State v. Beard
| Decision Date | 22 July 2021 |
| Docket Number | No. 109630,109630 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Demetrius BEARD, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Caroline Nelson, Assistant Prosecuting Attorney, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, Cleveland, for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant, Demetrius Beard ("Beard"), appeals his sentence and claims the following errors:
{¶ 2} We find some merit to the appeal, affirm the trial court's judgment in part, reverse it in part, and remand the case to the trial court to advise Beard of the presumption of enrollment in the violent offender database ("VOD") under R.C. 2903.42(A)(1) and of his right to rebut that presumption.
{¶ 3} In Cuyahoga C.P. No. CR-19-637588-C, Beard was charged with one count of aggravated robbery in violation of R.C. 2911.01(A)(1), one count of aggravated burglary in violation of R.C. 2911.11(A)(2), one count of kidnapping in violation of R.C. 2905.01(A)(2), one count of receiving stolen property in violation of R.C. 2913.51(A), one count of having weapons while under disability in violation of R.C. 2923.12(A)(2), and one count of petty theft, in violation of R.C. 2913.02(A)(1). The aggravated robbery, aggravated burglary, and kidnapping charges included one- and three-year firearm and forfeiture specifications.
{¶ 4} The indictment alleged that Beard, together with codefendants Garland V. Taylor, Anthony Hicks-Stevens, and Corraune D. Paige, entered a convenience store on Noble Road in East Cleveland and committed, or attempted to commit, a theft offense. All the defendants were wearing masks and carrying firearms. Count 3 of the indictment further alleged that the defendants removed or restrained the liberty of the victim/storekeeper for the purpose of committing the aggravated robbery and aggravated burglary in the store.
{¶ 5} Beard pleaded guilty to one count of robbery, one count of burglary, and one count of kidnapping. The one-year firearm specification attendant to the aggravated robbery charge was deleted from the robbery charge in Count 1, and the one- and three-year firearm specifications were deleted from the burglary charge in Count 2. The kidnapping charge alleged in Count 3 was amended to include a notation that the victim was released to a safe place unharmed. The parties agreed that amended Counts 1 and 2 were allied offenses that should be merged for sentencing, but there was no agreement as to whether the kidnapping charge merged with the other two offenses. (Tr. 30.) Beard also agreed to forfeit certain property, including weapons. (Tr. 10, 22-23.) The remaining counts were nolled.
{¶ 6} Prior to sentencing, while Beard was out on bond, Beard's trial counsel filed a motion to withdraw, which was granted. Beard was later stopped in his vehicle and arrested pursuant to a capias that was issued after he failed to appear for sentencing in Cuyahoga C.P. No. CR-19-637588-C. Following a search of his vehicle, Beard was charged with two new counts of having weapons while under disability and one count of improper handling of a firearm in a motor vehicle in Cuyahoga C.P. No. CR-19-644312-A. At a hearing on both of Beard's criminal cases, the court notified Beard that because of "the nature of the offense" in C.P. No. CR-19-637588-C, he will have to register as a violent offender after his release from prison. (Tr. 41.) Thereafter, Beard pleaded guilty to one count of having weapons while under disability and one count of improper handling of a firearm in a motor vehicle as alleged in Counts 1 and 3 of the indictment in C.P. No. CR-19-644312-A.
{¶ 7} In C.P. No. CR-19-637588-C, the trial court sentenced Beard to four years on the amended robbery charge alleged in Count 1, plus three years on the attendant gun specification for a total of seven years on Count 1. The court sentenced Beard to four years on the burglary charge alleged in Count 2, and four years on the kidnapping charge alleged in Count 3, to be served concurrently with each other and with the prison term on Count 1, for an aggregate seven-year prison term.
{¶ 8} In C.P. No. CR-19-644312-A the court sentenced Beard to one year in prison on his having weapons while under disability conviction and one year in prison on the improper handling of a firearm in a motor vehicle conviction to be served concurrently with each other and with the aggregate sentence imposed in C.P. No. CR-19-637588-C. This appeal followed.
{¶ 9} In the first assignment of error, Beard argues the trial court committed plain error by failing to merge his robbery, burglary, and kidnapping convictions in C.P. No. CR-19-637588-C.
{¶ 10} Beard's trial counsel failed to object to the trial court's failure to merge these offenses and, therefore, forfeited all but plain error. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21 (). In the fourth assignment of error, Beard argues his trial counsel was constitutionally ineffective because he failed to argue that Beard's kidnapping conviction should merge with his other convictions. We discuss Beard's first and fourth assignments of error together because they are closely related.
{¶ 11} Under Crim.R. 52(B), "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In a plain-error analysis, the appellant bears the burden on demonstrating that, but for the error, the outcome of the proceeding would clearly have been different. State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.
{¶ 12} To establish ineffective assistance of counsel, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonable representation and that he or she was prejudiced by that deficient performance. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.
{¶ 13} The state and Beard agreed as part of their plea agreement that Beard's burglary and robbery convictions were allied offenses that would merge at sentencing. (Tr. 30.) After accepting Beard's guilty pleas, the court asked on the record: "Counsel have agreed that Counts 1 and 2 will merge for sentencing purposes, correct, [Defense Counsel]?" Counsel replied, "Yes, ma'am." (Tr. 30.) The trial court never indicated an intent to deviate from the parties’ agreement or warned Beard that it was not bound to follow the terms of the parties’ plea agreement before accepting his guilty pleas. Yet, the court failed to merge these convictions. The state now asserts the offenses are not allied and that, in any case, Beard was not prejudiced by the failure to merge the convictions because the court ordered them to be served concurrently.
{¶ 14} However, in State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, the Ohio Supreme Court explained that "even when the sentences are to be served concurrently, a defendant is prejudiced by having more convictions than are authorized by law." Id. at ¶ 31. Moreover, the Underwood court found plain error where the parties agreed to the merger of offenses, and the court separately sentenced the defendant to concurrent prison terms for each conviction. Id. at ¶ 31-32. Therefore, the trial court erred in failing to merge the robbery and burglary convictions in Counts 1 and 2.
{¶ 15} The parties’ plea agreement is silent as to whether Beard's kidnapping convictions should have merged with his burglary and robbery convictions. "When the plea agreement is silent on the issue of allied offenses of similar import * * *, the trial court is obligated under R.C. 2941.25 to determine whether the offenses are allied, and if they are, to convict the defendant of only one offense." Id. at ¶ 29. We must, therefore, determine whether Beard's kidnapping conviction is allied with his other convictions.
{¶ 17} Beard argues his...
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