COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69183 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DEONTA CRUMEDY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON P EAS COURT CASE NO. CR-318833 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: FRANCINE GOLDBERG (#0053391) and DARCY MOULIN (#0056106) Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga Public Defender BY: ROBERT R. CLARICO (#0062067) Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113-1569 - 2 - SPELLACY, C.J.: Defendant-appellant Deonta Crumedy ("appellant") appeals his conviction for one count of aggravated robbery in violation of R.C. 2911.01; one count of felonious assault in violation of R.C. 2903.11; two counts of unlawful possession of a dangerous ordinance in violation of R.C. 2923.17; and one count of possession criminal tools in violation of R.C. 2923.24. Appellant assigns the following errors for our review: I. MR. CRUMEDY WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE JUVENILE COURT JUDGE FAILED TO COMPEL THE PROSECUTION TO DISCLOSE THE RESULTS OF PHYSICAL EXAMINATIONS AND SCIENTIFIC TESTS PURSUANT TO JUR.R. 24 AND CRIM. R. 16. II. THE TRIAL COURT ERRED IN SENTENCING DEONTA CRUMEDY TO FIVE SEPARATE THREE-YEAR TERMS OF ACTUAL INCARCERA- TION WHEN ONLY ONE THREE-YEAR TERM OF ACTUAL INCARCERATION SHOULD HAVE BEEN IMPOSED FOR THE FIREARM SPECIFICATION. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On September 9, 1994, appellant was charged in juvenile court in a five count complaint: count one, aggravated robbery in violation of R.C. 2911.01 (A)(2); count two, felonious assault in violation of R.C. 2903.11 (A)(2); counts three and four, unlawful possession of a dangerous ordinance in violation of R.C. 2923.17(A) - 3 - and; count five, possession criminal tools in violation of R.C. 2923.24(A). On October 25, 1994, a probable cause hearing was conducted in juvenile court where the judge determined that probable cause did exist to proceed with the complaint. (Tr. October 25, 1994, p. 36). The court further determined that appellant's motion to compel should be denied, in that, the motion deals primarily with trial. (Tr. October 25, 1994). On December 29, 1994, an amenability hearing was conducted in juvenile court. Pursuant to Juv.R. 30 and R.C. 2151.26, the court transferred jurisdiction of appellant's case to the General Trial Division of Cuyahoga County Common Pleas Court for criminal prosecution of the case. Subsequently, appellant was indicted on January 24, 1995 on all five counts of the original complaint filed in the juvenile court. Furthermore, a firearm specification was added onto each of the five indictments. On April 5, 1995, appellant entered a plea of guilty to count one, aggravated robbery in violation of R.C. 2911.01 with a firearm specification and, count two, felonious assault in violation of R.C. 2903.11 with a firearm specification. Subsequently, the state dismissed the remaining counts. However, on April 21, 1995, appellant filed a motion to withdraw his guilty pleas and entered a plea of no contest on all five counts. On May 23, 1995, the trial court found appellant guilty on all five counts and sentenced appellant as follows: 1) count one, aggravated robbery with a firearm specification, three years actual - 4 - incarceration for the firearm specification, to be followed by eight (8) to twenty-five (25) years; 2) count two, felonious assault with a firearm specification, three years actual incarceration on the firearm specification, to be followed by eight (8) to fifteen (15) years; 3) count three, unlawful possession of a dangerous ordinance with a firearm specification, three years, to be followed by one year; 4) count four, unlawful possession of a dangerous ordinance with a firearm specification, three years, to be followed by one year; and 5) count five, possessing criminal tools, three years, to be followed by one year. Counts one and two to run consecutively and; counts three, four, and five to run concurrently. II. On September 6, 1994, a group of young males, including appellant, entered a grocery store owned by Silvestre Gonzales located at 7001 Wade Park Road, Cleveland, Ohio. As the boys entered the store, Mr. Gonzales noticed that each boy was carrying a hanging bag. (Tr. October 25, 1994, p. 6). Mr. Gonzales testified that appellant then came up to the counter to make a purchase, and as he bent over to retrieve a bag in which to place the items, he saw appellant place a pistol toward the top of his head. (Tr. October 25, 1994, p. 8). Mr. Gonzalez further testified that appellant subsequently shot him in the stomach. (Tr. October 25, 1994, p. 8). Mr. Gonzalez then stated that as everybody started shooting, he retrieved his gun and also began - 5 - shooting. Subsequently, Mr. Gonzalez shot appellant in the leg. (Tr. October 25, 1994, p. 9). Appellant and his companions proceeded to run out of the store and escape in a red Monte Carlo. In response to a radio broadcast that shots had been fired in connection with a robbery, Officer Timothy Zbikowski, a Cleveland Police Officer, attempted to stop a red Monte Carlo which had passed by his patrol car. (Tr. October 25, 1994, p. 14). Officer Zbikowski testified that as he attempted to stop the vehicle, the men fled. (Tr. October 25, 1994, p. 14). Eventually, however, the men stopped in a parking lot at Wade Park Plaza and bailed out of the car. (Tr. October 25, 1994, p. 14). Appellant, who had been in the back seat of the vehicle, was apprehended as he tried to flee from the vehicle. (Tr. October 25, 1994, p. 15). Officer Zbikowski testified that as he was apprehending appellant, he had observed what appeared to be a gun on the floor of the back seat of the vehicle. Following the incident, Detective Joseph Nowak was assigned to investigate the scene in connection with the aggravated robbery and shooting. In particular, Detective Nowak investigated the Monte Carlo from which appellant had fled. Detective Nowak testified that he observed three weapons in the vehicle. (Tr. October 25, 1994, p. 21-22). Detective Nowak further testified that, besides the weapons found in the vehicle, Mr. Gonzalez also had a gun. (Tr. October 25, 1994, p. 22). However, Detective Nowak was not involved in the investigation which took place at the store. - 6 - III. In his first assignment of error, appellant contends that the juvenile court judge erred in denying his motion to compel discovery at the time the probable cause hearing was conducted. In particular, appellant contends that the court failed to grant his motion to compel the State to make available to him the results of gunshot and paraffin test performed on appellant, fingerprints from the weapons, and a copy of any videotape of the shooting. Juv.R. 24 governs discovery in all juvenile cases. Juv.R. 24 states, in pertinent part, the following: (A) Request for Discovery. Upon written request, each party of whom discovery is requested shall, to the extent not privileged, produce promptly for inspection, copying, or photographing the following information, documents, and material in that party's custody, control, or possession: * * * 4) Any scientific or other reports that a party intends to introduce at the hearing or that pertain to physical evidence that a party intends to introduce. (B) If a request for discovery is refused, application may be made to the court for a written order granting the discovery. * * * Notwithstanding the provisions of subdivision (A), the court may deny, in whole or part, or otherwise limit or set conditions on the discovery * * * upon a showing * * * that granting discovery may * * * impede the criminal prosecution of a minor as an adult * * * . Crim.R. 16 also permits the trial court to order compliance when a party fails to comply completely with a discovery request. To this end, Crim.R. 16(B) and (C) specify the documents and tangible - 7 - objects, reports of examinations, statements of the defendant, and other discoverable materials. City of Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 4. In discovery practices, the trial court has a discretionary power not a ministerial duty. State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57. Thus, we review the denial of discovery motions under an abuse of discretion standard. Georgeoff v. O'Brien (1995), 105 Ohio App.3d 373, 378, citing Gessaman, supra. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Sprosty v. Pearlview, Inc. D.B.A. Corinthian, Inc. (September 21, 1995), Cuyahoga App. Nos. 67704, 67728, 67997, unreported citing State ex rel. McMaster v. School Emp. Retirement Sys. (1994), 69 Ohio St.3d 130. In the present case, the juvenile court, acting in accordance with Juv.R. 24, overruled the appellant's motion to compel discovery. In particular, the juvenile court, at the probable cause hearing, stated: "[t]he court feels that under the rules that this motion . . . of course, the defense can file it at any time, but the court feels that it deals with the trial itself. And it's certainly very important to the trial itself. But as to the probable cause hearing, the court feels that this would be a tremendous burden in every case in which a probable cause is filed if the State had to have all their evidence in their whole case together. It's such an early time in the proceedings . . . [T]he court, at this time, uh . . . feels that uh . . . the - 8 - State is not required to have this information for the probable cause. So we're going to deny the motion to compel discovery at this time." (Tr. October 25, 1994, p.2). Subsequently, the juvenile court, based on other evidence presented before it, transferred appellant's case to the criminal division of the common pleas court. (See, Tr. December 29, 1994). "The philosophy of the Criminal Rules is to remove the element of gamesmanship from a trial." Papadelis, supra at 3, citing State v. Howard (1978), 56 Ohio St.2d 328, 333. The purpose of discovery rules is to prevent surprise and the secreting of evidence favorable to one party. The overall purpose is to produce a fair trial. Papadelis, supra, citing State v. Mitchell (1975), 47 Ohio App.2d 61, 80. In the case sub judice, after appellant's case had been transferred, but prior to trial, appellant, on February 9,1995, filed a motion for discovery and; on February 21, 1995, appellee filed its response to appellant's request for discovery. Furthermore, appellee also filed supplemental discovery on March 23, 1995. Thus, appellant was provided, in accordance with Crim.R. 16, discovery prior to trial. Accordingly, this court holds that the juvenile court judge's denial of appellant's motion to compel discovery at the probable cause hearing was not prejudicial to appellant's right to a fair trial; and the juvenile court's denial of appellant's motion to compel discovery was not arbitrary, unconscionable, or unreasonable. - 9 - Accordingly, appellant's first assignment of error is overruled. IV. In his second assignment of error, appellant contends that the trial court erred in sentencing him to five separate three-year terms of actual incarceration when only one three-year term of actual incarceration should have been imposed for the firearm specification. In particular, appellant contends that the trial court was without jurisdiction to correct the sentencing entry because he had appealed his conviction to this Court. In the case sub judice, the trial court sentenced appellant on May 16, 1995. Appellant's sentence was journalized on May 23, 1995. On June 21, 1995, appellant filed a motion to correct illegal sentence, reconsider and modify sentence; and/or motion to withdraw pleas and for new trial. And, on July 11, 1995, the trial court amended its previous journal entry and sentence. In the case sub judice, appellant was sentenced at trial as follows: "With regard to the first count, I'll give you three years, which is mandated by law, actual incarceration, to be followed by eight (8) to twenty-five (25) years. On the second count, I'll give you three years actual incarceration which is mandated, on the firearm, to be followed by eight (8) to fifteen (15) years. These are to run consecutively. And in the other three counts, I'm going to give you, on each one of them -- actually, the third count is three years, to be followed by one year. This will be run concurrent. And then the fourth count would be three years actual, to be followed by one year. I'll run that - 10 - concurrent. And then the possession of criminal tools, three years, to be followed by one year. That will be run concurrent. (Tr. May 16, 1995, p. 64-65). The trial court, in its journal entry of May 23, 1995, however, set forth the following sentence: Sentence on counts one and two each for three (3) years actual for Firearm Specification followed by eight (8) to twenty-five (25) years; count one and two to run consecutive; Sentence on counts three, four, and five, each for term of three (3) years actual for gun specification, followed by one (1) year sentence; Counts three, four, and five are to run concurrently with each other and concurrent with counts one and two. (Journal Entry, May 23, 1995). Pursuant to R.C. 2929.71, the trial court, where an offender is convicted of a specification charging him with having a firearm on or about his person, must sentence the offender as follows: (A) The court shall impose a term of actual incarceration of three years in addition to imposing an . . . indefinite term of imprisonment . . . if all of the following apply; (1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code. (2) The offender also is convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing a felony. (3) Section 2929.72 of the Revised Code is inapplicable. The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment. - 11 - (B) If an offender is convicted of, or pleads guilty to, two or more felonies and two or more specifications charging him with having a firearm on or about his person or under his control while committing the felonies, each of the three-year terms of actual incarceration imposed . . . shall be served consecutively with, and prior to, the life sentence or indefinite terms of imprisonment . . . . If any of the felonies were committed as part of the same act or transaction, only one three-year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served consecutively with, and prior to, the life sentences or indefinite terms of imprisonment . . . Appellant was sentenced by the trial court to a term of three- years actual incarceration for each firearm specification on each of the five counts. However, because each of the felonies committed by appellant were committed as part of the same act or transaction, the trial court, pursuant to R.C. 2929.71(B), should have sentenced appellant to only one three-year term of actual incarceration to be served consecutively with, and prior to appellant's indefinite terms of imprisonment. Thus, the trial court's original sentences with regard to the firearm specification should have been merged to reflect only one three-year term of imprisonment. On July 11, 1995, the trial court granted appellant's motion to correct sentence. (Journal Entry, July 11, 1995). The corrected sentence stated: Count (2) two is corrected to read: Defendant sentenced to (3) three years (actual) for firearm specification followed by 8 years to 15 years at Lorain Correctional Institution. Counts 1 and 2 to run consecutively. 3 years - 12 - (actual) for firearm specification on all counts are to merge. Thus, it is clear from the trial court's modification of appellant's sentence that the sentence is in agreement with Ohio law. Accordingly, appellant's second assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its 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 conviction having been affirmed, 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. JOSEPH J. NAHRA, J. CONCURS; SARA J. HARPER, J. DISSENTS WITHOUT OPINION. LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .