State v. Palmer , 2023 Ohio 1232 ( 2023 )

[Cite as State v. Palmer, 2023-Ohio-1232.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-65
:
v. : Trial Court Case No. 21-CR-0267
:
THOMAS E. PALMER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on April 14, 2023
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ANDREW PICKERING, Attorney for Appellee
GARY C. SCHAENGOLD & GHASSAN J. DEEK, Attorneys for Appellant
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HUFFMAN, J.
{¶ 1} Thomas E. Palmer appeals from his convictions, following pleas of guilty, to
vehicular assault, a felony of the fourth degree; possession of cocaine, a felony of the fifth
degree; and operating a motor vehicle under the influence of alcohol (“OVI”), a
misdemeanor of the first degree. The court imposed consecutive prison sentences for
the felonies and a consecutive jail term for the misdemeanor. Palmer argues that the court
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erred in sentencing him to consecutive maximum sentences.
{¶ 2} We conclude that the trial court made the findings necessary under R.C.
2929.14(C)(4) in imposing consecutive sentences for vehicular assault and possession
of cocaine. We cannot conclude that the court’s finding pursuant to R.C.
2929.14(C)(4)(c), namely that Palmer’s history of criminal conduct demonstrated that
consecutive sentences were necessary to protect the public from future crime by him,
was not supported by the record under the clear-and-convincing standard provided by
R.C. 2953.08(G)(2). However, the trial court erred in concluding that Palmer’s six-month
jail sentence for OVI was required to be served consecutively to the prison sentence for
vehicular assault and also in ordering Palmer to serve his jail term prior to his consecutive
prison terms. The trial court also erred in failing to properly impose jail-time credit.
Accordingly, Palmer’s convictions are affirmed in part, reversed in part, and remanded for
resentencing.
I. Factual and Procedural History
{¶ 3} On April 27, 2021, Palmer was indicted for aggravated vehicular assault, a
felony of the second degree, with a specification for driving while under suspension, and
for OVI and possession of cocaine. On July 25, 2022, Palmer entered into a plea
agreement with the State. The aggravated vehicular assault was amended to vehicular
assault, the specification was dismissed, and Palmer pled guilty to vehicular assault, a
fourth-degree felony; he also pled guilty to possession and OVI. The court ordered a
presentence investigation report (“PSI”). On August 18, 2022, the court sentenced
Palmer to prison terms of 18 months for vehicular assault and 12 months for possession,
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and it sentenced him to 6 months in jail for OVI, all of which it ordered to be served
consecutively. The court ordered that Palmer serve the jail sentence prior to serving the
prison terms. The court also imposed a fine of $1,075 and suspended Palmer’s driver’s
license.
II. Arguments and Analysis
{¶ 4} Palmer asserts the following assignment of error:
THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE MAXIMUM POSSIBLE SENTENCES UPON THE THREE
CHARGES TO WHICH HE PLED GUILTY.
{¶ 5} Palmer argues that the court erred in the following three ways: 1) in finding
that Palmer’s history of criminal conduct supported consecutive sentences; 2) in holding
that it was required to impose the OVI sentence consecutively to the vehicular assault
sentence; and 3) in ordering Palmer to serve his misdemeanor jail term prior to his felony
terms.
{¶ 6} The State responds that the “serious physical harm to the victim and
[Palmer’s] repeated OVIs” supported the imposition of consecutive sentences and that
the consecutive sentences should not be disturbed on appeal. The State concedes that
Palmer’s OVI sentence must be served after his prison terms.
{¶ 7} We note that in imposing sentence, it was significant to the court that the
facts of the case were egregious. The court noted that Palmer was “traveling at
excessive speeds, running other vehicles off the roadway, and swerving all over the road,”
and that he “crashed into the rear of the victim’s pickup truck so hard that the rear axle
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was displaced from the vehicle.” The court indicated the victim’s back was broken. It
was also significant to the court that Palmer had two prior OVI convictions, and that he
was driving under suspension and in possession of cocaine. The court noted that
Palmer was originally indicted for a second-degree felony with a maximum penalty of 8
to 12 years in prison.
{¶ 8} At the sentencing hearing and in its judgment entry, the court stated that it
was mandatory that the OVI sentence be served consecutively to the sentence for
vehicular assault. The court found that consecutive sentences were necessary to protect
the public from future crime and punish Palmer. It found that consecutive sentences were
not disproportionate to the seriousness of Palmer’s conduct and to the danger that he
posed to the public, and that his history of criminal conduct demonstrated that consecutive
sentences were necessary to protect the public from future crime by him. The court
noted that Palmer lacked a felony record, and that his only convictions were for traffic
offenses and two prior OVI convictions, but due to the nature of the instant OVI offense,
it gave “great weight” to the prior OVIs. The court found that Palmer’s criminal history
“calls for consecutive sentences.” In its judgment entry, the court found it had discretion
to impose a prison term for the possession offense, pursuant to R.C. 2929.13(B)(1)(b)(ii),
because Palmer had caused serious physical harm to the victim. The court advised
Palmer that he would receive credit for time spent in the Clark County Jail but did not
specify an amount.
{¶ 9} The judgment entry provided: “IT IS HEREBY ORDERED that, for the OVI
offense, the defendant serve six (6) months in the Clark County Jail prior to serving the
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prison terms with jail-time credit from November 23, 2021 to December 16, 2021.” The
court “remanded [Palmer] to the custody of the Clark County Sheriff’s Office” and ordered
that he be “conveyed to ODRC, c/o Orient Correctional Facility, Orient, Ohio after serving
the six (6) month jail sentence.”
{¶ 10} We initially note:
We have said that “a trial court may rely on ‘a broad range of
information’ at sentencing.” State v. Bodkins, 2d Dist. Clark No. 10-CA-38,
2011-Ohio-1274, ¶ 43, quoting State v. Bowser, 186 Ohio App.3d 162,
2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d Dist.). “The evidence the court
may consider is not confined to the evidence that strictly relates to the
conviction offense because the court is no longer concerned * * * with the
narrow issue of guilt.” (Citation omitted.) Bowser at ¶ 14. “Among other
things, a court may consider hearsay evidence, prior arrests, facts
supporting a charge that resulted in an acquittal, and facts related to a
charge that was dismissed under a plea agreement.” (Citation omitted.)
Bodkins at ¶ 43. Even “ ‘[u]nindicted acts * * * can be considered in
sentencing without resulting in error when they are not the sole basis for the
sentence.’ ” State v. Cook, 8th Dist. Cuyahoga No. 87265, 2007-Ohio-625,
¶ 69, quoting State v. Bundy, 7th Dist. Mahoning No. 02 CA 211, 2005-
Ohio-3310, ¶ 86.
State v. McNichols, 2d Dist. Clark No. 2021-CA-52, 2022-Ohio-3076, ¶ 10.
{¶ 11} The Ohio Supreme Court recently discussed consecutive felony sentencing
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at length in State v. Gwynne, Ohio Slip Opinion No. 2022-Ohio-4607, __ N.E.3d __, noting
that “[w]hen a person is sentenced for having committed multiple offenses, the
presumption is that those sentences will be imposed concurrently, not consecutively.
See R.C. 2929.41(A),” but that there are exceptions. Id. at ¶ 10. “For the exception
under R.C. 2929.14(C)(4) to apply and before the court imposes consecutive sentences,
it must make specific findings which are delineated in the statute.” Id. The trial court
must find 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.”
R.C. 2929.14(C)(4). Finally, the court must find at least one of the following: “* * * (c)
The offender's history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.” Id. Gwynne noted
that defendants may appeal consecutive sentences, and that “R.C. 2953.08(G)(2)(a)
states that an appellate court may increase, reduce, or otherwise modify a sentence or
that it may vacate the sentence and remand the case for resentencing when it clearly and
convincingly finds that the record does not support the sentencing court's findings under
R.C. 2929.14(C)(4).” Id. at ¶ 11.
{¶ 12} Gwynne set forth “practical guidance” for consecutive-sentence review,
noting that the first step “is to ensure that the findings under R.C. 2929.14(C)(4) have
been made” as to “necessity and proportionality, as well as the third required finding under
R.C. 2929.14(C)(4)(a), (b), or (c).” Id. at ¶ 25. In the absence of these findings, “the
appellate court must hold that the order of consecutive sentences is contrary to law and
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either modify the sentence or vacate it and remand the case for resentencing. * * *.” Id.
If the court determines that the necessary consecutive-sentence findings were made, it
“may then determine whether the record clearly and convincingly supports those findings.
* * *.” Id. at ¶ 26. If “one of the consecutive-sentence findings is found not to be
supported by the record under the clear-and-convincing standard provided by R.C.
2953.08(G)(2), then the trial court's order of consecutive sentences must be either
modified or vacated by the appellate court. See R.C. 2953.08(G)(2).” Id.
{¶ 13} According to Gwynne, an appellate court’s review of the findings and record
“is de novo with the ultimate inquiry being whether it clearly and convincingly finds—in
other words, has a firm conviction or belief—that the evidence in the record does not
support the consecutive-sentence findings that the trial court made.” Id. at ¶ 27. The
court noted that “the first core requirement is that there be some evidentiary support in
the record for the consecutive-sentence findings that the trial court made.” Id. at ¶ 28.
“The second requirement is that whatever evidentiary basis there is, that it be adequate
to fully support the trial court's consecutive-sentence findings. This requires the
appellate court to focus on both the quantity and quality of the evidence in the record that
either supports or contradicts the consecutive-sentence findings.” Id. at ¶ 29. Under
the de novo standard, an appellate court is “authorized to substitute its judgment for the
trial court's judgment if the appellate court has a firm conviction or belief, after reviewing
the entire record, that the evidence does not support the specific findings made by the
trial court to impose consecutive sentences.” Id.
{¶ 14} The Supreme Court concluded that “R.C. 2929.14(C)(4) requires trial courts
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to consider the overall number of consecutive sentences and the aggregate sentence to
be imposed when making the necessity and proportionality findings required for the
imposition of consecutive sentences.” Id. at ¶ 31. Finally, Gwynne held that “appellate
review of consecutive sentences under R.C. 2953.08(G)(2) does not require deference
to the trial court’s findings under R.C. 2929.14(C)(4).” Id.
{¶ 15} Pursuant to our de novo review of Palmer’s sentences for the felonies, we
conclude that the trial court made the necessary consecutive-sentence findings under
R.C. 2929.14(C)(4). We cannot conclude that the record clearly and convincingly does
not support the findings as they pertain to the court’s order on each count. There was
evidentiary support for the court’s finding that Palmer’s history of criminal conduct
demonstrated that consecutive sentences were necessary to protect the public from
future crime by him. As the trial court noted, and as reflected in the PSI, Palmer had two
prior OVI convictions, one in 2018 and one in 1999. The PSI stated that he also had
almost 20 prior traffic convictions, including speeding, driving under suspension, and
assured clear distance.
{¶ 16} Further, Palmer was initially charged with a felony of the second degree,
with a specification for driving under suspension. The PSI stated that the victim’s back
was “broken in several different places,” that Palmer reported abusing alcohol, marijuana,
and cocaine, and that he had last used those substances on January 23, 2022, the date
of the collision. The PSI stated that at the time of the collision, Palmer and the victim
were both northbound on State Route 571, and Palmer “drove directly into the rear of the
other vehicle” at high rate of speed, displacing the axle. The PSI listed additional
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offenses for which Palmer had been cited, including test refusal with prior OVI, driving
without a valid license, driving under a 12-point license suspension, and assured clear
distance. After reviewing the entire record, and in the absence of a firm conviction or
belief that the evidence did not support the court’s specific finding, pursuant to R.C.
2929.14(C)(4)(c), to impose consecutive sentences, we agree with the State that the
court’s imposition of consecutive sentences for the felonies was appropriate. The
sentences were also within the statutory range.
{¶ 17} Regarding Palmer’s six-month consecutive sentence for OVI, we note that
R.C. 2929.24 governs misdemeanor jail terms and provides that “the court shall impose
a definite jail term that shall be one of the following: (1) For a misdemeanor of the first
degree, not more than one hundred eighty days.”
{¶ 18} R.C. 2929.41 governs multiple sentences. It provides:
(A) * * * 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) * * *
***
(3) A jail term or sentence of imprisonment imposed for a misdemeanor
violation of section * * * 4511.19 of the Revised Code shall be served
consecutively to a prison term that is imposed for a felony violation of
section * * * 2903.08 * * * when the trial court specifies that it is to be served
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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.
(Emphasis added.)
{¶ 19} In State v. Schidecker, 2d Dist. Montgomery No. 26334, 2015-Ohio-1400,
¶ 46, this Court found that the statute “gives the trial court discretion to determine whether
the misdemeanor term should be served consecutively,” and that R.C. 2929.41(B)(3)
“permits, but does not require the trial court to impose consecutive sentences.” Id.{¶ 20} We conclude that the trial court erred in ordering Palmer to serve his jail
term prior to his felony sentences and also in determining, pursuant to R.C.
2929.41(B)(3), that it was required to impose the OVI sentence consecutively to the
vehicular assault sentence. The trial court must reconsider whether the misdemeanor
sentence should run concurrently or consecutively, exercising its discretion in making this
determination.
{¶ 21} Although not raised by the parties, we further note that the trial court failed
to “specify the total number of days” of jail time credit awarded to Palmer, and he was not
given the opportunity to be heard on the issue of jail-time credit. R.C. 2949.08(B); R.C.
2967.191; Ohio Adm.Code 5120-2-04. The court is ordered to give Palmer an
opportunity to be heard on this issue and to file a new judgment entry properly imposing
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the number of days of jail-time credit.
III. Conclusion
{¶ 22} Based upon the foregoing, the judgment of the trial court is affirmed in part,
reversed in part, and remanded for resentencing. With respect to the OVI, the trial court
is ordered to determine whether the jail sentence for that offense should be served
concurrently with or consecutively to the prison sentences imposed on the other offenses.
The trial court is also instructed to give Palmer an opportunity to be heard on the issue of
jail-time credit and to file a judgment entry that reflects the correct number of days of jail
time credit.
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WELBAUM, P.J. and EPLEY, J., concur.