State v. EvansState v. Evans
{¶1} Defendant-appellant, Antwon Evans, appeals his guilty plea and sentence. For the reasons that follow, we affirm, but remand for the trial court to issue a new sentencing journal entry, nunc pro tunc, incorporating its findings pursuant to
{¶2} In 2012, Evans was charged with one count each of attempted murder and having weapons while under disability, and two counts of felonious assault. The charges stemmed from Evans‘s role in a shooting outside the Luxe Lounge in Maple Heights, Ohio. In March 2013, Evans pleaded guilty to one count of felonious assault, with the attendant notice of prior conviction and three-year firearm specification, and the count of having weapons while under disability as charged in the indictment. The state agreed to nolle the attempted murder and other felonious assault charges in exchange for Evans‘s guilty plea. The trial court found that the offenses were not allied, and ordered Evans to serve consecutive sentences for each offense for a total of 11 years.
{¶3} Evans now appeals, raising four assignments of error, which will be addressed out of order.
I. Plea — Postrelease Control Advisement
{¶4} In his first assignment of error, Evans contends that the trial court failed to advise him about postrelease control during the plea colloquy, thus causing the plea to be legally deficient.
{¶6} “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “[I]f it appears from the record that the defendant appreciated the effect of his plea and his waiver of
{¶7} In this case, the trial court did not advise Evans regarding the mandatory term of postrelease control; rather, the prosecutor, when setting forth the plea to the court, stated that “probation or postrelease control would be a five-year mandatory postrelease [sic] control at sentence.” (Tr. 6.) Both Evans and his counsel agreed that the prosecutor‘s recitation of the plea agreement was also their understanding of the plea. (Tr. 6-7.)
{¶8} While we recognize that the prosecutor, not the trial judge, advised Evans of the mandatory period of postrelease control, this court has consistently held that absent a showing of prejudice, the court has substantially complied with
{¶9} To reiterate, it is the best practice for the trial judge to advise the defendant of the maximum sentence, including postrelease control.
{¶10} However, in this case, and like the other cases cited above, Evans has not demonstrated how he was prejudiced by the trial judge‘s failure to advise him about postrelease control when he agreed that the prosecutor correctly set forth the plea agreement, including the mandatory five-year period of postrelease control. Substantial compliance with
II. Allied Offenses — Effect of a Notice of Prior Conviction
{¶11} In his fourth assignment of error, Evans contends that because Count 2 (felonious assault) contained a notice-of-prior-conviction specification, it is allied with Count 4 (having weapons while under disability).
{¶12} The question as to whether crimes are allied offenses arises from the Double Jeopardy Clause of the Fifth Amendment, which protects individuals from multiple punishments for the same offense or conduct. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Ohio legislature has codified this protection in
{¶13} In State v. Nagel, 84 Ohio St.3d 280, 286, 703 N.E.2d 773 (1999), the Ohio Supreme Court stated that “a specification is, by its very nature, ancillary to, and
{¶14} A specification that merely enhances the penalty for a crime is not an element of the offense. State v. Allen, 29 Ohio St.3d 53, 506 N.E.2d 199 (1987); see also State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 8, State v. Raymond, 10th Dist. Franklin No. 08AP-78, 2008-Ohio-6814. Because a notice of prior conviction is not a separate offense, but is instead a sentencing provision, the specification cannot be an allied offense. State v. Loines, 20 Ohio App.3d 69, 72-73, 484 N.E.2d 727 (8th Dist.1984).
{¶15} In this case, the notice-of-prior-conviction specification attached to the charge of felonious assault, whereas the charge of having a weapon while under disability was a separate offense. As this court previously stated,
[the] animus of having a weapon under disability is making a conscious choice to possess a weapon. [The defendant] necessarily acquired the guns sometime prior to committing the other crimes. The fact that he then used the weapons to commit the other crimes does not absolve [the defendant] of the criminal liability that arises solely from his decision to illegally possess the weapons.
State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 39; see also State v. West, 8th Dist. Cuyahoga No. 98274, 2013-Ohio-487, ¶ 43-45.
{¶16} Much like in Cowan, Evans‘s decision to possess the weapon prior to actually using it involved a separate and distinct animus; thus felonious assault and having a weapon while under disability were not allied offenses. The notice of prior
{¶17} Accordingly, the fourth assignment of error is overruled.
III. Sentencing — Minimum Sanctions
{¶18}
{¶19} In determining the most effective way to comply with the purposes and principles of sentencing set forth in
{¶21} Accordingly, Evans‘s third assigned error is overruled.
IV. Consecutive Sentences
{¶22} In his second assignment of error, Evans contends that the trial court erred by imposing consecutive sentences when it failed to make the findings required by
{¶23} We review consecutive sentences using the standard of review set forth in
{¶24}
{¶25} The presumption in Ohio is that sentencing is to run concurrent, unless the trial court makes the required findings for consecutive sentences set forth in
{¶26} Under current
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term * * * adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶28} In this case, a review of the record reveals that the trial court complied with the requirements of
And I‘m [imposing consecutive sentences] because I think the second — I think the consecutive sentences fits in this case because of the serious criminal violent nature, and that that‘s needed to sentence you consecutively because of these events and because of your background.
Having a prior weapons with a disability justifies the punishment for a consecutive purpose, and this was needed to protect the public from future crimes. And this will not demean the seriousness of these offenses by putting these on a consecutive basis, so I think I have found the necessary requirements and reasons for the consecutive sentences * * * .
{¶29} We find that the trial court made the requisite findings pursuant to
{¶30} Although the trial court did not use the exact language in
{¶31} In this case, we can discern from the record that the trial court‘s findings were sufficient to satisfy the requirements of
It is ordered that appellant recover from 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 common pleas 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.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR