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

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 104637 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DUSEAN E. LEWIS

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-15-601865-A and CR-15-603548-A 

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

RELEASED AND JOURNALIZED: June 15, 2017 
ATTORNEY FOR APPELLANT

Kevin P. Shannon 

Kehoe & Associates, L.L.C. 

1940 East 6th Street 

900 Baker Building 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Jonathan M. McDonald 

Assistant County Prosecutor 

The Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.: 

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

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

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

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

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

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

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

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

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

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

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

concealed weapon. Count 6 charged him with petty theft. 

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

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

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

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

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

having a weapon while under disability.1

 

 1Counts 7, 9, 10, 11, 14, 15, and 16 each carried one- and three-year firearm 

specifications. 
{¶4} In April 2016, Lewis entered into a plea agreement with the state in both 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

assignments of error for review. 

Assignment of Error One 

The trial court erred by failing to merge the two aggravated robbery counts 

related to the robbery at [the fast-food restaurant], as they were allied 

offenses of similar import. 

Assignment of Error Two 

The court erred in imposing consecutive sentences upon [Lewis] when 

those sentences were not supported by the record and not consistent with 

sentences imposed on for similar crimes by similar offenders. 

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

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

Merger 

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

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

fast-food restaurant. 

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

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

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

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

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

The court further explained that 

an accused has the burden to demonstrate a reasonable probability that the 

convictions are for allied offenses of similar import committed with the 

same conduct and without a separate animus; and, absent that showing, the 

accused cannot demonstrate that the trial court’s failure to inquire whether 

the convictions merge for purposes of sentencing was plain error. 

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

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

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

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

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

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

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

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

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

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

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

distinct.” Id. at ¶ 26. 

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

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

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

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

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

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

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

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

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

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

convictions merge for purposes of sentencing was plain error. 

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

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

in imposing consecutive sentences. 

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

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

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

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

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

appellate court may increase, reduce, or otherwise modify a sentence * * * or may vacate 

the sentence and remand the matter to the sentencing court for resentencing.” Id.

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

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

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

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

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

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

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

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

while under postrelease control for a prior offense; (2) at least two of the multiple 

offenses were committed as part of one or more courses of conduct, and the harm caused 

by two or more of the offenses was so great or unusual that no single prison term for any 

of the offenses committed as part of any of the courses of conduct adequately reflects the 
seriousness of the offender’s conduct; or (3) the offender’s history of criminal conduct 

demonstrates that consecutive sentences are necessary to protect the public from future 

crime by the offender. R.C. 2929.14(C)(4)(a)-(c). 

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

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

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

a word-for-word recitation of the language of the statute is not required, and 

as long as the reviewing court can discern that the trial court engaged in the 

correct analysis and can determine that the record contains evidence to 

support the findings, consecutive sentences should be upheld. 

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

sentencing entry. Id. at the syllabus. 

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

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

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

[w]e’ve had a similar offense at the Caribe Bakery, and I know the only 

thing that makes your actions less severe than that one is that instance, the 

robber actually shot the lady as she was standing there. Here you had the 

gun and you were secreting yourself behind the mask and all, but the terror 

to the person is the same. I’m sure that [the victim] just wanted to go to 

work and do her job. She didn’t go there expecting to have her life put on 

the line for selling some pastries. 

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

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

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

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

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

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

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

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

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

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

So here’s what I find significant. Indicators your conduct is more serious 

under 2929.12(B). 

This is organized. Used a ski mask, hoodie, and gloves so that you could 

escape detection by a viewer as well as by DNA and other evidence. 

There is psychological harm to [the victim at the bakery]. She’s scared to 

go to work now. She was the lady who was ducking down behind the 

counter, if I recall that video correctly. 

And I was at a similar bakery myself on Friday, and the lady was talking to 

me and there were other customers coming in, and I think I would be 

horrified if someone came in and tried to rob it. So I can imagine how the 

people at [the bakery] felt when you went into their store and robbed them 

at gunpoint. 

We’ve had a similar offense at [another bakery], and I know the only thing 

that makes your actions less severe than that one is that in that instance, the 

robber actually shot the lady as she was standing there. Here you had the 

gun and you were secreting yourself behind the mask and all, but the terror 

to the person is the same. I’m sure that [the victim] just wanted to go to 

work and do her job. She didn’t go there expecting to have her life put on 

the line for selling some pastries. 

And all these events were organized. And you had to get a gun off the 

streets and you had to pick out targets, and people have talked about the 
fact, in the PSI, that you were scoping them out by standing across the 

street, watching, picking your spot to go in and rob them. 

Indicators your conduct is less serious under 2929.12(C). 

The Court will accept that you had a difficult childhood; however, there are 

a lot of people that had difficult childhoods and they don’t commit 

robberies. Why you had chosen that path, only you could answer. 

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

This occurred while you were on post-release control, and you do have prior 

convictions. Not a great number compared to some of the other folks in the 

past through here. Minor things of a petty theft out in Parma, drug abuse 

of marijuana, and then [two robbery cases in 2014, where the trial court] 

imposed a 12-month sentence. I’m sure that [the trial judge’s] intent was 

that you should turn things around and not come back to court; however, 

that is not what happened. 

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

You have expressed remorse. 

You have worked odd jobs before, but those are really overbalanced by the 

harm that was caused here to the people and to the community by a spree of 

robberies. Nobody felt safe. And, in particular, people at [the bakery], and 

they were the last ones to be robbed. 

* * * 

The Court finds consecutive sentences are necessary to protect the public 

and to punish the defendant, who started this crime spree sometime in 

September and didn’t stop until December. The Court finds that it’s not 

disproportionate to the seriousness of the offense. This is not a matter of 

going in and smash and grab or some things like that. You came in with a 

gun, fully blanketed to make yourself unrecognizable and with gloves so 

that you wouldn’t give off DNA, and you rob people. And, in that respect, 

professionally done. And when you had moved up to things when you’re 

acting like a professional and robbing in the community, that’s serious. 

These weren’t spur of the moment things. You camped out outside the 

stores and you intended to victimize these places. 
Under 2929.14(C)(4), the Court also finds that at least two or more multiple 

offenses were committed as part of one or more courses of conduct, and the 

harm caused by these two or more offenses was so great or unusual that no 

single prison term for any of the offenses committed as part of the course of 

conduct would adequately reflect the seriousness of your conduct. 

The Court also finds that in the alternative, the fact that you had just gotten 

out of prison for committing two robberies and then you go back, and now 

you’re again in the advanced stages or advanced placement of robbery 

because you’ve refined your technique by surveillance, firearm, secreting 

yourself under the hood and such, so your history of criminal conduct as a 

robber demonstrates that consecutive sentences are necessary to protect the 

public from future crime by you. 

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

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

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

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

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

Mental Health Issues 

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

for not addressing the mental health issues in the PSI. 

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

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

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

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

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

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

quotations omitted.) Xie at 524. 

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

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

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

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

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

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

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

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

doing when he took the plea.” 

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

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

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

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

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

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

he would not have pled guilty. 

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

{¶30} Judgment is affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 
The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

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

the Rules of Appellate Procedure. 

 

MARY EILEEN KILBANE, JUDGE 

KATHLEEN ANN KEOUGH, A.J., and 

PATRICIA ANN BLACKMON, J., CONCUR