STATE OF OHIO v. CEDRIC PARKER
No. 98272
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 3, 2013
2013-Ohio-2898
BEFORE: Keough, J., Jones, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-554064; RELEASED AND JOURNALIZED: July 3, 2013
Robert L. Tobik
Chief Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
APPELLANT
Cedric Parker
No. 623-848
P.O. Box 57
Marion Correctional Institution
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian R. Radigan
Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Cedric Parker, appeals his sentence. For the reasons that follow, we reverse Parker‘s sentence and remand to the trial court (1) to correct the plea journal entry to reflect that Parker pled guilty to the three-year firearm specification attendant to Count 8; (2) to correct the sentencing journal entry to reflect that Parker pled guilty to the three-year firearm specification on Count 8, but that the State dismissed the specification at sentencing; thus, no firearm specification sentence should have been imposed on Count 8; (3) for resentencing with consideration that it is not mandatory that the seven-year firearm specification run consecutive to the three-year firearm specification; and (4) for consideration on the record the required findings under
{¶2} In June 2011, the grand jury issued a 14-count indictment against Parker arising from a robbery and police shoot-out. Counts 1 through 5 charged Parker with aggravated robbery, each containing one- and three-year firearm specifications. Under Counts 6 and 7, Parker was charged with felonious assault of a peace officer, each count contained one-, three-, and seven-year firearm specifications. Counts 8 through 13 charged Parker with kidnapping, each containing one- and three-year firearm specifications. Count 14 charged Parker with disrupting public services, containing one- and three-year firearm specifications.
{¶4} During the plea hearing, a discussion occurred between the trial court and the parties about whether the seven-year firearm specification attendant to Count 6 was required to run consecutive to the three-year firearm specifications attendant to Counts 1, 2, and 8. The trial court stated that while the three- and seven-year specifications under Count 6 merged for sentencing, it was the court‘s position that the three-year specifications under Counts 1, 2, and 8 would not merge into that seven-year specification under Count 6, but that the two specifications were to be served consecutively. Accordingly, the сourt believed it was statutorily required that he order the firearm specifications consecutively. The trial judge stated: “Counts 1, 2, and 8 all related back to the original robbery, thus merge into one three-year firearm specification. But Count 6, the seven-year would be consecutive to the three years on Counts 1, 2, and 8.”
{¶6} The trial court sentenced Parker to four years under Count 1 consecutive to the three-year firearm specification, and six years on Count 8 to be served concurrently with thе four year base sentence under Count 1, for a total of nine years. Additionally, the court imposed an eight year sentence on Count 6, consecutive to the mandatory seven-year firearm specification and also consecutive to the three-year firearm specification under Count 1. Parker‘s total prison sentence was 24 years.
{¶7} Parker appeals, with two appellate briefs before us for review. His apрointed appellate counsel filed a brief setting forth one assignment of error, and Parker filed a brief setting forth three pro se supplemental assignments of error.
{¶8} In the sole assignment of error filed by counsel, Parker contends that the trial court erred when it found it was mandatory to run the seven-year gun specification under Count 6 consecutively with the three-year gun specification for Counts 1 when
{¶10} Parker also pled guilty to one count of felonious assault of a police officer in violation of
{¶11} Therefore, the trial court was correct in ordering that the three-year firearm specification be served consecutively to Count 1 and the seven-year specification consecutively to Count 6. However, the issue before this court is whether the trial court wаs then required to order that the three-year firearm specification attendant to Count 1
(a) Subject to division (C)(1)(b) of this section, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender‘s person or under the offender‘s control while committing a felony, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(c) of this section for committing a felony specified in that division by discharging a firearm from a motor vehicle, or if both types of mandatory prison terms are imposed, the offender shall serve any mandatory рrison term imposed under either division consecutively to any other mandatory prison term imposed under either division or under division (B)(1)(d) of this section, consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
(b) If a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(d) of this section for wearing or carrying body armor while committing an offense of violence that is a felony, the offender shall serve the mandatory term so imposed consecutively to any other mandatory prison term imposed under that division or under division (B)(1)(a) or (c) of this section, consecutively to and prior to any prison term imposed for the underlying felony under division (A), (B)(2), or (B)(3) of this sеction or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
(c) If a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(f) of this section, the offender shall serve the mandatory prison term so imposed consecutively to and prior to any prison term imposed for the underlying felony under division (A), (B)(2), or (B)(3) of this sеction or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
(d) If a mandatory prison term is imposed upon an offender pursuant to division (B)(7) or (8) of this section, the offender shall serve the mandatory prison term so imposed consecutively to any other mandatory prison term imposed under that division or under any other рrovision of law and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
{¶12} A reading of these divisions indicate that certain firearm specifications are required to run consecutively to each other. Specifically, in division (C)(1)(a), the mandatory three-year specification must be ordered to run not only consecutive to the prison term for the underlying felony, but also “consecutive to any other mandatory prison term imposed under either division [(B)(1)(a) or (B)(1)(c)] or under division (B)(1)(d) of [
{¶13} Furthermore, division (C)(1)(b) requires that the mandatory prison term must be served consecutive to the prison term imposed for the underlying felony, but also “consecutively to any other mandatory prison term imposed under [(B)(1)(d)] or under division (B)(1)(a) or (c) of [
{¶14} Additionally, division (C)(1)(d) also requires that the mandatory prison terms imposed pursuant to
{¶15} Therefore, and unlike the divisions cited and explained above — (C)(1)(a), (b), and (d) — division (C)(1)(c) does not have the express mandates of consecutive sentencing to any other divisions of
{¶16} We note that all the divisions under
{¶17} While nothing in
{¶18} Also contained in this assigned error, Parker contends his plea should be vacated because the advisement that the two firearm specifications were required to be ordered to run consecutively was erroneous. Upon review of the record, we find that the trial court substantially complied with
{¶19} In Parker‘s first pro se assignment of error, he cоntends that the trial court erred when it imposed sentences on allied offenses that were subject to merger pursuant to
{¶20} The test for determining whether two or more offenses are allied under
{¶21} We find that the record adequately sets forth facts that reveal that all the offenses are not allied. “It is well-settled in this district thаt when an offense is defined in terms of conduct towards another, there is dissimilar import for each person affected by
{¶22} Moreover, although the kidnаpping victim was also a victim named under the aggravated robbery count, the kidnapping of that victim was committed with a separate animus from the aggravated robbery. Parker completed the aggravated robbery when he held up the Family Dollar Store at gunpoint. Parker then exited the store and took the victim hostage while he fired on police officers. This was a separate, later offense that was committed with an animus that did not exist until Parker exited the store and was confronted by the officers. His decision to take the victim hostage and use her as a human shield against law enforcement officers subjected her “to an increase in the risk of harm that was separate and apart from the aggravated robbery.” State v. Martin, 11th Dist. No. 2012-L-043, 2013-Ohio-1944, ¶ 38, citing State v. Chaffer, 1st Dist. No. C-090602, 2010-Ohio-4471, ¶ 11; State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345, syllabus (“where the asportation or restraint exposes the victims to a substantial increase in the risk of harm separate and apart from the undеrlying crime of robbery, a separate animus exists for kidnapping.“)
{¶23} Accordingly, all the offenses are not allied, the trial court did not err in sentencing Parker for each of the offenses, and this pro se assignment of error is overruled.
{¶25}
{¶26} Parker was convicted of three first-degree felonies. Accordingly, his convictions are governed by
{¶27} At sentencing, the trial court stated that it “had the opportunity to review the Presentence Investigation Report, [R.C.] Sections 2929.11 for the principles and purposes of sentencing, [R.C.] Section 2929.12 for the seriousness and recidivism factors, and [R.C.] Section 2929.13 and other Revised Code sections for felony sentencing of the first degree.” Moreover, the trial court‘s sentencing journal entry stated that “prison is consistent with the purpose of
{¶29} Parker raises in his third pro se assignment of error that the trial court erred by imposing consecutive prison terms without making the requisite statutory findings pursuant to H.B. 86.
{¶30} H.B. 86 revived the requirement that statutory findings by the trial court are nеcessary prior to imposing consecutive sentences under
{¶31} Pursuant to
Because the statute so clearly requires specific findings for the imposition of consecutive sentences, those findings must be entered at the time the court orders sentences to be served consecutively. What we mean by this is that regardless of what the trial judge might say during sentencing regarding the purposes and goals of criminal sentencing, compliance with
R.C. 2929.14(C)(4) requires separate and distinct findings in addition to any findings relating to purposes and goals of criminal sentencing.
{¶33} In this case, the trial court stated,
Now let me explain a little bit here as to the sentence. Although the Defendant doеs not have a prior criminal — felony criminal record, you know, this is — this was a terror situation in terms of, you know, the taking of hostages, using an eighty-year-old woman as a shield against police officers, firing at police officers, placing people in danger of their lives. And this is — this is, you know, the combination of the two require, all the three cases here, require the imposition of — of prison terms that run consecutive. I believe that the harm indicated is — is not disproportionate to the sentences imposed here. And the harm is so great or unusual that the single term will not adequately reflect the seriousness of the conduct.
And although somebody‘s led a fairly decent life beforehand, you know, he got himself into situations where he compounded it, you know, terrorizing an eighty-year-old woman, placing officers in fear of their lives. * * * .
{¶34} Although the trial court made two of the required findings under
{¶35} Sentence reversed and case remanded to the trial court for resentencing for the limited purposes of (1) conducting a resentencing with consideration that it is not mandatory that the seven-year firearm sрecification run consecutive to the three-year firearm specification; and (2) to conduct a resentencing with consideration of the required findings under
{¶36} On remand the trial court is also ordered (1) to correct the plea journal entry to reflect that Parker pled guilty to the three-year firearm specification attendant to Count 8; and (2) to correct the sentencing journal entry to reflect that Parker pled guilty to the thrеe-year firearm specification on Count 8, but that the State dismissed the specification at sentencing; thus, no firearm specification sentence should have been imposed on Count 8.
It is ordered that the parties share equally in the 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. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
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
MARY EILEEN KILBANE, J., CONCUR