[Cite as State v. McDowell, 2014-Ohio-3900.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.       26697

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DURELL L. MCDOWELL                                   COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 12 06 1651

                                DECISION AND JOURNAL ENTRY

Dated: September 10, 2014



        MOORE, Judge.

        {¶1}    Appellant, Durell McDowell, appeals the judgment of the Summit County Court

of Common Pleas. This Court affirms in part and reverses in part.

                                                I.

        {¶2}    Early on the morning of May 16, 2012, two men attacked Dwight Fish outside a

CVS pharmacy. According to Mr. Fish, who was homeless at the time, he approached the men’s

car because he believed that one of them had offered him a place to sleep. Mr. Fish was wrong

about the man’s identity, however, and found himself in a confrontation with a man whom he

had set up in a controlled drug buy for the Akron Police Department. As a result of the physical

encounter that ensued, Mr. Fish suffered a bruised rib and several other injuries, and his

assailants took $43 cash from his pocket before he fled on foot.

        {¶3}    Akron Police identified Mr. McDowell as “Rail,” one of the men selected by Mr.

Fish from a photo array after the attack. Mr. McDowell was charged with aggravated robbery in
                                                2


violation of R.C. 2911.01, along with a gun specification pursuant to R.C. 2941.145, (2)

intimidation of a crime victim or witness in violation of R.C. 2921.04(B), and (3) robbery in

violation of R.C. 2911.02(A)(2), along with a gun specification. A jury found Mr. McDowell

guilty of aggravated robbery, robbery, and intimidation, but not guilty of the gun specification.

The trial court merged the robbery offenses for purposes of sentencing and sentenced Mr.

McDowell to seven years in prison.        The trial court also concluded that Mr. McDowell

committed the crimes while he was on post-release control and sentenced him to an additional

one-year prison term. Mr. McDowell appealed.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       FINDING [MR.] MCDOWELL GUILTY OF AGGRAVATED ROBBERY
       BECAUSE IT WAS BASED UPON AN INCONSISTENT JURY VERDICT.

       {¶4}    In his first assignment of error, Mr. McDowell has argued that the trial court

should have acquitted him of aggravated robbery because the jury found him not guilty of the

accompanying gun specification. We disagree.

       {¶5}    “The several counts of an indictment containing more than one count are not

interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to

different counts, but only arises out of inconsistent responses to the same count.” State v.

Brown, 12 Ohio St.3d 147 (1984), syllabus. Thus, when a jury returns a guilty verdict on one

charge but returns a verdict of not guilty on a related charge, the verdicts may appear factually

inconsistent, but reversal is not warranted on that basis. U.S. v. Powell, 469 U.S. 57, 62-67

(1984). This holds true even when a defendant is found guilty of an offense, but not guilty of the

predicate offense. Id. at 64. “[A] verdict that convicts a defendant of one crime and acquits him
                                                3


of another, when the first crime requires proof of the second, may not be disturbed merely

because the two findings are irreconcilable.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-

2787, ¶ 81. See also Powell at 67. Similarly, a finding of not guilty on a specification is

independent of a finding of guilt on the principal offense charged. State v. Perryman, 49 Ohio

St.2d 14, 26 (1976). “Specifications are considered after, and in addition to, the finding of guilt

on the principal charge.” Id.

       {¶6}    Mr. McDowell was convicted of aggravated robbery in violation of R.C.

2911.01(A)(1), which prohibits the commission of a theft offense when the offender “ha[s] a

deadly weapon on or about the offender’s person or under the offender’s control and either

display[s] the weapon, brandish[es] it, indicate[s] that the offender possesses it, or use[s] it.”

The jury found him not guilty of a gun specification as set forth in R.C. 2941.145(A), which

provides for a mandatory three-year prison term when an offender has a firearm “on or about the

offender’s person or under the offender’s control while committing the offense and displayed the

firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to

facilitate the offense.” Although the principal charge and the gun specification arose from the

same set of facts and share common elements, they are independent for purposes of the jury’s

consideration. Perryman at 26. To the extent that the jury’s findings on the principal charge and

the specification are factually irreconcilable, that is not grounds for reversal of Mr. McDowell’s

conviction for aggravated robbery. See Gardner at ¶ 81.

       {¶7}    Mr. McDowell’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ORDERING RESTITUTION WITHOUT MAKING A FINDING OR
       NOTIFYING [MR.] MCDOWELL IN OPEN COURT.
                                                  4


        {¶8}   Mr. McDowell’s second assignment of error argues that the trial court erred when

it ordered him to pay restitution to the victim in its sentencing order without first notifying him

that it would impose restitution during the sentencing hearing. We agree.

        {¶9}   This Court reviews a sentence in two steps. First, we consider whether the

sentence is contrary to law by examining whether the trial court complied with the applicable

rules and statutes. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. If the sentence is

not contrary to law, we proceed to the second step and consider whether the sentence in the

particular case reflects an abuse of the trial court’s discretion in sentencing. Id.

        {¶10} Restitution to crime victims is authorized by R.C. 2929.18(A), which provides, in

part:

        [T]he court imposing a sentence upon an offender for a felony may sentence the
        offender to any financial sanction or combination of financial sanctions
        authorized under this section * * *. Financial sanctions that may be imposed
        pursuant to this section include, but are not limited to, the following:

        (1) Restitution by the offender to the victim of the offender’s crime or any
        survivor of the victim, in an amount based on the victim’s economic loss. If the
        court imposes restitution, the court shall order that the restitution be made to the
        victim in open court, to the adult probation department that serves the county on
        behalf of the victim, to the clerk of courts, or to another agency designated by the
        court. If the court imposes restitution, at sentencing, the court shall determine the
        amount of restitution to be made by the offender. * * * If the court decides to
        impose restitution, the court shall hold a hearing on restitution if the offender,
        victim, or survivor disputes the amount.

This statute imposes the clear requirement that if the trial court orders restitution to the crime

victim, it must do so “in open court.” Id. See also State v. Perkins, 2nd Dist. Montgomery No.

25808, 2014-Ohio-1863, ¶ 32-34; State v. Veto, 8th Dist. Cuyahoga No. 98770, 2013-Ohio-1797,

¶ 13-19; State v. Ray, 4th Dist. Scioto No. 04CA2965, 2006-Ohio-853, ¶ 17-18.                   By not

imposing restitution upon Mr. McDowell in open court, the trial court erred.

        {¶11} Mr. McDowell’s second assignment of error is sustained.
                                                5


                                 ASSIGNMENT OF ERROR III

         THE TRIAL COURT COMMITTED REVERSIBLE, PLAIN AND
         STRUCTURAL ERROR IN SENTENCING [MR.] MCDOWELL TO A ONE-
         YEAR PRISON SENTENCE FOR VIOLATING POST-RELEASE CONTROL
         WHEN THE JURY DID NOT FIND BEYOND A REASONABLE DOUBT
         THAT [MR.] MCDOWELL HAD VIOLATED HIS POST-RELEASE
         CONTROL IN VIOLATION OF HIS SXITH AMENDMENT AND
         FOURTEENTH AMENDMENT [SIC] TO THE U.S. CONSTITUTION.

         {¶12} Mr. McDowell’s third assignment of error argues that the trial court erred by

imposing an additional twelve-month prison sentence for a violation of post-release control and

by ordering the sentence to be served consecutively for the same reason. Specifically, Mr.

McDowell has argued that the fact that he was on post-release control when the crime was

committed was a fact that had to be found by a jury.

         {¶13} When an offender commits a felony during a period on post-release control, R.C.

2929.141(A)(1) permits a trial court to terminate post-release control and impose a new prison

term for the violation of post-release control to be served consecutively with any prison term

imposed for the new felony. R.C. 2929.141(A)(1). A trial court must inform an offender at the

time of sentencing that this consequence may follow from a violation of post-release control.

R.C. 2929.19(B)(1)(e).

         {¶14}   In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme

Court concluded that with respect to the federal sentencing guidelines, any fact other than a prior

conviction that increases the maximum sentence must be found by a jury beyond a reasonable

doubt.    See also Blakely v. Washington, 542 U.S. 296 (2004).         The Ohio Supreme Court

considered Ohio’s felony sentencing guidelines in light of Apprendi in State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856. In that case, the Court concluded that, consistent with Apprendi and

Blakely, Ohio’s sentencing statutes were unconstitutional to the extent that they required
                                                 6


factfinding for maximum sentences, sentences greater than the minimum, consecutive sentences,

repeat violent offender sentences, and major drug offender sentences. R.C. 2929.141(A)(1) was

not affected by the Foster decision.

       {¶15} The constitutional concerns raised by Apprendi, Blakely, and Foster are not

present in this case for two reasons. First, and fundamentally, R.C. 2929.141(A)(1) does not

function as an enhancement to an offender’s felony sentence based on additional facts. Instead,

it permits the imposition of a separate prison term when a felony is committed during a period of

post-release control related to a previous felony sentence. As a procedural protection, courts

must inform the offender that this consequence could result from a violation of post-release

control when the offender is sentenced on the original charge. See generally State v. Jordan, 104

Ohio St.3d 21, 2004-Ohio-6085.         Second, even if viewed as analogous to a sentencing

enhancement, the fact that an offender was on post-release control at the time that a subsequent

felony was committed is a fact akin to a previous conviction. It can be determined from

information contained in court documents and, because it relates to recidivism, “‘is a traditional,

if not the most traditional, basis for a sentencing court's increasing an offender’s sentence.’”

State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, ¶ 35, quoting Apprendi at 488. See also

State v. Bostick, 9th Dist. Summit No. 26880, 2013-Ohio-5784, ¶ 15 (noting that prior

convictions, “stand[] apart from other facts that may serve to increase a potential penalty.”).

       {¶16} The trial court did not err by imposing a one-year prison term upon Mr.

McDowell because he committed the crimes at issue during a period of post-release control.

Because “[t]he existence of “error * * * [is] the starting point for a plain-error inquiry,” Mr.

McDowell’s third assignment of error must be overruled whether analyzed as plain error or not.

State v. Hill, 92 Ohio St.3d 191, 200 (2001).
                                               7


                                ASSIGNMENT OF ERROR IV

       [MR.] MCDOWELL WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
       COUNSEL FAILED TO OBJECT AT HIS SENTENCING HEARING WHEN
       THE TRIAL COURT IMPROPERLY IMPOSED A ONE-YEAR PRISON
       SENTENCE FOR VIOLATING POST-RELEASE CONTROL WHEN THE
       JURY DID NOT FIND BEYOND A REASONABLE DOUBT THAT [MR.]
       MCDOWELL HAD VIOLATED HIS POST-RELEASE CONTROL.

       {¶17} Mr. McDowell’s fourth assignment of error argues that trial counsel provided

ineffective assistance by failing to object to the imposition of a prison sentence for violating

post-release control. We disagree.

       {¶18} This Court must analyze claims of ineffective assistance of counsel under a

standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);

State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1)

deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland, 466 U.S. at

687. Mr. McDowell’s fourth assignment of error must be overruled because, as explained above,

there was no error in the imposition of the post-release control sanction to which counsel should

have objected. In other words, counsel’s performance was not deficient, so it follows that it was

not ineffective. See State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 14.

       {¶19} Mr. McDowell’s fourth assignment of error is overruled.
                                                 8


                                  ASSIGNMENT OF ERROR V

        THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
        SENTENCING [MR.] MCDOWELL TO A ONE-YEAR PRISON SENTENCE
        FOR VIOLATING POST-RELEASE CONTROL WITHOUT SUFFICIENT
        EVIDENCE THAT HE WAS ON POST-RELEASE CONTROL.

                                 ASSIGNMENT OF ERROR VI

        [MR.] MCDOWELL WAS DENIED HIS CONSTITUTIONAL RIGHT TO
        EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
        COUNSEL FAILED TO OBJECT AT HIS SENTENCING HEARING WHEN
        THE TRIAL COURT IMPROPERLY IMPOSED A ONE-YEAR PRISON
        SENTENCE FOR VIOLATING POST-RELEASE CONTROL WITHOUT
        SUFFICIENT EVIDENCE THAT HE WAS ON POST-RELEASE CONTROL.

        {¶20} Mr. McDowell’s fifth and sixth assignments of error allege error in connection

with the evidence supporting the trial court’s conclusion that he had committed these crimes

during a period of post-release control.

        {¶21} It appears from the transcript of sentencing that the trial court determined the fact

of Mr. McDowell’s violation of post-release control based, at least in part, on the contents of the

presentence investigation report prepared before sentencing. As the State noted at sentencing,

however, the presentence investigation report did not address the length of time remaining on

Mr. McDowell’s period of post-release control. During sentencing, the State calculated the

period remaining based on Mr. McDowell’s release date, with the assent of both defense counsel

and the trial court.

        {¶22} With respect to the fact that Mr. McDowell was on post-release control, however,

we cannot examine the record because the presentence investigation report is not part of the

record on appeal. When an appellant does not provide a complete record to facilitate our review,

we must presume regularity in the trial court’s proceedings and affirm. State v. Jalwan, 9th Dist.

Medina No. 09CA0065-M, 2010-Ohio-3001, ¶ 12, citing Knapp v. Edwards Laboratories, 61
                                                 9


Ohio St.2d 197, 199 (1980). Consequently, when the contents of a presentence investigation

report are necessary to review the appropriateness of a sentence, an appellant must move to

supplement the record on appeal with the report to enable our review. See State v. Banks, 9th

Dist. Summit No. 24259, 2008-Ohio-6432, ¶ 14.

       {¶23} Mr. McDowell did not move to supplement the record on appeal with the

presentence investigation report so, to the extent that his fifth and sixth assignments of error

require us to consider the evidence related to the fact of his post-release control, we must

presume regularity and affirm.

       {¶24} Mr. McDowell’s fifth and sixth assignments of error are overruled.

                                                III.

       {¶25} Mr. McDowell’s second assignment of error is sustained. His first, third, fourth,

fifth, and sixth assignments of error are overruled. This matter is affirmed in part and reversed in

part and remanded to the trial court for proceedings consistent with our disposition of Mr.

McDowell’s second assignment of error.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                10


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

NEIL AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
