State v. CollinsState v. Collins
{¶1} Devin Collins appeals from his sentencing in the Cuyahoga County Court of Common Pleas. For the following reasons, we reverse in part and remand.
{¶2} Collins pled guilty to felonious assault in violation of
{¶3} The trial court sentenced Collins to prison terms of 10 years for felonious assault and aggravated robbery with consecutive one-year sentences for the firearm specifications, 36 months for having weapons while under disability and 36 months for tampering with evidence. The trial court ordered the prison terms for felonious assault and aggravated robbery to be served concurrently with each other but consecutively to the prison term for having weapons while under disability and consecutively to the prison term for tampering with evidence for a cumulative prison term of 17 years. This appeal followed.
{¶4} In his first assignment of error appellant argues that the trial court erred in determining that his convictions for felonious assault in violation of
{¶5} Our review of an allied offenses question is de novo. State v. Webb, 8th Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶6} Under Ohio law, “[w]here 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.”
[w]here 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.
{¶7} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Ohio Supreme Court redefined the test for determining whether two offenses are allied offenses of similar import subject to merger under
Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B) , the offenses will not merge.
{¶8} The term “animus,” as defined by the Ohio Supreme Court in State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), means “purpose or, more properly, immediate motive.”
{¶9} The trial court found that appellant‘s guilty pleas to felonious assault in violation of
{¶10} Appellant plead guilty to felonious assault in violation of
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another‘s unborn;
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;
* * *
(3) Inflict, or attempt to inflict, serious physical harm on another.
{¶11} Because appellant pled guilty to a violation of
{¶12} The record before us is insufficient to properly determine if the offenses
{¶13} We find that the trial court erred in holding that violations of
{¶14} Appellant argues in his second assignment of error that the trial court abused its discretion in neglecting to waive court costs and that his trial counsel was ineffective in neglecting to request such a waiver.
{¶15}
In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs.
{¶16} This statute has been held to apply even to indigent defendants. State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, ¶ 78. A trial court may, in its discretion, waive these costs. Id., citing State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. However, the defendant must first make a motion for waiver at the time of sentencing. Id., citing State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 5.
{¶17} The record reflects that appellant‘s trial counsel did not make a motion for waiver at sentencing but instead asserted that appellant was indigent and moved for court costs to be imposed after he was released from prison. The trial court refused to find appellant indigent at sentencing but stated that appellant could submit an affidavit of indigency and the court would consider it.
{¶18} To substantiate a claim of ineffective assistance of counsel, an appellant must demonstrate that (1) the performance of defense counsel was seriously flawed and deficient, and (2) the result of appellant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶19} This court has found counsel ineffective for failing to file an affidavit of indigency for a defendant when the “record shows there is a reasonable probability the defendant would have been found indigent.” State v. Hubbard, 8th Dist. Cuyahoga No. 99093, 2013-Ohio-1999, ¶ 9.
{¶20} At the sentencing hearing, defense counsel stated that, although he was retained, appellant had “no more money left.” On the day after the sentencing hearing, appellant‘s trial counsel filed a motion for the appointment of appellate counsel and attached an affidavit in which appellant averred that he was indigent, was unemployed and had no assets or money. The trial court did appoint appellate counsel but failed to consider the attached affidavit of indigency for purposes of the suspension of court costs as it indicated it would do. We find that counsel was not ineffective but that the trial court abused its discretion in failing to consider a waiver of court costs.
{¶21} Appellant‘s second assignment of error is sustained, in part.
{¶22} In his third assignment of error appellant argues that the trial court erred in failing to calculate the number of days for which he was entitled to receive jail-time credit. Appellant further argues that his attorney provided ineffective assistance of
{¶23}
[d]etermine, notify the offender of, and include in the sentencing entry the number of days that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the stated prison term * * *.
{¶24} The record reveals that the trial court failed to comply with
{¶25} Therefore, we sustain appellant‘s third assignment of error and remand the case for the trial court to properly calculate and apply jail-time credit. State v. Barker, 8th Dist. Cuyahoga No. 93574, 2010-Ohio-4480, ¶ 18.
{¶26} Finally, we sua sponte note that the trial court‘s sentencing entry contains a clerical error. At sentencing, the trial court ordered appellant‘s prison terms for having weapons while under disability and tampering with evidence to be served consecutively to one another and ordered both prison terms to be served consecutively to appellant‘s prison terms for felonious assault and aggravated robbery. The trial court imposed a cumulative prison term of 17 years in this manner. However, the trial court‘s sentencing entry, while imposing the same cumulative prison term, fails to clarify that the prison terms for having weapons while under disability and tampering with evidence are to be
{¶27} The judgment of the trial court is reversed in part. We reverse appellant‘s sentences for aggravated robbery and felonious assault and remand for the trial court to conduct an allied offenses hearing as to those offenses. We further remand the cause for the proper calculation of the jail-time credit, the correction of the clerical error in the sentencing entry and to allow appellant to move for the waiver of court costs.
It is ordered that appellant recover of said appellee 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 lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., DISSENTS IN PART WITH SEPARATE OPINION
FRANK D. CELEBREZZE, JR., P.J., DISSENTING IN PART:
{¶28} I respectfully dissent from the majority‘s position that the record before us is insufficient to properly conduct a de novo review of whether the trial court erred in determining that appellant‘s convictions for felonious assault in violation of
{¶29} Initially, I note that in an effort to avoid remands like this in the future, I feel obligated to reiterate a relevant statement made by this court over 30 years ago in State v. Kent, 68 Ohio App.2d 151, 155, 428 N.E.2d 453 (8th Dist.1980), fn.1. In Kent, Judge Alvin Krenzler stated:
When there is a probability that the allied offense issue may arise in a case, the prosecutor and defense counsel would be well advised to squarely confront the issue in any plea bargaining that takes place. By resolving this question at the plea bargaining stage and incorporating the resolution of the allied offense issue in the plea bargain to be placed on the record, the prosecutor and defense counsel will act to avoid later problems in the validity of the plea bargain, in the entering of the plea, in the acceptance of the plea, in the judgment of conviction, and any appeal of the case.
{¶30} Nevertheless, in the case at hand, I believe that the record contains sufficient facts to conduct a de novo review. As this court recently stated in State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590, 2013-Ohio-3235, “at any point in the process, prosecutors can put facts on the record that
{¶31} In my view, the prosecutor‘s brief recitation of the facts relevant to appellant‘s aggravated robbery and felonious assault convictions was enough to support the trial court‘s determination that the offenses were not allied. At the sentencing hearing, the prosecutor reminded the court that although codefendant Patrick Minifee was in fact the shooter in this case, his conduct was attributable to appellant for the purposes of conducting an allied offenses review. In arguing that the aggravated robbery and felonious assault convictions were committed with separate animus, the prosecutor presented the following statement:
Your honor, I would say that the factual difference between the two offenses * * * that would make them non-allied would be initially [codefendant] gets out to rob Officer Borders. He approaches him with a gun, states language consistent with a robbery. And [Officer Borders is] a police officer and armed.
Believing this makes himself even more at risk, [Officer Borders]
produces the gun. I submit to you only then, when [codefendant] sees the gun or it‘s fired, [codefendant] takes it in [his] hands to shoot at Officer Borders. I say that this was done by [codefendant] to injure Officer Borders and/or kill Officer Borders and then leave him to avoid detection. That would be a separate purpose. They have initially the purpose to commit the aggravated robbery and then when it doesn‘t go well, [codefendant] takes it on himself to shoot it out with him. That would be the purpose.
{¶32} Based on the foregoing, I am satisfied that appellant committed aggravated robbery in violation of
{¶33} Accordingly, I would hold, based on these facts, that the aggravated robbery and the felonious assault were motivated by a separate animus, and therefore should not have merged for the purposes of sentencing.
{¶34} I concur with the remainder of the majority‘s opinion.