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State v. Poole

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 26, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MOSES POOLE DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-08-512088-A, CR-09-520203-A, and CR-09-522821-A

          APPELLANT Moses Poole, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Brett Hammond Assistant Prosecuting Attorney

          BEFORE: Keough, A.J., E.T. Gallagher, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

         {¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and LocApp.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.

         {¶2} Defendant-appellant, Moses Poole, appeals his convictions and sentence in three separate cases. For the reasons that follow, we affirm, but remand for further proceedings consistent with this opinion.

         {¶3} In November 2009, Poole entered a plea to the indictments in three different cases. In CR-09-522821, Poole pleaded no contest to two counts of aggravated burglary, and one count each of domestic violence, having weapons while under disability, and disrupting public services. With the exception of the having weapons while under disability count, the remaining counts carried both one- and three-year firearm specifications. Following the merger of the firearm specifications, Poole was sentenced to a total prison term of six years - three years on the firearm specification to be served consecutive and prior to the base sentence of three years for both counts of aggravated burglary; three years on the firearm specification to be served consecutive and prior to the base sentence of one year for domestic violence; and one-year sentences for having weapons while under disability and disrupting public services. The court noted that "all counts merge, " but that the sentence would run concurrent with CR-08-512088, but consecutive to CR-09-520203. The court also imposed five years of postrelease control.

         {¶4} In CR-09-520203, Poole pleaded no contest to two counts of felonious assault, both containing one- and three-year firearm specifications, and one count of having weapons while under disability. Following merger of the firearm specifications, Poole was sentenced to a total prison term of five years - three years on the firearm specifications to be served consecutive and prior to the base sentence of two years for both counts of felonious assault; and one year for having weapons while under disability. The court stated that both counts of felonious assault "merge" and ran concurrent to the weapons under disability charge. Additionally, the court noted that "[i]n Case Number 522821 all counts merge but [are to] run consecutive to CR 520203" but "concurrent to CR 512088, for a total prison sentence of 11 years." The court noted that three years of postrelease control was part of the sentence.

         {¶5} In CR-08-512088, Poole pleaded no contest to two counts of trafficking, both containing schoolyard specifications, and one count of drug possession. The court sentenced Poole to concurrent one-year prison terms for a total sentence of one year. The court noted that three years of postrelease control was part of the sentence.

         {¶6} Poole did not file a direct appeal of his convictions. However, in February 2017, Poole filed a motion to clarify his sentences, contending that the Bureau of Sentence Computation had notified him that his total prison sentence was 19 years. This sentence included a 13-year sentence imposed in CR-09-524446 (which is not subject to this appeal) for involuntary manslaughter - three years on the mandatory firearm specification to be served consecutive and prior to the base sentence of 10 years. The trial court ordered the 10-year base sentence to be served concurrently with the nonmandatory sentences in CR-08-512088, CR-09-520203, and CR-09-522821. In CR-09-520203 and CR-09-522821, Poole was sentenced to serve a mandatory three years on a firearm specification in each case.

         {¶7} Accordingly, the trial court denied Poole's motion to clarify, but indicated that Poole was serving sentences for three mandatory consecutive three-year gun specifications and a base sentence of 10 years for a total of 19 years.

         {¶8} Subsequently, in April 2017, Poole filed a motion to withdraw his plea in all three cases pursuant to Crim.R. 32.1, contending that the trial court failed to merge allied offenses and failed to comply with Crim.R. 11. The trial court summarily denied his motion. Poole now appeals, raising three assignments of error, which will be addressed together where appropriate.

         {¶9} In his first assignment of error, Poole contends that the trial court erred in denying his postsentence motion to withdraw his plea because the sentencing journal entries were void and violated his constitutional rights to due process and protection against double jeopardy. Within this assignment of error, Poole argues that the trial court failed to merge allied offenses of similar import and that the sentencing journal entries fail to inform him of the consequences of violating postrelease control. In ...


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