[Cite as State v. Jackson,
2025-Ohio-369.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113841
v. :
FRANK JACKSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 6, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-23-684975-A, CR-23-685097-A, and
CR-23-686591-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph Lucchesi Assistant Prosecuting
Attorney, for appellee.
The Law Office of Schlachet and Levy and Eric M. Levy,
for appellant.
EMANUELLA D. GROVES, P.J.:
Defendant-appellant, Frank Jackson (“Jackson”), appeals his
convictions and sentences for vandalism, breaking and entering, and other charges.
For the reasons that follow, we affirm.
Factual and Procedural History
Jackson was indicted in three separate cases. On September 18,
2023, in C.P. No. CR-23-684975-A (“CR-23-684975-A”), Jackson was charged with
breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth degree
(Count 1) and petty theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the
first degree (Count 2). The victim in this case was General Electric.
On October 2, 2023, in C.P. No. CR-23-685097-A (“CR-23-685097-
A”), Jackson was charged with vandalism in violation of R.C. 2909.05(B)(1)(a), a
felony of the fourth degree (Count 1); breaking and entering in violation of R.C.
2911.13(B), a felony of the fifth degree (Count 2); and theft in violation of R.C.
2913.02(A)(1) a felony of the fifth degree (Count 3). The victim in this case was Baird
Properties LTD (“Baird”).
Finally, on November 8, 2023, in C.P. No. CR-23-686591-A (“CR-23-
686591-A”), Jackson was charged with breaking and entering in violation of R.C.
2911.13(B), a felony of the fifth degree (Count 1); vandalism in violation of R.C.
2909.05(B)(1)(a), a felony of the fourth degree (Count 2); and grand theft in
violation of R.C. 2913.02(A)(1), a felony of the fourth degree (Count 3). Michael
Duganitz, the codefendant in this case, was charged with receiving stolen property,
a felony of the fourth degree. The victim in this case was also Baird.
Jackson entered into a negotiated plea deal on February 20, 2024.
The case was originally scheduled for trial on that date; however, a new attorney
filed a notice of appearance as Jackson’s representative. The court noted that it had
discussed the case with Jackson’s new counsel and the prosecutor and found that
the lawyer had sufficient knowledge of the case to discuss plea agreements. The
court also noted that Jackson’s new lawyer did not physically have all the evidence
though the prosecutor had briefed him.
Jackson pleaded guilty to the breaking and entering charge (Count 1)
in CR-23-684975-A; the vandalism and breaking and entering charges in CR-23-
685097-A (Counts 1 and 2); and the breaking and entering, vandalism, and grand
theft charges in CR-23-686591-A (Counts 1, 2, and 3). The State dismissed the
remaining charges (Count 2 in CR-23-684975 and Count 3 in CR-23-685097).
At the sentencing hearing, Jackson’s attorney raised his status as a
ward of the probate court for the first time. Counsel did not challenge Jackson’s
competency to enter his plea but felt the court should be aware of the status when
considering sentencing. Counsel submitted a copy of the probate court’s order to
the court, which the court indicated it had received previously from Jackson’s
daughter. On reviewing the order, the court found that it did not designate Jackson
as incompetent, but rather addressed Jackson’s substance abuse and that his
thought processes are normal unless he discusses substance abuse. Sentencing tr.
46-47, 116.
The trial court proceeded with sentencing, first considering whether
any of the charges would merge with one another. The State argued that none of the
counts should merge, while the defense argued that the crimes were allied offenses
of similar import that should be merged. The court ultimately found that the three
cases do not merge with one another and that the individual counts within each case
do not merge.
In CR-23-684975-A, the trial court sentenced Jackson to 12 months
on the breaking and entering charge; in CR-23-685097-A, 18 months on the
vandalism charge, and 12 months on the breaking and entering charge; and in CR-
23-686591-A, 12 months on the breaking and entering charge; 18 months on the
vandalism charge; and 18 months on the grand theft charge. The court ordered each
case be served consecutively to one another. With respect to CR-23-685097-A, the
court found that Counts 1 and 2 run consecutively with each other. With respect to
CR-23-686591-A, the court found that Counts 1 and 3 run consecutively with one
another. The court did not make a specific finding with respect to Count 2 in its
entry; however, the court noted during sentencing that it intended to run Counts 1
and 3 consecutive and Count 2 concurrent. Sentencing tr. 134. The aggregate
sentence was six years. Additionally, the trial court ordered Jackson to pay
restitution to Baird in the amount of $30,613.00 on CR-23-686591-A, jointly and
severally with his codefendant, and $138,888.00 on CR-23-685097-A.1
Jackson appeals raising the following assigned errors for our review.
Assignment of Error No. 1
The trial court erred when it failed to merge Jackson’s convictions as
allied offenses prior to sentencing.
1 In his brief, Jackson argued that it was error to order restitution based on his
inability to pay; however, he did not include the issue as a formal assignment of error. He
seeks to preserve the challenge for later review, acknowledging that this court has
previously ruled on this issue. See State v. Thorp, 2023-Ohio-3629 (8th Dist.).
Assignment of Error No. 2
The maximum consecutive sentence imposed upon appellant Jackson
is clearly and convincingly contrary to law.
Assignment of Error No. 3
Trial counsel was ineffective in failing to request a competence
evaluation of appellant Jackson and failing to review discovery prior to
representing Jackson in entering his change of plea.
Law and Analysis
Merger of Offenses
In the first assignment of error, Jackson argues that the trial court
erred when it found that his convictions were not subject to merger as allied offenses
of similar import.
We review the decision on whether offenses should be merged as
allied offenses of similar import under a de novo standard of review. State v. Bailey,
2022-Ohio-4407, ¶ 6, citing R.C. 2941.25, State v. Williams,
2012-Ohio-5699, ¶ 1.
When a defendant’s conduct “supports more than one offense, . . ., a
court must conduct an analysis of allied offenses of similar import to determine
whether the offenses merge or whether the defendant may be convicted of separate
offenses.” State v. Ruff, 2015-Ohio-995, ¶ 24, citing R.C. 2941.25(B). When offenses
are found to be allied offenses of similar import, the defendant, though charged with
two or more offenses, may only be convicted of a single offense. Id. at ¶ 13, citing
R.C. 2941.25(A).
In determining whether offenses merge, courts consider the
defendant’s conduct. State v. Johnson, 2010-Ohio-6314, ¶ 44. The
court must first determine if the multiple offenses can be committed by
the same conduct. If so, then the court must determine whether the
offenses were, in fact, committed by the same conduct, i.e., whether
they were a single act committed with a single state of mind. Id. at ¶ 49.
If the court answers both questions affirmatively, the offenses are allied
offenses of similar import and will be merged. Id. at ¶ 50.
State v. Gonzalez, 2018-Ohio-1302, ¶ 17 (8th Dist.).
A court must ask three questions when determining whether a
defendant’s conduct supports conviction on multiple offenses:
(1) Were the offenses dissimilar in import or significance – in other
words, did each offense cause separate identifiable harm? (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. The conduct, the animus, and
the import must all be considered.
Ruff at ¶ 31.
Since the three cases Jackson pleaded guilty to happened separately,
the trial court properly found that the cases do not merge. The only issue is whether
the counts in CR-23-685097-A merge with one another and whether the counts in
CR-23-686591-A merge with one another.
At the sentencing hearing, the trial court limited the State’s recitation
of facts. However, the trial court had ordered presentence investigations, which
discussed the crimes in more detail; additionally, representatives of Baird testified
at sentencing and submitted paperwork from their insurance company and repair
estimates. In the first incident involving Baird, CR-23-685097-A, someone called
911 after they saw Jackson and an unknown accomplice on the rooftop of the
property tearing apart metal structures and taking the metal to Jackson’s yard.
Police arrived and caught Jackson on the roof. Jackson ultimately admitted his
conduct. The owner and Baird’s head of security testified that Jackson damaged
eight HVAC units and three compressors in order to obtain scrap metal.
Baird’s insurance company sent out an adjuster to investigate the
damage. The adjuster noted damage to ten HVAC systems. Three of the systems
had their outdoor condensing units completely removed. Additionally, line sets
were cut and left exposed, which allowed refrigerant to escape the refrigerant
circuits. The exposed line sets compromised the indoor air handlers of these
systems. In an additional seven systems, the evaporator coils were cut from the
units. Additionally, large portions of the copper piping were removed and the
paneling was dismantled. These actions also compromised the packaged units. The
insurance adjuster also noted damage to the building, including damage to the
parapet wall, a ripped awning, plus minor damage to a deck.
Pursuant to the plea agreement, Jackson pleaded guilty to vandalism
under R.C. 2909.05(B)(1)(a) and breaking and entering under R.C. 2911.13(B). The
breaking and entering charge required proof that Jackson trespassed on the land or
premises of another, with purpose to commit a felony. R.C. 2911.13(B). Evidence
that a defendant trespassed on premises with purpose to commit a felony is
sufficient, and the State need not prove that the defendant actually committed a
felony. State v. Sines-Riley, 2024-Ohio-2860, ¶ 53 (4th Dist.). Jackson trespassed
on the property by stealth with purpose to commit a felony, which was separate from
the act of vandalism that allowed him to steal material from Baird’s property.
Accordingly, the trial court did not err when it found the offenses were not allied
offenses of similar import in CR-23-685097-A.
In the second incident involving Baird, CR-23-686591-A, Jackson
was captured on video surveillance equipment entering the property with a crowbar.
Jackson then moved out of camera range but is later captured on video throwing
items off of a deck onto the ground. Jackson is also seen dragging items from that
location to the lot adjacent to his address and Baird. The property manager reported
that Jackson damaged three rooftop HVAC systems and the estimated damage was
at least $100,000. Jackson then enlisted the help of his codefendant, Duganitz, who
sold 153 lbs. of radiator parts and 16 lbs. of copper to a scrap business shortly after
the theft for little over $200. Baird had notified local scrap metal recyclers that
Jackson was a known thief, which prevented Jackson from selling the scrap metal
himself. Duganitz later admitted that he helped Jackson by selling these items. At
the sentencing hearing, Baird presented evidence that the repair was over $100,000.
Baird’s insurance adjuster investigated this claim as well and found
that there was damage to three additional rooftop HVAC air conditioner and heat
pump package units, which were different from the ones originally damaged. On
these three units, the coils were fully removed. In order to access the coils, the
exterior paneling was completely disassembled, which structurally compromised
the units and damaged the sheet metal. There was additional damage caused
because the refrigerant circuit was left open and exposed the remaining compressors
to contamination.
In this case, Jackson pleaded guilty to vandalism, breaking and
entering, and grand theft. In reviewing the record, we find that the record
establishes that the crimes were committed separately and that the crime of theft
was committed with a separate animus. Here, Jackson entered Baird’s complex with
a crowbar. This happened shortly after the trial court released him on bond for the
crimes against Baird under CR-23-685097-A, a case where Jackson admitted his
conduct. We find that the record reflects that Jackson completed the crime of
breaking and entering when he entered the property with a crowbar with purpose to
commit a felony, because his actions followed a common scheme and plan. Baird’s
representatives testified that Jackson entered their property by placing a ladder
against their fence, which is adjacent to Jackson’s property, and climbing on the roof
to access the HVAC units. As we have noted, the State need not prove that the
defendant actually committed the felony in order to be found guilty of breaking and
entering under R.C. 2911.13(B). Sines-Riley, 2024-Ohio-2860, ¶ 53. Thus, the
crime of breaking and entering was completed and separate from Jackson’s
subsequent actions once he entered the property with a tool to commit the crime.
With respect to the crimes of vandalism and grand theft, Jackson
entered the property and vandalized Baird’s HVAC units to sell material he tore from
them. Jackson not only stole from the units, he exposed dangerous materials that
compromised the integrity of the equipment he left behind. Once the vandalism to
obtain the materials was completed, Jackson continued the theft by using a
confederate to sell the materials. Local scrap recyclers had been warned that
Jackson was likely selling stolen materials. The theft occurred over multiple days.
Accordingly, the vandalism was separate from the theft, and the theft was
committed with a separate animus. Based on the foregoing, we find that the trial
court did not err when it refused to merge the three counts in CR-23-686591.
Accordingly, the first assignment of error is affirmed.
Maximum Consecutive Sentences
In the second assignment of error, Jackson argues that the trial court
erred when it imposed maximum sentences and ran them consecutively. Jackson
argues that the trial court failed to consider the purposes and principles of
sentencing, the seriousness and recidivism factors, and the factors necessary to
impose consecutive sentences under R.C. 2929.14(C)(4). Accordingly, Jackson
argues that his sentences are contrary to law.
Felony sentences are reviewed under R.C. 2953.08(G)(2), which
allows a court of appeals to increase, reduce, modify, or vacate and remand a
challenged felony sentence if the court clearly and convincingly makes either of two
findings. State v. Artis, 2022-Ohio-3819, ¶ 11 (8th Dist.). First that the record does
not support the trial court’s findings as required by certain sentencing statutes or
that the sentences are otherwise contrary to law.
Id.
Preliminarily, we note that Jackson argues that the trial court was
required to make a finding that Jackson committed the worst form of the offense or
posed the greatest likelihood of committing future crimes before it could impose a
maximum sentence. See State v. Parker, 144 Ohio App.3d 334 (8th Dist.). This was
the standard required under former R.C. 2929.14(C); however, based on
constitutional grounds, that part of the statute was severed and is no longer part of
the code. State v. Keith,
2016-Ohio-5234, ¶ 12 (8th Dist.), citing State v. Foster,
2006-Ohio-856, State v. Combs,
2013-Ohio-4816, ¶ 8-11 (2d Dist.).
Now, a trial court may impose a maximum prison term for a felony
and that sentence is not contrary to law “‘as long as the sentence is within the
statutory range for the offense, and the court considers the purposes and principles
of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism
factors set forth in R.C. 2929.12.’” State v. Artis, 2022-Ohio-3819, ¶ 12 (8th Dist.)
quoting State v. Seith,
2016-Ohio-8302, ¶ 12 (8th Dist.). With respect to R.C.
2929.11 and 2929.12, it is well settled that neither statute is a factfinding statute that
requires the trial court to make findings of fact on the record. Id. at ¶ 13. Further,
the trial court is presumed to have considered those factors unless the defendant
affirmatively shows otherwise. Id., citing State v. Pate,
2021-Ohio-1089, ¶ 3 (8th
Dist.). “A trial court’s statement in its sentencing journal entry that it considered
the required statutory factors is sufficient to fulfill its obligations under R.C. 2929.11
and 2929.12.
Id., citing State v. Sutton,
2015-Ohio-4074, ¶ 72; State v. Clayton,
2014-Ohio-112, ¶ 9.
In each journal entry, the trial court noted that it considered all
required factors of the law and that prison was consistent with the purpose of R.C.
2929.11. In the instant case, the trial court obtained presentence investigations for
each case, heard from representatives of the victims, the representative of the State,
received reports on the damages, reviewed probate court records, heard from
Jackson’s family members, Jackson, and Jackson’s counsel. Jackson has not
affirmatively demonstrated that the trial court failed to consider these factors when
imposing its sentence. Rather the record reflects that the trial court extensively
reviewed Jackson’s criminal history, his past outcome, and failures and successes in
making its determination regarding his sentences. Additionally, the record
demonstrates that each maximum sentence was within the statutory range.
We next examine whether the trial court’s imposition of consecutive
sentences was clearly and convincingly not supported by the record. In order to
sentence an offender to consecutive sentences, a trial court must find
that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public, and if the court also
finds any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)
Prior to imposing the sentence, the trial court noted that Jackson had
an extensive criminal history and that these cases were his 83rd, 84th, and 85th
cases. In addition to the property crimes, the court noted that thirty of Jackson’s
crimes were crimes against people, including domestic violence. The court noted
that, while Jackson did complete treatment while in prison, he also was sentenced
to treatment an additional nine times, and he did not complete the program, never
went, or went capias.
The trial court essentially found that Jackson would continue to
commit crimes as long as he was physically able to do so and also that it was the
court’s responsibility to both punish Jackson and protect the public from future
crime. Accordingly, the trial court made the appropriate findings to impose
consecutive sentences under R.C. 2953.08(G)(2) and 2929.14(C)(4), additionally,
the imposition of maximum sentences were not clearly and convincingly contrary to
law.
The second assignment of error is therefore overruled.
Ineffective Assistance of Counsel
In the third assignment of error, Jackson argues he received
ineffective assistance of counsel when his lawyer failed to request a competency
evaluation and failed to review discovery prior to representing Jackson prior to
entering his pleas of guilty.
An appellant demonstrates ineffective assistance of counsel by
showing that “(1) counsel’s performance fell below an objective standard of
reasonable representation and (2) he was prejudiced by that performance.” State v.
Morgan, 2018-Ohio-1834, ¶ 10 (8th Dist.), citing Strickland v. Washington,
466
U.S. 668, 687-688 (1984). In considering whether an attorney’s performance fell
below an objective standard of reasonableness, a reviewing court “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance”
Strickland at 689. Prejudice is established by showing that
“there exists a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different.” State v. Davis,
2020-Ohio-309, ¶ 10.
Competency to Stand Trial
Jackson does not point to any evidence in the record that
demonstrates he was incompetent to enter his plea; rather, Jackson argues that the
probate court’s decision that designated him a ward of the court in need of a
guardian was sufficient to raise the issue of competency. Preliminarily, we note that
Jackson’s status was not raised at the plea hearing. The trial court went through a
full Crim.R. 11 colloquy with Jackson in which Jackson did not raise any questions
or indicate a failure to understand the proceedings.
Generally, “[a] defendant is presumed to be competent to stand trial.”
R.C. 2945.37(G). If the issue of competency is raised prior to trial, the court is
required to have a hearing to determine, by a preponderance of the evidence,
whether the defendant is capable of “understanding the nature and objective of the
proceedings against him or of assisting his counsel in his defense.” R.C. 2945.37(B),
(C), and (G). Counsel never raised competency as an issue. In fact, when he raised
Jackson’s status with the probate court, counsel noted he was not challenging
competency to stand trial but rather raising it as information for the court’s
consideration at sentencing. Sentencing tr. 44-45.
Incompetence to stand trial has a specific meaning and should not be
conflated with other designations of mental illness. The Ohio Supreme Court has
noted that “‘[i]ncompetency must not be equated with mere mental or emotional
instability or even outright insanity. A defendant may be emotionally disturbed or
even psychotic and still be capable of understanding the charges against him and of
assisting his counsel.’” State v. Were, 2008-Ohio-2762, ¶ 47, quoting Dusky v.
United States,
362 U.S. 402, 402 (1960).
The probate court’s determinations of competency are separate from
that of a criminal court’s determinations. State v. Calabrese, 2017-Ohio-7316, ¶ 18
(8th Dist.), citing State v. Brooks,
1992 Ohio App. LEXIS 357 (9th Dist. 1992). A
criminal court has the responsibility of determining under R.C. 2945.37 whether a
defendant is competent or has the mental capacity to be tried, and not the probate
court.
Id.
In the instant case, the trial court had a copy of the probate court’s
order and found that it did not designate Jackson as incompetent, but rather
recognized that his substance abuse impaired his thought processes. “A trial court’s
finding that a defendant is competent to stand trial will not be disturbed when there
is some reliable and credible evidence supporting those findings.” Were, 2008-
Ohio-2762 at ¶ 46, citing State v. Vrabel, 2003-Ohio-3193, ¶ 33; State v. Williams,
23 Ohio St.3d 16, 19 (1986). Additionally, we give deference to the trial court’s in-
person observations.
Id., citing State v. Cowans,
87 Ohio St.3d 68, 84 (1999).
Other than the probate court’s designation, the record does not reflect
that Jackson displayed any confusion or inability to understand the nature of the
proceedings or an inability to assist his counsel in his defense. Based on the
foregoing, the record does not reflect that counsel erred when he failed to request a
competency hearing. As a defendant must meet both prongs of the test set out in
Strickland, i.e., an error and that he was prejudiced by that error, Jackson has failed
to establish he received ineffective assistance of counsel on this basis.
Lack of Discovery
Finally, Jackson argues that he received ineffective assistance of
counsel when his newly retained lawyer represented him at the plea hearing without
obtaining all of the discovery. The record reflects that Jackson was represented by
a court-appointed representative from the public defender’s office as of September
22, 2023. A representative of the public defender represented Jackson at the final
pretrial, which was a week prior to trial. New counsel indicated he was retained on
February 15, 2024, the Thursday before the February 20, 2024 trial date.
Jackson does not argue that there was evidence in the discovery that
aided his defense or mitigated his conduct. He merely argues that it was error for
his new counsel to advise him at the plea hearing without reviewing all the discovery.
Nevertheless, when a defendant enters a guilty plea, as Jackson did
here, a defendant “waives ineffective assistance of counsel except to the extent that
the ineffective assistance of counsel caused the defendant’s plea to be less than
knowing, intelligent, and voluntary.” State v. Parham, 2018-Ohio-1631, ¶ 32 (8th
Dist.), citing State v. Williams,
2014-Ohio-3415, ¶ 11 (8th Dist.). Ineffective
assistance of counsel may constitute such a manifest injustice that it warrants
withdrawal of a guilty plea.
Id., citing State v. Montgomery,
2016-Ohio-2943, ¶ 4
(8th Dist.).
In the instant case, Jackson has failed to cite any evidence in the
record that his decision to plead guilty was less than knowing, intelligent, and
voluntary. The trial court thoroughly and comprehensively reviewed the plea with
Jackson, including questioning whether he understood the nature of the charges, his
right to proceed to trial and that his plea would waive that right, and whether he was
satisfied with his counsel’s representation.
In order to establish ineffective assistance of counsel at the plea
hearing, Jackson needed to establish deficient performance of counsel and that
“‘there was a reasonable probability that but for counsel’s deficient performance, the
defendant would not have pled guilty to the offenses at issue and would have,
instead, insisted on going to trial.’” Id., quoting Williams at
id. Jackson has failed
to establish that but for counsel’s actions he would not have entered the guilty pleas
and insisted on going to trial.
Accordingly, the third assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from 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. Cases
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.
________
EMANUELLA D. GROVES, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of
Appeals.)
