[Cite as State v. Oliver, 2010-Ohio-4182.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 09 MA 44
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
WILLIE OLIVER )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2006 CR 516
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. James E. MacDonald
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Louis M. DeFabio
4822 Market Street, Suite 220
Youngstown, Ohio 44506
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: September 3, 2010
WAITE, J.
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{¶1} Appellant, Willie Oliver, Jr. appeals the five year sentence imposed by
the Mahoning County Common Pleas Court at a resentencing hearing held on
February 4, 2009. Appellant was convicted by a jury on one count of receiving stolen
property, a violation of R.C. 2913.51(A)(C), a fourth degree felony, and one count of
failure to comply with the order or signal of a police officer, a violation of R.C.
2921.331(B)(C)(1)(5)(a)(ii), a third degree felony. On resentencing, the trial court
imposed a twelve month sentence for receiving stolen property, and a four year
sentence for failure to comply, to be served consecutively pursuant to statute. R.C.
2921.331(D).
{¶2} Appellant successfully challenged the very same sentence, which the
trial court originally imposed on September 11, 2007 in State v. Oliver, 2008-Ohio-
6371, based on the trial court’s failure to place on the record its consideration of the
factors set forth in R.C. 2921.331.
{¶3} R.C. 2921.331(C)(5) reads, in pertinent part:
{¶4} “(b) If a police officer pursues an offender who is violating division (B) of
this section and division (C)(5)(a) of this section applies, the sentencing court, in
determining the seriousness of an offender’s conduct for purposes of sentencing the
offender for a violation of division (B) of this section, shall consider, along with the
factors set forth in sections 2929.12 and 2929.13 of the Revised Code that are
required to be considered, all of the following:
{¶5} “(i) The duration of the pursuit;
{¶6} “(ii) The distance of the pursuit;
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{¶7} “(iii) The rate of speed at which the offender operated the motor vehicle
during the pursuit;
{¶8} “(iv) Whether the offender failed to stop for traffic lights or stop signs
during the pursuit;
{¶9} “(v) The number of traffic lights or stop signs for which the offender
failed to stop during the pursuit;
{¶10} “(vi) Whether the offender operated the motor vehicle during the pursuit
without lighted lights during a time when lighted lights are required;
{¶11} “(vii) Whether the offender committed a moving violation during the
pursuit;
{¶12} “(viii) The number of moving violations the offender committed during
the pursuit;
{¶13} “(ix) Any other relevant factors indicating that the offender's conduct is
more serious than conduct normally constituting the offense.”
{¶14} In Oliver I, we stated, “[t]hese factors do not need to be expressly
mentioned nor do specific findings as to the factors need to be made, rather, all that
is needed to be shown is that the trial court considered the factors.” (Internal
citations omitted.) Id. at ¶28. As a consequence, the trial court, at the resentencing
hearing, simply stated that it had considered the factors listed in the statute before re-
imposing the original sentence. (2/4/08 Tr., pp. 14-15.)
{¶15} A succinct summary of the trial testimony relevant to this appeal was
provided in Oliver I:
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{¶16} “Sometime after 7:30 p.m. on May 7, 2006, David Townsend’s 1990
maroon Pontiac Bonneville with license plate number DRU6603 was stolen from the
driveway abutting his property on Selma in Youngstown, Ohio. (Tr. 163, 165, 370).
The next morning when he noticed it was gone, he called the Youngstown Police
Department and reported the car stolen.
{¶17} “During the early morning hours of May 8, 2006, Boardman Police were
called to the BP on the corner of South Avenue and Rt. 224. (Tr. 184). The clerk at
the BP called the police about two suspects, a male and female, that had previously
shoplifted at that store. (Tr. 184, 250). The clerk indicated that the two suspects
were driving a 1990 maroon Pontiac with license plate number DRU6603. (Tr. 185-
186). Those two suspects were later identified as Willie Oliver and Alicia Adams.
(Tr. 263).
{¶18} “The officer did not see the suspects or the car when he checked the
BP, however, he did notice them leaving Doral Drive. He proceeded to follow them to
I-680. When the vehicle entered the I-680 on ramp, the officer activated his
overhead lights. (Tr. 187). At that point the Bonneville accelerated, left the road a
couple of times, fishtailed and almost crashed. (Tr. 188). The officer testified that he
ended the pursuit because of the danger to the driver and passenger and any other
vehicles on the road. (Tr. 189, 210).” Oliver I at ¶2-4.
{¶19} In his first assignment of error, Appellant contends that the trial court
abused its discretion when it imposed a four year sentence for failure to comply with
the order or signal of a police officer, and that the sentence itself was contrary to law.
In his supplemental assignment of error, Appellant contends that the trial court
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violated his right to due process when it failed to address his claim that the
presentence report contained an error, that is, that Appellant had been convicted of
attempted murder. For the following reasons, the judgment of the trial court is
affirmed.
ASSIGNMENT OF ERROR NO. 1
{¶20} “THE TRIAL COURT’S SENTENCE OF FOUR (4) YEARS OF
IMPRISONMENT WAS CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF
DISCRETION.”
{¶21} We review felony sentences using two standards of review. We must
determine whether the sentence is contrary to law and whether it constitutes an
abuse of discretion. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State
v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. A sentence is clearly and
convincingly contrary to law when the sentencing court does not comply 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. An abuse of
discretion may occur if the sentencing court unreasonably or arbitrarily weighs the
factors in R.C. 2929.11 and R.C. 2929.12. Gratz at ¶8, citing Kalish at ¶17.
{¶22} For a felony of the third degree, the minimum sentence is one year and
the maximum sentence is five years. The overriding purposes of felony sentencing
are to protect the public from future crime by the offender and others and to punish
the offender. R.C. 2929.11(A). To achieve these purposes, the sentencing court must
consider the need for: incapacitating the offender; deterring the offender and others
from future crime; rehabilitating the offender; and making restitution. Id. A sentence
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must be commensurate with and not demeaning to the seriousness of the offender's
conduct and its impact upon the victim. R.C. 2929.11(B).
{¶23} 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
but must consider whether any seriousness and recidivism factors listed in R.C.
2929.12 are relevant. R.C. 2929.12(A). In addition, the trial court may consider any
other factors that are relevant to achieving those purposes and principles of
sentencing. Id.
{¶24} Turning to Appellant’s challenges to the sentence imposed in this case,
he first argues that the trial court failed to articulate any consideration of the statutory
factors at all. Therefore, he claims, the sentence is contrary to law. In the
alternative, he argues that “if the trial court’s rote recitation that it considered the
seriousness factors suffices,” the sentence imposed constitutes an abuse of
discretion. (Appellant’s Brf., p. 13).
{¶25} The trial court in this case did not mention any of the factors listed in
R.C. 2929.12 at the sentencing hearing, but did state that it considered the factors in
the statute, as well as the principles and purposes of sentencing listed in R.C.
2929.11, in imposing the four year sentence. (2/4/09 Tr., p. 13.) In State v. Arnett
(2000), 88 Ohio St.3d 208, 724 N.E.2d 793, the Supreme Court held that, “the
sentencing judge could have satisfied her duty under R.C. 2929.12 with nothing more
than a rote recitation that she had considered the applicable [factors].” Id. at 215.
Consequently, the sentence cannot be found to be contrary to law for the reasons
argued by Appellant.
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{¶26} Next, Appellant contends that none of the aggravating factors listed in
R.C. 2929.12 were present in this case, while the existence of a mitigating factor
listed in the statute should have resulted in a lesser sentence. Specifically, Appellant
argues that he did not cause or expect to cause any physical harm to any person or
property. Thus, the sole applicable consideration listed in R.C. 2929.12 is a
mitigating factor. Based on Appellant’s lengthy criminal history, and the fact that he
was on parole at the time of the offense due to a 1995 conviction for robbery, he
does concede that the recidivism factors favor a longer sentence.
{¶27} With respect to the factors listed in R.C. 2921.331(C)(5)(b), Appellant
argues on appeal, as he did before the trial court, that the facts established at trial
demonstrate, “the least serious form of failure to comply that could exist.”
(Appellant’s Brf., p. 9.) He claims that the duration and distance of the pursuit were
very short, and the rate of speed was minimal. He did not fail to stop at street lights
and his headlights were on during the brief pursuit.
{¶28} Appellant further argues that the court abused its discretion in imposing
a four year sentence based on sentences previously imposed by Ohio courts for
more egregious violations of the statute. For instance, the Eighth District Court of
Appeals affirmed a four year sentence in State v. Jones, 8th Dist. No. 477530, 2008-
Ohio-802, ¶17, where the defendant ran stop signs while leading police on a 90 mph
chase through an active school zone. Another defendant who led police on a two
mile chase at speeds reaching 120 mph through a busy construction zone on
Interstate 71 received a 17 month sentence. See State v. Battle, 8th Dist. No. 82503,
2003-Ohio-4951, at ¶3-5.
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{¶29} Appellant’s abuse of discretion argument is premised on the fact that
the pursuit in this case was, “at best, seconds long.” (Appellant’s Brf., p. 9.)
However, his argument ignores the fact that the brief duration and length of the
pursuit resulted not from Appellant’s compliance, but was due to the officer’s decision
to terminate pursuit because of his concerns for the public safety. Appellant should
not reap the benefit at sentencing of the fact that the officer chose to terminate his
pursuit.
{¶30} Moreover, in the case sub judice, during the limited time that the officer
pursued Appellant, Appellant’s car “accelerated, left the road a couple of times,
fishtailed and almost crashed. (Tr. 188).” Oliver I at ¶4. Although the chase was
brief, the trial testimony established that Appellant recklessly operated his car in a
particularly dangerous area of the road; the on-ramp of a highway.
{¶31} In addition to Appellant’s reckless conduct during the commission of the
crime, his trial counsel conceded that, even without the attempted murder charge
erroneously included in his pre-sentence investigation report, see infra, Appellant had
a lengthy criminal history. Moreover, Appellant was on parole when he committed
the crimes at issue in this appeal. Therefore, the trial court did not abuse its
discretion in imposing a four year sentence.
{¶32} Because Appellant’s sentence is not contrary to law and does not
constitute an abuse of discretion on the part of the trial court, Appellant’s first
assignment of error is overruled.
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SUPPLEMENTAL ASSIGNMENT OF ERROR
{¶33} “THE TRIAL COURT ERRED, PURSUANT TO OHIO REVISED CODE
§2951.03(B)(5), BY IMPOSING A SENTENCE WITHOUT MAKING A FINDING
AFTER THE DEFENDANT MADE SPECIFIC OBJECTIONS TO AN ALLEGED,
PRIOR CONVICTION IN THE PRE-SENTENCE REPORT. FURTHER, THE
APPELLANT WAS DENIED DUE PROCESS OF LAW AT THE SENTENCING
HEARING.”
{¶34} At the original sentencing hearing, the state recommended the
maximum sentence. The state relied upon Appellant’s criminal record, arguing:
{¶35} “[B]ased upon the pre-sentence investigation,* * *[Appellant] has been
convicted of 15 different offenses. Four of those were felonies, including one for
attempted murder. [Appellant] served a seven-year period on this attempted murder
charge, which may even indicate that his record would be worse if he was out during
that period.” (9/11/07 Tr., p. 3.)
{¶36} Appellant’s trial counsel objected to the content of the presentence
report, stating that Appellant was never convicted of attempted murder. According to
his trial counsel, Appellant has a common name, which he shares with both his father
and his son, who have both been convicted of a number of crimes, and one other
Willie Oliver, who his trial counsel had represented in Youngstown Municipal Court.
Trial counsel explained that, “[b]ecause of that, some of this has bled across into the
PSI.” (9/11/07 Tr. p., 7.) However, even without the erroneous information, trial
counsel conceded that Appellant had “a lengthy record.” (9/11/07 Tr. p., 6.)
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{¶37} The trial court held a resentencing in the matter. At the resentencing
hearing, Appellant was represented by new counsel. His counsel told the trial court
that, “[t]he state indicated that [Appellant] had been convicted of attempted murder at
the last sentencing. That absolutely is not true.” (2/4/09 Tr., p. 11.) Trial counsel
did, however, proceed to describe the crimes Appellant actually committed:
{¶38} “[Appellant] was convicted of a robbery, an aggravated felony two, in
Trumbull County in 1995. It is a pre-Senate Bill 2 robbery, so that’s why it’s an agg
[sic] felony two. It was an indefinite sentence, which was three to 15 years, which
was the minimum, and he had a firearm specification. He basically has served about
ten years of that sentence because he’s serving part of that sentence now on a
parole violation based on this case. He has a felony receiving stolen property from
Judge Durkin’s [sic] that I believe arose some time in 2004, and he has these cases.
So there certainly is a criminal record there; however, I think when you’re doing this
balancing test, * * * recidivism certainly is more likely than not * * * *” (2/4/09 Tr., p.
11.)
{¶39} The record reflects that in addition to the crimes listed by his trial
counsel, Appellant has previous convictions for assault, drug abuse, drug
possession, theft, carrying a concealed weapon, and mishandling a firearm in a
motor vehicle. Appellant does not argue that he was not convicted of these crimes.
Based on Appellant’s criminal history, his counsel conceded at the resentencing
hearing that “recidivism certainly is more likely than not,” and that Appellant, “hasn’t
responded favorably to rehabilitative efforts in the past.” (2/4/09 Tr., pp. 10-11.)
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{¶40} On appeal, the trial court could not locate the PSI for our review. As a
consequence, the Adult Parole Authority faxed an unsigned copy to the Clerks’
Office. In the report, which contained a “follow-up date” of September 12, 2007,
there is no attempted murder conviction listed. It is not clear from the record whether
the trial court relied on the amended PSI in the resentencing hearing.
{¶41} R.C. 2951.03(B) reads, in pertinent part:
{¶42} “(5) 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:
{¶43} “(a) Make a finding as to the allegation;
{¶44} “(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.”
{¶45} Interpreting R.C. 2951.03(B), appellate courts in Ohio have recognized
that a failure to make the requisite findings pursuant to the statute is harmless error if
the record reflects that none of the trial court’s findings or considerations would be
affected by the alleged inaccuracies in the report. State v. Caudill, 5th Dist. 06 COA
42, 2007-Ohio-6175, ¶21-22, State v. Platz, 4th Dist. No. 01 CA33, 2002-Ohio-6149,
at ¶18, State v. Roby, 11th Dist. No. 2001-A-0029, 2003-Ohio-603, ¶53.
{¶46} The facts in this case are similar to the facts presented in State v. Elder,
8th Dist. No. 80677, 2002-Ohio-3797. In Elder, the Eighth District Court of Appeals
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determined that, “the trial court never addressed the presentence investigation report
other than to state that it had reviewed it prior to the sentencing hearing.
Furthermore, it never mentioned Elder's prior criminal record in imposing the
sentence. Accordingly, we find that the trial court's failure to make the requisite
findings pursuant to R.C. 2951.03(B)(5) was harmless error.” Id. at ¶56. The same
could be said, here, except that the record does not indicate whether the trial court
received a PSI at resentencing.
{¶47} Because the record does not reflect that the trial court relied on an
erroneous conviction, which appears to have been mistakenly included in the original
PSI, in imposing sentence at Appellant’s resentencing, Appellant’s supplemental
assignment of error is also overruled and the trial court’s decision is affirmed in total.
Donofrio, J., concurs.
DeGenaro, J., concurs.
State v. Oliver
Combined Opinion