[Cite as State v. Shabazz, 2017-Ohio-2984.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104635




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                DERRELL B. SHABAZZ
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-567946-B


        BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: May 25, 2017
ATTORNEY FOR APPELLANT

Christopher J. Pagan
Repper, Pagan, and Cook, Ltd.
1501 First Avenue
Middletown, Ohio 45044


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Christopher D. Schroeder
         Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1}     Defendant-appellant Derrell Shabazz appeals from the imposition of

consecutive sentences at his resentencing hearing in the Cuyahoga County Court of

Common Pleas. We affirm the judgment of the trial court.

       Facts and Procedural Background

       {¶2} In 2013 Shabazz was found guilty of aggravated murder, murder and three

counts of felonious assault in the shooting death of Antwon Shannon that occurred during

a bar fight. Shabazz was also found guilty of one count of felonious assault against a

separate victim, Ivor Anderson, and one count of having a weapon while under disability.

 The trial court merged as allied offenses all of the counts relating to Shannon. The state

elected to proceed to sentencing on the aggravated murder count and the trial court

imposed a prison term of 20 years to life on the count.               The court also sentenced

Shabazz to two years in prison for the felonious assault charge against Anderson and nine

months in prison for having a weapon while under disability. The sentences for

aggravated murder and having a weapon while under disability were ordered to be served

concurrently but the two-year      term for the assault of Anderson was ordered to be served

consecutively to the 20-years-to-life term for the aggravated murder of Shannon.1

       {¶3} Shabazz appealed his convictions to this court in State v. Shabazz, 8th Dist.

Cuyahoga No. 100021, 2014-Ohio-1828 (“Shabazz I”), and we vacated his convictions


       1
          Pursuant to Ohio Adm. Code 5120-2-03.1(M) the nonmandatory two-year sentence for
felonious assault against Anderson was to be served prior to Shabazz’s original sentence of 20 years
to life on his counts relating to Shannon.
for aggravated murder, murder, having weapons while under disability and two of the

three counts of felonious assault against Shannon.          We affirmed the       remaining

convictions for felonious assault against Shannon and his conviction for felonious assault

against Anderson and remanded the matter for resentencing on the count of felonious

assault against Shannon.

       {¶4} On September 24, 2014, the Ohio Supreme Court accepted for review an

appeal of our decision. However, on June 24, 2015, the court dismissed the cause as

having been improvidently accepted.

       {¶5} Pursuant to our remand, the trial court conducted a resentencing hearing on

June 7, 2016, and imposed a four-year prison term on the felonious assault count against

Shannon.    At the state’s request, the trial court incorporated the previously affirmed

two-year sentence for felonious assault against Anderson into the sentencing entry. The

trial court ordered the two sentences be served consecutively.

       Law and Analysis

       I. Trial Court’s Ability to Impose Consecutive Sentences at Resentencing

       {¶6} Shabazz presents two arguments regarding his sentence for felonious assault

against Anderson: 1) that the trial court erred in resentencing him on this count and 2) that

the trial court was without authority to order the four-year prison term for felonious

assault against Shannon to be served consecutively to that count.

       {¶7} Shabazz’s first argument is plainly without merit.      The record reflects that

the trial court did not resentence him on the felonious assault charge against Anderson.

The trial court explained in detail that the sentence on that count had been affirmed in
Shabazz I and was not subject to resentencing. Shabazz confuses the trial court’s

incorporation of that sentence into the journal entry at the state’s request for purposes of

clarity with resentencing.   He was not resentenced on that count.

       {¶8} In his second argument, Shabazz argues that the trial court lacked jurisdiction

to order his four-year prison term at resentencing to be served consecutive to his two-year

prison term for felonious assault against Anderson because he had completed the

two-year prison term during the pendency of his direct appeal and prior to his

resentencing. Shabazz’s argument is based on the Ohio Supreme Court’s decision in

State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, wherein it was

held that “[a] trial court does not have the authority to resentence a defendant for the

purpose of adding a term of postrelease control as a sanction for a particular offense after

the defendant has already served the prison term for that offense.”    Shabazz argues that

we should extend the holding in Holdcroft to situations where, as here, a prison term is

served during the pendency of a direct appeal and bar the imposition of consecutive

sentencing as between that count and any other count at a resentencing that occurs after

direct appeal.

       {¶9} This argument was rejected by the Fifth District Court of Appeals in State v.

Martin-Williams, 5th Dist. Stark No. 2014CA00086, 2015-Ohio-780. The defendant in

Martin-Williams was sentenced to five consecutive sentences.             On direct appeal

Williams successfully argued that the trial court had failed to make the required

consecutive sentencing findings under R.C. 2929.14(C)(4) prior to imposing consecutive

sentences.   The appellate court remanded for resentencing, and as of the date of
Williams’s resentencing, the first of her prison terms had been completed.                  The Fifth

District upheld the trial court’s re-imposition of consecutive sentences between the

completed sentence and Williams’s remaining sentences and refused to extend the

Holdcroft rationale to consecutive sentencing.2 Id. at ¶ 33-37.

       {¶10} In support of his argument, Shabazz cites State v. Mockbee, 4th Dist. Scioto

No. 14CA3601, 2015-Ohio-3469, for the proposition that Holdcroft should be extended

to deprive a trial court of jurisdiction to impose consecutive sentences in resentencing

situations where one of sentences has been completed.             However, Mockbee involved a

sentence where the trial court initially imposed concurrent sentences and only upon a

remand for resentencing did the court attempt to impose, for the first time, consecutive

sentences where one of the originally concurrent sentences had been completed.                   The

court in Mockbee specifically distinguished its holding from that of the Fifth District in

Martin-Williams, noting that the trial court in Mockbee “modified concurrent sentences

that had already expired to run them consecutive to each other.”            Conversely, Mockbee

noted that in Martin-Williams the sentences were not altered to increase the aggregate

prison term in relation to the original sentences.      Mockbee at ¶ 30.

       {¶11} We find the present case to be akin to the situation presented in

Martin-Williams.       The trial court initially ordered Shabazz’s offenses to be served

consecutively.      In fact, Shabazz did not challenge the imposition of consecutive

sentences in his direct appeal.       The imposition of a consecutive sentence at Shabazz’s



       2
           The Ohio Supreme Court declined to accept the case for review on July 8, 2015.
resentencing hearing did not increase his aggregate sentence for the counts addressed. In

fact, because the felonious assault charge pertaining to Shannon had previously been

merged as an allied offense to the aggravated murder count, that count was being

addressed for the first time at resentencing.

       {¶12} Shabazz now seeks a windfall from the unique situation where a previously

merged count for which he had been found guilty needed to be addressed for the first time

at a resentencing that, due to the length of the appellate process, did not occur until his

two-year prison term for the felonious assault of Anderson had been completed.         We

decline to extend the holding in Holdcroft to such a situation.         We find that the

consecutive sentencing decision under R.C. 2929.14(C)(4) is sufficiently independent

from the individual sentencing concerns addressed in Holdcroft to distinguish the two

situations.

       {¶13} Shabazz’s first assignment of error is overruled.

       II. Consecutive Sentence Findings

       {¶14} In his second assignment of error, Shabazz argues that the record clearly and

convincingly fails to support the trial court’s consecutive sentencing finding regarding

proportionality.

       {¶15} As this court explained in State v. Johnson, 8th Dist. Cuyahoga No. 102449,

2016-Ohio-1536, there are two ways a defendant can challenge consecutive sentences on

appeal:

       First, the defendant can argue that consecutive sentences are contrary to law
       because the court failed to make the necessary findings required by R.C.
       2929.14(C)(4). See R.C. 2953.08(G)(2)(b); State v. Nia, 8th Dist. Cuyahoga
       No. 99387, 2014-Ohio-2527, ¶ 16, 15 N.E.3d 892. Second, the defendant
       can argue that the record does not support the findings made under R.C.
       2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Nia.

Johnson at ¶ 7.

       {¶16} Pursuant to R.C. 2953.08(G)(2)(a), an appellate court may “increase, reduce,

or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to

the sentencing court for resentencing” if it “clearly and convincingly” finds that “the

record does not support the sentencing court’s findings” under R.C. 2929.14(C)(4).

       {¶17} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive sentences,

the trial court must find that consecutive sentences are 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 that at least one of the following also applies:

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

       offender was awaiting trial or sentencing, was under a sanction imposed

       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

       was 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

       multiple offenses so committed 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.

       (c) The offender’s history of criminal conduct demonstrates that
        consecutive sentences are necessary to protect the public from future crime
        by the offender.

R.C. 2929.14(C)(4).

        {¶18} Shabazz challenges only the proportionality finding, arguing that

consecutive sentences were disproportionate to his contribution to the offenses in this

case.   We disagree. As this court addressed in Shabazz I, Shabazz aided and abetted his

compatriot in assaulting Shannon and Anderson with a champagne bottle. We explained:

        The video shows that after observing Anderson being hit in the head with a

        bottle, Shabazz chose to engage in the fight and, in fact, punched Anderson.

        Shabazz also punched Shannon after observing Walker hit him with a

        bottle. By joining in on the fight, he showed his encouragement and support

        of the principal offenders’ actions. Thus, we cannot say he was not

        complicit in committing the two counts of felonious assault with a

        champagne bottle.

State v. Shabazz, 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, ¶ 44.

        {¶19} We cannot say that the record does not support the trial court’s

proportionality finding in this instance.

        {¶20} Shabazz’s second assignment of error is overruled.

        {¶21} The judgment of the trial court is affirmed.

        It is ordered that appellee recover from appellant 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 the judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
