[Cite as State v. Fridley, 2017-Ohio-4368.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-05-030
: OPINION
- vs - 6/19/2017
:
BARRY A. FRIDLEY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2014CR0694
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Kura, Wilford & Schredgardus Co., L.P.A., Sarah M. Schregardus, 492 City Park Avenue,
Columbus, Ohio 43215 and D. Timothy Huey, 1985 West Henderson Road, Suite 204, Upper
Arlington, Ohio 43220, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Barry Fridley, appeals his conviction and sentence in the
Clermont County Court of Common Pleas. For the reasons outlined below, we affirm in part,
reverse in part and remand this matter to the trial court for the limited purpose of issuing a
nunc pro tunc sentencing entry.
{¶ 2} On November 19, 2014, appellant was driving northbound on State Route 132
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when he failed to negotiate a curve and drove left-of-center, causing him to strike and kill the
oncoming driver. The passenger of that vehicle also sustained serious injuries.
{¶ 3} Emergency medical personnel responded to the scene. Initially, appellant did
not appear to be breathing and was "unarousable" until emergency personnel applied a
sternal rub. While appellant was still at the scene of the collision, but while he was receiving
care in an ambulance, Trooper Disbennett made contact with appellant. Trooper Disbennett
noted a strong odor of an alcoholic beverage on appellant's person. When questioned about
whether he had consumed any alcohol that day, appellant replied "not enough."
{¶ 4} Appellant was ultimately transported by helicopter to the University of Cincinnati
Hospital. At the hospital, Nurse Megan Heck drew appellant's blood at approximately 6:00
p.m., one hour after the wreck. Nurse Heck testified that she used the hospital's standard kit
to prepare the site and draw the blood. Nurse Heck further explained that she prepared the
blood samples in accordance with hospital policies and procedures and she testified about
those procedures. The results from the initial blood test revealed that appellant's blood
alcohol content was .239.
{¶ 5} While the crash scene was still being processed and appellant was receiving
medical care, a search warrant was authorized for appellant's medical records and any blood
samples taken by the hospital. Additionally, the warrant included a request for a separate
blood draw to be done at the request of the Ohio State Highway Patrol.
{¶ 6} The clinical nursing supervisor, Marlene Parker, accompanied three state
troopers to appellant's hospital room. Nurse Parker advised that appellant was lucid, but
may have a lacerated liver. No other injuries were specified to Trooper Disbennett. When
Trooper Disbennett entered appellant's hospital room, he asked appellant if he remembered
what had happened and if he had anything to drink that day. Appellant responded that he
had no memory of the crash and stated that he had consumed two beers. Later, appellant
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stated that he had consumed "two vodkas." Trooper Disbennett then read the search
warrant and Nurse Parker performed the blood draw. The blood draw, taken approximately
four hours after the collision, revealed that appellant's blood alcohol content was .139.
{¶ 7} Following the blood draw, Trooper Disbennett proceeded to administer the
horizontal gaze nystagmus (HGN) test while appellant was seated and partially reclined in his
hospital bed. Trooper Disbennett testified that appellant displayed four of six clues of
intoxication.
{¶ 8} Appellant was indicted for one count of aggravated vehicular manslaughter, one
count of aggravated vehicular assault, one count of vehicular assault, two counts of operating
a vehicle under the influence, and one count for failure to control. Appellant moved to
suppress evidence of the HGN test, evidence of the blood tests, and statements made to
police. Following a suppression hearing, the trial court granted portions of appellant's motion
to suppress, but denied the request relating to the errors addressed in this opinion.
{¶ 9} On October 27, 2015, appellant pled no contest to aggravated vehicular
homicide in violation of R.C. 2903.06, a second-degree felony, and aggravated vehicular
assault in violation of R.C. 2903.08, a third-degree felony. The trial court imposed a five-year
prison term for aggravated vehicular homicide and a two-year prison term on the aggravated
vehicular assault to be served consecutively for an aggregate prison term of seven years.
Appellant now appeals the decision of the trial court, raising three assignments of error for
review.
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO
SUPPRESS (10/7/2015 DECISION/ENTRY).
{¶ 12} In his first assignment of error, appellant argues the trial court erred by denying
his motion to suppress. Appellant separately challenges the admissibility of the HGN test,
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the blood tests, and certain statements made to Trooper Disbennett. We address each issue
in turn, but find his arguments lack merit.
{¶ 13} Appellate review of a trial court's decision to grant or deny a motion to
suppress is a mixed question of law and fact. State v. Bell, 12th Dist. Clermont No. CA2008-
05-044, 2009-Ohio-2335, ¶ 8. Acting as the trier of fact, the trial court is in the best position
to resolve factual questions and evaluate witness credibility. State v. Harsh, 12th Dist.
Madison No. CA2013-07-025, 2014-Ohio-251, ¶ 9. Therefore, when reviewing the denial of a
motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if
they are supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No.
CA2013-03-023, 2013-Ohio-4764, ¶ 14. "An appellate court, however, independently
reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard." Id.
Admissibility of HGN test
{¶ 14} Appellant challenges the admissibility of the HGN test administered by Trooper
Disbennett. Specifically, appellant claims (1) Trooper Disbennett was trained on an earlier
NHTSA manual and not the manual in effect at the time of the HGN test, (2) it was improper
to conduct the HGN test while in a reclined hospital bed, (3) the HGN test was unreliable
because hospital personnel had treated him with narcotics, namely, fentanyl and dilaudid,
and (4) he was suffering from a head injury when the HGN test was administered.
{¶ 15} In order for field sobriety testing evidence to be admissible, the state is not
required to show strict compliance with testing standards, but must instead demonstrate that
the officer substantially complied with NHTSA standards. R.C. 4511.19(D)(4)(b); State v.
Selvage, 12th Dist. Clermont No. CA2011-08-058, 2012-Ohio-2149, ¶ 12. "A determination
of whether the facts satisfy the substantial compliance standard is made on a case-by-case
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basis." State v. Fink, 12th Dist. Warren Nos. CA2008-10-118 and CA2008-10-119, 2009-
Ohio-3538, ¶ 26.
{¶ 16} As stated by the Ohio Supreme Court, "HGN test results are admissible in
Ohio without expert testimony so long as the proper foundation has been shown both as to
the administering officer's training and ability to administer the test and as to the actual
technique used by the officer in administering the test." State v. Boczar, 113 Ohio St.3d 148,
2007-Ohio-1251, ¶ 28. In this case, Trooper Disbennett testified about his training and
experience in the administration of HGN testing and the technique used in the administration
of the test. Immediately following the blood draw, Trooper Disbennett spoke with appellant in
his hospital room. Trooper Disbennett explained that he asked appellant if he had suffered a
head injury during the accident and appellant denied that he had experienced any such
injury. Trooper Disbennet was aware that appellant possibly suffered a lacerated liver, and
therefore would need to remain in his hospital bed, but was otherwise unaware of any
symptoms of head trauma. Because of appellant's possible lacerated liver, Trooper
Disbennett performed the HGN test while appellant was reclined in his hospital bed. Trooper
Disbennett concluded that appellant displayed four of six clues of intoxication: lack of smooth
pursuit and distinctive nystagmus at maximum deviation in both eyes.
{¶ 17} As to appellant's first argument, it is irrelevant that Trooper Disbennett was
trained on an earlier manual, as the test is whether he substantially complied with NHTSA
standards.
{¶ 18} As to appellant's second argument, the NHTSA standards do not prohibit the
administration of the HGN test while the subject is reclined, or even if the subject was lying
down. Accordingly, the fact that appellant was in a reclined position does not violate NHTSA
or otherwise indicate that the HGN test was not conducted in substantial compliance.
{¶ 19} Appellant's next claim is in response to the medication that he was given prior
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to Trooper Disbennett's arrival, namely the drugs dilaudid and fentanyl. Appellant claims that
Trooper Disbennett incorrectly testified that those drugs have no effect on the results of an
HGN test. In support, appellant cites to secondary sources to support his claim that those
drugs affect horizontal nystagmus. However, contrary to appellant's claims, the NHTSA
manual states that narcotic analgesics, such as fentanyl and dilaudid, do not affect horizontal
nystagmus. Therefore, while appellant may argue otherwise, his claim must fail. Consistent
with NHSTA standards, the consumption of fentanyl and dilaudid did not affect the results of
the HGN test.
{¶ 20} Finally, appellant argues that he was suffering from a serious head injury at the
time that Trooper Disbennett administered the HGN test and therefore the results were
unreliable. However, the record reflects that Trooper Disbennett testified that he observed
no injuries to appellant's head and was not informed of any evidence to the contrary.
Trooper Disbennett was informed that appellant may have suffered a lacerated liver, but was
not informed of head trauma. Furthermore, as provided in the NHTSA manual, Trooper
Disbennett asked appellant a number of preliminary questions, including whether appellant
had suffered any type of head injury, and appellant advised that he had not suffered any
such head injury. Trooper Disbennett testified that he did not notice any other symptoms of a
head injury while conducting the HGN test, such as the presence of incongruent pupil size.
Accordingly, there is no reason to suppress the HGN test based on appellant's assertion that
he suffered a head injury.
{¶ 21} Based on our review, we find that Trooper Disbennett substantially complied
with NHTSA standards when he administered the HGN test. Trooper Disbennett testified
about his training and ability in the administration of the HGN test and the technique used in
administering the test. The results of the test showed that appellant exhibited four of six
clues of intoxication. As addressed above, the arguments raised by appellant on appeal are
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without merit. Therefore, we find the trial court did not error by admitting the results from the
HGN test.
Initial Blood Test
{¶ 22} Appellant next challenges the admissibility of the initial blood test on two
separate grounds. The initial blood draw was performed at the University of Cincinnati
Hospital approximately one hour after the collision. First, appellant claims that he was
deprived of his Sixth Amendment Confrontation rights. Second, appellant claims the test
should have been excluded based on the scientific unreliability of the testing procedure.
{¶ 23} During the suppression hearing, the state presented the testimony of Nurse
Heck, who performed the blood draw, and Bernie Chaffin, a toxicology specialist with the
University of Cincinnati Laboratory. Though Chaffin was familiar with the policies and
procedures done to ensure accuracy of the testing equipment, he was not the technician that
conducted the actual blood testing. That individual was not called as a witness. Appellant
did not object to Chaffin's testimony or make any Confrontation Clause argument at the
suppression hearing.
{¶ 24} Because appellant failed to object to the admission of the blood test on
Confrontation Clause grounds, he has waived the issue for appeal. State v. Brown, 2d Dist.
Montgomery No. 26826, 2016-Ohio-1258, ¶ 14. This court, however, retains discretion to
consider a waived constitutional argument under a plain error analysis. Id. An alleged error
constitutes plain error only if the error is obvious and but for the error, the outcome of the
proceeding clearly would have been different. State v. Morgan, 12th Dist. Butler Nos.
CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 45.
{¶ 25} "The right to confrontation, which includes the right to physically face and
cross-examine witnesses, is not a constitutionally compelled rule of pretrial proceedings."
State v. McKenzie, 10th Dist. Franklin No. 11AP-250, 2011-Ohio-5851, ¶ 8; State v.
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Saunders, 2d Dist. Montgomery No. 22621, 2009-Ohio-1273, ¶ 13. The cases cited by
appellant involve a defendant's right to confront witnesses at trial, not at the suppression
hearing. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004); Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009); Bullcoming v. New Mexico, 564 U.S.
647, 131 S.Ct. 2705 (2011). Because the suppression hearing was a pretrial proceeding, the
state was not required to present the technician that placed the blood in the testing
equipment. Therefore, appellant was not deprived of his constitutional right to confront a
witness.
{¶ 26} Appellant also argues that the evidence should have been suppressed based
on an alleged lack of scientific reliability. Based on a previous decision of this court, we find
the evidence was admissible. State v. Davenport, 12th Dist. No. CA2008-04-011, 2009-
Ohio-557. In Davenport, this court held that R.C. 4511.19 allows admission of blood tested
by hospitals, even if such a test does not comply with the Ohio Administrative Code, in
circumstances where a defendant was transported to the hospital after an accident and
underwent a non-forensic, medical blood test. Id. at ¶ 16; State v. Persinger, 3d Dist. Marion
No. 9-15-10, 2016-Ohio-858, ¶ 18 (agreeing with Davenport and holding that arguments
pursuant to R.C. 4511.19[D][1][b] are not applicable to prosecutions for certain offenses
where the results of alcohol blood tests are taken and analyzed by a health care provider).
The plain language of R.C. 4511.19(D)(1)(a) permits "any test of any blood" to be introduced
with expert testimony and considered with any relevant and competent evidence to determine
the guilt or innocence of offenses including aggravated vehicular homicide, so long as the
blood was withdrawn and analyzed at a "health care provider" as defined by R.C. 2317.12.
Id.; State v. Carr, 11th Dist. Lake No. 2012-L-001, 2013-Ohio-737, ¶ 65.
{¶ 27} There is no dispute that appellant had his blood drawn at the University of
Cincinnati Hospital, a "health care provider" as defined by the Revised Code. The state
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called the nurse who withdrew the blood to testify about policies and procedures for drawing
blood. The state also introduced the testimony of the toxicology specialist at the University of
Cincinnati Laboratory who tested the blood. The toxicologist testified how all testing was
done pursuant to policies and procedures that were identified in the testimony.
{¶ 28} We find the trial court did not err by admitting the evidence from the initial
blood draw. The blood draw was performed by a health care provider and was supported by
testimony that was competent evidence to determine appellant's guilt or innocence.
Appellant also cites Evid.R. 702 and alleges that there was no documentation provided as to
the accuracy of the testing method. However, the Supreme Court has previously reviewed
similar arguments and held that R.C. 4511.19 provides the appropriate standard for
admissibility and is not inconsistent with Evid.R. 702 or in contravention of Section 5, Article
IV of the Ohio Constitution. State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 16, 28;
State v. James, 5th Dist. Muskingum No. CT2015-0059, 2016-Ohio-7660, ¶ 33 ("the rules of
evidence do not strictly apply at suppression hearings"). In conclusion, the initial blood test
was not subject to suppression.
Second Blood Test
{¶ 29} Appellant also challenges the admissibility of the second blood draw
performed as a result of the search warrant. Because this sample was analyzed by a crime
lab, and not a healthcare provider, our analysis is different than above. As previously noted,
the results of the second blood test showed that appellant had a blood alcohol level of .139.
{¶ 30} The Director of Health promulgated certain regulations in Ohio Adm.Code
3701-53-01 through 3701-53-10 for testing the concentration of alcohol or drugs of abuse
found in an individual's blood, breath, or urine. State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, ¶ 9-10. When a defendant challenges the validity of a blood test by way of a
pretrial motion to suppress, "the state has the burden to show that the test was administered
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in substantial compliance with the regulations prescribed by the Director of Health" to trigger
the presumption of admissibility. Burnside at ¶ 24, 27. The substantial-compliance standard
excuses minor procedural deviations. State v. Schuster, 12th Dist. Butler No. CA2016-05-
097, 2017-Ohio-4115, ¶ 34. "Once the state has satisfied this burden and created a
presumption of admissibility, the burden then shifts to the defendant to rebut that
presumption by demonstrating that he was prejudiced by anything less than strict
compliance." Id.
{¶ 31} We first address appellant's claim that the blood draw was taken outside the
permissible time frame set forth in R.C. 4511.19. The Ohio Supreme Court has previously
held that a blood sample taken outside of the three-hour time frame set out in R.C.
4511.19(D) may still be admissible to prove that the person was under the influence of
alcohol, provided the administrative requirements of R.C. 4511.19(D) are substantially
complied with. State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, ¶ 2.
{¶ 32} The state demonstrated substantial compliance with Ohio Adm.Code 3701-53-
01 through 3701-53-10 with the testimony of Nurse Parker, Trooper Disbennett, and Chaffin.
Nurse Parker testified that that she used a nonalcoholic Betadine or Iodine swab on
appellant's skin before a sterile, dry needle was used to withdraw blood into the tubes, which
contained a preservative. The tubes contained labels with the date and time of collection,
appellant's name, and Nurse Parker's signature who collected the blood and sealed the
containers. Thereafter, Trooper Disbennett took custody of the blood vials and returned to
the Batavia Patrol Post to package the evidence. Trooper Disbennett then testified that he
placed the evidence in transit in compliance with policy and procedures.1 Reports from the
1. Appellant separately argues that the blood specimens were not refrigerated in violation of Ohio Adm.Code
3701-53-05(F). However, the refrigeration requirement expressly states that it is inapplicable when the sample is
in transit or under examination. Here, the blood sample was not required to be refrigerated while in transit to the
crime lab.
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crime lab indicate that the tests were confirmed by gas chromatography.
{¶ 33} In conclusion, while the blood was taken approximately four hours after the
collision, the record nevertheless establishes substantial compliance with the Revised Code
and Administrative Code. Therefore, the second blood test done pursuant to the search
warrant was admissible and appellant's argument is without merit.
Statements
{¶ 34} Finally, appellant argues the trial court erred by denying his request to
suppress statements made to police officers while he was receiving care in the hospital.
Trooper Disbennett testified that he visited appellant in the hospital and executed the search
warrant for appellant's blood. While there, Trooper Disbennett again asked appellant if he
had been drinking and appellant stated that he had consumed two beers coming back from
his business trip. After several more questions, Trooper Disbennett again asked appellant if
he had been drinking and appellant stated that he had consumed two vodkas. Trooper
Disbennett testified that he did not read appellant his Miranda rights because he was not
under arrest.
{¶ 35} "It is well-established that before law enforcement officials question a suspect
in custody, the suspect must be advised of his Miranda rights and make a knowing and
intelligent waiver of those rights before any statements obtained during the interrogation will
be admissible as evidence." State v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-
068, 2012-Ohio-3754, ¶ 8. However, the duty to advise a suspect of constitutional rights
pursuant to Miranda is only required when the police subject a person to custodial
interrogation. State v. Byrne, 12th Dist. Butler Nos. CA2007-11-268 and CA2007-11-269,
2008-Ohio-4311, ¶ 10.
{¶ 36} "Miranda defines custodial interrogation as any 'questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his
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freedom of action in any significant way.'" State v. Vansickle, 12th Dist. Fayette No. CA2013-
03-005, 2014-Ohio-1324, ¶ 54, quoting State v. Matthews, 12th Dist. Butler No. CA2012-09-
175, 2013-Ohio-3482, ¶ 10. In determining whether an individual was in custody during an
interrogation, the court must examine the totality of the circumstances surrounding the
interrogation. State v. Robinson, 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶
12. A person is in custody if he is formally placed under arrest prior to a police interrogation,
or, if not formally arrested, when there is a significant restraint on his freedom of movement.
Id. This determination "depends on the objective circumstances of the interrogation, not on
the subjective views harbored by either the interrogating officers or the person being
questioned." State v. Henry, 12th Dist. Preble No. CA2008-04-006, 2009-Ohio-434, ¶ 13.
Therefore, "[i]n judging whether an individual has been placed into custody the test is
whether, under the totality of the circumstances, a 'reasonable person would have believed
that he was not free to leave.'" Robinson at ¶ 12, quoting State v. Gumm, 73 Ohio St.3d 413,
429 (1995).
{¶ 37} Appellant argues that his statements to Trooper Disbennett should be
suppressed because "[c]learly under these circumstances, when an individual has just been
presented with a search warrant, forcibly had his blood drawn, physically cannot leave the
room and is surrounded by three police officers, a reasonable person would believe they
were under arrest." The trial court disagreed with appellant and found:
Later, when the defendant was in the hospital room, Officer
Disbennett again asked the defendant if he had been drinking.
An analysis of whether an individual is in custody for purposes of
Miranda focuses on whether a reasonable person under the
circumstances would believe he was under arrest. Both the
subjective intent of the [officer] as well as the subjective belief of
the suspect are irrelevant in this analysis. Ohio courts have
found police questioning of individuals in the hospital, at times, to
be custodial in nature.
In the present case, Defendant Fridley was hospitalized because
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of injuries that he had incurred as a result of an automobile
accident that he caused. His freedom of movement was
restrained by his injury and an IV connection, not police conduct.
Officer Disbennett had not placed the defendant under arrest
and there was no officer posted at the defendant's door. Under
these circumstances, Defendant Fridley was not in custody and,
thus, the officer's questions did not occur during a custodial
interrogation. Accordingly, Officer Disbennett did not have a duty
to advise Defendant Fridley of his privilege against self-
incrimination pursuant to Miranda v. Arizona. Thus, the
statements made by the defendant to Officer Disbennett while
the defendant was in his hospital room will not be suppressed.
(Citations omitted.)
Based on our review, we find the record contains competent, credible evidence in support of
the trial court's factual findings. Trooper Disbennett testified that appellant was not restrained
during the interview and was cooperative throughout the process. Appellant was not
restrained by handcuffs or any action by the state. Appellant was restrained only by an IV
connection placed into his arm by hospital staff for medical purposes. There is no evidence
that appellant was threatened in any way or coerced to make any statements to police. In
fact, following the blood draw Trooper Disbennett testified:
Okay. So after we did the blood draw that's when I spoke to Mr.
Fridley about the crash, what had happened. I then did HGN – I
actually – he – he asked me a few times what had happened, I
didn't tell him at first, because I didn't know if he was stable
enough to hear the news, so I went out and spoke to his nurse,
and she said if he wants to hear it you can tell him, and then
that's when I advised Mr. Fridley what had occurred that night.
While there are some instances in which the questioning of a defendant at a hospital may
amount to a custodial interrogation, we simply find that the evidence presented here supports
the trial court's findings. State v. Smith, 2d Dist. Miami No. 95-CA-17, 1996 Ohio App. LEXIS
1851, *13 (May 10, 1996); State v. Feaster, 9th Dist. Summit No. 24367, 2009-Ohio-2558, ¶
20. Appellant's interview did not take place in a lockdown environment and the nursing staff
was still able to attend to appellant's medical needs during the interview. There was no
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indication that appellant was uncomfortable during the interview, or that his responses were a
function of any coercion that he felt as a result of police presence. The testimony by Trooper
Disbennett indicates that appellant voluntarily spoke with him and had genuine questions
about the incident. Accordingly, we find the trial court did not err by denying appellant's
motion to suppress statements made to Trooper Disbennett while in the hospital.
Conclusion
{¶ 38} Having reviewed all of appellant's arguments in support of his motion to
suppress, we find his arguments to be without merit. Accordingly, appellant's first
assignment of error is without merit and hereby overruled.
{¶ 39} Assignment of Error No. 2:
{¶ 40} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF MR. FRIDLEY'S RIGHTS UNDER THE SIXTH, AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16,
ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 41} In his second assignment of error, appellant argues that his trial counsel was
ineffective for failing to raise the issues detailed in his first assignment of error. We disagree.
{¶ 42} To prevail on an ineffective assistance of counsel claim, an appellant must
establish (1) that his trial counsel's performance was deficient; and (2) that such deficiency
prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Failure of one prong of the
Strickland test is fatal to any claim of ineffective assistance of counsel. State v. Clarke, 12th
Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49. In the context of a plea, prejudice
will not be found unless a defendant demonstrates there is a reasonable probability that, if
not for counsel's errors, he would not have entered a plea. State v. Tribune, 12th Dist.
Warren No. CA2016-04-027, 2017-Ohio-1407, ¶ 7.
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{¶ 43} As addressed in appellant's first assignment of error, the evidence that
appellant sought to suppress was admissible. Counsel cannot be ineffective for failing to
object to admissible evidence. State v. Spradlin, 12th Dist. Clermont No. CA2016-05-026,
2017-Ohio-630, ¶ 89. Accordingly, we find that appellant did not receive ineffective
assistance of counsel. Appellant's second assignment of error is overruled.
{¶ 44} Assignment of Error No. 3:
{¶ 45} THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE REQUISITE
FINDINGS TO IMPOSE CONSECUTIVE SENTENCES UNDER R.C. 2929.14(C)(4).
{¶ 46} In his third assignment of error, appellant argues the trial court erred by
sentencing him to consecutive prison terms, alleging the record does not support the
imposition of consecutive sentences and his sentence is contrary to law. We disagree, but
nevertheless reverse in part and remand this matter to the trial court for the limited purpose
of issuing a nunc pro tunc sentencing entry.
{¶ 47} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Dillon,
12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find
that the consecutive sentence is necessary to protect the public from future crime or to
punish the offender. R.C. 2929.14(C)(4). Second, the trial court must find that consecutive
sentences are not disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public. Id. Third, the trial court must find that one of the
following applies:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
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of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c)The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 48} "A trial court satisfies the statutory requirement of making the required findings
when the record reflects that the court engaged in the required analysis and selected the
appropriate statutory criteria." State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and
CA2013-06-050, 2014-Ohio-2340, ¶ 113. In imposing consecutive sentences, the trial court
is not required to provide a word-for-word recitation of the language of the statute or
articulate reasons supporting its findings. Id. Nevertheless, the record must reflect that the
trial court engaged in the required sentencing analysis and made the requisite findings. Id.
The court's findings must thereafter be incorporated into its sentencing entry. State v. Ahlers,
12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 10.
{¶ 49} Here, the record reflects that the trial court made the findings required by R.C.
2929.14(C)(4) when it ordered appellant's sentences be served consecutively. Specifically,
the trial court made extensive remarks concerning the case and then explicitly stated:
The Court finds that consecutive service of sentence -- of a
prison sentence in this case -- the prison sentences are
necessary to protect the public from future crime or to punish the
offender. The consecutive sentences are not disproportionate to
the seriousness of his conduct and to the danger he poses to the
public, and the Court finds that the harm caused by his acts were
so great or unusual that no single prison term for any of the
offenses committed as part of the course of conduct adequately
reflects the seriousness of his conduct.
{¶ 50} Though appellant suggests otherwise, it is clear that the trial court complied
with the dictates of R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
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317, ¶ 37; State v. Sess, 12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560, ¶ 35-38. It
is also clear that the record supports the trial court's findings that the harm caused by
appellant's offenses was so great or unusual that no single prison term adequately reflected
the seriousness of his conduct and that consecutive sentences were necessary to punish
appellant and protect the public.
{¶ 51} Nevertheless, and as conceded by the state, the trial court erred by failing to
incorporate its statutory findings at the hearing into the judgment entry of conviction. State v.
Lung, 12th Dist. Clermont No. CA2014-12-081, 2015-Ohio-3833, ¶ 19-20 (remanding matter
to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry to reflect
the trial court's statutory findings under R.C. 2929.14[C][4]). However, as noted by the Ohio
Supreme Court, "[a] trial court's inadvertent failure to incorporate the statutory findings in the
sentencing entry after properly making those findings at the sentencing hearing does not
render the sentence contrary to law." Bonnell at ¶ 30. Instead, "such a clerical mistake may
be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in
open court." Id.
{¶ 52} To that end, although we find no error in the trial court's decision to impose
consecutive sentences in this matter, we sustain appellant's third assignment of error as it
relates to the trial court's failure to incorporate the consecutive sentence findings it made at
the sentencing hearing into its sentencing entry. Therefore, we remand this matter to the trial
court for the limited purpose of issuing a nunc pro tunc sentencing entry to reflect the trial
court's statutory findings under R.C. 2929.14(C)(4). "Such an administrative correction does
not necessitate a new sentencing hearing." Lung at ¶ 20. The trial court's decision to
impose consecutive sentences in all other respects is affirmed.
{¶ 53} Judgment affirmed in part, reversed in part and remanded to the trial court for
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the limited purpose of issuing a nunc pro tunc sentencing entry.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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State v. Fridley
Court: Ohio Court of Appeals
Date filed: 2017-06-19
Citations: 2017 Ohio 4368, 93 N.E.3d 10
Copy CitationsCombined Opinion