State v. Anthony , 2013 Ohio 2955 ( 2013 )

[Cite as State v. Anthony, 2013-Ohio-2955.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 12 JE 2
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
JOSEPH ANTHONY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 11 CR 142.
JUDGMENT: Conviction Affirmed.
Remanded For Resentencing.
APPEARANCES:
For Plaintiff-Appellee: Attorney Jane Hanlin
Prosecutor
Attorney George Sarap
Assistant Prosecutor
Jefferson County Justice Center
16001 State Route 7
Steubenville, OH 43952
For Defendant-Appellant: Attorney Eric Reszke
Suite 810
Sinclair Building
Steubenville, OH 43952
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: June 21, 2013
[Cite as State v. Anthony, 2013-Ohio-2955.]
DeGenaro, P.J.
{¶1} Defendant-Appellant, Joseph Anthony, appeals the decision of the Jefferson
County Court of Common Pleas, convicting him of one count of burglary and sentencing
him accordingly. He contends that his sentence was erroneous and his conviction was
against the manifest weight of the evidence. Anthony's assignments of error are
meritless in part and meritorious in part. First, Anthony's conviction was not against the
manifest weight of the evidence. Second, although Anthony’s sentence was within the
statutory range and the length was reasonable based upon the applicable sentencing
factors, the trial court erred by failing to properly notify Anthony regarding the details of
his post-release control and by failing to include the consequences for violating those
conditions in the sentencing entry. Accordingly, Anthony's conviction is affirmed, his
sentence is affirmed in part and the case remanded for a limited post-release control
resentencing hearing pursuant to R.C. 2929.191(C).
Facts and Procedural History
{¶2} On September 7, 2011, the Jefferson County Grand Jury indicted Anthony
on one count of burglary (R.C. 2911.12(A)(3)), a third-degree felony. The case
proceeded to a jury trial during which the State presented testimony from multiple
witnesses to set forth the facts of the burglary. On the evening of July 15, 2011, Doris
Welday's house on Wheatley Street in Empire was burglarized. At the time of the
burglary, Welday was in the hospital and her daughter, Carol Westbrook, was taking care
of the house and had Power of Attorney for Welday.
{¶3} Between 9:30 and 10:00 p.m. on July 15, Carol received a phone call from a
neighbor alerting her that the security lights had been activated at Welday's house.
Carol's husband, Randy, and her younger son went to check on the house. First, they
went up the ramp to the back porch and saw the door was still locked. They then
observed that the basement door underneath the porch was open. According to Randy,
nobody could have broken in from the outside because a bar holds the door shut and he
had locked and secured the door earlier. The basement was dark and they did not have
flashlights, but they could hear movement inside the basement. In the meantime, one of
Welday's relatives had called the police. Randy and his son waited outside the house
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until Police Chief Matthew Donahue arrived.
{¶4} When Chief Donahue arrived, he announced his presence at the basement
door. Shortly thereafter, Elizabeth Keenan exited the basement. Keenan is Welday's
granddaughter and Carol and Randy's niece. Keenan lived with her mother next door to
Welday's house. At the time, Anthony, Keenan's long-term boyfriend, lived with her and
her mother. According to Carol, neither Keenan nor Anthony had permission to be in
Welday's house. Carol also explained that Randy called her to bring the keys to the
house over. Her older son picked her up and drove her over, and they arrived as Keenan
was coming out of the basement.
{¶5} After Keenan exited the basement, the Chief asked her what she was doing
in the house, and at first she said that she needed food from the freezer. The family
members advised him that the freezer was upstairs on the back porch, not in the
basement. Keenan then said that she heard a noise in the house. Chief Donahue placed
Keenan into custody, handcuffed her with her hands behind her back and secured her in
the back of his vehicle. Keenan complained that the handcuffs were cutting into her
wrists, which the Chief explained is a normal reaction.
{¶6} Chief Donahue then performed a scan of the house. He asked the family to
enter and told them not to touch anything but to advise him if anything was missing.
Carol noticed that a flat-screen television was missing from the entertainment center in
the living room and some figurines were missing that were usually in front of the
television. The television was discovered in the basement. According to the Chief, the
inside of the house was not damaged and the figurines were placed at the bottom of the
television console.
{¶7} Chief Donahue then searched for a point of entry; he testified that he did not
believe it was the basement door because the door had been locked with the bar and the
door was not damaged. The front of the house had an enclosed porch. The Chief found
a tire iron lying on the porch next to a window. He saw that the window had pry marks
underneath it and the latches were broken. The window led into the living room and the
curtains and blinds were pushed aside over the couch. He believed that this window was
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the point of entry.
{¶8} After he detained Keenan at the Welday residence, the Chief diffused an
altercation between Carol's son and Anthony near Anthony's residence on Wheatley. He
did not arrest Anthony that night. Later that evening, when he took Keenan to the
Sheriff's Department, he asked her if Anthony was involved in the burglary and Keenan
said no.
{¶9} Chief Donahue contacted Agent Edward Lulla, a crime scene investigator
with the Ohio Bureau of Criminal Investigation, who conducted an investigation of the
scene the next morning. Agent Lulla fingerprinted the window inside the porch, the
television, and some of the figurines. The fingerprint evidence was very poor quality and
there was not enough ridge detail to make a comparison with a known fingerprint. Agent
Lulla explained that fingerprints could last for years on a surface if the surface is not
wiped off or does not come into contact with water. DNA evidence was not taken from
the scene.
{¶10} According to Chief Donahue, while he was investigating the burglary,
Keenan was not very helpful, so he asked Sheriff Abdalla to speak with her. Keenan
gave a statement to the Sheriff that Anthony was involved in the burglary; Anthony was
arrested after Keenan made this statement.
{¶11} The State also presented testimony from two witnesses in order to link
Anthony to the burglary: Keenan and Linda Adkins.
{¶12} Keenan testified that she pled guilty to burglary and is currently incarcerated
at the East Ohio Correctional Center. She testified that Anthony was with her on the night
of the burglary. At that time, they had been in a relationship for almost six years. She
explained that towards the end of their relationship, Anthony had become aggressive and
violent. She later admitted that her mother owned the house that she lived in and could
have forced Anthony to leave. She stated that her mother making Anthony leave had
been "in the process of happening."
{¶13} Keenan claimed that the burglary was Anthony's idea, and she agreed to it.
On that night, she went to the back of the house and while she walked backed there, she
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heard the trunk door of Anthony's vehicle close. She explained that he kept his tools to
change a tire in the trunk, such as crowbars. She also stated that Anthony was wearing
black gloves that night.
{¶14} Keenan walked up the ramp to the back porch, but the door and window in
the back were not open. She went back down the ramp, activating the motion light, and
went under the back porch where the basement door is located. At that point, the
basement door swung open and Anthony was at the door. Keenan testified that she went
into the house and a few minutes later, Anthony came back down the basement steps
with the television. Keenan explained that she could not have carried the television down
the stairs because she is unable to lift heavy objects due to a hernia and degenerating
disc disease of the spine.
{¶15} Keenan testified that Anthony left the house through the basement door
when headlights from a vehicle pulling into the driveway flickered in the window of the
basement. She explained that she did not leave because she was "dumbfounded" and
did not know what to do. She explained that when the Chief asked her if Anthony was
involved, she said no because she was afraid that if he found out that she informed on
him, he might hurt her or her family. When she met with Sheriff Abdalla, he asked her for
a statement but did not make any promises to her. She said that she voluntarily told the
Sheriff about Anthony's involvement in the burglary. Keenan stated that she was
released from the Sheriff's Department on a medical release due to stomach and liver
problems.
{¶16} Keenan stated that her testimony that day would not impact the sentence
she received and she was just told to be honest. She said that she has no prior felony or
theft convictions. She later testified that the State's recommendation that she receive six
months at the East Ohio Correctional Center was based on her lack of a prior record.
She confirmed that at her sentencing hearing, the State made the sentence
recommendation before she gave her statement about Anthony's involvement.
{¶17} On cross, Keenan admitted that she does not receive any type of disability
payments for her physical problems. She also admitted that she had physical issues prior
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to making the statement about Anthony's involvement in the burglary, but she was
released on medical leave from the Sheriff's Department after she made the statement.
Keenan agreed that when she pled guilty, she was facing up to three years imprisonment,
but she received probation, which included six months at Eastern Ohio Correctional
Center. She confirmed that her attorney and the prosecutor made a joint
recommendation for probation and in turn she agreed to testify against Anthony.
{¶18} Keenan confirmed that she admitted in her statement to Sheriff Abdalla that
she had a drug problem but she was no longer using drugs. She admitted that her drug
problem was ongoing and that she had lied to Sheriff Abdalla. She stated that the plan
was to steal something in order to purchase drugs.
{¶19} Keenan admitted that she lied to her family and Chief Donahue about her
reasons for being in Welday's house. She confirmed that she did not mention Anthony
wearing gloves or that he got a crowbar out of his trunk in her statement to Sheriff
Abdalla, although the statement did say that Anthony decided to break the lock with a tire
iron. She also did not mention the gloves or that Anthony got the crowbar from the trunk
at her change of plea hearing. She explained that she was not asked about it and she
only answered the questions asked. She also confirmed that she had testified at the plea
hearing that on the night of the burglary, her family arrived at the basement door before
she could walk out and she did not mention standing there "dumbfounded." She admitted
that she had the remote control for the television and she dropped it in the grass outside
Welday's house. She agreed that this was a deceptive act.
{¶20} Linda Adkins also testified for the State. She lives on Wheatley Street near
Welday's house. She knows Keenan and Anthony, and she identified Anthony in the
courtroom. On the night of the burglary, Adkins was in a park located directly across the
street from Welday's house. She observed Anthony go up the front steps of the house to
the enclosed porch, and she did not see him come back down the steps. She also saw
Keenan going up the back ramp of the house. She instructed a neighbor girl to alert
Welday's relatives. She also observed the police later bring Keenan out of the house and
put her in a police car. On cross, Adkins testified that she did not see Anthony's hands
-6-
and she agreed that in her statement to the police, she did not say that he was carrying a
crowbar. She confirmed that she did not see Anthony enter or exit the house.
{¶21} After the witnesses' testimony, the State rested. The defense made a
motion for acquittal, pursuant to Crim.R. 29(A), which the court overruled. Anthony chose
not to testify and the defense rested. Following deliberations, the jury returned a verdict
finding Anthony guilty of one count of burglary (R.C. 2911.12(A)(3)).
{¶22} After the jury was excused, the court held a sentencing hearing. During the
hearing, defense counsel made an oral motion for an appeal bond which the trial court
later denied. The trial court found that Anthony had served a prior prison term for
burglary in 2003 in Jefferson County Case No. 03-CR-34. In a February 6, 2012 judgment
entry, the trial court sentenced Anthony to 30 months in prison.
Manifest Weight
{¶23} In his second of two assignments of error, which we address out of order for
clarity of analysis, Anthony asserts:
{¶24} "The jury verdict of guilty to the offenses of burglary was against the
manifest weight of the evidence."
{¶25} When reviewing a judgment under a criminal manifest weight standard of
review, "[t]he court reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered."
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶26} This court's discretionary power to reverse on manifest weight grounds and
grant a new trial is exercised only in the exceptional case where the evidence weighs
heavily against conviction. Thompkins at 387. This standard is a high one because the
trier of fact was in a better position to determine credibility issues, by having personally
viewed the demeanor, voice inflections and gestures of the witnesses. State v. Ali, 154
Ohio App.3d 493, 2003-Ohio-5150, 797 N.E.2d 1019, ¶36 (7th Dist.); State v. DeHass, 10
-7-
Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). A reviewing court therefore should not
interfere with the witness credibility and factual determinations of the jury, unless the
record demonstrates that a reasonable juror simply could not have found the witness to
be credible. State v. Mock, 187 Ohio App.3d 599, 2010-Ohio-2747, 933 N.E.2d 270, ¶40
(7th Dist.).
{¶27} Anthony focuses his manifest weight argument on challenging Keenan's
credibility. He notes that the State's case rests significantly on Keenan's testimony, as
she was the only witness who placed him inside the Welday residence during the
burglary. He contends that Keenan was not a credible witness due to inconsistencies in
her testimony, her admissions of lying and drug use, and the fact that she originally stated
that Anthony was not involved in the burglary but later changed her story and implicated
Anthony.
{¶28} Anthony has pointed out several factors for the jury to consider in judging
Keenan's credibility. Keenan admitted that she had used drugs and lied about her drug
usage to Sheriff Abdalla. She also admitted that she lied about her reasons for being in
Welday's house on the night of the burglary and dropped the remote control in the grass
in order to deceive Chief Donahue. Further, she initially denied Anthony's involvement in
the burglary but later changed her story. She was released on medical leave after she
gave the statement implicating Anthony, but she did not have proof of her medical issues
beyond her own testimony. Finally, there was testimony of the joint recommendation for
probation in exchange for Keenan to testify against Anthony.
{¶29} Despite these factors which could undermine her credibility, a reasonable
juror could still believe her testimony. Keenan explained that she did not initially admit
Anthony's involvement in the burglary because he had been violent towards her before
and she feared for her safety and the safety of her family. Furthermore, she testified that
Sheriff Abdalla did not make any promises to her in exchange for her statement. Finally,
she testified that she had no prior record and the joint recommendation for probation was
entered before she gave her statement at the change of plea hearing.
{¶30} Moreover, several of the inconsistencies in Keenan's testimony are not
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actually inconsistent. Anthony claims that Keenan did not mention the black gloves or the
tire iron to Sheriff Abdalla. While Keenan admitted she did not mention the gloves, she
did state that Anthony decided to use a tire iron to break the lock. While she did not say
that he obtained the tire iron from his trunk, this appears to be a less important detail.
Anthony also argues that Keenan's testimony regarding flickering lights conflicts with
Randy's testimony that he and his son did not have flashlights. Keenan testified that the
lights were actually headlights pulling into the driveway. Although it is not clear whose
vehicle was pulling into the driveway, this ambiguity in Keenan's testimony does not
completely undermine her credibility. Finally, Anthony contends that Keenan's claim that
Anthony was wearing gloves conflicts with Agent Lulla's testimony that he obtained
fingerprint evidence from the television and window. This is not a contradiction because
Agent Lulla also testified that fingerprints can remain in place for years; thus, these
fingerprints could have belonged to someone other than Anthony.
{¶31} Significantly, Keenan's version of the events is bolstered by Adkins'
testimony. Adkins stated that she saw Anthony climb the stairs to the enclosed porch on
the night of the burglary and she did not see him go back down the stairs. Chief Donahue
found the tire iron next to the window inside the enclosed porch, and he believed that this
window was the point of entry into the house. Adkins also observed Keenan walking up
the back ramp of the house, which supports Keenan's testimony. Anthony's attempts to
undermine Adkins' testimony by noting she did not see him enter the house and she did
not notice the black gloves and tire iron do not preclude Adkins' testimony from bolstering
Keenan's claims of Anthony's involvement. Defense counsel did not elicit any testimony
to show that Adkins had a reason to fabricate her testimony, and her testimony places
Anthony nearby the point of entry at the time of the burglary.
{¶32} The jury believed Keenan's testimony that Anthony was involved in the
burglary. "[D]eterminations of witness credibility, conflicting testimony, and evidence
weight are primarily for the trier of fact." State v. Funkhouser, 7th Dist. No. 02-BA-4,
2003-Ohio-697, ¶8, citing DeHass, supra, at paragraph one of the syllabus. Because the
jury was in a better position to assess the witnesses' testimony, and a reasonable juror
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could find Keenan's testimony credible, this is not the exceptional case where the jury
created a manifest miscarriage of justice. Anthony's conviction was not against the
manifest weight of the evidence. Accordingly, his second assignment of error is
meritless.
Sentence Review
{¶33} In his first and final assignment of error, Anthony asserts:
{¶34} "The trial court committed reversible error in sentencing the defendant to
thirty (30) months imprisonment."
{¶35} When reviewing a felony sentence, an appellate court first reviews the
sentence to ensure that the sentencing court clearly and convincingly complied with the
applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
¶4. A trial court's sentence would be contrary to law if, for example, it were outside the
statutory range, in contravention to a statute, or decided pursuant to an unconstitutional
statute. Id. at ¶15. If this inquiry is satisfied, an appellate court then reviews the trial
court's sentencing decision for abuse of discretion. Id. at ¶17, 19-20. The term ‘abuse of
discretion’ means an error in judgment involving a decision that is unreasonable based
upon the record; that the appellate court merely may have reached a different result is not
enough. See, Bergman v. Bergman, 2d Dist. No. 25378, 2013-Ohio-715, ¶9; Hall-Davis v.
Honeywell, Inc., 2d Dist. Nos.2008 CA1, 2008 CA 2, 2009-Ohio-531, ¶35.
{¶36} Turning to the first Kalish inquiry, the 30 month sentence was within the
statutory range; the trial court could have sentenced Anthony from 9 months to 36 months
in prison. R.C. 2929.14(A)(3)(b). In the sentencing entry, the trial court also stated that it
considered R.C. 2929.11 and R.C. 2929.12. "A trial court speaks through its journal
entries." State v. Murphy, 2d Dist. No. 2010 CA 81, 2011-Ohio-5416, ¶18, citing State v.
Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶47. Further, Anthony
was afforded his allocution rights pursuant to Crim.R. 32(A)(1), when the trial court
addressed him and asked him if he had anything to say..
{¶37} Although neither party raised this issue, the trial court did not properly
advise Anthony regarding post-release control, even though he could be subject to a
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discretionary period of up to three years. R.C. 2967.28(C) provides in pertinent part:
Any sentence to a prison term for a felony of the third, fourth, or fifth degree
that is not [a sex offense or an offense during which the offender caused or
threatened physical harm] shall include a requirement that the offender be
subject to a period of post-release control of up to three years after the
offender's release from imprisonment, if the parole board, in accordance
with division (D) of this section, determines that a period of post-release
control is necessary for that offender.
{¶38} Further, R.C. 2929.19(B)(2)(e) provides that at the sentencing hearing, the
trial court must notify the offender that if a period of supervision is imposed following his
or her release from prison, and if the offender violates that supervision, then the parole
board may impose a prison term of up to one-half of the prison term originally imposed on
the offender. The trial court must also include this notice in the sentencing entry. State v.
Pullen, 7th Dist. No. 11 MA 10, 2012-Ohio-1498, ¶9 (analyzing former R.C.
2929.19(B)(3)(e)), citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920
N.E.2d 958, ¶11, 22.
{¶39} At the sentencing hearing, although the trial court properly advised Anthony
of the consequences for violating the conditions of post-release control, it misstated the
term: "the parole board will have the right and the authority to put conditions and
restrictions on your release for a period of 3 more years." (emphasis added.) Moreover,
the sentencing entry did not mention the consequences of violating post-release control
and misstated that Anthony would be subject to post-release control "at the option of the
Parole Board * * * for a period of three (3) years pursuant to Oho [sic.] Revised Code
Section 2967.28(C)." (emphasis added.)
{¶40} The Ohio Supreme Court has recently instructed that when a case involves
a failure to notify a defendant about post-release control only in the sentencing entry, that
error may be corrected through a nunc pro tunc entry without a resentencing hearing.
State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, at syllabus. The
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Court further explained that this remedy is not available when the trial court fails to
provide proper notification at the sentencing hearing. Id. at ¶20. "[A] trial court must
provide statutorily compliant notification to a defendant regarding postrelease control at
the time of sentencing, including notifying the defendant of the details of the postrelease
control * * *." Id. at ¶18. Further, for defendants sentenced after July 11, 2006, R.C.
2929.191 provides that the trial court can hold a resentencing hearing solely on the issue
of post-release control and issue a corrected judgment entry. R.C. 2929.191(C);
Singleton at paragraph two of the syllabus, ¶24.
{¶41} Here, the trial court erred by failing to include the consequences of violating
the conditions of post-release control in the sentencing entry and by failing to inform
Anthony at the sentencing hearing and in the entry that the period of post-release control
could be up to three years, rather than a period of three years. See State v. Smith, 9th
Dist. No. 11CA0115–M, 2012-Ohio-2558, ¶14. Because Anthony was sentenced after
July 11, 2006, the trial court can hold a resentencing hearing solely on the issue of post-
release control and issue a corrected judgment entry
{¶42} Turning to the second prong of the Kalish test, the trial court's overall
sentence was not an abuse of discretion. Anthony argues that the trial court abused its
discretion for several reasons: he had no prior delinquency adjudications, he had not
served a previous prison term, he was employed at the time of the burglary, the State's
case was weak in terms of the weight of the evidence, and his sentence was
disproportionate to Keenan's sentence.
{¶43} Importantly, the trial court found that Anthony had served a prior prison term
for a burglary conviction in 2003, which is an appropriate consideration during sentencing.
Additionally, Anthony demonstrated no remorse during his allocution statement. As to
Anthony's argument regarding Keenan's sentence, R.C. 2929.11(B) provides that a felony
sentence shall be "consistent with sentences imposed for similar crimes committed by
similar offenders." Although Keenan was sentenced to six months at the East Ohio
Correctional Center and community control sanctions while Anthony received a 30 month
prison term, Anthony's disproportionality argument is meritless; Keenan had no prior
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convictions and thus was not a "similar offender." With regard to the remainder of
Anthony's arguments, the trial court reasonably determined that the other factors, such as
his prior conviction, weighed more strongly in favor of Anthony's 30 month sentence,
which was not the maximum sentence he could have received. Finally, Anthony's
conviction was not against the manifest weight of the evidence, as discussed in the
second assignment of error.
{¶44} Therefore, although the trial court's sentence was reasonable, the court
failed to properly notify Anthony regarding post-release control at the sentencing hearing
and in the sentencing entry. Accordingly, Anthony's first assignment of error is
meritorious in part.
{¶45} In sum, Anthony's assignments of error are meritless in part and meritorious
in part. First, Anthony's conviction was not against the manifest weight of the evidence.
Second, although Anthony’s sentence was within the statutory range and the length was
reasonable based upon the applicable sentencing factors, the trial court erred by failing to
properly notify Anthony regarding the details of his post-release control and by failing to
include the consequences for violating those conditions in the sentencing entry.
Accordingly, Anthony's conviction is affirmed, his sentence is affirmed in part, and this
case is remanded to the trial court for a limited post-release control resentencing hearing
pursuant to R.C. 2929.191(C).
Donofrio, J., concurs.
Vukovich, J., concurs.