[Cite as State v. Somers,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Patricia A. Delaney, J. -vs- Case No. CT2018-0013 MASON P. SOMERS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2017-0424

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 15, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX JAMES A. ANZELMO PROSECUTING ATTORNEY 446 Howland Drive GERALD V. ANDERSON II Gahanna, Ohio 43230 ASSISTANT PROSECUTOR 27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2018-0013 2

Wise, P. J.

{¶1} Defendant-appellant Mason P. Somers appeals his conviction and

sentence on one count of aggravated burglary, one count of aggravated robbery, one

count of kidnapping, and one count of felonious assault entered in the Muskingum County

Court of Common Pleas following a trial to the court.

{¶2} Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

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

{¶4} On August 23, 2017, at approximately 10:30 p.m., Ernest Dilley was sitting

in his home when there was a knock at his front door. Mr. Dilley opened the door believing

it to be his daughter returning home from work, but instead it was a man holding a gun,

with a bandana covering part of his face. (T. at 165). Mr. Dilley noticed the man was

around six feet tall and had tattoos on his arms and on the hand holding the gun.

The

man charged into the house and pushed Mr. Dilley through the threshold area of the

home, into the living room, until Mr. Dilley was on his couch.

The man pointed the gun

at Mr. Dilley and demanded all of Mr. Dilley's money.

Mr. Dilley told the intruder his

money was at the bank. The intruder then picked up a lid from a glass candy jar and

struck Mr. Dilley in the face. (T. at 167). The intruder grabbed Mr. Dilley's cell phone off

the coffee table and ran out of the house. Mr. Dilley followed the intruder to the front porch

area. Once outside, Mr. Dilley noticed the glass candy dish lid had been dropped in his

yard. On top of the broken glass lid was a flashlight.

{¶5} Mr. Dilley ran to the neighbor’s house and asked him to call the police. When

the police arrived, they searched the area. (T.at 170). They found Dilley's cell phone in Muskingum County, Case No. CT2018-0013 3

the middle of his yard and returned it to him. (T. at 170-171). The police also found the

flashlight and a pistol bullet cartridge that had not been fired. (T. at 194). The bullet and

the flashlight were sent for DNA testing. There was not enough DNA on the bullet

cartridge to produce a conclusive result. (T. at 244). The DNA discovered on the flashlight

came back as a one in one trillion match to Appellant Mason Somers. (T. at 228).

{¶6} On or about November 15, 2017, Appellant was indicted on one count of

Aggravated Burglary, a felony of the first degree, in violation of R.C. §2911.11 l(A)(2), one

count of Aggravated Robbery, a felony of the first degree, in violation of R.C.

§2911.01(A)(1), one count of Kidnapping with a gun specification, a felony of the first

degree, in violation of R.C. § 2905.01(A)(1), and one count of Felonious Assault, a felony

of the second degree, in violation of R.C. § 2903.11(A)(2).

{¶7} On November 27, 2017, Appellant entered a plea of not guilty.

{¶8} On January 23, 2018, a two-day jury trial took place.

{¶9} At trial, the jury heard testimony from Ernest Dilley, Deputy Andrew Murphy,

Detective Amy Thompson, BCI forensic scientist Michael Monfredi, and Detective Brad

Shawger.

{¶10} Mr. Dilley testified as to the events that took place on August 23, 2017, as

set forth above. He further testified that the perpetrator's height and tattoos on his hands

and arms were consistent with that of Appellant's height and tattoos on his hands and

arms. Mr. Dilley also testified that the flashlight found in the yard had not been there

previously because if it had been, he would have picked it up. (T. at 168).

{¶11} On January 24, 2017, a jury found Appellant guilty of all counts and firearm

specifications. Muskingum County, Case No. CT2018-0013 4

{¶12} On January 29, 2018, the trial court sentenced Appellant to serve 25 years

in prison. The court merged the kidnapping and aggravated robbery charges, and the

prosecution elected to have Appellant sentenced on the aggravated robbery charge. The

court sentenced Appellant to eleven (11) years imprisonment for the aggravated robbery

and aggravated burglary counts, with an additional three (3) years imprisonment for the

firearm specifications attached to each count. The court ordered those prison sentences

to be served concurrently. The court imposed an eight (8) year prison sentence on the

felonious assault charge, with an additional three (3) years imprisonment for the firearm

specification attached to that offense. The court ordered Appellant to serve the eleven

(11) year prison sentence consecutive to the fourteen (14) year prison sentence imposed

on the aggravated robbery and aggravated burglary counts and accompanying

specifications. The court concluded that consecutive sentences were warranted, pursuant

to R.C. §2929.14(C), because the "harm" caused by Appellant’s offenses "was so great

or unusual" and that consecutive sentences are not "disproportionate to the seriousness

of' Appellant’s conduct. (Sent. T. at 15). Appellant was also ordered to pay court costs.

{¶13} Appellant now appeals, raising the following assignments of error on

appeal:

ASSIGNMENTS OF ERROR

{¶14} “I. SOMERS' CONVICTIONS ARE BASED ON INSUFFICIENT

EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION. Muskingum County, Case No. CT2018-0013 5

{¶15} “II. SOMERS' CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶16} “III. THE TRIAL COURT UNLAWFULLY ORDERED SOMERS TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

{¶17} “IV. SOMERS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

I., II.

{¶18} Appellant argues that his convictions are against the manifest weight and

sufficiency of the evidence. We disagree.

{¶19} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks,

(1991). “The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” Jenks at

paragraph two of the syllabus, following Jackson v. Virginia,

(1979).

{¶20} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of Muskingum County, Case No. CT2018-0013 6

witnesses and determine “whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” State v. Martin,

(1st

Dist. 1983). See also, State v. Thompkins,

, 1997–Ohio–52. The

granting of a new trial “should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.”

.

{¶21} Appellant was convicted of aggravated burglary, aggravated robbery,

kidnapping and felonious assault. Appellant argues that there is insufficient evidence

linking him to these crimes because the victim was unable to identify him as the person

who invaded his home. Appellant further argues that no physical evidence links him to

the bullet cartridge found outside the victim’s home.

{¶22} However, upon review of Mr. Dilley’s testimony, we find that he testified that

the man who robbed him was approximately 6 feet tall, had tattoos on the arm and hand

which was holding the gun, and was wearing a mask which covered his nose and mouth.

(T. at 165). Mr. Dilley testified that Appellant’s height and the tattoos on his arm and hand

were consistent with the man who robbed him. (T. at 173).

{¶23} Additionally, the jury heard testimony that Appellant’s DNA was found on

the flashlight which was located by the police in Mr. Dilley’s yard, on top of the broken

glass lid.

{¶24} Further, the jury was played a recording of a jail call Appellant made to his

brother following his arrest wherein he told his brother that he had a keychain flashlight.

(T. at 255). The jury also heard evidence of a recorded jail visit between Appellant and Muskingum County, Case No. CT2018-0013 7

the mother of his children wherein he stated “they better offer me a sweet deal” because

there was no forced entry, the victim wasn’t shot, and nothing was taken. (T. at 257).

{¶25} Based on the foregoing, we find that the State presented sufficient evidence

to support the charges, and the jury did not lose its way.

{¶26} Appellant’s first and second assignments of error are overruled.

III.

{¶27} In his third assignment of error, Appellant argues that the trial court erred in

imposing consecutive sentences in this matter.

{¶28} We review felony sentences not for an abuse of discretion, but rather using

the standard of review set forth in R.C. §2953.08. State v. Marcum,

,

2016–Ohio–1002,

, ¶ 22. R.C. §2953.08(G)(2) provides we may either

increase, reduce, modify, or vacate a sentence and remand for resentencing where we

clearly and convincingly find that either the record does not support the sentencing court's

findings under R.C. §2929.13(B) or (D), R.C. §2929.14(B)(2)(e) or (C)(4), or R.C.

§2929.20(I), or the sentence is otherwise contrary to law.

{¶29} Pursuant to Marcum, this Court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that: (1) the record does not

support the trial court's findings under relevant statutes, or (2) the sentence is otherwise

contrary to law.

{¶30} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and Muskingum County, Case No. CT2018-0013 8

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477,

.

{¶31} As long as the sentence is within the statutory range for the offense, and

the court considers both the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12, a trial

court's imposition of a maximum prison term for a felony conviction is not contrary to law.

State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234,

, ¶ 10, 16.

{¶32} Consecutive Sentences

{¶33} R.C. ¶2929.14 (C)(4) states as follows:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive sentence is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense. Muskingum County, Case No. CT2018-0013 9

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶34} In State v. Bonnell,

, 2014–Ohio–3177,

,

syllabus, the Supreme Court of Ohio held: “In order to impose consecutive terms of

imprisonment, a trial court is required to make the findings mandated by R.C.

§2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.” The sentencing

court is not required to recite “a word-for-word recitation of the language of the statute.”

Bonnell, ¶ 29. “[A]s long as the reviewing court can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.” Id.

{¶35} Here, Appellant concedes the trial court engaged in the proper analysis and

made the appropriate findings pursuant to R.C. §2929.14(C)(4). Instead, Appellant

challenges whether there was sufficient evidence to support that consecutive terms were

not disproportionate to the seriousness of Appellant’s conduct or the danger he poses to

the public. Appellant focuses his argument on the fact that the victim’s “injuries were not

life-threatening and did not even require hospitalization.” (Appellant’s brief at 10). Muskingum County, Case No. CT2018-0013 10

Appellant also argues that the items stolen were later recovered. Appellant’s brief at 10-

11).

{¶36} Upon review, we find that the trial court’s imposition of consecutive

sentences was supported by the record. Appellant’s actions in pointing a firearm at the

victim, invading his home, causing him injury and taking his property, constitute serious

offenses.

{¶37} Additionally, the trial court took into consideration Appellant’s prior criminal

history which includes two prior felony conviction and twelve prior misdemeanors, two of

which involved firearms. Finally, Appellant was under disability and could not be in

possession of a firearm at the time he committed the instant offenses.

{¶38} Appellant’s third assignment of error is overruled.

IV.

{¶39} In his fourth assignment of error, Appellant argues that he was denied the

effective assistance of counsel. We disagree.

{¶40} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to Appellant. The second prong is whether Appellant was prejudiced by

counsel's ineffectiveness. Lockhart v. Fretwell,

,

,

(1993); Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989). Muskingum County, Case No. CT2018-0013 11

{¶41} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and Bradley.

Knowles v. Mirzayance,

,

,

(2009).

{¶42} Recently, the United States Supreme Court discussed the prejudice prong

of the Strickland test,

{¶43} With respect to prejudice, a challenger must demonstrate “a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694,

. It is not enough “to show that the

errors had some conceivable effect on the outcome of the proceeding.”

,

. Counsel's errors must be “so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.”

,

.

{¶44} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley,

,

, quoting Strickland,

,

,

(1984).

{¶45} A defendant has no constitutional right to determine trial tactics and strategy

of counsel. State v. Cowans,

,

(1999); State v.

Conway,

,

,

, ¶ 150; State v. Donkers,

,

,

(11th Dist.). Rather,

decisions about viable defenses are the exclusive domain of defense counsel after

consulting with the defendant.

When there is no demonstration that counsel failed to Muskingum County, Case No. CT2018-0013 12

research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing

court defers to counsel's judgment in the matter. State v. Clayton,

,

(1980), citing People v. Miller,

, 573–574,

,

(1972); State v. Wiley, 10th Dist. No. 03AP–340,

,

at ¶ 21.

{¶46} Appellant argues his counsel was ineffective for not objecting to the

prosecution playing for the jury his statements that the State had better offer him a

sweet deal, because such amounted to evidence of his desire for a plea bargain which

could allow the jury to infer guilt.

{¶47} Appellant also argues that his counsel was ineffective in failing to object to

prosecution playing for the jury the recorded conversation during which Appellant

discussed criminal offenses committed by others and the “deals” they had received.

{¶48} Upon review, we find that the recording of Appellant’s statements were

admissible pursuant to Evid.R. 801(D)(2), which provides:

(D) Statements Which Are Not Hearsay. A statement is not

hearsay if:

***

(2) Admission by Party-Opponent. The statement is offered against

a party and is (a) the party's own statement, in either an individual or a

representative capacity, or (b) a statement of which the party has

manifested an adoption or belief in its truth, or (c) a statement by a person

authorized by the party to make a statement concerning the subject, or (d)

a statement by the party's agent or servant concerning a matter within the Muskingum County, Case No. CT2018-0013 13

scope of the agency or employment, made during the existence of the

relationship, or (e) a statement by a co-conspirator of a party during the

course and in furtherance of the conspiracy upon independent proof of the

conspiracy.

{¶49} Upon review, we further find that Appellant has failed to show prejudice

resulting from the admission of these statements.

{¶50} Finally, Appellant argues his counsel was ineffective for failing to request

waiver of court costs. In support of the waiver of court costs, he cites State v. Springer,

8th Dist. Cuyahoga No. 104649,

. Springer is in conflict with our decision

in State v. Davis, 5th Dist. Licking No. 17-CA-55,

, and that the present

issue has been accepted for review by the Supreme Court of Ohio upon our certification

of a conflict. See State v. Ramsey, 5th Dist. Licking No. 17-CA-76,

.

We held in Ramsey that “[u]nless a decision is rendered on the issue to the contrary in

the future, this Court will continue to abide by its decision in Davis.”

{¶51} Accordingly, in conformity with Ramsey, we hold Bowen was not deprived

of the effective assistance of trial counsel in violation of his rights under the Sixth and

Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Ohio

Constitution. Muskingum County, Case No. CT2018-0013 14

{¶52} Appellant’s fourth assignment of error is overruled.

{¶53} For the foregoing reasons, the judgment of the Court of Common Pleas,

Muskingum County, Ohio, is affirmed.

By: Wise, P. J.

Gwin, J., and

Delaney, J., concur.

JWW/d 1107