[Cite as State v. Jeffery, 2011-Ohio-2654.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 10 CA 120
TONY A. JEFFERY
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 09 CR 558H
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 1, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES J. MAYER, JR. JOHN C. O'DONNELL, III
PROSECUTING ATTORNEY 13 Park Avenue West
BAMBI COUCH PAGE Suite 300
ASSISTANT PROSECUTOR Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 10 CA 120 2
Wise, J.
{¶1} Appellant State of Ohio appeals the decision of the Court of Common
Pleas, Richland County, sentencing Appellee Tony A. Jeffery on one count of failure to
comply with an order or signal of a police officer. The relevant facts leading to this
appeal are as follows.
{¶2} On July 20, 2009, an Ontario, Ohio, police officer engaged in a high-speed
pursuit of a pickup truck driven by appellee. The truck crashed into a pole, and appellee
was thereupon apprehended. The pickup was discovered to have been reported stolen
in Obetz, Ohio.
{¶3} On November 25, 2009, appellee appeared before the court on a final pre-
trial on a charge of failure to comply with an order or signal of a police officer, R.C.
2921.331(B)/(C)(5)(a)(i) and (ii), a third-degree felony. Appellee and the State agreed
that an additional felony charge against appellee, receiving stolen property, would be
dismissed upon appellee’s plea. It was also agreed that appellee would receive a prison
sentence, with the trial court to determine the length of the sentence from the possible
ranges of one to five years. The matter was set for a change of plea hearing on
December 16, 2009.
{¶4} Appellee failed to appear for his change of plea hearing. In the meantime,
in separate cases, the Delaware County Court of Common Pleas sentenced appellee
on April 7, 2010 to sixteen months in prison for receiving stolen property, and the
Franklin County Court of Common Pleas sentenced appellee on a burglary conviction,
resulting in a conveyance to prison on July 21, 2010.
Richland County, Case No. 10 CA 120 3
{¶5} Appellee was thereafter located and brought before the court on August 4,
2010. He entered a guilty plea on the charge of failure to comply with an order or signal
of a police officer, and was sentenced to one year in prison, to be served concurrently
with his other two out-of-county sentences.
{¶6} On October 13, 2010, the State filed a notice of appeal. It herein raises the
following sole Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED BY FAILING TO IMPOSE A
CONSECUTIVE PRISON TERM FOR FAILURE TO COMPLY WITH AN ORDER OR
SIGNAL OF A POLICE OFFICER PURSUANT TO OHIO REVISED CODE SECTION
2921.331(D).
I.
{¶8} In its sole Assignment of Error, Appellant State of Ohio contends the trial
court committed reversible error by failing to impose upon appellee a statutorily-
mandated consecutive sentence. We agree.
{¶9} R.C. 2921.331(B) states as follows: “No person shall operate a motor
vehicle so as willfully to elude or flee a police officer after receiving a visible or audible
signal from a police officer to bring the person's motor vehicle to a stop.”
{¶10} R.C. 2921.331(C)(4) further states that a violation of division (B) is a
felony of the fourth degree if the trier of fact finds the offender was fleeing immediately
after the commission of a felony, while R.C. 2921.331(C)(5)(a) further states that a
violation of division (B) is a felony of the third degree depending on the nature of cause
or risk of physical harm to persons or property.
Richland County, Case No. 10 CA 120 4
{¶11} Finally, R.C. 2921.331(D) contains the following sentencing provision
regarding certain convictions for failure to comply with the order of a police officer: “If an
offender is sentenced pursuant to division (C)(4) or (5) of this section for a violation of
division (B) of this section, and if the offender is sentenced to a prison term for that
violation, the offender shall serve the prison term consecutively to any other prison term
or mandatory prison term imposed upon the offender.”
{¶12} In the case sub judice, the trial court determined that it was impermissible
to sentence appellee consecutive to the prior sentences he had received in Delaware
and Franklin Counties, as indicated by the following discussion with the attorneys:
{¶13} “MS. COUCH-PAGE: Your Honor, I don’t think concurrent time - - he’s
eligible for concurrent time on a fleeing and eluding.
{¶14} “THE COURT: I can’t hear you.
{¶15} “MS. COUCH-PAGE: I said I don’t think fleeing and eluding allows for
concurrent time by statute.
{¶16} “THE COURT: Well, the time he’s doing now is for something that
happened afterwards.
{¶17} “MS. COUCH-PAGE: Right. But it’s a situation that fleeing and eluding
can’t be concurrent time by statute.
{¶18} “MR. HITCHMAN: This offense we’re here for today occurred obviously
before the other two offenses.
{¶19} “THE DEFENDANT: July 17th of last year.
{¶20} “THE COURT: How can I sentence him to consecutive time for events
that happened afterwards?
Richland County, Case No. 10 CA 120 5
{¶21} “MS. COUCH-PAGE: The events happened after this case.
{¶22} “THE COURT: Yeah.
{¶23} “MS. COUCH-PAGE: Yeah.
{¶24} “THE COURT: I think it would be up to the judge on those cases whether
or not it’s concurrent or consecutive. I don’t believe I can sentence him consecutive
after the fact.
{¶25} “MS. COUCH-PAGE: The fact that he wasn’t available here, Your Honor,
I don’t know where he’s been for - - this happened last July. This - - all the
negotiations have been ongoing. And then he - - we’re now into July of 2010.
{¶26} “THE COURT: What did the Court say in Franklin County about
concurrent or consecutive? Did they say anything?
{¶27} “MR. HITCHMAN: No, they didn’t say anything.
{¶28} “* * *
{¶29} “MR. HITCHMAN: The good news is he has no other cases pending.
{¶30} “THE COURT: All you legalese, somebody has to know the answer. Can
I sentence him consecutive to something that happened afterwards? I don’t think so.
{¶31} “MS COUCH-PAGE: Your Honor, it requires under the statute fleeing and
eluding be consecutive time. It doesn’t matter who sentenced him first.
{¶32} “THE COURT: Well - -
{¶33} “MS. COUCH-PAGE: Because of the fact that - -
{¶34} “THE COURT: Where is that in the law?
{¶35} “MS. COUCH-PAGE: I’ll get it for you. I imagine we’re not sentencing him
today anyway, so I will get it for you.
Richland County, Case No. 10 CA 120 6
{¶36} “MR. HITCHMAN: We were anticipating being sentenced because he’s in
Noble County.
{¶37} “THE DEFENDANT: I am four hours away from here.
{¶38} “MS. COUCH-PAGE: What was indicated in the file back in November of
2009 is that we were to recommend a prison sentence. Brent Robinson, I would suggest
two years based upon the facts.
{¶39} “THE COURT: I wrote down one year release. That’s what was agreed
to.
{¶40} “MS. COUCH-PAGE: Well, skip past Mr. Jeffery and I’ll get you where it
says in the statutes about consecutive time on fleeing and eluding.
{¶41} “THE COURT: Show me where it says it has to be consecutive to time that
happened afterwards. I know it says consecutive to things that happened before. No
question about it. I don’t think it’s constitutional. I don’t think it’s legal to sentence
somebody retroactively to something consecutive.” Tr., Sentencing Hearing, at 13-16.
{¶42} We first note that R.C. 2929.41(B)(2) reads as follows: “If a court of this
state imposes a prison term upon the offender for the commission of a felony and a
court of another state or the United States also has imposed a prison term upon the
offender for the commission of a felony, the court of this state may order that the
offender serve the prison term it imposes consecutively to any prison term imposed
upon the offender by the court of another state or the United States.”
{¶43} The General Assembly has thus clearly generally allowed Ohio felony
prison terms to be consecutive to prison terms imposed in other state courts or in the
Richland County, Case No. 10 CA 120 7
federal courts. However, it must be conceded that R.C. 2929.41(B)(2) is silent where, as
here, a defendant has been sentenced in other cases and/or counties in Ohio.
{¶44} Nonetheless, several Ohio appellate cases have generally approved
“other case” or “prior case” consecutive sentences. For example, in State v. Clark,
Hamilton App.No. C-010532, 2002-Ohio-3135, a defendant challenged his consecutive
sentences following pleas of guilty to charges of robbery, receiving stolen property,
forgery, and failure to comply with the order of a police officer. Id. at ¶2 - ¶ 3. Said
charges were spread out over three separate Hamilton County Common Pleas trial
case numbers. Id. The trial court nonetheless ordered that Clark’s five-year prison term
for robbery (trial case no. B 0101787) and two-year prison term for failing to comply
(trial case no. B 0102417) were to be served consecutively. Id. at ¶ 4. The First District
Court, recognizing the requirements of R.C. 2929.14(E)(3) and R.C. 2921.331(B), found
the imposition of consecutive sentences was not contrary to law and was supported by
the record. Id. at ¶ 14.
{¶45} The case of State v Spicer, Cuyahoga App.Nos. 92384, 92385, 2010-
Ohio-61, is also instructive. In that case, the Eighth District Court of Appeals held as
follows in the defendant’s challenge to his consecutive sentences: “Although the statute
does not specifically state whether it was meant to apply to instances where a
defendant is being sentenced on two or more separate cases, we find that, pursuant to
R.C. 2921.331(D), a term of imprisonment for failure to comply must run consecutive to
that of any other term of imprisonment, no matter if the sentence is being imposed in the
same or different case.” Id. at ¶ 19, citing State v. Velasquez, Cuyahoga App. Nos.
85135 and 85136, 2005-Ohio-3021, ¶ 2.
Richland County, Case No. 10 CA 120 8
{¶46} Finally, in State v Mooney, Stark App.No. 2005CA00072, 2005-Ohio-5655,
the defendant, Mooney, pled guilty to one count of failure to comply with the order of a
police officer under Stark County Common Pleas case number 2004CR1488. On the
same day, a jury found Mooney guilty of possession of cocaine under Stark County
Common Pleas case number 2004CR2030. Following a sentencing hearing, Mooney
was sentenced to three years in prison for possession of cocaine, to be served
consecutively with the two-year sentence appellant was separately receiving for failure
to comply with the order of a police officer in case 2004CR1488.
{¶47} Mooney appealed in the cocaine possession case, case number
2004CR0030. He challenged (pre-Foster) the imposition of the three-year sentence for
cocaine possession consecutive to the two-year sentence for failure to comply with the
order of a police officer in the other common pleas case. In affirming the trial court, we
recited R.C. 2921.331(D), supra, and concluded that a remand “would be futile because
the trial court's imposition of mandatory consecutive sentences as to appellant's two
convictions is statutorily valid regardless of further compliance with R.C. 2929.14(E)(4)
in his present cocaine possession case.” Id. at ¶ 26.
{¶48} Therefore, based on the foregoing case law guidance, we find merit in the
State’s argument that R.C. 2921.331(D) mandates a sentence consecutive to appellee’s
prior sentences from Delaware and Franklin Counties, even if the crimes appellee
committed in those counties post-dated his acts leading to the failure to comply offense
in the present case. The State’s sole Assignment of Error is sustained.
Richland County, Case No. 10 CA 120 9
{¶49} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Richland County, Ohio, is hereby reversed and remanded, for further
proceedings consistent with this opinion.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0517
Richland County, Case No. 10 CA 120 10
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
TONY A. JEFFERY :
:
Defendant-Appellee : Case No. 10 CA 120
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and
remanded for further proceedings consistent with this opinion.
Costs assessed to appellee.
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JUDGES