[Cite as State v. Baker, 2015-Ohio-3232.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102232




                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                        DAVID BAKER

                                                             DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-587786-B

        BEFORE:          Jones, P.J., E.T. Gallagher, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 13, 2015
ATTORNEYS FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland, Ohio 44118

David H. Brown
The Gehring Building
1956 West 25th Street
Suite 302
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mahmoud Awadallah
        Eleina Thomas
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant, David Baker, appeals his jail-time credit and the trial

court’s decision not to merge his aggravated murder and felonious assault convictions as

allied offenses of similar import. We affirm.

Procedural History and Facts

       {¶2} In 2014, Baker was charged in a 17-count indictment stemming from the

shooting death of 21-year old Terria Nettles.      In October 2014, he pleaded guilty to an

amended indictment:       one count of aggravated murder with a three-year firearm

specification, three counts of felonious assault with three-year firearm specifications on

each count, and one count of intimidation of a crime victim or witness, and having

weapons while under disability. His codefendant, Chevarre Young, pleaded guilty to the

same charges at the same hearing, except for having weapons while under disability, with

which Young was not charged.1

       {¶3} The trial court sentenced Baker to 30 years to life for aggravated murder,

concurrent to three years for the felonious assault convictions, and 12 months for

intimidation of a crime victim or witness.     The court also sentenced him to consecutive

sentences of 12 months for having weapons while under disability and six years on the

firearm specifications for a total sentence of 37 years to life in prison.

       {¶4} The following pertinent facts were presented by the state during the


       Young has appealed his conviction and sentence and this court affirmed. See State v.
       1



Young, 8th Dist. Cuyahoga No. 102202, 2015-Ohio-2862.
sentencing hearing.     On December 18, 2013, Terria Nettles was driving her friend

Ashley Acoff’s car with Acoff in the front passenger seat and Juantaviyan Smith in the

backseat. They were on their way to visit Acoff’s boyfriend, but she did not know

where he lived, so Nettles drove around slowly looking for the address. When Nettles

realized she had driven past the house, she pulled into a driveway to turn around.

Lashawnda Greer passed by in her car and inadvertently blocked Acoff’s car in the

driveway Acoff had turned into. At this point, Baker and Young, who were known drug

dealers, ran outside and began shooting at the cars, firing several shots.

       {¶5} Nettles was shot in the head and immediately died from her injuries.

Several more bullets entered the vehicle but missed Acoff and Smith. Bullets struck

Greer’s car but also missed her. Baker and Young did not know the victims; the parties

indicated at the sentencing hearing that the men were waiting for someone else.

       {¶6} The police executed a search warrant on the apartment where Young and

Baker were staying and were able to match Young’s DNA to one of the guns that was

used in the shooting. The police also found Baker and Young’s DNA on other guns and

gun parts as well as on packaged cocaine and heroin that the police seized during

execution of the warrant.

       {¶7} At the sentencing hearing, the trial court informed Baker of his appellate

rights, postrelease control responsibilities, and that he would be given credit for time he

had already served in jail.

Assignments of Error
       I: The Trial Court committed error by sentencing David Baker absent
       addressing his credit for time served in incarceration during the hearing.

       II: The Court erred by sentencing David Baker separately for allied
       offenses of similar import.

Law and Analysis

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

sentencing Baker without giving him credit for time served.

       {¶9} R.C. 2967.191 governs credit for confinement awaiting trial and commitment

and states the following:

       The department of rehabilitation and correction shall reduce the stated

       prison term of a prisoner or, if the prisoner is serving a term for which there

       is parole eligibility, the minimum and maximum term or the parole

       eligibility date of the prisoner by the total number of days that the prisoner

       was confined for any reason arising out of the offense for which the

       prisoner was convicted and sentenced, including confinement in lieu of bail

       while awaiting trial, confinement for examination to determine the

       prisoner’s competence to stand trial or sanity, confinement while awaiting

       transportation to the place where the prisoner is to serve the prisoner’s

       prison term, as determined by the sentencing court under division

       (B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a

       juvenile facility. The department of rehabilitation and correction also shall

       reduce the stated prison term of a prisoner or, if the prisoner is serving a
       term for which there is parole eligibility, the minimum and maximum term

       or the parole eligibility date of the prisoner by the total number of days, if

       any, that the prisoner previously served in the custody of the department of

       rehabilitation and correction arising out of the offense for which the

       prisoner was convicted and sentenced.

       {¶10} Pursuant to R.C. 2929.19(B)(2), “if the sentencing court determines at the

sentencing hearing that a prison term is necessary or required, the court shall do all of the

following:”

       (g)(i) Determine, notify the offender of, and include in the sentencing entry

       the number of days that the offender has been confined for any reason

       arising out of the offense for which the offender is being sentenced and by

       which the department of rehabilitation and correction must reduce the stated

       prison term under section 2967.191 of the Revised Code. The court’s

       calculation shall not include the number of days, if any, that the offender

       previously served in the custody of the department of rehabilitation and

       correction arising out of the offense for which the prisoner was convicted

       and sentenced.

       {¶11} At the sentencing hearing, the trial court stated that Baker would be “given

credit for time served.”   In the sentencing journal entry, the court indicated that Baker

was to receive jail-time credit for 239 days.

       {¶12} Baker does not contest the amount of time he was given; rather he claims
that the trial court erred because it did not inform him orally at the sentencing hearing the

amount of time he would be given credit.      Because Baker did not contest this issue at the

trial court level, he has waived all but plain error.   Under Crim.R. 52(B), “[p]lain errors

or defects affecting substantial rights may be noticed although they were not brought to

the attention of the court.”   An error rises to the level of plain error only if, but for the

error, the outcome of the proceedings would have been different. State v. Harrison, 122

Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio St.2d

91, 97, 372 N.E.2d 804 (1978).

       {¶13} While we disagree with the state’s position that there is no requirement that

the trial court calculate and inform a defendant at the sentencing hearing of the amount of

jail-time credit he or she will receive, we find that the court’s omission does not rise to

plain error in this case.

       {¶14} R.C. 2929.19(B)(2)(g)(i) clearly states that a sentencing court, if it

determines at the sentencing hearing that the defendant is receiving a prison term, shall

determine and notify the offender of, and include in the sentencing entry, the number of

days of credit the offender shall receive.     Thus, the trial court had a duty to calculate

jail-time credit at the time of sentencing. See State v. Santamaria, 9th Dist. Summit No.

26963, 2014-Ohio-4787, ¶ 10 (pursuant to R.C. 2929.19(B)(2)(g)(i), the trial court had a

duty to calculate the defendant’s jail-time credit at the time of his resentencing, notify him

of the number of days he would be credited, and memorialize that information in the

sentencing entry); see also State v. Fitzgerald, 8th Dist. Cuyahoga No. 98723,
2013-Ohio-1893, ¶ 5-7 (Boyle, J., concurring) (amendments to R.C. 2929.19 impose a

duty upon a trial court at the time of sentencing to determine jail-time credit).

       {¶15} As mentioned, Baker does not contest the amount of credit he was given.

A review of the record shows that he was given the appropriate amount of credit.     Thus,

Baker cannot show that he was prejudiced by the trial court’s failure to determine and

notify him of his jail-time credit at his sentencing hearing.

       {¶16} In light of the above, the first assignment of error is overruled.

       {¶17} In the second assignment of error, Baker argues that the trial court erred

when it did not consider whether his felonious assault and murder convictions merge as

allied offenses of similar import.

       {¶18} R.C. 2941.25(A) provides that where the same conduct by a defendant “can

be construed to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be convicted

of only one.” But where the conduct constitutes two or more offenses of dissimilar

import, or where the conduct results in two or more offenses of the same or similar kind

committed separately or with a separate animus, the indictment or information may

contain counts for all such offenses, and the defendant may be convicted of all of them.

R.C. 2941.25(B).

       {¶19} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court created a two-part test to determine if offenses should merge.

The first prong requires that the court determine if the multiple offenses “were committed
by the same conduct.” Id. at ¶ 47. The second prong is whether “it is possible to

commit one offense and commit the other with the same conduct, not whether it is

possible to commit one without committing the other.” Id. If both can be answered in

the affirmative then the offenses must be merged.     But “if the court determines that the

commission of one offense will never result in the commission of the other, or if the

offenses are committed separately, or if the defendant has separate animus for each

offense, then, according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶ 51.

       {¶20} In State v. Ruff, Slip Opinion No. 2015-Ohio-995, ¶ 31, the Ohio Supreme

Court clarified that courts are to consider three questions when determining whether

offenses are allied offenses of similar import within the meaning of R.C. 2941.25: (1)

Were the offenses dissimilar in import or significance? (2) Were the offenses committed

separately? or (3) Were the offenses committed with separate animus or motivation?         If

a court can answer in the affirmative to any of the questions, then separate convictions are

permitted. Id. Thus, the trial court must consider a defendant’s conduct, the animus,

and the import. Id.

       {¶21} But the Ohio Supreme Court recently explained that the issue of allied

offenses must be raised at the trial court level or it is waived.   In State v. Rogers, Slip

Opinion No. 2015-Ohio-2459, ¶ 3, the court held that the failure to raise the issue of

allied offenses of similar import forfeits all but plain error. Such error “is not reversible

error unless it affected the outcome of the proceeding and reversal is necessary to correct

a manifest miscarriage of justice.” Id.
       {¶22} Crim.R. 52(B) affords appellate courts discretion to correct plain errors or

defects affecting substantial rights even if the accused failed to bring those errors to the

trial court’s attention.   Id. at ¶ 22.   But, the court determined, if a defendant fails to

raise the issue at the trial court level, the burden is solely on that defendant, not on the

state or the trial court, 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.” Id. If a defendant fails to make the showing, then “the accused cannot

demonstrate that the trial court’s failure to inquire whether the convictions merge for

purposes of sentencing was plain error.” Id.

       {¶23} The Rogers court noted that “even if the error is obvious, it must have

affected substantial rights, and * * * ‘the trial court’s error must have affected the

outcome of the trial.’”       Id.   The accused is therefore required to demonstrate a

reasonable probability that the error resulted in prejudice — the same deferential standard

for reviewing ineffective assistance of counsel claims.        Id., citing United States v.

Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

       {¶24} The Rogers court further cautioned that even if the defendant is able to

make the necessary showing that the trial court committed plain error that affected the

outcome of the proceedings, the reviewing court is not required to correct it; “we have

‘admonish[ed] courts to notice plain error “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’”” (Emphasis sic).

Id. at ¶ 23, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002),
quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the

syllalbus.

       {¶25} Here, Baker did not raise the issue of allied offenses in the trial court nor has

he shown that plain error occurred.     Baker pleaded guilty in Count 1 to the aggravated

murder of Nettles, in Count 8 to the felonious assault of Acoff, in Count 9 to the

felonious assault of Smith, and in Count 10 to the felonious assault of Greer. His

conduct constituted offenses involving four separate victims.         Thus, even if he had

properly raised the issue at the trial court level, his felonious assault convictions would

not have merge with each other or with the aggravated murder conviction because they

involved four separate victims.     See State v. Allen, 8th Dist. Cuyahoga No. 97014,

2012-Ohio-1831, ¶ 59.     (“Separate convictions and sentences are permitted [under R.C.

2941.25] when a defendant’s conduct results in multiple victims.”)

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

       {¶27} Judgment 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.
LARRY A. JONES, SR., PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
