State v. CombsState v. Combs
J. DAVID TURNER, Atty. Reg. #0017456, 2443 South Dixie Drive, Kettering, Ohio 45409-1861 Attorney for Defendant-Appellant
EMERSON D. COMBS, #577-329, Lebanon Correctional Institution, 3791 West State Route 63, P.O. Box 56, Lebanon, Ohio 45036 Defendant-Appellant, pro se
O P I N I O N
Rendered on the 14th day of August, 2009.
BROGAN, J.
{¶ 1} Emerson Combs appeals from his conviction on one count of aggravated robbery with a deadly weapon and one count of having a weapon while
I
{¶ 2} Deeanna Nasser and her husband own, what was then called, Westside Wireless, a cellular phone retailer. One evening in December 2006, Nasser was working in the store behind a display counter when a hooded and masked man came in, climbed over the counter, and shoved a gun in her face. He demanded money from the cash register, which she gave him. He also opened a display case, took some items, and shoved them into a bag. The man then asked Nasser to put some display items into the bag. Nasser indicated that she could not understand what he was saying, so the man pulled the mask down and repeated his instruction. When he did this, Nasser could see his entire face, minus his chin.
{¶ 3} Nasser was certain that the man was Combs. In September or October 2006, Combs visited her store for the first time. Nasser and Combs soon realized that they been in middle school together roughly ten years ago. After his first visit, Combs returned regularly, at least once a week.
{¶ 4} Combs was indicted on one count of aggravated robbery in violation of
II
{¶ 5} Where appointed counsel has filed an Anders brief, a pro se defendant-appellant has only the “task of identifying a potential assignment of error having arguable merit; i.e., a potential assignment of error that renders the appeal other than wholly frivolous.” State v. Hicks, Montgomery App. No. 22786, 2009-Ohio-2740, at ¶15. If we agree “that there is a potential assignment of error having arguable merit, it is our duty to assign new counsel who can make that argument for [the defendant].” Id.
{¶ 7} Trial counsel is ineffective if his performance fell below an objective standard of reasonableness, and this deficient performance prejudiced the defendant. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Here, trial counsel did make an effort to exclude the identification evidence by filing a motion to suppress, which argued that the identification procedure used by the police was unduly suggestive and therefore unconstitutional. The trial court, however, disagreed and overruled the motion. Combs is in essence arguing, then, that counsel should have raised the constitutional issues at trial regarding the reliability of Nasser’s identification. We do not think that counsel was ineffective for not doing so. Because the trial court had already deemed the evidence constitutionally admissible, and Combs does not identify any other basis on which it was inadmissible, we reject the first assignment of error as having no arguable merit.
III
{¶ 8} Combs next alleges, in his second assignment of error, that trial counsel was ineffective for failing to object to the trial court’s imposition of a five-year sentence. Combs contends that the sentence violated his rights under the Sixth and the Fourteenth Amendments of the U.S. Constitution and his rights under the Ohio
{¶ 9} While Combs’s appeal was pending, the Ohio Supreme Court decided State v. Elmore, __ Ohio St.3d ___, 2009-Ohio-3478, which directly addresses the constitutional questions that Combs raises. The defendant in Elmore was convicted by a jury on counts of aggravated murder, with four death specifications, murder, kidnapping, aggravated robbery, aggravated burglary, and grand theft. The defendant’s non-capital sentence total was 21 and one-half years. The defendant argued that the trial court should have imposed no more than minimum and concurrent prison terms for a total of three years. He contended that Foster and its severance remedy resulted in a sentence that was unlawful in many respects, including that the sentence violated his Sixth Amendment right to a jury trial and was imposed by a court lacking authority to impose consecutive sentences. The
{¶ 10} Foster found that certain sections of the Revised Code, related to criminal sentencing, violated the Sixth Amendment by requiring a trial court to determine certain facts independently before it could increase the maximum authorized punishment. Foster, at ¶82-83. Foster, following Apprendi and its progeny, held that “a court may not be required to make findings before imposing more than a minimum prison term.” Elmore, at ¶7. But as Elmore pointed out, the Court has never held that “the presumptive minimum prison term equated to a statutory maximum term.” Id. Rather, “[a] defendant convicted of an offense has always been on notice that the statutory maximum is the greatest prison term within a felony range.” Id. Foster simply “severed the requirement that judges make findings before imposing a nonminimum prison term.” Id. This does not mean that defendants receive the minimum sentence if findings are not made, however. Id. “[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Id. at ¶10, quoting Booker, at 233. Thus, after Foster, trial courts retain “full discretion to impose a prison sentence within the statutory range without the mandatory findings.” Id. at ¶8.
{¶ 11} The defendant in Elmore contended also that trial courts cannot impose consecutive sentences anymore because Foster excised
{¶ 12} Combs’s sentence is lawful. It is based entirely on the jury’s verdict; the trial court did not make any judicial findings of fact. We note that, contrary to Combs’s assertion, under the separation of powers doctrine the Ohio Supreme Court’s role is not simply to apply the enactments of the General Assembly but also to determine, when asked, the laws’ constitutionality. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 462 (“The power and duty of the judiciary to determine the constitutionality and, therefore, the validity of the acts of the other branches of government have been firmly established as an essential feature of the Ohio system of separation of powers.”); see, also, Beagle v. Walden (1997), 78 Ohio St.3d 59, 62 (“[i]nterpretation of the state and federal Constitutions is a role exclusive to the judicial branch”). And it is not the trial court’s place, nor indeed the place of this Court, to declare unconstitutional a decision of our Supreme Court. See State v. Bell, 176 Ohio App.3d 378, 2008-Ohio-2578, at ¶130 (“a claim that a decision of the Supreme Court of Ohio is unconstitutional is not cognizable in this court”). Thus, we must defer to the authority of the Ohio Supreme Court regarding the constitutionality of Foster. Id.
{¶ 13} In view of the preceding discussion, trial counsel did not render ineffective assistance by not objecting to Combs’s sentence. Like the first, the
IV
{¶ 14} Finally, the third assignment of error alleges that the indictment was defective because it failed to specify the requisite degree of mental culpability for the crime of aggravated robbery. Combs cites State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, for the proposition that an indictment that fails to charge a culpability state is defective. Colon held that robbery under
{¶ 15} Colon, however, does not apply here. Combs was charged with aggravated robbery under
V
DONOVAN, P.J., and FAIN, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
R. Lynn Nothstine
Emerson D. Combs
J. David Turner
Hon. William B. McCracken
(c/o Montgomery County Common Pleas Court)