State v. HughleyState v. Hughley
STATE OF OHIO, PLAINTIFF-APPELLEE vs. KEVIN HUGHLEY, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-462014
BEFORE: Cooney, A.J., Stewart, J., and Dyke, J.
RELEASED: November 5, 2009
JOURNALIZED:
FOR APPELLANT
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Thorin O. Freeman Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} In these consolidated appeals, defendant-appellant, Kevin Hughley (“Hughley“), pro se, appeals his misdemeanor sentence and the trial court‘s application of jail-time credit. Finding no merit to the appeal, we affirm.1
{¶ 2} The facts of this case were previously set forth by this court in State v. Hughley, Cuyahoga App. No. 90323, 2008-Ohio-6146, (“Hughley I“) in which we stated:
“CR-462014-Summer 2004
“According to the facts, James Altman is a special agent for the Inspector General‘s Office, Social Security Administration. Altman was contacted by the Ohio Bureau of Motor Vehicles (“BMV“) to verify appellant‘s social security number. Altman found that Kevin Hughley, a.k.a. Hakeem Sultaana, had two social security numbers. Appellant had two social security numbers because he had requested a duplicate. Altman confirmed that appellant was not issued a new social security number as Sultaana.
“Barry Solomon, an investigator for the BMV, began an investigation into the conflict. Solomon discovered that appellant had used the name Hakeem Sultaana and applied for a state identification card. Further investigation revealed that appellant fraudulently indicated in his BMV [form] 2026 application that his social security number ended in 9870. The investigation also revealed that appellant indicated to a BMV worker that he did not have a current driver‘s license or identification card, that his driving privileges were not revoked, and that he did not have any citations for violations of any motor vehicle
law. These answers were fraudulent, as appellant knew that he had a driver‘s license, a noncompliance suspension, and three warrant blocks at the time.2 “In State v. Hughley, CR-462014, appellant was indicted on eight counts of forgery, eight counts of uttering, and eight counts of tampering with records. These offenses occurred on June 17, 2004. On February 20, 2005, appellant pleaded not guilty to all counts. Trial commenced on July 16, 2007. The state presented four witnesses and the defense did not present any witnesses. At the close of the state‘s case, the defense moved for acquittal on counts 15, 16, 21, and 24, pursuant to
Crim.R. 29 , and the court denied the defense‘s motion for acquittal. The prosecution noted that counts 11, 12, and 22 had been nolled prior to trial. On July 18, 2007, the jury rendered guilty verdicts on all counts submitted.“June 17, 2004
“More specifically, in CR-462014 appellant was indicted for three counts of forgery under
R.C. 2913.31 in relation to a state ID application, Bureau of Motor Vehicles form 2026, and a state of Ohio ID (counts 1, 3, and 5). Appellant was also indicted for three counts of uttering underR.C. 2913.31 (counts 2, 4, and 6) and tampering with records underR.C. 2913.42 (counts 17, 18, and 19) for each of the above listed items. Appellant was convicted of all crimes committed on this day.“July 13, 2004
“In addition to appellant‘s criminal activity on June 17, 2004, he also engaged in criminal activity on July 13, 2004. For appellant‘s criminal activity on July 13, 2004, he was indicted for three counts of forgery under
R.C. 2913.31 in relation to a state driver‘s license application, BMV form 2026, and a HP form 20C (counts 7, 9, and 11). Appellant was also indicted for three counts of uttering underR.C. 2913.31
(counts 8, 10, and 12) and tampering with records under
R.C. 2913.42 (counts 20, 21, and 22) for each of the above items.“Appellant was convicted of forgery and uttering in relation to the state of Ohio driver‘s license application (counts 7 and 8), forgery and uttering in relations to the BMV form 2026 (counts 9 and 10), and tampering with records in relation to the state of Ohio driver‘s license application.
“July 20, 2004
“For his criminal activity on this day, appellant was indicted for one count of forgery (count 13), uttering (count 14), and tampering with records (count 23) in relation to a state of Ohio driver‘s license. Appellant was convicted of all these counts.
“August 14, 2004
“For his criminal activity on this day, appellant was indicted for one count of forgery (count 15), uttering (count 16), and tampering with records (count 24) in relation to a vehicle registration application. Appellant was convicted of tampering with records.
“The court imposed nine months on the forgery charges (merged) and nine months on the uttering charges (merged), to be served concurrently. A term of two years was imposed on the tampering counts, to be served concurrently. The tampering counts and forgery counts were merged. The two-year term is to be served consecutively to the nine-month term for the uttering charges. Accordingly, appellant was sentenced to a total of two years and nine months incarceration.” (Emphasis in original.) Id. at ¶4-17.
{¶ 3} Hughley appealed his convictions, arguing that under
{¶ 4} On remand, the trial court sentenced Hughley to a total of 18 months on the misdemeanor tampering with records charges, to be served consecutively to the nine months for the forgery charges and the nine months for the uttering charges, for an aggregate of 27 months.5
{¶ 5} Hughley appeals again, raising a total of six assignments of error for our review, which shall be discussed together where appropriate.
Case No. 92588
{¶ 6} In the first, second, fourth, and fifth assignments of error, Hughley challenges his misdemeanor sentence. He argues that the trial court erred when it: (1) imposed his misdemeanor sentence to be served consecutively to his felony sentence; (2) imposed a maximum consecutive
Standard of Review
{¶ 7} The trial court enjoys broad discretion in imposing a misdemeanor sentence. Cleveland v. Jurco, Cuyahoga App. No. 88702, 2007-Ohio-4305, ¶18. Therefore, a misdemeanor sentence will not be disturbed on appeal unless the trial court abused its discretion. State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶15. “‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.‘” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.
Consecutive Sentence
{¶ 8} Hughley first argues that the trial court erred by ordering his misdemeanor sentence to be served consecutively to his felony sentence. He argues that, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, does not apply to misdemeanor sentencing and that
“Except as provided in division (B) of this section, division (E) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution.”
{¶ 9} In support of his argument, he relies on State v. Butts (1991) 58 Ohio St.3d 250, 569 N.E.2d 885. In Butts, the Ohio Supreme Court held that: ”
{¶ 10} Moreover, the Foster Court in reviewing Ohio‘s felony sentencing scheme, declared that
“(1) A jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term, jail term, or sentence of imprisonment when the trial court specifies that it is to be served consecutively or when it is imposed for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131 of the Revised Code.
“When consecutive sentences are imposed for misdemeanor under this division, the term to be served is the aggregate of the consecutive terms imposed, except that the aggregate term to be served shall not exceed eighteen months.” (Emphasis added.)
{¶ 11} Hughley also relies on State v. Owens, Cuyahoga App. No. 89948, 2008-Ohio-3555, and State v. McCauley, Cuyahoga App. No. 86946, 2006-Ohio-4587, for the proposition that post-Foster a misdemeanor sentence must run concurrently with a felony sentence. However, the Owens court relied on Butts, which as discussed above, is based on the prior version of
and excised, while the opinion text states that
{¶ 12} Additionally, we note that three other appellate districts have held, post-Foster, that
Maximum Sentence
{¶ 13} In the second assignment of error, Hughley argues that the trial court erred when it imposed the maximum consecutive sentence for his misdemeanor tampering with records charges because the trial court failed to
{¶ 14}
{¶ 15} In the instant case, Hughley was convicted of six counts of tampering with records under
{¶ 17} In the instant case, there is no affirmative indication in the record that the trial court failed to consider the applicable factors set forth in
{¶ 18} Thus, we find Hughley has failed to bring forth any evidence to rebut the presumption that the trial court considered all the factors in
{¶ 19} In the fourth assignment of error, he argues that the trial court displayed vindictiveness because the tampering with records counts were originally ordered to be served concurrently, but at resentencing the trial court ordered the counts to be served consecutively. He claims that the trial court punished him for being successful on appeal. He further claims that the Fourteenth Amendment requires the trial court to make “affirmative findings on the record regarding conduct or events that were discussed after the original sentencing hearing to overcome the presumption of vindictiveness.”
{¶ 20} We note that: “‘[a] trial court violates the Due Process Clause of the Fourteenth Amendment when it resentences a defendant to a harsher sentence when motivated by vindictive retaliation. North Carolina v. Pearce (1969), 395 U.S. 711, 724. A presumption of vindictiveness arises when the same judge resentences a defendant to a harsher sentence following a successful appeal. Id.‘” State v. Glover, Cuyahoga App. No. 88317, 2007-Ohio-2122, ¶109, quoting State v. Chandler, Cuyahoga App. No. 83629, 2004-Ohio-2988.
{¶ 21} In the instant case, Hughley was originally sentenced to a total of two years on the tampering with records counts (two years on each count to
Void Sentence
{¶ 22} In the fifth assignment of error, Hughley argues that the trial court erred by imposing a void sentence. He claims that his sentence is void because the trial court sentenced him to “prison” on the tampering with records convictions. However, a review of the record reveals that the trial court did not order Hughley to serve his misdemeanor sentence in prison. Rather, the trial court ordered that Hughley serve his felony sentences in prison and then be returned to the Cuyahoga County Jail to serve his misdemeanor sentence. Thus, we find that this argument lacks merit.
{¶ 23} Accordingly, the first, second, fourth, and fifth assignments of error are overruled.
Waiver of Counsel
{¶ 25} “The Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so.” State v. Gibson (1976), 45 Ohio St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus, citing Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.
{¶ 26} However, “courts are to indulge in every reasonable presumption against the waiver of a fundamental constitutional right, including the right to be represented by counsel.” State v. Dyer (1996), 117 Ohio App.3d 92, 95, 689 N.E.2d 1034. As a result, “a valid waiver affirmatively must appear in the record, and the State bears the burden of overcoming the presumption against a valid waiver.” State v. Martin, Cuyahoga App. No. 80198, 2003-Ohio-1499.
{¶ 27} Although there is no prescribed colloquy in which the trial court and a pro se defendant must engage before a defendant may waive his right to counsel, the court must ensure that the defendant is voluntarily electing to proceed pro se and that the defendant is knowingly, intelligently, and voluntarily waiving the right to counsel. Martin, citing State v. Jackson (2001), 145 Ohio App.3d 223, 227, 762 N.E.2d 438.
{¶ 28} In the instant case, a review of the resentencing hearing reveals that Hughley acknowledged that retained counsel no longer represented him.9 The court noted that Hughley went through five attorneys before trial commenced, proceeded to trial pro se, and during trial, he had standby counsel assigned to assist him. The trial court then advised Hughley that he has a right to counsel. The trial court further explained that if Hughley wanted counsel, the court would appoint counsel for him. The trial court also advised Hughley that it was only resentencing him on the tampering
{¶ 29} Based on the foregoing, we find that Hughley voluntarily elected to proceed pro se and that he knowingly, intelligently, and voluntarily waived his right to counsel at the resentencing hearing.
{¶ 30} Accordingly, the third assignment of error is overruled.
Case No. 93070
{¶ 31} In this appeal, Hughley contests the trial court‘s application of jail-time credit. He claims that the trial court had no authority to use a nunc pro tunc entry to apply his jail-time credit to the misdemeanor portion of his sentence. He further claims that under
{¶ 33} In the instant case, the trial court sentenced Hughley to a total of 27 months, including nine months on the felony forgery charge, consecutive to the 18 months on the misdemeanor tampering with records charges. This sentence was to be served consecutive to his sentences in Cases CR-473878 and CR-481899. In March 2009, the court ordered that Hughley‘s jail-time credit of 304 days shall be applied first to this case because it is the oldest case he had pending for sentencing. The trial court then ordered that the jail-time credit be applied to Hughley‘s misdemeanor sentence and, upon completion of his felony sentence in this case and CR-473878 and CR-481899, Hughley shall be returned to the Cuyahoga County Jail to serve the remaining 243 days on the misdemeanor charges.
{¶ 34} We note that under
{¶ 35} A review of the record reveals that Hughley has repeatedly asked the trial court to clarify his jail-time credit. Because the trial court could run the misdemeanor sentence consecutive to the felony sentence, and the trial court must specify the number of days that constitute jail-time credit, we find that it was within the trial court‘s discretion to direct that the jail-time credit be applied to the misdemeanor sentence in the instant case. This is especially true when his sentences are consecutive and the jail-time credit reduces the entire length of his sentence.
{¶ 36} Thus, the sole assignment of error is overruled.
{¶ 37} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION);
ANN DYKE, J., CONCURS IN JUDGMENT ONLY.
{¶ 38} By law, a defendant who is imprisoned is entitled to have credited to his sentence of incarceration the number of days that he was confined prior to conviction and sentence.