State v. Dumas

[Cite as State v. Dumas, 2015-Ohio-2683.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 MA 31
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
NATHANIEL DUMAS )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 11 CR 429

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Paul Zindle
Appellate Review Office
University of Akron School of Law
Akron, Ohio 44325-2901

Nathaniel Dumas, Pro se, #622-439
Ross Correctional Institution
P.O. Box 7010
Chillicothe, Ohio 45601
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 29, 2015
[Cite as State v. Dumas, 2015-Ohio-2683.]
WAITE, J.

{¶1} Appellant Nathaniel Dumas appeals from a Mahoning County Common

Pleas Court judgment convicting him of felony murder, aggravated robbery, and

possession of a firearm while under disability. Appellant was tried as an accomplice

to an armed robbery of Galaxy Seafood store in Youngstown. During trial, Appellant

was disruptive and ultimately removed from the courtroom. On appeal, he alleges

that failure to return him to the courtroom after his apology amounted to a

constitutional violation, two of his charges should have merged for sentencing

purposes and that he was provided ineffective assistance at trial. A review of the

record leads to the conclusion that all of Appellant’s arguments are meritless and the

judgment of the trial court is affirmed.

Statement of Facts

{¶2} On April 8, 2011, Appellant and his cousin, Warren Wright drove to

James Thomas’ house in Youngstown, Ohio, to discuss robbing the Galaxy Seafood

store (“Galaxy”). Appellant and Wright offered Thomas $20-30 to press the doorbell

buzzer at Galaxy so that someone would unlock the front door and let them in. Once

the door was opened, Wright would commit an armed robbery. Pursuant to this plan,

the three men left for Galaxy in Wright’s tan Cadillac. Appellant was driving. They

stopped at a sporting goods store so that Wright could steal a ski mask and glasses

to wear during the robbery. They also bought and drank beer at a drive-through on

Belmont Avenue. As they drove, Appellant and Wright further discussed their plans

for the robbery.

{¶3} Appellant dropped off Thomas and Wright a few blocks away from

Galaxy. At the same time, Lusonyta Madison arrived at Galaxy to visit her daughter,
 -2-

C.L., age 15, who worked there. Before entering, she saw Wright and Thomas

walking towards the building.

{¶4} Mike Walker, a Youngstown Police Officer, was hired by Galaxy’s

owner as a security guard and was working on the night of the crime in full uniform,

including his service weapon.

{¶5} Thomas and Wright entered the store sometime around 6:00 p.m.

Thomas was ready to press the door buzzer, but a patron exited the store at that

moment, letting them in. Thomas entered first. Wright, walking behind with the ski

mask on, pushed Thomas out of the way and pointed his weapon at the store clerk,

C.L. He approached the register and said, “give me the money, give me the money.”

(Tr. Vol. III, p. 501.) Walker was in the store and observed the robbery as it was

unfolding. He yelled, “police, drop the gun,” and drew his weapon. (Tr. Vol. III, p.

561.) When Wright did not comply, Walker fired three rounds, hitting Wright twice in

the chest. Wright collapsed. Walker then secured the weapon and called for backup

support.

{¶6} Youngstown Detective/Sergeant Daryl Martin responded to Walker’s

call. He spoke to Ms. Madison. Ms. Madison told him about Thomas’ part in the

crime. She also said she recognized the masked gunman as “Shelly’s brother.” (Tr.

Vol. III, p. 497.) “Shelly” is a reference to Delshella Lynch, Wright’s sister and

Appellant’s first cousin. Ms. Madison called Ms. Lynch after the robbery to tell her

that her brother had been shot. Wright’s tan Cadillac was found parked about three

blocks from Galaxy.

{¶7} Thomas initially denied involvement with the crime. He later told police

about not only his own involvement, but Appellant's, as well.
 -3-

{¶8} On April 15, 2011, Appellant was arrested. Following his arrest, he

claimed that he was with a man named Rodney Clay on the evening of the robbery.

Detective Martin spoke with Clay, but Clay was unable to confirm Appellant’s story or

provide him with an alibi.

{¶9} Trial began on January 24, 2012. Immediately prior to voir dire, the

court had scheduled time to resolve pretrial motions Appellant had filed pro se.

During the proceedings, Appellant constantly interrupted his counsel, the prosecutor

and the judge while the motions were being discussed. During the initial stage of voir

dire, Appellant interrupted and accused the judge of being biased in favor of the

prosecutor. When voir dire was well under way, Appellant again interrupted the

proceedings and objected to the manner in which the prosecutor was asking

questions. He stated: “I'm not going to trial with that jury”. (Tr. Vol. I, p. 186.) After

another series of interruptions, he said he wanted to hire his own attorney and

repeated that he was not going to trial. At this point, defense counsel told the court

that Appellant no longer wanted his representation.

{¶10} Appellant became even more unruly. He attempted to issue orders to

the judge, made various pronouncements about what he was and was not going to

do in court, and told the judge “I don't fear you.” (Tr. Vol. I, p. 190.) Appellant's

mother, who was in the courtroom, attempted to explain Appellant's behavior, but

Appellant interrupted her as well, and tried to instruct the court as to the manner in

which the judge could talk to his mother. Appellant referred to the proceedings as a

conspiracy against him. He interrupted the prosecutor as she attempted to respond

to his accusations. When he again stated that he was not going to trial, the judge

asked him how long it would take to hire a new lawyer. He said it would not take him
 -4-

very long. The judge offered him 24 hours to find a lawyer. Appellant protested that

he could not possibly find another attorney in 24 hours and stated that he would not

go to trial with the present jury. Appellant’s tirade included his statement that he did

not need to know the law to know the jury was prejudiced against him. After the final

outburst, the court told Appellant that he could proceed with a new attorney within 24

hours, or be taken to the third floor of the courthouse to observe the trial by video and

his present counsel would continue with the case. Appellant then asked for new

counsel to be appointed, which request was denied, and the trial was continued to

the next day.

{¶11} When trial reconvened, Appellant had not hired new counsel. Appellant

railed against the judge for only giving him 24 hours to find counsel, and he refused

to participate in the trial. He complained about the discovery process, alleged

violations of his constitutional rights, lack of preparation for trial, and continued

insisting that he was not going to allow the court to convene a trial. The court asked

Appellant if he was finished with his interruption, and Appellant answered, “I'm done.”

(Tr. Vol. I, p. 204.) At this point, the judge continued the trial to the next day in order

to proceed with voir dire. Appellant interrupted again, stating “[t]hat's not going to

happen neither. I told y'all, I'm not about to let y'all do what you think y'all going to do

with me.” (Tr. Vol. I, p. 205.)

{¶12} The next morning the case reconvened, and defense counsel objected

when the court ordered that Appellant be removed to another room to view the trial.

The prosecutor pointed out that Crim.R. 43(B) allows the court to remove a defendant

for disruptive behavior, and that Appellant had a history of disruptive behavior not

only in this case but in a prior case in Youngstown Municipal Court. Appellant had
 -5-

also written a letter to Detective Martin in which he threatened that “there will be a

commotion in this honorable court” if forced to go to trial with his current defense

counsel. (Tr. Vol. I, p. 218.) The court gave Appellant a final chance to address the

issues regarding his behavior in court. Instead, Appellant seized the opportunity to

begin a rambling diatribe where he expressed that he wanted a suppression hearing

held, and insisted that he had a right to new counsel of his choice. He claimed there

had been a Brady violation in his case, that Thomas should have been charged with

murder, that he was never given a bill of particulars, and generally that his due

process rights had been violated. He demanded that the prosecutor give him a

statement of what Thomas’ testimony would be in court. This rambling statement

continued for a considerable period of time.

{¶13} The court then ordered Appellant to be removed to another room where

he was able to view the trial on television monitors. The court assured Appellant he

would have access to his counsel and would be able to see and hear everything that

was going on in court, and they would also be able to see him. The judge

determined there was nothing in Appellant’s demeanor that would cause him to

change his mind about removing Appellant from the courtroom. Prior to his actual

removal, while the judge dealt with another pending motion, Appellant interrupted

and said “I want to apologize for my past actions in this courtroom.” (Tr. Vol. II, p.

246.) At the conclusion of the motions hearing Appellant was removed. Voir dire

was completed.

{¶14} The state called as witnesses Kevin Shaw who owned Galaxy, Officer

Walker, Lusonyta Madison, her daughter C.L., James Thomas, various police

officers, and a deputy coroner. The state also called Delshella Lynch, who testified
 -6-

about a lengthy conversation she had with Appellant in which he confessed to his

involvement with the crime. She confirmed that Wright was her brother, and

Appellant is her first cousin. (Tr. Vol. III, pp. 598-599.) Ms. Lynch managed a hair

salon where Madison and C.L. were customers. She stated that Appellant and

Wright were very close, like brothers, and spent nearly every day together. Wright

came to her salon in his tan Cadillac at about 1 p.m. on the day of the crime. At

about 6 p.m., she received a call from Madison that Wright had been involved in a

robbery and shooting at Galaxy. She immediately drove there and discovered that

Wright had been shot. She followed the ambulance to the hospital, and many of her

relatives were there when she arrived. Ms. Lynch testified that the only relative who

did not appear at the hospital was Appellant. (Tr. Vol. III, p. 608.)

{¶15} Ms. Lynch testified that two days later she was staying at her mother's

house. Appellant arrived, and she asked him what had happened at Galaxy. They

went outside to talk privately and Appellant confessed his involvement. (Tr. Vol. III,

p. 612.) Appellant said that Wright picked him up in his car and they drove to a store

to steal a ski mask and glasses. They got back in the car and talked about doing a

robbery. (Tr. Vol. III, p. 613.) Wright devised a plan to find someone to press the

door buzzer to get them into Galaxy. They asked two people who said no before

asking Thomas, who said he would do it for $20. The three returned to the car and

finished their plans while driving to Galaxy. Appellant was standing outside in back of

the store when the robbery occurred. When he heard shots, he jumped into Wright's

car and drove away. He left the car nearby at his aunt Carolyn's house. Appellant

told her Ms. Lynch could get the keys from Tahesia Dumas, another cousin, and she

later retrieved the keys and car from the place Appellant had indicated.
 -7-

{¶16} On February 1, 2012, a jury convicted Appellant of felony murder in

violation of R.C. 2903.02(B)(D), with an accompanying firearm specification, in

violation of R.C. 2941.145(A). He was sentenced to fifteen years to life in prison. He

was also convicted of aggravated robbery, in violation of R.C. 2911.011(A)(1)(C), a

felony of the first degree, with an accompanying firearm specification, in violation of

R.C. 2941.145(A). His sentence for aggravated robbery was ten years in prison.

The two firearms specifications were merged at sentencing and a three-year prison

term was imposed. The punishments were ordered to run consecutively, for a total of

twenty-eight years to life in prison. This timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR WHEN

IT EXCLUDED APPELLANT DUMAS FROM HIS TRIAL IN VIOLATION

OF THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

{¶17} Appellant contends that his Sixth Amendment rights were violated when

the trial court initially removed him during voir dire, and further when the judge denied

his request to remain in the courtroom after he apologized for his poor behavior. The

Confrontation Clause of the Sixth Amendment to the United States Constitution

provides: “In all criminal prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him.” This concept has been broadened to

include the right of the accused to be present for his own trial. State v. Williams, 6

Ohio St.3d 281, 286, 452 N.E.2d 1323, 1330 (1983), citing Illinois v. Allen, 397 U.S.

337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970).
 -8-

{¶18} Section 10, Article I of the Ohio Constitution mandates that “[i]n any

trial, in any court, the party accused shall be allowed to appear and defend in person

and with counsel.” These precepts are also contained within Crim.R. 43(A)(1): “the

defendant must be physically present at every stage of the criminal proceeding and

trial * * * except as otherwise provided by these rules.”

{¶19} A defendant's presence is required at trial unless he waives his right or

extraordinary circumstances exist requiring exclusion, such as his misconduct. State

v. Brown, Fifth Dist. No. 2003-CA-01, 2004-Ohio-3368, citing State v. Williams, 6

Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983). “Where a defendant's conduct in the

courtroom is so disruptive that the hearing or trial cannot reasonably be conducted

with the defendant's continued physical presence, the hearing or trial may proceed in

the defendant's absence or by remote contemporaneous video.” Crim.R. 43(B). To

find that a defendant’s right to confrontation was violated, we must find that the trial

court abused its discretion in removing the defendant. Allen, 397 U.S. at 343; see

also, State v. Chambers, 10th Dist. No. 99AP-1308, 2000 WL 963890 (July 13,

2000). The exclusion of a defendant should be considered in light of the whole

record. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486

(1985).

{¶20} A trial judge is empowered to maintain decorum and enforce

reasonable rules to insure the orderly and judicious disposition of the court's

business. State v. Clifford, 162 Ohio St. 370, 372, 123 N.E.2d 8 (1954). The United

States Supreme Court has stated that “[w]e believe trial judges confronted with

disruptive, contumacious, stubbornly defiant defendants must be given sufficient

discretion to meet the circumstances of each case. No one formula for maintaining
 -9-

the appropriate courtroom atmosphere will be best in all situations.” Allen at 343.

There are certain constitutional options available for a judge to deal with an

extraordinarily disruptive defendant, among which are to cite the defendant for

contempt or remove the defendant from the courtroom until he is prepared to conduct

himself properly. Allen at 344.

{¶21} Here, Appellant was repeatedly disrespectful of the court, the lawyers,

witnesses and the jurors, and threatened further disruptions before he was removed.

Prior to beginning voir dire, Appellant interrupted the proceedings by accusing the

state and the potential jurors of being racist. He complained that co-conspirator

Thomas was not also being charged with murder. He accused the court of showing

favoritism towards the state. As voir dire proceeded, Appellant repeatedly stated that

he refused to go to trial with the selected jury because the entire jury was prejudiced

and because he did not like his counsel.

{¶22} As Appellant continued to disrupt the court, the judge warned him, “[m]y

other alternative is to remove you from the courtroom and place you in a room with a

camera, and that’s it, and you will watch your trial.” (Tr. Vol. I, pp. 189-190.) This did

not deter Appellant. When his mother came forward to make a statement to the

court, Appellant continued to disrupt and talk over the court as well as interrupt his

mother. When the court told Mrs. Dumas that she needed to conclude her statement,

Appellant responded, “[s]he can talk. You ain’t got to stand down till you done

talking. You ain’t got the freedom -- don’t bow down to him. For real. I mean, she

had enough. Don’t disrespect my mother, man.” (Tr. Vol. I, pp. 193-194.)

{¶23} Following this, Appellant continued to be disruptive and repeat his

desire for new counsel. To this end and at this late date, the court granted Appellant
 -10-

a twenty-four hour period to try and obtain new counsel. After the twenty-four hours,

no new counsel was obtained. Defense counsel objected to Appellant’s removal

from the courtroom. The prosecution produced a letter written by Appellant on

December 3, 2012, stating that “before I go to trial with Attorney Carfolo, there will be

a commotion in this honorable court, Sir.” (Tr. Vol. I, p. 218.) The state also

presented evidence that Appellant was excluded from a prior court proceeding in

municipal court. State v. Dumas, 7th Dist. No. 10-MA-50, 2011-Ohio-1003. In that

earlier case, Appellant was disruptive in court and accused testifying witnesses of

lying. We upheld the municipal court’s decisions both in regard to contempt and

concerning Appellant’s removal from the courtroom. Id. at ¶62.

{¶24} In the instant case, based on Appellant’s prior acts in the courtroom, the

letter he sent, and his continuous disruptions, the court determined that Appellant

needed to be removed from the courtroom. The jury was properly instructed to

disregard Appellant’s absence. (Tr. Vol. II, p. 249.)

{¶25} From the above evidence, it is clear that the court was well within its

discretion to remove Appellant. When a defendant is removed from the courtroom,

Crim.R. 43(B) allows that if a court “determines that it may be essential to the

preservation of the constitutional rights of the defendant, it may take such steps as

are required for the communication of the courtroom proceedings to the defendant.”

Once Appellant was removed from the courtroom for his disruptive behavior, he was

allowed to watch the proceedings via video with audio and was still able to

communicate with his counsel. Therefore, there was no violation of Appellant’s Sixth

Amendment or statutory right to be present for his trial.
 -11-

{¶26} Appellant urges that there is an automatic right for a defendant to be

allowed to return to the courtroom once an apology has been made. Appellant

misreads the holding of Allen in coming to this conclusion. Allen does say that

“[o]nce lost, the right to be present can, of course, be reclaimed as soon as the

defendant is willing to conduct himself consistently with the decorum and respect

inherent in the concept of courts and judicial proceedings.” Id. at 343. This language

is permissive, not mandatory and must be based on the trial court’s discretion as it

uses the word “can” and not “must.” Regardless, this language is dicta. Immediately

prior to that statement is the holding in the matter: “we explicitly hold today that a

defendant can lose his right to be present at trial if, after he has been warned by the

judge that he will be removed if he continues his disruptive behavior, he nevertheless

insists on conducting himself in a manner so disorderly, disruptive, and disrespectful

of the court that his trial cannot be carried on with him in the courtroom.” Id.

Whether a defendant is actually sincere in his apology and is willing to conduct

himself or herself properly in the courtroom is obviously a determination that the trial

judge must make. In this case, the court had already given Appellant a number of

chances to correct his behavior. Based on the prior history of Appellant’s court

disruptions and his repeated refusals to have anything to do with the current

proceedings, the court was well within its discretion to arrange an alternative room for

Appellant to view the trial and consult with his attorney. Therefore, Appellant’s first

assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2
 -12-

THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED

R.C. 2941.25 (MULTIPLE COUNTS STATUTE) AND THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION WHEN IT SENTENCED APPELLANT

DUMAS TO MULTIPLE TERMS ON AGGRAVATED ROBBERY AND

MURDER AS THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT.

{¶27} In his second assignment of error, Appellant claims that the trial court

erred in sentencing him for both felony murder and aggravated robbery because the

two offenses constitute allied offenses of similar import. Appellant claims that, in so

doing, the trial court violated R.C.2941.25 and the double jeopardy clause of the Fifth

Amendment. This argument also fails.

{¶28} The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution, and the Ohio Constitution, Article I, Section 10, protect a

defendant against multiple punishments for the same offense. State v. Martello, 97

Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶7. In essence, though, the

Double Jeopardy Clause “does no more than prevent the sentencing court from

prescribing greater punishment than the legislature intended.” Missouri v. Hunter,

459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). When dealing with

multiple punishments for the same offense, the issue is “whether the General

Assembly intended to permit multiple punishments for the offenses at issue.” State v.

Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).

{¶29} In Ohio, this constitutional protection is codified in R.C. 2941.25(A),

which states: “Where the same conduct by defendant can be construed to constitute
 -13-

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.”

{¶30} In 2010, the Ohio Supreme Court revised its interpretation as to the

application of R.C. 2941.25(A) and held that: “When determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25,

the conduct of the accused must be considered.” State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, syllabus. Johnson overruled a previous test established in

State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999) that required an abstract

examination of the elements of two crimes as the means for determining allied

offenses. Johnson found that the Rance test was contrary to the plain language of

R.C. 2941.25, which specifically instructs the court to view each defendant's conduct.

Although Johnson left certain questions unanswered as to the practical application of

R.C. 2941.25(A), we have previously observed that “[o]ur only new guidance [from

Johnson] is to consider the defendant's conduct and thus the particular facts of each

case to determine whether the offenses are of similar import.” State v. Gardner, 7th

Dist. No. 10 MA 52, 2011-Ohio-2644, ¶23.

{¶31} Under Johnson, determining whether offenses are allied within the

meaning of the statute involves a two-step process. We first determine whether,

when the elements of the two crimes are compared, the elements correspond to such

a degree that the commission of one crime will necessarily result in the commission

of the other. Although Rance called for this comparison to be done in the abstract,

Johnson requires that the conduct of the accused be considered when determining

whether the elements of the two offenses are allied. Johnson at paragraph one of
 -14-

the syllabus. If we determine that the two offenses are allied, the second step of the

analysis requires us to determine if the offenses actually were committed by the

same conduct, i.e., “a single act, committed with a single state of mind.” Id. at ¶49.

{¶32} The Ohio Supreme Court has further clarified its holding in Johnson in

State v. Ruff, Slip Opinion No. 2015-Ohio-995. In Ruff the Court held that a trial court

must evaluate not just two, but three factors as part of the second step of the

Johnson test: the defendant’s conduct, the defendant’s animus, and the import of the

multiple offenses: “Under R.C. 2941.25(B), a defendant whose conduct supports

multiple offenses may be convicted of all the offenses if any one of the following is

true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows

that the offenses were committed separately, or (3) the conduct shows that the

offenses were committed with separate animus.” Id. at paragraph three of the

syllabus. Ruff further held that: “Two or more offenses of dissimilar import exist

within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

offenses involving separate victims or if the harm that results from each offense is

separate and identifiable.” Id. at paragraph two of the syllabus.

{¶33} The felony murder statute, R.C. 2903.02(B), provides: “No person shall

cause the death of another as a proximate result of the offender's committing or

attempting to commit an offense of violence that is a felony of the first or second

degree * * *.” The aggravated robbery statute, R.C. 2911.01(A)(1), provides: “No

person, in attempting or committing a theft offense * * * or in fleeing immediately after

the attempt or offense, shall do any of the following: * * * Have a deadly weapon on

or about the offender's person or under the offender's control and either display the

weapon, brandish it, indicate that the offender possesses it, or use it.”
 -15-

{¶34} In this case, Appellant's conduct as an accomplice with respect to both

the aggravated robbery and the felony murder were exactly the same: he joined with

Wright and Thomas to plan and execute an armed robbery of Galaxy, and in the

course of the robbery, Wright was killed. Whether he was convicted of only one

crime or the other, the same evidence would have been used against him.

Therefore, the first prong of the Johnson test is fulfilled and the crimes are allied.

This is only the first step of the analysis, however.

{¶35} Even though felony murder and the aggravated robbery under the facts

of this case pass the first, general, portion of the Johnson test, Appellant may still be

sentenced for both crimes if the crimes were committed separately, or there was a

separate animus for the crimes, or if there exists a dissimilar import. Ruff specifically

held that dissimilar import exists when the crimes involve separate victims. Both

crimes can then be punished. In this case, the victims of the aggravated robbery and

the victim of the felony murder were different. The robbery was committed against

Galaxy Seafood, its owner Kevin Shaw, and against C.L., the employee working at

the time. The felony murder was committed against Wright, an accomplice to the

crime. Wright was not in any manner the target of the robbery because he was

helping to commit the crime. Thus, in cases where the victims are completely

different, there is no merger of the offenses of felony murder and the predicate

underlying felony. State v. Ragland, 5th Dist. No. 2010CA00023, 2011-Ohio-2245 (a

post-Johnson case holding that felony murder and aggravated robbery are not allied

offenses when the victims are different); Osman, supra (a post-Johnson case holding

that, when there are separate victims, felony murder and aggravated robbery do not

merge).
 -16-

{¶36} Therefore, when considering all of the facts specific to this case, the

convictions for aggravated robbery and felony murder are allied offenses, but are not

allied offenses of similar import. Thus, they do not merge for sentencing purposes.

Appellant’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION WHEN HE FAILED TO PRESENT

AVAILABLE EVIDENCE ESTABLISHING THAT APPELLANT DUMAS

WAS NOT AT THE CRIME SCENE.

{¶37} Appellant alleges that his counsel was deficient by failing to adequately

question and draw out the testimony of Ms. Sharilillie Starks, a worker at Galaxy,

regarding her description of the unknown individual she observed behind Galaxy just

after the crime was committed. Looking at the facts of this case, Appellant cannot

establish trial counsel’s representation was either deficient or prejudicial.

{¶38} According to the U.S. Supreme Court, “the Sixth Amendment right to

counsel exists ‘in order to protect the fundamental right to a fair trial.’” Lockhart v.

Fretwell, 506 U.S. 364, 368 (1993), citing Strickland v Washington, 466 U.S. 668, 684

(1984), Nix v. Whiteside, 475 U.S. 157, 175 (1986), United States v. Cronic, 466 U.S.

648, 653 (1984), and United States v. Morrison, 449 U.S. 361, 364 (1981). The Sixth

Amendment's guarantee of the right to counsel “is the right to the effective assistance

of counsel.” State v. Bradley, 42 Ohio St.3d 136, 150, 538 N.E.2d 373, 391 (1989),

quoting, McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d
 -17-

763, fn. 14, (1970). This right “is recognized not only for its own sake, but because of

the effect it has on the ability of the accused to receive a fair trial.” Cronic, 466 U.S.

648, 658.

{¶39} The Ohio Supreme Court has held that “Strickland v. Washington * * *,

establishes the standard for judging ineffective-assistance claims.” State v. Burke,

97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶5. Strickland establishes a two-

part test to prove a claim of ineffective assistance of counsel. “To obtain a reversal of

a conviction on the basis of ineffective assistance of counsel, the defendant must

prove (1) that counsel's performance fell below an objective standard of

reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the

proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52, 64

(2000), citing, Strickland, supra.

{¶40} To first determine whether counsel’s assistance was ineffective requires

a showing that counsel’s performance fell below a certain objective standard of

reasonableness. Madrigal at 388, citing Strickland. This standard is highly

deferential towards counsel. Strickland at 689. In addition, “[b]ecause of the

difficulties inherent in making the evaluation, a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance * * *.” Id.

{¶41} Even if counsel’s assistance falls below this objective standard, reversal

of a conviction is not warranted unless the second prong is also met. See Bradley,

supra, at 142-143. Here, the defendant must “show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding
 -18-

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, supra, at 694. In making this

determination, we must consider the totality of the evidence.

{¶42} “Judicial scrutiny of counsel's performance is to be highly deferential,

and reviewing courts must refrain from second-guessing the strategic decisions of

trial counsel. To justify a finding of ineffective assistance of counsel, the appellant

must overcome a strong presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” State v. Sallie, 81 Ohio St.3d 673,

674, 693 N.E.2d 267, 269 (1998).

{¶43} In this matter, Appellant is unable to meet either prong of the Strickland

test. Appellant claims that trial counsel was ineffective for not questioning Starks

more diligently regarding her description of the man she saw behind Galaxy seconds

after Wright was shot. Appellant contends that counsel should have alerted the jury

to a discrepancy between Appellant’s actual physical characteristics and the

characteristics of the man Starks described.

{¶44} While this tactic might have been useful to show that no one at the

scene other than Thomas actually saw Appellant, the question of whether Appellant

was present at the crime scene did not need to be answered in order to obtain a

conviction. Appellant’s physical presence is immaterial to his conviction because he

was convicted under a theory of complicity. Under this theory, it does not matter

where Appellant parked the car or how close he was to Galaxy when the crime was

committed. His guilt is derived from his co-conspirator's acts. While firmly placing

Appellant at the scene may have slightly improved the prosecution’s case, proving

that he was not there does nothing to exculpate him.
 -19-

{¶45} Our review of this record reveals that Appellant's counsel provided

effective assistance in his line of questioning. He did establish that Ms. Starks

quickly left Galaxy after the shooting and she was startled by a man who was

standing outside. He was able to show that she was standing very close to him

before he got into a car and hurriedly drove away, and that she could not identify the

man in a photo array that included Appellant. On cross-examination, she admitted

that she was afraid when she ran outside, that everything happened very fast, and

that she simply did not get a good enough look at the person she saw in back of the

store to be able to identify him. (Tr. Vol. V, pp. 984-985.) Counsel’s decision not to

question Ms. Starks further appears to be a matter of sound trial strategy, since any

further testimony might easily have undermined what had already been said.

{¶46} Even if we were to find error in counsel's line of questioning, Appellant

is wholly unable to prove a reasonable likelihood that the outcome of the trial would

have been different but for the alleged error. At trial, it was the testimony of Thomas

and Ms. Lynch that confirmed his participation in the crime and that placed him at the

scene. The possibility that Ms. Starks did not actually encounter Appellant when she

left the store does nothing to undermine the testimony of Thomas and Ms. Lynch.

Therefore, the jury’s decision would not have been likely to change regarding

Appellant's participation in the crimes. For these reasons, Appellant’s third

assignment of error is overruled.

{¶47} Appellant has pro se filed three additional assignments of error in a

rambling 53-page hand-written “brief.” Although we granted Appellant permission to

file a separate brief in this case, we did not grant leave to violate the basic Rules of

Appellate Procedure. Further, our review of such briefs at this stage of the appeal,
 -20-

particularly when the pro se brief alleges ineffective assistance of appellate counsel

as is true in this case, tends to undermine the entire appellate process. Counsel and

defendant are often working at cross-purposes. As discussed below, Appellant's

alleged errors are largely frivolous. Additionally, the time for alleging ineffective

assistance of appellate counsel is after any decision has issued, and then by use of

App.R. 26(B).

{¶48} Appellant first appears to claim that his right to a speedy trial was

violated and that there exists a clerical error in the journal of the court which

misstates his pre-trial date. Speedy trial rights cannot be raised for the first time on

appeal and must be raised at or prior to the commencement of trial. State v.

Goodwin, 7th Dist. No. 99CA220, 2001-Ohio-3416; R.C. 2945.73(B). There is no

speedy trial motion in the record prior to or at the time of trial. Also, the record is

replete with filings initiated by Appellant and his counsel that delayed trial, including

continuances, a motion by counsel to withdraw, appointment of new counsel, motions

to dismiss, the parties' agreement to reset the trial date, motions for discovery,

motion to disclose due process materials, and other tolling events. There is clearly

no merit to the first pro se assignment of error.

{¶49} Appellant next argues that he could not be convicted of either felony

murder or aggravated robbery because there was a lack of evidence placing him at

the scene of the crime. Overlooking the obvious fact that there was, in fact,

significant evidence placing him at or near the scene of the crime, we have already

discussed that Appellant was tried as an accomplice. His lack of presence at the

scene would not affect the case. A person who aids and abets a crime, i.e., an

accomplice, is treated as a principal offender and may be punished as such for the
 -21-

acts of the other offenders. R.C. 2923.03. “The accomplice may therefore be

charged under the statute defining the principal offense, and the law will impute the

elements of the offense committed by the principal actor to the accomplice as an

aider and abettor, as if the accomplice had committed those acts.” State v.

Thompson, 10th Dist. No. 10AP-593, 2011-Ohio-6725, ¶10. Wright and Thomas

were clearly present at the scene, and their acts were imputed to Appellant. Thus,

the second pro se assignment of error is overruled.

{¶50} Appellant’s third assignment of error is that both his trial counsel and

his appellate counsel were ineffective. We have already stated that his arguments

regarding appellate counsel are premature. His argument as to the alleged

ineffective assistance of trial counsel exclusively raises matters de hors the record,

such as private conversations that Appellant had with counsel asking counsel to file a

speedy trial motion. New matters not contained in the record are not reviewable in a

direct appeal. State v. Hartman, 93 Ohio.St.3d 274, 299, 754 N.E.2d 1150 (2001).

Appellant's third pro se assignment of error is overruled.

Conclusion

{¶51} As our review of this record reveals that the trial court was well within its

discretion to remove Appellant due to his disrespectful and disruptive conduct; his

felony murder and aggravated robbery convictions are not allied offences and thus

do not merge for sentencing purposes where there were separate victims of the two

crimes; and trial counsel did not provide ineffective counsel by failing to question a

defense witness regarding irrelevant facts. The issues Appellant raises pro se are

either frivolous, premature or are based on facts outside of this record and likewise
 -22-

fail for these reasons. As his assignments are overruled because they have no merit,

Appellant’s conviction and sentence are affirmed.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.