[Cite as State v. Sheffey, 2013-Ohio-2463.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98944
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES SHEFFEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-560852
BEFORE: Boyle, P.J., Rocco, J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 13, 2013
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, James Sheffey, appeals his conviction and sentence,
raising six assignments of error:
I. The trial court erred when it refused to accept appellant’s Alford plea.
II. The trial court erred when it failed to merge allied offenses.
III. The trial court committed plain error in recording appellant’s sentence
in its journal entry as 14 years imprisonment.
IV. Appellant’s conviction was against the manifest weight of the
evidence.
V. Insufficient evidence supported appellant’s convictions.
VI. The state committed prosecutorial misconduct by attacking the
sincerity of defense counsel.
{¶2} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶3} In January 2012, Sheffey was indicted on four counts of felonious assault,
in violation of R.C. 2903.11(A)(2) (involving four different victims); one count of
improperly discharging into habitation, in violation of R.C. 2923.161(A)(1); one count of
having weapons under disability, in violation of R.C. 2923.13(A)(3); and one count of
criminal damaging, in violation of R.C. 2909.06(A)(1). The felonious assault and
improperly discharging into habitation counts each carried one- and three-year firearm
specifications. They further carried a five-year specification for a “drive-by shooting.”
The underlying allegations giving rise to the indictment were that Sheffey fired several
bullets into a residence on 6th Avenue in East Cleveland after having a fight with the
owner.
{¶4} Sheffey pleaded not guilty to the charges, waived his right to a jury trial on
the having weapons under disability count, and proceeded to a jury trial on the remaining
counts where the following evidence was presented.
{¶5} Dominique Hearn testified that she used to date and reside with Wilson
Clark, the owner of the house located on 6th Avenue in East Cleveland. According to
Hearn, on Saturday, July 23, 2011, around 8:00 p.m., she was hanging out on Wilson’s
front porch of the house on 6th Avenue, along with (1) Wilson, (2) Wilson’s aunt, Leigh
Clark, (3) Wilson’s daughter, Somer, and (4) her own daughter, Jayden, when Sheffey
pulled into the driveway, driving a silver Mazda. Hearn explained that she knew Sheffey
because he lived down the street on 6th Avenue, and he had dated Leigh.
{¶6} Hearn further testified that Sheffey wanted Leigh to come down to see him
but she was not interested. Wilson relayed the message to Sheffey, who then left. Ten
minutes later, Sheffey returned, asking again to talk to Leigh. According to Hearn,
Wilson ultimately told Sheffey to leave, resulting in the two “tussling” in the driveway,
Wilson “knock[ing]” Sheffey out, and Sheffey falling in the driveway and “bust[ing] his
head open.” Sheffey got up, “stood there for a minute,” got into his car, and “reversed
sporadically” from the driveway, driving “out of control.”
{¶7} According to Hearn, less than ten minutes later, Sheffey pulled up again in
his car, driving “regular pace until he came to a halt in front of the porch when we saw
the gun.” Hearn testified that “[y]ou couldn’t not see that gun. When we saw that gun
we were like oh, my God. We tried to make it in the house. We barely made [it] in the
foyer. That’s when we heard the shots fired.” Hearn explained that the “we” referred to
herself, Leigh, and the two girls. Wilson was not at the house because he had left
following the fight with Sheffey.
{¶8} Hearn further testified that she immediately called Wilson and told him
what happened. On cross-examination, Hearn stated that she did not call the police
immediately following the shooting; instead, she called only after she believed that
Sheffey came back to burglarize the house later that same evening.
{¶9} The state next offered the testimony of Wilson, who corroborated much of
what Hearn testified to but denied pushing or shoving Sheffey. Wilson testified that he
and Sheffey “were going back and forth” and then Wilson’s uncle stepped in. Wilson
further testified that he then left but got a call about 20 minutes later, indicating that
bullets had been fired at the house. Wilson ran back to the house, discovering that the
front window was “busted” and there were “holes” in the wall. According to Wilson,
Sheffey’s brother, Donald, apologized to Wilson the next day for his brother’s actions.
{¶10} East Cleveland patrolman, Todd Carroscia, testified that he responded to a
call concerning several shots fired in the area of 6th Avenue. Officer Carroscia testified
that he first cleared the house, finding four individuals upstairs hiding in a closet. He
observed bullet holes in the wall and part of the door jamb. One bullet was recovered,
along with a piece of slug. Officer Carroscia further recovered a large brick “that
appeared to have been thrown through the window.” He photographed the area,
including a pool of blood found outside the house. Officer Carroscia further took some
swabs of the blood, which was later confirmed to match Sheffey’s.
{¶11} East Cleveland detective, Michael Delisle, testified that he followed up with
the investigation of the shooting. He testified that the Clarks’ front porch was
approximately 15 feet from the street and that one could “see directly onto the porch
without obstruction” from the street. Det. Delisle testified that the police did not recover
any gun or shell casings on the scene and that the one bullet recovered was “too smashed”
to perform any forensics. He further stated that, after he interviewed Wilson and Hearn,
he obtained an arrest warrant for Sheffey. Det. Delisle interviewed Sheffey in March
2012, which was videotaped and played at trial for the jury.
{¶12} In the interview, Sheffey initially indicated that he was unfamiliar with any
shooting and that he was in Detroit at the time of the incident. After being told that the
police recovered blood from the scene, Sheffey indicated that the blood was his. He
ultimately admitted to driving his uncle’s car to the Clarks’ house and that he had drank
heavily. He further stated that after the fight, he went to a friend’s house. His friend,
however, has since died. He denied any shooting, emphasizing that he did not own a
gun.
{¶13} Donald Cannon, Sheffey’s brother, who was treated as a court’s witness,
testified that he heard a commotion at Wilson’s house on the night of July 23, 2011, and
then saw his brother lying in the street. According to Cannon, Sheffey was intoxicated
that evening and had driven their uncle’s gray Mazda over to the Clarks’ house. Cannon
testified, however, that his brother was not involved in any shooting. Cannon also
testified that the next time that he saw his brother was in Detroit, Michigan for a funeral
(months later) and that he had told Sheffey that the police were looking to speak with
him. According to Cannon, Sheffey indicated that he was coming home to allow the
police to question him but then never did.
{¶14} The jury found Sheffey guilty on all six counts presented to them. The trial
court separately heard the having weapons under disability charge and found Sheffey
guilty on that charge. The trial court sentenced Sheffey to a total of 14 years in prison.
Guilty Plea
{¶15} In his first assignment of error, Sheffey argues that the trial court abused its
discretion by refusing to accept his guilty plea after he declared his innocence. He
contends that the trial court should have accepted his Alford plea and allowed him to
plead guilty.
{¶16} We initially note that a defendant’s plea of guilty while protesting innocence
is commonly referred to as an Alford plea, originating from the United State’s Supreme
Court’s decision in North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970). A trial court may accept a guilty plea despite protestations of
innocence when a factual basis for the guilty plea is evidenced by the record. Id.
{¶17} A criminal defendant, however, does not have an absolute right under the
United States Constitution to have his guilty plea accepted by the court. Id. “Rather, the
decision to accept or reject a guilty plea is within the sound discretion of the trial court.”
State v. Switzer, 8th Dist. No. 93533, 2010-Ohio-2473, ¶ 11. Accordingly, this court
may not reverse a trial court’s rejection of a plea agreement absent an abuse of discretion.
Id.
{¶18} It is well settled, however, that a trial court abuses its discretion when it
rejects a plea agreement by relying on a blanket policy rather than considering the facts
and circumstances of the particular case. See, e.g., State v. Fitzgerald, 188 Ohio App.3d
701, 2010-Ohio-3721, 936 N.E.2d 585 (8th Dist.); Switzer, supra; State v. Raymond, 10th
Dist. No. 05AP-1043, 2006-Ohio-3259; State v. Hunt, 3d Dist. No. 1536, 1985 Ohio App.
LEXIS 8937 (Oct. 22, 1985). Indeed, when a trial court merely relies on a blanket policy
without any consideration of the specific circumstances of the case, “the trial court’s
refusal to accept appellant’s plea [is] an abuse of discretion, or more precisely, it [is] a
refusal to exercise the court’s discretion.” Raymond at ¶ 11.
{¶19} Relying on these cases, Sheffey contends that the trial court’s refusal to
accept his plea after he declared his innocence constitutes reversible error. He argues
that the trial court failed to offer any reason for refusing his guilty plea and that it,
therefore, implicitly had a blanket policy refusing Alford pleas. This argument, however,
ignores the facts of the proceedings below.
{¶20} First, there is no evidence in the record that the trial court had a blanket
policy prohibiting Alford pleas. Second, the record is not entirely clear that Sheffey ever
intended on entering an Alford plea. Indeed, the record reflects that the trial court — on
two separate occasions — engaged in the plea colloquy with Sheffey after he indicated a
desire to accept the state’s plea deal but that Sheffey ultimately changed his mind.
{¶21} The first time, in the midst of the trial court’s colloquy, Sheffey stated the
following: “I don’t want to do it, man. I can’t, man. I don’t know, man, because this
man — * * * I don’t know, man. I can’t do it. That’s 11 years. I can’t do that.” The
second time, the trial court agreed to a plea colloquy after Sheffey again indicated a desire
to plead guilty following voir dire of the jury. This time, Sheffey stated for the first time
that he was not guilty in response to his defense counsel’s question. From the record, it
appeared that Sheffey was once again having a change of heart and wasting the trial
court’s time. Notably, after Sheffey indicated that he was “not guilty,” neither he nor his
counsel indicated a desire to continue with the plea hearing.
{¶22} Accordingly, based on the facts and circumstances of this case, we cannot
say that the trial court abused its discretion in proceeding to trial.
{¶23} The first assignment of error is overruled.
Allied Offenses and Merger of Firearm Specifications
{¶24} In his second assignment of error, Sheffey argues that the trial court “failed
to properly apply Ohio’s allied offense statute [R.C. 2941.25(A)] to all firearm
specifications.” He further contends that the trial court should have merged all the
firearm specifications that stemmed from the drive-by shooting. We disagree.
{¶25} R.C. 2941.25(A) states: “Where the same conduct by defendant can be
construed to constitute 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.” Contrary to Sheffey’s contention, however, R.C. 2941.25 is not applicable
to firearm specifications because “a firearm specification is a penalty enhancement, not a
criminal offense.” State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498,
paragraph one of the syllabus.
{¶26} Although not subject to R.C. 2941.25, firearm specifications may be subject
to merger under R.C. 2929.14. We review Sheffey’s challenge of the trial court’s
imposition of multiple firearm specifications to determine whether it is contrary to law.
See R.C. 2953.08. Applying that standard, we find that the trial court’s imposition of the
firearm specifications complies with R.C. 2929.14.
{¶27} Ordinarily, the court is forbidden from imposing sentence on multiple
firearm specifications for “felonies committed as part of the same act or transaction.” R.C
2929.14(B)(1)(b). However, this section applies only to the extent that R.C.
2929.14(B)(1)(g) does not apply, which states:
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, 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 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 prison term specified under
that division for any or all of the remaining specifications.
{¶28} In this case, Sheffey was found guilty of committing two or more felonies.
Four of those felonies were felonious assault, and he was found guilty of firearm
specifications under R.C. 2929.14(B)(1)(a). Under R.C. 2929.14(B)(1)(g), the court was
required to impose on Sheffey prison terms for the two most serious specifications stated
in (B)(1)(a), and could also, in its discretion, impose sentence for any other specifications.
See State v. Cassano, 8th Dist. No. 97228, 2012-Ohio-4047, ¶ 34; State v. Worth, 10th
Dist. No. 10AP-1125, 2012-Ohio-666, ¶ 96; State v. Beatty-Jones, 2d Dist. No. 24245,
2011-Ohio-3719, ¶ 16; see also State v. Isreal, 12th Dist. No. CA2011-11-115,
2012-Ohio-4876, ¶ 73 (recognizing that R.C. 2929.14(B)(1)(g) “serves as an exception to
the rule that multiple firearm specifications must be merged for purposes of sentencing
when the predicate offenses were committed as a single criminal transaction”).
{¶29} Here, the trial court properly sentenced Sheffey on two of the three-year
firearm specifications attached to the felonious assault counts as required under R.C.
2929.14(B)(1)(g). The trial court also properly imposed a five-year mandatory prison
term pursuant to the firearm specification in R.C. 2941.146, also attached to the felonious
assault counts. To the extent that the trial court did not merge the three- and five-year
firearm specifications on one of the felonious assault counts, it was not required to do so.
Indeed, under R.C. 2929.14(B)(1)(c), “if an offense is properly accompanied with a
specification under R.C. 2941.146 and another under 2941.145, there is no merger of the
specifications, and the court must impose a sentence for each.” State v. Coffman, 10th
Dist. No. 09AP727, 2010-Ohio-1995, ¶ 11; see also State v. Walker, 2d Dist. No. 17678,
2000 Ohio App. LEXIS 2952 (June 30, 2000).
{¶30} Further, contrary to Sheffey’s assertion, the trial court only imposed a single
five-year prison term for the firearm specification under R.C. 2941.146 (the “drive-by”
shooting specification), thereby merging all of the other five-year specifications into the
one. Because the trial court did not impose an additional five-year sentence on the
drive-by specification attached to every felonious assault count, we find this case
distinguishable from State v. Philips, 8th Dist. No. 96329, 2012-Ohio-473. Indeed, in
this case, the trial court properly recognized that R.C. 2929.14(B)(1)(c) limited imposing
a single five-year sentence on the “drive-by” specification and that it must merge with the
same firearm specification in other counts “for felonies committed as part of the same act
or transaction.”
{¶31} Accordingly, we cannot say that the trial court’s imposition of 11 years on
firearm specifications is contrary to law.
{¶32} The second assignment of error is overruled.
Journal Entry
{¶33} In his third assignment of error, Sheffey argues that the trial court
committed plain error “in recording” his sentence as “14 years imprisonment.” We
disagree.
{¶34} According to Sheffey, the sentencing entry is confusing and ambiguous.
He argues that the trial court’s actual imposition of each count as stated in the journal
entry should be construed as imposing only a six-year sentence. In support of his claim,
he relies on the Twelfth District’s decision in Hamilton v. Adkins, 10 Ohio App.3d 217,
461 N.E.2d 319 (12th Dist.1983), which recognized that ambiguities within a sentencing
entry should be construed in the defendant’s favor. Sheffey’s reliance on Adkins in this
case is misplaced.
{¶35} In Adkins, the trial court sentenced the defendant on three misdemeanor
counts, imposing a $50 fine and 30 days on each charge. The trial court, however, never
indicated at the time of sentencing or in its journal entry if the 30 days were to be served
concurrently or consecutively. Id. at 217. Adkins later appeared for a bond hearing
after having filed a notice of appeal. At that time, the trial court clarified its earlier
order, stating that the counts were to be served consecutively. On appeal, the court
reversed the trial court’s imposition of consecutive sentences, reasoning as follows:
When the appellant was sentenced the trial court failed to explicitly impose
consecutive sentences. By its vague and indefinite sentencing, the trial court
provided considerable uncertainty as to the length of the sentence to be
served by the appellant. Where there is an ambiguity in the language as to
whether the sentences are to be served concurrently or consecutively, a
defendant is entitled to have the language construed in his favor. See
Gaddis v. United States (C.A. 6, 1960), 280 F.2d 334, 336. Since there was
no specific designation that the sentences were to be served consecutively,
R.C. 2929.41 requires that they be concurrent.
Id. at 218.
{¶36} This case is distinguishable from the instant case. Here, the imposition of
the 14-year sentence in the trial court’s journal entry is consistent with what the trial
judge stated at sentencing. Sheffey’s sentence of 14 years is based on the imposition of
three years on the base felonious assault counts, two years on having weapons while
under disability, and five months on the criminal damaging, all ordered to be served
concurrently, and the imposition of a total of 11 years on the firearm specifications, all to
be served consecutive to the underlying base counts. To the extent that Sheffey argues
that the trial court failed to clearly specify that the firearm specifications run
consecutively, R.C. 2929.14(C)(1)(a) mandates it. Thus, the ambiguity at issue in Adkins
simply does not exist in this case.
{¶37} We find no error, plain or otherwise, in the trial court’s sentencing journal
entry. The third assignment of error is overruled.
Manifest Weight of the Evidence
{¶38} In his fourth assignment of error, Sheffey argues that his conviction is
against the manifest weight of the evidence. We disagree.
{¶39} In State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,
the Ohio Supreme Court explained the appropriate review of a claim challenging the
manifest weight of the evidence as follows:
The question to be answered * * * is whether “there is substantial evidence
upon which a [trier of fact] could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.” In conducting this review,
we must examine the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether
the [trier of fact] “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.”
(Citations omitted.) Id. at ¶ 81.
{¶40} “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting
testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting
Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
{¶41} Sheffey argues that Hearn — the state’s only witness who identified him —
was not credible. Specifically, he argues that Hearn’s identification was not reliable
given the lighting conditions, the short duration of time to observe the shooter, and the
existence of bushes obstructing her view. He further contends that Hearn’s testimony
that the shooter had a rifle was inconsistent with the police’s belief that a revolver was
most likely used.
{¶42} We find Sheffey’s argument unpersuasive. All of these issues and
inconsistencies were explored at trial for the jury to consider. And none of them, either
on its own or cumulatively, are so great to render Hearn’s testimony completely
unreliable. Indeed, this is not a case involving a stranger identification — Hearn knew
Sheffey. Further, according to Det. Delisle, there was a clear vantage point from the
porch and street. Further, while Hearn may have been the only person identifying
Sheffey as the shooter, the state presented significant circumstantial evidence tying
Sheffey to the crimes. Notably, Sheffey’s own admissions, as well as his brother’s
testimony, placed Sheffey at the scene. And they both established that he was driving the
Mazda — the same Mazda identified by Hearn.
{¶43} Based on the evidence presented, we cannot say that this is the exceptional
case where the jury clearly lost its way. The fourth assignment of error is overruled.
Sufficiency of the Evidence
{¶44} In his fifth assignment of error, Sheffey argues that his conviction is not
supported by sufficient evidence. Relying on the same arguments advanced in his fourth
assignment of error, he contends that the state failed to present sufficient evidence to
support the convictions. Having already rejected this claim, we find no merit to
Sheffey’s argument. Here, we cannot say that Hearn’s testimony was so unreliable to
render it “insufficient as a matter of law.”
{¶45} The fifth assignment of error is overruled.
Prosecutorial Misconduct
{¶46} In his final assignment of error, Sheffey argues that the prosecutor engaged
in prosecutorial misconduct by attacking the sincerity of his defense counsel in closing
argument. We find this argument to lack merit.
{¶47} The standard of review for prosecutorial misconduct is whether the
comments and questions by the prosecution were improper, and, if so, whether they
prejudiced appellant’s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739
N.E.2d 749 (2001). Prosecutorial misconduct will not provide a basis for reversal unless
the misconduct can be said to have deprived the appellant of a fair trial based on the
entire record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “The
touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”
State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶48} Sheffey argues that the prosecutor’s closing statement prejudiced him
because it unfairly attacked his defense counsel’s theory that Hearn did not have the
opportunity to see the shooter and implied that his defense counsel did not even believe
him and was merely doing a “job.” Specifically, Sheffey points to the following excerpt:
All right. So it’s really unreasonable to expect her to come in here
and say well, the barrel was this long, the handle was brown in color or
chrome in color. That’s unreasonable. And Mr. Seewald’s doing what a
criminal defense attorney does; he’s going to raise that as reasonable doubt.
That’s not anywhere near reasonable doubt, and I hope and think you will
see through that.
{¶49} Although prosecutors are entitled to considerable latitude in opening and
closing arguments, they must nevertheless avoid insinuations and assertions calculated to
mislead. Lott at 166. “They may not express their personal beliefs or opinions
regarding the guilt of the accused, and they may not allude to matters not supported by
admissible evidence.” Id. The prosecutor is, however, permitted to fairly comment on the
credibility of witnesses based on the witnesses’ testimony at trial. State v. Williams, 8th
Dist. No. 90739, 2012-Ohio-1741, ¶ 12, citing State v. Price, 60 Ohio St.2d 136, 140, 398
N.E.2d 772 (1979). Courts must review the statement within the context of the entire trial.
Id.
{¶50} We cannot agree that the prosecutor’s comments rise to prosecutorial
misconduct. Indeed, a prosecutor’s comments should not be taken out of context and
given their most damaging meaning. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d
1068 (1996). Notably, Sheffey’s defense counsel did not object to these comments. But
even if these comments were construed as inappropriate, we cannot say that it denied
Sheffey of a fair trial. Here, the trial court specifically instructed the jury that opening
statements and closing arguments of counsel were not evidence, and that the jury was to
decide the case solely on the evidence presented. We have no basis to conclude that the
jury did not follow this instruction.
{¶51} The final assignment of error is overruled.
{¶52} Judgment affirmed.
It is ordered that appellee recover of appellant 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 conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR