State v. Harper

[Cite as State v. Harper, 2017-Ohio-8963.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-170084
C-170086
Plaintiff-Appellee, : C-170087
TRIAL NOS. B-1505049
vs. : B-1600603
B-1604506
JARRARD HARPER, :

Defandant-Appellant. : O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed in Part and Cause Remanded in
C-170084; Affirmed in C-170086 and C-170087

Date of Judgment Entry on Appeal: December 13, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Brian T. Goldberg, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Judge.

{¶1} In these consolidated appeals, defendant-appellant Jarrard Harper

appeals the sentences entered in three separate cases, but imposed at one sentencing

hearing. The trial court imposed three two-year prison terms resulting from two separate

high-speed chases where Harper had fled from police and imposed a single two-year

prison term for the related violation of a community-control sanction. The trial court

ordered the prison terms to be served consecutively. Because the trial court entered a

prison term outside the statutory range available for Harper’s violation of the prior

community-control sanction, the two-year sentence imposed for attempted tampering

with evidence in the case numbered B-1505049 must be vacated. But because the trial

court was required, by operation of law, to impose the prison terms for Harper’s failure-to-

comply offenses consecutively to the other prison terms imposed, it was not required to

make consecutive-sentencing findings before doing so.

{¶2} Harper’s sentences resulted from three separate incidents. First, in early

2016, Harper entered pleas of guilty to trafficking in heroin, punishable as a third-degree

felony, and attempted tampering with evidence, punishable as a fourth-degree felony, in

the case numbered B-1505049. The trial court accepted his pleas, found him guilty of the

charges, and imposed three-year terms of community control as the sentence for each

offense.

{¶3} Two weeks later, in the second incident, Harper took a vehicle from a Ford

dealer’s car lot. Police pursued Harper in the stolen vehicle at speeds in excess of 110

miles per hour. Harper ultimately abandoned the vehicle and successfully fled on foot.

{¶4} In the third incident, in August 2016, Cincinnati police officers executing a

search warrant in a heroin-trafficking investigation spotted Harper arriving at the scene of

the search in a friend’s vehicle. The officers attempted to take Harper into custody.

2
 OHIO FIRST DISTRICT COURT OF APPEALS

Harper forcefully dragged the driver from her vehicle, commandeered the vehicle, and

again fled from the police at high speed. He was ultimately apprehended.

{¶5} As a result of the two high-speed chases, the Hamilton County Grand Jury

returned two new multicount indictments against Harper. For his actions in the first

chase from the car dealership, Harper was charged in count two of the case numbered B-

1600603 with failure to comply with an order or signal of a police officer while fleeing

from the officer in violation of R.C. 2921.331(B), a felony of the third degree. The

indictment further provided that Harper’s operation of the vehicle had caused a

substantial risk of serious physical harm to persons or property.

{¶6} For his second flight from police, Harper was charged in count four of the

case numbered B-1604506 with having a weapon under a disability, and in count five with

failure to comply with an order or signal of a police officer while fleeing from the officer, in

violation of R.C. 2921.331(B). This count also alleged that, in committing the offense,

Harper’s operation of the vehicle had caused a substantial risk of serious physical harm to

persons or property. Both offenses were punishable as third-degree felony offenses.

{¶7} On January 11, 2017, Harper entered pleas of guilty to the two then-

pending cases, and the state dismissed four other felony charges raised in the two

indictments. Harper also entered a no-contest plea to violating the community-control

sanctions imposed in early January 2016.

{¶8} At a sentencing hearing, the trial court revoked the community-control

sanctions and imposed a two-year prison term for each offense, including the fourth-

degree-felony attempted-tampering offense. The court ordered the two terms to be served

concurrently to each other, but consecutively to the sentences imposed for the new

offenses. For the January high-speed chase, the trial court imposed a two-year prison

term for violating R.C. 2921.331(B), and ordered this term to be served consecutively to

3
 OHIO FIRST DISTRICT COURT OF APPEALS

each prison term imposed in the other two cases. For the August incident, the trial court

imposed two-year prison terms for having a weapon under a disability and for violating

R.C. 2921.331(B). These terms were to be served consecutively to each other and

consecutively to the other prison terms imposed against Harper. The aggregate prison

term was eight years.

{¶9} At the hearing, the trial court detailed Harper’s criminal history, including

his heroin trafficking and flights from police, took note that he had committed these

serious offenses while on community control, and concluded that Harper lacked remorse

or an appreciation of the seriousness of his offenses. It did not refer to the findings

necessary under R.C. 2929.14(C)(4) to impose consecutive sentences. It did, however,

include those findings in its sentencing entries. Harper appealed from each of the three

entries, claiming that the sentences imposed were contrary to law. See R.C. 2953.08(A)(4).

{¶10} In his first assignment of error, Harper challenges the two-year prison

term imposed for Harper’s violation of community control for the attempted-tampering-

with-evidence offense. He argues that the trial court erred by imposing a sentence outside

the statutory range for that offense. The attempted-tampering offense was punishable as a

fourth-degree felony. See R.C. 2923.02(E). Thus, the maximum prison term that the trial

court could have imposed was 18 months. See R.C. 2929.14(A)(4).

{¶11} As the state concedes, the trial court imposed a two-year prison term for

that offense. Since the imposed sentence was outside the permissible statutory range, it

was clearly and convincingly contrary to law. See R.C. 2953.08(G)(2)(b); see also State v.

Andrew, 1st Dist. Hamilton No. C-110141, 2012-Ohio-1731, ¶ 8-10. The first assignment of

error is sustained.

{¶12} In his second assignment of error, Harper asserts that the trial court erred

by imposing consecutive sentences without making the findings required by R.C.

4
 OHIO FIRST DISTRICT COURT OF APPEALS

2929.14(C)(4) at the sentencing hearing. See State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, syllabus. R.C. 2929.14(C)(4) gives trial courts discretion to

impose consecutive sentences under certain circumstances and requires them to engage in

a three-step analysis and to make specific findings before exercising that discretion. See

State v. Alexander, 1st Dist. Hamilton No. C-110828, 2012-Ohio-3349, ¶ 15. When a trial

court imposes consecutive prison terms under R.C. 2929.14(C)(4) without making the

required findings at the sentencing hearing, the court’s sentence is contrary to law. See

State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 119 (1st Dist.).

{¶13} The state does not dispute that the consecutive-sentences-finding

provisions of R.C. 2929.14(C)(4) apply in this case. Rather, it argues that the trial court’s

comments at sentencing concerning Harper’s actions and his lack of remorse were

sufficient to justify the trial court’s decision to impose consecutive sentences. The state

also notes that each of the court’s three sentencing entries contained the mandated

findings.

{¶14} While Harper maintains that the trial court erred to his prejudice by

failing to make the statutorily required findings, he notes that “some courts” have held

that the consecutive-sentence findings are not necessary when a prison term is imposed

for a failure-to-comply conviction. This court is one of them.

{¶15} Fourteen years ago, we held that when a trial court has properly imposed

a prison term for certain felony violations under R.C. 2921.331(B), by operation of law the

term is required to be served consecutively to any other prison terms. State v. Burgin, 1st

Dist. Hamilton No. C-020755, 2003-Ohio-4963, ¶ 10. Since the trial court in Burgin had

no discretion in imposing other than consecutive sentences for certain violations of R.C.

2921.331(B), it was not required to make consecutive-sentencing findings then mandated

by former R.C. 2929.14(E)(4). See id.

5
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} The rationale of Burgin still controls. The consecutive-sentencing

provisions of R.C. 2929.14(C)(4) are inapposite when the trial court is required to impose

consecutive sentences by operation of law under R.C. 2921.331(B). See Burgin at ¶ 10; see

also State v. Back, 2d Dist. Clark No. 2013-CA-62, 2014-Ohio-1656, ¶ 10; State v. Foster,

8th Dist. Cuyahoga No. 98869, 2013-Ohio-2199, ¶ 6; State v. June, 10th Dist. Franklin No.

12AP-901, 2013-Ohio-2775, ¶ 7; State v. Wells, 11th Dist. Ashtabula No. 2013-A-0014,

2013-Ohio-5821, ¶ 32. We note that the sentencing provisions of former R.C.

2929.14(E)(4) at issue in Burgin are identical to those now found in R.C. 2929.14(C)(4).

{¶17} As we noted in Burgin, R.C. 2921.331(B) proscribes operating a motor

vehicle so as to willfully elude or flee a police officer after receiving a visible or audible

signal from a police officer to bring the motor vehicle to a stop. See Burgin at ¶ 10. Under

section (C)(5)(a)(ii) of the statute, an offense is punishable as a third-degree felony if the

operation of the motor vehicle by the offender “caused a substantial risk of serious

physical harm to persons or property.” If an offender has caused that substantial risk of

physical harm “and 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.” (Emphasis added.) R.C. 2921.331(D).

{¶18} R.C. 2929.14(C)(3), not relied upon in Burgin, also requires a trial court to

impose consecutive sentences for violations of R.C. 2921.331(B). It provides that “[i]f a

prison term is imposed for * * * a felony violation of division (B) of section 2921.331 of the

Revised Code, the offender shall serve that prison term consecutively to any other prison

term or mandatory prison term previously or subsequently imposed on the offender.”

(Emphasis added.)

{¶19} Here, Harper entered pleas of guilty to two separate failure-to-comply

offenses in violation of R.C. 2921.331(B). In entering those pleas, he also admitted that his

6
 OHIO FIRST DISTRICT COURT OF APPEALS

operation of the vehicles had caused a substantial risk of serious physical harm to persons

or property. The trial court accepted those pleas, found Harper guilty, and imposed prison

terms for those offenses and for the weapons-under-a-disability offense and the

community-control violation resulting from the attempted-tampering offense. Thus,

Harper was charged with and pled guilty to a violation of R.C. 2921.331(B) and

2921.331(C)(5)(ii). Pursuant to R.C. 2921.331(D) and 2929.14(C)(3), the prison terms

imposed for the failure-to-comply offenses were required, by operation of law, to be served

consecutively to the other prison terms. This is precisely what the trial court did.

{¶20} Since the trial court had no discretion in imposing other than the

challenged prison terms consecutively, it was not required to make consecutive-

sentencing findings under R.C. 2929.14(C)(4). The court’s alleged failure to make the

findings at sentencing could not constitute prejudicial error. Thus, the second assignment

of error is overruled.

{¶21} Because the trial court erred in imposing a sentence outside the statutory

range available for the attempted-tampering-with-evidence offense alleged in count three

of the case numbered B-1505049, challenged in the appeal numbered C-170084, we

vacate that sentence and remand the matter to the sentencing court for resentencing on

that count only. See R.C. 2953.08(G)(2). We affirm in all other respects the remainder of

the trial court’s judgment, along with the judgments entered in the cases numbered B-

1604506 and B-1600603, challenged in the appeals numbered C-170087 and C-170086

respectively.

Judgment accordingly.

M OCK , P.J., and D ETERS , J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

7