130459841

13045984

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO
THE STATE OF OHIO Case No: CR-22-669261-B
Plaintiff
Judge: JOHN P O'DONNELL

TAMARA MCLOYD
Defendant INDICT: 2911.01 AGGRAVATED ROBBERY /ERM 1 /FRM3
2911.01 AGGRAVATED ROBBERY /FRM1 /FRM3
2905.01 KIDNAPPING/FRM1/FRM3
ADDITIONAL COUNTS...

JOURNAL ENTRY

JUDGMENT ENTRY SETTING A DE NOVO SENTENCING HEARING FOR OCTOBER 6, 2022, AT 12:15 P.M.

O.S.J.

SENTENCING SET FOR 10/06/2022 AT 12:15 PM.

10/02/2022
CPJPO 10/02/2022 12:06:05

JC

HEAR
10/02/2022
Page 1 of 1
 IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

THE STATE OF OHIO ) CASE NO. CR 21 669261 B

)
) JUDGE JOHN P. O’DONNELL
Plaintiff, )
vs. ) JUDGMENT ENTRY SETTING
) A DE NOVO SENTENCING
TAMARA McLOYD ) HEARING FOR OCTOBER 6,
) 2022, AT 11:45 A.M.
Defendant. )

John P. O’Donnell, J.:

Defendant Tamara McLoyd was charged in 2022 with various crimes under three

indictments: case numbers CR 669261 B, CR 669473 and CR 666570.

In number 669261 she was one of three co-defendants. In that case she was charged with

thirteen crimes ranging from aggravated robbery to having a weapon under a disability. McLoyd

was the sole defendant in the other two indictments: number 669473 accused her of the

December 25, 2022, aggravated robbery of Raphael Hernandez, plus a count of having a weapon

under disability; number 666570 alleged the aggravated murder of Shane Bartek and 10 related

counts from events of December 31, 2022.

The indictment in number 669261 against McLoyd and a co-defendant, Jermaine

Hagwood, was tried to a jury - with certain counts tried to the court alone - beginning on August

16, 2022.1 On August 26, the jury returned guilty verdicts on the following counts:

1 A third defendant, Jada Hite, entered into a plea bargain soon after the trial began.
 Ct. R.C.2 Crime Felony Date Victim

Level

1 2911.01 Aggravated Robbery F-l 11/2/2021 Natalie Pape

2 2911.01 Aggravated Robbery F-l 11/2/2021 Tinika Givhan

3 2905.01 Kidnapping F-l 11/2/2021 Tinika Givhan

5 2911.01 Aggravated Robbery F-l 11/2/2021 Sherri Gurka

6 2905.01 Kidnapping F-l 11/2/2021 Sherri Gurka

8 2911.01(A)(1) Aggravated Robbery F-l 11/2/2021 Happy’s Pizza

9 2911.01(A)(1) Aggravated Robbery F-l 11/2/2021 Peggy Lyons

At the same time, the court found McLoyd guilty of the following charge tried to the

bench:

11 2923.13(A)(2) Having a weapon under a disability F-3 11/2/2021

All counts except having a weapon under a disability included two firearm specifications:

a one-year specification under R.C. 2941.141(A) for having a firearm and a three-year

specification pursuant to R.C. 2941.145(A) for using a firearm. McLoyd was also found guilty

of every firearm specification.

At sentencing, the court found that: counts 2 and 3 were allied offenses of similar import;

counts 5 and 6 were allied offenses; and that count 8 was an allied offense of counts 2 and 5. The

State of Ohio elected to proceed to sentencing on counts 2 and 5.

2 Ohio Revised Code.

2
 Case numbers 669473 and 666570 were joined for a single trial at which McLoyd was

the sole defendant. Guilty verdicts were returned as follows:

CR 22 669473

Ct. R.C. Crime Level of Felony Date of offense

1 2911.01(A)(1) Aggravated F-l 12/25/2021

robbery

Count 2, having a weapon under disability, was tried to the court alone and resulted in a

judgment of guilty.

CR 22 666570

Ct. R.C. Crime Level of Felony Date of offense

1 2903.02(A) Murder (lesser Unclassified 12/31/2021

included offense

of aggravated

murder as

charged

2 2903.01(B) Aggravated Unclassified 12/31/2021

murder

3 2903.02(B) Murder Unclassified 12/31/2021

4 2911.01(A)(1) Aggravated F-l 12/31/2021

robbery

5 2903.02(B) Murder Unclassified 12/31/2021

3
 6 2903.11(A)(2) Felonious F-l (peace 12/31/2021

assault officer)

7 2903.11(A)(1) Felonious F-l (peace 12/31/2021

assault officer)

8 2913.02(A)(4) Theft of a motor F-4 12/31/2021

vehicle

9 2913.02(A)(4) Theft M-l 12/31/2021

The court returned a judgment of guilty on count 10, having a weapon under a disability,

which was tried to the bench. Except for the weapon under a disability and misdemeanor theft

counts, each count included three firearm specifications: the one-year specification under R.C.

2941.141(A) for having a firearm and the three-year specification pursuant to R.C. 2941.145(A)

for using a firearm, plus a seven-year specification for discharging a firearm at a peace officer.

The court found that counts 1, 2, 3, 5, 6 and 7 are allied offenses of similar import to each

other, and on that group of charges The State of Ohio elected to proceed to sentencing on count

2. The court further found that counts 4, 8 and 9 are allied offenses of similar import and the

prosecutor elected to sentence on count 4.

After a full presentation at the hearing from The State of Ohio and the defendant, the

court orally pronounced sentences in open court. The sentences for counts 1, 2, 5 and 9 in

669261 included a single, merged sentence of 3 months for the firearm specifications.3

However, the court ordered, over the State of Ohio’s objection, that the firearm specifications for

counts 1,2,5 and 9 be served concurrently for a single three-year term on the specifications in

3 Neither party contends that the several firearm specifications within a particular count do not merge into a single 3-
year specification per count.

4
case number 669261. In case number 666570, the court orally imposed a seven-year term on the

merged firearm specifications for count 2 and a three-year term on the specifications attached to

count 4, resulting in 10 years total on the firearm specifications in number 666570. The court

then ordered that the total of three years on the specifications in number 669261 be served prior

and consecutively to the total of 10 years for all the case number 66570 specifications.

The State of Ohio objected to those calculations on the grounds that the Ohio Revised

Code and controlling decisional authority obligate the trial court to require all sentences for

firearm specifications to be served consecutively to each other and to all prison sentences on the

underlying felonies. Having now more thoroughly considered and examined the statutory

provisions and case law, the court concludes that, under the circumstances of these cases and for

the reasons explained below, The State of Ohio is correct and concurrent sentences for the

firearm specifications are impermissible and a new sentencing hearing is therefore necessary.

R.C. 2929.14

Sentencing for firearm specifications is controlled by section 2929.14 of the Ohio

Revised Code. Initially, R.C. 2929.14(B)(1)(a) provides:

[I]f an offender who is convicted of... a felony also is convicted of... a

specification described in section 2941.141 [or] 2941.145 of the Revised Code, the court

shall impose on the offender one of the following prison terms.

The statute then goes on to require a prison term of one year for a specification under R.C.

2941.141(A) and three years for a specification under R.C. 2941.145(A). Moreover, R.C.

2929.14(B)(l)(f)(i) obligates the court to impose an additional term of seven years for

discharging a firearm at a peace officer. The court mostly complied with this provision by orally

5
imposing sentences for all three-year specifications, but mistakenly omitted a seven-year

specification in favor of a three-year specification on count 4 in case number 666570.

But besides obligating a court to impose a prison term for every specification, the statute

generally prohibits a court from imposing a prison sentence on more than one firearm

specification where a defendant is being sentenced for multiple felonies “committed as part of

the same act or transaction.” R.C. 2929.14(B)(l)(c)(i). Multiple felonies are part of the same

transaction when there is a series of continuous acts bound together by time, space and purpose,

and directed toward a single objective. State v. Wills, 69 Ohio St. 3d 690, 691, N.E.2d 370

(1994).

Here, even after the decision on allied offenses of similar import, which precluded

sentencing on several counts in number 669261 related to McLoyd’s aggravated robbery on

November 2, 2021, of a pizza shop and the two employees then present, there are still some

counts in that case that are part of the same transaction: namely Counts 2 and 5 - the separate

aggravated robberies of the two pizza shop employees - which were committed as part of the

same transaction on November 2. Otherwise, however, the aggravated robberies of Natalie Pape

in Lakewood and Peggy Lyons in Cleveland Heights on that same date constitute separate acts

and transactions. Ordinarily, therefore, McLoyd could only be sentenced to one three-year

firearm specification for counts 2 and 5. And in number 666570, the two seven-year

specifications on counts 2 and 4 would typically be combined to a single seven-year specification

for a single transaction.

Yet the statute provides an exception to a trial court’s ability to forgo sentences on

multiple firearm specifications committed as part of the same act or transaction. R.C.

2929.14(B)(1)(g) provides:

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 If an offender is convicted of... two or more felonies, if one or more of those

felonies are ... aggravated robbery ... and if the offender is convicted of ... a

specification of the type described under division (B)(1)(a) of this section in connection

with two or more of the felonies, the sentencing court shall impose on the offender the

prison term specified under division (B)(1)(a) of this section for each of the two most

serious specifications of which the offender is convicted ... and, in its discretion, also

may impose on the offender the prison term specified under that division for any or all of

the remaining specifications.

The Eighth District Court of Appeals has interpreted this section to mean that where a

defendant was found guilty of two or more felonies with firearm specifications “in connection

with an incident (one of which was aggravated robbery)” then the trial court is required to

impose prison terms for the two most serious specifications. State v. Peterson, Cuyahoga

County App. No. 109306,2022-Ohio-835, ^18.

In Peterson, the defendant was convicted of eight counts that included 54-month firearm

specifications: four counts of aggravated robbery and four counts of having a weapon under a

disability. These counts spanned four different robberies at different places across three weeks.

The trial court imposed 54-month specifications on all eight counts, for a single, consecutive

sentence on the specifications alone of 36 years. That time was ordered to be served prior and

consecutively to a concurrent indefinite sentence of three to four-and-one-half years on the

underlying felonies. On appeal, Peterson argued only that he should not have been sentenced for

the 54-month specification on the aggravated robbery and 54-month specification for the weapon

under disability for each of the four separate events. In other words, he agreed that prison terms

on the specifications had to be served consecutively for the four different robberies but that he

7
should receive only one 54-month specification where two crimes - aggravated robbery and

weapon under disability - were committed as part of the same act or transaction. Yet the court

of appeals disagreed, finding that the “same act or transaction” provision of R.C.

2929.14(B)(l)(c)(i) was an exception to the mandatory sentence required by R.C.

2929.14(B)(1)(a), but that the “two or more felonies” portion of 2929.14(B)(1)(g) was “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.” Id.,

A similar result was reached in State v. Adkins, Cuyahoga App. Nos. 109184 and 109185,

2021-Ohio-1294. Adkins pleaded guilty to four counts - aggravated robbery, robbery and two

counts of receiving stolen property - that each had a one-year firearm specification. He was

sentenced to two one-year terms on the specifications attached to the aggravated robbery and

robbery counts, but no sentences were imposed on the two specifications attached to the

receiving stolen property counts.

The State of Ohio appealed the failure to order sentences on the two specifications. The

analysis by the court of appeals considered the same statutory provisions cited in this judgment

entry as well as R.C. 2929.14(C)(1)(a), which mandates that service of the sentence on a firearm

specification be consecutive to “any prison term imposed for the underlying felony” and “any

other prison term . . . previously or subsequently imposed.” Ultimately, the court concluded:

If the felonies and attendant firearm specifications were committed separately,

then the trial court must follow the default rule set forth in R.C. 2929.14(C)(1)(a), which

requires mandatory consecutive service of all firearm specifications. Id., TJ23.

8
 In short, McLoyd was orally ordered to serve a total of 13 years on all specifications

(three in all of 669261, plus seven for count 2 in 666570, plus three for count 4 in 666570) when

she should have been ordered to serve a total of 26 years on all specifications (three times four in

669261 and seven plus seven in 666570).

Because the sentence given orally on September 27 does not comport with this

mandatory provision of the Ohio Revised Code it is contrary to law, and a de novo sentencing is

set as follows:

Thursday, October 6,2022

12:15 p.m.
Courtroom 18-D

October 3, 2022
Judge Date