[Cite as State v. McDowell, 2014-Ohio-3900.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26697
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DURELL L. MCDOWELL COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 06 1651
DECISION AND JOURNAL ENTRY
Dated: September 10, 2014
MOORE, Judge.
{¶1} Appellant, Durell McDowell, appeals the judgment of the Summit County Court
of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} Early on the morning of May 16, 2012, two men attacked Dwight Fish outside a
CVS pharmacy. According to Mr. Fish, who was homeless at the time, he approached the men’s
car because he believed that one of them had offered him a place to sleep. Mr. Fish was wrong
about the man’s identity, however, and found himself in a confrontation with a man whom he
had set up in a controlled drug buy for the Akron Police Department. As a result of the physical
encounter that ensued, Mr. Fish suffered a bruised rib and several other injuries, and his
assailants took $43 cash from his pocket before he fled on foot.
{¶3} Akron Police identified Mr. McDowell as “Rail,” one of the men selected by Mr.
Fish from a photo array after the attack. Mr. McDowell was charged with aggravated robbery in
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violation of R.C. 2911.01, along with a gun specification pursuant to R.C. 2941.145, (2)
intimidation of a crime victim or witness in violation of R.C. 2921.04(B), and (3) robbery in
violation of R.C. 2911.02(A)(2), along with a gun specification. A jury found Mr. McDowell
guilty of aggravated robbery, robbery, and intimidation, but not guilty of the gun specification.
The trial court merged the robbery offenses for purposes of sentencing and sentenced Mr.
McDowell to seven years in prison. The trial court also concluded that Mr. McDowell
committed the crimes while he was on post-release control and sentenced him to an additional
one-year prison term. Mr. McDowell appealed.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
FINDING [MR.] MCDOWELL GUILTY OF AGGRAVATED ROBBERY
BECAUSE IT WAS BASED UPON AN INCONSISTENT JURY VERDICT.
{¶4} In his first assignment of error, Mr. McDowell has argued that the trial court
should have acquitted him of aggravated robbery because the jury found him not guilty of the
accompanying gun specification. We disagree.
{¶5} “The several counts of an indictment containing more than one count are not
interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to
different counts, but only arises out of inconsistent responses to the same count.” State v.
Brown, 12 Ohio St.3d 147 (1984), syllabus. Thus, when a jury returns a guilty verdict on one
charge but returns a verdict of not guilty on a related charge, the verdicts may appear factually
inconsistent, but reversal is not warranted on that basis. U.S. v. Powell, 469 U.S. 57, 62-67
(1984). This holds true even when a defendant is found guilty of an offense, but not guilty of the
predicate offense. Id. at 64. “[A] verdict that convicts a defendant of one crime and acquits him
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of another, when the first crime requires proof of the second, may not be disturbed merely
because the two findings are irreconcilable.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-
2787, ¶ 81. See also Powell at 67. Similarly, a finding of not guilty on a specification is
independent of a finding of guilt on the principal offense charged. State v. Perryman, 49 Ohio
St.2d 14, 26 (1976). “Specifications are considered after, and in addition to, the finding of guilt
on the principal charge.” Id.
{¶6} Mr. McDowell was convicted of aggravated robbery in violation of R.C.
2911.01(A)(1), which prohibits the commission of a theft offense when the offender “ha[s] a
deadly weapon on or about the offender’s person or under the offender’s control and either
display[s] the weapon, brandish[es] it, indicate[s] that the offender possesses it, or use[s] it.”
The jury found him not guilty of a gun specification as set forth in R.C. 2941.145(A), which
provides for a mandatory three-year prison term when an offender has a firearm “on or about the
offender’s person or under the offender’s control while committing the offense and displayed the
firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to
facilitate the offense.” Although the principal charge and the gun specification arose from the
same set of facts and share common elements, they are independent for purposes of the jury’s
consideration. Perryman at 26. To the extent that the jury’s findings on the principal charge and
the specification are factually irreconcilable, that is not grounds for reversal of Mr. McDowell’s
conviction for aggravated robbery. See Gardner at ¶ 81.
{¶7} Mr. McDowell’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ORDERING RESTITUTION WITHOUT MAKING A FINDING OR
NOTIFYING [MR.] MCDOWELL IN OPEN COURT.
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{¶8} Mr. McDowell’s second assignment of error argues that the trial court erred when
it ordered him to pay restitution to the victim in its sentencing order without first notifying him
that it would impose restitution during the sentencing hearing. We agree.
{¶9} This Court reviews a sentence in two steps. First, we consider whether the
sentence is contrary to law by examining whether the trial court complied with the applicable
rules and statutes. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. If the sentence is
not contrary to law, we proceed to the second step and consider whether the sentence in the
particular case reflects an abuse of the trial court’s discretion in sentencing. Id.
{¶10} Restitution to crime victims is authorized by R.C. 2929.18(A), which provides, in
part:
[T]he court imposing a sentence upon an offender for a felony may sentence the
offender to any financial sanction or combination of financial sanctions
authorized under this section * * *. Financial sanctions that may be imposed
pursuant to this section include, but are not limited to, the following:
(1) Restitution by the offender to the victim of the offender’s crime or any
survivor of the victim, in an amount based on the victim’s economic loss. If the
court imposes restitution, the court shall order that the restitution be made to the
victim in open court, to the adult probation department that serves the county on
behalf of the victim, to the clerk of courts, or to another agency designated by the
court. If the court imposes restitution, at sentencing, the court shall determine the
amount of restitution to be made by the offender. * * * If the court decides to
impose restitution, the court shall hold a hearing on restitution if the offender,
victim, or survivor disputes the amount.
This statute imposes the clear requirement that if the trial court orders restitution to the crime
victim, it must do so “in open court.” Id. See also State v. Perkins, 2nd Dist. Montgomery No.
25808, 2014-Ohio-1863, ¶ 32-34; State v. Veto, 8th Dist. Cuyahoga No. 98770, 2013-Ohio-1797,
¶ 13-19; State v. Ray, 4th Dist. Scioto No. 04CA2965, 2006-Ohio-853, ¶ 17-18. By not
imposing restitution upon Mr. McDowell in open court, the trial court erred.
{¶11} Mr. McDowell’s second assignment of error is sustained.
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ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE, PLAIN AND
STRUCTURAL ERROR IN SENTENCING [MR.] MCDOWELL TO A ONE-
YEAR PRISON SENTENCE FOR VIOLATING POST-RELEASE CONTROL
WHEN THE JURY DID NOT FIND BEYOND A REASONABLE DOUBT
THAT [MR.] MCDOWELL HAD VIOLATED HIS POST-RELEASE
CONTROL IN VIOLATION OF HIS SXITH AMENDMENT AND
FOURTEENTH AMENDMENT [SIC] TO THE U.S. CONSTITUTION.
{¶12} Mr. McDowell’s third assignment of error argues that the trial court erred by
imposing an additional twelve-month prison sentence for a violation of post-release control and
by ordering the sentence to be served consecutively for the same reason. Specifically, Mr.
McDowell has argued that the fact that he was on post-release control when the crime was
committed was a fact that had to be found by a jury.
{¶13} When an offender commits a felony during a period on post-release control, R.C.
2929.141(A)(1) permits a trial court to terminate post-release control and impose a new prison
term for the violation of post-release control to be served consecutively with any prison term
imposed for the new felony. R.C. 2929.141(A)(1). A trial court must inform an offender at the
time of sentencing that this consequence may follow from a violation of post-release control.
R.C. 2929.19(B)(1)(e).
{¶14} In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme
Court concluded that with respect to the federal sentencing guidelines, any fact other than a prior
conviction that increases the maximum sentence must be found by a jury beyond a reasonable
doubt. See also Blakely v. Washington, 542 U.S. 296 (2004). The Ohio Supreme Court
considered Ohio’s felony sentencing guidelines in light of Apprendi in State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856. In that case, the Court concluded that, consistent with Apprendi and
Blakely, Ohio’s sentencing statutes were unconstitutional to the extent that they required
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factfinding for maximum sentences, sentences greater than the minimum, consecutive sentences,
repeat violent offender sentences, and major drug offender sentences. R.C. 2929.141(A)(1) was
not affected by the Foster decision.
{¶15} The constitutional concerns raised by Apprendi, Blakely, and Foster are not
present in this case for two reasons. First, and fundamentally, R.C. 2929.141(A)(1) does not
function as an enhancement to an offender’s felony sentence based on additional facts. Instead,
it permits the imposition of a separate prison term when a felony is committed during a period of
post-release control related to a previous felony sentence. As a procedural protection, courts
must inform the offender that this consequence could result from a violation of post-release
control when the offender is sentenced on the original charge. See generally State v. Jordan, 104
Ohio St.3d 21, 2004-Ohio-6085. Second, even if viewed as analogous to a sentencing
enhancement, the fact that an offender was on post-release control at the time that a subsequent
felony was committed is a fact akin to a previous conviction. It can be determined from
information contained in court documents and, because it relates to recidivism, “‘is a traditional,
if not the most traditional, basis for a sentencing court's increasing an offender’s sentence.’”
State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, ¶ 35, quoting Apprendi at 488. See also
State v. Bostick, 9th Dist. Summit No. 26880, 2013-Ohio-5784, ¶ 15 (noting that prior
convictions, “stand[] apart from other facts that may serve to increase a potential penalty.”).
{¶16} The trial court did not err by imposing a one-year prison term upon Mr.
McDowell because he committed the crimes at issue during a period of post-release control.
Because “[t]he existence of “error * * * [is] the starting point for a plain-error inquiry,” Mr.
McDowell’s third assignment of error must be overruled whether analyzed as plain error or not.
State v. Hill, 92 Ohio St.3d 191, 200 (2001).
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ASSIGNMENT OF ERROR IV
[MR.] MCDOWELL WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
COUNSEL FAILED TO OBJECT AT HIS SENTENCING HEARING WHEN
THE TRIAL COURT IMPROPERLY IMPOSED A ONE-YEAR PRISON
SENTENCE FOR VIOLATING POST-RELEASE CONTROL WHEN THE
JURY DID NOT FIND BEYOND A REASONABLE DOUBT THAT [MR.]
MCDOWELL HAD VIOLATED HIS POST-RELEASE CONTROL.
{¶17} Mr. McDowell’s fourth assignment of error argues that trial counsel provided
ineffective assistance by failing to object to the imposition of a prison sentence for violating
post-release control. We disagree.
{¶18} This Court must analyze claims of ineffective assistance of counsel under a
standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);
State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1)
deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland, 466 U.S. at
687. Mr. McDowell’s fourth assignment of error must be overruled because, as explained above,
there was no error in the imposition of the post-release control sanction to which counsel should
have objected. In other words, counsel’s performance was not deficient, so it follows that it was
not ineffective. See State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 14.
{¶19} Mr. McDowell’s fourth assignment of error is overruled.
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ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
SENTENCING [MR.] MCDOWELL TO A ONE-YEAR PRISON SENTENCE
FOR VIOLATING POST-RELEASE CONTROL WITHOUT SUFFICIENT
EVIDENCE THAT HE WAS ON POST-RELEASE CONTROL.
ASSIGNMENT OF ERROR VI
[MR.] MCDOWELL WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
COUNSEL FAILED TO OBJECT AT HIS SENTENCING HEARING WHEN
THE TRIAL COURT IMPROPERLY IMPOSED A ONE-YEAR PRISON
SENTENCE FOR VIOLATING POST-RELEASE CONTROL WITHOUT
SUFFICIENT EVIDENCE THAT HE WAS ON POST-RELEASE CONTROL.
{¶20} Mr. McDowell’s fifth and sixth assignments of error allege error in connection
with the evidence supporting the trial court’s conclusion that he had committed these crimes
during a period of post-release control.
{¶21} It appears from the transcript of sentencing that the trial court determined the fact
of Mr. McDowell’s violation of post-release control based, at least in part, on the contents of the
presentence investigation report prepared before sentencing. As the State noted at sentencing,
however, the presentence investigation report did not address the length of time remaining on
Mr. McDowell’s period of post-release control. During sentencing, the State calculated the
period remaining based on Mr. McDowell’s release date, with the assent of both defense counsel
and the trial court.
{¶22} With respect to the fact that Mr. McDowell was on post-release control, however,
we cannot examine the record because the presentence investigation report is not part of the
record on appeal. When an appellant does not provide a complete record to facilitate our review,
we must presume regularity in the trial court’s proceedings and affirm. State v. Jalwan, 9th Dist.
Medina No. 09CA0065-M, 2010-Ohio-3001, ¶ 12, citing Knapp v. Edwards Laboratories, 61
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Ohio St.2d 197, 199 (1980). Consequently, when the contents of a presentence investigation
report are necessary to review the appropriateness of a sentence, an appellant must move to
supplement the record on appeal with the report to enable our review. See State v. Banks, 9th
Dist. Summit No. 24259, 2008-Ohio-6432, ¶ 14.
{¶23} Mr. McDowell did not move to supplement the record on appeal with the
presentence investigation report so, to the extent that his fifth and sixth assignments of error
require us to consider the evidence related to the fact of his post-release control, we must
presume regularity and affirm.
{¶24} Mr. McDowell’s fifth and sixth assignments of error are overruled.
III.
{¶25} Mr. McDowell’s second assignment of error is sustained. His first, third, fourth,
fifth, and sixth assignments of error are overruled. This matter is affirmed in part and reversed in
part and remanded to the trial court for proceedings consistent with our disposition of Mr.
McDowell’s second assignment of error.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
NEIL AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.