Case Information
*1
[Cite as
State v. Van Horn
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 98751
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
JADELL VAN HORN
DEFENDANT-APPELLANT JUDGMENT:
AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-551978
BEFORE: Kilbane, J., Jones, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: May 16, 2013 *2 ATTORNEY FOR APPELLANT
John T. Castele
614 West Superior Avenue
Suite 1310
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Kevin R. Filiatraut
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Jadell Van Horn (“Van Horn”), appeals from his guilty plea and sentence for aggravated murder and other offenses. For the reasons set forth below, we affirm. The record reflects that on July 6, 2011, Van Horn and five other
individuals were indicted in Case No. CR-551978 [1] pursuant to a seventeen-count indictment following the March 7, 2011 shooting death of Navario Banks (“Banks”) at his home in Warrensville Heights. As it pertains to Van Horn, the indictment charged him with aggravated murder (prior calculation and design), aggravated murder (felony murder in connection with aggravated burglary), aggravated murder (felony murder in connection with aggravated robbery), and aggravated murder (felony murder in connection with kidnapping), and two counts each of aggravated burglary, aggravated robbery, and kidnapping, all with one- and three-year firearm specifications, notice of a prior conviction, repeat violent offender specifications, and forfeiture of a weapon specifications. The record also indicates that Van Horn was indicted in Case
No. CR-548943 [2] in connection with the alleged March 8, 2011 attack on Erik Cromwell *4 (“Cromwell”). This indictment charged him with one count of attempted murder and two counts of aggravated robbery, all with one- and three-year firearm specifications, notice of a prior conviction, repeat violent offender specifications, and having a weapon while under disability. On January 31, 2012, Van Horn filed a motion to suppress in Case No.
CR-551978, alleging that the police had improperly obtained his text messages and cell phone records to determine his location at the time Banks was attacked. The trial court held a hearing on March 1, 2012. Warrensville Heights Police Detective Dennis Fossett (“Fossett”) testified that Banks spoke with several individuals on his cell phone immediately before he was murdered. The last phone call that he received was from Van Horn. Van Horn agreed to speak with the police, and eventually implicated himself, stating that Banks was forced to his knees and shot in the head, in connection with a robbery. The police also obtained a search warrant to search Van Horn’s cell phone and subpoenaed additional phone records from his cell phone provider. The trial court denied the motions to suppress, and on March 20, 2012, Van
Horn entered into a plea agreement with the state of Ohio, whereby he pled guilty to all of the charges in both pending cases. At this time, the court explained all of the potential penalties for all of the offenses in both Case No. CR-551978 and Case No. CR-548943. The court then stated:
The Court: [D]o you understand that that is the range of possible sentences on each of these charges in these two indictments?
The Defendant: Yes, sir.
{¶6} The trial court sentenced Van Horn in both matters on April 18, 2012. In Case No. CR-551978, the trial court merged the aggravated murder convictions into a single count (Count 1) and sentenced him to 25 years to life for that count. The court also merged the aggravated burglary charges into a single count (Count 5) and sentenced him to a concurrent five-year term. The court merged the aggravated robbery and kidnapping charges into a single count (Count 7) and sentenced him to a concurrent ten-year term. The court also imposed a three-year consecutive term for the firearm specifications and a five-year consecutive term for the repeat violent offender specifications, for a total term of 33 years to life. [3] In Case No. CR-548943, the trial court merged the aggravated robbery
convictions into a single count (Count 1) and sentenced Van Horn to five years for that offense. The court imposed a concurrent five-year term on the attempted murder charge, a concurrent one-year term for the charge of having a weapon while under disability, and a consecutive three-year term for the firearm specification. The court also imposed five years of mandatory postrelease control sanctions. The trial court ordered that this term, totaling eight years, be served consecutively to the term imposed in Case No. CR-551978. [4] Van Horn now appeals and assigns four errors for our review.
Assignment of Error One
The trial court erred in accepting the defendant’s guilty pleas as such pleas were not entered into knowingly, intelligently and thus voluntarily because of the trial court’s failure to advise the defendant of the maximum penalties associated with his guilty pleas. Within this assignment of error, Van Horn complains that he understood
that he would receive an aggregate sentence of 26 years to life, but that the court did not inform him that he could receive consecutive time as to all counts, which would total 63 years to life or life without parole. He further complains that the court did not inform him that the term could be ordered to be served consecutively to his sentence in case No. CR-548943, and he did not understand the maximum penalty; therefore, his plea was not knowingly, intelligently, and voluntarily entered. Before accepting a no contest or guilty plea, the trial court must determine
whether the defendant has knowingly, intelligently, and voluntarily entered the plea.
Crim.R. 11(C);
State v. Johnson
,
no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved , and, if applicable, that the defendant is not eligible for probation *7 or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
Id. (Emphasis added.) The right to be informed of the maximum penalty is not a constitutional
right so this aspect of the guilty plea colloquy is reviewed for substantial compliance.
State v. Clark
, 119 Ohio St.3d 239,
requires that, in order to understand the consequences of a plea of guilty, the accused
must be informed by the trial court, or must otherwise know, whether or not sentences
imposed for separate crimes will run consecutively or concurrently.
Johnson
, 40 Ohio
St.3d 130, 133,
Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the plea involuntary.
Id . at syllabus.
Accord State v. Gooch
,
Upon its face the rule speaks in the singular. The term “the charge” indicates a single and individual criminal charge. So, too, does “the plea” refer to “a plea” which the court “shall not accept” until the dictates of the rule have been observed. Consequently, the term “the maximum penalty” which is required to be explained is also to be understood as referring to a single penalty. In the context of “the plea” to “the charge,” the reasonable interpretation of the text is that “the maximum penalty” is for the single crime for which “the plea” is offered. It would seem to be beyond a reasonable interpretation to suggest that the rule refers cumulatively to the total of all sentences received for all charges which a criminal defendant may answer in a single proceeding.
Id . Applying the foregoing, we hold that the trial court was not required to tally
all of the potential penalties for all of the offenses and apprise Van Horn of the cumulative total for both cases before accepting the guilty plea. Further, the trial court *9 was not required to inform Van Horn that the court may order him to serve any sentences imposed consecutively, rather than concurrently. Rather, in outlining all of the possible penalties for each of the charges in both pending cases, the trial court substantially complied with its duty to notify him of the maximum penalty for each offense as required by Crim.R. 11(C), as it indicated the maximum penalty for each offense to which he pled guilty.
{¶15} The first assignment of error is without merit.
Assignment of Error Two
The trial court erred in sentencing the defendant for aggravated robbery and aggravated burglary in that these two offenses were allied offenses of similar import and were allied offenses to aggravated murder.
{¶16} Under Ohio law, “[w]here 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.” R.C. 2941.25(A). However,
[w]here the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
R.C. 2941.25(B).
In
State v. Johnson
,
the Ohio Supreme Court redefined the test for determining whether two offenses are
*10
allied offenses of similar import subject to merger under R.C. 2941.25. The
Johnson
court expressly overruled
State v. Rance
,
Conversely, if the court determines that the commission of one 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 R.C. 2941.25(B), the offenses will not merge.
Id . at ¶ 51. The term “animus,” as defined by the Ohio Supreme Court in State v.
Logan , 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), means “purpose or, more properly, immediate motive.”
{¶19}
In
State v. Jarvi
, 11th Dist. No. 2011-A-0063,
{¶20}
In
State v. Williams
, 4th Dist. No. 10CA3381,
herein separately or with a separate animus. Here, the record, including his statement, indicates that the group planned to rob Banks, that they entered his home with guns, and held him at gunpoint while the home was searched for drugs. They found marijuana. They next attempted to restrain Banks and then shot him in the back of the head. From the foregoing, we conclude that the crimes of aggravated burglary, aggravated robbery, and aggravated murder were all committed with a separate animus and do not merge; therefore, the trial court properly sentenced Van Horn for each of those offenses. The second assignment of error is without merit. Defendant’s third and fourth assignments of error share a common basis in law and provide:
Assignment of Error Three
The defendant asserts that the sentence he received from the trial court was contrary to law and disproportional to the sentence received by the co-defendant.
Assignment of Error Four
The trial court erred by sentencing the defendant to consecutive sentences without making the proper findings according to law. In reviewing a felony sentence, we take note of R.C. 2953.08(G)(2), which
provides in pertinent part:
The court hearing an appeal * * * shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
The trial court has the full discretion to impose any term of imprisonment
within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11,
the guidelines contained in R.C. 2929.12, and
State v. Stone
, 3d Dist. No. 9-11-39,
Proportionality Analysis R.C. 2929.11(B) provides that a felony sentence shall “commensurate with
and not [demean] the seriousness of the offender’s conduct and its impact upon the victim, and [shall be] consistent with sentences imposed for similar crimes committed by similar offenders.” We note that this court has previously found that in order to support a
contention that a sentence is disproportionate to sentences imposed upon other offenders,
the defendant must raise this issue before the trial court and present some evidence,
however minimal, in order to provide a starting point for analysis and to preserve the
issue for appeal.
State v. Edwards
, 8th Dist. No. 89181,
sentence received by the codefendants. The applicable analysis in assessing the
proportionality of a sentence, however, is whether the sentence is proportionate to the
severity of the offense committed, so as not to “shock the sense of justice in the
community.”
State v. St. Martin
, 8th Dist. No. 96834,
There is no requirement that co-defendants receive equal sentences. “Each defendant is different and nothing prohibits a trial court from imposing two different sentences upon individuals convicted of similar crimes.” When that happens, “the task of the appellate court is to determine whether the sentence is so unusual as to be outside the mainstream of local judicial practice. We bear in mind that although offenses may be similar, there may be distinguishing factors that justify dissimilar sentences.” (Citations omitted.) Id. at ¶ 12.
{¶30} Here, the trial court stated:
For the record, * * *, I did consider the issue of proportionality. The evidence was clear to my thinking that your client Mr. Van Horn was the actual shooter and thus deserved a lengthier sentence that the other person whose involvement was lesser. Further, in Van Horn’s statement to police, he admitted that he held Banks
at gunpoint while the others searched his home for drugs. Further, as noted by the State, *15 defendant admitted that he had a 9mm handgun, and codefendant Jermaine Crawford had a .38 caliber handgun but Banks was shot with the 9mm handgun. These were distinguishing factors to justify the dissimilar sentences, which the trial court stated on the record. Based on the foregoing, we cannot say that Van Horn’s sentence is so unusual as to be outside the mainstream of local judicial practice.
Consecutive Sentences
{¶32}
As to the imposition of consecutive terms, we note that in accordance with
H.B. 86, which became effective on September 30, 2011, fact-finding is required prior to
the imposition of consecutive sentences.
State v. Calliens
, 8th Dist. No. 97034,
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following :
(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, or 2929.18 of the Revised Code, or was under post-release 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.
(Emphasis added.) Therefore, as revived, R.C. 2929.14(C)(4) now requires the trial court to
engage in a three-step analysis in order to impose consecutive sentences.
State v.
Lebron
, 8th Dist. No. 97773,
the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a prior offense; (2) 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 offenses 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; or (3) the offender’s history *17 of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Id. ; R.C. 2929.14(C)(a)-(c). A trial court is not required to use “talismanic words to comply with the
guidelines and factors for sentencing.”
State v. Brewer
, 1st Dist. No. C-000148, 2000
Ohio App. LEXIS 5455 (Nov. 24, 2000). It must be clear from the record, however, that
the trial court actually made the findings required by statute.
State v. Pierson
, 1st Dist.
No. C-970935,
found that “prison is consistent with the purpose of R.C. 2929.11.” The court noted that Van Horn was “responsible for many lives being destroyed.” The record demonstrates that the court determined that a minimum sentence would be inappropriate in light of the seriousness of the offenses. The trial court found that the consecutive sentence was necessary to protect the public from future crime or to punish the offender and was not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public. Van Horn committed the offenses while on judicial release for aggravated robbery in Case No. CR-475629. In addition, the trial court clearly found that multiple offenses were committed as part of one or more courses of conduct, resulting in tremendous harm, as the offenses in Case No. CR-551978, involving the *18 murder of Banks, occurred on March 7, 2011, and the offenses in Case No. CR-548943, involving the attack on Cromwell, occurred the very next day, March 8, 2011. The court found that the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public. The court stated:
There is a principle, goes back several centuries, one quotation is, true justice is tempered by mercy. I showed you mercy in giving you judicial release previously. You repaid that by going out and killing one person, attempting to kill another person, within just two months.
{¶38} The trial court did not err in imposing consecutive sentences herein. {¶39} The third and fourth assignments of error are without merit. Judgment affirmed. 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
Notes
[1] This case superseded an earlier indictment in Case No. CR-548517, which was subsequently dismissed.
[2] This case superseded an earlier indictment in Case No. CR-548193, which was subsequently dismissed.
[3] In further proceedings on June 28, 2012, the court additionally ordered that Counts 9 and 10, which charged defendant with kidnapping and were not specifically addressed at the earlier sentencing hearing, be merged into Count 7.
[4] The appeal in this matter was filed only in Case No. CR-551978.