[Cite as State v. Doyle,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107001

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

CARDELL DOYLE

DEFENDANT-APPELLANT

JUDGMENT: REVERSED IN PART, VACATED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617497-A

BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Headen, J.

RELEASED AND JOURNALIZED: March 21, 2019 ATTORNEY FOR APPELLANT

Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: James M. Rice Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

ON RECONSIDERATION1

SEAN C. GALLAGHER, P.J.:

{¶1} On reconsideration, the original announcement of State v. Doyle, 8th Dist.

Cuyahoga No. 107001,

, released February 14, 2019, is hereby vacated and

substituted with this opinion. The state timely filed a motion for reconsideration seeking

clarification on an issue of law discussed in the original panel decision. We believe the

clarification is necessary to ensure uniformity in the application of the law.

{¶2} Cardell Doyle appeals his conviction, entered following a bench trial, for aggravated

robbery and an attendant three-year firearm specification. He was also sentenced to an

additional three-year term for a firearm specification attendant to another theft offense, which

had been merged into the aggravated robbery under R.C. 2941.25. A ten-year aggregate term of

1 The original decision in this appeal, State v. Doyle, 8th Dist. Cuyahoga No. 107001,

, released February 14, 2019, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01. imprisonment resulted, with the two three-year terms on the firearm specifications being imposed

to be served prior and consecutive to the four-year sentence for the aggravated robbery offense.

{¶3} The charges stemmed from a carjacking. Doyle and his codefendant robbed the

victim at gunpoint during daylight hours, and the entire episode was recorded on a private

surveillance camera. Doyle approached the victim with a handgun, which was later found by

police in the glove compartment of the vehicle used in the commission of the crime, and

demanded that the victim exit her car and give him the keys. Doyle and his codefendant, each

driving one of the vehicles, fled the scene. The victim immediately provided the emergency

dispatcher with a general description of the offenders, including their respective hairstyles and a

general description of their vehicle. The stolen car was rented and had an anti-theft device

installed. The rental company was able to track and disable the vehicle, allowing officers to

locate the suspects within 30 minutes of the theft.

{¶4} When officers arrived to secure the stolen vehicle, Doyle and the codefendant, both

of whom fit the victim’s generic description, were seen exiting their vehicle, which was parked

near the stolen one. Doyle exited from the front passenger seat. Doyle claims that the officers

first saw him in the driveway where their vehicle was parked. Evidently, the testifying officer’s

notes did not contain any information about where Doyle was located when the officers arrived.

The fact that Doyle was seen exiting the codefendant’s vehicle, however, was otherwise recorded

in the official report generated by another officer. The firearm used during the robbery was

found in the glove compartment of the codefendant’s vehicle, and forensic evidence placed

Doyle in the front passenger seating area. As officers approached the suspects, Doyle fled into a

nearby structure. Officers verified that Doyle did not exit the building, and then they obtained a

search warrant to enter it. Doyle was found in a wall, hiding behind the insulation. {¶5} Doyle’s identity was the primary issue at trial. The victim’s pretrial identification

was less than certain and was predominantly based on the generic description provided to the

emergency dispatcher. During her trial testimony, the victim was certain Doyle was the person

who robbed her at gunpoint. She based her in-court identification on his facial features (his

hairstyle had been changed from the day of the crime). The trial court, sitting as the trier of fact,

did not rely on the victim’s in-court identification. Instead, the trial court considered several

other facts that demonstrated identity: (1) Doyle’s flight and attempt to evade arrest; (2) Doyle

and his codefendant’s proximity to the stolen vehicle and that they matched the victim’s generic

description; (3) the fact that Doyle left forensic evidence in the front, passenger area of the

codefendant’s vehicle, where the victim saw him sitting before the robbery, and from which

officers saw Doyle exit upon arriving at the scene; and (4) the fact that the weapon used in the

robbery was found in the glove compartment of that same vehicle in a location consistent with

Doyle’s seating location.

{¶6} Doyle timely appealed his conviction, advancing five assignments of error, which

will be discussed out of order for the sake of continuity. Upon reviewing the sentencing entry,

supplemental briefing was sua sponte sought on whether the sentence imposed on the three-year

firearm specification attendant to a merged offense could be imposed notwithstanding the

merger. Both parties responded. Doyle’s assignments of error are overruled, but we reverse the

sentence imposed on the firearm specification attendant to the grand theft count, which merged

with the aggravated robbery conviction under R.C. 2941.25.

{¶7} In the first assignment of error, Doyle claims that the victim’s in-court identification

was impermissibly suggestive and that the trial court should have suppressed that identification.

There is no error. The trial court agreed with Doyle’s sentiment and found that the in-court identification was unduly suggestive. Tr. 460:15-25. Although the identification was not

suppressed, the court expressly concluded that the victim’s in-court identification of Doyle is not

sufficient to prove his identity as the perpetrator of the crime. Tr. 461:5-7.

{¶8} Instead of relying on the in-court identification, the trial court concluded that Doyle

committed the robbery because of (1) the generic description of the offenders, which included

their respective hairstyles, that permitted the identification of the suspects as officers arrived to

secure the stolen vehicle; (2) the victim’s ability to describe the firearm used in the robbery that

matched the one found in the glove compartment of the codefendant’s vehicle near where Doyle

was seen exiting when officers arrived; (3) the testimony of responding officers who witnessed

Doyle exit the front passenger seat of the codefendant’s vehicle and run into the residential

structure; (4) the forensic evidence placing Doyle in the front passenger seat of the codefendant’s

vehicle near where the recovered firearm was discovered; and (5) the fact that Doyle attempted to

conceal himself within the insulation behind the walls in the building into which he fled in an

attempt to evade arrest. Even if, for the sake of discussion, the failure to suppress the in-court

identification is assumed to be error at a bench trial, the failure to exclude evidence the trial court

expressly rejects is the epitome of harmless error. Any perceived error with the failure to

suppress that evidence could not have affected the substantial rights of the offender under

Crim.R. 52(A).

{¶9} In the fourth assignment of error, Doyle claims that the surveillance video was not

properly authenticated under Evid.R. 901(A) because “the record is not clear what video [the

authentication witness] was identifying; no exhibit number was referenced for purposes of

identification.” Notwithstanding the fact that no objection was timely raised to preserve

anything but plain error under Evid.R. 103(A)(1), the state identified the video as “State’s Exhibit 2” while playing the video for the witness to authenticate. Tr. 150:16-19. There is no

error with the authentication of the video, much less plain error. The record clearly establishes

which video was being authenticated.

{¶10} In the second and third assignments of error, Doyle claims his conviction is against

the weight of the evidence. Although Doyle couched his second assignment of error in terms of

sufficiency of the evidence, he concedes that the argument is based on inconsistencies within that

evidence. Those inconsistencies must be resolved in favor of the state. State v. Jenks,

,

(1991), paragraph two of the syllabus (“[t]he 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”);

see also State v. Gordon, 8th Dist. Cuyahoga No. 93059,

, ¶ 8 (standard for

sufficiency of the evidence precludes appellate courts from considering inconsistencies in

evidence because the evidence must be considered in a light most favorable to the state). In

light of the concession, both assignments of error will be addressed under the

weight-of-the-evidence review.

{¶11} When reviewing a claim challenging the weight of the evidence, the court,

reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts or inconsistencies in the

evidence, the trier of fact 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. Thompkins,

, 387,

,

. Generally, determinations of credibility and weight

of the testimony are reserved for the trier of fact. State v. Lipkins, 10th Dist. Franklin No. 16AP-616,

,

, citing State v. DeHass,

,

(1967), paragraph one of the syllabus.

{¶12} The trier of fact “may take note of the inconsistencies and resolve them

accordingly, ‘believing all, part, or none of a witness’s testimony.’”

quoting State v. Raver,

10th Dist. Franklin No. 02AP-604,

, ¶ 21, citing State v. Antill,

,

67,

(1964).

An appellate court considering a manifest weight challenge “may not merely substitute its views for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

Id. at ¶ 37, quoting State v. Harris, 10th Dist. Franklin No. 13AP-770,

,

citing Thompkins at 387. A conviction will only be reversed as being against the manifest

weight of the evidence in the most “‘exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Thompkins at 387, and State v. Martin,

,

(1st Dist. 1983).

{¶13} Doyle claims that his conviction for aggravated robbery is against the weight of the

evidence. According to Doyle, the fact that the forensic evidence excluded him as a contributor

to the samples taken from the stolen vehicle and the recovered firearm, and the fact that one of

the police officers failed to include a notation in his unofficial report that Doyle was first seen

exiting the codefendant’s vehicle demonstrate the manifest injustice. As previously noted, the

trial court considered all the evidence, including the arguments defense counsel raised regarding

those inconsistencies in the evidence. {¶14} In light of the totality of the record, this is not the exceptional case in which the

evidence weighs heavily against the conviction. As the trial court noted, Doyle was found near

the stolen vehicle and was seen (and forensically was proven to be) in the vehicle used in the

commission of the robbery 30 minutes after the aggravated robbery was reported. He and the

codefendant matched the generic descriptions of the offenders provided by the victim, including

their respective hairstyles, and both took flight when approached by officers. Doyle then

attempted to conceal himself within a wall of the residential building into which he fled,

permitting a reasonable inference of the consciousness of guilt. The firearm used during the

robbery was found in the glove compartment of the vehicle from which Doyle exited when

officers arrived. Further, the trial court considered the forensic evidence excluding Doyle as a

contributor to samples collected from the firearm and the stolen vehicle, and expressed its belief

that the in-court identification procedures were not enough by themselves to support a

conviction. The trial court, nonetheless, based its finding of guilt to aggravated robbery on the

totality of the evidence. The aggravated robbery conviction is not against the weight of the

evidence.2

{¶15} And finally, in the fifth assignment of error, Doyle claims his statutory right to a

speedy trial was violated. According to Doyle, his trial occurred within 287 calendar days of his

arrest, and the trial was therefore untimely under R.C. 2945.71(C).

2 Doyle also challenges the evidence in support of the grand theft and kidnapping offenses. Our conclusion that appellant’s aggravated robbery conviction is not against the weight of the evidence necessarily renders any issues with the merged offenses to be harmless error. The final conviction would not be affected by any review of the evidence underlying the merged counts. State v. Worley, 8th Dist. Cuyahoga No. 103105,

, citing State v. Powell,

,

(1990); State v. Croom, 7th Dist. Mahoning No. 12 MA 54,

. {¶16} According to the record in this case, Doyle was being held in Cuyahoga C.P. No.

CR-15-597558-A for a probation or community-control violation during the pretrial proceedings

in the underlying case. Thus, Doyle was not held in jail “solely” on the pending charge for the

purposes of the triple-count provision of R.C. 2945.71(E) and the state had 270 days within

which to commence trial. State v. Martin,

,

(1978), citing

State v. MacDonald,

,

(1976); State v. Butler, 8th Dist. Cuyahoga

No. 85366,

; State v. Stephens, 9th Dist. Summit No. 26516,

. Doyle concedes the triple-count provision of R.C. 2945.71(E) was

inapplicable.

{¶17} There is no speedy-trial violation. On June 7, 2017, the state filed a request for

discovery under Crim.R. 16 that went unanswered, which tolled the speedy-trial time for a

reasonable period. State v. Palmer,

,

,

. Even if only 30 days are attributed to Doyle’s failure to respond to discovery and no other

tolling event is considered, that alone tolled the speedy-trial time for a sufficient period to satisfy

statutory concerns. See, e.g., State v. Burks, 8th Dist. Cuyahoga No. 106639,

; State v. Miller, 11th Dist. Trumbull No. 2010-T-0018,

, ¶ 58.

{¶18} Although Doyle’s assigned errors are overruled, we must recognize the existence of

a void sentence imposed on the firearm specification attendant to the merged grand-theft offense

— the second count of the indictment for which Doyle was found guilty but not sentenced. A

void sentence, one imposed without statutory authority, is subject to collateral attack at any time.

State v. Holdcroft,

,

,

(as long as an

appeal is timely filed, the defendant and the state may challenge any aspect of a void sentence);

State v. Williams,

,

,

. An appellate court has inherent authority to vacate a void judgment. Lingo v. State,

,

,

; State v. Anderson,

,

, ¶ 4

(8th Dist.) (string citing cases setting forth the proposition that a void sentence can be sua sponte

addressed).

{¶19} The sentences imposed for firearm specifications are sentencing enhancements.

State v. Dean,

,

,

, citing State v. Ford,

,

,

, ¶ 16-19, and State v. Cannon, 8th Dist.

Cuyahoga No. 100658,

. As sentencing enhancements, the firearm

specifications are not separate offenses capable of standing alone. State v. Roper, 9th Dist.

Summit Nos. 26631 and 26632,

, citing Ford at ¶ 9-16 (firearm

specification statute does not contain a positive prohibition of conduct under the statute defining

“an offense”). The applicability of the specification rises and falls with a conviction on the

underlying offense — “[i]n concluding that the firearm specification was not an offense subject

to R.C. 2941.25, the [Ohio] Supreme Court stated that, ‘the language in these provisions

indicates that the firearm specification is contingent upon an underlying felony conviction.’”

(Emphasis added.) Id. at ¶ 10, quoting Ford at ¶ 16. Generally speaking, a felony conviction

includes both the finding of guilt and the sentence. Id., citing State v. Whitfield,

,

,

, ¶ 13.

{¶20} There is a distinction, however, between a “final conviction,” which includes both

the finding of guilt and the sentence as discussed in Whitfield, and the word “conviction” used in

isolation. We agree with the state that generally in the context of sentencing statutes,

“conviction” is not used in the traditional sense as set forth in Whitfield. In sentencing statutes,

the General Assembly generally placed “convicted” on equal footing with a guilty plea. State ex rel. Watkins v. Fiorenzo,

,

,

. In other

words, “convicted” refers only to a determination of guilt and does not include the sentencing

component.

Logically speaking, if a statutory section sets forth the manner in which a

sentence is to be imposed, any reference to “convicted” or other similar language must

necessarily mean “finding of guilt” because there is no final conviction until the sentence is

imposed on the finding of guilt or the guilty plea.

{¶21} R.C. 2929.14(B) generally follows that principle. Under that section, “if an

offender who is convicted of or pleads guilty to a felony” also is “convicted of or pleads guilty

to” a firearm specification, the court shall impose a prison term. Thus, in order to impose a

sentence on the firearm specification, the offender must first be convicted of or pleaded guilty to

the underlying offense and then, if the firearm specification has also been proven through trial or

plea, the underlying sentence will be enhanced by the mandatory term imposed for the

specification. Id.; see also State v. Florencio, 8th Dist. Cuyahoga No. 107023,

,

¶ 19 (merging sentences forecloses on the ability to impose a separate sentence on the

specification attendant to the merged offense); State v. Robinson, 4th Dist. Lawrence No.

14CA24,

. In other words, in sentencing an offender for multiple offenses,

the first issue to be addressed is whether the offenses are allied under R.C. 2941.25. Once it is

determined that two offenses are separate and subject to separate sentences for each offense, only

then does the trial court consider whether the sentencing enhancement attendant to each separate

offense is applicable.

{¶22} The state argues that R.C. 2929.14(B)(1)(g) authorizes the sentence imposed on the

specification notwithstanding the merger of the underlying offense. Under that division, if the

offender is “convicted of or pleads guilty to” two or more felonies, one of those being a felony delineated in the division, then the trial court is required to impose a sentence on two of the most

serious specifications of which the offender is convicted or to which he pleaded guilty. The

statute does not only speak in terms of a conviction, which is the finding of guilt. Fiorenzo at

260. According to the state, the phrase “pleads guilty to” as used in that division is in the

alternative to a conviction. See, e.g., State v. Gwen,

,

,

(the phrase “pleaded guilty to” is in the alternative to the phrase “convicted

of”).

{¶23} In State v. Lewis, 8th Dist. Cuyahoga No. 102939,

, ¶ 14, this

distinction was recognized for sex offender registration sentences. In Lewis, the court merged a

sex offense and a non-sex offense for the purposes of sentencing, with the state electing to

sentence on the non-sex offense. Id. at ¶ 8. The trial court nonetheless imposed a sex-offender

registration requirement based on the merged sex offense because the offender had pleaded guilty

to it. Id. That sentence was affirmed based on the statutory language permitting the imposition

of a registration requirement upon offenders who plead guilty to or are convicted of sex offenses

— implicitly recognizing that pleading guilty to a sex offense irrespective of a conviction

authorizes the imposition of the registration part of the sentence on the merged offense. Id.

Lewis, however, arguably conflicted with State v. Boyd, 8th Dist. Cuyahoga No. 100225,

. In Boyd, it was concluded that the registration requirement attendant to a

merged offense cannot be imposed — the offender had been sentenced to a Tier III reporting

requirement attendant to the merged offense instead of the Tier II reporting requirement for the

offense upon which the offender was sentenced. Id. at ¶ 21.

{¶24} R.C. 2929.14(1)(b)(g) uses similar language, requiring the imposition of a sentence

on two of the most serious firearm specifications if the offender was convicted of or pleaded guilty to the specifications. Under the plain reading of the statute, the specification arguably

survives merger in situations in which the offender pleads guilty to an offense that is ultimately

merged. The legislature used the phrase “pleads guilty to” in the alternative to “convicted of.”

Gwen. Notwithstanding the purported conflict, Lewis is inapplicable to resolving the firearm

specification issue at hand.

{¶25} The Ohio Supreme Court has also concluded that the sentence imposed for a

firearm specification is dependent on the underlying conviction to which the specification is

attached. Ford,

,

,

, at ¶ 16-19. The firearm

specification merely enhances an underlying sentence, but it can only do so if one is imposed on

the base offense. Id. at ¶ 16. “[I]f a defendant is convicted of a felony offense and, during the

commission of that offense, if the defendant * * * uses a firearm to facilitate the offense, the

defendant’s underlying felony sentence will be increased by three years.” (Emphasis sic.) Id.

Thus, an underlying sentence must be imposed in order to implicate the enhancement. Firearm

specifications, as sentencing enhancements, attach to a base sentence. Id. Without a sentence

on the underlying or predicate offense, there is nothing to enhance or increase. Florencio, 8th

Dist. Cuyahoga No. 107023,

, at ¶ 13, 19.

{¶26} In Florencio, the offender was convicted of kidnapping and felonious assault with

a deadly weapon, both of which included attendant firearm specifications. Id. at ¶ 1. The trial

court imposed the base sentences and the sentences on the firearm specifications to be served

concurrently as between counts, with only one specification being served consecutive to the base

sentence in contravention of R.C. 2929.14(B)-(C). Id. Imposing the firearm specifications in

that manner lacked statutory authorization. Id. at ¶ 14. Having concluded that the sentence

imposed was void, Florencio also recognized plain error in imposing concurrent sentences on allied offenses of similar import based on the state’s claim that the conduct constituting the

felonious assault was the force or restraint component of the kidnapping. Id. at ¶ 17. The state

conceded that the convictions were for allied offenses and, in addition, the offender could only be

sentenced for one offense and the firearm specification attendant to that count. Id. at ¶ 13, 19.

{¶27} In this case, the trial court determined that the aggravated robbery and grand theft

offenses merged under R.C. 2941.25. The state elected to have the sentence imposed on the

aggravated robbery offense. As such, the only firearm specification that survived for

consideration was the one attendant to the aggravated robbery conviction. Florencio; Roper, 9th

Dist. Summit Nos. 26631 and 26632,

; Robinson, 4th Dist. Lawrence

No. 14CA24,

. The sentence imposed for the firearm specification

attendant to the grand theft offense, for which no sentence was imposed, is not authorized by law

and is void.

{¶28} We vacate the three-year sentence imposed for that specification and remand for

the limited purpose of correcting the journal entry to reflect the four-year sentence imposed on

the base aggravated robbery offense and the three-year mandatory sentence, to be served prior

and consecutive to the base sentence, imposed for the firearm specification attendant to the

aggravated robbery conviction.

{¶29} Reversed in part, vacated in part, and remanded.

It is ordered that appellant and appellee share 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 common pleas

court to carry this judgment into execution. Case remanded to the trial court for further

proceedings consistent with this opinion. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and RAYMOND C. HEADEN, J., CONCUR