State v. Sommerville, 21 CAA 11 0059

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWISE, J.
Citation2022 Ohio 4168
PartiesSTATE OF OHIO Plaintiff-Appellee v. LEVON SOMMERVILLE Defendant-Appellant
Docket Number21 CAA 11 0059
Decision Date22 November 2022

2022-Ohio-4168

STATE OF OHIO Plaintiff-Appellee
v.

LEVON SOMMERVILLE Defendant-Appellant

No. 21 CAA 11 0059

Court of Appeals of Ohio, Fifth District, Delaware

November 22, 2022


CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 21 CR I 03 0157

For Plaintiff-Appellee MELISSA A. SCHIFFEL PROSECUTING ATTORNEY CORY J. GOE ASSISTANT PROSECUTOR

For Defendant-Appellant APRIL F. CAMPBELL CAMPBELL LAW, LLC

JUDGES: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

OPINION

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WISE, J.

{¶1} Appellant Levon Sommerville appeals his conviction on one count of Felonious Assault, with a firearm specification, one count of Inducing Panic, and one count of Having a Weapon While Under Disability, entered in the Delaware County Court of Common Pleas following a bench trial.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} On March 3, 2021, at approximately 12:27 p.m., City of Columbus police officers were dispatched to the area of 1500 Polaris Parkway, in Delaware County, on report of a shooting. (T. at 141 -142). Upon arrival, officers located the crime scene inside and outside of the Carter's retail store. Multiple interviews were conducted and multiple video sources capturing the incident were reviewed. (T. at 322-325).

{¶5} The video footage showed that Appellant Levon Sommerville entered the Carter's store with a young woman later identified as Zebie Jackson. Ms. Jackson's former boyfriend and father of her child, Anthony Truss, and a friend were also shopping inside the Polaris Fashion Place mall, along with the friend's child. At some point, Truss approached Sommerville and Jackson. Truss picked-up his child and showed the baby to some relatives that were with him. Truss then put the baby back in the carriage and the two groups continued to separately browse the same store.

{¶6} After a few minutes, Truss approached Jackson again and attempted to take the carriage with the child inside it. An argument ensued over whether Truss could have custody of the baby that day. From the video surveillance footage provided to the trial

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court, it appears that words were exchanged and the parties both seem to be agitated. Next, Sommerville pulled Jackson behind him and withdrew a firearm from his jacket pocket. The two men continue to verbally jab for about ten seconds before Sommerville pushed Truss. Truss then lunged forward and the pair scuffled. Sommerville withdraws backwards, eventually falling to the ground with the firearm still in hand. While falling backwards, Sommerville is seen pointing the firearm upward in the area of where Truss is standing. Sommerville fired one gunshot. Sommerville then turns his back and slowly walks out of the store. Sommerville is seen on camera footage simply walking away through the main aisle ways of Polaris Fashion Place with his back towards the entrance of the store. A short time later, Truss is seen withdrawing his own firearm and quickly walking through the store with the firearm at his side. Truss exits the store. When Truss sees Sommerville, he shoots at least four times in the direction of Sommerville. This occurred in the main walkway of Polaris Fashion Place where a handful of other shoppers were located. Truss and Sommerville both run in opposite directions and exit the mall.

{¶7} After exiting the mall area, Sommerville tossed his handgun under a vehicle in the South parking lot of the mall. (T. at 187-190). Westerville police assisting on the scene located a handgun in the parking lot. Id. The recovered firearm had a live round in the chamber. Id.

{¶8} Both Sommerville and Truss fled to the state of Georgia and were arrested a month later. (T. at 352-353). Both eventually gave statements, each claiming they were acting in self-defense.

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{¶9} Upon arriving back in Ohio, Sommerville was interviewed at the Delaware County Sheriffs office. (T. at 354). This interview took place on May 3, 2021. During the interview, Sommerville described the incident and stated "[a]nd that when the gun went off, I was handing the gun over to my baby girl." Id. "I wasn't even going to shoot". Id. Appellant also remarked "I remember he hit me first; that's when I shot. When I fell, I leaned back and tried to shoot, but it went off. I ain't really even trying to shoot; it just went off." Id.

{¶10} In his interview, Sommerville admitted that he was the person in the video firing the shot in the Carter's store. He also admitted to hiding the gun underneath the car and fleeing to Georgia. (T. at 359). He admitted to knowledge that he was under a disability prohibiting him from possessing a firearm at the time of the events. Id. He also admitted that Truss did not have his gun out at the time that he took out his weapon. (T at 449). He admitted that Truss did not threaten him prior to the time that he pushed him. (T. at 450). He also admitted that the incident which gave rise to him pulling out his gun was not serious. (T. at 489).

{¶11} In April 2021, Truss and Sommerville were jointly indicted for attempted murder in violation of R.C. §2923.02, a first-degree felony; felonious assault with a deadly weapon in violation of R.C. §2903.11(A)(2), a second-degree felony; and inducing panic in violation of R.C. §2917.31 (A)(3), a third-degree felony. Each count included a firearm-use specification under R.C. §2941.145. Additionally, Sommerville was separately charged with having a weapon while under disability in violation of R.C. §2923.13, a third-degree felony.

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{¶12} Appellant waived his right to a jury trial, and a bench trial commenced on September 14, 2021, and continued for two days.

{¶13} At trial, the court heard testimony from a number of witnesses, including Zebie Jackson and Detective Federer. The court also had before it the surveillance video from the store and the mall and the audio/video of Sommerville's interview with Det. Federer.

{¶14} Appellant claimed he acted in self-defense.

{¶15} At the conclusion of the trial, the court returned a verdict of guilty on the charges of felonious assault with the attached firearm specification, having weapons under disability, and a lesser included offense of inducing panic, a first-degree misdemeanor. The trial court returned a verdict of not guilty on the count of attempted murder.

{¶16} On October 18, 2021, the trial court held a sentencing hearing. The court sentenced Appellant to an indefinite prison term of 8 to 12 years on the felonious assault charge, plus an additional three-year term for the firearm specification and a definite prison term of 24 months on the charge of having a weapon while under disability. The sentences for the felonious assault charge and the having a weapon while under disability charge were ordered to run consecutive to each other and consecutive to the sentence for the firearm specification. The sentence for inducing panic was ordered to run concurrent to the other sentences. The total aggregate term imposed was 13 to 17 years in prison.

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{¶17} Appellant was also sentenced to an additional 500 consecutive days pursuant to R.C. §2929.141 (A)(1) for committing this offense while under post-release control.

{¶18} Appellant now appeals, assigning the following errors for review.

ASSIGNMENTS OF ERROR

{¶19} "I. SOMMERVILLE'S TRIAL COUNSEL WAS INEFFECTIVE WITH RESULTING PREJUDICE, FOR FAILING TO SEEK SUPPRESSION OF SOMMERVILLE'S INTERVIEW UNDER THE SIXTH AMENDMENT, WITH RESULTING PREJUDICE.

{¶20} "II. THE STATE'S EVIDENCE THAT SOMMERVILLE COMMITTED FELONIOUS ASSAULT AND DID NOT ACT IN SELF-DEFENSE OR DEFENSE OF OTHERS WAS LEGALLY INSUFFICIENT, REQUIRING REVERSAL OF SOMMERVILLE'S CONVICTION.

{¶21} "III. SOMMERVILLE'S CONVICTION SHOULD BE REVERSED BECAUSE THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING HIM OF FELONIOUS ASSAULT."

I.

{¶22} In his first assignment of error, Appellant argues that he received ineffective assistance of counsel at trial. We disagree.

{¶23} A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell below an objective standard

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of reasonable representation, and (2) that counsel's errors prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable probability" is "probability sufficient to undermine confidence in the outcome." Strickland at 694. In other words, Appellant must show counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.

{¶24} Appellant argues that his counsel was ineffective in failing to file a motion to suppress the statements he made in his interview to police under the Sixth Amendment. Appellant argues that because he was already under arrest at the time of the interview, he was guaranteed the right to legal counsel. Appellant further argues that his right to counsel attached because legal counsel was appointed while his interview with the police was taking place.

{¶25} Initially, we note that a trial counsel's failure to file a suppression motion does not per se constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). Counsel can only be found ineffective for failing to file a motion to suppress if, based on the record, the motion would have been...

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