2006 Ohio 277 | Ohio Ct. App. | 2006
{¶ 2} This appeal involves two criminal cases, CR427648 and CR445445. The first of two cases, CR427648 resulted from the execution of a search warrant of Moore's trailer on May 9, 2002. During the search, officers confiscated 161.34 grams of powder cocaine, 18.33 grams of crack cocaine, a handgun, and numerous items of drug paraphernalia, some of which contained cocaine residue. While officers searched the trailer, Moore indicated to police that he wanted to cooperate. Moore then provided officers with information about his supplier and made some calls for police.
{¶ 3} Subsequently, the Cuyahoga County Grand Jury indicted Moore with two counts of trafficking in drugs, two counts of possession of drugs, and one count of having a weapon while under disability, CR427648. At his September 12, 2002 arraignment, attorney James Willis ("Willis") represented Moore, who entered a plea of not guilty. However, on October 8, 2002, Willis moved to withdraw as counsel for Moore, citing irreconcilable differences concerning Moore's defense. The trial court removed Willis and assigned the Cuyahoga County Public Defender to represent Moore.
{¶ 4} During Fall 2002, the public defender requested competency to stand trial and sanity at the time of act evaluations. The trial court ordered the evaluations, and on January 13, 2003, the Court Psychiatric Clinic found Moore both competent to stand trial and sane at the time of the act. Then in Spring 2003, the public defender requested an independent test of Moore. The trial court assigned Dr. Karpawich who on June 3, 2003, determined that Moore was not competent but that he was restorable. The trial court ordered Moore to report to Northcoast Behavioral Healthcare, where he was admitted on September 8, 2003. On September 30, 2003, Dr. Alice Holly, Ph.D. conducted a competency evaluation of Moore and determined that while it was "quite likely" that Moore suffered from a psychotic disorder, "malingering cannot be totally ruled out." Moore returned to court and the trial court released him on bond.
{¶ 5} While Moore was out on bond, the Cleveland Police Narcotics Unit began an investigation using an informant who would contact Moore's assistants in drug trafficking. After several controlled buys from Moore and his assistants, officers arrested Moore. At the time of the arrest, the officers confiscated 108.75 grams of crack cocaine from the basement of the house, and 3.84 and 12.49 grams of crack cocaine from the trunk of Moore's vehicle. Officers also searched Moore's trailer.
{¶ 6} The Cuyahoga County Grand Jury indicted Moore with three counts of trafficking in drugs, two counts of possession of drugs, three counts of trafficking in drugs with major drug offender specifications, two counts of possession of drugs with major drug offender specifications, and one count of possession of criminal tools.
{¶ 7} After the indictment, the Court Psychiatric Clinic evaluated Moore on two separate occasions. Both requests were made by defense counsel and both evaluations returned findings of competency. The trial court then transferred Moore's cases to the mental health docket.
{¶ 8} The new trial court conducted a competency hearing in February 2004 and found Moore competent to stand trial. During the hearing, the doctor testified that Moore did more poorly than in fact he is able. However, defense counsel requested another competency evaluation and specifically requested Dr. Dutton. The court referred Moore to Dr. Dutton, who not only found Moore competent, but also made a diagnosis of malingering, antisocial personality disorder, borderline intellectual functioning, and chemical dependency.
{¶ 9} Moore's bench trial commenced June 9, 2004, and continued through June 17, 2004. At the close of the state's case, the trial court granted Moore's motion for acquittal as to count one of CR427648 and denied the motion as to all remaining charges.
{¶ 10} On June 21, 2004, the trial court found Moore guilty on all charges except count twelve in CR445445. The trial court then ordered the state to elect between counts two and four in CR427648 and between counts five and six, counts eight and nine, and between counts ten and eleven in CR445445. The state elected to proceed on count two of CR427648 and on counts five, eight, and ten in CR445445.
{¶ 11} On December 13, 2004, the trial court, after ordering yet another competency evaluation, sentenced Moore to a total of twelve years in prison. In CR427648, Moore received a total of two years to run consecutive to the ten years received on CR445445.
{¶ 12} Moore appeals, raising the eight assignments of error contained in the appendix to this opinion.
{¶ 13} In his first assignment of error, Moore argues that the trial court committed error when it failed to dismiss both CR427648 and CR445445 because of the State's interference with his choice of defense counsel. This assignment of error lacks merit.
{¶ 14} It is well settled that unlike the right to counsel, the right to choice of counsel is not absolute. State v. Patt,
Lake App. No. 2002-L-073, 2004-Ohio-2601. Instead, there is only a right to professionally competent, effective representation.State v. McNeill,
{¶ 15} This case is unique from other choice of counsel cases in that Moore is not arguing that the trial court interfered with his choice of counsel. Instead, Moore is arguing that a police detective interfered with his choice of counsel. Specifically, Moore argues that on June 8, 2002, he told Detective Grafton that Willis was going to represent him and that Detective Grafton told him that Willis did not like to represent people working with the police. Because Moore planned on working with police detectives, he claimed that he was not able to choose Willis as his counsel.
{¶ 16} This argument goes against the facts contained in the record. The conversation at the source of this assigned error took place on June 8, 2002. Two months later, Moore appeared in court for his arraignment where he was represented by Willis. Additionally, Willis continued to represent Moore until October 8, 2002, when Willis filed a motion to withdraw as counsel. It is clear from the record that the June 8, 2002 conversation between Moore and Detective Grafton had no impact on his choice of counsel. Moore chose Willis to represent him and Willis continued to do so until he and Moore parted ways in October 2002.
{¶ 17} Therefore, we find that neither the trial court nor the police detective interfered with Moore's right to choice of counsel. Moore's first assignment of error is overruled.
{¶ 18} In his second assignment of error, Moore argues that the trial court erred when it failed to order a mental health evaluation during trial. This assignment of error lacks merit.
{¶ 19} R.C.
{¶ 20} Accordingly, a trial court's decision not to hold a competency hearing once trial has commenced will not be overturned absent an abuse of discretion. "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),
{¶ 21} In the present case, the Court Psychiatric Clinic evaluated Moore three times prior to the commencement of trial, and each time, the Clinic found him competent to stand trial. After the first evaluation, Moore's attorney requested an independent evaluation, which the trial court granted. Dr. Karpawich conducted the independent evaluation and found him incompetent but determined that he could be restored. As a result, the trial court ordered Moore to Northcoast Behavioral Healthcare. After being at Northcoast only fourteen days, Dr. Alice Holly conducted a competency evaluation, finding Moore competent to stand trial. Dr. Holly also determined that although it was likely that Moore suffered from a psychotic disorder, she could not rule out malingering.
{¶ 22} During the two subsequent evaluations, Dr. Nancy Huntsman concluded that Dr. Karpawich's assessment was invalid, that Moore did more poorly than he was able, and that he was competent to stand trial. Additionally, Dr. Dutton, along with finding Moore competent, diagnosed him as malingering with antisocial personality disorder, borderline intellectual functioning, and chemical dependency.
{¶ 23} Trial commenced on June 9, 2004, and after six days of testimony, Moore's counsel made the request for a mid-trial competency evaluation. The trial court complied with the statute and conducted a hearing to determine whether Moore presented "good cause" to justify another evaluation and competency hearing. During the hearing, the trial court questioned Moore's attorney and Moore himself before concluding that Moore did not present any indication of incompetency. The trial court found that another evaluation was not necessary.
{¶ 24} Taking into consideration the numerous determinations of competency along with the testimony elicited during the trial court's questioning of Moore and his attorney, we cannot say that the trial court abused its discretion in denying a mid-trial competency evaluation and hearing. Accordingly, Moore's second assignment of error is overruled.
{¶ 25} In his third assignment of error, Moore argues that the trial court erred in letting chemists Tarcy Kramer and Scott Miller testify to chemist Crystal Seals' analysis. Chemist Crystal Seals was not employed with the Cleveland Police Department Scientific Investigation Unit at the time of Moore's trial. Moore argues that allowing Chemists Kramer and Miller to testify violated his right of confrontation and also constituted inadmissible hearsay. This argument lacks merit.
{¶ 26} R.C.
{¶ 27} That section states that:
"[T]he results of a laboratory analysis if prepared by a qualifying agency or accredited institution of higher learning constitute prima facie evidence of the content, identity, and weight, or the existence or number of dosages of the substance tested." State v. Hudson, Cuyahoga App. No. 79010, 2002-Ohio-1408.
{¶ 28} Accordingly, the laboratory reports admitted at trial constituted prima facie evidence of the content, identity, and weight of the drugs. Had Moore desired to cross-examine Chemist Crystal Seals concerning her analysis, he needed to demand the testimony within seven days of receipt of the report. R.C.
{¶ 29} Moore's third assignment of error is overruled.
{¶ 30} In his fourth assignment of error, Moore argues that the trial court erred when it imposed a term of imprisonment of ten years on count thirteen under the mistaken belief that this was a major drug offender conviction. In putting forth this argument, Moore fails to cite to any authority for this claim.
{¶ 31} An appellate court may disregard an assignment of error pursuant to App.R. 12(A)(2) if an appellant fails to cite to any legal authority in support of an argument as required by App.R. 16(A)(7). State v. Martin (July 12, 1999), Warren App. No. CA-990-1-003, 1999 Ohio App. LEXIS 3266, citing Meerhoffv. Huntington Mortgage Co. (1995),
{¶ 32} Moore failed to cite to any legal authority in support of his argument, a failure that allows this court to disregard this assigned error. App.R. 12(A)(2); App.R. 16(A)(7).
{¶ 33} Nonetheless, this court will address this assigned error. Moore argues that the trial court sentenced him to the maximum term of imprisonment based on the erroneous belief that count thirteen, possession of drugs between 500 and 1000 grams, a first degree felony, contained a major drug offender specification. In support of his argument, Moore points to the trial court's journal entry, which lists count thirteen as possessing a major drug offender specification. However, the transcript of the sentencing hearing reflects that the trial court properly sentenced Moore to ten years on each of the first degree felony convictions. Nothing in the sentencing hearing reflects Moore's argument that his ten-year sentence for count thirteen was based upon a mistaken belief that a major drug offender specification applied. It is clear that the trial court's journal entry was a clerical error.
{¶ 34} Accordingly, the trial court is ordered to correct its journal entry to reflect that count thirteen did not contain a major drug offender specification. Additionally, the trial court's journal entry refers to a conviction of count twelve, trafficking in drugs. The record reflects that Moore was acquitted of count twelve. Therefore, the trial court should also delete any reference to count twelve in its sentencing journal entry.
{¶ 35} Moore's fourth assignment of error is sustained in part.
{¶ 36} In his fifth assignment of error, Moore argues that his trial counsel rendered ineffective assistance when he failed to move for a dismissal based on Detective Grafton's June 8, 2002 conversation with Moore. This assignment of error lacks merit.
{¶ 37} In order to prevail on a claim for ineffective assistance of counsel, Moore must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984),
{¶ 38} In determining whether counsel's performance fell below an objective standard of reasonableness, "judicial scrutiny of counsel's performance must be highly deferential."Strickland, supra,
{¶ 39} In the present case, Moore has not shown either of the elements required to prevail on a claim of ineffective assistance of counsel. Here, Moore merely argues that "counsel should have moved to dismiss these cases for the reasons set forth in Assignment of Error I. Counsel's failure to do so constitutes ineffective assistance." This allegation is far from showing that trial counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Moreover, this Court has previously determined in our analysis of the first assignment of error, that the cases should not have been dismissed because there was no interference with Moore's choice of counsel. Therefore, we decline to find that Moore's trial counsel rendered ineffective assistance of counsel.
{¶ 40} Accordingly, Moore's fifth assignment of error is overruled.
{¶ 41} In his sixth assignment of error, Moore argues that the trial court erred by imposing consecutive sentences. We disagree.
{¶ 42} R.C.
"If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
(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 for any of the offenses committed as part of any of the courses of conduct 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." See, also, State v. Comer,
{¶ 43} When a trial court imposes consecutive sentences under R.C.
{¶ 44} In the present case, the trial court complied with all of the requirements of R.C.
"But I do think it's necessary for punishment standpoint, and a deterrence, general deterrence standpoint, to have a consistent message here, that if you're going to go out, if you're committing crimes, and the police let you out of jail, and you go and commit a crime again, particularly where it's the same kind of crime that you got arrested for, you're just adding time onto it, to whatever you were doing.
"I don't think 12 years is disproportionate to the seriousness of what he's done, or to his danger to the public.
"* * *
"And — but I don't think that this is disproportionate to the seriousness that he's done, so that's why he's getting 12 years.
"* * *
"* * * but they're going to run consecutively for a total of 12 years, because, as I've said, he's eligible for it because of section
{¶ 45} Furthermore, the trial court complied with R.C.
{¶ 46} Moore's contention that the trial court based its imposition of consecutive terms of imprisonment on Moore's alleged double-cross of the police is erroneous. It is clear from the quoted passages above that the trial court did not solely base its decision to impose consecutive sentences on Moore's double-cross of the police. The trial court did properly use the double-cross as a reason for imposing consecutive sentences and then aligned that reason with its statutory findings.
{¶ 47} The trial court complied with the requirements of R.C.
{¶ 48} In his seventh assignment of error, Moore argues that Ohio's sentencing scheme provision for the imposition of consecutive terms of imprisonment on the basis of judicial findings violates the Sixth Amendment as construed in Blakely v.Washington, (2004),
{¶ 49} Moore's argument that his consecutive sentences violates the U.S. Supreme Court's decision in Blakely has been addressed in this Court's en banc decision of State v. Lett (May 31, 2005), Cuyahoga App. Nos. 84707 and 84729. In Lett, we held that R.C. 2929.14(C)and (E), which govern the imposition of maximum and consecutive sentences, does not implicate the Sixth Amendment as construed in Blakely. Accordingly, in conformity with that opinion, we reject Moore's contention and overrule his seventh assignment of error.
{¶ 50} In his eighth and final assignment of error, Moore argues that "in CR445445, the convictions for drug trafficking and preparation of drugs for sale, as they apply to the combination of counts four and five, and the combination of counts seven and eight, respectively, are allied offenses. We disagree.
{¶ 51} Moore argues that the two convictions for drug trafficking and the two convictions for preparation of drugs for sale should be vacated, regardless of concurrent sentencing, because the offenses are allied offenses to the possession of drugs offenses. This argument lacks merit.
{¶ 52} R.C.
{¶ 53} In State v. Rance (1999),
{¶ 54} Accordingly, we overrule Moore's eighth and final assignment of error.
{¶ 55} We affirm the judgment of conviction and the sentences imposed. However, this case is remanded for the limited purpose of correction of the sentencing journal entry.
It is ordered that appellee recover of appellant 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 Cuyahoga County 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.
Calabrese Jr., P.J., And Rocco, J., concur.
