State v. Newton , 95 N.E.3d 789 ( 2017 )

[Cite as State v. Newton, 2017-Ohio-7068.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104878
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DASHAUN NEWTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-16-602726-C and CR-16-604326-B
BEFORE: Jones, J., E.A. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: August 3, 2017
ATTORNEY FOR APPELLANT
Bethany R. Stewart Esq., L.L.C.
614 W. Superior Avenue, Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Ashley B. Kilbane
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Dashaun Newton appeals his sentence rendered after he
pleaded guilty to multiple counts of robbery and abduction. We affirm.
{¶2} In 2016, Newton was charged in Cuyahoga C.P. No. CR-16-602726-C with
four counts of aggravated robbery, four counts of robbery, four counts of kidnapping, and
one count of felonious assault. The counts contained one- and three-year firearm
specifications. The date of the offense was December 5, 2015. He was charged in
Cuyahoga C.P. No. CR-16-604326-B with one count each of aggravated robbery,
robbery, and kidnapping; the counts contained one- and three-year firearm specifications.
He was also charged with one count of theft. The date of the offense was December
23, 2015.
{¶3} Newton entered into plea negotiations with the state of Ohio and agreed to
enter a guilty plea in Case No. CR-16-602726-C to four counts of robbery and four counts
of abduction. Three of the robbery counts contained three-year firearm specifications.
In Case No. CR-16-604326-B, he agreed to plead guilty to one count of robbery with a
one-year firearm specification and one count of abduction.
{¶4} The following facts are adduced from the plea and sentencing hearings. As
to Case No. CR-16-602726-C, at approximately 6:20 p.m. on December 5, 2015, Newton
and two codefendants approached a priest in the parking lot of Holy Rosary Church on
Mayfield Road in Cleveland. The men pointed guns at the priest and demanded his car
keys. All three men began to hit the priest with their guns. A bystander heard the
priest’s calls for help and came to the priest’s aid only to have the three men turn their
guns on him. Newton and his codefendants searched the good Samaritan’s pockets
before fleeing the scene.
{¶5} Minutes later, “between six and seven o’clock,” a student at Case Western
University Law School was walking home from school when Newton and his two
codefendants passed by her walking the other way. Newton grabbed the student’s purse.
She resisted, fell to the ground, and one of the men put a gun to her head. He took the
student’s wallet and ran.
{¶6} The third robbery occurred shortly thereafter in a nearby Rite Aid parking lot.
An 83-year old man was sitting in his car when Newton and his two codefendants
approached. One of the men had a shotgun and used it to tap on the elderly man’s car
window. They demanded the man give them his car keys. The elderly man complied,
got out of his car, and went into the store. When the man came back outside, his car was
still in the parking lot, presumably, the man told police, because it was difficult to start.
Newton and his accomplices had fled the scene.
{¶7} The following facts support Case No. CR-16-604326-B. On December 23,
2015, Richmond Heights police received a 911 call from a man reporting he had just been
robbed by two unknown men. The police later learned that the man was in his car with
the two unknown men for the purpose of selling drugs to the men. The assailant sitting
in the backseat, whom the victim later identified as Newton, pulled out a gun and
demanded the drugs and the victim’s car keys, phone, and shoes.
{¶8} The trial court sentenced Newton to 10 years on the firearm specifications to
be served prior to and consecutive to 12 years on the underlying offenses for a total of 22
years in prison.
{¶9} Newton now appeals, raising the following assignments of error for our
review:
I. The trial court erred in the imposition of consecutive firearm
specifications as the offenses were committed as part of the same criminal
transaction, therefore, the sentence is void.
II. Trial counsel was ineffective by failing to research and advise client
and trial court of error in sentencing on firearm specifications.
{¶10} As an initial matter, we note that although Newton’s notice of appeal
includes Case No. CR-16-604326-B, Newton does not raise any assignments of error as to
this case. Therefore, his conviction and sentence in this case are summarily affirmed.
{¶11} In the first assignment of error, Newton argues that the trial court erred
when it sentenced him to consecutive firearm specifications because the crimes he
committed in Case No. CR-16-602726-C were part of the same act or transaction.
{¶12} Newton was convicted of multiple three-year firearm specifications pursuant
to R.C. 2929.14(B)(1)(a)(ii). R.C. 2929.14(B)(1)(b) provides that if a court imposes a
prison term on an offender under R.C. 2929.14(B)(1)(a), the court “shall not impose
more than one prison term” on that offender for felonies committed as part of the same
act or transaction, save some exclusions that are not applicable to this case. Newton
argues that the robberies that occurred on December 5, 2015, were all part of the same act
or transaction, therefore, the court erred in sentencing Newton to consecutive sentences.
{¶13} A “transaction” has been defined as ‘“a series of continuous acts bound
together by time, space and purpose, and directed toward a single objective.”’ State v.
Wills, 69 Ohio St.3d 690, 691, 635 N.E.2d 370 (1994), quoting State v. Caldwell, 9th
Dist. Summit No. 14720, 1991 Ohio App. LEXIS 5879, *12 (Dec. 4, 1991). In
determining whether felonies are committed as part of the same act or transaction, “[t]he
test is not whether there was a separate animus for each offense; the appro[p]riate
consideration is whether the defendant ‘had a common purpose in committing multiple
crimes’ and engaged in a ‘single criminal adventure.”’ State v. Like, 2d Dist.
Montgomery No. 21991, 2008-Ohio-1873, ¶ 40, quoting State v. Adams, 7th Dist.
Mahoning No. 00 CA 211, 2006-Ohio-1761, ¶ 54, 57.
{¶14} Newton cites Adams to support his position that the facts of the instant case
do not present sufficient separate purposes to support consecutive sentences for the gun
specifications. In Adams, the court found that the appellant’s two convictions for
attempted murder and the attendant firearm specifications appeared to be part of his
overall plan to steal drugs from one of the victims (Lovejoy) and the appellant attacked
the other victim (Brown) as part of that singular plan. The court noted that:
Appellant shot Brown in the eye, and Brown ran. Thereafter, Brown heard
five more shots. During this time, Appellant and Lovejoy struggled for the
gun, and Lovejoy was shot twice. Lovejoy also ran, and Appellant chased
Brown and beat and choked him until Brown played dead before driving
away in Lovejoy’s car.
* * * Appellant evidently felt compelled to kill Brown to cover up his
robbery. Accordingly, both of Appellant’s attempted murder convictions
appear to stem from the same criminal transaction and both were directed at
the same criminal purpose, i.e., to steal Lovejoy’s marijuana.
Id. at ¶ 65-66.
{¶15} Thus, in Adams, the robberies were all part of the same transaction in an
attempt to steal one victim’s drugs.
{¶16} This case is distinguishable. One of the three-year firearm specifications
was linked to the robbery of the priest and the good Samaritan (the three-year firearm
specification as to each victim merged as part of Newton’s plea). The second three-year
firearm specification was part of the robbery of the law student. That crime occurred in
a different location and subsequent to the robbery of the priest and good Samaritan. The
third three-year firearm specification occurred over an hour later in the parking lot of Rite
Aid when Newton and his cohorts tried to carjack an elderly man.
{¶17} Although Newton and his codefendants committed three robberies as part of
a single evening crime spree, their purpose or intent behind each crime was to rob
separate victims. Each robbery was a separate criminal transaction with a separate
criminal purpose or objective. Therefore, the trial court did not err in running the
firearm specifications consecutive to one another.
{¶18} In light of the above, the first assignment of error is overruled.
{¶19} In the second assignment of error, Newton claims that his trial counsel was
ineffective because counsel did not tell the trial court that the court could not run the
firearm specifications consecutively.
{¶20} A criminal defendant has the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We review a claim of ineffective assistance of counsel under the two-part test set forth in
Strickland. First, we consider whether counsel’s performance was deficient, i.e.,
whether counsel’s performance fell below an objective standard of reasonable
representation. Id. at 687-688. This requires a showing that counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687.
{¶21} If we determine that counsel’s performance was deficient, we must then
determine whether the errors prejudiced the defendant. Id. at 692. A defendant
establishes prejudice if “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“Reasonable probability” is “probability sufficient to undermine confidence in the
outcome.” Id.{¶22} Because there are “countless ways to provide effective assistance in any
given case,” judicial scrutiny of a lawyer’s performance must be “highly deferential.”
Id. at 689. “Decisions on strategy and trial tactics are generally granted a wide latitude
of professional judgment,” and it is “not the duty of a reviewing court to analyze the trial
counsel’s legal tactics and maneuvers.” State v. Mhoon, 8th Dist. Cuyahoga No.
98832, 2013-Ohio-2090, ¶ 26, citing Strickland at id. Therefore,
a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.
Id., citing id.{¶23} Newton has the burden of demonstrating that his counsel rendered
ineffective assistance. Strickland at 687; State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. As we found under the first assignment of error,
the trial court did not err in running the firearm specifications consecutive to one another;
therefore, the record does not support Newton’s claims that his trial counsel’s
performance was deficient.
{¶24} The second assignment of error is overruled.
{¶25} 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., JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR