State v. Robinson , 2021 Ohio 1064 ( 2021 )

[Cite as State v. Robinson, 2021-Ohio-1064.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-T-0048
- vs - :
EDWARD L. ROBINSON, JR., :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2020 CR
00017.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, OH 44109 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Edward L. Robinson, appeals from the August 5, 2020 judgment
of the Trumbull County Court of Common Pleas sentencing him to an aggregate term of
12 to 15 years imprisonment following appellant’s guilty plea. For the reasons that follow,
the judgment is affirmed.
{¶2} The facts of the case as would have been shown by appellee had the case
proceeded to trial are as follows: On November 11, 2019, appellant approached a woman
as she was exiting her vehicle outside her home. He produced a gun, put it to her side,
and grabbed her purse. When he discovered there was no cash in her purse, he
demanded that she take him to an ATM machine; she complied. He took the money she
withdrew and demanded she drop him off at a particular intersection. The victim was later
able to pick appellant out of a photo array.
{¶3} The next day, appellant approached a city worker as he was reading
meters. Appellant brandished a gun and demanded money, stating “give me your money,
I don’t want to shoot you”; when the worker replied he had no money on him, appellant
demanded he take him to the bank. The second victim got into the driver’s seat of his
city truck and appellant got in the back. He started driving toward the bank, but a short
distance later bailed out of his vehicle and ran up to another city worker working in the
vicinity. Appellant jumped in the driver’s seat and drove away. The vehicle was later
recovered; his DNA was found on the gear shifter knob of the truck, and the second victim
was able to pick appellant out of a photo array. Appellant admitted both robberies in his
interview with the police but denied having a gun.
{¶4} In February 2020, appellant was charged in a four-count indictment: Counts
1 and 3, Aggravated Robbery, felonies of the first degree in violation of R.C.
2911.01(A)(1)&(C); and Counts 2 and 4, Kidnapping, felonies of the first degree in
violation of R.C. 2905.01(A)(2)&(C)(1). He initially entered a plea of not guilty and the
original $100,000 bond was continued. In July 2020, appellant changed his plea to guilty;
the parties agreed that for purposes of the plea agreement, the firearm specifications on
counts 1 and 3 would merge with those on counts 2 and 4, respectively. The parties
jointly recommended a sentence of six to nine years on count 1, with the two firearm
2
specifications to run prior to and consecutive to count 1, and six to nine years on each of
counts 2, 3, and 4 to run concurrent to count 1, the result being an aggregate prison
sentence of 12 to 15 years.
{¶5} The court adopted the parties’ recommendation in its entirety and advised
appellant he was required to register as a violent offender. The court also found appellant
indigent and waived court costs.
{¶6} Appellant now appeals assigning two errors for our review. The first states:
{¶7} The trial court erred by not merging allied offenses.
{¶8} Under this assignment of error, appellant argues the trial court erred by
failing to conduct a merger analysis and that the aggravated robbery counts should have
merged with the kidnapping counts because the kidnapping was committed for the
purpose of facilitating the aggravated robbery and did not have separate identifiable harm
or animus.
{¶9} Appellant failed to raise the issue below. Accordingly, this court reviews
this argument for plain error. State v. Devai, 11th Dist. Ashtabula No. 2012-A-0054, 2013-
Ohio-5264, ¶16, citing State v. Comen, 50 Ohio St.3d 206, 211 (1990). In State v. Barnes,
94 Ohio St.3d 21, 27 (2002), “the Supreme Court of Ohio set forth very strict limitations
on what constitutes plain error. First, there must be an error, i.e., a deviation from a legal
rule. Id. Second, the error must be plain, i.e., the error must be an ‘obvious’ defect in the
proceedings. Id. Third, the error must have affected ‘substantial rights.’ Id.” Devai, supra,
at ¶17. The defendant has the burden of demonstrating plain error. State v. Payne, 114
Ohio St.3d 502, 2007-Ohio-4642, ¶17. A reversal is warranted only if the defendant can
prove the outcome would have been different absent the error. Id.3
{¶10} R.C. 2941.25 governs the merger of allied offenses for sentencing
purposes, and states:
{¶11} (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.
{¶12} (B) Where 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. Id.{¶13} “Rather than compare the elements of two offenses to determine whether
they are allied offenses of similar import, the analysis must focus on the defendant’s
conduct to determine whether one or more convictions may result, because an offense
may be committed in a variety of ways and the offenses committed may have different
import. No bright-line rule can govern every situation.” State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, ¶30.
{¶14} The Supreme Court of Ohio in Ruff went on to set forth three questions
under R.C. 2941.25 in order to determine whether a defendant can be convicted of
multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were
they committed separately? and (3) Were they committed with separate animus or
motivation? An affirmative answer to any of the above will permit separate convictions.
Id. at ¶31.
{¶15} “‘[T]his analysis may be sometimes difficult to perform and may result in
varying results for the same set of offenses in different cases. But different results are
permissible, given that the statute instructs courts to examine a defendant’s conduct–an
4
inherently subjective determination.’” Id. at ¶32, quoting State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, ¶52.
{¶16} In determining whether aggravated robbery and kidnapping merge, courts
consider the guidelines set forth in State v. Logan, 60 Ohio St.2d 126 (1979):
{¶17} (a) Where the restraint or movement of the victim is merely incidental
to a separate underlying crime, there exists no separate animus
sufficient to sustain separate convictions; however, where the
restraint is prolonged, the confinement is secretive, or the movement
is substantial so as to demonstrate a significance independent of the
other offense, there exists a separate animus as to each offense
sufficient to support separate convictions;
{¶18} (b) Where the asportation or restraint of the victim subjects the victim
to a substantial increase in risk of harm separate and apart from that
involved in the underlying crime, there exists a separate animus as
to each offense sufficient to support separate convictions. Id. at
syllabus.
{¶19} “‘Although Logan predates Ruff, Ohio courts continue to apply the
guidelines set forth in Logan in determining whether kidnapping and another offense were
committed with a separate animus, in accordance with the third prong of the Ruff test.’”
State v. Cook, 11th Dist. Geauga No. 2016-G-0096, 2018-Ohio-788, ¶15, quoting State
v. Asadi-Ousley, 8th Dist. Cuyahoga No. 104267, 2017-Ohio-7252, ¶47, reopened on
other grounds, citing State v. Armengau, 10th Dist. Franklin No. 14AP-679, 2017-Ohio-
4452, ¶125, State v. Williams, 7th Dist. Mahoning No. 13 MA 125, 2015-Ohio-4100, ¶18,
and State v. Stinnett, 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, ¶53; see also
State v. Smith, 11th Dist. Trumbull No. 2018-T-0061, 2019-Ohio-1952, ¶25.
{¶20} Here, it is apparent the restraint of each victim was not merely incidental to
the aggravated robbery but was prolonged; beyond the initial restraint by means of a
firearm while demanding any cash on their persons, appellant relocated the two victims
to a separate location against their will for the purpose of forcing them to withdraw money
5
from the ATM. Indeed, “[t]here are several cases supporting the conclusion that, when a
victim is forcibly moved from one location to another for the purpose of enabling another
offense, the Kidnapping charge does not merge.” State v. Ervin-Williams, 11th Dist.
Trumbull No. 2014-T-0009, 2014-Ohio-5473, ¶60, citing State v. Houston, 1st Dist.
Hamilton No. C-130429, 2014-Ohio-3111, ¶25-26; State v. Martin, 11th Dist. Lake No.
2012-L-043, 2013-Ohio-1944, ¶38; State v. Vance, 10th Dist. Franklin No. 11AP-755,
2012-Ohio-2594, ¶16-17.
{¶21} Thus, we cannot say the trial court committed plain error in failing to merge
the aggravated robbery and kidnapping counts. Mr. Robinson’s first assignment of error
is without merit.
{¶22} His second states:
{¶23} Appellant’s counsel was ineffective.
{¶24} “There is a general presumption that trial counsel’s conduct is within the
broad range of professional assistance.” State v. Andrus, 11th Dist. Ashtabula No. 2019-
A-0082, 2020-Ohio-6810, ¶60, citing State v. Bradley, 42 Ohio St.3d 136, 142-143 (1989);
see also, State v. Smith, 17 Ohio St.3d 98, 100 (1985). The burden of proving ineffective
assistance of counsel falls upon a defendant. State v. Madeline, 11th Dist. Trumbull No.
2000-T-0156, 2002 WL 445036, *3 (Mar 22, 2002).
{¶25} “In order to prevail on an ineffective assistance of counsel claim, an
appellant must demonstrate that trial counsel’s performance fell ‘below an objective
standard of reasonable representation and, in addition, prejudice arises from counsel’s
performance.’” Andrus, supra, quoting Bradley, supra, paragraph two of the syllabus
(adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984)). “In order
to show prejudice, the appellant must demonstrate a reasonable probability that, but for
6
counsel’s error, the result of the proceeding would have been different.” Andrus, supra,
citing Bradley, supra, at paragraph three of the syllabus. In the context of a guilty plea
conviction, this means that appellant would not have pleaded guilty but for counsel’s
ineffective assistance. Madeline, supra. “If a claim can be disposed of by showing a lack
of sufficient prejudice, there is no need to consider the first prong, i.e., whether trial
counsel’s performance was deficient.” Andrus, supra, citing Bradley, supra, at 143, citing
Strickland, supra, at 695-696.
{¶26} Moreover, “[t]he mere fact that, if not for the alleged ineffective assistance
of counsel, the defendant would not have entered a guilty plea is not sufficient to establish
the requisite connection between the guilty plea and the ineffective assistance. * * *
Rather, ineffective assistance of trial counsel is found to have affected the validity of a
guilty plea when it precluded a defendant from entering his plea knowingly and
voluntarily.” Madeline, supra, citing State v. Sopjack, 11th Dist. Geauga No. 93-G-1826,
1995 WL 869968, *4, citing State v. Haynes, 11th Dist. Trumbull No. 93-T-4911, 1995 WL
237075, at 4-5. This court has explained that “by entering a plea of guilty, appellant
waived the right to contest the effectiveness of his representation prior to the entry of the
guilty plea if it did not cause less than a knowing and voluntary plea.” Haynes, supra, at
*1; see also Madeline, supra. “As a general proposition, the Supreme Court of Ohio has
stated that a guilty plea ‘represents a break in the chain of events which has preceded it
in the criminal process.’” Haynes, supra, quoting State v. Spates, 64 Ohio St.3d 269, 272
(1992).
{¶27} Under this assignment of error, appellant argues his defense counsel below
was ineffective for failing to secure a plea agreement that offered any benefit to him, by
7
failing to raise the merger issue, by failing to raise the issue of a speedy trial violation,
and by failing to respond to the state’s discovery demand. We address each argument
in turn.
{¶28} First, we address appellant’s argument that his agreement was of no benefit
to him. In exchange for the guilty plea, the state did not offer to reduce or nolle any count
of the indictment; thus, appellant argues, he did not receive any benefit to pleading guilty.
Appellant acknowledges that the state offered to merge two of the four firearm
specifications; however, he argues this was of no benefit to him as they would have run
concurrently because the charged offenses were committed as part of the same act or
transaction. He also challenges the benefit of a jointly recommended sentence as the
court was not bound by the recommendation.
{¶29} Though appellant states that had he known the firearm specification
sentences would be run concurrently, “he likely would not have changed his plea,”
appellant stated that he entered into the plea knowingly and does not challenge this on
appeal. Furthermore, the terms of the plea agreement resulted in two firearm
specifications, not four, which is of some benefit to appellant even if they were to run
concurrently, e.g., if some of the charges were later challenged or for the benefit of his
criminal record. The parties also agreed to a joint recommendation of a minimum of 12
and a maximum of 16 years imprisonment, when he was facing up to 56 years. Though
the court was not bound by any recommendation, we cannot say the joint
recommendation was of no benefit to appellant, as the appellee was advocating for a
significantly reduced sentence. To argue this is of no benefit to appellant, is to say the
state’s recommendation carries no weight whatsoever. While the court is not bound to a
8
joint recommendation or the recommendation of either party, it does take the
recommendations into consideration.
{¶30} It is clear from the record that appellant understood the terms of his plea
agreement, agreed to them, received some benefit from the plea agreement, and stated
he was satisfied with his counsel’s representation. Accordingly, we do not find that
appellant has met his burden of showing his counsel was ineffective.
{¶31} Second, as discussed under appellant’s first assignment of error, there was
no error related to the merger of offenses; thus, appellant cannot show prejudice for his
attorney’s failure to raise the merger issue.
{¶32} Third, appellant argues that the trial court violated his right to a speedy trial
and that his counsel was ineffective for failing to raise the matter. A person charged with
a felony must be brought to trial within 270 days of arrest. R.C. 2945.71(C)(2). If the
person charged remains in jail while the case is pending, each day counts as three days.
R.C. 2945.71(E). This time may be continued. R.C. 2945.72.
{¶33} Here, the parties agree that appellant was arrested on December 28, 2019.
As there is no indication in the record that appellant posted bond, which is not disputed
by either party, appellant remained in jail while the case was pending. On February 26,
2020, appellant signed a speedy trial waiver extending the time an additional 90 days.
On March 26, 2020, the court, in response to the COVID-19 pandemic, tolled the speedy
trial time a minimum of 90 days, or “until further notice.” The record is devoid of further
tolling orders either extending or ending the tolling period. Appellant pleaded guilty on
July 29, 2020.
9
{¶34} According to the Supreme Court of Ohio, “R.C. 2945.72(H) provides that
speedy-trial time may be extended by ‘the period of any reasonable continuance granted
other than upon the accused’s own motion’; continuing a trial because of a pandemic
state of emergency is ‘reasonable.’” In re Disqualification of Fleegle, 161 Ohio St.3d
1263, 2020-Ohio-5636, ¶7, quoting R.C. 2945.72(H). As the latest court order regarding
this matter extended the speedy trial time until further notice, it was in effect until appellant
entered his guilty plea in July 2020. Thus, we cannot fault appellant’s trial court counsel
for failing to challenge the matter below.
{¶35} Finally, appellant argues that his counsel was ineffective for failing to
respond to the state’s discovery demand. However, appellant does not argue how this
would have been prejudicial to him or that he would have proceeded to trial instead of
pleading guilty had his counsel responded. Thus, appellant has not met his burden of
showing he was prejudiced for this argument.
{¶36} Mr. Robinson’s second assignment of error is without merit.
{¶37} Accordingly, the judgment of the Trumbull County Court of Common Pleas
is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
10