State v. Moore

Annotate this Case

Download PDF

[Cite as State v. Moore, 2010-Ohio-770.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 92654 STATE OF OHIO PLAINTIFF-APPELLEE vs. TERRANCE MOORE DEFENDANT-APPELLANT JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-427648 and CR-445445 BEFORE: Celebrezze, J., Stewart, P.J., and Dyke, J. RELEASED: JOURNALIZED: March 4, 2010 ATTORNEYS FOR APPELLANT Robert Tobik Cuyahoga County Public Defender BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: T. Allan Regas Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 ALSO LISTED: Terrance Moore Inmate No. 480-096 Marion Correctional Institution P. O. Box 57 Marion, Ohio 43301 N.B. This entry is an announcement of the court s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1). FRANK D. CELEBREZZE, JR., J.: {¶ 1} Defendant-appellant, Terrance Moore, appeals multiple convictions and sentences imposed by the trial court. Finding merit to this appeal, we affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion. {¶ 2} This constitutes the third time appellant s case has been before this court. The factual background can be found in State v. Moore, Cuyahoga App. No. 85828, 2006-Ohio-277, ¶1-11 ( Moore I ). We will provide some of the procedural background in order to accurately address appellant s assignments of error. {¶ 3} After a consolidated bench trial in case numbers CR-427648 and CR-445445, appellant was found guilty of numerous charges. Specifically, in CR-427648, he was convicted of one count of drug trafficking, a second degree felony; two counts of drug possession, second degree felonies; and one count of possessing a weapon while under disability, a fifth degree felony. The trial court sentenced him to two years for drug trafficking and one count of possession and six months for possessing a weapon while under disability. The other count of drug possession merged for sentencing, and all terms were to run concurrent to each other, but consecutive to the sentence in CR-445445. {¶ 4} In its original sentencing entry, the trial court made findings with regard to why the terms should run consecutively. The Ohio Supreme Court remanded the matter, pursuant to its holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶53, wherein the Court found portions of Ohio s felony sentencing principles to be unconstitutional. The Court in Foster further established that trial courts are no longer required to make findings when imposing maximum, consecutive, or more than the minimum sentences. Id. at ¶100. {¶ 5} In case number CR-445445, appellant was convicted of two counts of drug trafficking, third degree felonies; one count of drug possession, a third degree felony; three counts of drug trafficking with major drug offender specifications, first degree felonies; two counts of drug possession with major drug offender specifications, first degree felonies; one count of drug possession with no major drug offender specification, a first degree felony; 1 and one count of possession of criminal tools, a fifth degree felony. {¶ 6} In its original sentencing entry in CR-445445, the trial court sentenced appellant to ten years, to run consecutive to the two years imposed in CR-427648. In Moore I, however, this court remanded the case to the trial court to correct a clerical error in its sentencing entry, where the trial court This count precipitates appellant s third assignment of error, wherein he argues the trial court erroneously stated that this charge contained a major drug offender specification. 1 had indicated that the first degree drug possession count that did not include a major drug offender specification required a mandatory ten-year term. On remand, the trial court sentenced appellant to a mandatory ten-year term for the three counts of drug trafficking with major drug offender specifications and one year for the third degree drug trafficking and drug possession charges; then the court stated that Counts 9, 11, 12, and 13 merged for sentencing. Noticeably, appellant was found not guilty on Count 12, which was an additional drug trafficking charge, and the trial court made no mention of Count 14, possession of criminal tools, on which appellant was found guilty. Additionally, although the court did not sentence appellant to a mandatory ten years on Count 13, which was the first degree drug possession charge with no major drug offender specification, it did mention earlier in its entry that the charge carried a major drug offender specification. {¶ 7} The sentences in CR-445445 and CR-427648 were to run consecutive to one another, for an aggregate sentence of 12 years. It is from these sentencing entries that appellant is currently appealing. He raises three assignments of error for our review. {¶ 8} I. The trial court erred by imposing the sentence in CR[-]427648 consecutively to the sentence in CR[-]445445. {¶ 9} II. In CR[-]445445, the convictions for drug trafficking and preparation of drugs for sale as they apply to the combination of counts four and five, and the combination of counts seven and eight, respectively, are allied offenses. 2 {¶ 10} III. The sentencing journal entry in CR[-]445445 must be corrected with respect to count thirteen. Law and Analysis Consecutive Sentences {¶ 11} In his first assignment of error, appellant argues that the trial court erred when it failed to make findings with regard to why the terms imposed in CR-445445 and CR-427648 should run consecutively. Appellant admits that Foster specifically held that such findings were not required, but relies on Oregon v. Ice (2009), U.S. , 129 S.Ct. 711, 172 L.Ed.2d 517, to argue that Foster was incorrect and should be overturned.3 {¶ 12} In Ice, the United States Supreme Court resolved whether the holdings of Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, govern consecutive sentencing decisions. Ice at 716. The At the oral argument in this matter, appellant s attorney acknowledged that the offenses addressed in the second assignment of error occurred on two separate dates, and thus they are not allied offenses. The second assignment of error was withdrawn; therefore, this argument will not be addressed. 2 At oral argument, appellant s attorney argued that this matter should be stayed pending the Ohio Supreme Court s disposition of State v. Hodge, Supreme Court Case Number 2009-1997, in which the Court will purportedly consider a substantially similar issue. 3 Apprendi and Blakely decisions essentially stand for the proposition that it is within the jury s province to determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular offense. Ice at 714. {¶ 13} In Foster, the Ohio Supreme Court held that consecutive sentences increase an offender s ultimate punishment, and thus Ohio s requirement that judges find certain facts before imposing consecutive sentences violated the principles set forth in Blakely. Foster at ¶67. In Ice, the United States Supreme Court held otherwise. stated: Specifically, the Court These twin considerations historical practice and respect for state sovereignty counsel against extending Apprendi s rule to the imposition of sentences for discrete crimes. The decision to impose sentences consecutively is not within the jury function that extends down centuries into the common law. Instead, specification of the regime for administering multiple sentences has long been considered the prerogative of the legislature. (Internal citations omitted.) Ice at 717. {¶ 14} This court has repeatedly chosen to apply the holding in Foster rather than Ice and reserve any reconsideration for the Ohio Supreme Court. Specifically, in State v. Woodson, Cuyahoga App. No. 92315, 2009-Ohio-5558, this court stated: We have responded to Oregon v. Ice in several recent decisions and concluded that we decline to depart from the pronouncements in Foster until the Ohio Supreme Court orders otherwise. Id. at ¶33, citing State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264, State v. Robinson, Cuyahoga App. No. 92050, 2009-Ohio-3379, and State v. Eatmon, Cuyahoga App. No. 92048, 2009-Ohio-4564. As the high court in this state, the Ohio Supreme Court s decision in Foster is binding on lower courts. Accordingly, it is not within our purview to step into the Supreme Court s shoes and reconsider Foster in light of the decision in Ice. {¶ 15} Appellant also argues that the Foster remedy cannot affect his sentence because Foster was decided subsequent to the imposition of his consecutive sentences and any retroactive application would be unconstitutional. This argument has no merit. In Foster, the Court held that [t]hese cases and those pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion. Foster at ¶104. Likewise, appellant s case has been before the Ohio Supreme Court on a prior occasion. The Court in State v. Moore, 117 Ohio St.3d 69, 2008-Ohio-501, 881 N.E.2d 860, ¶3, remanded appellant s case to the trial court for further consideration in light of its decision in Foster. {¶ 16} Accordingly, the decision in Foster remains binding, its retroactive application does not violate appellant s constitutional rights, and appellant s first assignment of error is overruled. Notice of Appeal {¶ 17} Before addressing appellant s third assignment of error on the merits, we must first address the state s jurisdictional arguments. In its original merit brief, the state argued that appellant failed to include case number CR-445445 in his notice of appeal, and thus his second and third assignments of error are not properly before this court.4 In support of its argument, the state relies on State v. Ryan, Cuyahoga App. No. 91508, 2009-Ohio-2494. For the reasons that follow, the state s reliance on Ryan is misguided, and we find that appellant s third assignment of error is properly before this court. {¶ 18} In Ryan, this court overruled one of appellant s assignments of error because it related to a case number for which the appellant did not file a notice of appeal. Id. at ¶5. Specifically, the court held that Ryan did not file an appeal in Case No. CR-506206. That case was a separate proceeding from this case and, therefore, is not properly before this court. Id. {¶ 19} When refusing to address the merits of Ryan s appeal, this court noted that the two cases were separate proceedings. In the case before us, the trial court considered case numbers CR-445445 and CR-427648 in a consolidated bench trial, and the cases were also consolidated for sentencing. It should be noted that this court sua sponte permitted appellant to amend his notice of appeal and permitted the state to file a supplemental merit brief addressing appellant s second and third assignments of error. 4 Accordingly, the proceedings at issue in this matter were not separate proceedings and it is clearly distinguishable from Ryan. Major Drug Offender Specification {¶ 20} In his third and final assignment of error, appellant argues that the trial court should be ordered to correct its resentencing entry. Specifically, appellant argues that in Moore I, the trial court was ordered to correct its original sentencing entry to reflect that there was no major drug offender specification with respect to Count 13 and that this error has reoccurred. This argument has merit. {¶ 21} In Moore I, the trial court [was] ordered to correct its journal entry to reflect that count thirteen did not contain a major drug offender specification. Moore I at ¶34. Although the trial court correctly indicated in its resentencing entry that Count 13 did not carry a mandatory 10 year sentence, the court mistakenly stated that this count carried a major drug offender specification. Because this error was not corrected, as ordered in Moore I, this case must once again be remanded for correction of the sentencing entry. Appellant s third assignment of error is well-taken. Other Problems in the Resentencing Entry {¶ 22} A review of the record reveals various other problems with the trial court s resentencing entry. We note at the outset that appellant failed to raise these issues in his merit brief, thus a plain error standard must be applied. To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Phillips, 74 Ohio St. 3d 72, 83, 1995-Ohio-171, 656 N.E.2d 643. {¶ 23} The first error that is readily apparent from a review of the record is that appellant was sentenced with respect to Count 12, drug trafficking, but appellant was acquitted of this specific count. The same error was addressed in Moore I, where this court stated that the trial court s journal entry refers to a conviction for count twelve, trafficking in drugs. The record reflects that [appellant] was acquitted of count twelve. Therefore, the trial court should also delete any reference to count twelve in its sentencing journal entry. Id. Since this particular problem has manifested itself again in the trial court s resentencing entry, the trial court is again ordered to delete any reference to Count 12 in its resentencing entry. {¶ 24} Another noticeable error in the trial court s resentencing entry appears with respect to Count 14, possession of criminal tools. At the resentencing hearing, the judge purported to sentence appellant to six months on this count, yet the resentencing entry makes no mention of Count 14. Accordingly, the trial court is ordered to address Count 14 when it resentences appellant in this matter. {¶ 25} The final error that is obvious from a review of the record relates to which counts merged for purposes of sentencing. In the resentencing entry, the trial court originally said that Counts 9, 11, 12, and 13 merged for sentencing.5 The entry later imposes a one year term on Counts 4, 5, and 6 and states that this one year term is to run concurrent to the terms imposed on Counts 4, 5, 6, 7, 8, 9, 11, and 13. The one year terms imposed on Counts 4, 5, and 6 cannot possibly run concurrent to the terms imposed for Counts 9 and 11 because those counts had purportedly merged for sentencing. Accordingly, the trial court is ordered to clarify exactly which counts merged at sentencing. Conclusion {¶ 26} The trial court did not commit reversible error when it sentenced appellant to consecutive sentences without making factual findings, nor did Foster s retroactive application violate appellant s constitutional rights. The trial court did, however, make numerous errors when resentencing appellant in an attempt to comply with our holding in Moore I, and these errors must be addressed on remand. {¶ 27} This cause is affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellant and appellee share 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 common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR., JUDGE MELODY J. STEWART, P.J., and ANN DYKE, J., CONCUR 5Counts 12 and 13 have already been addressed in this opinion.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.