Case Information
*1
[Cite as
State v. Collins
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99111
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
DEVIN K. COLLINS
DEFENDANT-APPELLANT JUDGMENT:
REVERSED IN PART AND REMANDED Criminal Appeal from the
Cuyahoga County Court of Common Pleas Case No. CR-562160
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: August 29, 2013 *2 ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Hts., OH 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Marc D. Bullard
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶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 R.C. 2903.11(A)(1) with a one-year firearm specification, aggravated robbery in violation of R.C. 2911.01(A)(1) with a one-year firearm specification, having weapons while under disability and tampering with evidence.
{¶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. In his first assignment of error appellant argues that the trial court erred in
determining that his convictions for felonious assault in violation of R.C. 2903.11(A)(1) and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied offenses of similar import. Our review of an allied offenses question is de novo. State v. Webb , 8th
Dist. Cuyahoga No. 98628,
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.” R.C. 2941.25(A). However,
[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.
R.C. 2941.25(B).
In
State v. Johnson
, 128 Ohio St.3d 153,
1061, the Ohio Supreme Court redefined the test for determining whether two offenses
are allied offenses of similar import subject to merger under R.C. 2941.25. The
Johnson
court expressly overruled
State v. Rance
,
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.
Id . at ¶ 51.
{¶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.” The trial court found that appellant’s guilty pleas to felonious assault in
violation of R.C. 2903.11(A)(1) and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied offenses of similar import because the statutory language of those sections demonstrated a separate animus. In other words, the trial court found that the first prong of the Johnson test was not satisfied in that the commission of one offense will never result in the commission of the other. Appellant plead guilty to felonious assault in violation of R.C.
2903.11(A)(1) which provides:
(A) No person shall knowingly do either of the following: (1) Cause serious physical harm to another or to another’s unborn; R.C. 2911.01 defines aggravated robbery in relevant part as: *6 (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.
R.C. 2911.01. Because appellant pled guilty to a violation of R.C. 2911.01(A)(1) as
opposed to (A)(3) the trial court found that his conviction of felonious assault involving
serious physical harm necessarily possessed a separate animus. We disagree. While
ordinarily a violation of R.C. 2903.11(A)(1) would most likely match with a violation of
R.C. 2911.01(A)(3) if the offenses were allied offenses of similar import, considering the
broad language of R.C. 2911.01(A)(1) we cannot agree with the trial court’s conclusion
that the commission of one offense could never result in the commission of the other.
Therefore, the court must consider the conduct of the accused to determine whether the
offenses were committed by the same conduct. Our holding is consistent with how other
districts have treated these offenses.
See, e.g
.,
State v. Shields
, 1st Dist. Hamilton No.
C-100362,
were committed by the same conduct. Although the appellant and the state both spoke briefly prior to sentencing about the events underlying appellant’s convictions for felonious assault and aggravated robbery neither account adequately detailed the felonious assault such that the court could properly determine if it was committed with a separate animus from the aggravated robbery. Specifically, the presentence investigation report reflects that the victim in this case, a police officer, was shot by appellant’s codefendant during an attempted theft offense and essentially is a mere recitation of the language of the indictment. Although the state argued that the felonious assault occurred subsequent to, and separate from, the aggravated robbery, the state’s recitation of facts failed to explain precisely when during the course of events the victim was shot. We find that the trial court erred in holding that violations of R.C.
2903.11(A)(1) and R.C. 2911.01(A)(1) could not be allied offenses of similar import.
The trial court has a duty to inquire and determine whether multiple charges are allied
offenses of similar import.
[1]
State v. Rogers
, 8th Dist. Cuyahoga Nos. 98292, 98584,
98585, 98586, 98587, 98588, 98589, and 98590,
{¶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} R.C. 2947.23(A)(1) governs the imposition of costs and provides: 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. This statute has been held to apply even to indigent defendants. State v.
Vanderhorst
, 8th Dist. Cuyahoga No. 97242,
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
,
{¶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,
{¶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. Appellant’s second assignment of error is sustained, in part. 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 *10 counsel by failing to object to this omission.
{¶23} R.C. 2929.19(B)(2)(g)(i) provides that at the sentencing hearing, the trial court shall:
[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 R.C. 2929.19(B)(2)(g)(i) in that the court did not determine the proper jail-time credit, did not notify the offender of the days at sentencing and did not include the calculated time in its sentencing entry. The state concedes this assignment of error. 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,
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
*11
served consecutively to one another. Further, the journal entry of sentencing also fails to
indicate whether the sentences imposed for the firearm specifications merge. The trial
court retains continuing jurisdiction to correct clerical errors in judgments by nunc pro
tunc entry to reflect what the court actually decided.
State v. Mackey
, 5th Dist. Licking
No. 10-CA-74,
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
MARY EILEEN KILBANE, J., CONCURS;
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 R.C. 2903.11(A)(1) and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied offenses of similar import.
{¶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,
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] *14 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 R.C. 2911.01(A)(1) and felonious assault in violation of R.C.
2903.11(A)(1) with a separate animus. As appellant approached Officer Borders, his
immediate motive was apparently to rob him. Thus, the ultimate physical attack on
Officer Borders was not “slavishly tied to that initial criminal goal,” but was made once
the robbery did not go according to plan.
See State v. Shields
, 1st Dist. Hamilton No.
C-100362,
{¶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.
Notes
[1] Our analysis is not changed by the fact that the trial court ordered appellant ’ s prison terms
for aggravated robbery and felonious assault to be served concurrently. The imposition of
concurrent sentences is not the equivalent of merging allied offenses. State v. Damron , 129 Ohio
St.3d 86,