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State v. Elem

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ELIJAH D. ELEM DEFENDANT-APPELLANT

          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 & 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

          TIM McCORMACK, PRESIDING JUDGE

         {¶1} 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 sentence.

         Procedural and Substantive History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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. 2905.01(A)(2).

         {¶5} 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.

         {¶6} 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 years.

         {¶7} Elem now appeals, presenting four assignments of error for our review.

         Law and Analysis Merger

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 ...

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