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State v. Boone

Court of Appeals of Ohio, Ninth District

June 26, 2013

STATE OF OHIO Appellee
v.
WILLIE L. BOONE Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 09 2627

DENISE E. FERGUSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

DONNA J. CARR, Judge.

{¶1} Appellant, Willie Boone, moved to reopen his appeal from his convictions in the Summit County Court of Common Pleas. This Court granted his application to reopen the appeal, and this matter is now before us for decision. We vacate our previous decision and now affirm in part and reverse in part.

I.

{¶2} On May 14, 2010, a man disguised with glasses and a long wig burst through the doors of a Key Bank branch on Romig Road in Akron and demanded money from the tellers. An Akron police officer working special duty in the bank noted the man and approached him from behind with his gun drawn. The officer ordered the robber to the ground but, as he tried to holster his firearm in order to handcuff the suspect, the robber leapt to his feet and fled toward the door. The officer grabbed him from behind, and a scuffle ensued just outside the bank. The officer successfully wrestled the robber to the ground again, but was unable to handcuff and arrest him because he "buck[ed] * * * up and down, " threw the officer to the ground, and ran away. The officer pursued the robber on foot until he saw him run toward a waiting vehicle and jump inside as the vehicle drove away.

{¶3} Boone's girlfriend had rented the vehicle for the benefit of Boone's family, and an interview with her led police to suspect Boone, whom they ultimately arrested. A jury found him guilty of robbery in violation of R.C. 2911.02(A)(3), resisting arrest in violation of R.C. 2921.33(A), and escape in violation of R.C. 2921.34(A)(1). The trial court sentenced him to a total prison term of eight years, including a ninety-day term for resisting arrest, a first-degree misdemeanor. Boone appealed, and this Court affirmed his convictions. State v. Boone, 9th Dist. No. 26104, 2012-Ohio-3142. We granted Boone's application to reopen his appeal under App.R. 26(B).

II.

{¶4} In State v. Graves, 9th Dist. No. 08CA009397, 2011-Ohio-5997, this Court explained our obligations in a reopened appeal:

Under Rule 26(B)(9) of the Ohio Rules of Appellate Procedure, "[i]f th[is][C]ourt finds that the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency, [it] shall vacate its prior judgment and enter the appropriate judgment. If th[is][C]ourt does not so find, [it] shall issue an order confirming its prior judgment." Deficient performance by a lawyer is a performance that falls below an objective standard of reasonable representation. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, at ¶ 204 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A defendant is prejudiced by the deficiency if there is a reasonable probability that, but for his lawyer's errors, the result of the proceeding would have been different. Id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

(Alterations in original.) Graves at ¶ 9. As explained below, the State has conceded that two errors occurred during Boone's sentencing hearing. Upon our review of the record, we have concluded that the performance of Boone's appellate counsel was deficient because he did not assign these errors. Consequently, our opinion in State v. Boone, 9th Dist. No. 26104, 2012-Ohio-3142, is vacated, and the following judgment is entered.

III.

{¶5} Boone has raised thirteen assignments of error in his reopened appeal. Some of them are rearranged for purposes of our discussion.

ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT FAILED TO MERGE COUNTS 3 AND 4 FOR SENTENCING PURPOSES AS THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT.

{¶6} Boone's third assignment of error argues that the trial court erred by failing to determine that his convictions for escape and misdemeanor resisting arrest are allied offenses of similar import. Because Boone acquiesced in his misdemeanor judgment, this assignment of error is moot.

{¶7} "The completion of a sentence is not voluntary and will not make an appeal moot if the circumstances surrounding it demonstrate that the appellant neither acquiesced in the judgment nor abandoned the right to appellate review, that the appellant has a substantial stake in the judgment of conviction, and that there is subject matter for the appellate court to decide." Cleveland Heights v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, paragraph one of the syllabus. In the case of a misdemeanor conviction,

a misdemeanant who contests charges at trial and, after being convicted, seeks a stay of execution of sentence from the trial court for the purpose of preventing an intended appeal from being declared moot and thereafter appeals the conviction objectively demonstrates that the sentence is not being served voluntarily, because no intent is shown to acquiesce in the judgment or to intentionally abandon the right of appeal.

Id. at ¶ 23. Conversely, when an appellant completes a misdemeanor sentence without requesting a stay pending appeal and does not offer evidence from which this Court could infer that the appellant would suffer collateral disability or loss of civil rights stemming from the misdemeanor conviction, the appeal is moot. State v. Jones, 9th Dist. No. 12CA0024, 2012-Ohio-6150, ¶ 52.

{¶8} We have applied this analysis when an appellant argues that two misdemeanors were allied offenses of similar import. State v. Henry, 9th Dist. No. 25479, 2011-Ohio-3566, ¶ 15-17. This conclusion is also warranted in this case because, with respect to the misdemeanor conviction, this Court "cannot provide any meaningful relief as to that sentence." State v. Caudill , 2d Dist. No. 24881, 2012-Ohio-2230, ¶ 11. See also State v. McGrath, 8th Dist. No. 85046, 2005-Ohio-4420. The trial court sentenced Boone to ninety days of incarceration for his conviction for resisting arrest, a first-degree misdemeanor. Boone did not request a stay pending appeal, and he has served that sentence. With respect to that conviction, therefore, Boone's appeal is moot. His third assignment of error is overruled.

ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND/OR PLAIN ERROR WHEN IT OVERRULED DEFENDANT'S CRIM.R. 29(A) MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.

{¶9} Boone's second assignment of error is that his convictions are based on insufficient evidence establishing that he committed the crimes. Because we have concluded that his conviction for resisting arrest is moot for purposes of appeal, we address our discussion only to his convictions for robbery and escape.

{¶10} "Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo." State v. Williams, 9th Dist. No. 24731, 2009-Ohio-6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997) The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction Thompkins, at 390 (Cook, J, concurring). In reviewing the evidence, we do not evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The State's evidence is sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the crime were proven beyond a reasonable doubt. Id. The identity of a perpetrator must be proved by the State beyond a reasonable doubt. State v. Flynn, 9th Dist. No. 06CA0096-M, 2007-Ohio-6210, 12. As with any other element, identity may be proved by direct or circumstantial evidence, which do not differ with respect to probative value. State v. Gibson, 9th Dist. No. 23881, 2008-Ohio-410, ¶ 8.

{¶11} According to witnesses, the robber wore a long-sleeved black shirt and a long wig. Police recovered the wig just outside the bank. Officer Jason Belacic testified that he pursued the robber on foot until he fled in an SUV driven by another man. When police traced the license plate number of that vehicle, they found that it had been rented by Boone's girlfriend for use by members of Boone's family. They recovered a shirt that matched the description of the one worn by the robber near where the SUV was later found. According to Stacey Violi, a ...


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