State v. Reed

[Cite as State v. Reed, 2013-Ohio-3302.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 12AP080049
:
RUSSELL J. REED :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2012
CR 03 0062

JUDGMENT: AFFIRMED IN PART: REVERSED IN
PART, AND REMANDED

DATE OF JUDGMENT ENTRY: July 19, 2013

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RYAN STYER GEORGE URBAN
TUSCARAWAS CO. PROSECUTOR 116 Cleveland Ave. NW
MICHAEL J. ERNEST Suite 808
125 East High Ave. Canton, OH 44702
New Philadelphia, OH 44663
Tuscarawas County, Case No.12AP080049 2

Delaney, J.

{¶1} Appellant Russell J. Reed appeals from the judgment entries of conviction

and sentence in the Tuscarawas County Court of Common Pleas. Appellee is the State

of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on February 22, 2012, when Bobby Beller stole heroin

from appellant, his dealer. Appellant subsequently hunted down Beller and fired three

shots into the vehicle in which Beller was riding, striking both Beller and John Lineberry.

Bobby Beller Steals Heroin from Appellant

{¶3} Bobby Beller is an admitted heroin addict with a felony criminal history

who lives in New Philadelphia, Ohio. For several months in late 2011 and early 2012,

he bought his heroin daily or every other day from appellant, whom he knew as “J.R.”

and who lived in an apartment behind the Dairy Queen in New Philadelphia. Beller and

appellant had a deal whereby Beller would tattoo appellant in exchange for heroin.

{¶4} John Lineberry is described as an “independent taxi driver” who does not

use drugs himself but would ferry drug users about their daily errands in his vehicle, no

questions asked. Lineberry routinely gave Beller rides to appellant’s apartment but did

not go inside. Lineberry and appellant never met face to face.

{¶5} Around 10:00 a.m. on February 22, 2012, Beller stopped by appellant’s

apartment. A number of other drug users were present, including Toni Quillen and Cole

Hurst. At some point, appellant dropped a bag of heroin and didn’t realize some fell out.

Beller grabbed a quantity of heroin, observed by both Quillen and Hurst but unnoticed
Tuscarawas County, Case No.12AP080049 3

by appellant. Beller and Quillen left the apartment hurriedly, claiming they were leaving

to pick up guns from Quillen’s boyfriend to exchange for more heroin.

{¶6} Beller and Quillen got into Lineberry’s car, a green Ford Taurus. Beller

and Quillen used some of the stolen heroin. Lineberry dropped Beller off at Wal-Mart,

then took Quillen home to her apartment. Lineberry then returned to Wal-Mart to pick

up Beller. Lineberry drove and Beller sat in the front passenger seat. All of the car

windows were up because it was very cold outside.

{¶7} In the meantime, appellant realized some of his “dope” was missing and

suspected either Beller or Quillen had taken it. Appellant repeatedly called Beller on his

cell phone, but Beller only answered once. Appellant asked if Beller and Quillen were

returning to the apartment, and Beller said yes, but in fact he had no intention of

returning. Beller ignored the rest of appellant’s calls because he had the “sense”

appellant knew some of his dope was missing and was trying to track it down.

{¶8} Toni Quillen called appellant as soon as Lineberry dropped her off at

home to tell him it was Beller who stole the heroin. Appellant was very angry and she

wanted to make sure he knew she didn’t take it. Appellant later called Quillen back,

looking for Beller. Appellant also used Cole Hurst to track down Beller, promising him

drugs if Hurst could find Beller and reveal his whereabouts. Hurst was able to reach

Beller on his cell phone, found out he was at Wal-Mart, and reported this information

back to appellant.

Beller and Lineberry are Shot in the Parking Lot

{¶9} Upon leaving Wal-Mart, Lineberry drove Beller back to Lineberry’s

apartment complex in the 1000 block of Maple Avenue and pulled into the parking lot.
Tuscarawas County, Case No.12AP080049 4

Lineberry parked the car and turned it off. Beller began to gather his grocery bags

when something caught his eye in his peripheral vision. He looked up and saw

appellant outside the car, with a gun pointed at Beller’s face. Suddenly there was a

“pop” and the window broke.

{¶10} Beller scrambled from his spot in the front passenger seat across the

console, into the back seat, and out the rear driver’s-side door as appellant fired more

shots. In the meantime, Lineberry was already out of the car, lying on the ground.

Beller crawled on top of him. When the shots stopped, Beller waited a moment and

then got up in time to see appellant running away. Beller attempted to chase after

appellant, but realized he had been shot in the left leg. The bullet went completely

through Beller’s leg, entering his mid-thigh below his jeans pocket and exiting through

the cheek of his left buttock. When paramedics cut his pants off to treat him, the bullet

rolled out of his pant leg and was recovered for evidence.

{¶11} Lineberry was also shot. A bullet struck him in the right leg behind his

knee, and passed completely through the leg. Lineberry’s injury required surgery and

extensive aftercare in a nursing home for over four months.

{¶12} Beller and Lineberry were able to make their way into Lineberry’s

apartment and his roommate called 911.

The Neighborhood Reacts

{¶13} Two independent witnesses observed the aftermath of the shootings.

Wayne Everhart was changing a gas tank at his workplace when he heard a pop,

followed by two more pops. He realized the sound was gunfire, and seconds later saw

a man run up the sidewalk, talking into a cell phone, wearing a brown hoodie. Everhart
Tuscarawas County, Case No.12AP080049 5

heard the man say “he” shot “him” several times. Everhart called 911. Nancy Charnock

was returning from her lunch break, heading west on Maple Avenue, when she heard

“pop, pop” and saw a man in a brown hoodie running up the street. Everhart continued

to drive past the parking lot of the apartment complex, and saw one man trying to help

another man up off of the ground. Charnock asked if the men needed help and they

said no. She then saw blood running down one man’s pant leg, and drove off.

Charnock called 911 upon her return to her office.

{¶14} Deputy Matt Stein of the Tuscarawas County Sheriff’s Office was in the

vicinity of the shootings and was dispatched to Maple Avenue. He saw kids outside at

an elementary school playground very close to the scene of the reported shooting, and

knew the gunman had not yet been located. Stein directed school authorities to lock

down the school. Stein then walked through the playground and down an alley. Within

200 feet of the playground, Stein discovered a black handgun lying on the ground in the

yard of a residence on Grant Street.

{¶15} Appellant’s DNA was found on the 9-millimeter Hi-Point semi-automatic

pistol found near the school. This weapon was determined to have fired the two bullet

jackets recovered at the scene in the parking lot.

Appellant Testifies at Trial

{¶16} Appellant testified on his own behalf at trial, largely confirming the

testimony of appellee’s witnesses and adding the detail that he committed the shootings

while he was high.

{¶17} Appellant stated he is from Detroit and freely admitted he came to New

Philadelphia for the purpose of selling drugs. On February 22, 2012, he was so busy
Tuscarawas County, Case No.12AP080049 6

cutting up drugs for his customers, and doing drugs himself, that he didn’t realize his

heroin stash dropped out of his basketball shorts and Beller took $600 worth of it.

Appellant stated he was “popping pills,” smoking marijuana, and drinking beer on the

morning of February 22. He thought it was strange when Beller and Quillen took off

because Beller was supposed to give appellant a tattoo. “Chaz,” another drug user

present in the apartment, told appellant he saw Beller take some heroin, so appellant

began to track appellant down. Beller wouldn’t answer appellant’s calls, so he used

“Chaz’s” phone to call and Beller answered. Appellant asked Beller when he was

coming back and Beller claimed he would return soon with some guns Quillen had

planned to trade for heroin. Appellant kept asking Beller where he was but Beller

wouldn’t answer the question.

{¶18} Appellant testified he told Cole Hurst to find out where Beller was and in

exchange he would “throw him some dope.” Hurst determined Beller was at Wal-Mart,

so appellant went there first and scoured the aisles, looking for him. He eventually

tracked Beller to a Dollar Store and then followed Lineberry’s green Taurus to the

apartment complex parking lot on Maple Avenue. He watched Beller and Lineberry

gather bags of groceries and prepare to exit the car.

{¶19} Appellant claimed he ran up to the car when Beller’s door was open,

pointed the gun down at Beller’s leg, and fired. The car door closed so “[he] popped the

glass out the door then I s—then he started scramblin’ and he jumped on Mr. John

Lineberry towards his way and I shot another shot at him and I believe he scrambled to

the back and got in the back and I shot another shot towards his leg and I ran after
Tuscarawas County, Case No.12AP080049 7

that.” (T. 457). Appellant claimed he only wanted to injure Beller, not kill him, because

“if I’d wanted to kill him, I could have.”

{¶20} Upon cross-examination, appellant admitted he was under the influence of

narcotics, marijuana, and beer on the morning of February 22, and he was “really mad”

at Beller; he knew he was going to shoot him. Appellant did tell Cole Hurst in reference

to Beller, “I’m going to pop his bitch ass,” but he meant he would scare Beller, not kill

him.

Indictment, Conviction, and Sentence: Strife between Appellant and Defense
Trial Counsel

{¶21} Appellant was charged by indictment with two counts of attempted murder

pursuant to R.C. 2923.02(A) and R.C. 2903.02(A), both felonies of the first degree, and

both with gun specifications pursuant to R.C. 2941.145; two counts of felonious assault

pursuant to R.C. 2903.11(A)(2), both felonies of the second degree and both with gun

specifications pursuant to R.C. 2941.145; and three counts of drug trafficking pursuant

to R.C. 2925.03(A), all felonies of the fifth degree.

{¶22} Appellant entered pleas of not guilty and counsel was appointed to

represent him.1 A jury trial was scheduled for July 11, 2012, and on July 9, 2012, a final

pretrial was held, during which defense trial counsel stated he had visited appellant in

jail and appellant wanted him to withdraw from the case.

{¶23} Appellant stated he felt defense counsel was working with the prosecution

and not advocating for him effectively because no suppression motion was filed and

defense counsel didn’t seek to have the judge recuse herself. When the trial court

inquired further, appellant stated he heard talk at the jail about the judge making an

1
Attorney Matthew Petit.
Tuscarawas County, Case No.12AP080049 8

example of another defendant during sentencing; he asked counsel to bring him a

newspaper article about the judge’s comment but counsel had not done so. The trial

court stated she was not inclined to permit counsel to withdraw two days before trial

unless another attorney entered a notice of appearance.

{¶24} The case proceeded to jury trial. During a break in the trial, the issue of

appellant’s rejection of defense trial counsel arose again. The trial court asked

appellant to specify what he didn’t like about his attorney, and appellant stated he didn’t

like being characterized as though he was a “ruthless animal” over dope and did not

approve of counsel’s opening statement. Appellant’s claim was that he didn’t intend to

kill Bobby Beller, only to wound or scare him because Beller had stolen his dope. The

trial court noted this was exactly the thrust of counsel’s opening statement. Defense

trial counsel noted he tried repeatedly in the weeks preceding trial to get appellee to

reduce the charges from attempted murder to felonious assault and/or to offer less than

twenty years in prison, but appellee was unwilling to do so.

{¶25} Appellant again raised counsel’s decision not to file a motion to suppress.

Counsel noted he reviewed videos of taped drug buys with appellant and appellant was

not willing to watch the videos in their entirety. Defense trial counsel stated he could

find no arguable basis for a suppression motion, and therefore had not filed one.

{¶26} Finally, defense trial counsel noted that although the trial was in its early

stages, appellant insisted on testifying despite being strongly advised against doing so.

{¶27} The trial court found there was not a complete breakdown in the attorney-

client relationship and no irreconcilable conflict between appellant and defense trial

counsel. Counsel was still willing to proceed with trial, his opening statement was
Tuscarawas County, Case No.12AP080049 9

consistent with the theory of the case appellant wanted to argue, and new counsel was

not retained. The trial court noted appellant’s objection for the record and the trial

continued.

{¶28} Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the

close of appellee’s evidence and at the close of all of the evidence, and the motions

were overruled. Appellant was found guilty as charged.2 Appellee acknowledged the

counts of felonious assault merge with the counts of attempted murder, and elected to

sentence on the two counts of attempted murder plus firearm specifications and the

three counts of drug trafficking. The trial court sentenced appellant to consecutive

prison terms of ten years on each count of attempted murder, three years on each

firearm specification, and 12 months on each count of drug trafficking, for an aggregate

prison term of 29 years.

{¶29} Appellant now appeals from the judgment entry of his conviction and

sentence.

{¶30} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶31} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

{¶32} “II. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND

OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

2
Prior to trial, appellant had entered pleas of guilty to the three counts of drug
trafficking.
Tuscarawas County, Case No.12AP080049 10

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.”

{¶33} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT

PERMITTING APPELLANT TO HAVE NEW TRIAL COUNSEL.”

{¶34} “IV. THE TRIAL COURT ERRED BY NOT MERGING THE SENTENCES

FOR THE FIREARM SPECIFICATIONS.”

ANALYSIS

I.

{¶35} In his first assignment of error, appellant asserts that his convictions for

two counts of attempted murder are not supported by sufficient evidence and are

against the manifest weight of the evidence.3 We disagree.

{¶36} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry

is whether, after viewing the evidence in a light most favorable to the prosecution, any

3
Appellant does not challenge his convictions upon two counts of felonious assault plus
gun specifications nor three counts of drug trafficking.
Tuscarawas County, Case No.12AP080049 11

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.”

{¶37} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

{¶38} Appellant was found guilty of two counts of attempted murder pursuant to

R.C. 2923.02 and R.C. 2903.02, which, to paraphrase, prohibit any person from

purposely engaging in conduct that, if successful, would cause the death of another.

Appellant’s specific challenge to the manifest weight and sufficiency of the evidence on

appeal is similar to his argument at trial: he had no intention of killing Beller or Lineberry

and appellee failed to prove otherwise. We find, though, that the record contains

sufficient evidence of attempted murder of both victims, and appellant has failed to

establish the jury lost its way in considering the evidence.

{¶39} The most compelling evidence in support of appellant’s convictions is the

fact that he approached a car with two people inside and point-blank fired three shots

into it with a semi-automatic firearm. We have only appellant’s self-serving testimony

that Beller’s car door was open when appellant fired the first shot, allegedly allowing him
Tuscarawas County, Case No.12AP080049 12

to fire at Beller’s legs. The physical evidence discounts appellant’s testimony.

Appellant admitted he continued to shoot at Beller as he scrambled to get out of the car.

Appellee’s crime scene investigator suggested that the evidence showed one of the

three shots in fact struck the pillar of the vehicle, near where Beller’s head would have

been. If only three shots were fired, the physical evidence establishes the first shot was

most likely fired into the pillar, Beller started climbing over the seat, and two more shots

were fired, one of which struck Beller in the left leg and one which struck Lineberry. The

physical evidence therefore belies appellant’s account of a more deliberate, cautious,

aimed attack.

{¶40} Appellant’s own testimony about his drug and alcohol use on the day of

the shootings is impossible to reconcile with his argument as well. Appellant argues he

was such a good shot that he was able to deliberately strike two men in the legs as they

moved about inside and clambered out of a vehicle, and yet he was, by his own

account, under the influence of narcotics, marijuana, and beer while doing so.

{¶41} Appellant’s claim that he merely sought to scare or warn Beller is also

undermined by his actions in the immediate aftermath of discovering some of his dope

had been stolen. Other users rushed to tell appellant Beller stole the dope to deflect

blame from themselves, and he became enraged. He told Cole Hurst he wanted to

shoot Beller. In his statement to police, he admitted that he wanted to “fuck [Beller] up.”

In light of the circumstances surrounding the shootings, the jury could reasonably find

appellant acted with purpose to cause the deaths of Beller and Lineberry.

{¶42} Appellant’s convictions are not against the manifest weight or sufficiency

of the evidence and appellant’s first assignment of error is overruled.
Tuscarawas County, Case No.12AP080049 13

II.

{¶43} In his second assignment of error, appellant argues he received

ineffective assistance of trial counsel. We disagree.

{¶44} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “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. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955).

{¶45} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

{¶46} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.
Tuscarawas County, Case No.12AP080049 14

Matters outside the Record

{¶47} Appellant alleges a number of bases for ineffective assistance which are

outside the record. He claims counsel did not view all of the discovery, that he argued

with counsel the day before trial, and that his poor relationship with counsel affected his

preparedness for testifying in his own defense.

{¶48} We have previously noted, however, that where an ineffective assistance

of counsel claim cannot be supported solely on the trial court record, it should not be

brought on direct appeal. State v. Radel, 5th Dist. No. 2009-CA-00021, 2009-Ohio-

3543, ¶ 15, citing State v. Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983);

See, State v. Leeper, 5th Dist. No. 2004CAA07054, 2005-Ohio-1957; State v. Fryer, 90

Ohio App.3d 37, 627 N.E.2d 1065 (8th Dist.1993). In Cooperrider, the Ohio Supreme

Court held that where an appellant alleges matters outside the record as the basis for a

claim of ineffective assistance of counsel, the proper procedure is not direct appeal but

the post conviction remedies of R.C. 2953.21, which permit an appellant to present

evidence of counsel’s ineffectiveness at a hearing before the trial court. Id. See also,

State v. Barnett, 73 Ohio App.3d 244, 249, 596 N.E.2d 1101(1991); State v. Day,

Cuyahoga App. No. 89777, 2008-Ohio-4122 at ¶ 42.

{¶49} In the instant case, the discussions between appellant and trial counsel

took place off the record, although the trial court and the parties went to great lengths to

document appellant’s complaints. There is no evidence in the record from which we can

find that trial counsel did not show appellant the entire discovery, or argued with his

client to the extent that the attorney-client relationship was irretrievably broken.

Because a determination of this portion of appellant's claim of ineffective assistance of
Tuscarawas County, Case No.12AP080049 15

counsel involves facts outside the record, appellant's argument concerning his alleged

conflicts with defense counsel must fail on direct appeal. Radel, supra 2009-Ohio-3543

at ¶ 17.

Failure to Object to Consecutive Sentence on Gun Specifications

{¶50} Appellant further argues counsel was ineffective in failing to object to the

trial court’s decision to run the sentences on the gun specifications concurrently. Based

on our discussion infra in appellant’s fourth assignment of error, we find this issue to be

moot.

{¶51} Appellant’s second assignment of error is therefore overruled.

III.

{¶52} In his third assignment of error, appellant argues the trial court erred in not

appointing new counsel two days prior to trial. We disagree.

{¶53} We have noted the right to competent counsel does not require that a

criminal defendant develop and share a “meaningful relationship” with his attorney.

State v. Swogger, 5th Dist. No. 2011-CA-007, 2011-Ohio-5607, ¶ 12, citing Morris v.

Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).

{¶54} In the context of reviewing a claim by a defendant that the trial court

abused its discretion by overruling the defendant's request to discharge court-appointed

counsel and to substitute new counsel, courts have taken the approach that the

defendant must show a complete breakdown in communication in order to warrant a

reversal of the trial court's decision. Swogger, supra, 2011-Ohio-5607 at ¶ 13. Hostility,

tension, or personal conflicts between an attorney and a client that do not interfere with

the preparation or presentation of a competent defense are insufficient to justify a
Tuscarawas County, Case No.12AP080049 16

change in appointed counsel. See State v. Henness, 79 Ohio St.3d 53, 65–66, 679

N.E.2d 686 (1997). Furthermore, “[m]erely because appointed counsel's trial tactics or

approach may vary from that which appellant views as prudent is not sufficient to

warrant the substitution of counsel.” State v. Glasure, 132 Ohio App.3d 227, 239, 724

N.E.2d 1165 (7th Dist.1999); State v. Evans, 153 Ohio App.3d 226, 2003–Ohio–3475,

792 N.E.2d 757, ¶ 31 (7th Dist.); State v. Newland, 4th Dist. No. 02CA2666, 2003–

Ohio–3230 at ¶ 11.

{¶55} A defendant has no constitutional right to determine trial tactics and

strategy of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999);

State v. Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842 N.E.2d 996, ¶ 150; State v.

Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007–Ohio–1557, ¶ 183 (11th Dist.).

Rather, decisions about viable defenses are the exclusive domain of defense counsel

after consulting with the defendant. Id. When there is no demonstration that counsel

failed to research the facts or the law or that counsel was ignorant of a crucial defense,

a reviewing court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio

St.2d 45, 49, 402 N .E.2d 1189 (1980), citing People v. Miller, 7 Cal.3d 562, 573–574,

102 Cal.Rptr. 841, 498 P.2d 1089 (1972); State v. Wiley, 10th Dist. No. 03AP–340,

2004–Ohio–1008, ¶ 21.

{¶56} In the instant case, appellant has not established that appointment of new

counsel was warranted. Our review of the record indicates trial counsel’s strategy was

consistent with the defense appellant wanted him to pursue: he didn’t intend to kill the

victims, only to “frighten” Beller or shoot him in the leg. Appellant argues he didn’t have

enough time to discuss his testimony with counsel, and their relationship made
Tuscarawas County, Case No.12AP080049 17

discussion difficult, but it is evident from the record counsel strongly advised appellant

against testifying but appellant disregarded the advice. Appellant then proceeded to

admit to drug and alcohol use on the day of the offense, among other damaging

admissions. In light of the evidence at trial, we find no demonstration that counsel failed

to research the facts or the law or was ignorant of a crucial defense.

{¶57} Appellant has failed to demonstrate a complete breakdown in

communication which would have required the trial court to appoint new counsel.

Appellant’s third assignment of error is overruled.

IV.

{¶58} In his fourth assignment of error, appellant argues his convictions and

sentences upon the two firearms specifications should have merged. We agree.

{¶59} Appellant noted in his second assignment of error that no objection was

raised to the trial court’s decision to sentence appellant consecutively on the two

firearms specifications. We find the decision to be reviewable as plain error. See, State

v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923.

{¶60} R.C. 2929.14(B)(1) states in pertinent part:

(a) Except as provided in division (B)(1)(e) of this section, if an

offender who is convicted of or pleads guilty to a felony also is

convicted of or pleads guilty to a specification of the type described

in section 2941.141, 2941.144, or 2941.145 of the Revised Code,

the court shall impose on the offender one of the following prison

terms:

* * * *.
Tuscarawas County, Case No.12AP080049 18

(ii) A prison term of three years if the specification is of the type

described in section 2941.145 of the Revised Code that charges

the offender with having a firearm on or about the offender's person

or under the offender's control while committing the offense and

displaying the firearm, brandishing the firearm, indicating that the

offender possessed the firearm, or using it to facilitate the offense;

* * * *.

(b) If a court imposes a prison term on an offender under division

(B)(1)(a) of this section, the prison term shall not be reduced

pursuant to section 2967.19, section 2929.20, section 2967.193, or

any other provision of Chapter 2967 or Chapter 5120 of the

Revised Code. Except as provided in division (B)(1)(g) of this

section, a court shall not impose more than one prison term on an

offender under division (B)(1)(a) of this section for felonies

committed as part of the same act or transaction.

* * * *.

{¶61} Both parties have directed us to State v. Stevens, in which the Second

District Court of Appeals examined merger of firearm specifications in the context of

whether an offender committed multiple acts with a common purpose, rarely an easy

question when an offender has committed multiple offenses against multiple victims.

179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037 (2nd Dist.). The question is

whether the offenses were committed with a single objective for the purposes of R.C.

2929.14(B)(1)(b), and upon our review of the record, we find appellant committed the
Tuscarawas County, Case No.12AP080049 19

offenses as part of the same act or transaction, and the trial court should therefore have

merged the firearms specifications for sentencing. As in Stevens, the evidence does

not support the conclusion that appellant had targeted each victim individually. Id.

{¶62} Appellant’s fourth assignment of error is sustained.

CONCLUSION

{¶63} Having overruled appellant’s first, second, and third assignments of error,

and sustained his fourth assignment of error, we hereby remand this matter to the trial

court for further proceedings consistent with this opinion.

By: Delaney, J. and

Hoffman, P.J.

Wise, J., concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. JOHN W. WISE