State v. Wolf , 2021 Ohio 3223 ( 2021 )

[Cite as State v. Wolf, 2021-Ohio-3223.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2021 CA 0009
STEPHEN H. WOLFE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 19 CR 730
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 16, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES JAMES A. ANZELMO
PROSECUTING ATTORNEY 446 Howland Drive
PAULA M. SAWYERS Gahanna, Ohio 43230
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2021 CA 0009 2
Wise, John, P. J.
{¶1} Defendant-Appellant Stephen H. Wolfe appeals his convictions and
sentences entered in the Licking County Court of Common Pleas following a negotiated
plea.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 16, 2019, Trooper Matthew Stoffer of the Ohio State
Highway Patrol attempted to make a traffic stop of a 2013 Peterbilt Semi-truck on State
Route 30 in Wyandot County, Ohio, for failing to have license plates or a PUCO number
displayed on the commercial vehicle. (T. at 9-10). The vehicle, later determined to be
operated by Appellant Stephen Wolfe, did not stop. (T. at 10). The vehicle reached
speeds of 100 mph on Route 30, entering into Crawford County, back into Wyandot
County, before proceeding South on State Route 23 into Marion County and Delaware
County. Id. The vehicle avoided stop strips deployed and ignored multiple cruisers
chasing with lights and sirens activated attempting to stop the vehicle. Id. Appellant
steered his vehicle toward a Trooper placing stop strips on the roadway forcing the
Trooper to move out of the way and injuring himself in the process. Id.{¶3} The semi-truck collided with a 1989 Jeep Comanche operated by Michael
Slagle, Jr. on Ohio 16 near Cedar Street in Newark, Licking County, Ohio. Id. As a result
of the collision, Slagle suffered serious physical harm requiring his transfer by life flight to
Grant Hospital. (T. at 10-11). The semi-truck reached speeds of 105 mph in Licking
County. (T. at 11). The vehicle continued through Muskingum County and into
Coshocton County. Id. Appellant abandoned the vehicle and was arrested at 1697
Evergreen Park Drive. Id. The chase occurred for more than fifty miles in total. Id.Licking County, Case No. 2021 CA 0009 3
{¶4} Appellant pled guilty to an amended count 1 - assault on a peace officer, a
fourth degree felony, in violation of R.C. §2903.13(A)(C)(5); felonious assault, a second
degree felony, in violation of R.C. §2903.11; failure to comply, a third degree felony, in
violation of R.C. §2921.331; receiving stolen property, a fourth degree felony, in violation
of R.C. §2913.51; and failure to stop after an accident, a fourth degree felony, in violation
of R.C. §4549.02. (T. at 9).
{¶5} At the sentencing hearing on January 24, 2020, Appellant argued that Count
2, Felonious Assault; Count 3, Failure to Comply with Order or Signal of Police Officer,
and Count 5, Stopping After Accident on Public Roads or Highways, should merge with
each other, and that the amended Count 1, Assault on a Peace Officer, should merge
with Count 3, Failure to Comply with Order or Signal of Police Officer. (T. at 18).
{¶6} Appellee State of Ohio opposed the merger of these offenses, arguing that
the Failure to Comply was pled under R.C. §2921.331(C)(5)(a)(ii), for causing a threat of
serious physical harm to persons or property, not under subsection (C)(5)(a)(i), which
would be for causing direct injury to someone. (T. at 22). Additionally, Appellee argued
that a person can commit each of these offenses without committing the others, that
Appellant herein posed a risk of serious physical harm to numerous individuals over his
fifty (50) plus mile incident, that the failure to stop after an accident occurred only in
Licking County and would not merge with the others, and that the two (2) felonious assault
involved separate victims. (T. at 22-23). The trial court declined to merge the offenses,
and Appellant objected. (T. at 23-24, 32).
{¶7} During the sentencing hearing, Appellant expressed remorse for his
conduct. (T. at 24). His trial counsel noted that Appellant was suffering from mental health
Licking County, Case No. 2021 CA 0009 4
and drug addiction issues because of injuries he sustained serving in Iraq while in the
armed forces. (T. at 20-21). Trial counsel noted that Appellant's life "changes
dramatically" after he came home from Iraq. (T. at 19). Trial counsel further mentioned
that Appellant was not acting with "malice aforethought," but was merely trying to get to
his mother's home. (T. at 19, 21). Thus, Appellant contended that his prison sentences
should be run concurrent. (T. at 32).
{¶8} The court ordered Appellant to serve consecutive prison sentences. The
court noted that Appellant completed a seven-month prison term, and that he has a
pending charge from an incident in Kalamazoo, Michigan. (T. at 29-20).
{¶9} Specifically, the court ordered Appellant to serve: one (1) year in prison for
the assault on a peace officer offense; two (2) years in prison for the failure to comply
offense; nine (9) months in prison for the receiving stolen property offense; and nine (9)
months in prison for the failure to stop after an accident offense. For the felonious assault
offense, the court ordered Appellant to serve five (5) to seven and one-half (7 ½) years in
prison, for an aggregate sentence of nine and a half (9 ½) to twelve (12) years in prison.
(T. at 30).
{¶10} Appellant appealed his conviction and sentence to this Court. See State v.
Wolfe, 5th Dist. Stark No. 2020 CA 00021, 2020-Ohio-5501. This Court reversed the case
for resentencing pursuant to the Reagan Tokes Act. This Court did not address the issues
of consecutive sentencing or the merger of offenses at that time. Id.{¶11} On January 11, 2021, the trial court held a hearing for resentencing. At this
hearing, Appellant again raised the issue of merger of offenses and argued that his prison
terms should run concurrently. (Resent. T. at 5-6, 9). Appellee again opposed any merger
Licking County, Case No. 2021 CA 0009 5
and asked that the sentence originally imposed on Appellant be re-imposed. (Resent. T.
at 9-11). The trial court again imposed a term of nine and a half (9 ½) years to twelve (12)
years in prison. Id. The trial court ordered the sentences on the counts to be served
consecutively.
{¶12} Appellant now appeals, raising the following assignments of error:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ERRED BY FAILING TO MERGE WOLFE'S
OFFENSES FOR ALL BUT THE RECEIVING STOLEN PROPERTY COUNT.
{¶14} “II. THE TRIAL COURT UNLAWFULLY ORDERED WOLFE TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
I.
{¶15} In his First Assignment of Error, Appellant argues the trial court erred in
failing to merge his offenses. We disagree.
{¶16} Appellant herein asserts that all of the counts, with the exception of the
receiving stolen property count, should merge. He maintains that he committed all of the
offenses with the same animus and under a common scheme of activity. Upon review,
we find said argument to be unpersuasive.
{¶17} R.C. 2941.25, Ohio's allied-offense statute, provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
Licking County, Case No. 2021 CA 0009 6
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 to
each, the indictment or information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
{¶18} 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 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.
Licking County, Case No. 2021 CA 0009 7
{¶19} 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.
{¶20} In the instant case, Appellant was charged with Amended Count 1, Assault
on a Peace Officer, a felony of the 4th degree, which involved a separate, identifiable
victim – State Highway Patrolman Trautman, who was injured while diving out of the way
of Appellant’s moving vehicle while he was trying to place stop strips in the road.
{¶21} Appellant was also charged with Count 2, Felonious Assault, a felony of the
2nd degree, which had a separate identifiable victim in Michael Slagle, Jr., who was
driving the Jeep Comanche in Newark, which made physical contact with Appellant’s
vehicle.
Licking County, Case No. 2021 CA 0009 8
{¶22} We likewise find that the Failure to Comply charge, under R.C.
§2921.331(B)(C)(5)(a)(ii), for causing a substantial risk of serious physical harm to
persons or property does not merge. This charge was brought as a felony for fleeing
which took place in and over eight (8) different counties. These actions presented a risk
of serious physical harm to numerous motorists, to both their person and their property.
This charge would not merge with either of the assault convictions, as there are separate,
identifiable victims for those charges, and those victims actually suffered physical harm.
{¶23} We also find a separate animus for the commission of the Failure to Stop
after Accident and the Failure to Comply, because Appellant made a separate decision
to flee after hitting the vehicle in Licking County, and then to continue on into another
county.
{¶24} Based on the foregoing analysis, we find Appellant’s first assignment of
error not well-taken and hereby overrule same.
II.
{¶25} In his second assignment of error, Appellant argues that the trial court erred
in imposing consecutive sentences. We disagree.
{¶26} Revised Code §2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶1.
Pursuant to R.C. §2953.08(G)(2), an appellate court may only “increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if the court finds by clear and convincing evidence
“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the
sentence is otherwise contrary to law.” R.C. §2953.08(G)(2)(a)-(b).
Licking County, Case No. 2021 CA 0009 9
{¶27} R.C. §2929.14(C)(4) provides:
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 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.
{¶28} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
Licking County, Case No. 2021 CA 0009 10
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,
2014-Ohio-3177, syllabus. In other words, the sentencing court does not have to perform
“a word-for-word recitation of the language of the statute.” Id. at ¶29. Therefore, “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. If a sentencing court fails to make the findings required
by R.C. 2929.14(C)(4), a consecutive sentence imposed is contrary to law. Id. at ¶ 34.
The trial court is not required “to give a talismanic incantation of the words of the statute,
provided that the necessary findings can be found in the record and are incorporated into
the sentencing entry.” Id. at ¶ 37.
{¶29} Here, Appellant concedes the trial court made the appropriate findings
pursuant to R.C. §2929.14(C)(4) both on the record and in its sentencing entry but argues
that the record does not support said findings. Specifically, Appellant argues that the
record fails to support a finding that he committed the most serious offense or is the most
serious offender because he did not commit the offenses with “malice aforethought”, he
accepted responsibility for his actions and was remorseful.
{¶30} Upon review, we find that at the original sentencing hearing, the trial court
found that Appellant had just finished a seven (7) month prison term and was on parole
for a home invasion as well as counts of breaking and entering. (Sent. T. at 29). The trial
court also noted that at that time Appellant had pending charges in Kalamazoo, Michigan,
for breaking and entering and larceny, for which Appellant had warrants for his arrest for
failure to appear, prior to this incident. (Sent. T. at 29-30). The trial court noted that
consecutive sentences were necessary to protect the public, were similar to sentences
Licking County, Case No. 2021 CA 0009 11
imposed on others for similar conduct, and were justified by Appellant's criminal history.
(Sent. T. at 30).
{¶31} At the resentencing hearing, the court again found that the prison terms
should run consecutive, finding that “consecutive sentences are necessary to protect the
public from future crime, to punish [Appellant]. That consecutive sentences aren’t
disproportionate to the seriousness of [Appellant’s] conduct and the danger posed to the
public.” (Resent. T. at 12-13). The court also found that Appellant’s “history of criminal
conduct demonstrates consecutive sentences are necessary in this case to protect the
public from future crime. (Resent. T. at 13). Further, in its Judgment Entry on
resentencing, the trial court adopted all parts of the sentence imposed January 24, 2020.
(1/11/2021 Judgment Entry at 4). In said Entry, the trial court again stated that Appellant’s
“history of criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender.” (1/11/2021 Judgment Entry at 2-3).
{¶32} Upon our review of the record of the sentencing hearings and the judgment
entries, we find the trial court engaged in the appropriate analysis and made the requisite
findings. Therefore, we find the imposition of consecutive sentences in this case was not
contrary to law.
Licking County, Case No. 2021 CA 0009 12
{¶33} Appellant’s second assignment of error is overruled.
{¶34} Based on the foregoing, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/kw 0914