State v. Irwin

[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.
 -2-

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
 -3-

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-
 -4-

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
 -5-

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
 -6-

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
 -7-

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
 -8-

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.
 -9-

{¶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.
 -10-

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
 -11-

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
 -12-

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
 -13-

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.