STATE OF OHIO,

IN THE SUPREME COURT OF OHIO

PlZinuiff-A^+pe^ lee5

V.

James Sheffey,

DbfendantwAppe'llant.

«..

On Appeal Fror-a J3.id4mentEntered In The CuyahogaCounty rCaurt Of Appeaa:+ ¢Eighth A.T,,)pel1..ate District.

Case No. CR-560852

C.A. No. 98944

MEMORANDUM IN SUPPORT OF JU-tIsDIGTIONOF APPELLANT JAMES SHEFFEY

James ShaffeyLor. C. I. r4631 -^442075 South Avon Beldon RaadGrafton, ^'iio 44044Appellant, Pro Se

^4^^ L"UD

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Cuyahoga County ProsecutorT'ne Justice Center1200 Ontario StreetCleveland, Ohio 44113Counsel For Appellee,STATE OF OHIO

. .--^^^.. ... .. i

TABLE OF CQPdTENTS

PAGE

EXPLANATION OF 1,IHY THIS CASE IS A. CASE OF PUBLICOR GREAT GFNERA.L ^NTF'RFST 4:ND INVOLVES ASCIBSTAN'I'IAI,. CONSTITUTIONAL QCJESTION . . . . . o . o < . • ♦ . . . . . . . 1

S'I'.ATFMFNT OF THF FAGTS ! . . . . . . . 6 . . . • . . . .. . . . . . . ♦ i . O a . p . e 1

STATEMENT OF THE CASE .................... .. ........... 3

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW , . . . . . . . . . . 4

Proposition of Law #1. Appellant was deniedhi-s onstitutiona r^ght to due process whenthe txial court erred in refusing to accept.Appellant$s A1fords plea ...... . .. . .............................. 4

Proposition of Law No. #2z Appellant was deniedhis constztutiona rig t to due process whenthe trial court erred in failing to mergeallied of'Lenses of similar ?:mport . a . . . . . . . . . . . . . . 5

Proposition of Law #3: Appellant was denied:.: -^.s cc^^nstittitzrana rlRht ta due process whenthe trial court cocnmitted plain error inrecording Anpel..lantBs sentence in its journal /entry as fourteen years .S.mp1 L.7VnL6ent .. 6 L.. . e.. .. 9 6

Proposition of Law #4: Appellant was d.eniedhis cQnsta.tuto aT tight to due process asAppel.lant `s convictions was against themanifest weight of the evidence .................. 7

Proposition of Law #5: Appellant was deniedhis cQnstxtutIona right to due process asAppellant 's convictions are not supported bysufficient evidence as a matter of law ........... 8

Proposition of taw ;0,6: Appellant was denied^: s constxtutiona right to d.tze process as aresult of prosecutorial misconduct when stateattorney attacked the sincerity of defense counsel ... 8;

CONCLUSION . . . . . . . . . .. . . . . . . .. . < f e . . . . . . . . . . • .. . . . . . . . s . 10

CERTIFICATE OF SERVICE .............. .................. 11

A pendl.X

Decision and Journal Entry, Court of Appeals,Fight'o. Appellate District ( .Tune lj', 20? 3) . . . . . . . . A1-19

i

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVESA SUBSTANTIAL CQNSTITUTI4N.AL. QUESTION

AppelI ^artt was denied his constitutional right 'Lo c?ue process

and a fair I-.rial as guaranteed by the fifth anci. fourteenth

amendments of the Elnited- States Consti.tuti:nnr and article 1, section

16 of the Ohio Constitution, when the trial court coinrnitted. several

errors dLiring Appellant Fs trial proceedings. Combined with the

egregious misconduct perpetrated by the state, led. to convictions

against Appellant that are against the manifest weight of the

evidence, and not- supported by evidentiary stx^fici.ency as requ:z:^^^

by law.

As such, this case is a case of public or great general interest

and involves a substantial constitutional question.

STATEMENT OF THE FACTS

On Julv 23, 2011, ssarneone di--scliarged afirearm into a In.euse

located at 13611 Sixth Avenue in East C;l.ev^landry Ohio. The b.ouw e

was damaged, but no one inside tie houmse was injured during the

incident. A resident of the house, Dominique F-earn, r^ecic^ed,, initially,

not to report the incident to police ebut oventtial1v decided to

call the police after she suspected that so-meone had broken into

a house down t'he street. (TroT @ 728)

Ms. t-learn tes^^ fie(.3 that on the day of the shooting, she

was sitting on the porch of the Sixt^-i Avenue 1-iouse, drinking wi^li

the owner of the 'slouse, Wilson Clark, Also present was Mr. Clark`s

sister, Leigh, az^O his daughter (Tr.T @ 201-?... '.s2). Ms. 1-Tearn stated

that Appellant came to Mr. CIarkgC tictzse, driving a silver Mazda;

parked in tiie driveway, and asker..3, to talk to Ms. Leigh (whom^ he

was dating)9Ms e Leigh refused to tal1:, to Appellant, and Appellant

I

drove away (Tr.T. @ 202; 204)

According to Ms. Hearn, Appellant returned a few minutes

later, driving the silver Mazda, and again asked Ms. Leigh to

ta].k with h,im. When she refused, Mr. Clark tolc3. Appellant to get

out of the yard. The two meD argued, and afxght ensued, Mr. Clark

stru.c';. Appellant, who ^ell backward and hit his head on the curb.

(Tr.T. @ 206)

Vhen Mr. Clark testified, he admitted that he and Appellant

had argued, btat he denied hitting Appellant. Mr. Clark stated

that during the argument, Appellant just fell, on his own, and,

hit his head9 ('Tx.T. @ 252).

Mr. Donald Carmen, Appellant's brother, testified that Mr.

Clark told him, the day after the ir^cidint q that he never hit

Appellant, but that Appellant tripped on the curb before fai ling.

(Tr.T. @ 327)

Ms. Hearn further testified that when Appellant regained

consciousness, he got in the car, and '3sporadic^lly'° backed the

ca.r out of the driveway and drove away. (Tr.T. @ 206)

Later that evening, when only Ms. Hearn, Ms. Leigh, and Mr.

Clar', `s daughter, were sitting on the porch, Ms. Hearn testified

that she saw a silver Mazda, moving, tawarr'^: the house, at a "medium`;

fast speed, and slowed to a stop in front of the house. She said

the window tollec3 c3oe,an and che saw a'Tr? fle.; barrel N and begun

to run into the hac.€se. (Tr.T. @ 206; 007)

Ms. Nea.r.n went on to state that from the porch, she saw

Appellant as the shooter. She indicated that there was a little

light out, which enabled. her to see inside the car, ^^oweverg Officer,

Tod^.^ Carroscia, of the East Cleveland Police Department, testified

that it was not light out when he was dispacted, at 10:32PM, in

response to the shootin.g.(TreT. @ 207; 215; 217; 219) Further,

Mr. Clark testified that there was a bush directly in front of

the porch, a.nc?: that someone sitting on the porch had to look tbraugai

the bushes to see the street. He also stated the closest streetlight

in front of his house wcaul.r.'.. k?e both above and behind any car that

drove Oawn the street, and in front of a^^ persan e>p: the porch

of his hous e. { Tr . T . @ 26S p 266)

2

Police later empounded asi1ver Mazda. However, no shell

casings 9nar a weapon, were found in the car, 4and no shell casings

were found in the street near Cla.?k's house. The bullets lodged

in Mbo C1.ark^ q house were never analyzed ® Detective Michael Delisli,

testified that forensics would have been able to determine the

caliber of the bullets; yet, none of the bullets were extigeted

from the scene for exarni.nation.(Tr.'C. @ 358)

Initia1: police r:eper^s indicated that a revolver, not a rifle,

was used in the shooting. Detective Delisli, speculated that a

handgun was used, and that he was unaware of Ms. Hearn's Kahn

that she saw a rifle, until the moment she testified at trial.

(Tr.Tb @ 354-355; 366)

STATEMENT OF THE CASE

On March 28, 2012, the state of Ohio indicted Appellant A a

seven count indictment, alleging fomr counts of Felonious Assault

pursuant to Ohio Revised Code, section 2903.11(A)(2), felonies

of the second d.egree gwith. one ythree , and five year specifications

pursuant to O.R.C., sections 2941.141 (A), 2941.145(A), and 2941.146(A),

respectively; one count of .T.mproperly Discharging A Firearm IrEta

A Habitation, a felony of the second degree pursuant to Ohio Revised

Code, section 2923.161, also with one, three, and five year

specifications; and one count of Having A Weapon Under Disability,

a felony of the third degree pursuant to Ohio Revisec',. Code, section

2923.13; and finally, one count of Criminal Damaging, a misdemeanor

of the first degree pursuant to Ohio Revi sed Code, section 2909.06

(A)(1).

After discovery practicegthe parties proceeded to two plea

bargains. During both plea bargains hearings, Appellant requested

a plea, hz,Yt proclaimed his innocence.The trial court h.el:d a second,

hearing, just after the trial court had called up ajury. The

court refused to accept pleas, on both occasions, and the parties

proceeded to a jury trial.

3

iJpon the close of the state's case. Appellant moved for

acquittal pursuant to Criminal Rule 29. The trial court denied

A.ppeI1.antp s motion. A jury found Appellant guilty of all counts.

Prior to sentencing, Appellant filerr a motion for a new

trial, and eacli. party submitted memoranda related to merger of

multiple gun specifications and cliarges.The trial cotart overruled,

A-ppellant° s motion for a new trwal, as well as the motion to

merge c oLitits .

On August 22, 2012, the tr:3.a.l court sentenced Appellant

to fourteen years. Powever, in wts journal entry, the tri.al, court

failed to articulate Thow it cat'ne to calcLilate that total. 7-he

trial court indicated that each of ccrunts.3 through 4 vaoul<? have

a three year firearr:t specification r.in T * )rior, and c.onseci7tive

to, eacli. uneleriving offense (im-posing three years on each), but

ran each offense, and remaining offenses conczzrrent.

It is from this plea attcnot, trial, and- se-ntcncing that

Appellant now files 'his notice of appeal, and r^^moranduc.i in support

of jurisdiction, to this co,.irt.

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW

Pro osition Of Law No. 1

Appellant was denied his constitutional rightto due process when the trial court erred inrefusing to accept Appe}.1.ant 's Alford's Plea

T'ric trial court improperly rejected Appellant's ^;ui1ty plea

dfter Appellant contemporaneously declared his innocerice.

A. trial court may not reject a defendant's Alfords Plea

wiL..h6JLTt an examination iJ/. the facts and circumstances J1.'1.L.VL.i:j.]di61^

^i-te o1,ea. State v. "Rayrnonci., 10th Dist. t1€a. 05APµ1043. A tri:al,

court 1^Iav not reject a plea agreement reac'hcnl by the state and.

the defendant due to its -bl^^.nket policy of not accepting $"^pleas

from people that (lion7 t tI.-ii^k they did anything wrong, t^ Id. at Iffli..

4

Tn State v, Piacella, the Ohio Supreme Cai?rt recognized

that a plea of guilty may be accepted when enteren' along with

a claim of innccence. State v. piaceI1 a(1971),?7 O'hio St.2d:

92. See alscs, State v. V7ill:i_arns (1997)a Ohio ApP. LEXTS 4337

(Applying the sarne) , r{Thia conclusion comports wit'i t':Ie t-Iol.ding

in Alfor that a defendant mmay ii^^elligently concla.irxe that I'lis

interests wmulr^^. be better served by a guilty plea in spite of

h.^:,s prc^c^,d:t^.ti^er^ ^..n€^.r^cenceo ` €.^^.^.l^..[;^k^n. s, at^p^'G^. c i ^.^^,^ e State v.

tiol.^^^ (1994), 07 Ohio App.3c? 486, 6415z State v. Najeeullah (O-ct.

3, 1996), Guyah+^ga App. No.70126, unreported.

I^ the ^ ns}a;nt catiac, the trial ccurt^,s failure to accept

Appellant'aguilty plea was an abuse of di5cr^tion. See State

v, Rayracnd9 2006^nhicsW3259; State v. Switzer, g 2010-0hio-2473;

State v. Fitzgerald, 2010wOhio-3721. The trial court citl:inr (1)

had. a blanket policy of rejecting Alfoxds pleaa, or (2) it fa.iled.

to inquire as to the circumsta:nceu stixroa.inding Appell.an^ ^^p lea

and IhiS stance thereto. in eithetr circumstance, t'-ie former violated

jurisprtadencc in Switzer and Fitzgerald., and t`ie lattee,.violated,.

jurispratdence in Raymond.

As sLicti, the trial court erxed, and denied Appellant due

process, when it refL^^^ed to accept Appellar^^ ^ s Alfords plea,

and Lhi..5 c ri t.1. rl. shoi.t !., d. a^'"'. C. ep t jL.t ri,S' d1 {; I.. iC} S"t, g reverse the cC3urt-

af 8ppeals' finding, and remand for Appellant to be able to enter

into his plea as negotiated.

Proposition Of Law No.2

Appellant was denied his constitutional rightto due process when the trial court erred infailing to merge allied offenses of similar import

The ^ria.l court fai3,ed. to properly apply C?h.i.o` s allied

offenses statute to all firearm ^^ecifications,

r7s^ere a t^rial court fails to apply O'hi.o alli-,.ed, offenses

statute b0fore s^n-Lenca.ng, it conraiits plain error. r3;'iic law

prc^bPai,ts a dual convicti on for the commission of two "'allie<.I.

offenses of slmi1 a.r i.mport." Ohio Revised, Code, section, 2941.25.

Tn State v. ^^hiltip^4 Sth Dist. No.96329, qt37-41, t"ie court

r%

reversed for the trial cnurt ° s failure to merge three and five

year firearm specifications e The court x-tel.d. that it was error

to fail to merge all firearm specifications stemming from a drive-

by shr,atingo

In the instant cause, the situation is id.entical to Phil1.ips.

Appellant was convicted for felonious assault, with three and

five year firearm specificatzons. The trial court failed to indicate

in its journal entry that any of the five year specifications

mergeda The court stated that it arrived at its sentencing total

by means of two, three-year specifications (Tr.T. 0483),As in

Phillips, this is plain error.

As such, the tra.al court committed plai.n error, denying

Appellant due process, when it failed to merge allied offenses

at sentencing, and this court should accept jurisd?ction, reverse

the court of appeals ° order, and remend for merger and resentencing.

Prop4siti®n Of Law No.3

Appellant was denied his constitutional rightto due process ither► the tri,al court committedplain error in recording Appell.ant ° s senter►cein its journal entry as fourteen years imprisonment

The trial, court improperly concluded in its journal entry

that it imposed fourteen years of imprisonment wupon Appe7.l.ant.

In State v. Baker, 119 Ohio St,,3d 197, the Ohio Supreme

Court crsnfirmed. that a judgment entry of conviction must contain

the Crimina.l. Rule 32(C) elements to be final and subject to appeal:

s{ A final j udgment of conviction is a fina1, appealable order Linder

R.C. §2505.02 when it sets forth {1} the guilty plea, the jtiry

verdict , or the finding of t1he court upon which the sentence

is based;.^(2) the sentence, ( 3) the signature of the jud.ge, and

( 4) entry on the journal by the clerk of ecurt,"'

IIn the instant cause, the trial court ° s journal entry indicates

it sentenced Appellant to fourteen years, but the remaining entry

does not support this totalp The trial court articulated a conflicting

total in its recitation of the sentence of imprisonment for each

r-ount.

In State v< Adkins, 10th Ohio ApD.3d, 218, the court held

6

that amba.gui^ies within a sentencing entry should. be construed

in the defendant's favor, and that the defendant could not be

imprisoned without an explici-t and unambiguous order in the trial

court's iournal: entry.

As such, the trial court committed plain error in recording

Appellant's sentence, and this court should accept jurisdiction,

reverse the court of appeals' order, reverse t':ie imposition of

consecutive sentences and impose upon Appellant concurr.ent sentences

for all firearm specifications, for s tcata1. of si^-years

inzpris oramerz t.

Proposition Of Law No.4

Appellant was denied his constitutional rightto due process as Appell.a.nt ° s conviction wasagainst the manifest weight of the evidence

In the instant cause, the state $ s evidence lacked the quality

necessary for a conviction on all char;es, -due to untrustworthy

identification testimony. The state only presented identification

testimony from one witness, Dominique Hearn - and that testimony

was not credible.

First, under Ms. Hesrn' stes timpny, , she only had. a sma l l

opportunity to view the shooter from a distance. Ms. Hearn testified

that ,she viewed the sliooter while sitting on her porch, where

she sawo a silver Mazda roll down the street, and stoa) in front

of the house; a window roll down, when she saw arifle? at which

time she ran into the house,

Ms. Hearn gave cQnflicting testimony of the la.ght level

on that night testifying that she saw Appellant inside the car

from the porch because there was a little light out. Officer,

Todd Carrosica, testified. that it was dark out at the time of

t'ie shooting. Further, bushes in front of the porch, combined

with the dark conditxons, blocked Ms. Hearn's distant view of

the sbooter. Additionally, Ms. I4earn thought she saw the shooter

'nold:q.ng a rifle, but s;ccoreiing to police testimony, a handgun

was u sed in the shoot ing, and not ari-flPa Fznallys ther were

no evidence, outside of Ms. Hearn's identification testimony,

7

to link Appellant to t'na shooting; no weapon was found; no shell

casings were recovered, and the bullets lodged in the house were

never removed for examination.

As stich, Ms.Heasn 's identification testimony should have

been rejected by the jury as unreliable, and being that she was

the only witness the state had: to provide identification evidence,

Appellant 5 s convictions are against the manifest weight of the

evidence. Iiereby, this court shoLild accept jurisdiction, reverse

Appellan.t`s convictions, and remand the case for a new trial.

Proposita.on Of Law No.5

Appellant was denied his constitutional rightto due process as Appellant's convictions arenot supported by sufficient evidence as amatter of law

A reviewing court may reverse the decision of the trial

court where, viewing all the probative evidence and dra.u;ing all

inferences in favor of the prosecution, no rational trier of

fact could have found all elements of the offense proven beyond

a reasabab1e doubt. State v. Thompsvn (1997), 78 Obio St.3d. 380,

386. Essentially, a question of the sufficiency of the evidence

is a test of the state's burden of production. State v. Reeds,

2008-Ohio-1782 at 170.

In the instant ca:tise, Appellant's convictions were based

on evidence so deficient in reliability, as to render it insufficient

as a matter of law, and a manifest miscarriage of justice, a s

the jurv clearly lost its way in convicting Appellant based on

conflicting, tanreli.able identification testimony.

As such, this court should accept jurisdiction and reverse

and vacate 4ppelIant $ s convictions.

Proposition Of Law No.6

Appellant was denied his constitutional rightto due process as a result of prosecutorialmisconduct when state attorney attacked thesincerity of defense counsel

8

The State tinduly prejudiced Appellant by attacking the sincerity/

credibilit-y of defense counsel

In evaluating a claim of prosecutorial misconduct in closing

arguments, an appellate court must first determine whether the

remarks were improper. State v. Smith (1984), 14 Ohio St.3d 13, 1 4.

If the remarks were improper, the reviewing court then determines

whether the remarks prejudicially affected the defendant's

substantial rigb.ts,Id. Where an appellate court finds such

misconduct, it may reverse the decision of the lower court and

vacate its sentence> State v® Depew (1988), 38 Ohio St.3d 275, 278.

It is error for a prosecutor to impute insincerity to defense

counsel. State v. Keenan (1993), 66 Ohio St.3d 402, 405. See also,

Johnson, 2011-Ohio-3623 at 162 (7#By. sutgesting to the jurors

that Mr. Johnson's lawyers were trying to confuse them, the prosecutor

suggested that his lawyers did not believe in his innoo.ence„

That was irnproper. ") A. trial should n6t be deemed °''unfair if,

in the context of the entire tria^, it appears clear beyond a

reasonable doubt that the jury would have found the difendant

guilty even without the improper commonts. d" State v. Skatzes,

104 Ohio St.3d 195 at 1181.

Further, ^£[aj prosecutor is not allowed to express a personal

opinion concerning the credibility of evidence, but can argue

that the character, quality, or consistency of particular evidence

or witnesses should be consi-dered when assessing credib:i.lity e"

State v< Cody, 8th. Dist. No.77427 at q3G, citing State v. Tyler.

(1990), 50 Ohio St.3d 24, 41. See also State v. Johnson, supra,

at 170 ELamonting regular prosecutorial misconduct and the failed

mec'nana.sm to exact punishment in response to it excesses).

In Johnson, the Fintb District Court of Appeals held that

the prosecution engaged in a"Dattern of misconduct" in the case.

Id. at 943. Although failing to revcrsc9 it noted as improper

a prosecutor's comment that defense c.ounsel was some'now presenting

false evidence before the jury. Id. The Ninth District held the

prosecutor's statemeiits to be error along with numerous other

improper incidents at trial. Id. at 962.

In the instant cause, the prosecutor attacked defense counsel

by stating that he is "doing what adefen^e attorney dQes." ;

9

(Tr. T. @397). The full quote stems from an attack on Defense

Counsel's very logical defense - that Ms. Hearn did not 'havc

the opportunity to see the face of the shootcr. The state admitted

that Ms. Hearn's view would only have been for a°'half second"

of time moments earlier (Tr. T. @397, 1n<6). Then, in stating

that it was tinreasonable to expect s'ne give more information

on what type of gun was used, the Stata attacked not the idea,

but the attorney promoting the idea:

:eAl1 right. So it's really unreasonable to expecther to come in here and say, well, the barrei wasthis long, the handle was brown in color or chromein color. That's unreasonable. And Mr. Seewald's doingwhat a criminal defense attorney does; he's going toraise that as reasonable doubt. That is not reasonabledoubt. That's not anylgbere rrear. reasonable dotibt4 andI hope and think you will see through that." (Tr. T. @398)

Despite the trial court's instruction that personal opinion

cloes not matter in closing arguments (Tr. T. @397-98), this was

improper. The state's comment implies that the defense attorney

does not in fact believe its client's case, hut rrust defend it

because it is his job. It implies that the state personally believes

it is right, and the defense personally believes it is wrong,

regardless of the fact that Appellant took his case to trial.

This is an improper comment, outside of the evidence that does

not need to be raised in closing arguments, and in this case,

prejudiced the jury.

As such, this cour should accept jurisdiction ancl reverse

Appellant's convictions and remand for a new trial >

C€3NCLUS ION

Because the trial. court erred V.-ien it refused to accept

.A.ppellant's Alfords plea; because the tri-al court erred cu'nex,

it failed to merge allied offenses; becatise the trial court

corrimittcd plain error in recording Appellant's sentence in its

journal entry as fourteen years imprisonment; because Appellant's

10

convictions are against the manifest weight of the evidence,

and not supported by sufficient evidence as a matter ^f law;

and because the state committed prosecute^rial misconduct to the

prejudice of Appellant by attacking the sincerity of defense

counsel during closing arguments, his conviction in constitutionally

inf irm. As such, Appellant prays this court reverse his convictions,

and remand for further prooeedi.ngs, and for such relief as this

court deems just<

Respec^fully submi-tteci. Q

J i^s S e ^oreG.I < ;^^a3^.44^.075 South Avon Beldon R.oad.

Grafton, Ohio 44044Appellant, Pro Se

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandum

in support of jurisdiction was sent via regular U.S. mail, postage

prepaid, to: Counsel for Appellee, Cuyahoga County Prosecutor,

at: 1200 Ontario Street, Cleveland, Ohio 44113, on this

day of 201:3,

a^nes S he e,,'^Ppellant, Pro geTF7

11

[Cite as State v. Sheffey, 2013-®hio-2463.1

'KI'Lo"I"ourt af tppeat.5 of eoioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 98944

STATE OF OHIO

PLAINTIFF-APPELLEE

va.

JAMES SHEFFEY

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-560852

BEFORE: Boyle, P.J., Rocco, J., and Kilbane, J.

RELEASED AND JOURNALIZED: June 13, 2013

ATTORNEY FOR APPELLANT

Rick L. Ferrara2077 East 4th StreetSecond FloorCleveland, Ohio 44114

ATTORNEYS FOR, APPELLEE

Timothy J. McGinty

Cuyahoga County Prosecutor

BY: Maxwell M. Martin

Assistant County ProsecutorThe Justice Center

1200 Ontario StreetCleveland, Ohio 44113

MARY J. BOYLE, P.J.:

{¶I} Defendant-appellant, James Sheffey, appeals his conviction and sentence,

raising six assignments of error:

1. The trial court erred when it refused to accept appellant's A6Cord plea.

II. The trial court erred when it failed to merge allied offenses.

III. The trial court committed plain error in recording appellant's sentencein its journal entry as 14 years imprisonment.

IV. Appellant's conviction was against the manifest weight of theevidence.

V. Insufficient evidence supported appellant's convictions.

VI. The state committed prosecutorial misconduct by attacking thesincerity of defense counsel.

{T2} Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶3} In January 2012, Sheffey was indicted on four counts of felonious assault,

in violation of R.C. 2903.11(A)(2) (involving four different victims); one count of

improperly discharging into habitation, in violation of R.C. 2923.161(A)(1); one count of

having weapons under disability, in violation of R.C. 2923.13(A)(3); and one count of

critninal damaging, in violation of R.C. 2909.06(A)(1). The felonious assault and

improperly discharging into habitation counts each carried one- and three-year firearm

specifications. They further carried a#ive-year specification for a "drive-by shooting."

The underlying allegations giving rise to the indictment were that Sheffey fired several

bullets into a residence on 6th Avenue in East Cleveland after having a fight with the

owner.

{¶4} Sheffey pleaded not guilty to the charges, waived his right to a jury trial on

the having weapons under disability count, and proceeded to a jury trial on the remaining

counts where the following evidence was presented.

ۦ5} Dominique Hearn testified that she used to date and reside with Wilson

Clark, the owner of the house located on 6th Avenue in East Cleveland. According to

Hearn, on Saturday, July 23, 2011, around 8:00 p.m., she was hanging out on Wilson's

front porch of the house on 6th Avenue, along with (1) Wilson, (2) Wilson's aunt, Leigh

Clark, (3) Wilson's daughter, Somer, and (4) her own daughter, Jayden, when Sheffey

pulled into the driveway, driving a silver Mazda. Hearn explained that she knew Sheffey

because he lived down the street on 6th Avenue, and he had dated Leigh.

ۦ6} Hearn further testified that Sheffey wanted Leigh to come down to see him

but she was not interested. Wilson relayed the message to Sheffey, who then left. Ten

minutes later, Sheffey returned, asking again to talk to Leigh. According to Heam,

Wilson ultimately told Sheffey to leave, resulting in the two "tussling" in the driveway,

Wilson "knock[i.ng]" Sheffey out, and Sheffey falling in the driveway and "bust[ing] his

head open." Sheffey got up, "stood there for a minute," got into his car, and "reversed

sporadically" from the driveway, driving "out of control."

{¶7} According to Hearn, less than ten minutes later, Sheffey pulled up again in

his car, driving "regular pace until he came to a halt in front of the porch when we saw

the gun." Heam testified that "[y]ou couldn't not see that gun. When we saw that gun

we were like oh, my God. We tried to make it in the house. We barely made [it] in the

foyer. That's when we heard the shots fired." Heam explained that the "we" referred to

herself, Leigh, and the two girls. Wilson was not at the house because he had left

following the fight with Sheffey.

}¶S} Hearn further testified that she immediately called Wilson and told him

what happened. On cross-examination, Hearn stated that she did not call the police

immediately following the shooting; instead, she called only after she believed that

Sheffey came back to burglarize the house later that same evening.

{¶9} The state next offered the testimony of Wilson, who corroborated much of

what Heam testified to but denied pushing or shoving Sheffey. Wilson testified that he

and Sheffey "were going back and forth" and then Wilson's uncle stepped in. Wilson

further testified that he then left but got a call about 20 minutes later, indicating that

bullets had been fired at the house. Wilson ran back to the house, discovering that the

front window was "busted" and there were "holes" in the wall. According to Wilson,

Sheffey's brother, Donald, apologized to Wilson the next day for his brother's actions.

{¶10} East Cleveland patrolman, Todd Carroscia, testified that he responded to a

call concerning several shots fired in the area of 6th Avenue. Officer Carroscia testified

that he first cleared the house, finding four individuals upstairs hiding in a closet. He

observed bullet holes in the wall and part of the door jamb. One bullet was recovered,

along with a piece of slug. Officer Carroscia further recovered a large brick "that

appeared to have been thrown through th.e window." He photographed the area,

including a pool of blood found outside the house. Officer Carroscia further took some

swabs of the blood, which was later confirmed to match Sheffey's.

{¶11} East Cleveland detective, Michael Delisle, testified that he followed up with

the investigation of the shooting. He testified that the Clarks' front porch was

approximately 15 feet from the street and that one could "see directly onto the porch

without obstruction" from the street. Det. Delisle testified that the police did not recover

any gun or shell casings on the scene and that the one bullet recovered was "too smashed"

to perform any forensics. He further stated that, after he interviewed Wilson and Heam,

he obtained an arrest warrant for Sheffey. Det. Delisle interviewed Sheffey in March

2012, which was videotaped and played at trial for the jury.

{¶12} In the interview, Sheffey initially indicated that he was unfamiliar with any

shooting and that he was in Detroit at the time of the incident. After being told that the

police recovered blood from the scene, Sheffey indicated that the blood was his. He

ultimately admitted to driving his uncle's car to the Clarks' house and that he had drank

heavily. He further stated that after the fight, he went to a friend's house. His friend,

however, has since died. He denied any shooting, emphasizing that he did not own a

gun.

{¶13} Donald Cannon, Sheffey's brother, who was treated as a court's witness,

testified that he heard a commotion at Wilson's house on the night of July 23, 2011, and

then saw his brother lying in the street. According to Cannon, Sheffey was intoxicated

that evening and had driven their uncle's gray Mazda over to the Clarks' house. Cannon

testified, however, that his brother was not involved in any shooting. Cannon also

testified that the next time that he saw his brother was in Detroit, Michigan for a funeral

(months later) and that he had told Sheffey that the police were looking to speak with

him. According to Cannon, Sheffey indicated that he was coming home to allow the

police to question him but then never did.

I¶14} The jury found Sheffey guilty on all six counts presented to them. The trial

court separately heard the having weapons under disability charge and found Sheffey

guilty on that charge. The trial court sentenced Sheffey to a total of 14 years in prison.

Guilty Plea

{¶15} In his first assignment of error, Sheffey argues that the trial court abused its

discretion by refusing to accept his guilty plea after he declared his innocence. He

contends that the trial court should have accepted his Alford plea and allowed him to

plead guilty.

{¶16l We initially note that a defendant's plea of guilty while protesting innocence

is commonly referrr ed to as an Alford plea, originating from the United State's Supreme

Court's decision in North Carolina v. Alfard, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27

L.Ed.2d 162 (1970). A trial court may accept a guilty plea despite protestations of

innocence when a factual basis for the guilty plea is evidenced by the record. Id.

{¶17} A criminal defendant, however, does not have an absolute right under the

United States Constitution to have his guilty plea accepted by the court. Id. "Rather, the

decision to accept or reject a guilty plea is within the sound discretion of the trial court,"

State v. Switzer, 8th Dist. No. 93533, 2010-Ohio-2473, T 11. Accordingly, this court

may not reverse a trial court's rejection of a plea agreement absent an abuse of discretion.

Id.

{^18} It is well settled, however, that a trial court abuses its discretion when it

rejects a plea agreement by relying on a blanket policy rather than considering the facts

and circumstances of the particular case. See, e.g., State v. Fitzgerald, 188 Ohio App.3d

701, 2010-Ohio-3721, 936 N.E.2d 585 (8th Dist.); Switzer, supra; State v. Raymond, 10th

Dist. No. 05AI'-1043, 2006-Ohio-3259; State v. Hunt, 3d Dist. No. 1536, 1985 Oliio App.

LEXIS 8937 (Oct, 22, 19$5). Indeed, when a trial court merely relies on a blanket policy

without any consideration of the specific circumstances of the case, "the trial court's

refusal to accept appellant's plea [is] an abuse of discretion, or more precisely, it [is] a

refusal to exercise the court's discretion." Raymond atT 11.

{¶19} Relying on these cases, Sheffey contends that the trial court's refusal to

accept his plea after he declared his innocence constitutes reversible error. He argues

that the trial court failed to offer any reason for refusing his guilty plea and that it,

therefore, implicitly had a blanket policy refusing Alford pleas. This argument, however,

ignores the facts of the proceedings below.

I¶20} First, there is no evidence in the record that the trial court had a blanket

policy prohibiting Alford pleas. Second, the record is not entirely clear that Sheffey ever

intended on entering an Adford plea. Indeed, the record reflects that the trial court - on

two separate occasions - eilgaged in the plea colloquy with Sheffey after he indicated a

desire to accept the state's plea deal but that Sheffey ultimately changed his mind.

{¶21} The first time, in the midst of the trial court's colloquy, Sheffey stated the

following: "I don't want to do it, man. I can't, man. I don't know, man, because this

man -*** I don't know, man. I can't do it. That's I 1 years. I can't do that." The

second time, the trial court agreed to a plea colloquy after Sheffey again indicated a desire

to plead guilty following voir dire of the jury. This time, Sheffey stated for the first time

that he was not guilty in response to his defense counsel's question. From the record, it

appeared that Sheffey was once again having a change of heart and wasting the trial

court's time. Notably, after Sheffey indicated that he was "not guilty," neither he nor his

counsel indicated a desire to continue with the plea hearing.

{¶22} Accordingly, based on the facts and circumstances of this case, we cannot

say that the trial court abused its discretion in proceeding to trial.

}¶23} The first assignment of error is overruled.

Allied Offenses and Merger of Firearm S,pecifications

{¶24} In his second assignment of error, Sheffey argues that the trial court "failed

to properly apply Ohio's allied offense statute [R.C. 2941.25(A)] to all firearm

specifications." He further contends that the trial court should have merged all the

firearm specifications that stemmed from the drive-by shooting. We disagree.

{¶25} R.C. 2941.25(A) states: "Where the same conduct by 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." Contrary to Sheffey's contention, however, R.C. 2941.25 is not applicable

to firearm specifications because "a firearm specification is a penalty enhancement, not a

criminal offense." State v. Ford, 1.28 Ohio St.3d 398, 2011-Ohio-765; 945 N.E.2d 498,

paragraph one of the syllabus.

ۦ261 Although not subject to R.C. 2941.25, firearm specifications may be subject

to merger under R.C. 2929.14. We review Sheffey's challenge of the trial court's

imposition of multiple firearm specifications to determine whether it is contrary to law.

See R.C. 2953.0$. Applying that standard, we find that the trial court's imposition of the

firearm specifications complies with R.C. 2929.14.

{¶27} Orduiarily, the court is forbidden from imposing sentence on multiple

firearm specifications for "felonies committed as part of the same act or transaction." R.C

2929.14(B)(l)(b). However, this section applies only to the extent that R.C.

2929.14(B)(1)(g) does not apply, which states:

If an offender is convicted of or pleads guilty to two or more felonies, if oneor more of those felonies are aggravated murder, murder, attemptedaggravated murder, attempted murder, aggravated robbery, feloniousassault, or rape, and if the offender is convicted of or pleads guilty to aspecification of the type described under division (B)(1)(a) of this section inconnection with two or more of the felonies, the sentencing court shallimpose on the offender the prison term specified under division (B)(1)(a) ofthis section for each of the two most serious specifications of which theoffender is convicted or to which the offender pleads guilty and, in itsdiscretion, also may impose on the offender the prison term specified underthat division for any or all of the remaining specifications.

{¶28} In this case, Sheffey was found guilty of committing two or more felonies.

Four of those felonies were felonious assault, and he was found guilty of firearm

specifications under R.C. 2329.14(B)(1)(a). Under R.C. 2929.14(B)(.1)(g), the court was

required to impose on Sheffey prison terms for the two most serious specifications stated

in (B)(1)(a), and could also, in its discretion, impose sentence for any other specifications.

See State v, Cassano, 8th Dist. No. 97228, 2012-Ohio-4047, ¶ 34; State v. Worth, 10th

Dist. No. lOAP-1125, 2012-Ohio-666, ¶ 96; State v. Beatty-.Iones, 2d Dist. No. 24245,

2011-Ohio-3719, ¶ 16; see also State v. Isreal, 12th Dist. No. CA2011-11-115,

2012-Ohio-4876,1173 (recognizing that R.C. 2929.14(B)(1)(g) "serves as an exception to

the rule that multiple firearm specifications must be merged for purposes of sentencing

when the predicate offenses were committed as a single criminal transaction").

{¶29} Here, the trial court properly sentenced Sheffey on two of the three-year

firearm specifications attached to the felonious assault counts as required under R.C.

2929.14(B)(1)(g). The trial court also properly imposed a five-year mandatory prison

term pursuant to the firearm specification in R.C. 2941.146, also attached to the felonious

assault counts. To the extent that the trial court did not merge the three- and five-year

firearm specifications on one of the felonious assault counts, it was not required to do so.

Indeed, under R.C. 2929.14(B)(1)(c), "if an offense is properly accompanied with a

specification under R.C. 2941.146 and another under 2941.145, there is no merger of the

specifications, and the court must impose a sentence for each." State v. Cafjinan, 10th

IJYst. No. 09AP727, 2010-Ohio-1995, ¶ 11; see also State v. Walker, 2d Dist. No. 17678,

2000 Ohio App. LEXIS 2952 (June 3 6, 2000).

{¶30} Further, contrary to Sheffey's assertion, the trial court only imposed a single

five-year prison term for the frearn specification under R.C. 2941.146 (the "drive-by"

shooting specification), thereby merging all of the other five-year specifications into the

one. Because the trial court did not impose an additional five-year sentence on the

drive-by specification attached to every felonious assault count, we find this case

distinguishable from State v. Philips, 8th Dist. No. 96329, 2012-Ohio-473. Indeed, in

this case, the trial court properly recognized that R.C. 2929.14(B)(1)(c) limited imposing

t

a single five-year sentence on the "drive-by" specification and that it must merge with the

same firearm specification in other counts "for felonies committed as part of the same act

or transaction."

{¶31} Accordingly, we cannot say that the trial court's imposition of 1 l years on

firearm specifications is contrary to law.

{¶32} The second assignment of error is overruled.

Journal Entry

{¶33} In his third assignment of error, Sheffey argues that the trial court

committed plain error "in recording" his sentence as "14 years imprisonznent." We

disagree.

{¶34} According to Sheffey, the sentencing entry is confusing and ambiguous.

He argues that the trial court's actual imposition of each count as stated in the journal

entry should be construed as imposing only a six-year sentence. In support of his claim,

he relies on the Twelfth District's decision in Hamilton v. Adkins, 10 Ohio App.3d 217,

461 N.E.2d 319 (12th Dist.1983), which recognized that ambiguities within a sentencing

entry should be construed in the defendant's favor. Sheffey's reliance on Adkins in this

case is misplaced.

{¶35} In Adkins, the trial court sentenced the defendant on three misdemeanor

counts, imposing a $50 fine and 30 days on each charge. The trial court, however, never

indicated at the time of sentencing or in its journal entry if the 30 days were to be served

concurrently or consecutively. Id. at 217. Adkins later appeared for a bond hearing

after having filed a notice of appeal. At that time, the trial court clarified its earlier

order, stating that the counts were to be served consecutively. On appeal, the court

reversed the trial court's imposition of consecutive sentences, reasoning as follows:

When the appellant was sentenced the trial court failed to explicitly imposeconsecutive sentences. By its vague and indefinite sentencing, the trial courtprovided considerable uncertainty as to the length of the sentence to beserved by the appellant. Where there is an ambiguity in the language as towhether the sentences are to be served concurrently or consecutively, adefendant is entitled to have the language construed in his favor. SeeGaddis v. United States (C.A. 6, 1960), 280 F.2d 334, 336. Since there wasno specific designation that the sentences were to be served consecutively,R.C. 2929.41 requires that they be concurrent.

Id. at 218.

f¶36} This case is distinguishable from the instant case. Here, the imposition of

the 14-year sentence in the trial court's journal entry is consistent with what the trial

judge stated at sentencing. Sheffey's sentence of 14 years is based on the imposition of

three years on the base felonious assault counts, two years on having weapons while

under disability, and five months on the criminal damaging, all ordered to be served

concurrently, and the imposition of a total of 11 years on the firearm specifications, all to

be served consecutive to the underlyin.g base counts. To the extent that Sheffey argues

that the trial court failed to clearly specify that the firearm specifications run

consecutively, R.C. 2929.14(C)(1)(a) mandates it. Thus, the ambiguity at issue in Adkins

simply does not exist in this case.

{¶37} We find no error, plain or otherwise, in the trial court's sentencing journal

entry. The third assignment of error is overruled.

Manifest Weight of the Evidence

{¶38} In his fourth assignment of error, Sheffey argues that his conviction is

against the manifest weight of the evidence. We disagree.

{¶39{ In State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,

the Ohio Supreme Court explained the appropriate review of a claim challenging the

manifest weight of the evidence as follows:

The question to be answered * * * is whether "there is substantial evidenceupon which a [trier of fact] could reasonably conclude that all the elementshave been proved beyond a reasonable doubt." In conducting this review,we must examine the entire record, weigh the evidence and all reasonableinferences, consider the credibility of the witnesses, and determine whetherthe [trier of fact] "clearly lost its way and created such a manifestmiscarriage of justice that the conviction must be reversed and a new trialordered."

(Citations omitted.) .Id. at ¶ 81.

{¶40} "When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

`thirteentll juror' and disagrees with the factfinder's resolution of the conflicting

testimony." State v, Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting

Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

{T41} Sheffey argues that Hearn - the state's only witness who identified him ---

was not credible. Specifically, he argues that Hearn's identification was not reliable

A i

given the lighting conditions, the short duration of time to observe the shooter, and the

existence of bushes obstructing her view. He further contends that Hearn's testimony

that the shooter had a rifle was inconsistent with the police's belief that a revolver was

most likely used.

{¶42} We find Sheffey's argument unpersuasive. All of these issues and

inconsistencies were explored at trial for the jury to consider. And none of them, either

on its own or cumulatively, are so great to render Hearn's testimony completely

unreliable. Indeed, this is not a case involving a stranger identification -- Heam knew

Sheffey. Further, according to Det. Delisle, there was a clear vantage point from the

porch and street. Further, while Hearn may have been the only person identifying

Sheffey as the shooter, the state presented significant circumstantial evidence tying

Sheffey to the crimes. Notably, Sheffey's own admissions, as well as his brother's

testimony, placed Sheffey at the scene. And they both established that he was driving the

Mazda - the same Mazda identified by Hearn.

{¶43} Based on the evidence presented, we cannot say that this is the exceptional

case where the jury clearly lost its way. The fourth assignment of error is overruled.

Sufficiency of the Evidence

{¶44} In his fifth assignment of error, Sheffey argues that his conviction is not

supported by sufficient evidence. Relying on the same arguments advanced in his fourth

assignment of error, he contends that the state failed to present sufficient evidence to

a o

support the convictions. Having already rejected this claim, we find no merit to

Sheffey's argument. Here, we cannot say that Hearn's testimony was so unreliable to

render it "insufficient as a matter of law."

I¶45} The fifth assignment of error is overruled.

Prosecutorial Misconduct

{¶46} In his final assignment of error, Sheffey argues that the prosecutor engaged

in prosecutorial misconduct by attacking the sincerity of his defense counsel in closing

arguinent. We find this argument to lack merit.

ۦ47} The standard of review for prosecutorial misconduct is whether the

comments and questions by the prosecution were improper, and, if so, whether they

prejudiced appellant's substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739

N.E.2d 749 (2001). Prosecutorial misconduct will not provide a basis for reversal unless

the misconduct can be said to have deprived the appellant of a fair trial based on the

entire record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). "The

touchstone of analysis `is the fairness of the trial, not the culpability of the prosecutor. "'

State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047,1[ 92, quoting

Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

1¶48} Sheffey argues that the prosecutor's closing statement prejudiced him

because it unfairly attacked his defense counsel's theory that Hearn did not have the

opportunity to see the shooter and implied that his defense counsel did not even believe

him and was merely doing a "job." Specifically, Sheffey points to the following excerpt:

All right. So it's really unreasonable to expect her to come in hereand say well, the barrel was this long, the handle was brown in color orchrome in color. That's unreasonable. And 1VIr. Seewald's doing what acriminal defense attorney does; he's going to raise that as reasonable doubt.That's not anywhere near reasonable doubt, and I hope and think you will

see through that.

{¶49} Although prosecutors are entitled to considerable latitude in opening and

closing arguments, they must nevertheless avoid insinuations and assertions calculated to

mislead. Lott at 166. "They may not express their personal beliefs or opinions

regarding the guilt of the accused, and they may not allude to matters not supported by

admissible evidence." Id. The prosecutor is, however, permitted to fairly comment on the

credibility of witnesses based on the witnesses' testimony at trial. State v. Williams, 8th

Dist. No. 90739, 2012-Ohio-1741, ¶ 12, citing State v. Price, 60 Ohio St.2d 136, 140, 398

N.E.2d 772 (1979). Courts must review the statement within the context of the entire trial.

rd.

{¶50} We cannot agree that the prosecutor's comments rise to prosecutorial

misconduct. Indeed, a prosecutor's comments should not be taken out of context and

given their most damaging meaning. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d

1068 (1996). Notably, Sheffey's defense counsel did not object to these comments. But

even if these comments were construed as inappropriate, we cannot say that it denied

Sheffey of a fair trial. Here, the trial court specifically instructed the jury that opening

statements and closing arguments of counsel were not evidence, and that the jury was to

decide the case solely on the evidence presented. We have no basis to conclude that the

jury did not follow this instruction.

{T51} The final assignment of error is overruled.

1¶521 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. The defendant's coarviction having

been affzrmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

KENNETH A. ROCCO, J., andMARY EILEEN KILBANE, J., CONCUR.