State v. Baker ( 2015 )


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  • [Cite as State v. Baker, 
    2015-Ohio-3232
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 102232
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    DAVID BAKER
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-14-587786-B
    BEFORE:          Jones, P.J., E.T. Gallagher, J., and S. Gallagher, J.
    RELEASED AND JOURNALIZED: August 13, 2015
    ATTORNEYS FOR APPELLANT
    Ruth R. Fischbein-Cohen
    3552 Severn Road
    Suite 613
    Cleveland, Ohio 44118
    David H. Brown
    The Gehring Building
    1956 West 25th Street
    Suite 302
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    BY: Mahmoud Awadallah
    Eleina Thomas
    Assistant County Prosecutors
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    LARRY A. JONES, SR., P.J.:
    {¶1} Defendant-appellant, David Baker, appeals his jail-time credit and the trial
    court’s decision not to merge his aggravated murder and felonious assault convictions as
    allied offenses of similar import. We affirm.
    Procedural History and Facts
    {¶2} In 2014, Baker was charged in a 17-count indictment stemming from the
    shooting death of 21-year old Terria Nettles.      In October 2014, he pleaded guilty to an
    amended indictment:       one count of aggravated murder with a three-year firearm
    specification, three counts of felonious assault with three-year firearm specifications on
    each count, and one count of intimidation of a crime victim or witness, and having
    weapons while under disability. His codefendant, Chevarre Young, pleaded guilty to the
    same charges at the same hearing, except for having weapons while under disability, with
    which Young was not charged.1
    {¶3} The trial court sentenced Baker to 30 years to life for aggravated murder,
    concurrent to three years for the felonious assault convictions, and 12 months for
    intimidation of a crime victim or witness.     The court also sentenced him to consecutive
    sentences of 12 months for having weapons while under disability and six years on the
    firearm specifications for a total sentence of 37 years to life in prison.
    {¶4} The following pertinent facts were presented by the state during the
    Young has appealed his conviction and sentence and this court affirmed. See State v.
    1
    Young, 8th Dist. Cuyahoga No. 102202, 
    2015-Ohio-2862
    .
    sentencing hearing.     On December 18, 2013, Terria Nettles was driving her friend
    Ashley Acoff’s car with Acoff in the front passenger seat and Juantaviyan Smith in the
    backseat. They were on their way to visit Acoff’s boyfriend, but she did not know
    where he lived, so Nettles drove around slowly looking for the address. When Nettles
    realized she had driven past the house, she pulled into a driveway to turn around.
    Lashawnda Greer passed by in her car and inadvertently blocked Acoff’s car in the
    driveway Acoff had turned into. At this point, Baker and Young, who were known drug
    dealers, ran outside and began shooting at the cars, firing several shots.
    {¶5} Nettles was shot in the head and immediately died from her injuries.
    Several more bullets entered the vehicle but missed Acoff and Smith. Bullets struck
    Greer’s car but also missed her. Baker and Young did not know the victims; the parties
    indicated at the sentencing hearing that the men were waiting for someone else.
    {¶6} The police executed a search warrant on the apartment where Young and
    Baker were staying and were able to match Young’s DNA to one of the guns that was
    used in the shooting. The police also found Baker and Young’s DNA on other guns and
    gun parts as well as on packaged cocaine and heroin that the police seized during
    execution of the warrant.
    {¶7} At the sentencing hearing, the trial court informed Baker of his appellate
    rights, postrelease control responsibilities, and that he would be given credit for time he
    had already served in jail.
    Assignments of Error
    I: The Trial Court committed error by sentencing David Baker absent
    addressing his credit for time served in incarceration during the hearing.
    II: The Court erred by sentencing David Baker separately for allied
    offenses of similar import.
    Law and Analysis
    {¶8} In the first assignment of error, Baker argues that the trial court erred by
    sentencing Baker without giving him credit for time served.
    {¶9} R.C. 2967.191 governs credit for confinement awaiting trial and commitment
    and states the following:
    The department of rehabilitation and correction shall reduce the stated
    prison term of a prisoner or, if the prisoner is serving a term for which there
    is parole eligibility, the minimum and maximum term or the parole
    eligibility date of the prisoner by the total number of days that the prisoner
    was confined for any reason arising out of the offense for which the
    prisoner was convicted and sentenced, including confinement in lieu of bail
    while awaiting trial, confinement for examination to determine the
    prisoner’s competence to stand trial or sanity, confinement while awaiting
    transportation to the place where the prisoner is to serve the prisoner’s
    prison term, as determined by the sentencing court under division
    (B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a
    juvenile facility. The department of rehabilitation and correction also shall
    reduce the stated prison term of a prisoner or, if the prisoner is serving a
    term for which there is parole eligibility, the minimum and maximum term
    or the parole eligibility date of the prisoner by the total number of days, if
    any, that the prisoner previously served in the custody of the department of
    rehabilitation and correction arising out of the offense for which the
    prisoner was convicted and sentenced.
    {¶10} Pursuant to R.C. 2929.19(B)(2), “if the sentencing court determines at the
    sentencing hearing that a prison term is necessary or required, the court shall do all of the
    following:”
    (g)(i) Determine, notify the offender of, and include in the sentencing entry
    the number of days that the offender has been confined for any reason
    arising out of the offense for which the offender is being sentenced and by
    which the department of rehabilitation and correction must reduce the stated
    prison term under section 2967.191 of the Revised Code. The court’s
    calculation shall not include the number of days, if any, that the offender
    previously served in the custody of the department of rehabilitation and
    correction arising out of the offense for which the prisoner was convicted
    and sentenced.
    {¶11} At the sentencing hearing, the trial court stated that Baker would be “given
    credit for time served.”   In the sentencing journal entry, the court indicated that Baker
    was to receive jail-time credit for 239 days.
    {¶12} Baker does not contest the amount of time he was given; rather he claims
    that the trial court erred because it did not inform him orally at the sentencing hearing the
    amount of time he would be given credit.      Because Baker did not contest this issue at the
    trial court level, he has waived all but plain error.   Under Crim.R. 52(B), “[p]lain errors
    or defects affecting substantial rights may be noticed although they were not brought to
    the attention of the court.”   An error rises to the level of plain error only if, but for the
    error, the outcome of the proceedings would have been different. State v. Harrison, 
    122 Ohio St.3d 512
    , 
    2009-Ohio-3547
    , 
    912 N.E.2d 1106
    , ¶ 61; State v. Long, 
    53 Ohio St.2d 91
    , 97, 
    372 N.E.2d 804
     (1978).
    {¶13} While we disagree with the state’s position that there is no requirement that
    the trial court calculate and inform a defendant at the sentencing hearing of the amount of
    jail-time credit he or she will receive, we find that the court’s omission does not rise to
    plain error in this case.
    {¶14} R.C. 2929.19(B)(2)(g)(i) clearly states that a sentencing court, if it
    determines at the sentencing hearing that the defendant is receiving a prison term, shall
    determine and notify the offender of, and include in the sentencing entry, the number of
    days of credit the offender shall receive.     Thus, the trial court had a duty to calculate
    jail-time credit at the time of sentencing. See State v. Santamaria, 9th Dist. Summit No.
    26963, 
    2014-Ohio-4787
    , ¶ 10 (pursuant to R.C. 2929.19(B)(2)(g)(i), the trial court had a
    duty to calculate the defendant’s jail-time credit at the time of his resentencing, notify him
    of the number of days he would be credited, and memorialize that information in the
    sentencing entry); see also State v. Fitzgerald, 8th Dist. Cuyahoga No. 98723,
    
    2013-Ohio-1893
    , ¶ 5-7 (Boyle, J., concurring) (amendments to R.C. 2929.19 impose a
    duty upon a trial court at the time of sentencing to determine jail-time credit).
    {¶15} As mentioned, Baker does not contest the amount of credit he was given.
    A review of the record shows that he was given the appropriate amount of credit.     Thus,
    Baker cannot show that he was prejudiced by the trial court’s failure to determine and
    notify him of his jail-time credit at his sentencing hearing.
    {¶16} In light of the above, the first assignment of error is overruled.
    {¶17} In the second assignment of error, Baker argues that the trial court erred
    when it did not consider whether his felonious assault and murder convictions merge as
    allied offenses of similar import.
    {¶18} R.C. 2941.25(A) provides that where the same conduct by a 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.” But where the conduct constitutes two or more offenses of dissimilar
    import, or where the conduct results in two or more offenses of the same or similar kind
    committed separately or with a separate animus, 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).
    {¶19} In State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    ,
    the Ohio Supreme Court created a two-part test to determine if offenses should merge.
    The first prong requires that the court determine if the multiple offenses “were committed
    by the same conduct.” Id. at ¶ 47. The second prong 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.” Id. If both can be answered in
    the affirmative then the offenses must be merged.     But “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.
    {¶20} In State v. Ruff, Slip Opinion No. 
    2015-Ohio-995
    , ¶ 31, the Ohio Supreme
    Court clarified that courts are to consider three questions when determining whether
    offenses are allied offenses of similar import within the meaning of R.C. 2941.25: (1)
    Were the offenses dissimilar in import or significance? (2) Were the offenses committed
    separately? or (3) Were the offenses committed with separate animus or motivation?         If
    a court can answer in the affirmative to any of the questions, then separate convictions are
    permitted. 
    Id.
     Thus, the trial court must consider a defendant’s conduct, the animus,
    and the import. 
    Id.
    {¶21} But the Ohio Supreme Court recently explained that the issue of allied
    offenses must be raised at the trial court level or it is waived.   In State v. Rogers, Slip
    Opinion No. 
    2015-Ohio-2459
    , ¶ 3, the court held that the failure to raise the issue of
    allied offenses of similar import forfeits all but plain error. Such error “is not reversible
    error unless it affected the outcome of the proceeding and reversal is necessary to correct
    a manifest miscarriage of justice.” 
    Id.
    {¶22} Crim.R. 52(B) affords appellate courts discretion to correct plain errors or
    defects affecting substantial rights even if the accused failed to bring those errors to the
    trial court’s attention.   Id. at ¶ 22.   But, the court determined, if a defendant fails to
    raise the issue at the trial court level, the burden is solely on that defendant, not on the
    state or the trial court, to “demonstrate a reasonable probability that the convictions are
    for allied offenses of similar import committed with the same conduct and without a
    separate animus.” Id. If a defendant fails to make the showing, then “the accused cannot
    demonstrate that the trial court’s failure to inquire whether the convictions merge for
    purposes of sentencing was plain error.” Id.
    {¶23} The Rogers court noted that “even if the error is obvious, it must have
    affected substantial rights, and * * * ‘the trial court’s error must have affected the
    outcome of the trial.’”       Id.   The accused is therefore required to demonstrate a
    reasonable probability that the error resulted in prejudice — the same deferential standard
    for reviewing ineffective assistance of counsel claims.        Id., citing United States v.
    Dominguez Benitez, 
    542 U.S. 74
    , 81-83, 
    124 S.Ct. 2333
    , 
    159 L.Ed.2d 157
     (2004).
    {¶24} The Rogers court further cautioned that even if the defendant is able to
    make the necessary showing that the trial court committed plain error that affected the
    outcome of the proceedings, the reviewing court is not required to correct it; “we have
    ‘admonish[ed] courts to notice plain error “with the utmost caution, under exceptional
    circumstances and only to prevent a manifest miscarriage of justice.’”” (Emphasis sic).
    Id. at ¶ 23, quoting State v. Barnes, 
    94 Ohio St.3d 21
    , 27, 
    759 N.E.2d 1240
     (2002),
    quoting State v. Long, 
    53 Ohio St.2d 91
    , 
    372 N.E.2d 804
     (1978), at paragraph three of the
    syllalbus.
    {¶25} Here, Baker did not raise the issue of allied offenses in the trial court nor has
    he shown that plain error occurred.     Baker pleaded guilty in Count 1 to the aggravated
    murder of Nettles, in Count 8 to the felonious assault of Acoff, in Count 9 to the
    felonious assault of Smith, and in Count 10 to the felonious assault of Greer. His
    conduct constituted offenses involving four separate victims.         Thus, even if he had
    properly raised the issue at the trial court level, his felonious assault convictions would
    not have merge with each other or with the aggravated murder conviction because they
    involved four separate victims.     See State v. Allen, 8th Dist. Cuyahoga No. 97014,
    
    2012-Ohio-1831
    , ¶ 59.     (“Separate convictions and sentences are permitted [under R.C.
    2941.25] when a defendant’s conduct results in multiple victims.”)
    {¶26} Accordingly, the second assignment of error is overruled.
    {¶27} Judgment affirmed.
    It is ordered that appellee recover of 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.
    LARRY A. JONES, SR., PRESIDING JUDGE
    EILEEN T. GALLAGHER, J., and
    SEAN C. GALLAGHER, J., CONCUR
    

Document Info

Docket Number: 102232

Judges: Jones

Filed Date: 8/13/2015

Precedential Status: Precedential

Modified Date: 8/13/2015