[Cite as State v. Adams, 2017-Ohio-8245.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 27360
                                                  :
 v.                                               :   Trial Court Case No. 16-CR-2189
                                                  :
 JAREL S. ADAMS                                   :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                              OPINION

                           Rendered on the 20th day of October, 2017.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

JEFFREY GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering, Ohio
45429
      Attorney for Defendant-Appellant

                                            .............

HALL, P.J.
                                                                                             -2-




       {¶ 1} Jarel Adams was charged by indictment filed August 25, 2016 with two

counts of aggravated robbery and two counts of kidnapping, all felonies of the first degree.

Each charge also had a three-year firearm specification. On November 7, 2016 Adams,

accompanied by counsel, entered no-contest pleas to the charges and specifications. He

was sentenced to concurrent prison terms of three years for each of the felonies and to

two consecutive three-year terms for two firearm specifications, one for each victim, for

an aggregate nine years of mandatory imprisonment. Appellate counsel filed a brief under

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the

absence of any non-frivolous issues for our review. We informed Adams of the Anders

filing and advised him of his right to file his own brief and the time limit for doing so. Adams

has not filed a pro se brief, and the time for filing has expired.

                         The Facts and Course of Proceedings

       {¶ 2} On July 14, 2016 Adams entered a cosmetic and aroma store on North Main

Street in Dayton. At gunpoint he robbed the owner by taking money from the register, and

he robbed a patron by taking money from her purse. Adams also tied up each of the

victims with electrical cords. The owner thought the suspect might be someone she had

met. Based in part on a nearby surveillance camera and in part on Facebook entries,

Adams was believed to be the offender. He subsequently was positively identified by each

of the victims.

       {¶ 3} Adams moved to suppress his identification but later withdrew the motion and

entered guilty pleas to each of the charges and specifications. The guilty pleas were

prompted by the trial court’s representation that it would sentence Adams to seven years
                                                                                        -3-


in prison provided that an anticipated presentence investigation revealed no substantial

record or information other than a known prior felonious-assault conviction for which he

had completed a five-year prison sentence. The State did not agree to the trial court’s

sentencing proposal and the complainants did not agree with the Court’s sentencing

proposal either.

       {¶ 4} On November 7, 2016, at what was to be a sentencing hearing, the trial court

indicated it was “not legally allowed” to impose only a seven-year prison sentence

because, contrary to the prospective seven-year sentence represented at the plea

colloquy, two mandatory firearm specifications were required to be imposed consecutively

to the mandatory sentences for the four underlying charges, resulting in an aggregate

minimum of nine years in prison. Over Adams’ objection, the trial court vacated the guilty

pleas and indicated the proceedings would start over, including Adams’ right to proceed

to trial. But the trial court also indicated that it would sentence Adams to the minimum of

nine mandatory years in prison if he chose to enter no-contest pleas to the charges and

specifications, which would preserve his right to have an appellate determination of

whether all the firearm specifications should merge. The trial court then conducted a new

complete and thorough Crim.R. 11 plea colloquy. It concluded that Adams understood

the charges, his rights, and the proceedings, and that he entered his pleas voluntarily.

The trial court found him guilty of the charges and specifications.

       {¶ 5} On November 14, 2016 the trial court determined that the respective

aggravated robbery and kidnapping charges did not merge because the kidnappings were

committed not just to facilitate the robberies and with a separate animus to facilitate

escape and to prevent detection. As set forth above, the trial court imposed mandatory
                                                                                          -4-


three-year prison sentences for each offense, concurrently, consecutive to two three-year

mandatory firearm specifications, one for each victim, for an aggregate nine-year prison

sentence, the minimum the court could legally impose. The judgment entry reflects the

described prison sentences and the imposition of five years of mandatory post-release

control. The trial court ordered restitution of $1,394 and $380 for the respective victims

based on figures supplied by them, without objection or a hearing request, and ordered

payment of court costs. Adams appealed.

                            Potential Assignments of Error

       {¶ 6} In the Anders brief, appointed appellate counsel asks us to review two

potential assignments of error but does not present any analysis of them. They are (1)

“[w]hether the Trial Court erred in deciding not to impose the seven-year sentence it had

conditionally agreed to impose and in vacating Appellant’s guilty pleas” and (2) “[w]hether

the Trial Court provided an incorrect explanation to Appellant of the reason why the

sentence it had conditionally agreed to impose was not legally allowed, and, if said

explanation was incorrect, whether the Court’s explanation constituted harmless error.”

       {¶ 7} Upon review, we conclude that the trial court did not err in declining to impose

the seven-year sentence Adams sought. We also conclude that the trial court’s

explanation about why it could not impose that sentence was adequate. Any arguments

to the contrary are frivolous. As set forth above, Adams offered to plead guilty to all

charges and specifications in response to the trial court’s representation that it would

impose an aggregate seven-year sentence. (Tr. at 4). Again, the State and the

complainants did not agree to this plea proposal. (Id). Although the trial court initially

represented it would sentence Adams to seven years, at the scheduled sentencing it
                                                                                         -5-


recognized that the minimum aggregate sentence it could impose was nine years in

prison.

       {¶ 8} The shortest lawful sentence for Adams’ four substantive counts, if all were

to run concurrently, was an aggregate three-year prison term. The offenses were first-

degree felonies with mandatory minimum three-year prison terms due to Adams’ prior

conviction for felonious assault. See R.C. 2929.14(A)(1); R.C. 2929.13(F)(6). Nothing

prohibited them from being served concurrently. With regard to the four firearm

specifications, the trial court was required to impose at least two separate three-year

prison terms for them. State v. Pugh, 2d Dist. Montgomery No. 26448, 2015-Ohio-2558,

¶ 9, citing R.C. 2929.14(B)(1)(g), which requires a trial court to impose separate prison

terms for each of the two most serious firearm specifications when they are attached to

certain listed serious felonies, which includes aggravated robbery convictions. In addition,

the two three-year prison terms for the firearm specifications were required to be served

consecutively to each other and consecutively to the three-year term for the substantive

offenses. See R.C. 2929.14(C)(1)(a); State v. Kendrick, 10th Dist. Franklin No. 15AP-835,

2016-Ohio-4770, ¶ 7-8. The result was that the trial court was statutorily required to

impose a mandatory minimum nine-year prison sentence. The aggregate seven-year

sentence the trial court initially represented it would impose was and is contrary to law.

That being so, we see no non-frivolous argument regarding the trial court’s rejection of

the seven-year sentence.

       {¶ 9} We also see no non-frivolous argument concerning the trial court’s

explanation of its inability to impose a seven-year sentence. In addressing the issue, the

trial court stated:
                                                                                        -6-


              * * * We had a plea agreement, essentially there was a plea

       agreement wherein the Court and the Defendant came to an agreement

       with regard to the sentence and a particular term. However, we have

       subsequently learned that that sentence is not available given the Counts

       and the specifications.

              So the Court will, in essence, vacate the plea. It’s as if a plea was

       not entered * * *.

                                          ***

              * * * There was a mistake made not by the Court on the sentence.

       We indicated a sentence that is not legally allowed. It was a—Court was

       under the understanding that given that this was one transaction in

       occurrence that in that kind of situation, firearm specifications can be

       merged into one firearm specification. But, in a situation like this where you

       have a kidnapping, a high degree felony; you have two felonies of the first

       degree here. Each has a three year firearm specification. And in that

       situation—situation unlike some other situations with regard to firearm

       specifications, the firearm specifications can’t be merged into one. They

       have to be run consecutively. So, legally, we cannot merge the firearm

       specifications as I thought we could when we discussed this before.

(Tr. at 19-21).

       {¶ 10} Although the trial court did not recite the statutory language, it properly

conveyed the notion that it was required to impose two consecutive sentences on the

firearm specifications and that it could not merge them all. The only misstatement in the
                                                                                              -7-


foregoing explanation was its citation of the kidnapping convictions as the predicate for

its obligation to impose two separate sentences for the firearm specifications. Under R.C.

2929.14(B)(1)(g), it was the existence of the aggravated robbery convictions that

triggered multiple sentences on the firearm specifications. The prosecutor clarified this

fact following the trial court’s explanation. (Tr. at 23). The trial court also later opined that

two separate sentences on the firearm specifications were required because there were

two victims. (Id. at 24). In any event, there is no possible prejudicial error to Adams given

that the trial court statutorily was required to impose at least an aggregate nine-year

sentence, which included two consecutive three-year terms on the firearm specifications,

and correctly told Adams so before vacating the initial plea.

       {¶ 11} Finally, we see no non-frivolous issue regarding whether the trial court

properly vacated the initial plea and allowed Adams to start anew. There is simply no

case law that allows a trial court to enter a sentence that is contrary to law. We need not

and do not have to consider whether a plea, had it been with the agreement of the State,

might require the State to fulfill its agreement, perhaps by requiring the State to nolle one

of the firearm specifications, making a seven-year sentence possible because there is no

question that the State made no plea agreement here. Upon concluding that nine years

was the minimum sentence the court could legally impose, there is no question that

Adams’ plea was not entered knowingly, intelligently and voluntarily because the

information upon which he entered his plea was clearly wrong. The trial court had no

choice but to vacate the plea and start over. Any assignment of error to the contrary is

without arguable merit.

                                       Anders Review
                                                                                      -8-

      {¶ 12} We also performed our duty under Anders to conduct an independent

review of the record. We thoroughly reviewed the docket, the various filings, and the

written transcripts, including the pleas and the sentencing disposition. We found no non-

frivolous issues for review. Accordingly, the judgment of the Montgomery County

Common Pleas Court is affirmed.




DONOVAN, J. AND FROELICH, J., concur.




Copies mailed to:

Mathias H. Heck
Andrew T. French
Jeffrey T. Gramza
Jarel S. Adams
Hon. Timothy N. O’Connell
