State v. RossState v. Ross
Robert E. Dintaman
The Standard Building
1370 Ontario Street
Suite 330
Cleveland, Ohio 44113
Paul A. Mancino
Mancino, Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward D. Brydle
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Larry Ross (“Ross“), appeals the consecutive sentence he received upon resentencing. We find no merit to the appeal and affirm; however, we remand this case to the trial court to correct its sentencing entry with a nunc pro tunc entry.
{¶2} Ross was convicted after a jury trial of aggravated robbery, kidnaping, grand theft of a motor vehicle, petty theft, criminal damaging, having weapons while under disability, and tampering with evidence. The aggravated robbery and kidnaping convictions included one- and three-year firearm specifications. Ross was also convicted of felonious assault of a police officer together with one-, three-, and seven-year firearm specifications as alleged in Count 5 of the indictment. These charges resulted from Ross having fired a gun at a police officer who was chasing him while he was fleeing from the crime scene.
{¶3} The court found Ross guilty of the notices of prior conviction, repeat violent offender specifications, and forfeiture specifications attendant to the aggravated robbery, kidnaping, and felonious assault charges. The trial court imposed a consecutive 21-year prison term, and Ross appealed. This court affirmed Ross‘s convictions but remanded the case to the trial court “for resentencing only as to the sentence imposed on Count 5,
{¶4} On remand, the trial court sentenced Ross to five years on the underlying felonious assault charge. The court merged the one-, three-, and seven-year firearm specifications into a single seven-year term to be served prior to and consecutive to the five years on the underlying felonious assault. The court ordered the aggregate 12 years on Count 5 run consecutive to the period of imprisonment on the other counts for which Ross had previously been sentenced in this case. Ross now appeals this new sentence and raises seven assignments of error.
Allocution
{¶5} In the first assignment of error, Ross argues the trial court denied him his constitutional right of allocution at the time of resentencing.
{¶6}
{¶7} The purpose of allocution is to afford the defendant an opportunity to present additional information to the court that it may consider when fashioning an appropriate sentence. Defiance v. Cannon, 70 Ohio App.3d 821, 828, 592 N.E.2d 884 (3d Dist.1990). A trial court complies with a defendant‘s right of allocution when it addresses the defendant personally and asks whether he has anything he would like to say on his own behalf. State v. Green, 90 Ohio St.3d 352, 359, 738 N.E.2d 1208 (2000), citing Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).
{¶8} Despite Ross‘s argument to the contrary, Ross was afforded his right to allocution but he chose not to make a statement. At the sentencing hearing, the court asked Ross‘s lawyer if he had anything he wanted to say on behalf of his client. After the lawyer commented briefly, the court turned to Ross and asked: “Mr. Ross, what would you like to say on your own behalf?” Ross made no reply and his lawyer stated: “Judge, he‘s not going to address the Court.” Just because Ross declined the court‘s offer to make a statement in his own defense does not mean he was deprived of his right of allocution.
{¶9} The first assignment of error is overruled.
Firearm Specifications
{¶10} In the second assignment of error, Ross contends the trial court erred in failing to merge the seven-year firearm specification attendant to the felonious assault charge with the one- and three-year firearm specifications attendant to the aggravated robbery and kidnaping charges. He contends all the firearm specifications from all the charges should have merged into a single seven-year prison term.
{¶11} Despite defense counsel‘s request at the original sentencing to merge all the firearm specifications, the trial court did not merge the seven- year firearm specification
{¶12} “Where an argument could have been raised on an initial appeal, res judicata dictates that it is inappropriate to consider that same argument on a second appeal following remand.” State v. D‘Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995). Accord State v. Gillard, 78 Ohio St.3d 548, 549, 679 N.E.2d 276 (1997) (on appeal after remand, “new issues” are barred by res judicata). Ross could have raised the merger of all firearm specifications as error in his first appeal but failed to do so. Therefore, this argument is barred by res judicata.1
{¶13} The second assignment of error is overruled.
Prior Recollection
{¶14} In the third assignment of error, Ross argues the trial court violated his right to due process because it relied upon its recollection of the first sentencing hearing when
{¶15} In support of this argument, Ross relies on State v. Mattox, 8 Ohio App.2d 65, 220 N.E.2d 708 (10th Dist.1966), which we find distinguishable to the facts of this case. In Mattox, the trial court denied a petition for postconviction relief. Although the trial court in Mattox held an evidentiary hearing, it denied the petition based upon the court‘s personal recollection of evidence presented at trial. That evidence was not presented at the postconviction hearing. In reversing the trial court‘s judgment, the court explained that “[w]hen a trier of facts relies upon personal knowledge, he necessarily deprives the litigant of the right of confrontation, cross-examination and an impartial tribunal.” Id. at 68.
{¶16} Ross‘s appeal does not involve a postconviction relief petition; it concerns the new sentence he received on remand. Pursuant to
{¶17} The transcript of the first sentencing hearing, which included the victim impact statements, was part of the record. In accordance with
{¶18} The third assignment of error is overruled.
Judicial Factfinding
{¶19} In the fourth assignment of error, Ross argues the trial court violated his Sixth Amendment right to a jury trial when it sentenced him to more than the minimum sentence as a result of judicial factfinding. Specifically, Ross refers to the court‘s observation that he “showed no remorse.” In support of his argument, Ross relies on the Sixth Amendment jurisprudence enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
{¶20} In Apprendi and Blakely, the United States Supreme Court held that a jury must determine any fact, other than a prior conviction, that increases the maximum authorized penalty for a crime. Apprendi at syllabus; Blakely at syllabus. Pursuant to Apprendi and Blakely, the Ohio Supreme Court held that former
{¶21} Although Foster eliminated mandatory judicial fact-finding, it left
{¶22}
{¶23}
{¶24} The fourth assignment of error is overruled.
Consecutive Sentences
{¶25} In the fifth assignment of error, Ross argues he was denied due process of law when the court ordered his sentence to run consecutively because it based its decision on “rote recitation” of the language contained in
{¶26}
(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
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense.
(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.
“[A] word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Id. The failure to make the findings, however, is “contrary to law.” Bonnell at ¶ 37.
{¶27} Although no explanations were necessary, the trial court in this case did more than merely recite language from the statute. In finding that consecutive service was necessary to protect the public and to punish Ross, and was not disproportionate to
[Father] also testified that his son had to see a psychiatrist so certainly there was an amount of trauma associated with being forced into the van and then the defendant having him take his pants off, stealing his iPod, going down the street a couple blocks, then ultimately throwing him out of the vehicle without his pants on and no phone, no means to contact anyone.
And this Court believes that this young man was frightened to death based upon what was heard at the time of trial. * * *
Also, speaking of Officer Nan * * * shots had been fired at a police officer. Officer Nan was running * * * trying to pursue the defendant, and the defendant was firing at him and as Officer Nan stated, the defendant was not too far away, and it would have hit him in the head and shoulder and could have absolutely killed him.
{¶28} The court further recited Ross‘s criminal record, which included a prior felonious assault conviction with a one-year firearm specification. Although Ross served a prison term, the court observed that the sentence “did not change Mr. Ross’ behavior in any way.” Based on these facts, the court found that
the consecutive sentence is necessary to protect the public from future crime and to punish the offender, and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger he poses to the public and * * * the defendant was out on bond in two other cases when this offense was committed.
{¶29} Although the trial court was not required to provide reasons for its findings, the trial court in this case offered a detailed analysis in support of its findings. However, the trial court did not state its findings in the journal entry. “A trial court‘s inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law.”
Postsentence Behavior
{¶30} In the sixth assignment of error, Ross argues the court should have considered his behavior during the intervening period from the original sentencing and the resentencing hearing. However, as previously stated, Ross decided not to exercise his right of allocution and did not provide the court with any information concerning his postsentence behavior. Nor does Ross identify in the record any information regarding his behavior after the first sentencing as required by
Date of Offense
{¶31} In the seventh assignment of error, Ross argues the trial court erred when it imposed his consecutive sentence because it applied the wrong felony sentencing statute. Ross contends the trial court should have applied the sentencing law in effect at the time the offense was committed.
{¶32} Ross was indicted on September 20, 2011, for offenses he allegedly committed on April 11, 2011. On September 30, 2011, the General Assembly, enacted H.B. 86, which, as previously stated, revived the requirement that trial courts make findings before imposing consecutive sentences under
{¶33} Therefore, the seventh assignment of error is overruled.
{¶34} The trial court‘s judgment is affirmed. However, we remand this case to the trial court for the sole purpose of correcting the sentencing entry dated November 9, 2013, with a nunc pro tunc entry to reflect the findings the court made on the record. Journal entries must conform to the demonstrated record. See
It is ordered that appellee recover from 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 common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for correction of the journal entry.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR