[Cite as State v. Baker,
2015-Ohio-3232.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102232
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID BAKER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-587786-B
BEFORE: Jones, P.J., E.T. Gallagher, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 13, 2015
ATTORNEYS FOR APPELLANT
Ruth R. Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland, Ohio 44118
David H. Brown
The Gehring Building
1956 West 25th Street
Suite 302
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mahmoud Awadallah
Eleina Thomas
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant, David Baker, appeals his jail-time credit and the trial
court’s decision not to merge his aggravated murder and felonious assault convictions as
allied offenses of similar import. We affirm.
Procedural History and Facts
{¶2} In 2014, Baker was charged in a 17-count indictment stemming from the
shooting death of 21-year old Terria Nettles. In October 2014, he pleaded guilty to an
amended indictment: one count of aggravated murder with a three-year firearm
specification, three counts of felonious assault with three-year firearm specifications on
each count, and one count of intimidation of a crime victim or witness, and having
weapons while under disability. His codefendant, Chevarre Young, pleaded guilty to the
same charges at the same hearing, except for having weapons while under disability, with
which Young was not charged.1
{¶3} The trial court sentenced Baker to 30 years to life for aggravated murder,
concurrent to three years for the felonious assault convictions, and 12 months for
intimidation of a crime victim or witness. The court also sentenced him to consecutive
sentences of 12 months for having weapons while under disability and six years on the
firearm specifications for a total sentence of 37 years to life in prison.
{¶4} The following pertinent facts were presented by the state during the
Young has appealed his conviction and sentence and this court affirmed. See State v.
1
Young, 8th Dist. Cuyahoga No. 102202, 2015-Ohio-2862.
sentencing hearing. On December 18, 2013, Terria Nettles was driving her friend
Ashley Acoff’s car with Acoff in the front passenger seat and Juantaviyan Smith in the
backseat. They were on their way to visit Acoff’s boyfriend, but she did not know
where he lived, so Nettles drove around slowly looking for the address. When Nettles
realized she had driven past the house, she pulled into a driveway to turn around.
Lashawnda Greer passed by in her car and inadvertently blocked Acoff’s car in the
driveway Acoff had turned into. At this point, Baker and Young, who were known drug
dealers, ran outside and began shooting at the cars, firing several shots.
{¶5} Nettles was shot in the head and immediately died from her injuries.
Several more bullets entered the vehicle but missed Acoff and Smith. Bullets struck
Greer’s car but also missed her. Baker and Young did not know the victims; the parties
indicated at the sentencing hearing that the men were waiting for someone else.
{¶6} The police executed a search warrant on the apartment where Young and
Baker were staying and were able to match Young’s DNA to one of the guns that was
used in the shooting. The police also found Baker and Young’s DNA on other guns and
gun parts as well as on packaged cocaine and heroin that the police seized during
execution of the warrant.
{¶7} At the sentencing hearing, the trial court informed Baker of his appellate
rights, postrelease control responsibilities, and that he would be given credit for time he
had already served in jail.
Assignments of Error
I: The Trial Court committed error by sentencing David Baker absent
addressing his credit for time served in incarceration during the hearing.
II: The Court erred by sentencing David Baker separately for allied
offenses of similar import.
Law and Analysis
{¶8} In the first assignment of error, Baker argues that the trial court erred by
sentencing Baker without giving him credit for time served.
{¶9} R.C. 2967.191 governs credit for confinement awaiting trial and commitment
and states the following:
The department of rehabilitation and correction shall reduce the stated
prison term of a prisoner or, if the prisoner is serving a term for which there
is parole eligibility, the minimum and maximum term or the parole
eligibility date of the prisoner by the total number of days that the prisoner
was confined for any reason arising out of the offense for which the
prisoner was convicted and sentenced, including confinement in lieu of bail
while awaiting trial, confinement for examination to determine the
prisoner’s competence to stand trial or sanity, confinement while awaiting
transportation to the place where the prisoner is to serve the prisoner’s
prison term, as determined by the sentencing court under division
(B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a
juvenile facility. The department of rehabilitation and correction also shall
reduce the stated prison term of a prisoner or, if the prisoner is serving a
term for which there is parole eligibility, the minimum and maximum term
or the parole eligibility date of the prisoner by the total number of days, if
any, that the prisoner previously served in the custody of the department of
rehabilitation and correction arising out of the offense for which the
prisoner was convicted and sentenced.
{¶10} Pursuant to R.C. 2929.19(B)(2), “if the sentencing court determines at the
sentencing hearing that a prison term is necessary or required, the court shall do all of the
following:”
(g)(i) Determine, notify the offender of, and include in the sentencing entry
the number of days that the offender has been confined for any reason
arising out of the offense for which the offender is being sentenced and by
which the department of rehabilitation and correction must reduce the stated
prison term under section 2967.191 of the Revised Code. The court’s
calculation shall not include the number of days, if any, that the offender
previously served in the custody of the department of rehabilitation and
correction arising out of the offense for which the prisoner was convicted
and sentenced.
{¶11} At the sentencing hearing, the trial court stated that Baker would be “given
credit for time served.” In the sentencing journal entry, the court indicated that Baker
was to receive jail-time credit for 239 days.
{¶12} Baker does not contest the amount of time he was given; rather he claims
that the trial court erred because it did not inform him orally at the sentencing hearing the
amount of time he would be given credit. Because Baker did not contest this issue at the
trial court level, he has waived all but plain error. Under Crim.R. 52(B), “[p]lain errors
or defects affecting substantial rights may be noticed although they were not brought to
the attention of the court.” An error rises to the level of plain error only if, but for the
error, the outcome of the proceedings would have been different. State v. Harrison, 122
Ohio St.3d 512,
2009-Ohio-3547,
912 N.E.2d 1106, ¶ 61; State v. Long,
53 Ohio St.2d
91, 97,
372 N.E.2d 804 (1978).
{¶13} While we disagree with the state’s position that there is no requirement that
the trial court calculate and inform a defendant at the sentencing hearing of the amount of
jail-time credit he or she will receive, we find that the court’s omission does not rise to
plain error in this case.
{¶14} R.C. 2929.19(B)(2)(g)(i) clearly states that a sentencing court, if it
determines at the sentencing hearing that the defendant is receiving a prison term, shall
determine and notify the offender of, and include in the sentencing entry, the number of
days of credit the offender shall receive. Thus, the trial court had a duty to calculate
jail-time credit at the time of sentencing. See State v. Santamaria, 9th Dist. Summit No.
26963, 2014-Ohio-4787, ¶ 10 (pursuant to R.C. 2929.19(B)(2)(g)(i), the trial court had a
duty to calculate the defendant’s jail-time credit at the time of his resentencing, notify him
of the number of days he would be credited, and memorialize that information in the
sentencing entry); see also State v. Fitzgerald, 8th Dist. Cuyahoga No. 98723,
2013-Ohio-1893, ¶ 5-7 (Boyle, J., concurring) (amendments to R.C. 2929.19 impose a
duty upon a trial court at the time of sentencing to determine jail-time credit).
{¶15} As mentioned, Baker does not contest the amount of credit he was given.
A review of the record shows that he was given the appropriate amount of credit. Thus,
Baker cannot show that he was prejudiced by the trial court’s failure to determine and
notify him of his jail-time credit at his sentencing hearing.
{¶16} In light of the above, the first assignment of error is overruled.
{¶17} In the second assignment of error, Baker argues that the trial court erred
when it did not consider whether his felonious assault and murder convictions merge as
allied offenses of similar import.
{¶18} R.C. 2941.25(A) provides that where the same conduct by a 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.” But where the conduct constitutes two or more offenses of dissimilar
import, or where the conduct results in two or more offenses of the same or similar kind
committed separately or with a separate animus, the indictment or information may
contain counts for all such offenses, and the defendant may be convicted of all of them.
R.C. 2941.25(B).
{¶19} In State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314,
942 N.E.2d 1061,
the Ohio Supreme Court created a two-part test to determine if offenses should merge.
The first prong requires that the court determine if the multiple offenses “were committed
by the same conduct.” Id. at ¶ 47. The second prong is whether “it is possible to
commit one offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other.” Id. If both can be answered in
the affirmative then the offenses must be merged. But “if the court determines that the
commission of one offense will never result in the commission of the other, or if the
offenses are committed separately, or if the defendant has separate animus for each
offense, then, according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶ 51.
{¶20} In State v. Ruff, Slip Opinion No. 2015-Ohio-995, ¶ 31, the Ohio Supreme
Court clarified that courts are to consider three questions when determining whether
offenses are allied offenses of similar import within the meaning of R.C. 2941.25: (1)
Were the offenses dissimilar in import or significance? (2) Were the offenses committed
separately? or (3) Were the offenses committed with separate animus or motivation? If
a court can answer in the affirmative to any of the questions, then separate convictions are
permitted.
Id. Thus, the trial court must consider a defendant’s conduct, the animus,
and the import.
Id.
{¶21} But the Ohio Supreme Court recently explained that the issue of allied
offenses must be raised at the trial court level or it is waived. In State v. Rogers, Slip
Opinion No. 2015-Ohio-2459, ¶ 3, the court held that the failure to raise the issue of
allied offenses of similar import forfeits all but plain error. Such error “is not reversible
error unless it affected the outcome of the proceeding and reversal is necessary to correct
a manifest miscarriage of justice.”
Id.
{¶22} Crim.R. 52(B) affords appellate courts discretion to correct plain errors or
defects affecting substantial rights even if the accused failed to bring those errors to the
trial court’s attention. Id. at ¶ 22. But, the court determined, if a defendant fails to
raise the issue at the trial court level, the burden is solely on that defendant, not on the
state or the trial court, to “demonstrate a reasonable probability that the convictions are
for allied offenses of similar import committed with the same conduct and without a
separate animus.” Id. If a defendant fails to make the showing, then “the accused cannot
demonstrate that the trial court’s failure to inquire whether the convictions merge for
purposes of sentencing was plain error.” Id.
{¶23} The Rogers court noted that “even if the error is obvious, it must have
affected substantial rights, and … ‘the trial court’s error must have affected the
outcome of the trial.’” Id. The accused is therefore required to demonstrate a
reasonable probability that the error resulted in prejudice — the same deferential standard
for reviewing ineffective assistance of counsel claims. Id., citing United States v.
Dominguez Benitez, 542 U.S. 74, 81-83,
124 S.Ct. 2333,
159 L.Ed.2d 157 (2004).
{¶24} The Rogers court further cautioned that even if the defendant is able to
make the necessary showing that the trial court committed plain error that affected the
outcome of the proceedings, the reviewing court is not required to correct it; “we have
‘admonish[ed] courts to notice plain error “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’”” (Emphasis sic).
Id. at ¶ 23, quoting State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002),
quoting State v. Long,
53 Ohio St.2d 91,
372 N.E.2d 804 (1978), at paragraph three of the
syllalbus.
{¶25} Here, Baker did not raise the issue of allied offenses in the trial court nor has
he shown that plain error occurred. Baker pleaded guilty in Count 1 to the aggravated
murder of Nettles, in Count 8 to the felonious assault of Acoff, in Count 9 to the
felonious assault of Smith, and in Count 10 to the felonious assault of Greer. His
conduct constituted offenses involving four separate victims. Thus, even if he had
properly raised the issue at the trial court level, his felonious assault convictions would
not have merge with each other or with the aggravated murder conviction because they
involved four separate victims. See State v. Allen, 8th Dist. Cuyahoga No. 97014,
2012-Ohio-1831, ¶ 59. (“Separate convictions and sentences are permitted [under R.C.
2941.25] when a defendant’s conduct results in multiple victims.”)
{¶26} Accordingly, the second assignment of error is overruled.
{¶27} 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
