STATE OF OHIO, Plaintiff-Appellee, vs. ANTHONY MOSS, Defendant-Appellant.
APPEAL NOS. C-210288, C-210289, C-210290, C-210291, C-210292, C-210293
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 27, 2022
[Cite as State v. Moss, 2022-Ohio-1771.]
TRIAL NOS. 19CRB-7328A, 19CRB-7328C, 19CRB-7328D, 19CRB-7328E, 19CRB-7328G, 19CRB-7328H
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: May 27, 2022
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Rebecca Barnett, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of Wendy R. Calaway and Wendy R. Calaway and Jackson Law Office and Kory A. Jackson, for Defendant-Appellant.
{¶1} After entering no-contest pleas, Anthony Moss was found guilty of seven misdemeanor offenses in the Hamilton County Municipal Court. At the time of sentencing, Moss was not serving a felony sentence, but he argued that the trial court should order the misdemeanor sentences to be served “concurrently” with a felony sentence he had previously served in a related case prosecuted in the Hamilton County Court of Common Pleas. The trial court imposed 60-day jail terms for each conviction, with credit for 11 days, and ordered those seven jail terms be served concurrently. Moss appealed from six of the convictions, challenging only the sentences imposed. We consolidated those appeals, and upon our review we affirm.
I. Facts and Procedural History
{¶2} The record demonstrates that on March 27, 2019, Moss was arrested and charged with multiple offenses in several cases. The charges included obstructing official business, resisting arrest, aggravated menacing involving Cincinnati police officers, criminal damaging, driving under a license suspension, carrying concealed weapons, having weapons under a disability, and harassment with a bodily substance.
{¶3} Moss was appointed counsel, who indicated at a probable cause hearing that Moss was under a parole holder. The cases were continued on the arraignment docket in Hamilton County until April 8, 2019, to await the grand jury report. Though bond had been initially set at $5000 for each charge, the judge subsequently raised the bond amount for two of the felony charges.
{¶4} After the grand jury reported, some of the charges became the felony case numbered B-1901628 (“the felony case“) that was prosecuted in the Hamilton County Court of Common Pleas. At the election of the defense, the remaining
{¶5} Because these cases were placed on the suspended docket, the bond amounts for the underlying charges retained by the municipal court were changed to no-cost bail, or a recognizance bond (“OR bond“), consistent with Hamilton County Municipal Court Local Rule 7.04. Also, as contemplated by the rule, the case was continued on the suspended docket at the request of defense counsel while the felony case proceeded in the Court of Common Pleas.
{¶6} At some point that is unascertainable from our record, Moss was convicted and ordered to serve a prison sentence in the felony case. On February 13, 2020, defense counsel moved for acceleration of the misdemeanor case and indicated the felony case was “still pending.” The following day, Moss entered not guilty pleas in the misdemeanor case, but our record does not contain a transcript of proceedings from that arraignment hearing.
{¶7} On February 18, 2020, the defense filed the first of many speedy-trial time waivers on Moss‘s behalf. That document was not signed by appointed counsel but by a different attorney, one retained by Moss.
{¶9} Moss ultimately changed his not guilty pleas in the misdemeanor and traffic cases to no-contest pleas. The trial court accepted his pleas and proceeded to sentencing in both the misdemeanor and traffic cases.
{¶10} At the sentencing hearing, retained counsel confirmed that Moss was not currently incarcerated, having been released from prison in August 2020 after serving “eleven months of a twelve month” sentence in the related felony case. Retained counsel, however, urged the court to consider that if Moss had been sentenced at the same time as the felony case, Moss would have benefited from the general rule, set forth in
{¶11} In response, the assistant prosecutor argued that Moss lost the benefit of
II. Analysis
{¶13} In three assignments of error, Moss challenges the sentences in the misdemeanor case on the ground that they were not ordered to be served “concurrently” with his previously served felony-case sentence. According to Moss, his sentences contravened the sentencing statute
A. Concurrent Sentences Are Served At the Same Time
{¶14} In his first assignment of error, Moss argues the trial court exceeded its statutory authority when it imposed a sentence of incarceration for misdemeanors in contravention of
{¶15} The trial court interpreted
{¶17} Our role in cases of statutory construction is to determine legislative intent by looking to the language of the statute and the purpose to be accomplished by the statute. See State v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 37-38, citing Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 20. When the statute‘s meaning is clear and unambiguous, we apply the statute as written. Id.
{¶18} We first note that if the trial court erred in its interpretation of
{¶19} This court has expressly determined that the challenged subsection only applies “when two or more sentences ‘of imprisonment’ are actually being ‘served.’ ” State v. Walton, 137 Ohio App.3d 450, 453, 738 N.E.2d 1258 (1st Dist. 2000); State v. McGurk, 6th Dist. Lucas No. L-95-207, 1996 Ohio App. LEXIS 1666, *4 (Apr. 26, 1996) (
{¶20} This reading of the statute is consistent with the dictionary definition of concurrent sentences. “Concurrent” means “operating at the same time” and
{¶21} In support of his current interpretation of
{¶22} The Polus court held that
{¶23} As Polus clarified, the challenged portion of
{¶24} For a court in a later proceeding to impose a misdemeanor sentence concurrent to a previously imposed “prison term or sentence of imprisonment in a state or federal correctional institution” for a felony, there must be an unsatisfied portion of the felony sentence to overlap with the misdemeanor sentence. If there is no overlap, the defendant cannot serve the misdemeanor sentence concurrently with
{¶25} Here, Moss completed the prison term imposed in the felony case before he was sentenced to imprisonment for misdemeanors in this case. Therefore, the felony and misdemeanor sentences could not be concurrently served and the limitation in
B. Ineffective-Assistance-of-Counsel Claim Based on Lack of Diligence Requires a Showing of Prejudice
{¶26} In his second assignment of error, Moss contends he was denied his constitutional right to the effective assistance of counsel. To prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that counsel‘s performance was deficient and that the defendant was prejudiced by counsel‘s deficient performance. State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶27} Moss‘s argument relates only to appointed counsel, and not retained counsel, who also represents Moss on appeal. Moss specifies that appointed counsel had not functioned as the counsel guaranteed under the federal and state constitutions when counsel failed to have the misdemeanor case removed from the suspended docket before he was transported from the Hamilton County Justice Center to serve his felony sentence in a prison. He concludes that “where [appointed] counsel abandons a case before it is completed and the defendant suffers additional
{¶28} In United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the companion case to Strickland, the United States Supreme Court recognized there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”
{¶29} The Cronic exception is a narrow one. The exception is limited to where “counsel entirely fails to subject the prosecution‘s case to meaningful adversarial testing,” Cronic at 659, where “counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding,” id. at fn. 25, or where an accused is denied “the right of effective cross-examination” of a witness. Id. at 659. “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability” of the result. Id. at fn. 26; State v. Pippin, 1st Dist. Hamilton No. C-060929, 2007-Ohio-5974, ¶ 13.
{¶30} Moss argues appointed counsel‘s representation triggered the Cronic exception because appointed counsel left him without representation and failed to take any action to protect Moss‘s eligibility to benefit from
{¶31} Our review of the record indicates that appointed counsel successfully moved the case from the suspended docket on February 13, 2020, when Moss‘s felony case was “still pending.” Although appointed counsel did not formally withdraw from representation, Moss became represented by retained counsel shortly after that date and remained represented by retained counsel through the date of the misdemeanor sentencing hearing. The record does not indicate on what date Moss was transferred from the Hamilton County Justice Center to begin serving his felony sentence, but it does show that retained counsel represented Moss long before Moss completed his felony sentence. These facts do not present the circumstances contemplated in Cronic, involving the actual or constructive denial of counsel, but instead suggest a lack of diligent representation. See Pippin at ¶ 17-18 (rejecting claim of actual or constructive denial of counsel). Accordingly, Moss must satisfy the prejudice prong of the Strickland test for this court to set aside his misdemeanor sentences.
{¶32} To establish prejudice, a defendant must demonstrate that there exists a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been different. See Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus, cited in State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 10. ” ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. at 142, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶34} First, Moss‘s claim of prejudice is based on his current assertion that he “served an 18-month prison sentence” in the felony case. He implies that because any sentence imposed in the misdemeanor case would be capped at 18 months in jail, by virtue of
{¶35} Moss‘s current position is based on evidence outside this record and is not supported by the information in the record. Moss and counsel represented at the sentencing hearing that Moss served “11 months of a 12 month sentence” in the felony case after being held in the justice center after his arrest in March 2019. Moss did not provide the trial court with the records from the felony case. And Moss‘s argument fails to address the fact that Moss undisputedly was not held on a money bond in the misdemeanor case after April 8, 2019.
{¶36} Our analysis is hampered by these deficiencies. As the assistant prosecutor emphasized at Moss‘s sentencing hearing,
{¶37} Whenever the court sentenced Moss, it could have imposed an aggregate 18-month sentence in the misdemeanor case, which would have only
{¶38} Admittedly, the trial court only imposed an aggregate 60-day sentence for the misdemeanor convictions, a term that would have overlapped the felony sentence had Moss been sentenced in the misdemeanor case at an earlier time. This scenario, however, assumes the trial court would have only imposed 60-day concurrent sentences in the misdemeanor case when sentencing Moss on that earlier date. We are unable to make that assumption on this record.
{¶39} Our reading of the sentencing transcript indicates that the trial court determined that due to the severity of the misdemeanor offenses the aggregate misdemeanor sentence should have exceeded the 12-month felony sentence Moss said he received. The underlying facts supporting the misdemeanor convictions show that Moss physically resisted arrest and then threatened to shoot several officers upon his release from jail. The assistant prosecutor argued these facts warranted a long sentence, the balance of which Moss would have had to serve upon the completion of his less-than-18-month-felony sentence.
{¶40} Ultimately, based on the record before us, we are not convinced that Moss would serve any less time for his misdemeanor convictions even if he had been sentenced in the misdemeanor case before he was transferred to prison and began serving his felony sentence. Thus, Moss has failed to demonstrate a reasonable
{¶41} The second reason Moss fails to make the requisite showing of prejudice relates to the 60-day jail sentence that the trial court imposed in the traffic case, to be served concurrently with the 60-day jail sentences in the misdemeanor case. Moss does not challenge the traffic-case sentence in this appeal. Thus, Moss will have to serve 60 days of “additional time” regardless of any alleged deficient performance by appointed counsel in the misdemeanor case.
{¶42} Consequently, we are unable to conclude that appointed counsel‘s performance with respect the misdemeanor sentences, even if deficient, resulted in the type of prejudice necessary to satisfy the prejudice prong of the Strickland test. Accordingly, we overrule the second assignment of error.
C. Misdemeanor Sentencing Review
{¶43} Finally, in his third assignment of error, Moss argues the sentences imposed in this case violate his constitutional rights to due process of law and fundamental fairness. Specifically, Moss asserts that the trial court‘s imposition of “separate sentences of incarceration” for felony and misdemeanor cases violates the purpose and intent of
{¶44} Moss did not raise a constitutional argument in the trial court, and he actually acknowledged that the trial court could impose “additional time” for the misdemeanor convictions. Thus, Moss waived his constitutional argument. Nonetheless, Moss did argue at the sentencing hearing that the imposition of a jail sentence would be inappropriate in light of the purposes of misdemeanor sentencing
{¶45} This court reviews the imposition of a misdemeanor sentence for an abuse of discretion. State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶ 15 (1st Dist.), cited in State v. Femuels, 1st Dist. Hamilton No. C-190486, 2020-Ohio-2926, ¶ 34.
{¶46} In this case, the trial court, when sentencing Moss, was required to consider the overriding purposes and principles of misdemeanor sentencing, as set forth in
{¶47} Further, by virtue of Moss‘s convictions, the trial court was permitted to impose jail sentences of up to 180 days for each of the four first-degree-misdemeanor offenses, and up to 90 days for each of the two second-degree-misdemeanor offenses, with an aggregate period not to exceed 18 months. See
{¶48} Finally, Moss does not identify anything presented at the time of sentencing that the trial court failed to consider. Based upon this record, Moss has failed to demonstrate the trial court abused its discretion when it sentenced him to
III. Conclusion
{¶49} We find no error prejudicial to Moss in the proceedings below. Consequently, we affirm the judgments of the trial court.
Judgments affirmed.
MYERS, P. J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion