State v. Irwin , 2012 Ohio 2720 ( 2012 )

[Cite as State v. Irwin, 2012-Ohio-2720.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 CO 7)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ANDREW G. IRWIN )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Columbiana County,
Ohio
Case No. 2010 CR 171
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. Ryan P. Weikart
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Douglas A. King
Hartford, Dickey & King Co., LPA
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44113
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 13, 2012
[Cite as State v. Irwin, 2012-Ohio-2720.]
WAITE, P.J.
{¶1} Appellant Andrew Irwin appeals his convictions on charges of assault
on a police officer and harassment with a bodily substance. The crimes occurred
while he was being held in the Columbiana County Jail awaiting retrial for the murder
of Emily Foreman. The offenses were fifth degree felonies. He pleaded guilty to both
charges. Prior to the sentencing hearing in this case, he was convicted of the
murder. A joint sentencing hearing in this case and the murder case occurred shortly
thereafter. The court imposed fifteen years to life in prison on the murder conviction,
and then imposed two consecutive nine-month prison terms in the instant case. The
court also ordered that the sentence in this case be served consecutive to the murder
sentence.
{¶2} Appellant appeals the consecutive sentence imposed in the instant
case. The record indicates that the consecutive sentence was warranted for a variety
of reasons, including the seriousness of the crime and to deter future crime.
Appellant also questions why the two sentences were not merged as allied offenses
of similar import, but the crimes were committed against two different police officers.
Therefore, they warranted separate punishments. Appellant further contends that he
should have been given jail-time credit in this case while being held in the jail on the
murder charge. A criminal defendant is not entitled to jail-time credit for confinement
arising from another offense. Appellant was held in jail on a murder charge and is
not entitled to any jail-time credit in this case. Finally, Appellant offered a pro se
assignment of error arguing that the admission of a videotape of a subsequent
incident between Appellant and corrections officers violated the rules of evidence.
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The videotape was admitted at the sentencing hearing. Appellant's own attorney
acknowledges that the rules of evidence do not apply at sentencing and that there is
no error. The judgment of the trial court is affirmed.
History
{¶3} On March 19, 2010, Appellant was returned to the Columbiana County
Jail to be retried for the murder of Emily Foreman in Case No. 2006-CR-303. On July
13, 2010, he assaulted Sergeant Jared Kinemond and spit on Lieutenant Pete
Neiheisel while he was being held in jail. The two officers are employed by the jail.
On July 21, 2010, Appellant was indicted on one count of assault, R.C. 2903.13(A), a
fifth-degree felony, and one count of harassment with a bodily substance, R.C.
2921.38(A), also a fifth-degree felony. The matter was designated as Case No.
2010-CR-171.
{¶4} On July 22, 2010, the trial court set Appellant's bond at $5,000 on his
own recognizance. Appellant refused to sign the bond. On August 12, 2010,
Appellant was arraigned in this case and the court continued the recognizance bond,
although he remained in jail awaiting his murder trial.
{¶5} On December 7, 2010, Appellant pleaded guilty to both charges in the
instant case. The recommended sentence in the plea agreement was for
consecutive nine-month prison terms. On January 25, 2011, Appellant was once
again convicted of the murder of Emily Foreman. On February 1, 2011, a joint
sentencing hearing took place. At sentencing, it was established that Appellant, an
intravenous drug user, punched Sgt. Kinemond in the head and scratched him
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around the head and neck area, and that he spit on Lt. Neiheisel while the officers
were struggling to get control over him at the jail. Appellant previously pleaded guilty
to vandalism in 2006 arising from a riot at the county jail. Appellant stated at the
hearing that: “I swung on Officer Gilbert; he's the one that sprayed me. That's why I
said, ‘That's what happens when you guys do that,’ meaning when you assault me,
I'm not going to lay down.” (2/1/11 Tr., p. 19.) A video from the jail recorded on
August 12, 2010 was presented, which showed Appellant in a rage and taunting
police officers about how he assaulted them earlier. The court sentenced Appellant
to fifteen years to life in prison for murder, and to two nine-month prison terms for
assault and harassment with a bodily substance, to be served consecutively and
consecutive to the sentence in the murder case. This appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE
SENTENCES HEREIN BOTH WHEN IT IMPOSED CONSECUTIVE
NINE MONTH SENTENCES FOR THE TWO COUNTS CONTAINED
WITHIN 2011 CR 171 AND WHEN IT IMPOSED THOSE
CONSECUTIVE SENTENCES CONSECUTIVE WITH THE FIFTEEN
TO LIFE INDEFINITE SENTENCE IMPOSED IN 2006 CR 303/ 2007
CO 22/ 2011 CO 6.
{¶6} We review felony sentences to determine whether the sentence is
clearly and convincingly contrary to law, and if it is not contrary to law it is then
reviewed for abuse of discretion. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-
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695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. The initial
inquiry is whether the sentence is clearly and convincingly contrary to law, i.e.,
whether the sentencing court complied with all applicable rules and statutes in
imposing the sentence. Gratz at ¶8, citing State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, ¶13-14. If it is not clearly and convincingly contrary to
law, the court must determine whether the sentencing court abused its discretion in
applying the factors in R.C. 2929.11, R.C. 2929.12 and any other applicable statute.
Gratz at ¶8, citing Kalish at ¶17.
{¶7} The record reflects that the sentence is not contrary to law. The crimes
in this case were fifth degree felonies punishable by up to twelve months in prison
each, and the court imposed less than the maximum possible sentence for each
crime.
{¶8} Appellant argues that the imposition of consecutive sentences was an
abuse of discretion. He maintains that the court needlessly “piled on” extra prison
time after it had already imposed a sentence of 15-years to life for the murder.
Appellant postulates that none of seriousness factors found in R.C. 2929.12 apply to
him, and that some of the mitigating factors apply, which should have prevented the
court from imposing consecutive sentences. Appellant contends that the trial court
was required to list or explain at least some of the factors it considered, and that this
silence constitutes reversible error. Appellant also asserts that some of the factors in
R.C. 2929.12 require mandatory findings by the trial court under State v. Hodge, 128
Ohio St.3d 1, 2010-Ohio-6320, 941 N.E. 2d 768. Finally, Appellant believes his
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crimes should have merged as allied offenses of similar import. Our review of this
record reveals that all of Appellant's arguments are meritless.
{¶9} Appellant is correct that the trial court did not explain in any particular
detail why it imposed the consecutive sentences. Appellant considers this to be
reversible error, however, Appellant is incorrect. In the face of a silent record the trial
court's sentencing decision will be presumed to be correct. Kalish at ¶18. As we
have previously held: “Nothing in the statute or the decisions of this court imposes
any duty on the trial court to set forth its reasoning. The burden is on the defendant
to come forward with evidence to rebut the presumption that the trial court considered
the sentencing criteria.” State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469,
¶60, citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992). The record
is not completely silent with respect to the sentencing statutes because the court
mentioned its consideration of the purposes and principles of sentencing both at the
sentencing hearing and in the sentencing judgment entry.
{¶10} Additionally, there is no fact-finding requirement imposed by Hodge or
by any other caselaw. The Hodge case makes clear that the United States Supreme
Court's decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517(2009), does not revive Ohio's former consecutive-sentencing statutory provisions,
R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Under the current
statutory scheme, trial court judges are not obligated to engage in judicial fact-finding
prior to imposing consecutive sentences. Hodge at paragraphs one, two and three of
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the syllabus. Although the consecutive sentencing statute, R.C. 2929.14(E)(4), was
rendered unconstitutional by Foster, trial courts retain the common law discretion to
impose consecutive sentences. “Foster [does] not prevent the trial court from
imposing consecutive sentences; it merely took away a judge's duty to make findings
before doing so.” State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, ¶35.
{¶11} Appellant alleges that none of the factors found in R.C. 2929.12 are
found in the record. Appellant is mistaken. A trial court is not limited to the specific
factors listed in R.C. 2929.12, as the statute itself allows the trial court to consider
“any other factors that are relevant to achieving the purposes and principles of
sentencing.” R.C. 2929.12(A). The purposes and principles of sentences are to
protect the public from future crime and to punish the offender. R.C. 2929.11(A). To
achieve these 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. R.C. 2929.11(A). The sentence
shall be commensurate with and not demeaning to the seriousness of the offender's
conduct and its impact on the victim. R.C. 2929.11(B). The sentencing court has
discretion to determine the most effective way to comply with the purposes and
principles of sentencing set forth in section 2929.11 and shall consider whether any
of the seriousness and recidivism factors listed in R.C. 2929.12 are relevant.
Appellant is aware that the standard of review of the imposition of consecutive
sentences, as part of an overall sentence, is abuse of discretion. See, e.g., State v.
Johnson, 7th Dist. No. 10 MA 32, 2010-Ohio-6387. An abuse of discretion is “more
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than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d
144 (1980).
{¶12} The record indicates that Appellant was in jail on a murder charge when
the crimes occurred. The crimes occurred against corrections officers. Appellant hit
an officer in the face causing a swollen lip, lacerations and scrapes on the neck and
swelling on the officer's forehead. These facts are all relevant to the seriousness of
the crimes. Further, Appellant showed no remorse for his actions and made it clear
at the sentencing hearing that he would commit similar crimes in the future if
provoked. Appellant was involved in similar incidents both before and after the
crimes at issue in this case occurred. The prosecutor made a very good point at
sentencing that if there are no serious consequences for jailhouse assaults on police
officers committed by defendants who are serving life sentences, then there will be
no deterrent on these defendants from committing future assaults. The record is
replete with evidence supporting the trial court's decision to impose consecutive
sentences based on the seriousness of the crimes and to deter future crime.
{¶13} Appellant contends that the crimes were allied offenses of similar import
and should have been merged at sentencing, but there is no merit to his argument.
Appellant did not raise this issue at trial. Hence, it is reviewed only for plain error.
State v. Carter, 89 Ohio St.3d 593, 598, 734 N.E.2d 345 (2000). “Plain error is one in
which but for the error, the outcome of the trial would have been different.” State v.
Hancock, 7th Dist. No. 09-JE-30, 2010-Ohio-4854, ¶55. The Ohio Supreme Court
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has recognized that the “imposition of multiple sentences for allied offenses of similar
import is plain error.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922
N.E.2d 923, ¶31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817
N.E.2d 845, ¶96-102.
{¶14} R.C. 2941.25 provides:
(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.
{¶15} Merger of allied offenses is a question of law. State v. Taylor, 7th Dist.
No. 07-MA-115, 2009-Ohio-3334, ¶19. Questions of law are reviewed de novo.
State v. Ryan, 7th Dist. No. 10-MA-173, 2012-Ohio-1265, ¶44.
{¶16} “When determining whether two offenses are allied offenses of similar
import subject to merger under R.C. 2941.25, the conduct of the accused must be
considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, at syllabus.
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{¶17} In this case, the assault charge (R.C. 2903.13(A)) and the harassment
with a bodily substance charge (R.C. 2921.38(A)) rely on completely different facts to
support a conviction. R.C. 2903.13(A) states: “No person shall knowingly cause or
attempt to cause physical harm to another or to another's unborn.” The crime is a
fifth-degree felony if committed on the grounds of a local correctional facility after the
defendant has been charged with a crime, and the victim is an employee of the
facility. R.C. 2903.13(C)(2)(b).
{¶18} R.C. 2921.38(A) states: “No person who is confined in a detention
facility, with intent to harass, annoy, threaten, or alarm another person, shall cause or
attempt to cause the other person to come into contact with blood, semen, urine,
feces, or another bodily substance by throwing the bodily substance at the other
person, by expelling the bodily substance upon the other person, or in any other
manner.”
{¶19} This record indicates that Appellant was being held at the Columbiana
County Jail awaiting retrial for the murder of Emily Foreman. He punched Sgt. Jared
Kinemond in the face causing a swollen lip, lacerations and other injuries. The
officers sprayed mace on Appellant which blurred his vision. Appellant then spit in
the direction of Lt. Pete Neiheisel, hitting him on his mouth. The record describes
two completely different actions by Appellant separated in time by the macing
incident. Additionally, he committed the acts against two different victims. Separate
convictions and sentences are permitted when there are multiple victims. State v.
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Johnson, 7th Dist. No. 04 MA 193, 2007-Ohio-3332, ¶33, citing State v. Garrison,
123 Ohio App.3d 11, 16, 702 N.E.2d 1222 (2d Dist.1997).
{¶20} All of Appellant's arguments under this assignment of error are without
merit and are overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT
JAIL TIME CREDIT HEREIN.
{¶21} Appellant contends that jail-time credit should have been applied to the
instant charges because he failed to sign his recognizance bond and was not
released on bond at any point during the litigation of the two charges. R.C. 2967.191
indicates that there is a right to jail time credit: “by the total number of days that the
prisoner was confined for any reason arising out of the offense for which the prisoner
was convicted and sentenced”. (Emphasis added.) R.C. 2967.191 “does not entitle
a defendant to jail-time credit for any period of incarceration which arose from facts
which are separate and apart from those on which his current sentence is based.”
State v. Smith, 71 Ohio App.3d 302, 304, 593 N.E.2d 402 (1992). Whether or not
Appellant signed his recognizance bond in this case is irrelevant, because he was
being held in jail on a murder charge and would not have been eligible to be released
on a bond in this case whether or not he signed the bond. Appellant's situation is
similar to that in State v. Russell, 3d Dist. No. 9-03-56, 2004-Ohio-1950. In Russell,
the defendant was serving a prison term when he spit on a teacher in the prison and
was charged and convicted for harassment. He argued that he should have received
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jail-time credit in his harassment case from the time of the offense until the date of
sentencing. The court held that a defendant is not entitled to double-credit for jail-
time served for an offense he committed while already incarcerated on a different
offense. Id. at ¶8-9.
{¶22} Appellant was not held solely on the charges in the instant case, and
thus, was not entitled to jail-time credit in this case. The record indicates that he
received jail-time credit in the murder case. Appellant's assignment of error is
overruled.
ANDERS ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE THE
VIDEOTAPE IDENTIFIED AND ADMITTED AT THE SENTENCING
HEARING.
{¶23} Appellant's counsel presents this error as a pro se error from Appellant
himself. Although counsel presents this as an Anders assignment of error, he is not
asking to withdraw as counsel as is normally the case when Anders is invoked. See
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel
is simply presenting this pro se error to the Court as a courtesy to his client. Counsel
acknowledges that he himself would not have argued it, knowing full well that there is
no legal basis to support the error.
{¶24} Appellant argues that the prosecutor should not have been permitted to
admit a videotape at the sentencing hearing that showed him threatening the police
and taunting them about the crimes he had committed a few weeks earlier in this
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case. It is not clear which of the rules of evidence is being invoked in this argument,
but presumably it is either Evid.R. 404(B) relating to other crimes or bad acts, or
Evid.R. 403, generally relating to relevance. Appellant correctly points out that the
Rules of Evidence do not apply to sentencing hearings. Evid.R. 101(C)(3); State v.
Cook, 83 Ohio St.3d 404, 425, 700 N.E.2d 570 (1998). Appellant attempts to argue
that an admittedly similar event that happened four weeks after the indictment in this
case was issued is not relevant to sentencing, but its relevance should be self-
evident. It is relevant to issues such as Appellant's likelihood in committing future
crimes, his remorse or the lack thereof, and to rebut Appellant's own words at the
sentencing hearing regarding the context of his various altercations with the police.
This is a frivolous assignment of error and is therefore overruled.
CONCLUSION
{¶25} This appeal only relates to questions about Appellant’s felony sentence.
The record demonstrates that the sentence of two consecutive nine-month prison
terms was justified and did not constitute an abuse of the trial court's discretion. The
crimes were not allied offenses primarily because they were committed against two
different officers. Therefore, the sentences should not have merged. The trial court
was not required to make any specific findings during the sentencing phase and
there is no error in the trial court's overall silence about the factors relied on in
creating the sentence. Appellant was not owed any jail-time credit in this case
because he was actually being held on a charge of murder in another case. There is
no merit to the argument that the rules of evidence were not followed at sentencing
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because those rules are not applicable at sentencing. All three assignments of error
are without merit and are overruled. The judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.