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State v. Parker

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 15, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RAMADII PARKER DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-06-479730-A and CR-06-481212-A

          ATTORNEY FOR APPELLANT Christopher M. Kelley

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Janna R. Steinruck Assistant County Prosecutor

          BEFORE: McCormack, P.J., Boyle, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE.

         {¶1} Defendant-appellant Ramadii Parker appeals the imposition of consecutive sentences under R.C. 2921.331(D). For the reasons that follow, we reverse and remand for resentencing.

         Procedural and Substantive History

         {¶2} This case is a consolidated appeal involving two separate criminal cases: Cuyahoga C.P. Nos. CR-06-479730-A and CR-06-481212-A.

         {¶3} Case No. CR-06-479730-A stems from an incident that occurred on January 30, 2006. Police observed a hand-to-hand transaction between an unidentified man standing on a street corner and Parker, who was seated inside a truck. When officers, on foot and in a police vehicle, approached the men, Parker drove towards the officers at a high rate of speed in an attempt to flee the scene. Officers in a police vehicle began an unsuccessful pursuit of Parker that was ultimately terminated at East 125th and Carlyon.

         {¶4} On April 18, 2006, a grand jury indicted Parker with a two-count indictment in CR-06-479730-A: Count 1, failure to comply with order or signal of police, in violation of R.C. 2921.331 with a furthermore clause, a felony of the third degree; and Count 2, felonious assault, in violation of R.C. 2903.11(A)(1) with a furthermore clause, a felony of the second degree.

         {¶5} On May 8, 2006, Parker entered a plea of not guilty on both counts.

         {¶6} Case No. CR-06-481212-A stems from an incident that occurred on May 16, 2006. Cleveland police stopped Parker for not having a rear-view mirror. Upon a search of his vehicle, police discovered 38 grams of cocaine and arrested Parker.

         {¶7} On May 26, 2006, a grand jury indicted Parker with a three-count indictment in CR-06-481212-A: Count 1, possession of drugs, in violation of R.C. 2925.11, a felony of the third degree; Count 2, drug trafficking, in violation of R.C. 2925.03, a felony of the first degree; and Count 3, possessing criminal tools, in violation of R.C. 2923.24, a felony of the fifth degree.

         {¶8} On June 12, 2006, Parker entered a plea of not guilty to all three counts in the indictment.

         {¶9} Parker's trial in CR-06-479730-A was set for June 26, 2006. Trial was reset by the court once and continued at Parker's request once. On August 3, 2006, Parker appeared in court and waived his right to a speedy trial. At the state's request, trial was continued to August 16, 2006. Parker failed to appear for trial on August 16, and a capias was issued.

         {¶10} Parker was arrested on September 7, 2016.

         {¶11} On November 3, 2016, Parker appeared with counsel before the trial court and entered a change of plea in both cases.

         {¶12} In CR-06-479730-A, Parker withdrew his not guilty plea and entered a guilty plea to: Count 1, failure to comply with order or signal of police, in violation of R.C. 2921.331; and an amended Count 2, attempted felonious assault, in violation of R.C. 2903.02/2903.11(A)(1), a felony of the third degree.

         {¶13} In CR-06-481212-A, Parker withdrew his not guilty plea and entered a plea of guilty to an amended Count 2, drug trafficking, in violation of R.C. 2925.03(A)(2), a felony of the second degree, with forfeiture specifications pursuant to R.C. 2941.1417(A).

         {¶14} After engaging Parker in a plea colloquy, the trial court accepted his guilty pleas.

         {¶15} On November 30, 2016, the trial court held a sentencing hearing and heard from Parker, Parker's counsel, and the prosecutor. At sentencing, the court initially stated it was sentencing Parker to a mandatory two-year prison term and a mandatory fine of $7, 500 in CR-06-481212-A for drug trafficking. It then stated that the state satisfied the requirements of R.C. 2921.331(B), that the defendant's conduct in his failure to comply was more serious than conduct normally constituting that offense, and that it was sentencing Parker to one year for failure to comply, along with a life suspension of his driver's license. The license suspension was statutorily mandated in R.C. 2921.331(E) because this was Parker's second conviction for failure to comply. Finally, the trial court stated that it was sentencing Parker to nine months in prison for amended Count 2, attempted felonious assault, to run consecutive to the one year for failure to comply.

         {¶16} The trial court explained this consecutive sentence by pointing to the requirements of R.C. 2921.331(D). The total sentence based on the foregoing was 21 months. The trial court stated that it was electing to have the sentences for CR-06-479730-A and CR-06-481212-A run concurrently, telling Parker, "this is your break that I'm giving you."

         {¶17} After announcing this sentence, the trial court asked if there were any objections to the sentence, specifically with respect to running the sentences from each case concurrently.

         {¶18} The state responded that the plain language of R.C. 2921.331(D) requires any prison sentence for failure to comply be served consecutively to any other prison term or mandatory prison term imposed. Therefore, according to the state, Parker would be required to serve the sentences for each case consecutively.

         {¶19} Parker's counsel responded that R.C. 2921.331(D) was silent as to whether a prison term for failure to comply must be served consecutive to a prison term in a separate case. Therefore, according to Parker's trial counsel, the trial court had the statutory authority and discretion to run the two-year mandatory sentence in CR-06-481212-A concurrent with his nine-month sentence for attempted felonious assault in CR-06-479730-A, provided that his one-year sentence for failure to comply was ordered to be served consecutively.

         {¶20} Ultimately, the trial court was persuaded by the state's interpretation of R.C. 2921.331(D) and, in "an abundance of caution, " ordered that Parker's sentence on all three charges be served ...


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