[Cite as State v. Black,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100114

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

CLIFFORD BLACK DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-535173-C

BEFORE: Stewart, J., Celebrezze, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: July 3, 2014 ATTORNEY FOR APPELLANT

W. Scott Ramsey The Standard Building, Suite 330 1370 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Daniel T. Van Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Clifford Black and three codefendants broke into a

house, threatened and robbed the occupants at gunpoint, and then tried to run over two

police officers as they were fleeing the scene of the crime. In exchange for his

agreement to make a truthful statement to the police, Black pleaded guilty to aggravated

robbery with a firearm specification; aggravated burglary; felonious assault with a firearm

specification; two counts of felonious assault against a peace officer; and having a

weapon while under disability. The court imposed a total prison term of 18 years — the

longest term any of the four perpetrators received.

{¶2} Black raises three assigned errors for our review. He first argues that he

pleaded guilty only because he understood from defense counsel that he would receive

less than an eight-year sentence and that the court failed to inquire into that understanding

as a basis for ensuring that the plea was knowingly entered. Black also complains that

his sentence was inconsistent with his codefendants, particularly when he cooperated with

the police. And finally, Black claims that he was denied the effective assistance of

counsel.

I

{¶3} The plea bargain that Black entered into with the state required him to make a

statement to the police and testify against his three codefendants. He maintains that

defense counsel assured him that his cooperation with the state would result in a prison term of less than eight years. With his sentence exceeding what he thought he would

receive, Black argues that the court should have undertaken a more detailed inquiry

during the plea colloquy to ensure that the guilty plea was being made voluntarily,

knowingly, and freely.

{¶4} Crim.R. 11(C)(2)(a) requires the trial court to determine “that the defendant is

making the plea voluntarily, with the understanding of the nature of the charges and of the

maximum penalty involved and, if applicable, that the defendant is not eligible for

probation” before accepting a guilty plea.

{¶5} There is no evidence in the record of any promises made to Black by the

state, the court, or defense counsel regarding Black’s sentence. On the contrary, the

record shows that the state explicitly informed the court that no agreement had been

reached with regard to sentencing. The prosecutor told the court: “[Black] agrees to

testify against co-defendants and sentencing would be up to the Court. No agreed

sentence would be part of this deal.” Tr. 4. Likewise, when asked by the court

whether there were any promises made to him in exchange for his guilty plea, Black

responded in the negative. Tr. 14. With Black having told the court that no promises

were made to him about sentencing, and there being nothing in the record on appeal to

contradict that assertion, the court had no obligation to inquire further into that which

Black had denied. II

{¶6} All three of Black’s codefendants received shorter prison terms than Black

received. Citing R.C. 2929.11(B), Black complains that the length of his prison term is

inconsistent with the sentences given to these codefendants because he cooperated with

the state and provided a statement against those codefendants.

A

{¶7} Before addressing the merits of Black’s argument, we consider the state’s

contention that Black forfeited the right to raise the issue of consistency in sentencing by

failing to object at sentencing.

{¶8} We have held that “in order to support a contention that his or her sentence

is disproportionate to sentences imposed upon other offenders, a defendant must raise this

issue before the trial court and present some evidence, however minimal, in order to

provide a starting point for analysis and to preserve the issue for appeal.” State v.

Munson, 8th Dist. Cuyahoga No. 93229,

, ¶ 29. See also State v. Van

Horn, 8th Dist. Cuyahoga No. 98751,

.

{¶9} The rule we stated in Munson applies when the defendant raises the issue of

consistency in the abstract, against other offenders in different cases. A judge should

not impose a sentence without knowing what kind of sentences are being given by other

judges — deciding what sentence is merited under any given situation necessarily

requires a judge to look to sentences given to other offenders as a reference. So it serves

no purpose for a defendant to complain that a sentence is inconsistent with those given to similar offenders if the defendant cannot prove the point to the judge by giving some

sense of what kind of sentences similar offenders have received. Hence, the failure to

object at the time of sentencing is usually fatal to a consistency claim.

{¶10} Black’s situation is different, however. Black did not raise at the time of

sentencing that his sentence was inconsistent with those given to similar offenders. His

argument on appeal is that his sentence was inconsistent with those given to his three

codefendants. The same judge sentenced all four offenders, so it is possible that Black

could make a prima facie case of inconsistency. Under these circumstances, his failure

to object at sentencing is not fatal to his consistency claim.

B

{¶11} R.C. 2929.11(B) states:

A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.

{¶12} While consistency in sentencing is a goal under R.C. 2929.11(B), the

statute does not require “uniformity” in sentences. State v. Sutton, 8th Dist. Cuyahoga

No. 97132,

, citing State v. Battle, 10th Dist. Franklin No.

06AP-863,

. By stating that a sentence shall be “reasonably”

calculated to be consistent with sentences given to similar offenders, R.C. 2929.11(B)

acknowledges that a judge has discretion in sentencing. If a judge is granted “full

discretion to impose a prison sentence” within the applicable statutory range, see State v. Foster,

,

,

, complete uniformity

would be at odds with that discretion. See State v. Warner, 8th Dist. Cuyahoga No.

100197,

.

C

{¶13} In the statement that Black gave to the police as part of his plea

agreement, he described how he and codefendants Sanchez Smith, Tameka Bohanon, and

Elbert Jones, acted collectively to perpetrate an armed break-in and robbery at a

residence. According to Black, Jones identified the house as a “sweet lick” because he

had been there before and knew that the occupants were unarmed and had money and

marijuana. Bohanon drove a van to the house identified by Jones: the other three

codefendants were occupants in the van. Black and Smith exited the van while Bohanon

and Jones remained in the van. Smith instructed Bohanon to drive around the corner and

wait for his and Black’s return. Black carried a shotgun; Smith carried a handgun.

They forcibly kicked open a door, ordered the occupants at gunpoint to the floor, and

robbed them of cash, marijuana, and a gaming system. When Black and Smith left the

house to rendezvous with the van, it was not where they expected it to be. Smith called

Bohanon to return with the van. When Bohanon returned, Black and Smith reentered

the van. As Bohanon prepared to pull away, two police officers appeared. Black told

Bohanon to drive away, even if it meant running down the police. Bohanon put the van

in gear and started moving toward the police officers as if she was going to run them over, but the police shot the tires, forcing the van to stop. The defendants were then

arrested.

{¶14} All of the defendants eventually pleaded guilty. Jones received an agreed,

three-year sentence after pleading guilty to aggravated burglary and having a weapon

while under disability. See State v. Jones, 8th Dist. Cuyahoga No. 99648,

. Bohanon received a 16-year sentence after pleading guilty to

burglary, felonious assault with a peace officer specification, and improperly handling a

motor vehicle. See State v. Bohanon, 8th Dist. Cuyahoga No. 98217,

. Smith received a sentence of 16 years and 11 months after pleading guilty to two

counts of aggravated burglary with firearm specifications; two counts of aggravated

robbery with firearm specifications, having a weapon while under disability, theft, and

aggravated theft.

{¶15} Black, Bohanon, and Jones are not similar offenders for purposes of R.C.

2929.11(B). Even though all three participated in the robbery, neither Bohanon nor

Jones pleaded guilty to counts of aggravated robbery. On that basis alone, they were not

similar offenders in the sense that Black had any reasonable expectation that any sentence

he received would be commensurate with the sentences that those two received.

{¶16} Smith was a similar offender to Black. They both pleaded guilty to two

counts of aggravated robbery and, if Black’s statements regarding the crime are to be

credited, they acted similarly — they collectively kicked in the door to the premises, they

both carried a firearm, they both threatened the occupants, and they both robbed the premises. We therefore find that Black can argue that his sentence was inconsistent with

that given to Smith.

D

{¶17} Black’s sentence is 13 months longer than the sentence given to Smith.

However, it is similar enough to Smith’s, that we are unable to say that Black’s sentence

is so inconsistent with the sentence given to Smith that it runs afoul of R.C. 2929.11(B),

particularly given the overall length of prison time both offenders received. Additionally,

the court had reason to sentence Black more severely than Smith given the nature of

Black’s involvement with the robbery. When the court asked the prosecutor whether

Black’s involvement in the crime was less than Smith’s or whether their involvement was

of the same gravity, the prosecutor responded that Black’s involvement was not less and

that the gravity was the same. The prosecutor went on to state, however, that “in

investigating this case, it was Mr. Black who was more of the point man in execution of

this home invasion and robbery.” Tr. 22. By his own admission, Black carried a

loaded shotgun while Smith carried only a handgun. In any event, Black raised no

objection to the state’s characterization of him as the “point man” in the robbery, so the

court could find that his involvement warranted a marginally longer sentence than that

given to Smith.

{¶18} Black claims that he was entitled to less time than Smith because he gave a

statement to the police that caused the other defendants to enter guilty pleas. While

Black did give the police a statement as part of his guilty plea, his assertion that his codefendants pleaded guilty because of that statement has no proof in the record. The

state told the court at sentencing that Black was “upfront with the detectives” when

giving his statement and that “he definitely shed more light on the situation and provided

information that, had his co-defendants proceeded to trial, that definitely would have

assisted and aided the State in making its cases against them.” Tr. 19-20. These

comments do not indicate that Black’s statement coerced his codefendants to plead guilty,

only that it would have been helpful to the prosecution had the codefendants chosen to go

to trial. Without some proof in the record that his statement coerced his codefendants to

plead guilty, Black’s assertion appears to be post hoc, ergo propter hoc (a fallacy in

which a former event is said to be the cause of a later event simply because the former

event occurred earlier).

III

{¶19} Black’s third assignment of error is that defense counsel was ineffective in

failing to raise the issue of consistency. Having found that Black did not waive a

consistency claim under the facts of this case, his assertion that counsel was ineffective in

this regard is moot.

{¶20} Black also argues that his counsel was ineffective for inadequately

informing him of the benefits “he should have received” as a result of his plea agreement

and further, that counsel was ineffective for not arguing for a sentence that was less than

his codefendants received because he assisted the state and his codefendants did not. As

previously stated, there is nothing in the record to support the contention that Black had any promises made to him by the state, the court, or defense counsel regarding his

sentence. The record is actually to the contrary. With regard to counsel being

ineffective for failing to argue for a lesser sentence, Black would have to demonstrate that

his counsel’s performance was so deficient that it constituted a substantial violation of

counsel’s essential duties, and also that the results of Black’s proceedings would have

been different if counsel had properly represented him. Strickland v. Washington,

,

,

(1984). In light of our analysis of the second

assigned error, there is no indication that the court would have sentenced Black to a lesser

amount of time had his trial counsel raised the issue. Furthermore, the record indicates

that the court was well aware of the assistance Black provided to the state and weighed it

against his involvement in the crime compared to the involvement of his

similarly-situated codefendant.

{¶21} The assigned errors are overruled.

{¶22} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case remanded

to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

________________________________________ MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EILEEN T. GALLAGHER, J., CONCUR