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State v. Parker

Court of Appeals of Ohio, Eighth District

July 3, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
CEDRIC PARKER, DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-554064.

ATTORNEYS FOR APPELLANT Robert L. Tobik Chief Public Defender By: Cullen Sweeney Assistant Public Defender.

APPELLANT Cedric Parker No. 623-848.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Brian R. Radigan Christopher D. Schroeder Assistant Prosecuting Attorneys .

BEFORE: Keough, J., Jones, P.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, J.

{¶ 1} Defendant-appellant, Cedric Parker, appeals his sentence. For the reasons that follow, we reverse Parker's sentence and remand to the trial court (1) to correct the plea journal entry to reflect that Parker pled guilty to the three-year firearm specification attendant to Count 8; (2) to correct the sentencing journal entry to reflect that Parker pled guilty to the three-year firearm specification on Count 8, but that the State dismissed the specification at sentencing; thus, no firearm specification sentence should have been imposed on Count 8; (3) for resentencing with consideration that it is not mandatory that the seven-year firearm specification run consecutive to the three-year firearm specification; and (4) for consideration on the record the required findings under R.C. 2929.14(C)(4) on whether consecutive sentences should be imposed.

{¶2} In June 2011, the grand jury issued a 14-count indictment against Parker arising from a robbery and police shoot-out. Counts 1 through 5 charged Parker with aggravated robbery, each containing one- and three-year firearm specifications. Under Counts 6 and 7, Parker was charged with felonious assault of a peace officer, each count contained one-, three-, and seven-year firearm specifications. Counts 8 through 13 charged Parker with kidnapping, each containing one- and three-year firearm specifications. Count 14 charged Parker with disrupting public services, containing one-and three-year firearm specifications.

{¶3} Pursuant to a plea agreement, Parker agreed to plead guilty to amended Counts 1 and 2 aggravated robbery in violation of R.C. 2911.01(A)(1), Count 6, as amended, to felonious assault of a peace officer, in violation of R.C. 2903.11(A)(2), and Count 8, as amended, to kidnapping in violation of R.C. 2905.01(A)(2). Parker also agreed to plead guilty to the attendant three-year firearm specifications on all four counts, [1] and the seven-year firearm specification included with Count 6. All other counts and specifications were dismissed.

{¶ 4} During the plea hearing, a discussion occurred between the trial court and the parties about whether the seven-year firearm specification attendant to Count 6 was required to run consecutive to the three-year firearm specifications attendant to Counts 1, 2, and 8. The trial court stated that while the three- and seven-year specifications under Count 6 merged for sentencing, it was the court's position that the three-year specifications under Counts 1, 2, and 8 would not merge into that seven-year specification under Count 6, but that the two specifications were to be served consecutively. Accordingly, the court believed it was statutorily required that he order the firearm specifications consecutively. The trial judge stated: "Counts 1, 2, and 8 all related back to the original robbery, thus merge into one three-year firearm specification. But Count 6, the seven-year would be consecutive to the three years on Counts 1, 2, and 8."

{¶ 5} At sentencing, the court found that Counts 1 and 2, aggravated robbery, merged and the State elected to proceed to sentencing on Count 1, with the three-year firearm specification. The trial court also merged the three- and seven-year specifications in Count 6 for a single seven-year specification. The State voluntarily dismissed the three-year specification under Count 8.[2]

{¶ 6} The trial court sentenced Parker to four years under Count 1 consecutive to the three-year firearm specification, and six years on Count 8 to be served concurrently with the four year base sentence under Count 1, for a total of nine years. Additionally, the court imposed an eight year sentence on Count 6, consecutive to the mandatory seven-year firearm specification and also consecutive to the three-year firearm specification under Count 1. Parker's total prison sentence was 24 years.

{¶7} Parker appeals, with two appellate briefs before us for review. His appointed appellate counsel filed a brief setting forth one assignment of error, and Parker filed a brief setting forth three pro se supplemental assignments of error.

{¶ 8} In the sole assignment of error filed by counsel, Parker contends that the trial court erred when it found it was mandatory to run the seven-year gun specification under Count 6 consecutively with the three-year gun specification for Counts 1 when R.C. 2929.14(B)(1)(f) requires only that the seven-year gun specification be served consecutively and prior to the underlying offense. The State concedes the error and we agree.

{¶ 9} Parker pled guilty to two counts of aggravated robbery and the attendant three-year firearm specifications, pursuant to R.C. 2929.145. Under 2929.14(B)(l)(a)(ii), a court must impose a three-year prison term upon an offender who is convicted of a felony and an attendant firearm specification under R.C. 2929.145. Additionally, the mandatory three-year firearm specification must be served consecutively and prior to any prison term imposed for the underlying felony. R.C. 2929.14(C)(1)(a).

{¶ 10} Parker also pled guilty to one count of felonious assault of a police officer in violation of R.C. 2903.11(A)(2), and the corresponding three- and seven-year firearm specifications pursuant to R.C. 2929.145 and R.C. 2929.1412 respectively. According to 2929.14(B)(1)(f), if the offender pleads to a specification under R.C. 2941.1412, the sentencing court is required to impose a mandatory seven-year prison term, which shall run consecutively to the sentence imposed for the underlying felony offense. See also R.C. 2929.14(C)(1)(c). Moreover, if the court imposes the seven-year specification relative to this offense, the court cannot impose a "prison term under division (B)(1)(a) or (c) of this section relative to the same offense." Therefore, the trial court was required to merge the three-year and ...


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