STATE OF OHIO v. TREMAYNE AMIR WHITE
CA2018-12-087
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
7/29/2019
[Cite as State v. White, 2019-Ohio-3053.]
PIPER, J.
Case No. 2018CR000161
D. Vinсent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for appellant
PIPER, J.
{¶ 1} Appellant, Tremayne White, appeals his felonious assault convictions and the accompanying firеarm specifications, as well as his conviction for having weapons under disability in the Clermont County Court of Common Pleas.
{¶ 2} White agreed to meet the victim at a restaurant parking lot to perform a drug transaction. Once the victim entered White‘s car, a backseat passenger held a gun against
{¶ 3} White was indicted on two counts of attempted murder, two counts of felonious assault, one count of aggravated robbery, one count of improperly handling a firearm in a motor vehicle, and one count of having weapons under disability. The attempted murder, felonious assaults, and aggravated robbery charges also carried firearm specifications.
{¶ 4} White entered a guilty plea to two counts of felonious assault and their firearm specifications, as well as having weapons under disability. The remaining сharges and specifications were dismissed. The trial court sentenced White to an aggregate sentence of 12 years. White now appeals his convictions and sentence, raising the following assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT MERGING HAVING WEAPONS WHILE UNDER DISABILITY WITH FELONIOUS ASSAULT.
{¶ 7} White first argues that the trial court should have merged his conviction for having weapons under disability with his felonious assault convictions.
{¶ 8} As noted in White‘s assignment of error, he did not object at his sentencing hearing or raise the issue of merger before the trial court. As such, White has waived all but plain error in this regard. “Plain еrrors or defects affecting substantial rights may be noticed
{¶ 9} Pursuant to
{¶ 10} “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{¶ 11} In arguing that merger should have taken place, White asserts that he did not bring the firearm to the drug transaction, but rather, wrestled it away from the victim when the drug deal went awry. Hе thus claims that the only reason he possessed the weapon was to immediately protect himself with it and that he had no other reason for possessing the gun.
{¶ 12} Self-defense requires that (1) the defendant was not at fault in creating the situation giving rise to the affray, (2) the defendant had a bona fide belief he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of deadly force, and (3) the defendant did not violate any duty to retreat or avoid the danger. State v. Delaffuente, 12th Dist. Butler Nos. CA2015-03-040 and CA2015-03-042, 2015-Ohio-4917, ¶ 9.
{¶ 13} Even if we were to accept White‘s suggestion that the weapon belonged to the victim and that he did not bring a gun to the drug deal, the record shows thаt White did not establish he possessed the gun only in self-defense.1 Instead, White chased the victim and his girlfriend after the victim escaped White‘s car. White pursued the victim and shot at him and his girlfriend between 8-10 times as the victim‘s girlfriend sped away from White.
{¶ 14} White never denied that he made the decision to chase the victim while shooting at him, nor does he dispute that he could have driven away from the victim at any point after the victim exited his car. Moreover, White pled guilty to the charges without making any reference to self-defense, and only raised the suggestion that he wrestled the gun away from the victim during his interview for the presentence investigation report (“PSI“). Despite his efforts to lessen his culpability in the PSI, White chose to voluntarily enter a plea of guilty – which plea is a complete admission of guilt knowing the potential for the maximum
{¶ 15} Regardless of who owned the gun, the record demonstrаtes that White‘s crimes are not allied offenses. White controlled and used the weapon while under disability, which was his conscious decision. The crime was complete uрon White‘s decision to possess the gun, regardless of whether he brought it with him originally or whether he wrestled it from the victim. Separate from that act and animus, White then used the firearm to facilitate an attack on the victim and his girlfriend by shooting at them. The felonious assault conduct was not committed until the first time White pulled the trigger, and by that time, the having weapоns under disability crime had already been completed.
{¶ 16} These crimes, completed at different times and with a separate animus, also produced different harm. White having a weapon while under disability is a harm to society as a whole due to the general danger such possession poses. The harm from the felonious assault crimes, on the other hand, was specific to the victim and his girlfriend as the chase unfolded. This is simply not a case where the defendant possessed the weapon simultaneously and only with a direct need to defend himself or herself from deadly harm. After reviewing the record, White‘s crimes are not allied offenses, and his first assignment of error is overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} APPELLANT‘S TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE ISSUE OF MERGER.
{¶ 19} White argues in his seсond assignment of error that his trial counsel was
{¶ 20} To prevail on an ineffective assistance of counsel claim, an appellant must show his or her trial counsel‘s performance was deficient, and that he or she was prejudiced as a result. State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel‘s performance will not be deemed deficient unless it fell below an objective standard of reasonableness. Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel‘s errors, there is a reasonable probability that the result of his trial would have been different. Id. at 694.
{¶ 21} Given our conclusion in the first assignment of error, that White‘s convictions were not allied offenses, his trial counsel‘s performance was not deficient and White cannot demonstrate ineffective assistance. Moreover, a guilty plea waives the right to claim that one was prejudiced by ineffective assistance of counsel, except to the extent that such ineffective assistance made the plea less than knowing, intelligent, and voluntary. State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶ 33. White makes no such claim. Thus, White has waived this argument on appeal, and his second assignment of error is overruled.
{¶ 22} Judgment affirmed.
RINGLAND, P.J., and S. POWELL, J., concur.