State v. Bickley , 2019 Ohio 16 ( 2019 )


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  • [Cite as State v. Bickley, 2019-Ohio-16.]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    UNION COUNTY
    STATE OF OHIO,
    CASE NO. 14-18-05
    PLAINTIFF-APPELLEE,
    v.
    WENDY BICKLEY,                                             OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    CASE NO. 14-18-06
    PLAINTIFF-APPELLEE,
    v.
    WENDY BICKLEY,                                             OPINION
    DEFENDANT-APPELLANT.
    Appeals from Union County Common Pleas Court
    Trial Court Nos. 17-CR-0147 and 17-CR-0146
    Judgments Affirmed
    Date of Decision: January 7, 2019
    Case Nos. 14-18-05 and 14-18-06
    APPEARANCES:
    Natalie J. Bahan for Appellant
    Andrew M. Bigler for Appellee
    WILLAMOWSKI, J.
    {¶1} Defendant-appellant Wendy Jo Bickley (“Bickley”) appeals the
    judgments of the Union County Court of Common Pleas, alleging that the trial court
    committed several errors during sentencing. For the reasons set forth below, the
    judgments of the trial court are affirmed.
    Facts and Procedural History
    {¶2} On February 27, 2017, Bickley was at home with her husband, Jason
    Bickley (“Jason”). Tr. 5. She was aware that her husband had ingested heroin that
    evening, but, when she discovered that Jason was unconscious and having difficulty
    breathing, she did not immediately call for emergency medical assistance. Tr. 5-6.
    At some point, she was in contact with Jason’s mother, who urged Bickley to call
    for help. Tr. 12. Eventually, Bickley called 9-1-1. Tr. 12. Before the emergency
    personnel arrived, Bickley deleted a number of incriminating text messages. Tr. 23.
    At the hospital, Jason showed no signs of brain activity and was placed on life
    support. Tr. 6. While Jason was still in the hospital, Bickley went to a pharmacy
    and had Jason’s prescriptions for Hydrocodone filled. Tr. 6, 37. Jason died on
    February 28, 2017. Tr. 37.
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    Case Nos. 14-18-05 and 14-18-06
    {¶3} On July 28, 2017, Bickley was indicted for one count of tampering with
    evidence in violation of R.C. 2921.12(A)(1). Doc. A1.1 This charge formed the
    basis of case 17-CR-0146. Doc. A1. On July 28, 2017, Bickley was also indicted
    for one count of deception to obtain a dangerous drug in violation of R.C.
    2925.22(B)(2)(c); one count of aggravated possession of drugs in violation of R.C.
    2925.11(A); and one count of aggravated trafficking in drugs in violation of R.C.
    2925.03(A)(1). Doc. B1. These charges formed the basis of case 17-CR-0147.
    Doc. B1. On January 19, 2018, Bickley pled guilty to one count of tampering with
    evidence in case 17-CR-0146 and one count of deception to obtain a dangerous drug
    in case 17-CR-0147. Doc. A27, B27.
    {¶4} On January 31, 2018, Bickley appeared before the trial court for
    sentencing. Tr. 4. At the hearing, a victim advocate read two victim impact
    statements. Tr. 13, 15. The first was from the mother of one of Jason’s children.
    Tr. 13. The second statement was from Jason’s mother. Tr. 15. The trial court then
    ordered that Bickley be placed on community control for five years for the crime of
    tampering with evidence in case 17-CR-0146. Doc. A33. The trial court then
    sentenced Bickley to six years in prison for the crime of deception to obtain a
    dangerous drug in case 17-CR-0147. Doc. B29. The trial court ordered that the
    1
    Numbers preceded by the letter “A” refer to the docket for case 17-CR-0146; numbers preceded by the
    letter “B” refer to the docket for case 17-CR-0147.
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    Case Nos. 14-18-05 and 14-18-06
    period of community control was to be tolled until Bickley completed her prison
    term. Doc. A33.
    {¶5} Appellant filed her notice of appeal on February 21, 2018. Doc. A37,
    B33. On appeal, Bickley raises the following assignments of error:
    First Assignment of Error
    The trial court erred in imposing consecutive sentences by not
    considering the factors as enumerated in R.C. 2929.14(C)(4).
    Second Assignment of Error
    The trial court erred in imposing a prison sentence to run
    consecutive to a community control sanction.
    Third Assignment of Error
    The trial court committed prejudicial error when it relied on
    victim impact testimony and other information in sentencing.
    First Assignment of Error
    {¶6} Bickley argues that the trial court erred by imposing consecutive
    sentences without making the statutory findings required by R.C. 2929.14(C)(4).
    Legal Standard
    {¶7} R.C. 2929.14(C)(4) requires trial courts to make certain statutory
    findings in specified situations and reads as follows:
    (4) If multiple prison terms are imposed on an offender for
    convictions of multiple offenses, the court may require the
    offender to serve the prison terms consecutively if the court finds
    that the consecutive service is necessary to protect the public from
    future crime or to punish the offender and that consecutive
    sentences are not disproportionate to the seriousness of the
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    Case Nos. 14-18-05 and 14-18-06
    offender’s conduct and to the danger the offender poses to the
    public, and if the court also finds any of the following:
    (a) The offender committed one or more of the multiple offenses
    while the offender was awaiting trial or sentencing, was under a
    sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
    of the Revised Code, or was under post-release control for a prior
    offense.
    (b) 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 multiple offenses so committed 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.
    (c) The offender’s history of criminal conduct demonstrates that
    consecutive sentences are necessary to protect the public from
    future crime by the offender.
    (Emphasis added.) R.C. 2929.14(C)(4). Under R.C. 2929.01(E), a
    “[c]ommunity control sanction” means a sanction that is not a
    prison term and that is described in section 2929.15, 2929.16,
    2929.17, or 2929.18 of the Revised Code or a sanction that is not a
    jail term and that is described in section 2929.26, 2929.27, or
    2929.28 of the Revised Code.
    (Emphasis added.) R.C. 2929.01(E).2
    Legal Analysis
    {¶8} In this case, the trial court imposed one term of community control and
    one prison term. The text of R.C. 2929.14(C)(4) clearly states that this provision
    applies to situations in which “multiple prison terms are imposed * * *.” (Emphasis
    2
    R.C. 1.05 puts a term in a community-based correctional facility (CBCF) within the definition of
    “imprisonment.” R.C. 1.05. However, incarceration in a CBCF is not at issue in this case.
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    Case Nos. 14-18-05 and 14-18-06
    added.) R.C. 2929.14(C)(4). Under R.C. 2929.01(E), a community control sanction
    “is not a prison term.” R.C. 2929.01(E). Thus, the trial court did not impose
    multiple prison terms. For this reason, we find that R.C. 2929.14(C)(4) does not
    apply to the facts of this case. State v. Malone, 2016-Ohio-5556, 
    61 N.E.3d 46
    , ¶
    14 (3d Dist.); State v. Bates, 6th Dist. Williams No. WM-12-002, 2013-Ohio-1270,
    ¶ 68; State v. Tucker, 2017-Ohio-7735, 
    97 N.E.3d 1056
    (10th Dist.).               Thus,
    Bickley’s first assignment of error is overruled.
    Second Assignment of Error
    {¶9} Bickley argues that community control sanctions cannot be ordered
    consecutively to a prison sentence.
    Legal Standard
    {¶10} Under the Ohio Revised Code, trial courts have broad discretion to
    fashion felony sentences. 
    Malone, supra
    , at ¶ 11. R.C. 2929.13(A) reads as follows:
    Except as provided in division (E), (F), or (G) of this section and
    unless a specific sanction is required to be imposed or is precluded
    from being imposed pursuant to law, a court that imposes a
    sentence upon an offender for a felony may impose any sanction
    or combination of sanctions on the offender that are provided in
    sections 2929.14 to 2929.18 of the Revised Code.
    R.C. 2929.13(A). In fashioning a sentence, the trial court is to exercise its discretion
    consistent with the overriding purposes of felony sentencing as set forth in R.C.
    2929.11(A), which reads as follows:
    A court that sentences an offender for a felony shall be guided by
    the overriding purposes of felony sentencing. The overriding
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    Case Nos. 14-18-05 and 14-18-06
    purposes of felony sentencing are to protect the public from
    future crime by the offender and others, to punish the offender,
    and to promote the effective rehabilitation of the offender using
    the minimum sanctions that the court determines accomplish
    those purposes without imposing an unnecessary burden on state
    or local government resources. To achieve those purposes, the
    sentencing court shall consider the need for incapacitating the
    offender, deterring the offender and others from future crime,
    rehabilitating the offender, and making restitution to the victim
    of the offense, the public, or both.
    R.C. 2929.11(A).
    Legal Analysis
    {¶11} This assignment of error raises an issue that is the subject of a certified
    conflict currently pending before the Supreme Court of Ohio. State v. Hitchcock,
    
    152 Ohio St. 3d 1045
    , 2018-Ohio-723, 
    92 N.E.3d 877
    . See 
    Malone, supra
    , at fn. 2.
    This Court has previously considered this issue. 
    Malone, supra
    , at ¶ 5. In Malone,
    the trial court sentenced the defendant to a prison term for one offense and a period
    of community control for another offense. 
    Id. The trial
    court tolled the community
    control sanction until Malone was released from prison. 
    Id. On appeal,
    Malone
    argued that the trial court impermissibly ordered him to serve these sentences
    consecutively. 
    Id. at ¶
    8. This Court held the following:
    there is nothing restricting the trial court’s authority to order an
    offender to serve a period of community control sanctions after
    the completion of a prison term for a separate offense in R.C.
    2929.15, the statute governing community control sanctions in
    felony sentencing.
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    Case Nos. 14-18-05 and 14-18-06
    
    Id. at ¶
    11. Thus, we affirmed the trial court’s decision “to order the period of
    community control sanctions to be served consecutive to the six-month prison
    term.” 
    Id. at ¶
    14. The Malone decision was consistent with several other appellate
    districts that had considered this issue. State v. Leedy, 4th Dist. Meigs No. 13CA7,
    2015-Ohio-1718, ¶ 8-9; State v. Kinder, 5th Dist. Delaware No. 03CAA12075,
    2004-Ohio-4340; State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-
    5677, ¶ 4.
    {¶12} However, Bickley relies on a case, State v. Anderson, 2016-Ohio-
    7044, 
    62 N.E.3d 229
    (8th Dist.), in which the Eighth District overturned its prior
    precedent and held the opposite of Malone. Anderson at ¶ 7 (reversing State v.
    Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8). Sitting en banc,
    the Eighth District held that trial courts only have the authority to impose sentences
    that are expressly authorized by statute. 
    Id. at ¶
    6. After determining the Ohio
    Revised Code was silent on this matter, the Eight District concluded that the
    legislature did not grant trial courts the authority to order that community control
    sanctions be served consecutively to a prison term. 
    Id. at ¶
    19. See also State v.
    Ervin, 2017-Ohio-1491, 
    89 N.E.3d 1
    , ¶ (12th Dist.) (following Anderson and
    holding that trial courts cannot order community control sanctions to be served
    consecutively to a prison term).
    {¶13} After Anderson was decided, the Fifth District held, in State v.
    Hitchcock, 5th Dist. Fairfield No. 16-CA-41, 2017-Ohio-8255, that trial courts had
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    Case Nos. 14-18-05 and 14-18-06
    the authority to order that community control sanctions imposed for one offense to
    be served consecutively to a prison term imposed for another offense.3 In reaching
    this conclusion, the Fifth District stated that the Anderson decision
    essentially removed the court’s discretion which is
    counterintuitive and against the purposes and principles of felony
    sentencing under R.C. 2929.11. The majority decision eliminated
    a trial court's discretion to impose community control sanctions
    on a separate felony count but would leave intact the court's
    authority to impose a prison term on that count to be served
    consecutively to the other felony counts, which directly
    contravenes the General Assembly's directive that trial courts use
    “the minimum sanctions necessary” to accomplish the principles
    and purposes of felony sentencing.
    (Citations omitted.) Hitchcock at ¶ 15, citing 
    Anderson, supra
    , at ¶ 48.
    {¶14} In Anderson, the majority relied upon two Supreme Court of Ohio
    cases: State v. Barnhouse, 
    102 Ohio St. 3d 221
    , 2004-Ohio-2492, 
    808 N.E.2d 874
    ,
    and State v. Anderson, 
    143 Ohio St. 3d 173
    , 2015-Ohio-2089, 
    35 N.E.3d 512
    .4 The
    Fifth District distinguished these two cases from the Hitchcock decision, adopting
    the reasoning of the dissent in the Eighth District’s Anderson opinion and stating:
    The dissent * * * disagreed with the majority concerning the
    application of R.C. 2929.13(A), concluding Barnhouse is limited
    to prohibiting trial courts from imposing consecutive jail
    sentences. The dissenting opinion concluded the Ohio Supreme
    Court’s decision in Anderson is not applicable to the instant issue,
    3
    The Fifth District clarified that “the language ‘consecutive’ or ‘concurrent’ is superfluous when ordering a
    community control sanction for one offense and a prison sentence for another offense, as the offender cannot
    begin to serve the community control sanction until his or her release from prison.” Hitchcock at ¶ 22.
    However, in Hitchcock, the trial court did expressly order the community control sanctions to be served
    “consecutively” to the prison term. In the case before this Court, the trial court tolled the community control
    sanction until the completion of Bickley’s prison term. Doc. A33.
    4
    This case went to the Ohio Supreme Court on appeal from the Ninth District and was not related to the
    Eight District 
    Anderson, supra
    , case that is in conflict with 
    Hitchcock, supra
    .
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    and the en banc majority applied the dicta in that opinion too
    broadly.
    (Citations omitted.) Hitchcock at ¶ 16, citing 
    Anderson, supra
    , at ¶ 45-46. The Fifth
    District concluded that
    “it is axiomatic that an offender cannot serve a sentence of
    community control sanctions while in prison. Thus, community
    control sanctions must begin when an offender is released from
    prison. Because of this, it is my view that a trial court need not
    even use the words ‘consecutive’ or ‘concurrent’ when sentencing
    an offender to prison on one felony offense and community
    control sanctions on a separate felony offense because community
    control sanctions cannot commence until the offender is released
    from prison.”
    Hitchcock at ¶ 15, quoting 
    Anderson, supra
    , (Boyle, J., dissenting) at ¶ 49.
    {¶15} After reviewing the applicable case law, we find the reasoning of
    Hitchcock to be persuasive. See also State v. Siemering, 1st Dist. Hamilton No. C-
    170611, 2018-Ohio-3541, ¶ 13 (holding that Hitchcock was rightly decided).
    Following Malone, we hold that the trial court had the authority to toll the
    community control sanction that was imposed for one offense until Bickley had
    served the term in prison that was imposed for the other offense. 
    Malone, supra
    , at
    ¶ 13; State v. Williams, 5th Dist. Fairfield No. 17-CA-43, 2018-Ohio-4518, ¶ 23.
    But see State v. Weber, 5th Dist. Fairfield No. 17-CA-36, 2018-Ohio-3174, ¶ 27,
    citing State v. Paige, 
    153 Ohio St. 3d 214
    , 2018-Ohio-813, 
    103 N.E.3d 800
    , ¶ 13
    (Weber noted that the Supreme Court of Ohio adopted the rationale rejected by
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    Hitchcock in rendering its decision in Paige.). For this reason, Bickley’s second
    assignment of error is overruled.
    Third Assignment of Error
    {¶16} Bickley asserts that the trial court erred in considering the two victim
    impact statements because, under R.C. 2947.051(A), Jason was not a victim of the
    crime with which she was charged.
    Legal Standard
    {¶17} The Ohio Revised Code directs trial courts to consider a number of
    factors in the process of sentencing. R.C. 2947.051(A) directs trial courts to order
    the preparation of a victim impact statement in specified situations and reads, in its
    relevant part, as follows:
    (A) In all criminal cases in which a person is convicted of or pleads
    guilty to a felony, if the offender, in committing the offense,
    caused, attempted to cause, threatened to cause, or created a risk
    of physical harm to the victim of the offense, the court, prior to
    sentencing the offender, shall order the preparation of a victim
    impact statement * * *. The court * * * shall consider the victim
    impact statement in determining the sentence to be imposed upon
    the offender.
    R.C. 2947.051(A). Further, R.C. 2929.12 sets forth a nonexclusive list of factors
    that trial courts must consider in the process of felony sentencing but also grants
    trial courts the discretion to “consider any other factors that are relevant to achieving
    those purposes and principles of sentencing.” R.C. 2929.12(A).
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    {¶18} Under R.C. 2929.12(A), trial courts are “permitted to contemplate any
    other circumstances or factors that are relevant to achieving the purposes and
    principles of sentencing and are provided significant discretion in determining the
    weight to be assigned to these and other statutory factors.” State v. Wobbler, 3d
    Dist. Putnam No. 12-01-13, 2002-Ohio-2080, ¶ 15. “In contrast to juries, judges
    are presumed to know the law and expected to consider only relevant, material, and
    competent evidence during their deliberations.” State v. Thomas, 
    97 Ohio St. 3d 309
    , 2002-Ohio-6624, 
    779 N.E.2d 1017
    , ¶ 57.
    {¶19} Further, “if defense counsel failed to object to an alleged impropriety
    below, all but plain error is waived on appeal.” State v. Davis, 3d Dist. Seneca No.
    13-16-30, 2017-Ohio-2916, ¶ 23. Under Crim.R. 52(A), “[p]lain errors or defects
    affecting substantial rights may be noticed although they were not brought to the
    attention of the court.” Crim.R. 52(B).
    “In order to find plain error under Crim.R. 52(B), there must be
    an error, the error must be an ‘obvious’ defect in the trial
    proceedings, and the error must have affected ‘substantial
    rights.’” “The standard for plain error is whether, but for the
    error, the outcome of the proceeding clearly would have been
    otherwise.” Notice of plain error is taken “only to ‘prevent a
    manifest miscarriage of justice.’”
    (Citations omitted.) State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456,
    ¶ 17. Under Crim.R. 52(B), “the defendant bears the burden of demonstrating that
    a plain error affected his substantial rights.” (Emphasis sic.) State v. Perry, 
    101 Ohio St. 3d 118
    , 2004-Ohio-297, 
    802 N.E.2d 643
    , ¶ 14.
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    Legal Analysis
    {¶20} At the sentencing hearing, the Defense did not raise an objection to a
    victim’s advocate reading these two statements. For this reason, we review the
    sentencing hearing for plain error. State v. Allard, 
    75 Ohio St. 3d 482
    , 491, 
    663 N.E.2d 1277
    (1996). On appeal, Bickley’s argument calls for us to assume that the
    trial court was not permitted to consider these victim impact statements because the
    trial court was not required to consider this information under R.C. 2947.051 or R.C.
    2903.13. This assumption is not sound.
    {¶21} While the Revised Code did not require the trial court to order the
    preparation of a victim impact statement, the Revised Code also did not forbid the
    trial court from considering this information. R.C. 2947.051; R.C. 2930.13; and
    R.C. 2929.12(A). Rather, R.C. 2929.12(A) expressly authorizes trial courts to
    consider any factors or circumstances that it deems to be relevant to effectuating the
    purposes and principles of sentencing. State v. Nutter, 3d Dist. Wyandot No. 16-
    01-06, 
    2001 WL 961748
    , *1 (Aug. 24, 2001). Since there was no statutory
    prohibition on this information, the trial court had the discretion to consider these
    victim impact statements and rely upon them inasmuch as they were relevant.
    {¶22} Even if consideration of these statements constituted error, Bickley
    has not carried the burden of establishing that her substantial rights were prejudiced.
    Most of the information in the victim impact statements was produced in other forms
    during the sentencing hearing or in the record. Thus, the trial court had already
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    heard much of this information. We cannot find that the trial court abused its
    discretion in the sentencing process merely because the trial court, at some point,
    may have heard information that was later alleged to be irrelevant. Since Bickley
    has not produced evidence to the contrary, we proceed with the presumption that
    the trial court only relied upon these victim impact statements inasmuch as the
    information contained therein was relevant. For these reasons, Bickley’s third
    assignment of error is overruled.
    Conclusion
    {¶23} Having found no error prejudicial to the appellant in the particulars
    assigned and argued, the judgments of Union County Court of Common Pleas are
    affirmed.
    Judgments Affirmed
    SHAW and PRESTON, J.J., concur.
    /hls
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Document Info

Docket Number: 14-18-05 14-15-06

Citation Numbers: 2019 Ohio 16

Judges: Willamowski

Filed Date: 1/7/2019

Precedential Status: Precedential

Modified Date: 1/7/2019