Court of Appeals of Ohio, Eighth District, Cuyahoga
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 &
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Jonathan M. McDonald Assistant County
BEFORE: Kilbane, J., Keough, A.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, J.
Defendant-appellant, Dusean Lewis ("Lewis"),
appeals his sentence from his guilty plea in two separate
cases. For the reasons set forth below, we affirm.
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.
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.
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.
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").
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.
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
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
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
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