State v. Lewis

[Cite as State v. Lewis, 2019-Ohio-3929.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1069

Appellee Trial Court No. CR0201701790

v.

Terrance Lewis DECISION AND JUDGMENT

Appellant Decided: September 27, 2019

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

SINGER, J.

{¶ 1} This is an appeal by appellant, Terrance Lewis, from the March 22, 2018

judgment of the Lucas County Court of Common Pleas, after he was found guilty of two
counts of felonious assault with specifications, and was sentenced to 20 years in prison.

For the reasons that follow, we affirm, in part, vacate, in part, and modify the sentence.

{¶ 2} Appellant sets forth four assignments of error:

Assignment of Error One: The guilty verdict was against the

manifest weight of the evidence.

Assignment of Error Two: Defense counsel rendered ineffective

assistance of counsel, depriving appellant of Due Process in violation of the

Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the

Ohio Constitution.

Assignment of Error Three: The trial court erred in sentencing

Lewis pursuant to the post-2016 version of R.C. 2941.146 rather than the

version in effect at the time of the offense, and therefore erred in imposing

two prison terms for two specifications.

Assignment of Error Four: The trial court’s judgment entry relative

to costs does not reflect the waiver of all costs stated at the sentencing

hearing.

Facts

{¶ 3} On the evening of October 20, 2015, D.B. was driving a vehicle eastbound

on Alexis Road in Toledo, Ohio, with his fiancée, J.C., as a passenger. At the same time

and in the same general vicinity, approximately 15 to 20 motorcyclists were also

travelling east on Alexis Road; appellant was one of the motorcyclists. When D.B.’s

vehicle and the motorcyclists were near the on-ramp to the highway, an interaction

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occurred between D.B. and appellant, and appellant took out his gun and fired shots. No

one was struck by the bullets. Appellant then drove onto the highway, followed by D.B.

D.B.’s fiancée called 911, and both she and D.B. spoke to the 911 operator and were able

to provide the license plate number of the motorcycle. In time, D.B. lost sight of

appellant. D.B. stopped his vehicle at a fast food restaurant and he and his fiancée met

with police. Two bullet holes were found in the rear passenger door of D.B.’s vehicle.

{¶ 4} Police investigated the incident and located a 9 millimeter shell casing in the

area where the shooting occurred. Police also identified the owner of the motorcycle

(“the owner”). On October 22, 2015, D.B. and J.C. went to the police station to view a

photo array, which included the owner but did not include appellant. Neither D.B. nor

J.C. recognized the owner as the shooter. With no further leads, the case went inactive.

{¶ 5} In the winter of 2016-2017, the police learned of the association between the

owner and appellant. D.B. and J.C. were contacted by police and, in March 2017, the

couple went to the police station to view a photo array which included appellant. D.B.

identified appellant as the shooter, but J.C. did not.

{¶ 6} Appellant was arrested on March 16, 2017, and was interviewed by police.

Appellant admitted riding the owner’s motorcycle on October 20, 2015, he admitted

owning a 9 millimeter gun, which he claims was later stolen, and he admitted shooting

two times at D.B.’s vehicle because “he turned towards me like he was trying to run me

off the road so that’s when I did that.”

{¶ 7} On May 9, 2017, appellant was indicted on two counts of felonious assault,

in violation of R.C. 2903.11(A)(2) and (D), both felonies of the second degree. Each

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count included a firearm specification, pursuant to R.C. 2941.145, and a specification that

the firearm was discharged from a motor vehicle, pursuant to R.C. 2941.146. Appellant

pled not guilty.

{¶ 8} A jury trial commenced on February 26, 2018. After the presentation of

testimony, evidence and arguments, the court gave the jury instructions, which included

an instruction on self-defense. On March 1, 2018, the jury found appellant guilty of the

two counts of felonious assault and all of the specifications. On March 16, 2018,

appellant was sentenced to a total of 20 years of incarceration. Appellant timely

appealed.

First Assignment of Error

{¶ 9} Appellant argues the verdict was against the manifest weight of the

evidence, as the state failed to prove beyond a reasonable doubt that appellant knowingly

attempted to cause physical harm. Appellant asserts he intentionally fired shots at the

trunk of the car, as he wanted D.B. to leave him alone. Appellant contends he is not a

firearms expert and he did not have a subjective belief that any probability for physical

harm existed.

{¶ 10} The state counters it presented competent and credible evidence from

which the jury could find appellant acted knowingly when he fired two gunshots at the

vehicle occupied by D.B. and J.C.

Law

{¶ 11} In a manifest weight challenge, we determine whether the greater amount

of credible evidence supports the conviction. Eastley v. Volkman, 132 Ohio St.3d 328,

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2012-Ohio-2179, 972 N.E.2d 517, ¶ 12. We must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses and

determine whether the jury, in resolving conflicts in the evidence, “‘clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.’” (Citation omitted.) State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997).

{¶ 12} When we consider witness credibility, we must remember “the choice

between credible witnesses and their conflicting testimony rests solely with the finder of

fact and an appellate court may not substitute its own judgment for that of the finder of

fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). The trier of fact is

“in the best position to observe the evidence presented, the witnesses’ testimony,

including their demeanor, voice inflection, and mannerisms, in order to determine the

credibility of each witness.” State v. Saunders, 10th Dist. Franklin No. 99AP-1486, 2000

WL 1724823, *3 (Nov. 21, 2000).

{¶ 13} Felonious assault is defined as knowingly attempting or causing physical

harm with a deadly weapon. R.C. 2903.11(A)(2). A person acts knowingly when,

regardless of purpose, the person is “aware that his conduct will probably cause a certain

result or will probably be of a certain nature.” R.C. 2901.22(B).

{¶ 14} To support a conviction on a firearm specification, as defined in R.C.

2941.145, the state must prove the offender had a firearm while committing the offense.

To obtain a conviction on a specification for discharging a firearm from a motor vehicle,

as defined in R.C. 2941.146, the state must prove the offender knowingly attempted to

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cause the death of or physical harm to another, and that was committed by discharging a

firearm from a motor vehicle. R.C. 4501.01(B) and (ZZ) define a motorcycle as a motor

vehicle.

{¶ 15} Self-defense is an affirmative defense and must be proven by a

preponderance of the evidence. R.C. 2901.05(A). To establish self-defense, appellant

would have to show (1) he was not at fault in creating the situation giving rise to the

shooting; (2) he had a bona fide belief that he was in imminent danger of death or great

bodily harm and the only means of escape from such danger was the use of deadly force;

and (3) he did not violate any duty to retreat or avoid the danger. See State v. Robbins, 58

Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.

Analysis

{¶ 16} At trial, several witnesses testified. The relevant testimony follows.

{¶ 17} D.B. testified that on October 20, 2015, he was driving down Alexis Road

when “all of a sudden a big pack of bikes [came] around us, cutting in between us, going

around us, doing whatever they got to do to stay together. Just driving very recklessly,

just wheelies * * *.” D.B. was at a red light near the interchange for the highway when

one motorcyclist, appellant, “went all the around us and another vehicle that was next to

us in to oncoming traffic, cut us off, got in the lane beside us.” Appellant pulled up next

to D.B.’s passenger window, lifted his mask up and tried to say something. The windows

on D.B. vehicle were down, so while D.B. rolled up his tinted windows he waived

appellant away with his hand, and pulled his vehicle forward about five feet. As D.B.

looked back, he saw appellant pulling something out of his jacket. D.B. heard three

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shots, saw appellant accelerate to meet up with the rest of the motorcyclists, and stop.

D.B. was then able to read the license plate of the motorcycle appellant was riding.

{¶ 18} Appellant then took off onto the highway with the other motorcyclists.

D.B. chased appellant, while J.C. was on the phone calling 9-1-1. Police were able to

stop some of the motorcyclists as they exited the highway, but appellant was not among

them.

{¶ 19} J.C. testified she was a passenger in the vehicle driven by D.B. and she

noticed 15 to 20 crotch rocket motorcycles driving recklessly. When their vehicle

stopped in the area of the highway interchange, appellant was right next to them. J.C.

saw appellant’s eyes, as the visor on his helmet was up. D.B. pulled the car forward and

J.C. looked straight ahead, hoping appellant would leave them alone. D.B. rolled up the

windows, then J.C. heard three shots. Appellant drove off onto the highway. J.C. said,

“[w]e didn’t know the car got hit with shots, we just knew he shot * * * [w]e called the

cops first and then we went behind him.”

{¶ 20} After D.B. stopped the car, J.C. discovered “there was a bullet hole literally

so close to hitting me and it just made me break down completely, like this bullet could

have hit me * * * he was trying to kill us obviously.”

{¶ 21} Appellant testified he was riding a motorcycle with a group of

motorcyclists, on October 20, 2015, and he was not driving recklessly. He became aware

of D.B.’s car when the traffic light turned green because the car’s tires squealed and the

car sped up. Appellant noticed the windows of D.B.’s car were tinted and up, so he could

not see into D.B.’s car. Appellant said he was riding in the right, curb lane and never left

7.
his lane, while D.B.’s car was in the left lane. As they approached the highway on-ramp,

the motorcycles slowed down and got into a single file formation. Appellant saw D.B.’s

car “hanging to my left side,” then the car swerved into appellant’s lane a little bit. The

car went back into its own lane while appellant went over towards the curb a little bit.

While still moving, appellant threw up his arms “to just signal like what the, what the,

what’s going on.” D.B. “rolls his window down * * * he’s leaned over * * * because the

passenger, she like leaned back so he could lean over, over her to say [a racial slur].”

Appellant described D.B. as “aggravated, angry * * * [when] [h]e came back, like his car

came back towards me.” Appellant estimated the car was just a few feet away from him.

{¶ 22} Appellant testified he reached into his jacket “and unholstered my weapon

and I leaned over, my right hand, and looked toward the back of the car and fired twice.”

Appellant never stopped the motorcycle, but he had slowed down when he fired the shots.

Appellant admitted the brakes on the motorcycle were operational. After the incident,

appellant drove onto the highway and “went to Holland. I went home.”

{¶ 23} Appellant testified he could have shot “directly into the car * * * [because]

[w]e were like neck and neck. We were right next to each other.” But, appellant shot

“[t]owards the trunk of the car. * * * I didn’t want to hurt anybody. I just wanted him to

leave me alone.” Appellant had been injured in a motorcycle accident with a car in 2012,

so he “knows how it feels to get his by a car, so I - I didn’t want to get hit by that car”

and he wanted D.B.’s car not to swerve near him anymore. Appellant also stated he fired

the gun to defend himself.

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 {¶ 24} Appellant testified that a little while after the incident, he told a friend, “a

guy tried to run me off [of] the road and I fired two shots at him to back him up off [of]

me and I got on the highway to get away and he chased me.” Appellant acknowledged

that in his police interview, he said D.B. swerved at him one time, which was “[t]he time

that made me shoot,” and he did not mention to police that D.B. said a racial slur.

{¶ 25} Toledo Police Department Detective Richard Singlar testified there were

two bullet holes in the right, rear, passenger door and underneath the door of D.B.’s

vehicle. With respect to the trajectory of a bullet hitting a car, the detective said the

bullet can ricochet, bounce off or change direction. As to the location of the bullet holes

in D.B.’s vehicle, Det. Singlar opined it was possible that someone in the front seat of the

car could be injured by the shots. The detective agreed with defense counsel that it

looked like “the path of this bullet is such that it kind of came from the front and went to

the back.”

{¶ 26} Numerous exhibits were offered into evidence at trial including a copy of

the 911 call, an edited version of appellant’s interview with police, the bullet found by

police near the shooting and photographs of the car D.B. was driving on the night of the

incident, showing two bullet holes in the rear, passenger-side door.

{¶ 27} A review of the entire record shows appellant testified the windows of

D.B.’s car were tinted and up and appellant could not see into the car until D.B. rolled a

window down and then appellant could see the person driving and a person on the

passenger side. Appellant admitted he was slowly driving a motorcycle when he fired his

9.
gun towards the trunk or rear of D.B.’s car. The evidence reveals two bullets holes were

found in the rear passenger-side door of the car, not the trunk, at a point described by J.C.

as “literally so close to hitting me.”

{¶ 28} Having carefully reviewed the evidence presented at trial, we are unable to

find appellant’s convictions are against the manifest weight of the evidence. Appellant

knew there were at least two people in the car at which he fired multiple gunshots while

driving a motorcycle. Although there were some discrepancies in the witnesses’

testimony, as well as conflicting testimony as to what occurred before the shooting, we

find there was competent, credible evidence and testimony presented from which the jury

could reasonably conclude that appellant knowingly attempted to cause physical harm to

D.B. and J.C., while having a firearm and discharging the firearm from a motor vehicle.

{¶ 29} With respect to the self-defense claim, the evidence regarding the elements

of self-defense conflicted. Testimony was presented that appellant may have created the

situation giving rise to the shooting by pursuing D.B.’s vehicle and driving recklessly.

However, appellant testified he was not driving recklessly and D.B. swerved his vehicle

at appellant twice. There was also testimony that appellant could have avoided any

danger that he perceived, as appellant admitted the motorcycle had brakes which were

operational but he never stopped, he only slowed down. Yet, appellant testified that

when he slowed the motorcycle, D.B. also slowed his vehicle.

{¶ 30} As mentioned above, “the choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact.” Awan, 22 Ohio St.3d at 123,

489 N.E.2d 277.

10.
 {¶ 31} Here, given the evidence, the jury could have concluded that appellant

failed to prove the first prong of self-defense, based on the testimony that he was the one

who created the dangerous situation, as well as the third prong, based on his testimony

that he never stopped his motorcycle in order to avoid the danger. Thus, the jury’s

finding that appellant did not act in self-defense is not against the manifest weight of the

evidence.

{¶ 32} We therefore conclude the manifest weight of the evidence supported the

jury’s guilty verdicts on the felonious assault charges and specifications, and the jury did

not clearly lose its way. Accordingly, appellant’s first assignment of error is not well-

taken.

Second Assignment of Error

{¶ 33} Appellant argues his trial counsel was ineffective because her strategy was

unreasonable, she alienated the jury, and created an unfair trial. Appellant contends

counsel admitted in opening statements that appellant fired warning shots to save his life,

then challenged the victims’ identification of appellant as the shooter, which was not a

sound strategy. Appellant asserts counsel raised self-defense as an affirmative defense

which is contradictory to claiming appellant was wrongfully identified as the shooter.

{¶ 34} The state counters trial counsel’s strategy was to challenge D.B.’s

credibility as a whole, and counsel vigorously cross-examined D.B. and J.C. in an attempt

to demonstrate their testimony was unreliable. The state maintains it was not illogical or

deficient of counsel to raise the claim of self-defense. In addition, the state observes

appellant failed to demonstrate he was prejudiced by his counsel’s performance.

11.
 Law

{¶ 35} To prevail on a claim of ineffective assistance of counsel, appellant must

prove counsel’s performance was deficient, as it fell below an objective standard of

reasonable representation, and but for counsel’s errors, there is a reasonable probability

that the outcome of the trial would have been different. See State v. Short, 129 Ohio

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 36} In State v. Mick, 6th Dist. Erie No. E-16-073, 2018-Ohio-999, 108 N.E.3d

1149, ¶ 18, we stated:

When challenging counsel’s trial strategy through an ineffective

assistance claim on appeal, ‘the appellant must overcome the “strong

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

reasonable professional assistance * * *.”’ State v. Lawson, 64 Ohio St.3d

336, 341, 595 N.E.2d 902 (1992), quoting Strickland at 689, 104 S.Ct.

2052. Debatable trial tactics generally do not constitute a deprivation of

effective counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643

(1995).

Analysis

{¶ 37} Upon review, we find appellant has failed to show his trial counsel’s

performance was deficient or that he was prejudiced by counsel’s performance.

Appellant’s counsel thoroughly cross-examined D.B. and J.C. regarding the events which

transpired before, during and after the shooting. In that cross-examination, counsel

12.
elicited testimony from D.B. and J.C. about their memories of the shooter, chasing after

the shooter, meeting and talking with police and viewing the two photo arrays. Counsel’s

attempt to discredit these witnesses and cast doubt on their credibility was reasonable

trial strategy. Further, appellant has not proven that the result of the case would have

been different had counsel not questioned the witnesses about appellant’s identity.

Accordingly, appellant’s second assignment of error is not well-taken.

Third Assignment of Error

{¶ 38} Appellant contends the trial court erred in sentencing him pursuant to the

post-2016 versions of R.C. 2941.146, the specification concerning discharge of firearm

from a motor vehicle (“discharge specification”), and R.C. 2929.14, rather than the

versions of the statutes in effect at the time of the offense, and erred in imposing two

five-year mandatory prison terms for the two discharge specifications.

{¶ 39} Appellant was found guilty of two counts of felonious assault, two firearm

specifications, under R.C. 2941.145, and two discharge specifications, under R.C.

2941.146. At the sentencing hearing, the court imposed the following sentence: a five-

year prison term for each of the two counts of felonious assault, to run consecutive to one

another; a five-year mandatory prison term for each of the two discharge specifications

(under R.C. 2941.146), to be served consecutively to each other and consecutively to the

felonious assault sentences; a three-year mandatory prison term for each of the two

firearm specifications (under R.C. 2941.145), to be served consecutively to each other but

concurrent with the two five-year terms for the two discharge specifications.

13.
 Law

{¶ 40} An appellate court’s consideration of a felony sentence is governed by R.C.

2953.08(G)(2), and the court may increase, modify or vacate a felony sentence on appeal

and remand the matter if the court finds “by clear and convincing evidence that * * * the

sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 1.

{¶ 41} The version of the relevant laws in effect at the time of the October 2015

incident follow.

{¶ 42} R.C. 2941.145, the firearm specification, states in relevant part:

(A) Imposition of a three-year mandatory prison term upon an

offender under division (B)(1)(a) of section 2929.14 of the Revised Code is

precluded unless the indictment, count in the indictment, or information

charging the offense specifies that the offender had 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.

{¶ 43} R.C. 2941.146, the discharge specification, states in relevant part:

(A) Imposition of a mandatory five-year prison term upon an

offender under division (B)(1)(c) of section 2929.14 of the Revised Code

for * * * committing a felony that includes, as an essential element,

purposely or knowingly causing or attempting to cause the death of or

14.
 physical harm to another and that was committed by discharging a firearm

from a motor vehicle other than a manufactured home * * *.

{¶ 44} R.C. 2929.14 states in relevant part:

***

(B)(1)(a) * * * [I]f 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 * * * 2941.145 of the Revised Code, the court shall

impose on the offender one of the following prison terms:

***

(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 * * * using it [the

firearm] to facilitate the offense;

***

(b) * * * 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.

(c) * * * [I]f an offender who is convicted of or pleads guilty to * * *

a felony that includes, as an essential element, purposely or knowingly

causing or attempting to cause the death of or physical harm to another,

15.
 also is convicted of or pleads guilty to a [discharge] specification of the

type described in section 2941.146 * * *, after imposing a prison term on

the offender for the * * * other felony offense * * * shall impose an

additional prison term of five years upon the offender that shall not be

reduced * * *. A court shall not impose more than one additional prison

term on an offender under division (B)(1)(c) of this section for felonies

committed as part of the same act or transaction. If a court imposes an

additional prison term on an offender under division (B)(1)(c) of this

section relative to an offense, the court also shall impose a prison term

under division (B)(1)(a) of this section relative to the same offense,

provided the criteria specified in that division for imposing an additional

prison term are satisfied relative to the offender and the offense.

***

(g) If an offender is convicted of or pleads guilty to two or more

felonies, if one or more of those felonies are * * * felonious assault * * *

and if the offender is convicted of or pleads guilty to a specification of the

type described under division (B)(1)(a) of this section [firearm specification

under R.C. 2941.145] in connection with two or more of the felonies, the

sentencing court shall impose on the offender the prison term specified

under division (B)(1)(a) of this section for each of the two most serious

specifications of which the offender is convicted or to which the offender

pleads guilty and, in its discretion, also may impose on the offender the

16.
 prison term specified under that division for any or all of the remaining

specifications.

***

(C)(1)(a) * * * [I]f 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 * * *, 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.

Analysis

{¶ 45} Upon review, we find merit in appellant’s assertion that the trial court erred

in imposing two five-year mandatory prison terms for the two discharge specifications.

{¶ 46} Appellant was convicted of felonies that include knowingly causing or

attempting to cause the death of or physical harm to another and was also convicted of

17.
two discharge specifications under R.C. 2941.146. Therefore, pursuant to R.C.

2929.14(B)(1)(c), the court was required to impose an additional prison term of five

years, but “[a] court shall not impose more than one additional prison term on an offender

under division (B)(1)(c) * * * for felonies committed as part of the same act or

transaction.” The Supreme Court of Ohio has defined “same act or transaction” as a

“‘series of continuous acts bound by time, space and purpose, and directed toward a

single objective.’” (Citation omitted.) State v. Wills, 69 Ohio St.3d 690, 691, 635 N.E.2d

370 (1994).

{¶ 47} In State v. Williams, 10th Dist. Franklin No. 96APA08-1077, 1997 WL

254114, *3 (May 15, 1997), numerous shots were fired into a vehicle with four

occupants. The appellate court applied the Wills definition of “transaction” and found the

underlying felonies, of involuntary manslaughter and attempted involuntary

manslaughter, were committed as part of the same transaction. Id. See also State v.

Phillips, 8th Dist. Cuyahoga No. 96329, 2012-Ohio-473, ¶ 41 (multiple shots fired at

rival gang members were the same transaction, so trial court could impose only one five-

year specification).

{¶ 48} Here, appellant’s two felonious assault offenses arose from a series of

continuous acts, (shooting a gun) bound by time, space and purpose (in rapid sequence on

the roadway at D.B.’s vehicle), and directed toward a single objective (to stop D.B.’s

vehicle from swerving at appellant). Thus, the felonies were committed as part of the

18.
same act or transaction. As such, we find appellant should have been sentenced to one

five-year discharge specification. Since appellant was sentenced to two five-year

discharge specifications, we find this portion of appellant’s sentence is clearly and

convincingly contrary to law. Accordingly, appellant’s third assignment of error is well-

taken.

{¶ 49} While reviewing the record, we noticed and raise, sua sponte, an error in

the imposition of sentence concerning the two three-year firearm specifications.

{¶ 50} Since appellant was convicted of two felonies, both for felonious assault,

and was also convicted of two firearm specifications under R.C. 2941.145, in connection

with those two felonies, the trial court was required to impose, pursuant to R.C.

2929.14(B)(1)(g), a three-year prison term as specified in R.C. 2929.14(B)(1)(a)(ii), for

each of the two firearm specifications, and was required, under R.C. 2929.14(C)(1)(a), to

order those two, three-year prison terms to be served consecutively to each other,

consecutively to and prior to the prison terms imposed for the underlying felonies and

consecutively to any other mandatory prison term imposed.

{¶ 51} At sentencing, the court ordered a three-year mandatory prison term for

each of the two firearm specifications, to be served consecutively to each other but

concurrent with the discharge specifications. We find this portion of the court’s sentence

to be contrary to law as the court was required to order the two, three-year prison terms

for the firearm specifications to be served consecutively to each other as well as

consecutively to the mandatory prison term imposed for the discharge specification.

19.
 Fourth Assignment of Error

{¶ 52} Appellant asserts the trial court’s judgment entry relative to costs does not

reflect the waiver of all costs stated at the sentencing hearing. Appellant requests the

judgment entry be modified to reflect the trial court’s waiver of costs.

Law

{¶ 53} A court is required, in criminal cases, to “include in the sentence the costs

of prosecution * * * and render a judgment against the defendant for such costs.” R.C.

2947.23(A)(1)(a). However, the court “retains jurisdiction to waive, suspend, or modify

the payment of the costs of prosecution * * * at the time of sentencing or at any time

thereafter.” R.C. 2947.23(C). As we observed in State v. Temple, 6th Dist. Lucas No. L-

18-1070, 2019-Ohio-3503, ¶ 11, “a trial court has discretion to waive the payment of

court costs if the defendant is indigent.” Since the trial court retains jurisdiction pursuant

to R.C. 2947.23(C), an appellant “has the option to move the court to waive the

imposition of the costs of prosecution. State v. Wymer, 6th Dist. Lucas No. L-18-1108,

2019-Ohio-1563, ¶ 13, fn. 1, citing State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493,

108 N.E.2d 1028, ¶ 263-265.” Id. Thus, we found the court’s imposition of the costs of

prosecution was harmless error. Id.

{¶ 54} “Unlike the costs of prosecution, imposition of the costs of appointed

counsel and confinement must be conditioned upon appellant’s ability to pay.” Temple at

¶ 12. But, if the court did not impose these costs during the sentencing hearing, it is not

sufficient for the court to include these costs in the sentencing entry and make a finding

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that the defendant has the ability to pay. Id. at ¶ 13. Therefore, we found the portion of

the sentencing judgment entry ordering the payment of the costs of assigned counsel,

confinement, and supervision must be vacated. Id. at ¶ 14.

Analysis

{¶ 55} Upon review, at appellant’s sentencing hearing, the trial court verbally

ordered all costs waived. However, in the March 22, 2018 judgment entry, appellant was

“found to have, or reasonably may be expected to have, the means to pay all or part of the

applicable costs of supervision, confinement, assigned counsel, and prosecution as

authorized by law.” Appellant was ordered to reimburse the state of Ohio and Lucas

County for these costs.

{¶ 56} In accordance with Temple, we vacate the portion of appellant’s judgment

entry ordering appellant to pay for the costs of assigned counsel, confinement, and

supervision. Regarding the imposition of the costs of prosecution, although appellant

should have been informed of these costs at the sentencing hearing, any error is harmless

because appellant may move the trial court to waive these costs.

{¶ 57} Accordingly, appellant’s fourth assignment of error is well-taken.

Conclusion

{¶ 58} To summarize, we overrule appellant’s first and second assignments of

error, but we sustain appellant’s third and fourth assignments of error.

{¶ 59} We exercise our authority under R.C. 2953.08(G)(2) to modify appellant’s

sentence, and we vacate one five-year prison term for the discharge specification, leaving

one five-year prison term for the discharge specification. Further, we vacate the

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imposition of prison terms imposed for the two three-year firearm specifications

concurrent with the discharge specifications, and we impose two three-year prison terms

for the two firearm specifications to be served consecutively to each other, consecutively

to and prior to the prison terms imposed for the felonious assault convictions and

consecutively to the five-year prison term for the discharge specification.

{¶ 60} In addition, we vacate the portion of the judgment entry finding appellant

has or may have the means to pay the costs of supervision, confinement and assigned

counsel, and ordering appellant to reimburse the state of Ohio and Lucas County for these

costs.

{¶ 61} Appellee and appellant are ordered to split the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed, in part,
and vacated, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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