State of Ohio, Plaintiff-Appellee, v. Angelo R. Chinn, Defendant-Appellant.
No. 16AP-602 (C.P.C. No. 15CR-3416)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 2, 2017
[Cite as State v. Chinn, 2017-Ohio-8546.]
HORTON, J.
(REGULAR CALENDAR)
Rendered on November 2, 2017
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Angelo Chinn, pro se.
ON APPLICATION TO REOPEN
HORTON, J.
{¶ 1} A jury convicted defendant-appellant, Angelo R. Chinn, of felonious assault under
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} We incorporate the recitation of the facts giving rise to Chinn‘s indictment and his trial from the direct appeal:
A grand jury indicted Chinn on July 14, 2015, on one count of felonious assault under
R.C. 2903.11 and one count of attempted murder underR.C. 2923.02 . Because the indictment alleged that Chinn had committed the offenses by discharging a firearm from a vehicle and had previous violentfelony convictions, the counts carried firearm specifications under R.C. 2941.145(A) , drive-by shooting specifications underR.C. 2941.146(A) , and repeat violent offender specifications underR.C. 2941.149(A) . (July 14, 2015 Indictment.)Trial commenced on June 20, 2016. The prosecution‘s first witness was Phyllis Regina James-Amir, who had met Chinn at their place of employment and began a relationship with him. (Tr. at 32-34.) James-Amir testified that she had been sleeping in her car at her place of employment before her shift on the night of July 4, 2015, when Chinn approached and began pounding on the car window. (Tr. at 42-44.) She started the car and as she began to drive away, Chinn tried to stop her by placing his hands on the hood of the car. (Tr. at 45-46.) Chinn got in his car and followed her at a high speed and James-Amir tried to evade him. (Tr. at 45-47.) Suddenly her car window blew out after a sound like a tire blowing out, and Chinn sped away. (Tr. at 47-49.) She realized that Chinn had fired a weapon at her. James-Amir pulled her car into a strip mall and called 911. (Tr. at 49-50.)
Officer Zachary West responded to the 911 call. (Tr. at 80.) He testified that James-Amir was shaken and frightened, and had to be escorted out of her vehicle. He stated that “the driver‘s side window was shattered completely out.” (Tr. at 81.)
Detective Ronald Lemon testified that he arrested Chinn at his mother‘s house. (Tr. at 99.) He described the gun used in the incident to Chinn‘s mother, who said that she owned a gun fitting the description. (Tr. at 100-01.) After Chinn‘s mother consented to a search of the home, she took Detective Lemon to where the gun was stored in her bedroom. (Tr. at 102-03.) The gun had one spent shell casing and one live round inside. (Tr. at 105.) During an interview after Chinn‘s arrest, he told Detective Lemon that the shooting was an accident and that he had not intended to harm James-Amir. (Tr. at 129.)
Erica Pattie testified as a forensic firearms expert. (Tr. at 158.) She testified that the gun in question, a Derringer pistol, had to be fully cocked after loading and have the safety off before it would discharge. (Tr. at 163-64.) On cross-examination, she stated that it would be possible for the weapon to be accidentally discharged. (Tr. at 167.)
Before jury deliberations, Chinn‘s attorney proposed a jury instruction with the following definition of “accident“: “An
accident is a mere physical happening or event and not reasonably foreseen as a natural result of an unlawful act.” (Tr. at 142.) The trial court overruled the request to include the instruction. (Tr. at 150.) The jury returned a guilty verdict on the felonious assault and attempted murder charges, as well as the firearm and drive-by shooting specifications for those offenses. (Tr. at 229-30.) The trial court separately convicted Chinn of the repeat offender specification. (Tr. at 234.) After merging the offenses, the trial court sentenced Chinn to a total of 25 years imprisonment. (Aug. 25, 2015 Jgmt. Entry.)
Id. at ¶ 2-8.
{¶ 3} The sole assignment of error on appeal asserted that the trial court erred when it failed to include Chinn‘s requested jury instruction. Applying the test for review of jury instructions set forth in State v. Dodson, 10th Dist. No. 10AP-603, 2011-Ohio-1092, ¶ 6, we held that the trial court did not abuse its discretion when it refused to present Chinn‘s requested instruction because it was not a correct statement of the law. Chinn at ¶ 7-8. We also noted that the trial court‘s decision not to include the instruction did not hamper the defense that Chinn‘s attorney presented, which depended on a theory of accidental discharge of the weapon and Chinn‘s assertion that he had not intended to fire the weapon. Id. at ¶ 11.
{¶ 4} Chinn subsequently filed a motion to reopen the appeal under
II. ANALYSIS
{¶ 5} Under
{¶ 7} Chinn presents four assignments of error, and we will consider each in turn.
A. First Assignment of Error
The Defendant-Appellant‘s convictions were not supported by sufficiently credible Evidence and were against the Manifest Weight of the Evidence.
{¶ 8} Chinn‘s first assignment of error asserts that his appellate counsel was ineffective for failing to raise a manifest weight of the evidence challenge on appeal.
{¶ 9} The manifest weight of the evidence analysis requires the appellate court to consider the state‘s evidence as an additional, or “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). After “reviewing the entire record,” the appellate court ” ‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” State v. McKnight, 107 Ohio St.3d 101, 112, 2005-Ohio-6046, ¶ 71, quoting Thompkins, quoting State v. Martin, 20 Ohio App.3d 172 (1st Dist.1983). “The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶ 10} After reviewing the record, we conclude that Chinn‘s appellate counsel was not ineffective for failing to raise a manifest weight argument during the direct appeal
{¶ 11} Chinn argues that there “was no actual evidence” of felonious assault because “[t]he alleged victim, by her own testimony, was never touched.” (Application at 6.) However, a defendant commits felonious assault with or without actually inflicting injury, as long as there is an “attempt to cause physical harm” to the victim.
{¶ 12} Chinn also argues that the state failed to prove the element of intent, and that the evidence produced at trial showed only that he was “mad” and “can be said to have been reckless.” (Emphasis sic.) (Application at 6.) According to Chinn, if he had been “really trying to kill the victim, he would have shot all his bullets,” but because he only shot one, the evidence did not prove that he had the necessary intent to support the charges. (Application at 7.)
{¶ 13} A charge of attempted murder under
{¶ 14} We have previously held that a defendant‘s “act of pointing a firearm and firing it in the direction of another human being is an act with death as a natural and probable consequence.” State v. Sevilla, 10th Dist. No. 06AP-954, 2007-Ohio-2789, ¶ 10, citing State v. Turner, 10th Dist. No. 97APA05-709 (Dec. 30, 1997). Furthermore, “[a]
{¶ 15} This evidence also demonstrates Chinn‘s intent to commit felonious assault. The offense requires a defendant to “knowingly * * * [c]ause or attempt to cause physical harm to another.”
{¶ 16} Finally, Chinn argues that his appellate counsel was ineffective for failing to assign error to the admission of testimony that he claims should have been excluded under
{¶ 17} Based on the foregoing, we conclude that there was no probability that a manifest weight argument would have had any success in Chinn‘s initial appeal. Lee at ¶ 2. Chinn‘s appellate counsel was not ineffective for failing to bring a meritless argument. Davis at ¶ 8. Accordingly, the first assignment of error is overruled.
The Appellant contends that his sentence is contrary to law and excessive, both under the Statutes and Constitution; when although the overriding purposes of felony sentencing are to protect the public from future crime and to punish the offender, the imposition of a maximum, mandatory and consecutive sentence of 25 years in prison; when a shorter sentence is not demeaning to the seriousness of the conduct and this sentence is not consistent with the sentences for similar crimes committed by similar offenders and; alternatively, despite trial counsel‘s failure to argue, Appellant could not be convicted of and sentenced for both Felonious Assault and Attempted Murder as well as both Firearm Specifications and Drive-By Specifications as, under the facts and law, both sets of charges are Allied Offenses of Similar Import under O.R.C. Section 2941.25.
{¶ 18} Chinn argues that his appellate counsel was ineffective for failing to argue that his sentence was “illegal” and contrary to law, citing State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658. A defendant convicted of an offense has the right to appeal a sentence that is “contrary to law.”
{¶ 19} In Williams, a trial court had ordered the merger of three offenses that were allied offenses of similar import, but then erred when it “imposed concurrent sentences on each of the three offenses instead of sentencing on only one offense.” Id. at ¶ 3. The Supreme Court of Ohio held as follows:
A court only has authority to impose a sentence that conforms to law, and
R.C. 2941.25 prohibits the imposition of multiple sentences for allied offenses of similar import. Thus, when a sentencing court concludes that an offender has been found guilty of two or more offenses that are allied offenses of similar import, in conformity with State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, it should permit the state to select the allied offense to proceed on for purposes of imposing sentence and it should impose sentence for only that offense. Accordingly, imposing separate sentences for allied offenses of similar import is contrary to law and such sentences are void. Therefore, res judicata does not preclude a court from correcting those sentences after a direct appeal.
{¶ 20} Here, the record does not reflect any sentencing error under Williams. The judgment entry states that “Counts One and Two merge for sentencing purposes and the State of Ohio elects to proceed on Count Two,” the attempted murder charge. (July 27, 2016 Jgmt. Entry.) The entry then states:
The Court hereby imposes the following sentence: ELEVEN (11) YEARS as to Count Two, consecutive to THREE (3) YEARS as to Firearm Specification, consecutive to FIVE (5) YEARS as to Drive-By Specifications, consecutive to SIX (6) YEARS as to Repeat Violent Offender Specifications, for a total of TWENTY-FIVE (25) YEARS, at the Ohio Department of Rehabilitation and Correction.
{¶ 21} Chinn was not sentenced for both the felonious assault and attempted murder convictions, as he asserts in the assignment of error. After the trial court merged the offenses, he received an 11-year sentence for only Count 2, attempted murder. The remaining portion of the sentence resulted from the imposition of drive-by, firearm, and repeat violent offender specifications. Under
C. Third Assignment of Error
The Defendant-Appellant was deprived of the effective assistance of Trial Counsel during the trial proceedings.
{¶ 22} Chinn makes two arguments to support his contention that his appellate counsel was ineffective for failing to argue that he had received ineffective assistance of trial counsel. First, he asserts that his trial attorney was ineffective for failing to raise an objection under
{¶ 23} Second, Chinn argues that his trial counsel was ineffective for stipulating to the fact of his prior convictions without “mak[ing] the State prove” them. (Application at 10.) A decision by defense counsel to stipulate to the fact of a defendant‘s prior conviction is generally considered a matter of trial strategy. See, e.g., State v. Roy, 10th Dist. No. 14AP-986, 2015-Ohio-4959, ¶ 22. The record indicates that Chinn‘s trial attorney pursued a strategy of attacking the state‘s ability to prove the element of intent in both the attempted murder and felonious assault charges. This strategy is reflected in the closing statement, where he discussed the testimony of witnesses, Chinn‘s statement to the police detective, and the ballistic evidence. (Aug. 25, 2016 Tr. at 191.) “The fact that defense counsel may not have pursued every possible defense is not the test for a claim of ineffective assistance of counsel; rather, the issue is whether the defense chosen was objectively reasonable.” State v. Baker, 111 Ohio App.3d 313, 323 (10th Dist.1996), citing Strickland. Chinn is silent as to why his trial attorney‘s decision to stipulate to the convictions and focus on the strategy presented was objectively unreasonable. Without such explanation, we reject the argument that the stipulation demonstrates ineffective assistance by Chinn‘s trial counsel. State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118, ¶ 28 (“Appellant has failed to demonstrate that it was not objectively reasonable for his trial counsel to stipulate to his prior record and focus the court‘s attention on [a
D. Fourth Assignment of Error
The Defendant-Appellant‘s convictions and sentence, arising out of the same event, must be Allied Offenses of Similar Import under O.R.C. Section 2941.25, Ohio‘s Merger Statute; as well as being penalized twice for the same act; here, the State violated his constitutional rights against double jeopardy; that is, multiple punishments for the same offense; and the consecutive sentences added to the harm.
{¶ 24} Among the protections of the Double Jeopardy Clause of the United States Constitution, applicable to the states through the Fourteenth Amendment, is the prohibition on “multiple punishments for the same offense.” State v. Brown, 119 Ohio St.3d 447, 450, 2008-Ohio-4569, ¶ 10. “Additionally, Article I, Section 10, of the Ohio Constitution provides, ‘No person shall be twice put in jeopardy for the same offense.’ ” Id. The General Assembly has codified the protections of the Double Jeopardy Clause in
{¶ 25} The discussion in the second assignment of error applies here. The judgment entry expressly states that the trial court merged the felonious assault and attempted murder convictions, and only sentenced Chinn for attempted murder. The trial court was required by statute to impose consecutive prison terms for the repeat violent offender, drive-by, and firearm specifications.
{¶ 26} Because there is no “reasonable probability of success” had any issue raised by Chinn been asserted on appeal, all assignments of error are overruled and his application to reopen the appeal under
Application to reopen denied.
DORRIAN and LUPER SCHUSTER, JJ., concur.
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