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State v. Norris

Court of Appeals of Ohio, Fifth District, Muskingum

August 2, 2018

STATE OF OHIO Plaintiff-Appellee
CLARENCE NORRIS Defendant-Appellant

          Appeal from the Court of Common Pleas, Case No. CR2016-0042

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney By: GERALD V. ANDERSON II Assistant Prosecuting Attorney.

          For Defendant-Appellant ELIZABETH N. GABA.

          Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.


          Wise, Earle, J.

         {¶ 1} Petitioner- appellant Clarence P. Norris appeals the September 25, 2017 judgment of the Muskingum County Court of Common Pleas which denied his petition for post-conviction relief. Plaintiff-appellee is the state of Ohio.

         Facts and Procedural History

         {¶ 2} On April 26, 2014, appellant, along with several other individuals, invaded a home. They entered with a firearm and a taser gun, and one of them stole a gun from a kitchen drawer inside the house. After kicking in the door, they searched the home and threatened the owner and her two young children. They tased the homeowner and demanded money.

         {¶ 3} Appellant was later indicted on eleven felony counts: one count of aggravated burglary, three counts of aggravated robbery, six counts of kidnapping and one count of theft. All counts except the theft carried firearm specifications. Following negotiations with the state, appellant elected to enter a pleas of guilty. The State agreed to recommend a sentence of ten years incarceration, and appellant agreed to testify against the others involved in the home invasion.

         {¶ 4} At the plea hearing, there was some confusion between the parties as to how appellant would be required to serve the firearm specifications. Before taking appellant's pleas of guilty, however, the trial court determined not only that appellant understood each of the charges against him, but that ten counts of the indictment carried a firearm specification, and that a firearm specification carries a three-year mandatory sentence, to be served consecutively to any other sentence. Additionally, the court determined that appellant understood the court was not bound by the prosecutor's sentencing recommendation. Appellant's signed plea form further recited that appellant understood that any sentencing recommendation did not have to be followed by the court. Counsel for appellant argued that the firearm specifications should merge into a single three-year sentence. The trial court asked counsel to submit his argument in writing. After accepting appellant's pleas of guilty, the trial court ordered a pre-sentence investigation, and set the matter over for sentencing.

         {¶ 5} At sentencing, the issue of the merger of the firearm specifications was further discussed. Counsel for appellant argued that the firearm specifications should merge, and only one three-year mandatory sentence should be served. The State disagreed. The court noted that if they all had to be consecutive, the State could not live up to its plea negotiations. The State then argued that the court must impose two consecutive firearm specifications pursuant to statute, and after that, it was within the court's discretion to impose any additional specifications. When counsel for appellant noted that it did not make a difference if the time served was pursuant to the firearm specifications or the underlying crime, the court stated that it did make a difference, as the firearm specifications were mandatory time as opposed to regular time. The court stated that it wanted to make sure appellant understood this difference. Counsel for appellant informed the court that appellant did understand that the second three years would make a difference as to his eligibility for earned days of credit and some programs he could participate in. The court then clarified once again that two firearm specifications are the minimum, especially when there were three victims.

         {¶ 6} Before imposing sentence, the trial court asked appellant if there was anything he wanted to say in his own behalf, and appellant apologized to his family. The court then merged three of the kidnapping counts into the other three kidnapping counts, and sentenced appellant to ten years incarceration on each of the convictions for aggravated burglary, aggravated robbery, and kidnapping, and eighteen months incarceration on the theft conviction, to be served concurrently. The court sentenced appellant to three-year mandatory terms of incarceration on the firearm specifications accompanying the aggravated burglary charge and one of the kidnapping charges, to be served consecutively, for an aggregate term of sixteen years.

         {¶ 7} Appellant filed an appeal with this court raising four assignments of error challenging the consecutive nature of the firearm specifications, the fact that the trial court did not suspend the plea hearing when it because apparent that the plea negotiations overlooked consecutive imposition of the firearm specifications, and that trial counsel was ineffective in his deficient understanding of sentencing for the specifications, by his failure to object to the trial court's lack of an appropriate colloquy, and by his failure to move to withdraw the plea at sentencing when warned by the court that a ten year sentence was not possible. We affirmed appellant's convictions and sentence. State v. Norris, 5th Dist. Muskingum No. CT2016-0037, 2017-Ohio-1570.

         {¶ 8} On September 7, 2017, appellant filed a timely petition for post-conviction relief. He raised three arguments alleging ineffective assistance of counsel, including an argument that his trial counsel rendered ineffective assistance because he never explored appellant's alleged intellectual deficits/mental retardation. According to appellant, these deficits rendered him incapable of being the "mastermind" of these crimes and of understanding his plea and sentence. In support of this claim, appellant ...

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