[Cite as State v. Parker, 2013-Ohio-2898.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98272
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CEDRIC PARKER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-554064
BEFORE: Keough, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: July 3, 2013
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
APPELLANT
Cedric Parker
No. 623-848
P.O. Box 57
Marion Correctional Institution
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian R. Radigan
Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Cedric Parker, appeals his sentence. For the reasons
that follow, we reverse Parker’s sentence and remand to the trial court (1) to correct the
plea journal entry to reflect that Parker pled guilty to the three-year firearm specification
attendant to Count 8; (2) to correct the sentencing journal entry to reflect that Parker pled
guilty to the three-year firearm specification on Count 8, but that the State dismissed the
specification at sentencing; thus, no firearm specification sentence should have been
imposed on Count 8; (3) for resentencing with consideration that it is not mandatory that
the seven-year firearm specification run consecutive to the three-year firearm
specification; and (4) for consideration on the record the required findings under R.C.
2929.14(C)(4) on whether consecutive sentences should be imposed.
{¶2} In June 2011, the grand jury issued a 14-count indictment against Parker
arising from a robbery and police shoot-out. Counts 1 through 5 charged Parker with
aggravated robbery, each containing one- and three-year firearm specifications. Under
Counts 6 and 7, Parker was charged with felonious assault of a peace officer, each count
contained one-, three-, and seven-year firearm specifications. Counts 8 through 13
charged Parker with kidnapping, each containing one- and three-year firearm
specifications. Count 14 charged Parker with disrupting public services, containing one-
and three-year firearm specifications.
{¶3} Pursuant to a plea agreement, Parker agreed to plead guilty to amended
Counts 1 and 2 aggravated robbery in violation of R.C. 2911.01(A)(1), Count 6, as
amended, to felonious assault of a peace officer, in violation of R.C. 2903.11(A)(2), and
Count 8, as amended, to kidnapping in violation of R.C. 2905.01(A)(2). Parker also
agreed to plead guilty to the attendant three-year firearm specifications on all four
counts, 1 and the seven-year firearm specification included with Count 6. All other
counts and specifications were dismissed.
{¶4} During the plea hearing, a discussion occurred between the trial court and the
parties about whether the seven-year firearm specification attendant to Count 6 was
required to run consecutive to the three-year firearm specifications attendant to Counts 1,
2, and 8. The trial court stated that while the three- and seven-year specifications under
Count 6 merged for sentencing, it was the court’s position that the three-year
specifications under Counts 1, 2, and 8 would not merge into that seven-year specification
under Count 6, but that the two specifications were to be served consecutively.
Accordingly, the court believed it was statutorily required that he order the firearm
specifications consecutively. The trial judge stated: “Counts 1, 2, and 8 all related back
to the original robbery, thus merge into one three-year firearm specification. But Count
6, the seven-year would be consecutive to the three years on Counts 1, 2, and 8.”
We note that the court’s plea journal entry is incorrect regarding the firearm specification
1
Parker pled to in Count 8 — the journal entry reflects he pled to the one-year specification, but the
transcript shows Parker pled guilty to the three-year firearm specification. On remand the trial court
is ordered to correct the plea journal entry to correct the clerical error pursuant to Crim.R. 36.
{¶5} At sentencing, the court found that Counts 1 and 2, aggravated robbery,
merged and the State elected to proceed to sentencing on Count 1, with the three-year
firearm specification. The trial court also merged the three- and seven-year
specifications in Count 6 for a single seven-year specification. The State voluntarily
dismissed the three-year specification under Count 8.2
{¶6} The trial court sentenced Parker to four years under Count 1 consecutive to
the three-year firearm specification, and six years on Count 8 to be served concurrently
with the four year base sentence under Count 1, for a total of nine years. Additionally,
the court imposed an eight year sentence on Count 6, consecutive to the mandatory
seven-year firearm specification and also consecutive to the three-year firearm
specification under Count 1. Parker’s total prison sentence was 24 years.
{¶7} Parker appeals, with two appellate briefs before us for review. His
appointed appellate counsel filed a brief setting forth one assignment of error, and Parker
filed a brief setting forth three pro se supplemental assignments of error.
{¶8} In the sole assignment of error filed by counsel, Parker contends that the trial
court erred when it found it was mandatory to run the seven-year gun specification under
Count 6 consecutively with the three-year gun specification for Counts 1 when R.C.
2929.14(B)(1)(f) requires only that the seven-year gun specification be served
consecutively and prior to the underlying offense. The State concedes the error and we
agree.
We note that the court’s sentencing journal entry is incorrect regarding the firearm
2
specification sentence imposed on Count 8. On remand the trial court is ordered to correct the
sentencing journal entry to correct the clerical error pursuant to Crim.R. 36.
{¶9} Parker pled guilty to two counts of aggravated robbery and the attendant
three-year firearm specifications, pursuant to R.C. 2929.145. Under
2929.14(B)(1)(a)(ii), a court must impose a three-year prison term upon an offender who
is convicted of a felony and an attendant firearm specification under R.C. 2929.145.
Additionally, the mandatory three-year firearm specification must be served consecutively
and prior to any prison term imposed for the underlying felony. R.C. 2929.14(C)(1)(a).
{¶10} Parker also pled guilty to one count of felonious assault of a police officer
in violation of R.C. 2903.11(A)(2), and the corresponding three- and seven-year firearm
specifications pursuant to R.C. 2929.145 and R.C. 2929.1412 respectively. According to
2929.14(B)(1)(f), if the offender pleads to a specification under R.C. 2941.1412, the
sentencing court is required to impose a mandatory seven-year prison term, which shall
run consecutively to the sentence imposed for the underlying felony offense. See also
R.C. 2929.14(C)(1)(c). Moreover, if the court imposes the seven-year specification
relative to this offense, the court cannot impose a “prison term under division (B)(1)(a) or
(c) of this section relative to the same offense.” Therefore, the trial court was required to
merge the three-year and seven-year firearm specifications attendant to the felonious
assault offense, but order the seven-year sentence to be served consecutively and prior to
the prison term imposed for felonious assault.
{¶11} Therefore, the trial court was correct in ordering that the three-year firearm
specification be served consecutively to Count 1 and the seven-year specification
consecutively to Count 6. However, the issue before this court is whether the trial court
was then required to order that the three-year firearm specification attendant to Count 1
be served consecutively to the seven-year firearm specification attendant to Count 6.
The answer to this issue lies in R.C. 2929.14(C), which governs the imposition of
consecutive sentences for mandatory prison terms associated with various specifications,
including firearms. R.C. 2929.14(C)(1) provides:
(a) Subject to division (C)(1)(b) of this section, if a mandatory
prison term is imposed upon an offender pursuant to division (B)(1)(a) of
this section for having a firearm on or about the offender’s person or under
the offender’s control while committing a felony, if a mandatory prison
term is imposed upon an offender pursuant to division (B)(1)(c) of this
section for committing a felony specified in that division by discharging a
firearm from a motor vehicle, or if both types of mandatory prison terms are
imposed, the offender shall serve any mandatory prison term imposed under
either division consecutively to any other mandatory prison term imposed
under either division or under division (B)(1)(d) of this section,
consecutively to and prior to any prison term imposed for the underlying
felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other
section of the Revised Code, and consecutively to any other prison term or
mandatory prison term previously or subsequently imposed upon the
offender.
(b) If a mandatory prison term is imposed upon an offender pursuant
to division (B)(1)(d) of this section for wearing or carrying body armor
while committing an offense of violence that is a felony, the offender shall
serve the mandatory term so imposed consecutively to any other mandatory
prison term imposed under that division or under division (B)(1)(a) or (c) of
this section, consecutively to and prior to any prison term imposed for the
underlying felony under division (A), (B)(2), or (B)(3) of this section or any
other section of the Revised Code, and consecutively to any other prison
term or mandatory prison term previously or subsequently imposed upon the
offender.
(c) If a mandatory prison term is imposed upon an offender pursuant
to division (B)(1)(f) of this section, the offender shall serve the mandatory
prison term so imposed consecutively to and prior to any prison term
imposed for the underlying felony under division (A), (B)(2), or (B)(3) of
this section or any other section of the Revised Code, and consecutively to
any other prison term or mandatory prison term previously or subsequently
imposed upon the offender.
(d) If a mandatory prison term is imposed upon an offender pursuant
to division (B)(7) or (8) of this section, the offender shall serve the
mandatory prison term so imposed consecutively to any other mandatory
prison term imposed under that division or under any other provision of law
and consecutively to any other prison term or mandatory prison term
previously or subsequently imposed upon the offender.
{¶12} A reading of these divisions indicate that certain firearm specifications are
required to run consecutively to each other. Specifically, in division (C)(1)(a), the
mandatory three-year specification must be ordered to run not only consecutive to the
prison term for the underlying felony, but also “consecutive to any other mandatory prison
term imposed under either division [(B)(1)(a) or (B)(1)(c)] or under division (B)(1)(d) of
[R.C. 2929.14].”
{¶13} Furthermore, division (C)(1)(b) requires that the mandatory prison term
must be served consecutive to the prison term imposed for the underlying felony, but also
“consecutively to any other mandatory prison term imposed under [(B)(1)(d)] or under
division (B)(1)(a) or (c) of [R.C. 2929.14] * * * .”
{¶14} Additionally, division (C)(1)(d) also requires that the mandatory prison
terms imposed pursuant to R.C. 2929.14(B)(7) and (8) be served consecutively to any
other mandatory prison term under [R.C. 2929.14(B)(7) and (8)] or under any other
provision of law.
{¶15} Therefore, and unlike the divisions cited and explained above — (C)(1)(a),
(b), and (d) — division (C)(1)(c) does not have the express mandates of consecutive
sentencing to any other divisions of R.C. 2929.14(B) or any other mandatory prison
terms, except for the underlying felony. Therefore, we can only assume that the
legislature did not intend that the mandatory seven-year firearm specification was
required to run consecutively to any other mandatory firearm specification or any other
mandatory prison term.
{¶16} We note that all the divisions under R.C. 2929.14(C) contain the catchall
language of “and consecutive to any other prison term or mandatory prison term
previously or subsequently imposed upon the offender.” However, it appears that this
language pertains to prior sentences or any additional sentence imposed upon an offender
unrelated to the indictment the offender is currently being sentenced on.
{¶17} While nothing in R.C. 2929.14 requires that the seven-year firearm
specification run consecutively to any other mandatory prison term, the trial court can, in
its discretion, choose to impose consecutive sentences for the underlying felonies and
attendant firearm specifications if the court deems it warranted, the proper findings are
made, and the sentence is not contrary to law. See State v. Williams, 12th Dist. No.
CA2007-12-136, 2009-Ohio-435 (court can impose prison term for gun specifications for
felonies that are not part of the same act or transaction; those sentences could be
consecutive if the offenses are not allied). But regarding the issue presented before this
court, we conclude that insofar as the trial court believed it was obligated to run the
mandatory three- and seven-year firearm specifications consecutively, the trial court’s
belief was in error.
{¶18} Also contained in this assigned error, Parker contends his plea should be
vacated because the advisement that the two firearm specifications were required to be
ordered to run consecutively was erroneous. Upon review of the record, we find that the
trial court substantially complied with Crim.R. 11 in accepting Parker’s plea. The trial
court advised Parker of the maximum penalty that could be imposed on each offense.
Although the trial court advised Parker that the court was required to run the firearm
specifications consecutively, the court advised him that the court could order all the
sentences to be served consecutively, for a maximum penalty of 30 years. Accordingly,
while his plea was valid and remains intact, we sustain this assignment of error regarding
the consecutive firearm specification sentence.
{¶19} In Parker’s first pro se assignment of error, he contends that the trial court
erred when it imposed sentences on allied offenses that were subject to merger pursuant
to R.C. 2941.25. Parker argues that all the offenses are allied; thus, he should only
receive one sentence, or in the alternative, that the matter should be remanded to the trial
court for a factual inquiry whether the offenses are allied.
{¶20} The test for determining whether two or more offenses are allied under R.C.
2941.25 was redefined in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061. The Johnson court held that rather than compare the elements of the
crimes in the abstract, courts must consider the defendant’s conduct. Johnson at
syllabus. “If multiple offenses can be committed by the same conduct, then the court must
determine whether the offenses were committed by the same conduct, i.e., ‘a single act,
committed with a single state of mind.’” Id., quoting State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting).
{¶21} We find that the record adequately sets forth facts that reveal that all the
offenses are not allied. “It is well-settled in this district that when an offense is defined
in terms of conduct towards another, there is dissimilar import for each person affected by
the conduct.” State v. Piscura, 8th Dist. No. 98712, 2013-Ohio-1793, ¶ 17. In this case,
the victims of the aggravated robbery, who were all civilians, and the victims of the
felonious assault, who were police officers, were different victims; thus, this is sufficient
to establish the existence of a separate animus for the aggravated robbery and felonious
assault charges.
{¶22} Moreover, although the kidnapping victim was also a victim named under
the aggravated robbery count, the kidnapping of that victim was committed with a
separate animus from the aggravated robbery. Parker completed the aggravated robbery
when he held up the Family Dollar Store at gunpoint. Parker then exited the store and
took the victim hostage while he fired on police officers. This was a separate, later
offense that was committed with an animus that did not exist until Parker exited the store
and was confronted by the officers. His decision to take the victim hostage and use her
as a human shield against law enforcement officers subjected her “to an increase in the
risk of harm that was separate and apart from the aggravated robbery.” State v. Martin,
11th Dist. No. 2012-L-043, 2013-Ohio-1944, ¶ 38, citing State v. Chaffer, 1st Dist. No.
C-090602, 2010-Ohio-4471, ¶11; State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345,
syllabus (“where the asportation or restraint exposes the victims to a substantial increase
in the risk of harm separate and apart from the underlying crime of robbery, a separate
animus exists for kidnapping.”)
{¶23} Accordingly, all the offenses are not allied, the trial court did not err in
sentencing Parker for each of the offenses, and this pro se assignment of error is
overruled.
{¶24} In his second pro se assignment of error, Parker contends that the trial court
abused its discretion in failing to apply the purposes and principles of felony sentencing
pursuant to R.C. 2929.11 consistent with Am.Sub.H.B. No. 86 (“H.B. 86”).
{¶25} R.C. 2929.11(A) provides that when a trial court sentences an offender for a
felony conviction, it must be guided by the “overriding purposes of felony sentencing.”
Those purposes are “to protect the public from future crime by the offender and others
and to punish the offender.” R.C. 2929.11(B) requires a felony sentence to be reasonably
calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with
and not demeaning to the seriousness of the crime and its impact on the victim and
consistent with sentences imposed for similar crimes committed by similar offenders.
{¶26} Parker was convicted of three first-degree felonies. Accordingly, his
convictions are governed by R.C. 2929.13(D)(1), which provides in part: “for a felony
of the first degree * * * it is presumed that a prison term is necessary in order to comply
with the purposes and principles of sentencing under section 2929.11 of the Revised
Code.”
{¶27} At sentencing, the trial court stated that it “had the opportunity to review the
Presentence Investigation Report, [R.C.] Sections 2929.11 for the principles and purposes
of sentencing, [R.C.] Section 2929.12 for the seriousness and recidivism factors, and
[R.C.] Section 2929.13 and other Revised Code sections for felony sentencing of the first
degree.” Moreover, the trial court’s sentencing journal entry stated that “prison is
consistent with the purpose of R.C. 2929.11.”
{¶28} Contrary to Parker’s assertion, he was not sentenced to a maximum sentence
and the trial court is not required to make any specific findings or give any reasons
justifying its decision for imposing more than the minimum sentence. See R.C. 2929.11;
State v. Saunders, 8th Dist. No. 98379, 2013-Ohio-490, ¶ 4. Accordingly, his second pro
se assignment of error is overruled.
{¶29} Parker raises in his third pro se assignment of error that the trial court erred
by imposing consecutive prison terms without making the requisite statutory findings
pursuant to H.B. 86.
{¶30} H.B. 86 revived the requirement that statutory findings by the trial court are
necessary prior to imposing consecutive sentences under R.C. 2929.14(C)(4). State v.
Venes, 8th Dist. No. 98682, 2013-Ohio-1891, ¶ 4. While H.B. 86 revived the “findings”
requirement for consecutive sentences, “it did away with the requirement that the court
justify its findings by giving reasons for making those findings.” Id. at ¶ 16, citing State
v. Goins, 8th Dist. No. 98256, 2013-Ohio-263; State v. Blackburn, 8th Dist. Nos. 97811
and 97812, 2012-Ohio-4590, ¶ 35.
{¶31} Pursuant to R.C. 2929.14(C)(4) consecutive sentences can be imposed if
the court finds them “necessary to protect the public from future crime or to punish the
offender,” and that “consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public.” Finally, a
judge must find the existence of at least one of three enumerated factors under R.C.
2929.14(C)(4)(a)-(c).
{¶32} This court recently restated in Venes that “[w]hen a statute directs a court to
make findings before imposing a particular sentence, a failure to make those findings is
‘contrary to law.’” Venes at ¶ 12, quoting State v. Jones, 93 Ohio St.3d 391, 399,
2001-Ohio-1342, 754 N.E.2d 1252.
Because the statute so clearly requires specific findings for the imposition
of consecutive sentences, those findings must be entered at the time the
court orders sentences to be served consecutively. What we mean by this is
that regardless of what the trial judge might say during sentencing regarding
the purposes and goals of criminal sentencing, compliance with R.C.
2929.14(C)(4) requires separate and distinct findings in addition to any
findings relating to purposes and goals of criminal sentencing.
Id. at ¶ 17.
{¶33} In this case, the trial court stated,
Now let me explain a little bit here as to the sentence. Although the
Defendant does not have a prior criminal — felony criminal record, you
know, this is — this was a terror situation in terms of, you know, the taking
of hostages, using an eighty-year-old woman as a shield against police
officers, firing at police officers, placing people in danger of their lives.
And this is — this is, you know, the combination of the two require, all the
three cases here, require the imposition of — of prison terms that run
consecutive. I believe that the harm indicated is — is not disproportionate
to the sentences imposed here. And the harm is so great or unusual that the
single term will not adequately reflect the seriousness of the conduct.
And although somebody’s led a fairly decent life beforehand, you
know, he got himself into situations where he compounded it, you know,
terrorizing an eighty-year-old woman, placing officers in fear of their lives.
***.
{¶34} Although the trial court made two of the required findings under R.C.
2929.14(C), the trial court failed to make the finding that consecutive sentences are
“necessary to protect the public from future crime or to punish the offender.” Therefore,
because the trial court failed to make all the required findings under R.C. 2929.14(C)(4),
Parker’s third pro se assignment of error is sustained.
{¶35} Sentence reversed and case remanded to the trial court for resentencing for
the limited purposes of (1) conducting a resentencing with consideration that it is not
mandatory that the seven-year firearm specification run consecutive to the three-year
firearm specification; and (2) to conduct a resentencing with consideration of the required
findings under R.C. 2929.14(C)(4) if the court intends to impose consecutive sentences.
{¶36} On remand the trial court is also ordered (1) to correct the plea journal entry
to reflect that Parker pled guilty to the three-year firearm specification attendant to Count
8; and (2) to correct the sentencing journal entry to reflect that Parker pled guilty to the
three-year firearm specification on Count 8, but that the State dismissed the specification
at sentencing; thus, no firearm specification sentence should have been imposed on Count
8.
It is ordered that the parties share equally in the 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. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR