Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-615013-A
ATTORNEY FOR APPELLANT Paul A. Mancino, Jr. Mancino, Mancino
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Scott C. Zarzycki Daniel T. Van
BEFORE: McCormack, P.J., Boyle, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION
McCORMACK, PRESIDING JUDGE
Defendant-appellant Elijah Elem ("Elem") appeals
his conviction and sentence, arguing that his offenses should
have been merged for sentencing, he did not receive effective
assistance of counsel, the imposition of consecutive
sentences violated his Sixth Amendment rights, and his plea
was not knowingly, intelligently, or voluntarily entered. For
the reasons that follow, we affirm his conviction and
and Substantive History
This case originated in juvenile court and stems from events
that occurred on November 15, 2016. Our understanding of the
facts that form the basis of this case is limited to the
allegations in the indictment and the brief discussion of the
facts that took place on the record at sentencing. Elem, who
was 17 years old at the time, went over to the victim's
house with two friends to smoke marijuana. While at the
victim's house, Elem and the two others decided to rob
the victim of his money and cell phone. At some point, Elem
shot the victim at close range. According to the state, the
gunshots were fired after the victim was robbed. Elem and one
of the other men were apprehended fleeing the scene.
The juvenile court held an amenability hearing on February
22, 2017. The juvenile judge considered the relevant factors
in favor of and against transfer pursuant to R.C. 2152.12(D)
and (E) and ordered the case to be transferred to the General
Division of the Cuyahoga County Common Pleas Court.
Elem was subsequently indicted on one count of attempted
murder, a felony in the first degree, in violation of R.C.
2923.02(A); two counts of aggravated robbery, a felony in the
first degree, in violation of R.C. 2911.01(A)(1) and
2911.01(A)(3); two counts of robbery, a felony in the second
degree, in violation of R.C. 2911.02(A)(1) and 2911.02(A)(2);
one count of robbery, a felony in the third degree, in
violation of R.C. 2911.02(A)(3); two counts of felonious
assault, a felony in the second degree, in violation of R.C.
2903.11(A)(1) and 2903.11(A)(2); and one count of kidnaping,
a felony in the first degree, in violation of R.C.
Elem pleaded guilty to attempted murder with one- and
three-year firearm specifications and to aggravated robbery.
The other charges in the indictment were dismissed.
At sentencing, the trial court sentenced Elem to three years
on the firearm specifications, which had merged for
sentencing, eight years on the attempted murder charge, and
six years on the aggravated robbery charge. The sentences
were ordered to be served consecutively, for a total of 17
Elem now appeals, presenting four assignments of error for
and Analysis Merger
In his first assignment of error, Elem argues that he was
subjected to multiple punishments, in violation of the Double
Jeopardy Clause of the U.S. Constitution and R.C. 2941.25,
when no effort was made by his counsel to request merger of
the offenses. To the extent that arguments from this
assignment of error are incorporated in the second assignment
of error, we will address them in our discussion of
ineffective assistance of counsel.
Elem asserts that the attempted murder and aggravated robbery
counts should have been merged for sentencing, pursuant to
R.C. 2941.25, because the offenses were committed on the same
day and involved the same victim and allegedly the same
criminal act. Elem's trial counsel did not bring up the
issue of merger at sentencing, and the court did not conduct
any corresponding analysis on the record. Most of Elem's
argument here, echoed in his second assignment of error,
seems to center on the fact that his trial counsel made no
effort to request merger. However, Elem also argues that he
was "at least entitled to a hearing" on this issue.
Therefore, in analyzing this assignment of error, we must
first determine whether the trial court committed plain error
by not holding a hearing as to whether the two counts were
allied offenses of similar import.
R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results
in two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the
indictment or information may contain counts for ...