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State v. Lewis

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DUSEAN E. LEWIS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-601865-A and CR-15-603548-A

          ATTORNEY FOR APPELLANT Kevin P. Shannon Kehoe & Associates, L.L.C.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Jonathan M. McDonald Assistant County Prosecutor.

          BEFORE: Kilbane, J., Keough, A.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, J.

         {¶1} Defendant-appellant, Dusean Lewis ("Lewis"), appeals his sentence from his guilty plea in two separate cases. For the reasons set forth below, we affirm.

         {¶2} Between September and December 2015, Lewis robbed a bank, a pizza shop, a fast-food restaurant, and a bakery located near the East 81st Street-Harvard Road area in Cleveland. Lewis was eventually charged in two cases stemming from these robberies. In December 2015, Lewis was charged in a six-count indictment in Cuyahoga C.P. No. CR-15-601865-A (bakery). Count 1 charged him with aggravated robbery and carried one- and three-year firearm specifications. Count 2 charged him with robbery and carried one- and three-year firearm specifications. Count 3 charged him with kidnapping and carried one- and three-year firearm specifications. Count 4 charged him with having a weapon while under disability. Count 5 charged him with carrying a concealed weapon. Count 6 charged him with petty theft.

         {¶3} In March 2016, while Lewis's other case was pending, Lewis was charged in a 16-count indictment in Cuyahoga C.P. No. CR-16-603548-A (bank, pizza shop, and fast-food restaurant). Counts 1 and 3 charged him with robbery. Counts 2, 4, 7, 10, and 11 charged him with kidnapping. Counts 5, 8, and 12 charged him with theft. Counts 6, 9, 14, 15, and 16 charged him with aggravated robbery. Count 13 charged him with having a weapon while under disability.[1]

         {¶4} In April 2016, Lewis entered into a plea agreement with the state in both cases in which he pled guilty to seven of the indicted charges. In Case No. CR-15-601865-A, Lewis pled guilty to an amended count of aggravated robbery (relating to the bakery incident), with a one-year firearm specification, and to having a weapon while under disability. The remaining counts and specifications were nolled. As part of the agreement, Lewis agreed to: 1) no contact with the bakery; 2) pay restitution; and 3) a package deal with Case No. CR-16-603548-A.

         {¶5} In Case No. CR-16-603548-A, Lewis pled guilty to one count of robbery (relating to the bank incident), an amended count of aggravated robbery, with a one-year firearm specification (relating to the pizza shop incident), two amended counts of aggravated robbery, with a one-year firearm specification (relating to the fast-food restaurant incident), and one count of having a weapon while under disability. The remaining counts and specifications were nolled. As part of his plea in this case, Lewis agreed to the following conditions: 1) no contact with the victims; 2) to pay restitution; 3) to add the victim's name in Count 6; and 4) a package deal with Case No. CR-15-601865-A. After accepting Lewis's guilty pleas, the trial court referred Lewis to the county probation department for a presentence investigation report ("PSI").

         {¶6} In May 2016, the trial court held a sentencing hearing. In Case No. CR-15-601865-A, the court sentenced him to eight years on the aggravated robbery charge (one-year firearm specification to be served prior to seven years on the underlying charge) and thirty-six months on the having a weapon while under disability charge, to be served concurrently to the aggravated robbery charge, for a total sentence of eight years. In Case No. CR-16-603548-A, the trial court sentenced Lewis to seven years on the robbery charge involving the bank, four years on the pizza shop aggravated robbery charge (one-year firearm specification to be served consecutively to three years on the underlying charge), four years each on both of the fast-food aggravated robbery charges (one-year firearm specification to be served consecutively to three years on the underlying charge), and thirty-six months on the having a weapon while under a disability charge. The court ordered that the sentences for the robbery and each aggravated robbery charge in Case No. CR-16-603548-A be served consecutively to each other and concurrently to the having a weapon while under disability charge for a total sentence of nineteen years. The court further ordered that the sentences in each case be served consecutively to each other for a total aggregate sentence of twenty-seven years in prison.

         {¶7} It is from this order that Lewis now appeals, raising the following three assignments of error for review.

Assignment of Error One
The trial court erred by failing to merge the two aggravated robbery counts related to the robbery at [the fast-food restaurant], as they were allied offenses of similar import.
Assignment of Error Two
The court erred in imposing consecutive sentences upon [Lewis] when those sentences were not supported by the record and not consistent with sentences imposed on for similar crimes by similar offenders.
Assignment of Error Three
[Lewis's] trial counsel was ineffective for failing to address the mental health issues raised in the [PSI] prior to sentencing.

         Merger

         {¶8} In the first assignment of error, Lewis argues that the trial court erred when it failed to merge the two aggravated robbery counts involving the incident at the fast-food restaurant.

         {¶9} Initially, we recognize the Ohio Supreme Court has found that "[a]n accused's failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice." State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. The court further explained that

an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; and, absent that showing, the accused cannot demonstrate that the trial court's failure to inquire ...

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