State v. Hitchcock , 2017 Ohio 8255 ( 2017 )

[Cite as State v. Hitchcock, 2017-Ohio-8255.]
HITCHCOURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 16-CA-41
JEFFREY HITCHCOCK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case No. 2016 CR 00275
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 19, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT DARREN L. MEADE
Fairfield County Prosecuting Attorney Parks and Meade, LLC
3010 Hayden Road
By: JOSHUA S. HORACEK Columbus, Ohio 43235
Assistant Prosecuting Attorney
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 16-CA-41 2
Hoffman, P.J.
{¶1} Defendant-appellant Jeffrey Hitchcock appeals the judgment entered by the
Fairfield County Common Pleas Court convicting him of three counts of unlawful sexual
conduct with a minor (R.C. 2907.04(A),(B)(3)) following his plea of guilty and sentencing
him to two sixty-month terms of incarceration and one term of five years community
control, to be served consecutively. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant engaged in a sexual relationship with a girl in his neighborhood
who was twenty-six years younger than he. The victim would often babysit for Appellant’s
minor child. The sexual relationship began when the victim was thirteen years old and
continued until she was fifteen years old.
{¶3} When the victim was fifteen years of age, she delivered a still-born baby at
the Fairfield Medical Center. Although she had been unaware of her pregnancy until this
time, she identified Appellant as the father. Authorities performed DNA testing of the
baby, which matched Appellant’s DNA. When police searched for Appellant, they found
he had vacated his home across the street from the victim, taking his belongings with him.
Police found Appellant in Kentucky.
{¶4} Appellant admitted to engaging in sexual conduct with the victim, and
submitted to an additional DNA test which reaffirmed he was the father of the still-born
child.
{¶5} Appellant was indicted by the Fairfield County Grand Jury with four counts
of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A) and (B)(3), all
Fairfield County, Case No. 16-CA-41 3
felonies of the third degree, and endangering children in violation of R.C. 2919.22(A), a
misdemeanor of the first degree.
{¶6} On September 20, 2016, Appellant pled guilty to three counts of unlawful
sexual conduct with a minor, and the remaining charges were dismissed. He was
sentenced to sixty months incarceration on Count One of the indictment, sixty months
incarceration on Count Two of the indictment, and five years community control on Count
Three of the indictment, with all sentences to be served consecutively. The community
control sentence included nonresidential sanctions as well as an evaluation for placement
in a Community Based Correction Facility (CBCF), with admission to be decided by the
court at a later date.
{¶7} Appellant prosecutes this appeal from the judgment of conviction and
sentence of the Fairfield County Common Pleas Court, assigning the following as error:
I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
A TERM OF COMMUNITY CONTROL CONSECUTIVE TO AN IMPOSED
TERM OF PRISON.
II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
THE MAXIMUM SENTENCES AND TO CONSECUTIVE TERMS OF
INCARCERATION WHEN THE SENTENCES ARE NOT SUPPORTED IN
THE RECORD.
I.
Fairfield County, Case No. 16-CA-41 4
{¶8} In his first assignment of error, Appellant argues the court erred in
sentencing him to a term of community control consecutive to his prison terms. We
disagree.
{¶9} Appellant argues his sentence is not authorized by R.C. 2929.41:
(A) Except as provided in division (B) of this section, division (C) of
section 2929.14, or division (D) or (E) of section 2971.03 of the Revised
Code, a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States. Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served concurrently
with a prison term or sentence of imprisonment for felony served in a state
or federal correctional institution.
(B)(1) A jail term or sentence of imprisonment for a misdemeanor
shall be served consecutively to any other prison term, jail term, or sentence
of imprisonment when the trial court specifies that it is to be served
consecutively or when it is imposed for a misdemeanor violation of section
2907.322, 2921.34, or 2923.131 of the Revised Code.
When consecutive sentences are imposed for misdemeanor under
this division, the term to be served is the aggregate of the consecutive terms
imposed, except that the aggregate term to be served shall not exceed
eighteen months.
Fairfield County, Case No. 16-CA-41 5
(2) If a court of this state imposes a prison term upon the offender for
the commission of a felony and a court of another state or the United States
also has imposed a prison term upon the offender for the commission of a
felony, the court of this state may order that the offender serve the prison
term it imposes consecutively to any prison term imposed upon the offender
by the court of another state or the United States.
(3) A jail term or sentence of imprisonment imposed for a
misdemeanor violation of section 4510.11, 4510.14, 4510.16, 4510.21, or
4511.19 of the Revised Code shall be served consecutively to a prison term
that is imposed for a felony violation of section 2903.06, 2903.07, 2903.08,
or 4511.19 of the Revised Code or a felony violation of section 2903.04 of
the Revised Code involving the operation of a motor vehicle by the offender
and that is served in a state correctional institution when the trial court
specifies that it is to be served consecutively.
When consecutive jail terms or sentences of imprisonment and
prison terms are imposed for one or more misdemeanors and one or more
felonies under this division, the term to be served is the aggregate of the
consecutive terms imposed, and the offender shall serve all terms imposed
for a felony before serving any term imposed for a misdemeanor.
{¶10} In State v. Kinder, 5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340,
the defendant was sentenced to four years in prison for reckless homicide and a term of
community control not to exceed five years for complicity to possession to drugs, with the
Fairfield County, Case No. 16-CA-41 6
term of community control commencing upon the completion of the prison sentence. He
argued the court erred in ordering consecutive sentences, and specifically erred in failing
to make the requisite findings according to R.C. 2929.14(E). In addressing his claim of
error, we cited to R.C. 2929.13(A), which provides unless a specific sanction is required
to be imposed or is precluded from being imposed pursuant to law, a court may impose
any sanction or combination of sanctions provided in R.C. 2929.14 to 2929.18. Therefore,
we concluded the court “has discretion to find community control sanctions appropriate
for one offense, while finding a prison term appropriate for a separate offense, and order
those sentences be served consecutively.” Kinder at ¶31. Turning to Kinder’s specific
claim of error, we concluded community control sanctions did not render him imprisoned
within the meaning of R.C. 1.05, and the trial court was therefore not required to set forth
findings for consecutive sentences. Id. at ¶34.
{¶11} Subsequently in State v. O’Connor, 5th Dist. Delaware No. 04CAA04-028,
2004-Ohio-6752, the appellant claimed error in sentencing him to community control in
one case and imposing maximum sentences in another case, and ordering them to be
served consecutively. Relying on R.C. 2929.13(A) and our decision in Kinder, we rejected
O’Connor’s argument and affirmed the sentences. Id. at ¶¶27-30. Likewise, in State v.
Boylen, 5th Dist. Tuscarawas 2012AP060039, 2012-Ohio-5503, we concluded although
the trial court did not specifically use the word “consecutive” in serving a community
control sanction to an unrelated term of imprisonment already being served, in placing
Boylen on community control “upon his release from incarceration on another matter,” the
sentence was clearly consecutive, and did not exceed the five year limitation of R.C.
2929.15. Id. at ¶¶10-11, citing Kinder, supra, and O’Connor, supra.
Fairfield County, Case No. 16-CA-41 7
{¶12} After this Court’s decisions in the above-cited cases, the Ohio Supreme
Court held in State v. Anderson, 143 Ohio St. 3d 173, 35 N.E.3d 512, 2015-Ohio-2089, a
trial court may not impose a community control sanction in the form of a no-contact order
and a prison sentence on the same felony count. In so holding, the court held because
sentencing is a creature of the legislature, courts are limited to imposing sentences that
are authorized by statute, rather only being limited to sentences that are not prohibited
by statute. Id. at ¶13, citing Wilson v. State, 5 N.E.3d 759 (Indiana 2014).
{¶13} Following the Supreme Court’s decision in Anderson, the Eighth District
sitting en banc addressed the issue raised in the instant case in State v. Anderson, 62
N.E.3d 229, 2016-Ohio-7044 (8th Dist. Cuyahoga).1 Relying on the Ohio Supreme
Court’s language concerning a court’s limitation to sentences authorized by statute as
opposed to having discretion to impose a sentence not prohibited by statute, the court
concluded the Ohio Revised Code provides no authority to impose a prison sentence
consecutively to a community control sanction, whether such community control sanction
is residential or non-residential. Id. at ¶¶16-19. In the absence of express statutory
authority for consecutive sentences of prison and community control, the court vacated
the community control sanction and remanded for resentencing.
{¶14} The Eighth District specifically rejected the reasoning of this Court in Kinder,
as well as its own prior precedent and decisions of the Fourth, Sixth, and Twelfth Districts,
finding the rationale in those cases relied on the proposition the legislature had not
prohibited the imposition of consecutive community control sanctions, and such rationale
1 Although both appeals are prosecuted by an appellant with the surname “Anderson,”
the Eighth District case is not the same appellant as the Ohio Supreme Court decision.
Fairfield County, Case No. 16-CA-41 8
was rejected by the Supreme Court in Anderson, supra. Id. at ¶21. The majority further
rejected our rationale in Kinder concerning the discretion given courts pursuant to R.C.
2929.13(A), finding the Ohio Supreme Court rejected similar language in R.C. 2929.16
as rationale for the imposition of consecutive jail sentences in State v. Barnhouse, 102
Ohio St.3d 221, 808 N.E.2d 874, 2004 -Ohio- 2492.
{¶15} In a dissent joined by four other members of the Eighth District en banc
panel, Judge Boyle concluded a trial court has discretion and authority to impose a prison
term on one felony offense and community control on a separate offense, and order the
community control sanctions commence upon the offender’s release from prison. The
dissent noted the trial court was attempting to punish Anderson for his conduct and protect
the public, while at the same time rehabilitate a 22-year-old offender so he could become
a more productive and law-abiding citizen after he served his sentence. However, the
majority’s decision essentially removed the court’s discretion which is counterintuitive and
against the purposes and principles of felony sentencing under R.C. 2929.11. Id. at ¶38.
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. Id.
at ¶48.
{¶16} The dissent further 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. Id. at ¶45. The dissenting opinion concluded the
Fairfield County, Case No. 16-CA-41 9
Ohio Supreme Court’s decision in Anderson is not applicable to the instant issue, and the
en banc majority applied the dicta in that opinion too broadly. Id. at ¶46.
{¶17} Finally, the dissent noted the language ordering the community control
sanction to be served consecutively to the prison term is superfluous:
Moreover, 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.
Id. at ¶49.
{¶18} The Twelfth District revisited its prior precedent subsequent to the Eighth
District’s decision in Anderson and agreed with the majority decision of the Eighth District.
State v. Ervin, 12th Dist. Butler No. CA2016-04-079, 2017-Ohio-1491. However, we are
persuaded by the rational of the dissenting opinion in Anderson.
{¶19} R.C. 2929.13(A) provides in pertinent part:
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
Fairfield County, Case No. 16-CA-41 10
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.2
{¶20} We agree with the dissenting opinion in Anderson concerning the majority’s
overbroad application of Barnhouse in rejecting R.C. 2929.13(A) as support for the trial
court’s sentence in the instant case. Barnhouse specifically held, “Rather, our decision
only addresses the narrow question of whether the trial court may impose consecutive jail
sentences under R.C. 2929.16(A)(2).” Barnhouse, supra, ¶18. Further, R.C. 2929.11(A)
states:
A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of felony
sentencing are to protect the public from future crime by the offender and
others and to punish 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.
2 This language is maintained in the new version of the statute, eff. 10/17/17.
Fairfield County, Case No. 16-CA-41 11
{¶21} Under the Eighth District’s decision, the trial court in the instant case could
have sentenced Appellant to three sixty-month terms of imprisonment, to be served
consecutively, but could not sentence Appellant to two sixty-month terms of imprisonment
to be served consecutively, and a term of community control, to commence upon his
release from prison. Such a result flies in the face of the directive in R.C. 2929.11(A) to
use the minimum sanctions the court determines necessary to accomplish the purposes
of felony sentencing, without imposing an unnecessary burden on state or local
government resources.
{¶22} We further agree 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. Therefore, the sentence of community control in the
instant case does not implicate the consecutive sentencing directives found in R.C.
2929.14(C)(4), which apply when “multiple prison terms are imposed on an offender.”
See also Kinder, supra, ¶34.
{¶23} The first assignment of error is overruled.
II.
{¶24} In his second assignment of error, Appellant argues the record does not
support the court’s order of maximum and consecutive sentences.
{¶25} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22;
Fairfield County, Case No. 16-CA-41 12
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, 2015 WL 5722820,
¶ 31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a
sentence and remand for resentencing where we clearly and convincingly find either the
record does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. An
appellate court may vacate or modify any sentence that is not clearly and convincingly
contrary to law only if the appellate court finds by clear and convincing evidence the
record does not support the sentence. Marcum, supra, at ¶23.
{¶26} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. “Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477,
120 N.E.2d 118.
{¶27} R.C. 2929.11(A) governs the purposes and principles of felony sentencing
and provides a sentence imposed for a felony shall be reasonably calculated to achieve
the two overriding purposes of felony sentencing, which are (1) to protect the public from
future crime by the offender and others, and (2) to punish the offender using the minimum
sanctions that the court determines will accomplish those purposes. Further, the sentence
imposed shall be “commensurate with and not demeaning to the seriousness of the
offender's conduct and its impact on the victim, and consistent with sentences imposed
for similar crimes by similar offenders.” R.C. 2929.11(B).
Fairfield County, Case No. 16-CA-41 13
{¶28} R.C. 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a
non-exhaustive list of factors a trial court must consider when determining the
seriousness of the offense and the likelihood that the offender will commit future offenses.
{¶29} While Appellant concedes the court stated it considered the principles and
purposes of felony sentencing and other relevant factors under R.C. 2929.11 and R.C.
2929.12, he argues the record does not support the court’s sentence. He argues he
exhibited genuine remorse and concern for the victim, and had not been convicted of a
felony in over a decade.
{¶30} In sentencing Appellant, the trial court noted from the bench the situation
was aggravated by the victim’s pregnancy. Tr. 41. The court recognized Appellant was
not at fault for the death of the child at birth, but noted the consequences to the victim
would be longstanding and more significant than in the normal case of this type. Tr. 42.
The court further noted this was not an isolated act in which Appellant lost control and
impulsively engaged in sexual conduct with the victim, as the sexual conduct occurred on
multiple occasions over a significant period of time. Tr. 42. The court believed had
Appellant stopped engaging in sex with the victim on his own, or as a result of seeking
counseling, his behavior would have shown a significant amount of remorse, beyond what
the record reflected. Tr. 42-43.
{¶31} The court further placed great weight on Appellant’s prior record of multiple
felony convictions and his prior time served in a state penal institution. Tr. 43-44. The
Fairfield County, Case No. 16-CA-41 14
court noted Appellant had previously been on community control at both the misdemeanor
and felony level, and his community control was revoked. Tr. 44.
{¶32} Based on the specific factors set forth by the trial court, we find the sentence
is supported by the record. As noted by the court, Appellant had a history of prior
convictions, both felonies and misdemeanors. The trial court was in a better position than
this Court to assess the genuineness of Appellant’s remorse, and appears to have
concluded Appellant showed remorse only after the relationship was discovered by the
authorities. This was not a single act, but rather a sexual relationship Appellant undertook
with a neighborhood teenager over a period of two years. Further, the victim would
undergo significant trauma from the relationship ending in a pregnancy and subsequent
stillbirth of the baby.
{¶33} Appellant also argues the court erred in sentencing him consecutively.
Appellant concedes the trial court made the requisite findings to support consecutive
sentences, but again argues the record does not support such findings.
{¶34} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences 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
Fairfield County, Case No. 16-CA-41 15
of the 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.
{¶35} The trial court found consecutive sentences are necessary to protect the
public from future crime on his part and to punish Appellant, and were not disproportionate
to the seriousness of his conduct and the danger he posed to the public. The court further
found Appellant committed the offenses as part of several courses of conduct, and the
harm caused was so significant that no single prison term adequately reflected the
seriousness of his conduct. The court found Appellant’s history demonstrated
consecutive sentences are necessary to protect the public form future crime. Tr. 48-49;
Judgment Entry, September 26, 2016, p.5-6.
Fairfield County, Case No. 16-CA-41 16
{¶36} The court’s findings are supported by the record. As discussed above,
Appellant had a history of both felony and criminal convictions. He previously had
community control revoked. He did not stop the relationship on his own or seek
counseling, but rather continued until the victim’s delivery of the baby brought his conduct
to light. The harm caused to the victim by the longstanding relationship and the stillbirth
of the baby was significant. We find the trial court did not err in imposing consecutive
sentences.
{¶37} The second assignment of error is overruled.
{¶38} The judgment of the Fairfield County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur