State v. Arthurs ( 2021 )

[Cite as State v. Arthurs, 2021-Ohio-3296.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. W. Scott Gwin, J.
-vs- :
: Case No. 21CA0002
:
PAUL ARTHURS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 20-CR-00436
JUDGMENT: REVERSED, SENTENCE VACATED,
AND REMANDED FOR
RESENTENCING
DATE OF JUDGMENT ENTRY: September 20, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES MICHAEL S. COX JR.
LICKING CO. PROSECUTOR BURKETT & SANDERSON, INC.
PAULA M. SAWYERS 73 North 6th St.
20 S. Second St., Fourth Floor Newark, OH 43055
Newark, OH 43055
Licking County, Case No. 21CA0002 2
Delaney, J.
{¶1} Appellant Paul Arthurs appeals from the November 12, 2020 Judgment of
Conviction of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from appellee’s bill of particulars filed
September 30, 2020.
{¶3} On February 21, 2020, the Heath Police Department responded to a
burglary alarm at the Fastenal store on Hebron Road in Licking County, Ohio. Upon
arrival, officers found the exterior door had been forced open and someone had removed
power tools from within the store. Video surveillance was retrieved which showed a white
male in a Pittsburgh Steelers jacket in the store. That individual had been driving an
extended cab two-wheel drive truck, which appeared to be a Ford F150, and was seen
entering the business and forcing entry into a locked storage locker and stealing multiple
power tools. Officers located a discarded tire iron which had been used by the person to
force entry into the business.
{¶4} On April 16, 2020, the Heath Police Department was notified there was a
CODIS hit on the tire iron identifying appellant. Confirmatory testing was completed, and
the appellant was identified as the contributor on the tire iron. Appellant was Mirandized
and interviewed, and admitted committing these offenses, as well as multiple other
offenses in various other jurisdictions.
{¶5} Appellant was charged by indictment with one count of safecracking
pursuant to R.C. 2911.31(A), a felony of the fourth degree [Count I], and one count of
breaking and entering pursuant to R.C. 2911.13(A), a felony of the fifth degree [Count 2].
Licking County, Case No. 21CA0002 3
{¶6} On November 12, 2020, appellant appeared before the trial court and
changed his previously-entered plea of not guilty to one of guilty upon Count II, breaking
and entering. Appellee moved to dismiss Count I in exchange for the guilty plea and the
motion was granted. The trial court accepted appellant’s guilty plea and ordered a pre-
sentence investigation (P.S.I.). Appellant supplemented the record of the instant appeal
with a sealed copy of the P.S.I.
{¶7} The matter proceeded to sentencing on December 18, 2020. Defense trial
counsel argued appellant was a Targeted Community Alternatives to Prison (“TCAP”)
offender pursuant to R.C. 2929.34. The trial court disagreed, found appellant was not a
TCAP offender, and imposed a prison term of 8 months upon Count II.
{¶8} Appellant now appeals from the trial court’s Judgment of Sentence filed
December 18, 2020.
{¶9} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶10} “THE TRIAL COURT COMMITTED HARMFUL ERROR IN FINDING THAT
AT THE TIME OF SENTENCING THE DEFENDANT-APPELLANT WAS NOT AN
ELIGIBLE TARGETED COMMUNITY ALTERNATIVES TO PRISON (“TCAP”)
OFFENDER.”
ANALYSIS
{¶11} Appellant argues the trial court erred in finding he was not an eligible TCAP
offender. We agree to the extent that the trial court must review the alleged factual errors
in the PSI and make the findings required by R.C. 2951.03(B)(5).
Licking County, Case No. 21CA0002 4
{¶12} 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.
Specifically, R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce,
modify, or vacate a sentence and remand for resentencing if it clearly and convincingly
finds 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. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 28.
{¶13} 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.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
“Where the degree of proof required to sustain an issue must be clear and convincing, a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St.
at 477.
{¶14} Appellant argues he is a TCAP-eligible offender. R.C. 2929.34(B)(3)(c)
governs TCAP and provides that on and after July 1, 2018, no person sentenced by the
court of common pleas of a voluntary county to a prison term for a felony of the fifth degree
shall serve the prison term in an institution under the control of the Ohio Department of
Rehabilitation and Correction (“ODRC”), but shall instead serve the sentence as a term
of confinement in a local facility such as a county jail or community-based correctional
facility (“CBCF”). See R.C. 2929.34(C) and (D).
Licking County, Case No. 21CA0002 5
{¶15} An offender’s criminal history is relevant to TCAP eligibility. R.C.
2929.34(B)(3)(d)(ii) provides that a defendant who has been previously convicted of a
felony offense of violence as defined by R.C. 2901.01 is ineligible for TCAP's mandated
imprisonment at a non-ODRC facility. The parties agree that appellant has a 2005
conviction for burglary in Ross County pursuant to R.C. 2911.12. R.C. 2901.01(A)(9)
defines an “offense of violence” in pertinent part as a violation “of division (A)(1), (2), or
(3) of section 2911.12.”
{¶16} The current version of R.C. 2911.12, burglary, states the following:
(A) No person, by force, stealth, or deception, shall do any of
the following:
(1) Trespass in an occupied structure or in a separately
secured or separately occupied portion of an occupied structure,
when another person other than an accomplice of the offender is
present, with purpose to commit in the structure or in the separately
secured or separately occupied portion of the structure any criminal
offense;
(2) Trespass in an occupied structure or in a separately
secured or separately occupied portion of an occupied structure that
is a permanent or temporary habitation of any person when any
person other than an accomplice of the offender is present or likely
to be present, with purpose to commit in the habitation any criminal
offense;
Licking County, Case No. 21CA0002 6
(3) Trespass in an occupied structure or in a separately
secured or separately occupied portion of an occupied structure, with
purpose to commit in the structure or separately secured or
separately occupied portion of the structure any criminal offense.
(B) No person, by force, stealth, or deception, shall trespass
in a permanent or temporary habitation of any person when any
person other than an accomplice of the offender is present or likely
to be present.
* * * *.
(D) Whoever violates division (A) of this section is guilty of
burglary. A violation of division (A)(1) or (2) of this section is a felony
of the second degree. A violation of division (A)(3) of this section is
a felony of the third degree.
(E) Whoever violates division (B) of this section is guilty of
trespass in a habitation when a person is present or likely to be
present, a felony of the fourth degree.
{¶17} Pursuant to the current version of R.C. 2911.12, an offense under
subsections (A)(1), (2), and (3) is an “offense of violence,” but an offense under
subsection (B) is not. Currently, a violation of subsection (B), trespass in a habitation
when a person is present or likely to be present, is not an “offense of violence” pursuant
to R.C. 2901.01(A)(9). Trespass in a habitation is a felony of the fourth degree.
{¶18} Appellant’s PSI states that he was convicted of burglary, a felony of the
second degree, in the 2005 case. The PSI further states “This is not a TCAP case due
Licking County, Case No. 21CA0002 7
to a prior felony Burglary Conviction.” Appellant was convicted under a prior version of
the burglary statute which did not include the “trespass into a habitation” fourth-degree
felony version of the current R.C. 2911.12(B). Appellant argues, however, that he was
convicted of the nonviolent-offense version of the statute in 2005.
{¶19} At the sentencing hearing, appellant argued the 2005 burglary offense was
amended to a fourth-degree felony from a second-degree felony and was not an “offense
of violence.” This statement contradicts the information in the PSI, supra, which indicated
appellant’s burglary conviction was a felony of the second degree. The trial court did not
explicitly address appellant’s argument, but instead cited appellant’s lengthy (nonviolent-
offense) felony criminal history in addition to numerous pending cases in other
jurisdictions, and found appellant was not amenable to a community-control sanction or
probation.
{¶20} On appeal, appellant attached copies of Exhibits B-1 and B-2 to his brief.
Exhibit B-1 is the 2005 indictment indicating appellant was indicted upon a felony of the
fourth degree as follows:
* * * *.
That Paul E. Arthurs, on or about the 9th day of June, 2005,
in the County of Ross aforesaid did by force, stealth, or deception
trespass in a permanent or temporary habitation of another when any
person other than an accomplice of the offender was present or likely
to be present, in violation of R.C. 2911.12 of the Ohio Revised Code,
and against the peace and dignity of the State of Ohio.
* * * *.
Licking County, Case No. 21CA0002 8
{¶21} Exhibit B-2 is a 2005 Judgment Entry of Sentence which does not state that
the burglary offense was amended or what degree of offense appellant was convicted of;
he was sentenced to a prison term of six months.
{¶22} Taken at face value, appellant’s exhibits reference only “R.C. 2911.12,” a
felony of the fourth degree, and appear to indicate appellant was indicted upon a statute
analogous to the present version of trespass in a habitation pursuant to R.C. 2911.12(B),
which is by definition not an offense of violence. Again, taken purely at face value, the
exhibits contradict the information contained in the PSI in the instant case about the 2005
burglary.
{¶23} It is not evident to us, though, that the trial court had appellant’s Exhibits B-
1 and B-2 before it at the sentencing hearing. Those documents are therefore outside
the record. The trial court did have the PSI stating the 2005 conviction was a second-
degree felony and rendered appellant ineligible for TCAP. Adding to the procedural
dilemma in this case, appellant did not raise this issue explicitly as an error in the PSI.
Defense trial counsel had the opportunity to review the PSI and referred to it several times
at the sentencing hearing. Defense trial counsel did assert that in 2005 appellant was
ultimately convicted of a fourth-degree felony analogous to trespass in a habitation which
is arguably not an offense of violence. The trial court implicitly rejected appellant’s
argument in referring to his lengthy criminal record and current pending felonies in finding
he is not eligible for a community control sanction.
{¶24} The central issue of this case therefore rests upon an alleged error of fact
in the PSI. R.C. 2951.03(5) addresses alleged factual errors in PSIs and states:
Licking County, Case No. 21CA0002 9
If the comments of the defendant or the defendant's counsel,
the testimony they introduce, or any of the other information they
introduce alleges any factual inaccuracy in the presentence
investigation report or the summary of the report, the court shall do
either of the following with respect to each alleged factual inaccuracy:
(a) Make a finding as to the allegation;
(b) Make a determination that no finding is necessary with
respect to the allegation, because the factual matter will not be taken
into account in the sentencing of the defendant.
{¶25} In the instant case, the trial court did not make the findings required by R.C.
2951.03(B)(5), an understandable omission because appellant has imperfectly raised this
issue. Appellant did not explicitly allege an error in the PSI, below or upon appeal.
Appellant made a blanket objection to the trial court’s implicit decision that appellant was
not TCAP-eligible. It is not evident that appellant presented Exhibits B-1 and B-2 to the
trial court to corroborate appellant’s argument. The burden of proof regarding any
inaccuracy is on the defendant who alleges that the report is inaccurate. State v. Sims,
184 Ohio App.3d 741, 2009-Ohio-5751, 922 N.E.2d 298, ¶ 20 (2nd Dist).
{¶26} The trial court did not explicitly make a finding regarding appellant’s
argument about the nonviolent prior burglary offense, nor did it state that no finding was
necessary because the matter would not be taken into account. Rather, the trial court did
not address the argument and was silent on the matter. See, State v. Latronica, 7th Dist.
Mahoning No. 13 MA 164, 2014-Ohio-3685, ¶ 13. Failure to make the requisite findings
may be harmless error, as we have previously found, “if the record reflects that none of
Licking County, Case No. 21CA0002 10
the trial court's findings or considerations would be affected in the least by the alleged
inaccuracies in the report.” State v. Williamson, 5th Dist. Richland No. 04 CA 75, 2005-
Ohio-3524, ¶ 25, citing State v. Platz, 4th Dist. Washington No. 01CA33, 2002-Ohio-6149,
¶ 18, internal citations omitted; see also, State v. Caudill, 5th Dist. Ashland No. 06COA42,
2007-Ohio-6175, ¶ 21.
{¶27} “If the error appears on the record and the trial court clearly does not comply
with the statute, then the error will not be harmless error unless the record clearly shows
that the trial court did not consider the inaccuracy or the record reflect that there are
substantial other factors supported in the record that clearly outweighs the inaccuracy.”
State v. Latronica, supra, 2014-Ohio-3685 at ¶ 17. In the instant case, as we have
detailed, the error appears on the record very opaquely, but nonetheless we cannot find
that the trial court did not take the inaccuracy into account, or that other factors supported
in the record outweigh this inaccuracy.
{¶28} In the instant case, appellant is not TCAP-eligible solely because of the
2005 burglary. It is true that appellant has a voluminous criminal history of nonviolent
felonies, and that he has pending felonies in other jurisdictions related to the investigation
of the instant case. Nevertheless, appellant’s TCAP eligibility hinges on this one prior
offense. Appellee argues the error is harmless because TCAP merely governs where
appellant’s “prison term” may be spent, but in fact R.C. 2929.34(B)(3)(c) mandates that
an eligible offender may not be sent to “prison” at all and must serve his or her sentence
in a local jail or CBCF. Despite all of the procedural flaws, this alleged error in the PSI
makes a difference to appellant’s sentence and we are unable to find harmless error.
Licking County, Case No. 21CA0002 11
{¶29} The instant case is similar to Latronica, supra, in its effect. In that case, the
Seventh District Court of Appeals found that the trial court’s failure to comply with R.C.
2951.03(B)(5) was not harmless:
The problem here is that there is nothing in the record that
would lead to the conclusion that the trial court did not consider the
inaccuracy. The trial court stated without qualification that it
considered the PSI and made no finding under R .C. 2951.03(B)(5)
regarding the alleged inaccuracy. There are no others statements
from the trial court that suggest that it did not consider the inaccuracy
or that it concluded that the PSI was inaccurate. Therefore, based on
the record before us, it cannot be concluded that the failure to comply
with R.C. 2951.03(B)(5) was harmless in this instance; it is not clear
that the trial court would impose a 36–month sentence if the
inaccuracy was not considered.
That said, nothing in this opinion should be read in a manner
that draws the conclusion that we are of the opinion that the 36–
month sentence was not warranted. We were not asked to review
whether the trial court abused its discretion in issuing the sentence it
did. We are solely asked to decide if the trial court complied with R.C.
2951.03(B)(5), and if it did not, was the error harmless. As stated
above, we find that there was no compliance and the error was not
harmless.
Licking County, Case No. 21CA0002 12
State v. Latronica, 7th Dist. Mahoning No. 13 MA 164, 2014-
Ohio-3685, ¶ 24.
{¶30} We similarly do not suggest that appellant’s 8-month sentence was not
warranted under the unique facts of this case. However, because appellant has raised
the issue, however imperfectly, that there is an error in the PSI and he is in fact TCAP-
eligible, we must remand this matter to the trial court for consideration of the R.C.
2951.03(B)(5) factors. The trial court should be given the opportunity to evaluate the
evidence, determine whether the statements in the PSI are in error, and weigh appellant’s
TCAP eligibility.
{¶31} Appellant’s sole assignment of error is sustained. The sentence is vacated
and the matter is remanded for resentencing.
CONCLUSION
{¶32} The sentence is reversed and the matter is remanded for a new sentencing
hearing. Upon remand, the trial court is instructed to comply with R.C. 2951.03(B)(5).
By: Delaney, J.,
Baldwin, P.J. and
Gwin, J., concur.