[Cite as State v. Holloway, 2013-Ohio-4400.]




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

 STATE OF OHIO                                     :
                                                   :     Appellate Case No. 2010-CA-63
          Plaintiff-Appellee                       :
                                                   :     Trial Court Case Nos. 04-CR-527
 v.                                                :     Trial Court Case Nos. 04-CR-586
                                                   :
 AKEYINDE HOLLOWAY                                 :     (Criminal Appeal from
                                                   :     (Common Pleas Court)
          Defendant-Appellant                      :
                                                   :
                                               ...........

                                               OPINION

                              Rendered on the 4th day of October, 2013.

                                               ...........

DAVID A. WILSON, Atty. Reg. #0073767, by LISA M. FANNIN, Atty. Reg. #0082337, Clark
County Prosecutor’s Office, 50 East Columbia Street, Post Office Box 1608, Springfield, Ohio
45502
      Attorney for Plaintiff-Appellee

JEREMY M. TOMB, Atty. Reg. #0079664, Klein, Tomb & Eberly, LLP, 124 West Main Street,
Troy, Ohio 45373
       Attorney for Defendant-Appellant

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

FAIN, P.J.

        {¶ 1}      Defendant-appellant Akeyinde Holloway appeals from his conviction and
                                                                                                 2


sentence for Possession of Crack Cocaine, Trafficking in Crack Cocaine, Carrying Concealed

Weapons, Having Weapons Under Disability, and Possession of Heroin. He contends that the

trial court erred by failing to merge the charges of Possession of, and Trafficking in, Crack

Cocaine for purposes of sentencing. He further contends that the trial court abused its discretion

in sentencing him to consecutive prison terms. He argues that he was denied his right to

effective assistance of counsel and asks that we reverse and amend his sentence without sending

the matter back to the trial court.

        {¶ 2}    We conclude, as conceded by the State, that the trial court did err in failing to

merge the Crack Cocaine charges for purposes of sentencing. We also conclude that the trial

court did not abuse its discretion in imposing consecutive sentences. We further conclude that

the record reflects that although trial counsel was unfamiliar with the case at the time Holloway

was re-sentenced on remand, counsel’s lack of familiarity with the case did not likely adversely

affect the outcome of the sentencing hearing. Finally, we decline to amend Holloway’s prison

sentence; this cause shall be remanded for the State to elect which conviction, Trafficking in

Crack Cocaine or Possession of Crack Cocaine, shall survive merger, and for the trial court to

sentence on the surviving conviction.



                                  I. The Course of Proceedings

        {¶ 3}    In 2004, in Case No. 2004-CR-527, Holloway was indicted for, and convicted of,

one count of Trafficking in Crack Cocaine, one count of Possession of Crack Cocaine and one

count of Possession of Heroin. In Case No. 2004-CR-586, Holloway was indicted for, and

convicted of, one count of Carrying Concealed Weapons, one count of Having Weapons While
                                                                                                3


Under a Disability, one count of Possession of Heroin and one count of Possession of Crack

Cocaine.

       {¶ 4}   In Case No. 04-CR-527, Holloway was sentenced to a prison term of 4 years on

Count I, Trafficking in Crack Cocaine, 7 years on Count II, Possession of Crack Cocaine and 18

months on Count III, Possession of Heroin. The sentences of 4 and 7 years were ordered to run

concurrently with one other and consecutively with the 18-month sentence.          In Case No.

04-CR-586, Holloway was sentenced to 17 months on Count I, Carrying a Concealed Weapon,

11 months on Count II, Having Weapons While Under a Disability, 17 months on Count III,

Possession of Heroin, and 11 months on Count IV, Possession of Crack Cocaine. The first two

sentences of 17 months and 11 months were ordered to run concurrently with one another, and

consecutively to the second two sentences of 17 months and 11 months. The sentences in the

two cases were ordered to run consecutively to each other.

       {¶ 5}      Holloway appealed, and counsel submitted a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel stated that no

meritorious issue could be identified for appellate review. State v. Holloway, 2d Dist. Clark No.

04CA0070, 2006-Ohio-4797, ¶ 1 (Holloway I). This court identified a potential reversible error

and appointed new counsel to brief the issue of whether the warrantless search of Holloway’s

hotel room that resulted in the subsequent convictions was improper. Id. at ¶ 1, 2. After the

matter was submitted to this court by newly appointed counsel, we determined that the search

was proper. Id. at ¶ 2. However, we reversed and vacated the sentences and remanded the

matter for resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470. Id.
[Cite as State v. Holloway, 2013-Ohio-4400.]
        {¶ 6}     In 2007, we granted Holloway’s application to reopen his appeal based upon a

claim of ineffective assistance of appellate counsel. State v. Holloway, 2d Dist. Clark No.

04CA70, 2008-Ohio-2240, ¶ 1 (Holloway II). Specifically, Holloway alleged that appellate

counsel had been ineffective for failing to raise trial counsel’s failure to object to certain hearsay

testimony at trial. Id. at ¶ 3. We sustained Holloway’s assignment of error and reversed his

conviction and sentence on the two drug possession offenses in Case No. 2004-CR-586. Id. at ¶

15.

        {¶ 7}     At Holloway’s re-sentencing hearing in 2010, the trial court recited the

procedural history of the case.         Holloway and his trial counsel then made the following

statements:

                 DEFENSE COUNSEL:              Well, Your Honor, as I had indicated to the

        defendant, I didn’t learn I was expected to be here until this morning. We never

        represented this defendant on this case.

                 We were removed due to a conflict of interest in the very beginning before

        the case had any hearings or trial. I believe that’s a correct recitation of the facts

        in this case. I believe the two drug cases were reversed by the Court of Appeals.

        Other than that I don’t have any real working knowledge of this case.

                 I explained that to the defendant, and that’s where we stand here today. I

        wouldn’t be able to add anything to that.

                 THE COURT: All right. Is there anything you’d like to say to the Court

        at this time, Mr. Holloway?

                 THE DEFENDANT: I was incarcerated in ‘04, so I’ve been down for

        almost six years, counting county time. And the offenses that I was charged with
                                                                                                   5


       and the sentence was imposed, a greater sentence because of all the charges that I

       had trumped up against me; and since the Court of Appeals dropped some of them

       charges, I feel like today some of the time should be taken back away because my

       sentence was imposed for a greater sentence because of all the charges that I was

       charged with.

               Like I said, this is my first time in prison so basically, my behavior in

       prison has been outstanding. It’s been all right. I haven’t been in any trouble.

       That’s all.

       {¶ 8}    The trial court then proceeded to sentence Holloway to the same terms of

imprisonment as previously imposed, except that the prison time imposed for the two drug

convictions that were reversed was subtracted from the total prison term. Also, the trial court

added a requirement that the sentences imposed in the two cases run consecutively to a 17-month

sentence imposed in a separate case that had been before a different judge.   Holloway appealed.

       {¶ 9}    In December 2010, pursuant to an order from this court, the trial court amended

the sentencing entries to include language regarding post-release control. Appellate counsel was

appointed, and this appeal proceeded, including within its scope both the May and December

2010 sentencing entries. Appellate counsel filed a brief pursuant to Anders. In November

2012, this court determined that Holloway had not received effective assistance of appellate

counsel and new counsel was appointed.

       {¶ 10} Holloway’s new counsel filed an appellate brief in February 2013. Thereafter,

the State filed a notice of conceded error pursuant to Local Rule 2.24. The State conceded that

Holloway’s convictions for Trafficking in Crack Cocaine and Possession of Crack Cocaine
                                                                                                6


charged in Case No. 2004-CR-527 should have been merged for purposes of sentencing, because

they involved the identical pieces of crack cocaine. The State did not address the remaining

issues raised by Holloway.

        {¶ 11} In a Decision and Entry dated April 19, 2013, we stated that we “decline to treat

this appeal as a conceded-error case,” finding that Holloway’s appellate brief raised issues that

were not rendered moot by the concession of error on the issue of merger. We further granted

the State time in which to submit a brief on the remaining issues, and Holloway was granted time

in which to file a reply brief. This appeal is now before us for decision.



                   II. At the Re-Sentencing Hearing on Remand, the Record

                   Reflects that Trial Counsel’s Professed Lack of Familiarity

                 with the Case Did Not Likely Affect the Outcome of the Hearing

        {¶ 12} Holloway’s First Assignment of Error states:

                 HOLLOWAY WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

        COUNSEL DURING SENTENCING, OR IN THE ALTERNATIVE, WAS

        DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND THE COURT

        ABUSED ITS DISCRETION BY PROCEEDING WITH SENTENCING.

        {¶ 13}      Holloway contends that he was denied the effective assistance of counsel and

his right to counsel when the trial court proceeded with sentencing despite the fact that the

attorney appointed to represent Holloway professed, in court, that he was not familiar with the

case.

        {¶ 14} Holloway’s counsel accompanied his statement that he was not familiar with the
                                                                                                  7


case with a statement that he had explained this to Holloway. This was said in Holloway’s

presence at the sentencing hearing, just before Holloway addressed the trial court on his own

behalf.      Holloway did not complain to the trial court concerning his trial counsel’s

unpreparedness, nor did he express any dissatisfaction with his trial counsel’s performance, either

then, or at any time until now.

          {¶ 15} Immediately following his trial counsel’s statement, Holloway addressed the trial

court, arguing that because we had reversed some of his convictions, the trial court should reduce

the total sentence accordingly. The trial court, which was well acquainted with the case on

remand for re-sentencing, accommodated Holloway’s request, reducing his total sentence by the

amount of time he was sentenced to prison for the convictions that we reversed.

          {¶ 16} To reverse a conviction, or sentence, based upon a claim of ineffective assistance

of counsel, an appellate court must find, based on the record, both that trial counsel’s

representation was deficient, and that the defendant was prejudiced by counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,

(1984).

          {¶ 17} In the particular circumstances of this case – a resentencing hearing on remand at

which the trial court acceded to the defendant’s suggestion on the appropriate sentence – we

conclude that trial counsel’s lack of familiarity with the case, which was known to Holloway, and

concerning which Holloway did not complain, did not likely affect the outcome of the

proceeding. This conclusion is based upon our review of the record on appeal; if there are

circumstances not reflected in the record that might support a conclusion that trial counsel’s lack

of familiarity with the case did likely adversely affect Holloway’s sentence, this might be an
                                                                                                8


appropriate subject for a petition for post-conviction relief.

       {¶ 18} Holloway’s First Assignment of Error is overruled.



III. As the State Concedes, Holloway’s Convictions for Trafficking in Crack Cocaine and

for Possession of Crack Cocaine Should Have Been Merged; Otherwise, the Sentence Does

                              Not Constitute an Abuse of Discretion

       {¶ 19} Holloway’s Second Assignment of Error provides as follows:

               THE TRIAL COURT ERRED AND THE SENTENCES ARE

       CONTRARY TO LAW, FURTHER IT WAS AN ABUSE OF DISCRETION TO

       ORDER        CONSECUTIVE           SENTENCES          ON   THE   DEFENDANT’S

       CONVICTIONS.

       {¶ 20} Holloway contends that the trial court erred by failing to merge the convictions

for Trafficking in Crack Cocaine and Possession of Crack Cocaine in Case No. 2004-CR-527.

In support, he argues that the charges involved the identical pieces of crack cocaine. Holloway

further contends that the trial court failed to consider the factors set forth in R.C. 2929.11,

2929.12 and 2929.13 prior to ordering consecutive sentences. He asks that this court amend the

sentence due to the “gross loss of time due to ineffective counsel and the inability of the trial

court to follow the directions of this court effectively.”

       {¶ 21} We begin with the issue of merger. When the police encountered Holloway,

they found crack cocaine in his pants during a search incident to arrest. That crack cocaine

formed the basis for the charges of Trafficking in Crack Cocaine and Possession of Crack

Cocaine. As noted above, the State concedes error on this issue. Thus, we conclude that the
                                                                                                  9


trial court erred by failing to merge the two counts involving crack cocaine.

       {¶ 22} We next turn to the issue of consecutive sentences. When reviewing a felony

sentence, an appellate court must first determine whether the sentencing court complied with all

applicable rules and statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in

order to decide whether the sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. If the sentence is not clearly and convincingly contrary

to law, the trial court’s decision in imposing the term of imprisonment must be reviewed under

an abuse-of-discretion standard. Id. The term “abuse of discretion” has been defined as a

decision that is unreasonable, arbitrary or unconscionable. Hufman v. Hair Surgeon, Inc., 19

Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).

       {¶ 23}    A court that sentences an offender for a felony shall be guided by the overriding

purposes of felony sentencing, which “are to protect the public from future crime by the offender

and others and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A). A court imposing a sentence for a felony “has discretion to

determine the most effective way to comply with the purposes and principles of sentencing set

forth in section 2929.11 of the Revised Code.” R.C. 2929.12(A). Because this sentence was

imposed in 2010, prior to the enactment of Am.Sub.H.B. No. 86, which requires judicial

fact-finding for consecutive sentences, the trial court was not required to “make any findings or

give its reasons for imposing [a consecutive sentence.]” State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus. However, the trial court

was required to consider the statutory policies that apply to felony offenses. State v. Mathis, 109
                                                                                                    10


Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37.

         {¶ 24} In the May 25, 2010 sentencing entries for the two cases, the trial court stated:

                  The Court considered the record, oral statements of counsel, the

         defendant’s statement, the principles and purposes of sentencing under Ohio

         Revised Code Section 2929.11, and has balanced the seriousness and recidivism

         factors under Ohio Revised Code Section 2929.12.

         {¶ 25} The sentence imposed upon Holloway is within the applicable statutory ranges

for the offenses. Holloway showed no remorse, and he committed the offenses in Case No.

04-CR-586 while under indictment for the offenses in Case No. 04-CR-527. We conclude that

the trial court’s decision to impose consecutive sentences was not an abuse of discretion.

Holloway’s argument that the trial court erred by imposing consecutive sentences is without

merit.

         {¶ 26}    We decline Holloway’s request to amend his sentence without remanding this

cause to the trial court for resentencing. Upon remand, the State has the right to elect which

offense – Trafficking in Crack Cocaine or Possession of Crack Cocaine – it wishes to survive the

merger for sentencing purposes. As the State notes in its brief, at his resentencing Holloway will

be subject to the provisions of 2011 Ohio H.B. 86 and the provisions of R.C. 2925.11 as amended

by 2011 H.B. 64 and 2012 H.B. 334.

         {¶ 27} Holloway’s Second Assignment of Error is sustained in part.



                                          IV. Conclusion

         {¶ 28} Holloway’s Second Assignment of Error being sustained in part, his sentences for
                                                                                            11


Trafficking in Crack Cocaine and Possession of Crack Cocaine in Case No. 2004-CR-527 are

Reversed, the judgment of the trial court is Affirmed in all other respects, and this cause is

Remanded for resentencing in accordance with this opinion.

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

HALL and WELBAUM, JJ., concur.

Copies mailed to:

David A. Wilson
Lisa Fannin
Jeremy M. Tomb
Hon. Douglas M. Rastatter
