State v. MunsonState v. Munson
AFFIRMED IN PART, REVERSED IN PART, REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-515352
ATTORNEY FOR APPELLANT
Kelly A. Gallagher
P.O. Box 306
Avon Lake, Ohio 44012
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marcus L. Wainwright
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant Israel Munson appeals his sentence from the Cuyahoga County Court of Common Pleas. For the reasons outlined below, we affirm in part, reverse in part, and remand.
{¶ 2} On September 12, 2008, a Cuyahoga County grand jury indicted Munson and eight codefendants in a 15-count indictment. The charges included three counts of attempted murder, seven counts of felonious assault, and one count of criminal gang activity; the remaining charges did not apply to Munson. All counts that applied to Munson, with the exception of that for criminal gang activity, carried two firearm specifications and a criminal gang activity specification.
{¶ 3} On September 1, 2008, Munson and the eight codefendants, who were allegedly members of the gang “Skulls,” confronted several teens who were believed to be members of a rival gang. At least one of the codefendants brandished a gun during the encounter. In the ensuing confrontation, gunshots were fired, one victim was shot, and another victim was pistol-whipped.
{¶ 4} Although the state originally offered a joint plea deal, ultimately the state offered pleas to the individual defendants. On February 23, 2009, Munson pleaded guilty to one count of felonious assault, in violation of
{¶ 5} On March 31, 2009, the trial court held a sentencing hearing, at which it sentenced Munson to five years in prison and a $250 fine for each count, to run consecutive, for a total of ten years and a $500 fine. Munson filed the instant appeal, raising four assignments of error for our review.
{¶ 6} “I. Appellant‘s consecutive sentences are contrary to law and violative of due process because the trial court failed to make and articulate the findings and reasons necessary to justify it.”
{¶ 7} In his first assignment of error, Munson argues that statutory findings for imposing consecutive sentences are required by implication of the United States Supreme Court‘s decision in Oregon v. Ice (2009), ___U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517.
{¶ 8} Our review of the sentencing hearing transcript demonstrates that the trial court did not place its findings on the record before imposing consecutive sentences on Munson. However, “[w]e have found, that where the record is silent, an appellate court may presume that the trial court considered the statutory factors when imposing a sentence.” State v. Castellon, Cuyahoga App. No. 92733, 2010-Ohio-360. And while some may
{¶ 9} Munson‘s argument is that State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, is no longer good law, in light of Oregon v. Ice, supra. In State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, the Ohio Supreme Court acknowledged the Oregon decision, yet chose to follow its Foster decision, reiterating that trial courts “‘are no longer required to make findings or give their reasons for maximum, consecutive, or more than the minimum sentences.‘” Elmore, supra at 482, quoting Foster. Until the Ohio Supreme Court states otherwise, this court continues to follow Foster. State v. Pinkney, Cuyahoga App. No. 91861, 2010-Ohio-237; State v. Eatmon, Cuyahoga App. No. 92048, 2009-Ohio-4564.
{¶ 10} In any event, even under pre-Foster law, in a time where many believed a more complete record was created, this did not stop claims or assertions that sentences imposed were disproportionate or unfair. The simple truth is that until the Ohio legislature decides to revisit our sentencing framework, claims of disproportionate sentences will continue unabated regardless of whether the principles of Oregon v. Ice are applied or we retain the rule of law in Foster.
{¶ 11} Accordingly, Munson‘s first assignment of error is overruled.
{¶ 13} In his second assignment of error, Munson argues the trial court neglected to advise him at his sentencing hearing that he would be subject to postrelease control. The state concedes this argument.
{¶ 14} The Ohio Supreme Court has held that if a trial court completely fails at the plea hearing to mention a mandatory period of postrelease control, which falls under the category of “maximum penalty involved,” the plea must be vacated. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224. Additionally, the trial court must properly inform the defendant of postrelease control at the sentencing hearing, even if it has already done so during the plea proceedings. State v. Bailey, Clark App. No. 2007 CA 121, 2008-Ohio-5357. The Ohio Supreme Court in State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, held that “[b]ecause a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing, any sentence imposed without such notification is contrary to law” and void, and the cause must be remanded for resentencing. Id. at 23, 27.
{¶ 15} State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus, mandates: “For criminal sentences imposed on and after July 11, 2006, in which a trial court failed to
{¶ 16} Here, the trial court informed Munson at the plea hearing that he could be subject to postrelease control. At the sentencing hearing, however, the trial court failed to mention postrelease control at all.
{¶ 17} Thus, Munson‘s second assignment of error is sustained; therefore, we remand for the trial court to employ the “sentence-correction mechanism” of
{¶ 18} “III. Appellant‘s convictions for felonious assault and criminal gang activity are allied offenses of similar import and the convictions must merge into a single conviction.”
{¶ 19} In his third assignment of error, Munson argues that the trial court erred in not merging his conviction for felonious assault with his conviction for criminal gang activity. We disagree.
{¶ 20}
{¶ 22} Here, Munson was convicted of felonious assault and criminal gang activity. Felonious assault requires: “No person shall knowingly do either of the following: * * * (2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.”
{¶ 23} Even a cursory review of the two statutes demonstrates the two offenses are not allied. The elements of each crime are separate and distinct, and are not aligned whatsoever. Furthermore, the commission of felonious assault does not necessarily result in the commission of criminal gang activity, nor will the reverse occur.
{¶ 24} We find no Ohio case where an appellate court merged convictions for felonious assault and criminal gang activity under
{¶ 25} “IV. Appellant‘s sentence is contrary to law and violative of due process because the trial court failed to consider whether the sentence was consistent with the sentences imposed for similar crimes committed by similar offenders and because a ten-year sentence for a first-time offender is inconsistent with such sentences.”
{¶ 27}
{¶ 28} While
{¶ 30} The sentencing entry indicates that the trial court considered all required factors of the law. Furthermore, Munson‘s failure to raise arguments regarding similarly situated offenders at the time of sentencing precludes him from raising them now. His fourth assignment of error is overruled.
Judgment affirmed in part, reversed in part, and cause remanded. It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
CHRISTINE T. MCMONAGLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR