State v. Robinson

[Cite as State v. Robinson, 

.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                  :       OPINION

                  Plaintiff-Appellee,            :
                                                         CASE NO. 2020-T-0048
         - vs -                                  :

 EDWARD L. ROBINSON, JR.,                        :

                  Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2020 CR
 00017.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481 (For Plaintiff-Appellee).

 Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, OH 44109 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}      Appellant, Edward L. Robinson, appeals from the August 5, 2020 judgment

of the Trumbull County Court of Common Pleas sentencing him to an aggregate term of

12 to 15 years imprisonment following appellant’s guilty plea. For the reasons that follow,

the judgment is affirmed.

        {¶2}      The facts of the case as would have been shown by appellee had the case

proceeded to trial are as follows: On November 11, 2019, appellant approached a woman
as she was exiting her vehicle outside her home. He produced a gun, put it to her side,

and grabbed her purse. When he discovered there was no cash in her purse, he

demanded that she take him to an ATM machine; she complied. He took the money she

withdrew and demanded she drop him off at a particular intersection. The victim was later

able to pick appellant out of a photo array.

       {¶3}   The next day, appellant approached a city worker as he was reading

meters. Appellant brandished a gun and demanded money, stating “give me your money,

I don’t want to shoot you”; when the worker replied he had no money on him, appellant

demanded he take him to the bank. The second victim got into the driver’s seat of his

city truck and appellant got in the back. He started driving toward the bank, but a short

distance later bailed out of his vehicle and ran up to another city worker working in the

vicinity. Appellant jumped in the driver’s seat and drove away. The vehicle was later

recovered; his DNA was found on the gear shifter knob of the truck, and the second victim

was able to pick appellant out of a photo array. Appellant admitted both robberies in his

interview with the police but denied having a gun.

       {¶4}   In February 2020, appellant was charged in a four-count indictment: Counts

1 and 3, Aggravated Robbery, felonies of the first degree in violation of R.C.

2911.01(A)(1)&(C); and Counts 2 and 4, Kidnapping, felonies of the first degree in

violation of R.C. 2905.01(A)(2)&(C)(1). He initially entered a plea of not guilty and the

original $100,000 bond was continued. In July 2020, appellant changed his plea to guilty;

the parties agreed that for purposes of the plea agreement, the firearm specifications on

counts 1 and 3 would merge with those on counts 2 and 4, respectively. The parties

jointly recommended a sentence of six to nine years on count 1, with the two firearm




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specifications to run prior to and consecutive to count 1, and six to nine years on each of

counts 2, 3, and 4 to run concurrent to count 1, the result being an aggregate prison

sentence of 12 to 15 years.

       {¶5}   The court adopted the parties’ recommendation in its entirety and advised

appellant he was required to register as a violent offender. The court also found appellant

indigent and waived court costs.

       {¶6}   Appellant now appeals assigning two errors for our review. The first states:

       {¶7}   The trial court erred by not merging allied offenses.

       {¶8}   Under this assignment of error, appellant argues the trial court erred by

failing to conduct a merger analysis and that the aggravated robbery counts should have

merged with the kidnapping counts because the kidnapping was committed for the

purpose of facilitating the aggravated robbery and did not have separate identifiable harm

or animus.

       {¶9}   Appellant failed to raise the issue below. Accordingly, this court reviews

this argument for plain error. State v. Devai, 11th Dist. Ashtabula No. 2012-A-0054, 2013-

Ohio-5264, ¶16, citing State v. Comen, 

 (1990). In State v. Barnes,

, 27 (2002), “the Supreme Court of Ohio set forth very strict limitations

on what constitutes plain error. First, there must be an error, i.e., a deviation from a legal

rule. Id. Second, the error must be plain, i.e., the error must be an ‘obvious’ defect in the

proceedings. Id. Third, the error must have affected ‘substantial rights.’ Id.” Devai, supra,

at ¶17. The defendant has the burden of demonstrating plain error. State v. Payne, 

, 

, ¶17. A reversal is warranted only if the defendant can

prove the outcome would have been different absent the error. 

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       {¶10} R.C. 2941.25 governs the merger of allied offenses for sentencing

purposes, and states:

       {¶11} (A) 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.

       {¶12} (B) Where the defendant’s conduct constitutes two or more offenses
             of dissimilar import, or where his conduct results in two or more
             offenses of the same or similar kind committed separately or with a
             separate animus as to each, the indictment or information may
             contain counts for all such offenses, and the defendant may be
             convicted of all of them. 

       {¶13} “Rather than compare the elements of two offenses to determine whether

they are allied offenses of similar import, the analysis must focus on the defendant’s

conduct to determine whether one or more convictions may result, because an offense

may be committed in a variety of ways and the offenses committed may have different

import. No bright-line rule can govern every situation.” State v. Ruff, 

,

, ¶30.

       {¶14} The Supreme Court of Ohio in Ruff went on to set forth three questions

under R.C. 2941.25 in order to determine whether a defendant can be convicted of

multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were

they committed separately? and (3) Were they committed with separate animus or

motivation? An affirmative answer to any of the above will permit separate convictions.

Id. at ¶31.

       {¶15} “‘[T]his analysis may be sometimes difficult to perform and may result in

varying results for the same set of offenses in different cases. But different results are

permissible, given that the statute instructs courts to examine a defendant’s conduct–an




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inherently subjective determination.’” Id. at ¶32, quoting State v. Johnson, 

, 

.

      {¶16} In determining whether aggravated robbery and kidnapping merge, courts

consider the guidelines set forth in State v. Logan, 

 (1979):

      {¶17} (a) Where the restraint or movement of the victim is merely incidental
            to a separate underlying crime, there exists no separate animus
            sufficient to sustain separate convictions; however, where the
            restraint is prolonged, the confinement is secretive, or the movement
            is substantial so as to demonstrate a significance independent of the
            other offense, there exists a separate animus as to each offense
            sufficient to support separate convictions;

      {¶18} (b) Where the asportation or restraint of the victim subjects the victim
            to a substantial increase in risk of harm separate and apart from that
            involved in the underlying crime, there exists a separate animus as
            to each offense sufficient to support separate convictions. 

 at
            syllabus.

      {¶19} “‘Although Logan predates Ruff, Ohio courts continue to apply the

guidelines set forth in Logan in determining whether kidnapping and another offense were

committed with a separate animus, in accordance with the third prong of the Ruff test.’”

State v. Cook, 11th Dist. Geauga No. 2016-G-0096, 

, quoting State

v. Asadi-Ousley, 8th Dist. Cuyahoga No. 104267, 

, reopened on

other grounds, citing State v. Armengau, 10th Dist. Franklin No. 14AP-679, 2017-Ohio-

4452, ¶125, State v. Williams, 7th Dist. Mahoning No. 13 MA 125, 

,

and State v. Stinnett, 5th Dist. Fairfield No. 15-CA-24, 

; see also

State v. Smith, 11th Dist. Trumbull No. 2018-T-0061, 

.

      {¶20} Here, it is apparent the restraint of each victim was not merely incidental to

the aggravated robbery but was prolonged; beyond the initial restraint by means of a

firearm while demanding any cash on their persons, appellant relocated the two victims

to a separate location against their will for the purpose of forcing them to withdraw money


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from the ATM. Indeed, “[t]here are several cases supporting the conclusion that, when a

victim is forcibly moved from one location to another for the purpose of enabling another

offense, the Kidnapping charge does not merge.” State v. Ervin-Williams, 11th Dist.

Trumbull No. 2014-T-0009, 

, citing State v. Houston, 1st Dist.

Hamilton No. C-130429, 

; State v. Martin, 11th Dist. Lake No.

2012-L-043, 

; State v. Vance, 10th Dist. Franklin No. 11AP-755,

, ¶16-17.

       {¶21} Thus, we cannot say the trial court committed plain error in failing to merge

the aggravated robbery and kidnapping counts. Mr. Robinson’s first assignment of error

is without merit.

       {¶22} His second states:

       {¶23} Appellant’s counsel was ineffective.

       {¶24} “There is a general presumption that trial counsel’s conduct is within the

broad range of professional assistance.” State v. Andrus, 11th Dist. Ashtabula No. 2019-

A-0082, 

, citing State v. Bradley, 

 (1989);

see also, State v. Smith, 

 (1985). The burden of proving ineffective

assistance of counsel falls upon a defendant. State v. Madeline, 11th Dist. Trumbull No.

2000-T-0156, 

, *3 (Mar 22, 2002).

       {¶25} “In order to prevail on an ineffective assistance of counsel claim, an

appellant must demonstrate that trial counsel’s performance fell ‘below an objective

standard of reasonable representation and, in addition, prejudice arises from counsel’s

performance.’” 

 quoting 

 paragraph two of the syllabus

(adopting the test set forth in Strickland v. Washington, 

 (1984)). “In order

to show prejudice, the appellant must demonstrate a reasonable probability that, but for


                                            6
counsel’s error, the result of the proceeding would have been different.” 

citing 

 at paragraph three of the syllabus. In the context of a guilty plea

conviction, this means that appellant would not have pleaded guilty but for counsel’s

ineffective assistance. Madeline, supra. “If a claim can be disposed of by showing a lack

of sufficient prejudice, there is no need to consider the first prong, i.e., whether trial

counsel’s performance was deficient.” 

 citing 

, citing

.

       {¶26} Moreover, “[t]he mere fact that, if not for the alleged ineffective assistance

of counsel, the defendant would not have entered a guilty plea is not sufficient to establish

the requisite connection between the guilty plea and the ineffective assistance. …

Rather, ineffective assistance of trial counsel is found to have affected the validity of a

guilty plea when it precluded a defendant from entering his plea knowingly and

voluntarily.” Madeline, supra, citing State v. Sopjack, 11th Dist. Geauga No. 93-G-1826,

, *4, citing State v. Haynes, 11th Dist. Trumbull No. 93-T-4911, 

, at 4-5. This court has explained that “by entering a plea of guilty, appellant

waived the right to contest the effectiveness of his representation prior to the entry of the

guilty plea if it did not cause less than a knowing and voluntary plea.” Haynes, supra, at

*1; see also Madeline, supra. “As a general proposition, the Supreme Court of Ohio has

stated that a guilty plea ‘represents a break in the chain of events which has preceded it

in the criminal process.’” Haynes, supra, quoting State v. Spates, 

(1992).

       {¶27} Under this assignment of error, appellant argues his defense counsel below

was ineffective for failing to secure a plea agreement that offered any benefit to him, by




                                             7
failing to raise the merger issue, by failing to raise the issue of a speedy trial violation,

and by failing to respond to the state’s discovery demand. We address each argument

in turn.

       {¶28} First, we address appellant’s argument that his agreement was of no benefit

to him. In exchange for the guilty plea, the state did not offer to reduce or nolle any count

of the indictment; thus, appellant argues, he did not receive any benefit to pleading guilty.

Appellant acknowledges that the state offered to merge two of the four firearm

specifications; however, he argues this was of no benefit to him as they would have run

concurrently because the charged offenses were committed as part of the same act or

transaction. He also challenges the benefit of a jointly recommended sentence as the

court was not bound by the recommendation.

       {¶29} Though appellant states that had he known the firearm specification

sentences would be run concurrently, “he likely would not have changed his plea,”

appellant stated that he entered into the plea knowingly and does not challenge this on

appeal.    Furthermore, the terms of the plea agreement resulted in two firearm

specifications, not four, which is of some benefit to appellant even if they were to run

concurrently, e.g., if some of the charges were later challenged or for the benefit of his

criminal record. The parties also agreed to a joint recommendation of a minimum of 12

and a maximum of 16 years imprisonment, when he was facing up to 56 years. Though

the court was not bound by any recommendation, we cannot say the joint

recommendation was of no benefit to appellant, as the appellee was advocating for a

significantly reduced sentence. To argue this is of no benefit to appellant, is to say the

state’s recommendation carries no weight whatsoever. While the court is not bound to a




                                             8
joint recommendation or the recommendation of either party, it does take the

recommendations into consideration.

       {¶30} It is clear from the record that appellant understood the terms of his plea

agreement, agreed to them, received some benefit from the plea agreement, and stated

he was satisfied with his counsel’s representation. Accordingly, we do not find that

appellant has met his burden of showing his counsel was ineffective.

       {¶31} Second, as discussed under appellant’s first assignment of error, there was

no error related to the merger of offenses; thus, appellant cannot show prejudice for his

attorney’s failure to raise the merger issue.

       {¶32} Third, appellant argues that the trial court violated his right to a speedy trial

and that his counsel was ineffective for failing to raise the matter. A person charged with

a felony must be brought to trial within 270 days of arrest. R.C. 2945.71(C)(2). If the

person charged remains in jail while the case is pending, each day counts as three days.

R.C. 2945.71(E). This time may be continued. R.C. 2945.72.

       {¶33} Here, the parties agree that appellant was arrested on December 28, 2019.

As there is no indication in the record that appellant posted bond, which is not disputed

by either party, appellant remained in jail while the case was pending. On February 26,

2020, appellant signed a speedy trial waiver extending the time an additional 90 days.

On March 26, 2020, the court, in response to the COVID-19 pandemic, tolled the speedy

trial time a minimum of 90 days, or “until further notice.” The record is devoid of further

tolling orders either extending or ending the tolling period. Appellant pleaded guilty on

July 29, 2020.




                                                9
       {¶34} According to the Supreme Court of Ohio, “R.C. 2945.72(H) provides that

speedy-trial time may be extended by ‘the period of any reasonable continuance granted

other than upon the accused’s own motion’; continuing a trial because of a pandemic

state of emergency is ‘reasonable.’” In re Disqualification of Fleegle, 

, 

, quoting R.C. 2945.72(H). As the latest court order regarding

this matter extended the speedy trial time until further notice, it was in effect until appellant

entered his guilty plea in July 2020. Thus, we cannot fault appellant’s trial court counsel

for failing to challenge the matter below.

       {¶35} Finally, appellant argues that his counsel was ineffective for failing to

respond to the state’s discovery demand. However, appellant does not argue how this

would have been prejudicial to him or that he would have proceeded to trial instead of

pleading guilty had his counsel responded. Thus, appellant has not met his burden of

showing he was prejudiced for this argument.

       {¶36} Mr. Robinson’s second assignment of error is without merit.

       {¶37} Accordingly, the judgment of the Trumbull County Court of Common Pleas

is affirmed.



THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.




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