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State v. Barker

Court of Appeals of Ohio, Eighth District

September 19, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
SIMMIE BARKER, III DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-565370 and CR-565507

ATTORNEY FOR APPELLANT Joseph Vincent Pagano.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, By: Edward Fadel Assistant Prosecuting Attorney The Justice Center.

BEFORE: Rocco, J., Boyle, P.J., and EA. Gallagher, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, J.

(¶ 1} After entering guilty pleas in two underlying cases to a charge of drug possession, attempted burglary, assault, and abduction, defendant-appellant Simmie Barker, III, appeals from the sentences he received.

(¶ 2} Barker presents three assignments of error. He asserts that his sentences are contrary to law because the trial court failed to make the findings necessary to impose consecutive sentences. He also asserts that the trial court improperly stated that he could not receive credit for time served because those days constituted his sentence for the assault conviction. Finally, he asserts that the sentences imposed violated R.C. 2941.25(A) because his convictions in one case were for allied offenses.

(¶ 3} Following a review of the record, this court concludes that the trial court complied with R.C. 2929.14(C)(4) when imposing consecutive terms and also that his sentences are otherwise in accordance with law. Thus, Barker's assignments of error are overruled, and his sentences are affirmed.

(¶ 4} Barker originally was indicted in case number CR-565370 on one count of drug possession and in case number CR-565507 on one count of burglary, one count of felonious assault, and one count of kidnapping. After several pretrial hearings, the parties notified the trial court that a plea agreement had been reached.

(¶5} As outlined by the prosecutor, in exchange for Barker's guilty pleas, the charges in CR-565507 would be amended to one count of attempted burglary, one count of misdemeanor assault, and one count of abduction. The trial court conducted a careful colloquy with Barker before accepting his guilty pleas. A subsequent discussion with Barker led the trial court to order both a presentence report and a psychological assessment for potential "mitigation"[1] purposes.

(¶ 6} When Barker's cases were called for sentencing, on November 21, 2012, the trial court noted that it had received the presentence report.[2] The record reflects that the prosecutor then showed the trial court a video of the incident that led to Barker's conviction in CR-565507; the video came from a neighbor who had recorded what she observed and posted it on "YouTube."[3] The trial judge invited Barker to view the video with him, and, as they watched, Barker attempted to explain his actions.

(¶7} The trial court then turned to the prosecutor for his comments. The prosecutor argued that none of the offenses Barker committed in CR-565507 were allied offenses pursuant to R.C. 2941.25(A), because each occurred at a separate time.

(¶ 8} After listening to the assault victim, defense counsel, and Barker himself, the trial court reviewed Barker's history of misdemeanor convictions for a "weapons violation, " a theft, and a "drug abuse, " the trial court stated that Barker had committed "separate" offenses and that a consecutive sentence was "appropriate."

(¶ 9} The trial court imposed on Barker prison terms that totaled five years, i.e., one year in CR-565370, to be served consecutively with consecutive terms in CR-565507 of 12 months for attempted burglary and 36 months for abduction. As to the misdemeanor assault conviction in CR-565507, the trial court sentenced Barker to "time served." On this basis, the trial court declared that Barker was ineligible to receive "jail-time" credit.

(¶ 10} Barker appeals from his sentence with three assignments of error.

I. The trial court erred when it sentenced Barker to maximum, consecutive prison terms.

II. The trial court erred by not calculating and awarding Barker jail ...


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