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State v. Brown

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 29, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DASHAWN BROWN, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-622655-A and CR-17-623952-B

         JUDGMENT: REVERSED, VACATED, AND REMANDED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jennifer Meyer, Assistant Prosecuting Attorney, for appellee.

          Nee Law Firm, L.L.C., Matthew M. Nee, and Leigh S. Prugh, for appellant.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE

         {¶ 1} Defendant-appellant, Dashawn Brown, appeals from his convictions and sentence following a guilty plea. He raises the following assignments of error for review:

1. The trial court erred in accepting Brown's plea because it was not made knowingly, intelligently, and voluntarily.
2. The trial court erred in failing to merge Brown's convictions for carrying a concealed weapon with his convictions for improperly handling a firearm in a motor vehicle.
3. The trial court erred in not making the required findings to impose consecutive sentences.

         {¶ 2} After careful review of the record and relevant case law, we reverse and vacate Brown's convictions and remand for proceedings consistent with this opinion.

         I. Procedural and Factual History

         {¶ 3} In November 2017, Brown was named in a four-count indictment in Cuyahoga C.P. No. CR-17-622655-A. The indictment charged him with receiving stolen property in violation of R.C. 2913.51(A), with a one-year firearm specification and a forfeiture specification; carrying a concealed weapon in violation of R.C. 2923.12(A)(2), with a forfeiture specification; improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), with a forfeiture specification; and receiving stolen property in violation of RC. 2913.51(A), with a forfeiture specification.

         {¶ 4} In December 2017, Brown was indicted by information in Cuyahoga C.P. No. CR-17-623952-B. Brown was charged with two counts of carrying a concealed weapon in violation of RC. 2923.12(A), with forfeiture specifications; and a single count of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), with forfeiture specifications.

         {¶ 5} In January 2018, Brown was named in a multiple-count indictment in Cuyahoga C.P. No. CR-18-624694-B.[1] The indictment charged him with aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year firearm specifications; robbery in violation of R.C. 2911.02(A)(1), with one- and three-year firearm specifications; kidnapping in violation of R.C. 2905.01(A)(2), with one- and three-year firearm specifications; aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year firearm specifications; robbery in violation of RC. 2911.02(A)(1), with one- and three-year firearm specifications; kidnapping in violation of RC. 2905.01(A)(2), with one- and three-year firearm specifications; theft in violation of R.C. 2913.02(A)(1); and vandalism in violation of R.C. 2909.05(B)(1)(b).

         {¶ 6} At a consolidated hearing held in August 2018, Brown expressed that he wished to withdraw his previously entered pleas of not guilty and accept a plea agreement with the state. The state then set forth the terms of the proposed plea agreement, expressing that "all three of these plea deals are packaged."

         {¶ 7} In C.P. No. CR-17-622655-A, Brown pleaded guilty to receiving stolen property in violation of R.C. 2913.51(A), with a one-year firearm specification and a forfeiture specification; carrying a concealed weapon in violation of R.C. 2923.12(A)(2), with a forfeiture specification; improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), with a forfeiture specification; and receiving stolen property in violation of R.C. 2913.51(A), with a forfeiture specification.

         {¶ 8} In C.P. No. CR-17-623952-B, Brown pleaded guilty to carrying a concealed weapon in violation of R.C. 2923.12(A), with forfeiture specifications and improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), with forfeiture specifications. The remaining count was nolled.

         {¶ 9} In C.P. No. CR-18-624694-B, Brown pleaded guilty to theft in violation of RC. 2913.02(A)(1), as charged in Count 7 of the indictment. The remaining offenses were nolled.

         {¶ 10} Following a Crim.R. 11 colloquy, the trial court accepted Brown's guilty pleas in each case and referred him to the county probation department for a presentence-investigation report. A consolidated sentencing hearing was held in September 2018.

         {¶ 11} In C.P. No. CR-17-622655-A, Brown was sentenced to 18 months in prison for the receiving stolen property offense charged in Count 1, to run consecutively with the one-year firearm specification. Brown was also sentenced to 18 months in prison for the carrying a concealed weapon offense, 18 months in prison for the improperly handling firearms in a motor vehicle offense, and 180 days in jail on the remaining receiving stolen property offense. The 18-month prison term imposed on Count 1, and its accompanying one-year firearm specification, were ordered to be served consecutively to the 18-month prison term imposed on the carrying a concealed weapon offense. The sentences imposed on the remaining offenses were ordered to be served concurrently, for a prison term of four years.

         {¶ 12} In C.P. No. CR-17-623952-B, Brown was sentenced to 18 months in prison on each offense, to be served consecutively, for a prison term of 36 months. In addition, the 36-month prison term imposed in C.P. No. CR-17-623952-B was ordered to be served consecutively with the four-year prison term imposed in C.P. No. CR-17-622655-A, for an aggregate sentence of seven years.

         {¶ 13} In C.P. No. CR-18-624694-B, Brown was sentenced to 180 days in jail, to run concurrently with the sentences imposed ...


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