[Cite as State v. Peterson,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109306 v. :

DAMIEN L. PETERSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED; REMANDED RELEASED AND JOURNALIZED: March 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-639520-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Eben McNair and Carson Strang, Assistant Prosecuting Attorneys, for appellee.

Damien Peterson, pro se.

EILEEN A. GALLAGHER, J.:

Defendant-appellant Damien Peterson appeals the judgment of the

Cuyahoga County Court of Common Pleas sentencing him to an aggregate term of

39 to 41.5 years in prison after he was found guilty of four counts of aggravated

robbery (with multiple firearm specifications, notice of prior conviction and repeat violent offender specifications), four counts of having weapons while under

disability (with multiple firearm specifications) and two counts of misdemeanor

theft. For the reasons that follow, we affirm the trial court’s judgment and remand

for the issuance of a nunc pro tunc order correcting certain clerical errors in the trial

court’s sentencing journal entry.

Factual Background and Procedural History

Between March 17 and April 6, 2019, Peterson robbed, at gunpoint,

four separate businesses in the Cleveland area. Following a bench trial, the trial

court found Peterson guilty of multiple crimes associated with those robberies as

follows:

● Four counts of aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony, with one-year, three-year and 54-month firearm specifications and notice of prior conviction and repeat violent offender specifications (Counts 1, 4, 7 and 10);

● Two counts of theft in violation of R.C. 2913.02(A)(1), a first- degree misdemeanor (Counts 2 and 8) and

● Four counts of having weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony, with one- year, three-year and 54-month firearm specifications (Counts 3, 6, 9 and 12).

Counts 1, 2 and 3 related to the robbery of a Pizza Pan restaurant on

March 17, 2019; Counts 4 and 6 related to the robbery of Davita’s Larchmere Deli on

March 26, 2019; Counts 7, 8 and 9 related to the robbery of Michael’s Diner on

April 3, 2019 and Counts 10 and 12 related to the robbery of 1900 Beverage on

April 6, 2019. At the sentencing hearing, the court sentenced Peterson to an

aggregate prison term of 39 to 40.5 years. The trial court determined that, as to each

of Counts 1, 3, 4, 6, 7, 9, 10 and 12, the one-year and three-year firearm specifications

merged into the 54-month firearm specifications and ordered that the 54-month

firearm specifications in all counts be served consecutively each other — resulting in

an aggregate 36-year sentence on the firearm specifications. The trial court further

ordered that the sentences on the firearm specifications be served prior to and

consecutive to the underlying sentences on all counts. The trial court also found that

Counts 4, 7 and 10 were subject to the Reagan Tokes Law, under which qualifying

first- and second-degree felonies committed on or after March 22, 2019 are subject

to the imposition of indefinite sentences. Because the aggravated robbery giving rise

to Count 1 occurred prior to March 22, 2019, it was not subject to the Reagan Tokes

Law.

The trial court ordered that all of the sentences on the underlying

offenses be served concurrently to one another, resulting in an aggregate prison

term of three years to four-and-one-half years on the underlying offenses. On Count

1, the trial court imposed a three-year sentence on the underlying offense. On

Counts 4, 7 and 10, the trial court imposed an indefinite sentence consisting of a

minimum term of three years and a maximum term of four-and-one-half years on

the underlying offenses. For each of the four counts of having weapons while under

disability (Counts 3, 6, 9 and 12), the trial court imposed a 36-month sentence on

the underlying offenses. For each of the two counts of theft (Counts 2 and 8), the trial court imposed a six-month sentence. The trial court also imposed five years of

mandatory postrelease control.

At the sentencing hearing, Peterson objected to the imposition of

consecutive sentences on the firearm specifications, arguing that sentencing him on

multiple firearm specifications violated due process and equal protection under the

United States and Ohio Constitutions. He also objected to sentencing under the

Reagan Tokes Law, arguing that the indefinite sentencing provisions of the Reagan

Tokes Law were unconstitutional and violated the separation-of-powers doctrine.

Although the aggregate prison term the trial court announced at the

sentencing hearing totaled 39 years to 40.5 years, in its November 20, 2019

sentencing journal entry, the trial court imposed an aggregate prison sentence of 39

years to 41.5 years. Peterson appealed, raising four assignments of error for review:

Assignment of Error I: The trial court committed a plain, mathematical error in sentencing appellant.

Assignment of Error II: The trial court committed plain error in failing to merge firearm specifications related to the same act or transaction.

Assignment of Error III: Defendant was denied due process of law by way of a defective complaint and failure of the government to provide a preliminary hearing within the statutory timeframe and prior to the indictment.

Assignment of Error IV: The sentencing under Ohio law violated the separation of powers doctrine of the constitutions of the state of Ohio and United States, due process of law, are void for vagueness, and conflict internally with other Ohio law. Law and Analysis

Constitutionality of Reagan Tokes Law

For ease of discussion, we address Peterson’s fourth assignment of

error first. In his fourth assignment of error, Peterson argues that the indefinite

sentencing provisions of the Reagan Tokes Law are unconstitutional because they:

(1) “strip” the trial court of “the ability to determine the appropriate, maximum term

of imprisonment pursuant to principles and purposes of sentencing” and, instead,

“force” the trial court “to apply an arbitrary percentage,” (2) allow the Ohio

Department of Rehabilitation and Correction (“ODRC”) to serve as “judge,

prosecutor, and jury” in determining whether a prison term should be extended

beyond the minimum term and (3) provide an “unconstitutionally vague” standard

by which the ODRC “may both extend a prison term and determine its length.”

Pursuant to this court’s en banc decision in State v. Delvallie, 8th

Dist. Cuyahoga No. 109315,

, we overrule Peterson’s fourth

assignment of error.

Computation of Sentence

In his first assignment of error, Peterson argues that the trial court

incorrectly computed his sentence in its sentencing journal entry, imposing an

aggregate prison term of 39 to 41.5 years, instead of an aggregate prison term of 39

to 40.5 years. The state concedes the error.

As stated above, at the sentencing hearing, the trial court imposed

consecutive 54-month sentences on each of the eight firearm specifications for a total of 36 years. The court ordered that the sentences on the firearm specifications

be served prior to, and consecutive to, the sentences on the underlying offenses. The

court imposed concurrent sentences on all of the underlying offenses, resulting in

an aggregate sentence of three years to four-and-one-half years on the underlying

offenses or a total aggregate sentence of 39 years to 40.5 years.

However, the trial court’s November 20, 2019 sentencing journal

entry incorrectly states that “[t]he court imposes a prison sentence * * * of 39 years

to 41.5 years total sentence.” The discrepancy between the sentence imposed at the

sentencing hearing and the sentence that was journalized is a clerical error that can

be corrected through a nunc pro tunc entry. See, e.g., State v. Hidvegi, 8th Dist.

Cuyahoga Nos. 108229 and 108928,

(‘“[W]here a clerical or

mathematical error exists in a sentencing entry, a nunc pro tunc entry may be

properly used to correct the sentencing entry to reflect the sentence the trial court

actually imposed upon the defendant at the sentencing hearing.’”), quoting State v.

Thompson, 8th Dist. Cuyahoga No. 102326,

; State v. Spears,

8th Dist. Cuyahoga No. 94089,

, ¶ 10; Crim.R. 36.

In addition, although not raised by the parties, we note that the trial

court’s November 20, 2019 sentencing journal entry contains a further clerical error

in that it incorrectly states that the Reagan Tokes Law applies only to Count 4. As

the trial court recognized at the sentencing hearing, the Reagan Tokes Law and its

indefinite sentencing provisions also apply to Counts 7 and 10. At the sentencing

hearing, the trial court imposed a minimum sentence of three years and a maximum sentence of four-and-one-half years on the underlying offenses in Counts 4, 7 and

10. Again, this clerical error may be corrected through a nunc pro tunc entry. See,

e.g., Hidvegi at ¶ 21; State v. Lugo, 8th Dist. Cuyahoga No. 103893, 2016-Ohio-

2647, ¶ 3 (“[C]lerical errors may be corrected at any time in order to conform to the

transcript of the proceedings. * * * The trial courts retain continuing jurisdiction to

correct these clerical errors in judgments with a nunc pro tunc entry to reflect what

the court actually decided.”).

Peterson’s first assignment of error is sustained. This case is

remanded for the trial court to issue a nunc pro tunc order correcting the

mathematical error in the calculation of Peterson’s sentence and the other clerical

errors in its November 20, 2019 sentencing journal entry to reflect the sentences the

trial court actually imposed at the sentencing hearing.

Sentencing on Firearm Specifications

In his second assignment of error, Peterson claims that the trial court

committed plain error by “failing to merge firearm specifications related to the same

act or transaction.” He asserts that because the aggravated robbery and having

weapons under disability counts associated with each robbery were part of the “same

act or transaction,” the trial court could only impose a sentence on a single firearm

specification on the counts relating to each robbery pursuant to R.C.

2929.14(B)(1)(b), i.e., that the firearm specifications in Counts 1 and 3, Counts 4 and

6, Counts 7 and 9 and Counts 10 and 12 should have merged, resulting in an aggregate 18-year sentence on the firearm specifications instead of an aggregate 36-

year sentence on the firearm specifications.1

We agree with Peterson that each of the four aggravated robbery and

related having weapons while under disability counts constitutes a single “act or

transaction” for purposes of R.C. 2929.14(B)(1)(b). The Ohio Supreme Court has

stated that a “transaction” refers to “‘a series of continuous acts bound together by

time, space and purpose, and directed toward a single objective.’” State v. Wills,

,

(1994), quoting State v. Caldwell, 9th Dist.

Summit No. 14720,

, 32 (Dec. 4, 1991); see also State v.

Dean,

,

,

. “In other words,

courts generally evaluate whether the offenses and attendant firearm violations

occurred at separate times, locations, and to different victims.” State v. Williams,

1st Dist. Hamilton No. C-180588,

; see also

(where “[t]he Mini Mart offenses, the drive-by shootings, and Arnold’s murder

occurred on different days and at different locations and involved separate victims

* * * these events were not part of ‘the same act or transaction’ * * * and the court

committed neither error nor plain error in failing to merge the firearm specifications

into a single specification”).

Ordinarily, a trial court is prohibited from imposing multiple

consecutive prison terms on multiple firearm specifications associated with

1 Peterson does not dispute his guilt in this case generally, or specifically, as it applies to any of the firearm specifications. “felonies committed as part of the same act or transaction.” R.C. 2929.14(B)(1)(b);

State v. Hardnett, 8th Dist. Cuyahoga No. 107038,

, ¶ 7. However,

R.C. 2929.14(B)(1)(g) creates an exception to that general rule, mandating the

imposition of multiple, consecutive prison terms on firearm specifications if a

defendant is convicted of two or more felonies that include certain specified

offenses. State v. Young, 8th Dist. Cuyahoga No. 102202,

, ¶ 8-10.

R.C. 2929.14(B)(1)(g) provides:

If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section [a specification of the type described in R.C. 2941.141, 2941.144, or 2941.145], in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.

Thus, in a case such as this, where the defendant was found guilty of

two or more felonies in connection with an incident (one of which was aggravated

robbery) and those felonies included firearm specifications (of which the defendant

was also convicted), the trial court is required to impose prison terms for the two

most serious specifications. See, e.g., State v. Adkins, 8th Dist. Cuyahoga Nos.

109184 and 109185,

; State v. Nitsche,

,

, ¶ 52-54 (8th Dist.); State v. James,

,

, ¶ 41

(8th Dist.); see also Young at ¶ 9 (“‘“R.C. 2929.14(B)(1)(g) * * * serves as an exception to the rule that multiple firearm specifications must be merged for

purposes of sentencing when the predicate offenses were committed as a single

criminal transaction.’””), quoting State v. Vanderhorst, 8th Dist. Cuyahoga No.

97242,

, quoting State v. Isreal, 12th Dist. Warren No. CA2011-

11-115,

, ¶ 71.

In this case, Peterson was convicted of aggravated robbery and having

weapons while under disability in connection with four separate incidents. Peterson

was also convicted of firearm specifications in connection with each of those

felonies. Accordingly, for each of the four sets of felonies, the trial court was

required, under R.C. 2929.14(B)(1)(g), to impose consecutive sentences “for each of

the two most serious specifications of which the offender is convicted,” i.e., the two

54-month firearm specifications. Nitsche at ¶ 54; Young at ¶ 10. As stated above,

that is precisely what the trial court did here, resulting in an aggregate 36-year

prison sentence on the firearm specifications.

Peterson’s second assignment of error is overruled.

Municipal Court Proceeding

In his third assignment of error, Peterson claims he was denied due

process based on purported defects in a municipal court proceeding that is not

before us. He asserts that the criminal complaint filed in the Shaker Heights

Municipal Court was defective and that he was improperly denied a preliminary

hearing. In the case before us, Peterson’s convictions are predicated upon an

indictment that he does not challenge. Moreover, we note that Peterson’s arguments are otherwise meritless.

“The jurisdiction of the court is invoked by the return of a valid indictment and is

not based on the process by which an accused is taken into custody or the findings

made on the preliminary examination.” Dowell v. Maxwell,

, 290,

(1963); see also State v. Walker, 2d Dist. Montgomery No. 28970,

(“the issuance of a grand jury indictment renders any defect

in the complaint moot”); State v. Rogers, 10th Dist. Franklin No. 17AP-610, 2018-

Ohio-1073, ¶ 13 (“the issuance of a grand jury indictment renders any defect in the

complaint or warrant moot”); State v. Hess, 7th Dist. Jefferson No. 02 JE 36, 2003-

Ohio-6721, ¶ 17 (“An indictment generally renders any defects in the proceedings

arising from the complaint moot”).

We overrule Peterson’s third assignment of error.

Judgment affirmed. Case remanded for the trial court to issue a nunc

pro tunc order correcting the mathematical error in the calculation of Peterson’s

sentences and other clerical errors in its November 20, 2019 sentencing journal

entry to reflect the sentences the trial court actually imposed at the sentencing

hearing.

It is ordered that appellant recover from appellee the 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 convictions having been affirmed, any bail pending appeal is

terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________ EILEEN A. GALLAGHER, JUDGE

ANITA LASTER MAYS, P.J., and LISA B. FORBES, J., CONCUR

N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision. For a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315,

(Laster Mays, J., concurring in part and dissenting in part).

Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315,

(Forbes, J., dissenting).