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State v. Norman

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MALIK M. NORMAN DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601029-C

          ATTORNEYS FOR APPELLANT Matthew M. Nee Leigh S. Prugh

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Anna M. Faraglia Mary McGrath Anthony Thomas Miranda Assistant Prosecuting Attorneys

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

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Defendant-appellant, Malik Norman, (hereafter "Norman"), appeals his sentence and denial of his motion to withdraw his guilty plea. Norman argues that the trial court erred by failing to consider R.C. 2929.11 and 2929.12 and thus his prison sentence was contrary to law. Norman also argues that the trial court erred in denying his motion to withdraw his guilty plea pursuant to Crim.R. 32.1. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} Norman and three codefendants were indicted for aggravated murder, murder, felonious assault, and weapons charges all with multiple firearm specifications stemming from a drive-by shooting that resulted in the death of a five-year-old child who was playing outside with other children in an apartment courtyard. Norman and three other codefendants, Marlon Hackett, Jr. (hereafter "Hackett"), Richard Fields (hereafter "Fields"), and Demetric Croskey (hereafter "Croskey"), were riding in a vehicle owned by Norman and driven by Hackett. While these individuals were driving around, they encountered some other individuals; one of these individuals was Dontavius Williams (hereafter "Williams") with whom Hackett had prior problems. When these individuals encountered Williams, Norman pulled out a firearm and attempted to shoot at Williams, but Norman's firearm jammed and it did not discharge. Realizing Norman's gun jammed, Hackett pulled out his own firearm and began shooting at Williams. Williams, also in possession of a firearm, fired shots at the vehicle. As a result of these shootings, the young child was struck in the chest by a single bullet and died. Ballistic analysis later determined that the bullet that struck and killed the young child came from the firearm used by Hackett. Norman, Hackett, the two occupants of Norman's vehicle, Fields and Croskey, and Williams were all charged in connection with the killing of the young child.

         {¶3} On June 20, 2016, Norman pled guilty to an amended indictment of one count of involuntary manslaughter, in violation of R.C. 2903.04(A), a first-degree felony, with a three-year firearm specification. All remaining counts were nolled, including the murder charges, as part of the plea agreement with the state. A presentence investigation report was ordered by the trial court. Thereafter, on August 29, 2016, the trial court sentenced Norman to an aggregate 14-year prison term. Norman filed his notice of appeal on December 1, 2016.

         {¶4} On July 17, 2017, months after filing his notice of appeal, Norman filed a motion in the trial court to withdraw his guilty plea pursuant to Crim.R. 32.1 and a motion for this court to remand the matter to the trial court to address the motion. This court granted Norman's motion to remand for the sole purpose of ruling on his motion. Thereafter, on September 20, 2017, the trial court denied Norman's motion to withdraw his guilty plea without a hearing. Both Norman and the state thereafter filed their briefs to this court.

         {¶5} Norman filed the instant appeal, assigning two errors for review:

I. The [t]rial [c]ourt erred by failing to consider felony sentencing principles in R.C. 2929.11 and 2929.12 and, therefore, Malik Norman's sentence is contrary to law under R.C. 2953.08(G)(2).
II. The [t]rial [c]ourt erred in denying Malik Norman's motion to withdraw his guilty plea under Crim.R. 32.1.

         II. Law and Analysis

         A. Felony Sentencing Purposes and Principles

         {¶6} In his first assignment of error, Norman argues that the trial court did not consider the purposes and principles of the felony sentencing guidelines pursuant to R.C. 2929.11 and 2929.12, and thus, his sentence is contrary to law under R.C. 2953.08(G)(2). The limitations of an appellate court's review of a trial court's imposition of felony sentences is set forth in R.C. 2953.08. An appellate court may modify a sentence only if the court "clearly and convincingly finds * * * [t]hat the sentence is otherwise contrary to law." R.C. 2953.08(G)(2). A sentence is not clearly and convincingly contrary to law "where the trial court considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies post-release control, and sentences a defendant within the permissible statutory range." State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.

         {¶7} In the instant matter, Norman argues that the trial court failed to consider the purposes and principles of sentencing under R.C. 2929.11 in imposing a maximum sentence.

         {¶8} R.C. 2929.11 directs a court to consider the "overriding" purposes of felony sentencing, which consist of: (1) "protection of] the public from future crime by the offender or others," and (2) "punish[ing] the offender." R.C. 2929.11(A). The sentencing court is to accomplish these purposes using "minimum sanctions" and without placing any "unnecessary burden on state or local government resources." Id. To achieve these purposes, a court must also consider the need for incapacitation, deterrence, rehabilitation, and restitution. Id. An appropriate sentence is thus one "reasonably calculated" to achieve the overriding purposes of felony sentencing and is "commensurate with," while "not demeaning the seriousness" of, the conduct and its impact. R.C. 2929.11(B).

         {¶9} Pursuant to R.C. 2929.12, the trial court has discretion to "determine the most effective way to comply with the purposes and principles of sentencing." R.C. 2929.12(A). The trial court must consider applicable factors from divisions (B) and (C) relating to the "seriousness of the conduct," and divisions (D) and (E) relating to recidivism. Id. The statute also permits the trial court to consider "any other factors that are relevant to achieving those purposes and principles of sentencing." Id.

         {¶10} In our review of the transcript from the sentencing hearing, we find that the trial court considered the factors set forth in R.C. 2929.11. The trial court, prior to imposing Norman's sentence, had previously heard statements from the victim's parents at Hackett's sentencing hearing that was held prior to Norman's sentencing. Further, at Norman's sentencing hearing, an assistant prosecuting attorney reiterated facts relative to the case that the trial court had previously heard at Hackett's sentencing. Defense counsel also provided mitigating circumstances, and the trial court then engaged in a brief conversation with Norman, with Norman admitting his guilt to the trial court. The trial court then added the following:

Our community is plagued by a rash of gun violence carried out mainly by young men with poorly developed frontal lobes armed with firearms. It's hard for any member of our community, including myself, to imagine to put themselves in your shoes, driving around in your car, and just looking for people to shoot up. The presentence investigation indicates that is exactly what you and your co-defendants were doing. Although some co-defendants tried to persuade the two of you to refrain from shooting at other people. It's my understanding your gun jammed that night and that's why your co-defendant brought out his handgun. So I'm going to sentence you to three years on the firearm specification to be served prior to and consecutive with 11 years on the base count for a total sentence of 14 years less credit for time served * * * I have considered the seriousness and ...

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