State v. Romine , 2021 Ohio 1026 ( 2021 )

[Cite as State v. Romine, 2021-Ohio-1026.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
LANNY ROMINE : Case No. CT2020-34
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2020-0179
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 29, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR BENNINGTON JAMES ANZELMO
27 North Fifth Street 446 Howland Drive
P.O. Box 189 Gahanna, OH 43230
Zanesville, OH 43701
Muskingum County, Case No. CT2020-34 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Lanny L. Romine appeals the June 11, 2020 judgment
of conviction and sentence of the Muskingum County Court of Common Pleas. Plaintiff-
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} According to the transcript of the plea hearing in this matter, on March 28,
2020, during an argument with his fiancée's daughter, 17 year-old V.G., Romine strangled
V.G. Romine's fiancée intervened and another household member called police. Romine
fled the scene.
{¶ 3} Officers located Romine's vehicle and signaled for him to stop, but he fled
from officers. Before finally being stopped, Romine drove over the speed limit, through
various roadways and into neighborhoods.
{¶ 4} As a result of these events, on April 15, 2020, the Muskingum County Grand
Jury returned an indictment charging Romine with two counts of domestic violence,
felonies of the third degree, and one count of failure to comply, a felony of the fourth
degree.
{¶ 5} On June 10, 2020, the state agreed to dismiss one count of domestic
violence, and amend the second count to a felony of the fourth degree. Romine then
entered pleas of guilty to one count of domestic violence as amended, and the one count
of failure to comply.
{¶ 6} Sentencing was held on July 6, 2020 after completion of a pre-sentence
investigation. The trial court sentenced Romine to 18 months for domestic violence and
Muskingum County, Case No. CT2020-34 3
12 months for failure to comply. The court ordered Romine to serve the sentences
consecutively for an aggregate prison term of 30 months.
{¶ 7} Romine filed an appeal and the matter is now before this court for
consideration. He raises two assignments of error for our consideration as follow:
I
{¶ 8} "THE TRIAL COURT LACKED JURISDICTION AND AUTHORITY TO
CONVICT ROMINE OF THE OFFENSE AGAINST V.G."
II
{¶ 9} "THE TRIAL COURT ERRED WHEN IT SENTENCED ROMINE TO
PRISON, INSTEAD OF COMMUNITY CONTROL, IN VIOLATION OF HIS DUE
PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE
OHIO CONSTITUTION."
I
{¶ 10} In his first assignment of error, Romine argues because the victim in this
matter was a minor, the state lacked authority to charge him with domestic violence and
the trial court lacked jurisdiction over the matter. According to Romine, because the victim
was 17 years old, he had to be charged under the special provision of child endangering
not the general domestic violence provision. We disagree.
{¶ 11} Romine points to R.C. 1.51 to support his argument he had to be charged
under the special provision of child endangering not the general domestic violence
provision. That section states:
Muskingum County, Case No. CT2020-34 4
If a general provision conflicts with a special or local provision, they
shall be construed, if possible, so that effect is given to both. If the
conflict between the provisions is irreconcilable, the special or local
provision prevails as an exception to the general provision, unless
the general provision is the later adoption and the manifest intent is
that the general provision prevail
{¶ 12} When there is no manifest legislative intent that a general provision of the
Revised Code prevails over a special provision, the special provision takes precedence.
State v. Volpe, 38 Ohio St.3d 191, 527 N.E.2d 818, paragraph one of the syllabus (1988);
State v. Frost, 57 Ohio St.2d 121, 387 N.E.2d 235 (1979) paragraph one of the syllabus.
Where it is clear that a special provision prevails over a general provision or the Criminal
Code is silent or ambiguous as to which provision prevails, under R.C. 1.51, the state
may charge only on the special provision. State v. Chippendale, 52 Ohio St.3d 118, 556
N.E.2d 1134 (1990) paragraph three of the syllabus.
{¶ 13} In State v. Clark, 10 th Dist. No. 14P-719, 2055-Ohio-2046 at ¶ 18, the Tenth
District noted:
Implicit in the Volpe analysis is that several prerequisites must be
met prior to applying the conflicting statute rule. Under R.C. 1.51, a
“general” statute must be compared against a “special or local”
statute, the general and special or local statutes must “conflict,” and
the conflict must be “irreconcilable” in that the statutes cannot be
construed “so that effect is given to both.” R.C. 1.51. Lastly, the
Muskingum County, Case No. CT2020-34 5
“legislature [must have] expressed its intent that a special provision
prevail over a general one.” Chippendale at 122, citing Volpe at 193;
R.C. 1.51 (the general provision prevails where it “is the later
adoption and the manifest intent is that the general provision
prevail”).
{¶ 14} Romine was charged with domestic violence pursuant to R.C. 2919.25(A)
which provides "No person shall knowingly cause or attempt to cause physical harm to a
family or household member."
{¶ 15} Romine argues he should have been charged with child endangerment
pursuant to R.C. 2919.22(B)(1) which provides:
(B) No person shall do any of the following to a child under eighteen
years of age or a mentally or physically handicapped child under
twenty-one years of age:
(1) Abuse the child;
***
{¶ 16} The applicable mental state for child endangerment is recklessness. State
v. McGee, 79 Ohio St.3d 193, 680 N.E.2d 975 (1997) at syllabus
{¶ 17} Because the elements of each offense differ they do not create a conflict
between a general and a special provision. State v. Bowman, 79 Ohio App.3d 407, 410-
411, 607 N.E.2d 516 (10th Dist. 1992)
{¶ 18} Additionally, when presented with a similar argument in State v. Brown, 8th
Dist. No. 1993WL389464, *2, the Eighth District Court of Appeals found:
Muskingum County, Case No. CT2020-34 6
* * *when defendant's conduct violates two different sections of the Revised Code,
the prosecutor has discretion to choose the statute the defendant will be
prosecuted under. State v. Wilson (1976), 58 Ohio St.2d 52, U.S. v. Batchelder
(1979), 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755. The use of this prosecutorial
discretion does not violate equal protection, so long as the prosecutor does not
discriminate against a class of defendants. Id.{¶ 19} The state was not required to charge Romine under R.C. 2919.22(B)(1)
instead of R.C. 2919.25(A). Accordingly, we overrule the first assignment of error.
II
{¶ 20} In his second assignment of error, Romine argues the trial court erred in
misapplying the factors contained in R.C. 2929.12 and imposing a prison sentence
instead of a term of community control and therefore this court may vacate his sentence
pursuant to R.C. 2953.08(G)(2). We disagree.
{¶ 21} 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;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶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 that 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.
{¶ 22} 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.”
Muskingum County, Case No. CT2020-34 7
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 23} Romine argues his sentence is contrary to law because the trial court failed
to impose the sentence in accordance with sentencing statutes, specifically, R.C.
2929.12. He supports this argument by stating (1) he had not previously served a prison
term; (2) he demonstrated remorse; (3) he did not harm anyone during his flight from
police; (4) he did not cause the V.G.'s physical injuries; (5) V.G. did not want him to go to
prison and therefore sending him to prison contravenes Marsy's Law; and (6) he served
in the military and was honorably discharged. None of these factors, however, make the
imposition of a prison term contrary to law.
{¶ 24} We recently addressed the same challenge in State v. Roberts, 5th Dist.
No. 2021-Ohio-90, ¶ 81 and explained nothing in R.C. 2953.08(G)(2) permits this court
to independently weigh the evidence in the record and substitute its own judgment for
that of the trial court to determine a sentence that best reflects compliance with R.C.
2929.11 and R.C. 2929.12. Id. citing State v. Jones, ___ N.E.3d ___, 2020-Ohio-6729 ¶
42.
{¶ 25} This court is therefore without authority to disturb Romine's sentence absent
a finding by clear and convincing evidence that the record does not support the trial court's
findings under R.C. 2929.11 and R.C. 2929.12. Instead we may only determine if the
sentence is contrary to law.
{¶ 26} A sentence is not clearly and convincingly contrary to law where the trial
court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
Muskingum County, Case No. CT2020-34 8
within the permissible statutory range." State v. Dinka, 12th Dist. Warren Nos. CA2019-
03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶ 27} Before sentencing Romine, the trial court noted pre-sentence investigation
indicated he had six prior offenses of violence, each time involving the assault of a female
victim. The court additionally noted Romine's history included charges of passing bad
checks, drug abuse, criminal damaging, aggravated menacing, drug paraphernalia,
disorderly conduct, petty theft, and obstructing official business. The trial court further
noted Romine pled guilty to domestic violence as amended, a felony of the fourth degree
based upon two or more prior domestic violence convictions. Transcript of sentencing (T.)
at 5-6.
{¶ 28} The trial court then sentenced Romine within the applicable sentencing
range and he does not argue otherwise. The sentencing judgment entry indicates the trial
court's consideration of R.C. 2929.11 and R.C. 2929.12 and post-release control was
properly imposed. We therefore do not find appellant's sentence to be clearly and
convincingly contrary to law nor is his sentence unsupported by the record.
{¶ 29} The second assignment of error is overruled.
{¶ 30} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Hoffman, J. concur.
EEW/rw