State v. Montgomery , 2022 Ohio 4273 ( 2022 )

[Cite as State v. Montgomery, 2022-Ohio-4273.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 22CA4
:
JUVIS R. MONTGOMERY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court
of Common Pleas, Case No.
21CR000137
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 30, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JASON R. FARLEY MICHAEL GROH
627 Wheeling Ave. 1938 E. Wheeling Ave.
Cambridge, OH 43725 Cambridge, OH 43725
Guernsey County, Case No. 22CA4 2
Delaney, J.
{¶1} Appellant Juvis R. Montgomery appeals from the January 7, 2022
Judgment Entry of Sentence of the Guernsey County Court of Common Pleas. Appellee
is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the record of appellant’s sentencing
hearing on December 29, 2021, and from the Report of Investigation of the Ohio State
Highway Patrol dated March 14, 2021, included in the record before us.
{¶3} This case arose on or around March 24, 2021, when Trooper Seth Jones
observed a black Infiniti SUV traveling southbound on Route 77 near milepost 74, with a
female driving and a male passenger reclining in the front passenger seat. At milepost
60, near the Guernsey County line, the trooper observed two turn-signal violations and
turned on his overhead lights to initiate a traffic stop.
{¶4} The vehicle was registered to appellant and Jones noted there was “a
caution associated with the plate because the owner was in the Inmate Progression
System.” Appellant’s license status was listed as suspended and Jones identified him as
the passenger in the vehicle using his BMV photo.
{¶5} As Jones approached the vehicle, he smelled an odor of raw marijuana and
watched appellant light a cigar. Both occupants denied there was marijuana in the
vehicle, but appellant said they used marijuana in the car earlier that day. Appellant
claimed to be a confidential informant in the midst of a drug transaction, and called a
detective from Charleston, W.V., handing the phone to Jones, but the detective had no
idea what he was talking about.
Guernsey County, Case No. 22CA4 3
{¶6} Jones and another trooper initiated an investigation and appellant and his
passenger were allowed to sit in their own vehicle after being advised they were not free
to leave. Jones then requested that appellant return to the patrol car and began to place
handcuffs on him. Appellant took off running and Jones took him to the ground. Jones
and Trooper Tysinger struggled with appellant on the ground and told him he was under
arrest. Appellant continued to struggle and Tysinger deployed his Taser but it had no
effect. Appellant was able to get back into the Infiniti and put it in gear, with Jones hanging
onto the vehicle. Jones was dragged a short distance, requiring him to let go.
{¶7} Appellant turned northbound onto Interstate Route 77 and a vehicle pursuit
ensued. Appellant drove the Infiniti at speeds up to 120 miles per hour, changing lanes
and passing other vehicles. Appellant avoided spike strips at least twice, drove through
the highway median, and changed directions, cutting off a semi tractor-trailer. At one
point, he pulled into a gas station and Jones attempted to box him in, but appellant drove
at Jones, requiring him to jump out of the way. Jones observed appellant and the
passenger throwing items out of the vehicle. The female passenger opened the door and
begged to exit the vehicle but appellant refused to stop.
{¶8} Jones terminated his pursuit before the Cambridge city limits due to traffic
and the proximity of bystanders. Moments later, Jones’ sergeant advised the vehicle
crashed into a house on Highland Avenue. A woman was lying on a couch inside the
residence when appellant drove through the wall, throwing her to the ground. This victim
was transported to the hospital by a squad.
Guernsey County, Case No. 22CA4 4
{¶9} Despite appellant’s continuing attempts to flee, Jones and other officers
held him at gunpoint. Appellant and the female passenger surrendered and appellant
was placed under arrest.
{¶10} At the time of these events, appellant was on supervised post release
control, but had been declared a parole violator at large.
{¶11} Appellant was charged by indictment with one count of felonious assault
pursuant to R.C. 2903.11(A)(2) and R.C. 2903.11(D)(1)(a), a felony of the first degree
[Count I]; one count of failure to comply with an order or signal of a police officer pursuant
to R.C. 2921.331(B) and R.C. 2921.331(C)(5)(a)(iii), a felony of the third degree [Count
II]; and one count of vehicular assault pursuant to R.C. 2903.08(A)(2)(b) and R.C.
2903.08(C)(2), a felony of the third degree [Count III]. Appellant entered pleas of not
guilty.
{¶12} On October 12, 2021, appellant appeared before the trial court and
withdrew his previously-entered pleas of not guilty and entered ones of guilty to Count I
as amended to attempted felonious assault, a felony of the third degree, and Counts II
and III as charged.1 The parties indicated they would argue regarding sentencing at the
sentencing hearing and the trial court ordered a presentence investigation.
{¶13} The matter proceeded to sentencing hearing on December 29, 2021.
Appellant argued, e.g., that Counts I and II should merge for sentencing purposes
1
It is not evident from the record why the amended count is a felony of the third
degree and not a felony of the second degree, pursuant to R.C. 2903.11(D)(1)(a) and
R.C. 2923.02(E)(1). The trial court’s Entry of October 13, 2021 states only that appellee
moved to amend the count to “attempted felonious assault” * * * “a felony of the third
degree” without objection by appellant. The record does not contain any objection by
Trooper Jones.
Guernsey County, Case No. 22CA4 5
because both offenses occurred during the course of appellant’s commission of failure to
comply. Appellee responded that appellant committed the felonious assault when he
pulled away with Trooper Jones’ arm trapped, starting to drag him, before he committed
the failure to comply.
{¶14} The trial court journalized its Judgment Entry of Sentence on January 7,
2022, noting, e.g., that appellant committed the instant offenses while on post release
control, has a lengthy criminal history including 13 prior felony convictions, failed to
respond to sanctions imposed in the past, showed no genuine remorse, and was driving
on a suspended license at the time of the offenses. Finally, the victims sustained serious
physical or psychological harm.
{¶15} The trial court found consecutive sentences were necessary to protect the
public from future crime and to punish appellant.
{¶16} The trial court therefore imposed the following prison terms: Count I, 36
months, none of which is mandatory; Count II, 36 months, none of which is mandatory;
and Count III, 36 months, all of which is mandatory. The trial court sentenced appellant
an additional one-year term because the instant offenses were committed while appellant
was on post release control. The trial court found the sentences and sanction are to be
served consecutively, and further found that none of the counts merge with each other.
{¶17} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶18} “THE TRIAL COURT ERRED BY FAILING TO MERGE THE ATTEMPTED
FELONIOUS ASSAULT COUNT AND THE FAILURE TO COMPLY COUNT.”
Guernsey County, Case No. 22CA4 6
ANALYSIS
{¶19} In his sole assignment of error, appellant argues the trial court should have
merged Counts I and II (attempted felonious assault and failure to comply) for purposes
of sentencing. We disagree.
{¶20} R.C. 2941.25, “Multiple counts,” states:
(A) 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.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶21} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
1. In determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts must
evaluate three separate factors -the conduct, the animus, and the
import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct
Guernsey County, Case No. 22CA4 7
constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct
supports multiple offenses may be convicted of all the offenses if any
one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses
were committed with separate animus.
{¶22} The Ruff court explained at paragraph 26:
At its heart, the allied-offense analysis is dependent upon the
facts of a case because R.C. 2941.25 focuses on the defendant's
conduct. The evidence at trial or during a plea or sentencing hearing
will reveal whether the offenses have similar import. When a
defendant's conduct victimizes more than one person, the harm for
each person is separate and distinct, and therefore, the defendant
can be convicted of multiple counts. Also, a defendant's conduct that
constitutes two or more offenses against a single victim can support
multiple convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense. We
therefore hold that two or more offenses of dissimilar import exist
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.
Guernsey County, Case No. 22CA4 8
{¶23} In the instant case, appellant was convicted and sentenced upon Count I,
attempted felonious assault. R.C. 2923.02(A), attempt, states: “No person, purposely or
knowingly, and when purpose or knowledge is sufficient culpability for the commission of
an offense, shall engage in conduct that, if successful, would constitute or result in the
offense.” R.C. 2903.11(A)(2), felonious assault, states in pertinent part, “No person shall
knowingly * * [c]ause or attempt to cause physical harm to another * * * by means of a
deadly weapon or dangerous ordnance.”
{¶24} Appellee noted at sentencing that Count I occurred when appellant
attempted to drive off with Trooper Jones’ arm still in the vehicle, beginning to drag the
trooper before he let go. T. Sentencing, 75-76. Appellee’s brief states that the felonious
assault occurred when appellant attempted to run Jones over at the gas station. Brief, 2.
Appellee’s bill of particulars filed July 1, 2021 describes the felonious assault count
broadly as follows:
* * * *.
That on or about 3/24/2021, and at the location of (sic), the
Defendant, Juvis Reevis Montgomery, did knowingly cause or
attempt to cause physical harm to Trooper Seth Jones by means of
a deadly weapon or dangerous ordnance, to wit: vehicle contrary to
the form of the statute in such case made and provided, and against
the peace and dignity of the State of Ohio.
FURTHERMORE, the victim is a peace officer.
* * * *.
Guernsey County, Case No. 22CA4 9
{¶25} Regardless of which conduct constituted the attempted felonious assault,
Jones is the victim thereof and testified to the psychological harm he sustained during
this incident, for which he has seen a therapist. Twice appellant attempted to seriously
harm Jones to deter his investigation and pursuit.
{¶26} Count II was committed with different conduct and a different animus.
Appellant was also convicted and sentenced upon failure to comply with an order or signal
of a police officer pursuant to R.C. 2921.331(B) and R.C. 2921.331(C)(5)(a)(ii), which
state in pertinent part:
No person shall operate a motor vehicle so as willfully to elude
or flee a police officer after receiving a visible or audible signal from
a police officer to bring the person's motor vehicle to a stop.
* * * *.
A violation of division (B) of this section is a felony of the third
degree if the jury or judge as trier of fact finds any of the following by
proof beyond a reasonable doubt:
* * * *.
The operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or property.
{¶27} The substantial risk of serious physical harm identified by appellee is the
risk appellant’s conduct posed to other motorists on Interstate 77 as he reached speeds
up to 120 miles per hour, swerving in and out of traffic and cutting off semi tractor-trailers.
Count II represents a different course of conduct with a wider range of potential victims.
Guernsey County, Case No. 22CA4 10
{¶28} We find the trial court did not err in determining Counts I and II do not merge.
Appellant’s attempted felonious assault of Trooper Jones, whether in pulling away with
the trooper’s arm in the vehicle or driving at him at the gas station, was intended to deter
Jones’ specific investigation and pursuit. Appellant’s actions in fleeing on Interstate 77
involved multiple law enforcement officers, vehicles, and motorists using the highway.
{¶29} In the instant case, the amended Count I involved a separate, identifiable
victim, Trooper Jones, who sustained psychological trauma when pulling free of
appellant’s vehicle as he drove away and who jumped out of the way of being struck.
State v. Wolfe, 5th Dist. Licking No. 2021 CA 0009, 2021-Ohio-3223, ¶ 20, motion for
delayed appeal granted, 165 Ohio St.3d 1540, 2022-Ohio-397, 180 N.E.3d 1168. Count
II, failure to comply, does not merge because appellant’s “actions presented a risk of
serious physical harm to numerous motorists, to both their person and their property.”
Wolfe, supra, 2021-Ohio-3223, ¶ 22.
{¶30} The trial court properly determined that Counts I and II do not merge and
appellant could be sentenced upon both. Appellant’s assignment of error is overruled.
Guernsey County, Case No. 22CA4 11
CONCLUSION
{¶31} Appellant’s sole assignment of error is overruled and the judgment of the
Guernsey County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, Earle, P.J. and
Hoffman, J., concur.