State v. RameyState v. Ramey
Rendered on the 18th day of March, 2011.
ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
DAWN S. GARRETT, Atty. Reg. No. 0055565, 7865 Paragon Road, Suite 107, Centerville, Ohio 45459
Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Keith Ramey appeals his conviction and sentence for one count of aggravated robbery (deadly weapon), in violation of
I
{¶ 2} On October 13, 2009, Ramey was jointly indicted with co-defendant Jonathan Keeton in Case No. 09-CR-0869 for one count of aggravated robbery (deadly weapon), one count of aggravated robbery (serious physical harm), one count of felonious assault (deadly weapon), one count of felonious assault (serious physical harm), and one count of breaking and entering. The aggravated robbery and felonious assault charges each contained a firearm specification. Subsequently, on December 21, 2009, Ramey and Keeton were indicted on an additional charge in Case No. 09-CR-1051 for having a weapon while under disability.
{¶ 3} All of the charges against Ramey and Keeton stem from incidents which occurred on October 6, 2009, wherein the defendants were accused of breaking and entering into and stealing from “Nasty N8‘s” tattoo parlor located at 805 East Main Street in Springfield, Ohio. The owner of the tattoo parlor reported that tattoo equipment, ink, a laptop computer, a printer, and cell phones were missing after the break-in.
{¶ 4} Ramey and Keeton were also accused of beating and robbing an individual
{¶ 5} At his arraignment on October 16, 2009, Ramey pled not guilty to the charges in the indictment. Ramey‘s bond was set at $50,000.00. Ramey did not post bond and, therefore, remained incarcerated pending trial. Keeton‘s bail was also set at $50,000.00 by the trial court, but he posted that amount on October 30, 2009, and was released from jail until the trial.
{¶ 6} Due to a conflict of interest, Ramey‘s appointed counsel filed a motion to withdraw on October 16, 2009. On October 20, 2009, the trial court granted the motion to withdraw, and Ramey was appointed new counsel. The case was also reassigned to Judge Richard P. Carey of the Clark County Court of Common Pleas, Probate Division, on November 10, 2009.
{¶ 7} On December 10, 2009, co-defendant Keeton filed a motion to suppress physical evidence seized by police, as well as statements made by Keeton after his arrest. As previously stated, the State filed a second indictment on December 21, 2009, charging
{¶ 8} On February 1, 2010, Ramey filed a motion to dismiss for violation of his right to a speedy trial. After a brief hearing during which the court heard arguments from both parties, the court overruled Ramey‘s motion. The trial court also moved the trial date to February 2, 2010, explaining that the courtroom was being used by the Second District Court of Appeals for oral arguments.
{¶ 9} After a three-day jury trial, Ramey was found guilty of two counts of aggravated robbery with firearm specifications, one count of felonious assault (deadly weapon), and one count of having a weapon while under disability. The jury аcquitted Ramey of felonious assault (serious physical harm) and breaking and entering. At the sentencing hearing on February 8, 2010, the court merged the two counts of aggravated robbery and sentenced Ramey to three years on the firearm specification, eight years for the aggravated robbery, five years for felonious assault, and one year for having a weapon while under disability. The court ordered that the three-year term for the firearm specification was to be served consecutively and prior to the other sentences, which were to be served concurrently to one another, for an aggregate prison sentence of eleven years.
{¶ 10} It is from this judgment that Ramey now appeals.
{¶ 11} Because it is partially dispositive of the instant appeal, Ramey‘s second assignment of error will be discussed out of order as follows:
{¶ 12} “DEFENDANT WAS DENIED HIS CONSTITUTIONAL AND STATUTORY RIGHTS TO A SPEEDY TRIAL.”
{¶ 13} In his second assignment, Ramey argues that the trial court erred when it overruled his motion to dismiss the indictment against him in its entirety because he was denied his constitutional and statutory rights to a speedy trial.
{¶ 14} The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Ohio‘s speedy trial statutes,
{¶ 15}
{¶ 16} “The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
{¶ 17} “* * *
{¶ 19} “* * *
{¶ 20} “(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
{¶ 21} “* * *
{¶ 22} “(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion.”
A. First Indictment - 2009-CR-0869
{¶ 23} Ramey was arrested and jailed on Octоber 7, 2009. On October 13, 2009, Ramey was jointly indicted with co-defendant Jonathan Keeton in Case No. 09-CR-0869 for one count of aggravated robbery (deadly weapon), one count of aggravated robbery (serious physical harm), one count of felonious assault (deadly weapon), one count of felonious assault (serious physical harm), and one count of breaking and entering. As previously noted, Ramey remained incarcerated on these charges pending trial. Thus, each day he remained in jail counted as three days, and the State had 90 days from the date of his arrest to bring him to trial.
{¶ 24} On October 16, 2009, Ramey‘s appointed counsel filed a motion to withdraw based on a conflict of interest. The court granted counsel‘s motion and appointed new counsel on October 20, 2009. The pendency of the motion to withdraw tolled Ramey‘s
{¶ 25} Ramey‘s speedy trial time was tolled again on December 10, 2009, when his co-defendant Keeton filed a motion to suppress. In State v. Smith, Clark App. No. 03-CA-93, 2004-Ohio-6062, we held that pursuant to
B. Second Indictment - 2009-CR-1051
{¶ 26} As previously noted, Ramey and Keeton were both charged with having a weapon while under disability in a second indictment filed on December 21, 2009. Because the new charge arose out of the same facts as the original charges in the first indictment, the time to bring Ramey to trial on the charge in the second indictment ran from the date of his initial arrest on October 7, 2009. State v. Jones, Montgomery App. No. 20862, 2006-Ohio-2640. Additionally, the State also points out that any speedy trial tolling event which occurred prior to the new indiсtment does not operate to extend the time to bring the defendant to trial on the new indictment. Id.; State v. Homan, 89 Ohio St.3d 421, 2000-Ohio-212 (overruled on other grounds).
{¶ 27} Accordingly, in Case No. 09-CR-1051, Ramey‘s speedy trial time ran from October 7, 2009, until December 29, 2009, when his co-defendant Keeton filed a supplemental motion to suppress. At that point, 83 days had elapsed which counted towards Ramey‘s speedy trial time. Time began to run again on January 6, 2010, when the trial court overruled Keeton‘s motion to suppress. From January 6, 2010, until February 2, 2010, when the trial began, another 27 elapsed, for a total of 110 days, which is clearly in excess of the 90 days allowable under
{¶ 28} The Statе argues that because Ramey‘s counsel “agreed” to the February 1, 2010, trial date when that date was set by the court in its January 6, 2010, entry, the time to bring Ramey to trial on the weapons under disability charge in Case No. 09-CR-1051 was tolled again and extended under
{¶ 29} The entry filed by the court on January 6, 2010, however, only refers to Case No. 09-CR-869. One day later, on January 7, 2010, the State filed a motion to consolidate Case No. 09-CR-869 with Case No. 09-CR-1051, and the trial court did not grant the State‘s motion until January 13, 2010. Since thе entry filed on January 6, 2010, only refers to Case No. 09-CR-869, it could not act to toll the speedy trial time in Case No. 09-CR-1051 as the
{¶ 30} Ramey‘s second assignment of error is sustained as to the weapons while under disability charge but overruled as to all other counts.
III
{¶ 31} Ramey‘s first assignment of error is as follows:
{¶ 32} “THE TRIAL COURT ERRED AND VIOLATED DEFENDANT‘S STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT SENTENCED DEFENDANT, AND DEFENDANT IS ENTITLED TO AN APPEAL AS OF RIGHT BECAUSE THE MAXIMUM WAS IMPOSED ON THE HIGHEST OFFENSE.”
{¶ 33} In his first assignment, Ramey contends that the counts of felonious assault and having a weapon while under disability should have been merged with the aggravated assault counts because they are allied offenses of similar import. Ramey also argues that the trial court erred when it sentenced him to the maximum term for the merged aggravated robbery count and the felonious assault count.
{¶ 34}
{¶ 35} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 36} “(B) Where the defendant‘s conduct constitutes two or more offenses of
{¶ 37} ”
{¶ 38} In Johnson, the Ohio Supreme Court recently clarified the process by which courts determine whether offenses are allied offenses of similar import. Johnson overruled Rance “to the extent that it calls for a comparison of statutory elements solely in the abstract under
{¶ 39} Johnson states that “the intent of the General Assembly is controlling.” Id. at ¶46. “We determine the General Assembly‘s intent by applying
{¶ 40} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.‘” Id. at ¶49 (citation omitted). “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.” Id. at ¶50. “Conversely, if the court determines that the commission of onе offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶ 41} We have recently held that felonious assault, pursuant to
{¶ 42} According to Johnson, the question is whether it is possible to commit one offense and commit the other with the same conduct (not whether it is possible to commit one without committing the other). State v. Moore, Greene App. No. 2010-CA-13, 2010-Ohio 636. The conduct required for the commission of an aggravated robbery could also result in the commission of a felonious assault. In the instant case, however, the evidence adduced during the trial established that the aggravated robbery was committed with a separate animus from thе felonious assault. Specifically, when Ramey and Keeton initially exited the vehicle and chased down Fannon, their intention was to assault him, i.e. Ramey shocked him repeatedly with the taser and Keeton hit him with the butt of the handgun. It was only after they had assaulted and subdued Fannon that Ramey and Keeton decided to rob him of his jewelry, as well. Thus, the trial court properly concluded that the offenses were not allied offenses of similar import and did not err when it refused to merge the aggravated robbery with the felonious assault for the purposes of sentencing.
{¶ 43} Since the count for having а weapon while under disability should have been
{¶ 44} A trial court has broad discretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless the trial court abused its discretion. State v. Reese, Mont. App. No. 21825, 2007-Ohio-6696; State v. Durham, Mont. App. No 21589, 2007-Ohio-6262; State v. Rose, Mont. App. No. 21673, 2007-Ohio-4212; State v. Slone, Greene App. No. 2005 CA 79, 2007-Ohio-130. The term “abuse of discretion” implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 54. A court will not typically be found to have abused its discretion in sentencing if the sentence it imposes is within the statutory limits. State v. Muhammad, Cuyahoga App. No. 88834, 2007-Ohio-4303; State v. Burge (1992), 82 Ohio App.3d 244, 249.
{¶ 45} Contrary to Ramеy‘s assertion, the trial court did not abuse its discretion when it sentenced him to eight years for aggravated robbery and five years for felonious assault with both sentences to run concurrently. First, the trial court did not sentence Ramey to the maximum allowable term for aggravated robbery nor felonious assault. Aggravated robbery is a felony of the first degree, punishable by up to ten years in prison.
{¶ 46} Lastly, Ramey argues that the court failed to consider any mitigating factors
{¶ 47} After Foster, trial courts are not required to make any findings or give reasons before imposing any sentеnce within the authorized statutory range, including maximum, consecutive, or more than minimum sentences, Foster, syllabus at ¶ 7. Courts, nevertheless, are still required to comply with the sentencing laws unaffected by Foster, such as
{¶ 48} In the instant case, based upon the record before us, we presume that the trial court considered the appropriate statutory factors. At the sentencing hearing, the court afforded both defense counsel and the prosecuting attorney the opportunity to speak prior to
{¶ 49} In light of the foregoing, we find that the trial court did not abuse its discretion when it sentenced Ramey to eight years for aggravated robbery and five years for felonious assault, both sentences to run concurrently.
{¶ 50} Ramey‘s first assignment of error is overruled.
IV
{¶ 51} Ramey‘s third assignment of error is as follows:
{¶ 52} “DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 53} In his third assignment, Ramey argues that he received ineffective assistance when his counsel failed to file a motion to sever his case from that of his co-defendant, Keeton. Ramey also asserts that his counsel was deficient for failing to object to his case being transferred to and heard by a trial judge in the probate division.
{¶ 54} “When considering an allegation of ineffective assistance of counsel, a
{¶ 55} For a defendant to demonstrate that he has been prеjudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, absent counsel‘s errors, the result of the trial would have been different. Bradley, at 143. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, at 694.
{¶ 56} Initially, Ramey argues that defense counsel provided ineffective assistance of counsel for failing to file a motion to sever his case from his co-defendant‘s case. Specifically, Ramey asserts that he was prejudiced by the failure to file a motion to sever beсause Keeton‘s motion to suppress extended the time in which the State had to bring him to trial.
{¶ 57} Joinder is governed by
{¶ 58} “When two or more persons are jointly indicted for felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately.”
{¶ 60} “If it appears that a defendant or the state is prejudiced by a joinder of *** defendants in an indictment, *** or by such joinder for trial together of indictments, ***, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires.”
{¶ 61} Upon review, Ramey has failed to establish that his counsel‘s failure to file a motion to sever would have changed the outcome of the trial. The charges in both indictments involved Ramey and Keeton acting in concert with each other. There is nothing in the record which establishes that joinder of the defendants’ case was prejudicial to either Ramey or Keeton. Accordingly, Ramey‘s counsel was not ineffective for failing to file a mоtion to sever.
{¶ 62} Ramey also asserts that his counsel was ineffective for failing to object to the Common Pleas Court presiding judge‘s assignment of his case to a judge in the probate court, rather than to another judge in the general criminal division. In State v. Bays (1999), 87 Ohio St.3d 15, 28, the defendant argued that his counsel should have objected to the presence of a probate judge on the panel in a capital case. The Ohio Supreme Court in Bays held that “counsel had no duty to object to the presence of the probate judge, for ‘[i]t is not ineffective assistance for a trial lawyer to maneuver within the existing law, declining to present untested or rejected legal theories.’ ” Id., citing State v. McNeill (1998), 83 Ohio St.3d 438, 449. It should also be noted that the presiding judge of a court of common pleas can assign a judge of one division of the same court to another division. Knoop v. Knoop, Montgomery App. No. 22037, 2007-Ohio-5178. Thus, we find that Ramey‘s counsel was not ineffective for failing to object to the appointment of the probate judge to preside over his case.
{¶ 63} Ramey‘s third assignment is overruled.
V
{¶ 64} Ramey‘s fourth and final assignment of error is as follows:
{¶ 65} “IT WAS ERROR TO DENY THE DEFENDANT‘S MOTION TO DISMISS THE WEAPONS UNDER DISABILITY CHARGE; AND THE OVERALL VERDICTS AND ESPECIALLY THE FIREARMS SPECIFICATION[S] WERE BASED UPON INSUFFICIENT EVIDENCE AND/OR WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 66} In his fourth and final assignment, Ramey contends that the trial court erred when it denied his motion to dismiss the weapons under disability charge in Case No. 09-CR-1051. Ramey alsо argues that his convictions for aggravated robbery, with the attendant firearm specification, as well as felonious assault were not supported by sufficient
{¶ 67} “A challenge to the sufficiency of the evidence differs from a challenge to the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101, 112, 2005-Ohio-6046. “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ (Internal citations omitted). A claim that a jury verdict is against the manifest weight of the evidence involves a different test. ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” Id. (Internal citations omitted).
{¶ 68} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230, 231. “Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the mаnifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to
{¶ 69} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 70} After a thorough review of the record, we find that the State adduced sufficient evidence at trial to support Ramey‘s convictions for aggravated robbery and felonious assault. Daniel Miller and Amber Miller testified that they observed Ramey, along with Keeton, chase Fannon down. They also testified that Ramey was in possession of a taser, and Keeton had a handgun. Once Ramey caught up with Fannon, he stunned him repeatedly with a taser, and robbed him of his jewelry. Daniel Miller testified that during the assault he also observed Keeton strike Fannon with the butt of the handgun. An individual indicted for and convicted of violating
{¶ 71} Lastly, Ramey‘s conviction is also not against the manifest weight of the evidence. The credibility of the witnesses and the weight to be given their testimony are matters for the jury to resolve. Ramey testified on his own behalf, and he simply
{¶ 72} Ramey‘s fourth assignment of error is overruled.
VI
{¶ 73} In light of our disposition with respect to Ramey‘s second assignment of error, his conviction for having weapons while under disability is reversed and vacated. In all other respects, the judgment of the trial court is affirmed.
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Andrew R. Picek
Dawn S. Garrett
Hon. Richard P. Carey