[Cite as State v. Lewis, 2017-Ohio-4296.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104637



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                     DUSEAN E. LEWIS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-15-601865-A and CR-15-603548-A

        BEFORE: Kilbane, J., Keough, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                    June 15, 2017
ATTORNEY FOR APPELLANT

Kevin P. Shannon
Kehoe & Associates, L.L.C.
1940 East 6th Street
900 Baker Building
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Jonathan M. McDonald
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Dusean Lewis (“Lewis”), appeals his sentence from

his guilty plea in two separate cases. For the reasons set forth below, we affirm.

       {¶2} Between September and December 2015, Lewis robbed a bank, a pizza

shop, a fast-food restaurant, and a bakery located near the East 81st Street–Harvard Road

area in Cleveland. Lewis was eventually charged in two cases stemming from these

robberies. In December 2015, Lewis was charged in a six-count indictment in Cuyahoga

C.P. No. CR-15-601865-A (bakery). Count 1 charged him with aggravated robbery and

carried one- and three-year firearm specifications. Count 2 charged him with robbery

and carried one- and three-year firearm specifications.       Count 3 charged him with

kidnapping and carried one- and three-year firearm specifications. Count 4 charged him

with having a weapon while under disability. Count 5 charged him with carrying a

concealed weapon. Count 6 charged him with petty theft.

       {¶3} In March 2016, while Lewis’s other case was pending, Lewis was charged

in a 16-count indictment in Cuyahoga C.P. No. CR-16-603548-A (bank, pizza shop, and

fast-food restaurant). Counts 1 and 3 charged him with robbery. Counts 2, 4, 7, 10, and

11 charged him with kidnapping. Counts 5, 8, and 12 charged him with theft. Counts 6,

9, 14, 15, and 16 charged him with aggravated robbery. Count 13 charged him with

having a weapon while under disability.1


       1Counts    7, 9, 10, 11, 14, 15, and 16 each carried one- and three-year firearm
specifications.
      {¶4} In April 2016, Lewis entered into a plea agreement with the state in both

cases in which he pled guilty to seven of the indicted charges.             In Case No.

CR-15-601865-A, Lewis pled guilty to an amended count of aggravated robbery (relating

to the bakery incident), with a one-year firearm specification, and to having a weapon

while under disability. The remaining counts and specifications were nolled. As part of

the agreement, Lewis agreed to: 1) no contact with the bakery; 2) pay restitution; and 3)

a package deal with Case No. CR-16-603548-A.

      {¶5} In Case No. CR-16-603548-A, Lewis pled guilty to one count of robbery

(relating to the bank incident), an amended count of aggravated robbery, with a one-year

firearm specification (relating to the pizza shop incident), two amended counts of

aggravated robbery, with a one-year firearm specification (relating to the fast-food

restaurant incident), and one count of having a weapon while under disability. The

remaining counts and specifications were nolled. As part of his plea in this case, Lewis

agreed to the following conditions: 1) no contact with the victims; 2) to pay restitution;

3) to add the victim’s name in Count 6; and 4) a package deal with Case No.

CR-15-601865-A. After accepting Lewis’s guilty pleas, the trial court referred Lewis to

the county probation department for a presentence investigation report (“PSI”).

      {¶6} In May 2016, the trial court held a sentencing hearing.          In Case No.

CR-15-601865-A, the court sentenced him to eight years on the aggravated robbery

charge (one-year firearm specification to be served prior to seven years on the underlying

charge) and thirty-six months on the having a weapon while under disability charge, to be
served concurrently to the aggravated robbery charge, for a total sentence of eight years.

In Case No. CR-16-603548-A, the trial court sentenced Lewis to seven years on the

robbery charge involving the bank, four years on the pizza shop aggravated robbery

charge (one-year firearm specification to be served consecutively to three years on the

underlying charge), four years each on both of the fast-food aggravated robbery charges

(one-year firearm specification to be served consecutively to three years on the underlying

charge), and thirty-six months on the having a weapon while under a disability charge.

The court ordered that the sentences for the robbery and each aggravated robbery charge

in Case No. CR-16-603548-A be served consecutively to each other and concurrently to

the having a weapon while under disability charge for a total sentence of nineteen years.

The court further ordered that the sentences in each case be served consecutively to each

other for a total aggregate sentence of twenty-seven years in prison.

       {¶7} It is from this order that Lewis now appeals, raising the following three

assignments of error for review.

                                   Assignment of Error One

       The trial court erred by failing to merge the two aggravated robbery counts
       related to the robbery at [the fast-food restaurant], as they were allied
       offenses of similar import.

                                   Assignment of Error Two

       The court erred in imposing consecutive sentences upon [Lewis] when
       those sentences were not supported by the record and not consistent with
       sentences imposed on for similar crimes by similar offenders.

                                Assignment of Error Three
       [Lewis’s] trial counsel was ineffective for failing to address the mental

       health issues raised in the [PSI] prior to sentencing.

                                             Merger

       {¶8} In the first assignment of error, Lewis argues that the trial court erred when

it failed to merge the two aggravated robbery counts involving the incident at the

fast-food restaurant.

       {¶9} Initially, we recognize the Ohio Supreme Court has found that                   “[a]n

accused’s failure to raise the issue of allied offenses of similar import in the trial court

forfeits all but plain error, and a forfeited error is not reversible error unless it affected the

outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of

justice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.

The court further explained that

       an accused has the burden to demonstrate a reasonable probability that the
       convictions are for allied offenses of similar import committed with the
       same conduct and without a separate animus; and, absent that showing, the
       accused cannot demonstrate that the trial court’s failure to inquire whether
       the convictions merge for purposes of sentencing was plain error.

Id. Here, Lewis did not raise the issue of allied offenses at sentencing. Therefore, we

review Lewis’s assigned error under a plain error standard.

       {¶10} Under R.C. 2941.25(B), a defendant charged with multiple offenses may be

convicted of all the offenses if: (1) the offenses are dissimilar in import or significance,

(2) the offenses were committed separately, or (3) the offenses were committed with
separate animus or motivation. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, paragraph three of the syllabus.

       {¶11} The Ruff court explained that two or more offenses are dissimilar within the

meaning of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses

involving separate victims or if the harm that results from each offense is separate and

identifiable.” Id. at paragraph two of the syllabus. Two or more offenses of dissimilar

import are not subject to merger because the harm to each victim is “separate and

distinct.” Id. at ¶ 26.

       {¶12} In the instant case, the facts demonstrate that Lewis entered the fast-food

restaurant brandishing a silver handgun. He then went behind the counter toward the

register where Matthew Fawkner (“Fawkner”) was standing. Lewis ordered Fawkner to

take the money from the register and put it into a bag. Lewis then ordered Fawkner, at

gun point, to the back of the restaurant to the safe and where Priscilla Gwyn (“Gwyn”),

another employee, was standing. Lewis ordered Gwyn to put the cash from the safe into

his bag. Lewis then fled the scene. Based on these facts, the aggravated robbery counts

were not committed with the same conduct because Lewis’s conduct involved separate

victims. Therefore, the offenses are not allied and are not subject to merger. As a

result, Lewis cannot demonstrate that the trial court’s failure to inquire whether the

convictions merge for purposes of sentencing was plain error.

       {¶13} Accordingly, the first assignment of error is overruled.

                                  Consecutive Sentences
      {¶14} In the second assignment of error, Lewis contends that the trial court erred

in imposing consecutive sentences.

      {¶15} When reviewing felony sentences, an appellate court must “review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). If an appellate court clearly and convincingly

finds either that (1) “the record does not support the sentencing court’s findings under

[R.C. 2929.14(C)(4)]” or (2) “the sentence is otherwise contrary to law,” then “the

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.” Id.

      {¶16} R.C. 2929.14(C)(4) requires the trial court to engage in a three-step analysis

when imposing consecutive sentences. First, the trial court must find that “consecutive

service is necessary to protect the public from future crime or to punish the offender.”

Id. Next, the trial court must find that “consecutive sentences are not disproportionate to

the seriousness of the offender’s conduct and to the danger the offender poses to the

public.” Id. Finally, the trial court must find that at least one of the following applies:

(1) the offender committed one or more of the multiple offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while under postrelease control for a prior offense; (2) 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 (3) 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)(a)-(c).

       {¶17} The trial court is not required to give a “talismanic incantation of the words

of the statute” when imposing consecutive sentences. State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The Ohio Supreme Court has stated that

       a word-for-word recitation of the language of the statute is not required, and
       as long as the reviewing court can discern that the trial court engaged in the
       correct analysis and can determine that the record contains evidence to
       support the findings, consecutive sentences should be upheld.

Id. at ¶ 29. Additionally, the trial court is required to incorporate its findings into its

sentencing entry. Id. at the syllabus.

       {¶18} Lewis argues the record does not support consecutive sentences and his

sentence was disproportionate. In support of his argument, he relies on a case referred

to by the trial court during sentencing. The trial court stated:

       [w]e’ve had a similar offense at the Caribe Bakery, and I know the only
       thing that makes your actions less severe than that one is that instance, the
       robber actually shot the lady as she was standing there. Here you had the
       gun and you were secreting yourself behind the mask and all, but the terror
       to the person is the same. I’m sure that [the victim] just wanted to go to
       work and do her job. She didn’t go there expecting to have her life put on
       the line for selling some pastries.

       {¶19} The defendant in the other case received a 20-year sentence. He contends

his 27-year sentence was not supported by the record when he did not physically harm

anyone like the defendant in the other case. We disagree.
      {¶20} Here, the trial court referred to the other bakery in the context of discussing

the seriousness of Lewis’s conduct and the organization put forth by Lewis to commit the

these crimes. We find the sentence imposed by the trial court was not disproportionate to

the totality of the circumstances in Lewis’s cases. A review of the record demonstrates

that the trial court judge gave ample reasoning to support its findings under R.C. 2929.11

and 2929.12. Additionally, the trial court made the required R.C. 2929.14(C)(4) findings

and incorporated those findings into the sentencing entry. The court considered the

record, statements made at sentencing, and the PSI. The court stated:

      So here’s what I find significant. Indicators your conduct is more serious
      under 2929.12(B).

      This is organized. Used a ski mask, hoodie, and gloves so that you could
      escape detection by a viewer as well as by DNA and other evidence.

      There is psychological harm to [the victim at the bakery]. She’s scared to
      go to work now. She was the lady who was ducking down behind the
      counter, if I recall that video correctly.

      And I was at a similar bakery myself on Friday, and the lady was talking to
      me and there were other customers coming in, and I think I would be
      horrified if someone came in and tried to rob it. So I can imagine how the
      people at [the bakery] felt when you went into their store and robbed them
      at gunpoint.

      We’ve had a similar offense at [another bakery], and I know the only thing
      that makes your actions less severe than that one is that in that instance, the
      robber actually shot the lady as she was standing there. Here you had the
      gun and you were secreting yourself behind the mask and all, but the terror
      to the person is the same. I’m sure that [the victim] just wanted to go to
      work and do her job. She didn’t go there expecting to have her life put on
      the line for selling some pastries.

      And all these events were organized. And you had to get a gun off the
      streets and you had to pick out targets, and people have talked about the
fact, in the PSI, that you were scoping them out by standing across the
street, watching, picking your spot to go in and rob them.

Indicators your conduct is less serious under 2929.12(C).
The Court will accept that you had a difficult childhood; however, there are
a lot of people that had difficult childhoods and they don’t commit
robberies. Why you had chosen that path, only you could answer.

Indicators you are more likely to reoffend under 2929.12(D).

This occurred while you were on post-release control, and you do have prior
convictions. Not a great number compared to some of the other folks in the
past through here. Minor things of a petty theft out in Parma, drug abuse
of marijuana, and then [two robbery cases in 2014, where the trial court]
imposed a 12-month sentence. I’m sure that [the trial judge’s] intent was
that you should turn things around and not come back to court; however,
that is not what happened.

Indicators that you are less likely to reoffend under 2929.12(E).

You have expressed remorse.

You have worked odd jobs before, but those are really overbalanced by the
harm that was caused here to the people and to the community by a spree of
robberies. Nobody felt safe. And, in particular, people at [the bakery], and
they were the last ones to be robbed.

***

The Court finds consecutive sentences are necessary to protect the public
and to punish the defendant, who started this crime spree sometime in
September and didn’t stop until December. The Court finds that it’s not
disproportionate to the seriousness of the offense. This is not a matter of
going in and smash and grab or some things like that. You came in with a
gun, fully blanketed to make yourself unrecognizable and with gloves so
that you wouldn’t give off DNA, and you rob people. And, in that respect,
professionally done. And when you had moved up to things when you’re
acting like a professional and robbing in the community, that’s serious.
These weren’t spur of the moment things. You camped out outside the
stores and you intended to victimize these places.
       Under 2929.14(C)(4), the Court also finds that at least two or more multiple
       offenses were committed as part of one or more courses of conduct, and the
       harm caused by these two or more offenses was so great or unusual that no
       single prison term for any of the offenses committed as part of the course of
       conduct would adequately reflect the seriousness of your conduct.

       The Court also finds that in the alternative, the fact that you had just gotten
       out of prison for committing two robberies and then you go back, and now
       you’re again in the advanced stages or advanced placement of robbery
       because you’ve refined your technique by surveillance, firearm, secreting
       yourself under the hood and such, so your history of criminal conduct as a
       robber demonstrates that consecutive sentences are necessary to protect the
       public from future crime by you.

       {¶21} Based on the foregoing, the trial court thoughtfully set forth all of the

necessary findings under R.C. 2929.14(C)(4) to impose consecutive sentences and gave

ample reasoning to support its findings under R.C. 2929.11 and 2929.12. Therefore, we

do not find that Lewis’s sentence is contrary to law.

       {¶22} Accordingly, the second assignment of error is overruled.

                                   Mental Health Issues

       {¶23} In the third assignment of error, Lewis argues trial counsel was ineffective

for not addressing the mental health issues in the PSI.

       {¶24} When reviewing a claim for ineffective assistance of counsel in entering a

guilty plea, this court applies the two-part test set forth in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Xie, 62 Ohio St.3d 521, 524,

584 N.E.2d 715 (1992). See also State v. Milczewski, 8th Dist. Cuyahoga No. 97138,

2012-Ohio-1743.     “‘First, the defendant must show that counsel’s performance was

deficient’ [ and, second,] ‘the defendant must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty.’” (Internal citations and

quotations omitted.) Xie at 524.

       {¶25} We have stated that “a guilty plea waives the right to claim that the accused

was prejudiced by constitutionally ineffective counsel, except to the extent the defects

complained of caused the plea to be less than knowing and voluntary.” Milczewski at ¶

5, citing State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991).

       {¶26} In this case, Lewis stated in the PSI that he did not understand the charges.

He also indicated in the PSI that he took some responsibility, but that he felt that the

charges were ridiculous. Defense counsel pointed this out at sentencing because he

believed that Lewis “understands the nature of the charges and understood what he was

doing when he took the plea.”

       {¶27} However, Lewis does not offer any evidence to demonstrate that his plea

was a result of defense counsel’s failure to request a psychiatric evaluation. In fact,

Lewis does not even argue on appeal that he would not have pled guilty, but rather, that

this alleged deficiency by counsel adversely affected the sentence he received.

       {¶28} Based on the foregoing, we find that Lewis did not satisfy his burden in

proving that defense counsel’s performance was deficient and that, but for this deficiency,

he would not have pled guilty.

       {¶29} Therefore, the third assignment of error is overruled.

       {¶30} Judgment is affirmed.

       It is ordered that appellee recover of 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.




MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
