[Cite as State v. Thompson, 2014-Ohio-2271.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100335




                                     STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                              KENNETH THOMPSON

                                                            DEFENDANT-APPELLANT



                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-574009

        BEFORE:         Jones, J., Boyle, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                    May 29, 2014
ATTORNEY FOR APPELLANT

Allison S. Breneman
1220 West 6th Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mahmoud Awadalla
        Brian Hoffman
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant Kenneth Thompson appeals his consecutive sentence in

Case No. CR-13-574009. We affirm.

       {¶2} Thompson was charged with failure to provide notice of change of address in

Case No. CR-13-574215. In Case No. CR-13-574009, Thompson was charged with 13

crimes relative to the physical and sexual assault of the primary victim.   The cases were

disposed of together at the trial court level.

       {¶3} The state and defense entered into plea negotiations and reached an

agreement.    Thompson pleaded guilty to an amended charge in Case No. CR-13-574215.

 In Case No. CR-13-574009, he pleaded guilty to Count 3, that was amended to reflect

sexual battery; Count 4, kidnapping, that was amended to delete the indicted

specifications; and Count 11, that was amended to reflect attempted felonious assault and

to name two additional victims. The remaining counts and specifications were nolled.

As part of the plea bargain, the state and defense agreed that the sexual battery and

kidnapping counts were not allied offenses; the agreement was not placed on the record at

the plea hearing, however.

       {¶4} The following facts gave rise to the charges.        The primary victim and

Thompson had been intimately involved with each other. The first event, which was the

subject of Count 11, attempted felonious assault, occurred in March 2013, and involved

the primary victim waking up to Thompson holding a knife to her throat, threatening her.

 He also threatened the additionally named victims, who were the primary victim’s
housemates.

       {¶5} The primary victim reported Thompson’s actions to the police, a prosecution

against him was initiated, but the charges were no-billed because of the primary victim’s

failure to pursue the prosecution.

       {¶6} The second incident, that was the subject of Count 3, sexual battery, and

Count 4, kidnapping, occurred in April 2013. Thompson sexually assaulted the primary

victim, who was then able to escape from him to her bedroom, where she closed and

locked the door. Thompson, however, kicked the door open and physically assaulted

her, splitting her lip during the attack.   He would not let her leave the house to get help.

A neighbor heard her screaming, went into the house, and found the victim lying on the

floor, naked, bleeding, and unconscious. The neighbor woke the victim up and helped

her get dressed.    The police arrived on the scene and could hear the victim screaming

and Thompson screaming obscenities at her.

       {¶7} The trial court sentenced Thompson to a nine-year prison term, which

included a consecutive sentence on the sexual battery and kidnapping charges.

Thompson appeals and presents the following two assignments of error for our review:

       I. Appellant was denied effective assistance of counsel in violation of
       Amendments VI and XIV, United States Constitution; and Article I, Section
       10, Ohio Constitution.
       II. The trial court erred by imposing consecutive sentences.

       {¶8} In his first assignment of error, Thompson contends that his trial counsel was

ineffective because he “failed to establish that [the sexual battery and kidnapping] were

allied offenses during the plea hearing, which prejudiced [Thompson] during sentencing
when he was sentenced to consecutive sentences for these two counts.”

       {¶9} The standard of review for ineffective assistance of counsel was stated by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). In order to support a claim of ineffective assistance of

counsel, the defendant must satisfy a two-prong test. First, he must show that counsel’s

performance was deficient. Id. This requires a showing that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed the defendant by the

Sixth Amendment. Id.

       {¶10} A properly licensed attorney is presumed to be competent. Id. at 688. In

order to rebut this presumption, the defendant must show the actions of counsel did not

fall within a range of reasonable assistance. Id. at 689.   The court in Strickland stated,

“[t]here are countless ways to provide effective assistance in any given case. * * *” Id.

Therefore, “[j]udicial scrutiny of counsel’s performance must be highly deferential. * * *”

 Id. “A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Id. In addition, “[b]ecause of the difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance * * *.” Id.

       {¶11} Second, the defendant must show the deficient performance prejudiced the

defense.   In order to satisfy this prong, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s * * * errors, the result of the proceeding

would have been different.” Id. at 694.      In the context of a guilty plea, the defendant

must demonstrate that there is a reasonable probability that, but for his counsel’s errors,

he would not have pled guilty and instead would have insisted on going to trial. Hill v.

Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Curd, 11th

Dist. Lake No. 2003-L-030, 2004-Ohio-7222, ¶ 110.

       {¶12} Thompson is unable to demonstrate that his counsel’s performance was

deficient.    There was no discussion at the plea hearing as to whether the sexual battery

and kidnapping counts would merge.           But the court informed Thompson that his

maximum prison exposure was 22 years, which would only be possible if the court ran the

sexual battery and kidnapping counts consecutive.            Thompson indicated that he

understood.

       {¶13} At sentencing, the assistant prosecuting attorney informed the court that

there was no merger of the sexual battery and kidnapping counts, as agreed to by the

parties as part of the plea bargain.   The court inquired about the non-merger, and defense

counsel admitted that, as part of the plea, Thompson stipulated that the offenses would

not merge, but he argued that they were “connected” and “it doesn’t mean that you have

to run them consec[utive].”

       {¶14} The court told the parties to “go back to the drawing board” because it was

going to impose a consecutive sentence and it needed to know if the plea was “on the

table” or not.    The assistant prosecuting attorney reiterated that the agreement between
the parties was that the two counts would not merge, and defense counsel also reiterated

that was the agreement, stating: “That is the agreement, your Honor.         I will state that

unequivocally on the record; however, I do not believe the Court has to impose a

consecutive sentence.”

         {¶15} On this record, counsel was not deficient for failing to “establish that [the

sexual battery and kidnapping] were allied offenses during the plea hearing,” as

Thompson contends. The record reflects that, as part of the plea bargain, Thompson

agreed that the two offenses would not merge, and the plea colloquy advisement of his

possible maximum prison term accounted for the possibility of the sexual battery and

kidnapping counts being run consecutive.

         {¶16} Further, the record supported the parties’ agreement that the two counts not

merge.     Thompson sexually assaulted the primary victim, who was then able to escape

from him to her bedroom, where she closed and locked the door.           Thompson, however,

kicked the door open and physically assaulted her, splitting her lip during the attack. He

would not let her leave the house to get help. Thus, the sexual assault and kidnapping

were two separate crimes.

         {¶17} In regard to the second Strickland factor, even after being advised of the

potential maximum sentence, that could only occur based on non-merger of the subject

counts, Thompson pled guilty. Thus, he has failed to demonstrate that the result of the

proceeding would have been any different.

         {¶18} The first assignment of error is, therefore, overruled.
       {¶19} For his second assignment of error, Thompson contends that the trial court

erred in sentencing him to consecutive terms on the sexual battery and kidnapping counts.

       {¶20} First, Thompson contends that the offenses were allied, and that the trial

court made the same determination.        We disagree.    The court inquired whether they

were allied because they arose from the “same date and time.”        After it was explained

that they were not, and that the parties had stipulated to that, the court accepted that they

were not allied offenses.

       {¶21} We are not persuaded by Thompson’s argument that the court found

otherwise because it stated that they arose from the “same date and time.”     The incidents

occurred on the same date, within the same time frame, but, as just discussed, they were

separate occurrences that involved Thompson sexually assaulting the primary victim, then

refusing to let her go to seek help.   In fact, the court made a specific finding that “based

on the facts and circumstances” these were “two separate incidents,” and the primary

victim was “victimized twice.”     On this record, the sexual battery and kidnapping had

separate animuses and, thus, were not allied offenses.

       {¶22} Second, Thompson contends that the trial court’s findings for the imposition

of consecutive sentences were not supported by the record.

       {¶23} Under R.C. 2953.08(G)(2), we may overturn the imposition of a consecutive

sentence if (1) the sentence is otherwise contrary to law or (2) we clearly and

convincingly find that the record does not support the sentencing court’s findings under

R.C. 2929.14(C)(4). See State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 11; State v.
Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 6.

      {¶24} In imposing consecutive sentences, R.C. 2929.14(C)(4) requires that the trial

court must find that the sentence is “necessary to protect the public from future crime or

to punish the offender,” 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 the existence of one of the three statutory factors set forth in R.C.

2929.14(C)(4)(a)-(c), which are as follows:

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

      awaiting trial or sentencing, while under a sanction imposed pursuant to

      R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a

      prior offense; (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 offenses 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; or (c) the offender’s

      history of criminal conduct demonstrates that consecutive sentences are

      necessary to protect the public from future crime by the offender.

      {¶25} In imposing consecutive terms on Thompson, the trial court found that

consecutive sentences were necessary to protect or punish and were not disproportionate

to the seriousness of Thompson’s conduct and the danger he posed to the public. The

court further found the following:
      I believe that the offender’s criminal history, especially with regard to the
      sexual battery from 1996, and the facts and circumstances that I read into
      the record of that case as well as the continuing course of illegal conduct
      from * * * after his release from prison * * * and his continued
      nonreporting of his whereabouts to the county sheriff warrant consecutive
      sentences. I also find that, based on the facts and circumstances of the
      police report, portions of which I read into the record, with regard to the
      sexual battery, * * * the harm was so great or unusual that one term would
      not adequately reflect the seriousness of the conduct.

      {¶26} Thompson does not contend that the trial court did not make the required

findings but, rather, he contends that the record does not support them. According to

Thompson, (1) he and the victim were in an “intimate, consensual relationship,” (2) he is

not a danger to the public, and (3) there was nothing “so serious and unusual” about his

conduct.   We disagree.

      {¶27} The record clearly demonstrates that there was nothing consensual about

Thompson and the primary victim’s encounter that led to the charges here.      The police

report from that incident indicated that a neighbor heard the victim loudly screaming at

Thompson to “stop” and “get off.”    Another neighbor also heard the victim “yelling for

help like she was under duress.”    Moreover, when the police arrived at the home they

heard Thompson yelling obscenities at the victim.

      {¶28} The record also belies Thompson’s contention that he is not a danger to the

public. He has a significant history of criminal offenses, including violent ones.    For

example, in 1996, he was convicted of sexual battery, which resulted from him

approaching two teenaged girls and offering them a ride.   The girls accepted, but he took

them to a location other than their intended destination, told them he possessed a firearm
and would shoot them if they did not have sex with him, and then had sex with one of

them.

        {¶29} We are also not persuaded by Thompson’s contention that there was nothing

so “serious and unusual” about his conduct. For all the reasons previously discussed,

this was a serious, violent offense.

        {¶30} In light of the above, the second assignment of error is overruled.

        {¶31} Judgment affirmed.

        It is ordered that appellee recover from appellant 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.




LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
KEYWORDS:
#100335


        Ineffective assistance of counsel; R.C. 2929.14 (C)(4)/sentencing/consecutive. As
part of the pleas agreement, the parties agreed that the sexual battery and kidnapping
counts would not merge, and appellant pled guilty. Trial counsel was not ineffective for
not establishing that the two charges were allied offenses. Appellant’s contention that
the record does not support consecutive sentences is not based on fact. The record shows
clearly that appellant is a danger to society, that he has a significant history of criminal
offenses, and that appellant was not in a consensual relationship with the victim. The
trial court did not err in imposing consecutive sentences.
