding indictment. (Doc. No. 58). The trial court accepted Cartlidge’s guilty pleas, found him guilty, referred the matter for the preparation of a presentence investigation report (“PSI”) and scheduled the matter for a sentencing and a forfeiture hearing on September 12, 2018.1 (Doc. No. 58).
{¶8} On October 3, 2018, the trial court sentenced Cartlidge to: 18 months in prison on Count One; 12 months in prison on Count Two; 36 months in prison on Count Three; 36 months in prison on Count Four; 12 month of prison on Count Five; 18 months in prison on County Six; and to 12 months in prison on Count Seven of the indictment. (Doc. No. 61). The trial court further ordered Cartlidge to
{¶9} On October 9, 2018, Cartlidge filed a notice of appeal and raises four assignments of error for our review. (Doc. No. 65).
Assignment of Error No. I
The sentence should be reversed and remanded because the prosecution breached the plea agreement, thereby, dеnying appellant due process of law as guaranteed to him by both the United States’ Constitution and Ohio Constitution and was plain error
{¶10} In his first assignment of error, Cartlidge argues that his due process rights were violated when the State breached the plea agreement. Specifically, in the negotiated plea agreement, the State agreed “to argue for a total stated prison term of no more than six (6) years…” (Doc. No. 67). Nevertheless, Cartlidge failed to raise this issue at sentencing. Accordingly, Cartlidge’s failure to object at sentencing results in a waiver of any error related to the State’s breach of its agreement under the plea agreement except for plain error. See State v. Simmons, 3d Dist. Allen No. 1-14-45, 2015-Ohio-1594, citing State v. Sexton, 3d Dist. Union No. 14-13-25, 2015-Ohio-934, ¶ 85 (the defendant‘s failure to object to alleged
Standard of Review
{¶11} We recognize plain error “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio-894, citing State v. Landrum, 53 Ohio St.3d 107, 110, 559 N.E.2d 710 (1990), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph thrеe of the syllabus. Plain error review in criminal cases is governed by
Analysis
{¶12} It is important to note that Cartlidge did not object to the State’s failure to honor its sentencing recommendation. (September 12, 2018 Tr. at 1-28). The plea agreement breach raised by the appellant is that the State agreed to recommend a total of six years in prison for Cartlidge. Regardless, the plea agreement also contained the following lаnguage relative to the State’s promised recommendation:
I also understand that if I have been charged with having violated or have been found guilty of having violated any law: local, state, or federal subsequent to accepting the Sentence Recommendation within this Plea of Guilty and prior to sentencing…the Prosecutor is released from and will not be required to make the Recommendation at sentencing. That decision will be left solely to the discretion of the Prosecuting Attorney.
(Emphasis added.)3 (Doc. No. 57).
{¶13} The record reveals that Cartlidge committed a new offense on May 30, 2018, while out on bond for the original indictment. (Doc. No. 48). Cartlidge was arrested on June 11, 2018, the day of his arraignment, on the superceding indictment for the May 30th offense. (Doc. No. 45, 48). Additionally, the record reveals that Cartlidge was аrrested on a second felony drug charge (while out on bond here) on
{¶14} Cartlidge asserts that the State failed to abide by the terms of the plea agreement, but fails to address how his being “charged with” committing new criminal offenses while on bond impacts his plea agreement with the State. To us, Cartlidge’s new charges filed prior to sentencing released the State from its plea recommendation contained in the agreement.
{¶15} Accordingly, Cartlidge has failed to meet his burden to demonstrate plain error that the trial court deviated from a legal rule, an obvious defect in the proceeding. Moreover, Cartlidge also has failed to establish how his substantial rights were affected. We can find no manifest misсarriage of justice apparent from the record as a result of the alleged errors. Cartlidge’s sentence falls within the statutory limit; it was appropriate, given his prior criminal record and his newly charged criminal activity committed while out on bond, awaiting sentencing for the instant case; and it is supported by the principles and purposes of sentencing in
{¶16} For the foregoing reasons, we overrule Cartlidge’s first assignment of error.
Appellant’s maximum consecutive sentences is (sic) cruel and unusual punishment when the trial court considered defendant’s arrest and 2013 photos when sentencing
Standard of Review
{¶17} Next, the appellant argues that the maximum, consecutive sentences imposed by the trial court violated his Eighth Amendment rights under the United States Constitution. We disagree.
{¶18} In State v. Anderson, 151 Ohio St.3d 212, 2017-Ohio-5656, ¶ 27, the Supreme Court of Ohio recognized:
The Eighth Amendment of the United States Constitution precludes cruel and unusual punishment is the ‘precept of justice that punishment for the crime should be graduated and proportioned to [the] offense.’ “ [Brackets sic.] State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 31, quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). To constitute cruel and unusual punishment, “the penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964).
State v. Lucious, 3d. Dist. Logan No. 8-18-31, 2019-Ohio-741, ¶ 24.
Analysis
{¶19} Cartlidge argues that the trial court based its decision to impose maximum, consecutive sentences upon Cartlidge’s arrest on September 12th and the 2013 exhibits presented at the sentencing hearing. (Appellant’s Brief at 15). To the contrary, the record supports that the trial court considered the PSI, the oral
{¶20} Based upon the record before us, the trial court engaged in a clear analysis of all the evidence presented at the sentencing hearing. Thus, upon our review of the record, we cannot conclude that the trial court’s sentence was so grossly disproportionate to the offenses committed that it would “shock the sense of justice of the community.” Accordingly, Cartlidge’s second assignment of error is overruled in its entirety.
Assignment of Error No. III
Appellant was not provided effective assistance of counsel when appellant’s attorney failed to motion the court to withdraw defendant’s plea and failed to ask for a continuance to allow defendant file a motion to withdraw his plea
{¶21} “To establish a claim for ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced him.” State v. Huddleston, 3d. Dist. Logan No. 8-17-21, 2018-Ohio-1114, 2018 WL 1468739, ¶ 6, citing State v. Phillips, 3d Dist. Allen No. 1-15-43, 2016-Ohio-3105, 2016 WL 2957049, ¶ 11, (emphasis added), citing State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 133, citing, *587 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The failure to make either showing defeats a claim of ineffective assistance of counsel.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), quoting Strickland at 697, 104 S.Ct. 2052 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”).
Analysis
{¶22} Here, Cartlidge argues that he was denied effective assistance of counsel because his trial counsel should have objected to the State’s breach of the plea agreement at the sentencing hearing. Appellant argues that Wingate should have “upon receiving notice that the State intended to back out of the plea agreement and argue for the maximum, consecutive sentences…” moved the trial court
{¶23} As we have noted herein before, Cartlidge’s conduct prior to sentencing (i.e., arrest on new charges) released the State from its sentencing recommendation contained in the plea agreement. Based upon Cartlidge’s new charges the State recommended that the trial court impose maximum, consecutive sentenсes at the sentencing hearing. The record is void as to whether Appellant’s counsel had received advanced notice of the State’s decision prior to the sentencing hearing. (September 12, 2018 Tr. 1-28). Even if such were the case, despite Cartlidge’s new criminal charges, Appellant’s counsel made a strategic decision to proceed with sentencing, begging for the trial court’s leniency. He had no opposition from his client on this strategy.
{¶24} Moreover, Cartlidge in his statements to the trial court at sentencing, acknowledged responsibility for his criminal activity and requested leniency which to us suggests a coordinated plan of attack. (Id. at 6-7). There is no indication in the record that Cartlidge wanted to test the State’s cases against him.
{¶25} Accordingly, there is nothing deficient in сounsel’s performance under the facts presented. Accordingly, Cartlidge’s third assignment of error is overruled.
Assignment of Error No. IV
The trial court erred by not merging allied offenses for purposes of sentencing
{¶26} “‘A defendant bears the burden of proving that the offenses for which he has been convicted and sentenced constitute allied offenses of similar import.’” State v. Vanausdal, 3rd Dist. Shelby No. 17-16-06, 2016-Ohio-7735, ¶ 17, quoting State v. Campbell, 12th Dist. Butler No. CA2014-06-137, 2015-Ohio-1409, ¶ 18, citing State v. Luong, 12th Dist. Butler No. CA2011-06-110, 2012-Ohio-4520, ¶ 46. Additionally, a reviewing court may look to the infоrmation contained in the record to make its allied offense determination. Id. “Whether offenses are allied offenses of similar import is a question of law that this Court reviews de novo.” State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio-894; see also State v. Ruff, 143 Ohio St.3d 114, 2013-Ohio-1441.
Analysis
{¶27} The Double Jeopardy Clause “protects against three abuses: (1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a second prosecution for the same offensе after conviction,’ and (3) ‘multiple punishments for the same offense.’” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 10, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The Double Jeopardy Clause’s third protection is codified in the Ohio Revised Code in section
{¶28}
(A) Where the same conduct by defendant can be construed to constitute two or more allied оffenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(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 or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶29} The Supreme Court directs us to apply a three-part test to determine whether a defendant can be convicted of multiple offenses:
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must ask thrеe questions when defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, ¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 12 and citing Ruff at paragraphs one, two, and three of the syllabus.
{¶31} “As explained in Ruff, offenses are of dissimilar import ‘when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.’” Id. at ¶ 77, quoting Ruff at paragraph two of the syllabus.
At its heart, the allied-offense analysis is dependent upon the facts of a case because
R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial * * * will reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and thereforе, the defendant can be convicted of multiple counts.
Ruff at ¶ 26.
{¶32} In the case sub judice, we find that the above listed factors weigh heavily against finding that the Counts Six and Seven are allied offenses of similar import. Both parties noted at the sentencing hearing that the drugs were packaged separately. (September 12, 2018 Tr. 9, 18-19). Count Six involved seven individual bindles of fentanyl packaged for sale.4 (September 12, 2018 Tr. at 19). Whereas Count Seven, was packaged in bulk.5 (Id.). The crux of Cartlidge’s argument is
{¶33} Notwithstanding the previous point, we were not provided with the change of plea transcript to fully address the facts as they relate to allied offenses. The appellant bears the burden of providing this Court with the record of the facts (the missing transcript) necessary to support Cartlidge’s arguments. See, State v Muller, 3d Dist. Defiance No. 4-11-09, 2012-Ohio-3530, 2012 WL 3194139, citing In re Predmore, 3d Dist. Logan Nos. 8-09-03, 8-09-04, 8-09-05, 2010-Ohio-1626, citing State v. West, 3d. Dist. Auglaize No. 2-06-04, 2006-Ohio-5834, 2006 WL 3159354, citing
{¶34} For the foregoing reasons, we reject Cartlidge’s contention that Count Six and Count Seven are allied offenses of similar import, and we overrule the fourth assignment of error.
Conclusion
{¶35} Having reviewed the arguments, the briefs, and the record in this case, we find no error prejudicial to Cartlidge in the particulars assigned and argued. The judgment of the Common Pleas Court of Seneca County, Ohio is therefore affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr