State v. Harrigan

[Cite as State v. Harrigan, 2018-Ohio-3836.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

DONALD WAYNE HARRIGAN,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 17 BE 0025.

Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 17 CR 5.

BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:
Affirmed in Part/Reversed in Part. Sentence modified.

Atty. J. Flanagan, Chief Assistant Prosecutor, Courthouse Annex 1, 147-A West Main
Street, St. Clairsville, Ohio 43950 for Plaintiff-Appellee, and

Atty. Jeremy Masters, Assistant Public Defender, Office of the Ohio Public Defender,
250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for Defendant-Appellant.
Dated:
September 21, 2018
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Donofrio, J.

{¶1} Defendant-appellant, Donald Harrigan, appeals from a Belmont County
Common Pleas Court judgment sentencing him to a total of 132 years in prison after a
jury convicted him of robbery, four counts of kidnapping, and eight repeat-violent
offender specifications.
{¶2} This matter stems from the robbery of Tom’s Carryout on December 6,
2016. On that day, a man in a blue and tan ski mask entered the store, pointed a gun at
the clerks, and demanded money. The man also waived the gun at four customers and
told them to move out of his way. The clerks gave the man money and he left.
{¶3} Within minutes, police found appellant nearby with a ski mask by his feet
that matched the description given by one of the clerks. As police were walking
appellant to the police cruiser, a pistol fell from his clothing. The pistol turned out to be
a non-working replica. Police also found $1,305 in cash in appellant’s pockets.
{¶4} On February 2, 2017, a Belmont County Grand Jury indicted appellant on
one count of robbery, a second-degree felony in violation of R.C. 2911.02(A)(2), and
four counts of kidnapping, first-degree felonies in violation of R.C. 2905.01(A)(2). In
addition, attached to each of the five counts were two repeat violent offender (RVO)
specifications pursuant to R.C. 2941.149. The first RVO specification attached to each
count stated that appellant was a repeat violent offender due to his previous conviction
for felonious assault in case number 84-CR-105. The second RVO specification
attached to each count stated that appellant was a repeat violent offender due to his
previous conviction for felonious assault in case number 96-CR-191.
{¶5} The matter proceeded to a jury trial. The jury returned guilty verdicts on
all counts. The trial court subsequently sentenced appellant to eight years on the
robbery count and eleven years on each of the four kidnapping counts to be served
consecutively for a total of 52 years in prison. Additionally, the court sentenced
appellant to ten years on each of the eight RVO specifications accompanying the
kidnapping counts (two specifications on each of the four counts) to be served
consecutive to each other and consecutive to the other sentences. The court found

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appellant was not subject to an RVO specification on the robbery count. Thus, the trial
court imposed a 132-year total sentence on appellant.
{¶6} Appellant filed a timely notice of appeal on June 7, 2017. He now raises
two assignments of error.
{¶7} Appellant’s first assignment of error states:

THE TRIAL COURT ERRED WHEN IT SENTENCED MR.
HARRIGAN TO MULTIPLE, CONSECUTIVE REPEAT VIOLENT
OFFENDER SPECIFICATION SENTENCES ATTACHED TO
INDIVIDUAL COUNTS BASED ON MULTIPLE PREVIOUS
CONVICTIONS FOR QUALIFYING FELONIES.

{¶8} R.C. 2929.01(CC) defines a “repeat violent offender” as a person about
whom both of the following apply:

(1) The person is being sentenced for committing or for complicity in
committing any of the following:

(a) Aggravated murder, murder, any felony of the first or second degree
that is an offense of violence, or an attempt to commit any of these
offenses if the attempt is a felony of the first or second degree;

***

(2) The person previously was convicted of or pleaded guilty to an offense
described in division (CC)(1)(a) or (b) of this section.

{¶9} Appellant argues that the trial court was without authority to sentence him
on two RVO specifications per count of kidnapping. Appellant asserts that nothing in
R.C. 2929.14(B)(2)(a), which governs the imposition of RVO specifications, describes or
authorizes the imposition of multiple RVO specifications for a single underlying offense
based on the number of qualifying convictions. Thus, he contends one RVO
specification sentence per kidnapping count (four specifications in all) is contrary to law
and must be vacated.

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{¶10} Plaintiff-appellee, the State of Ohio, relies on State v. Krug, 11th Dist. No.
2008-L-085, 2009-Ohio-3815. In that case, after the merger of two felonious assault
counts with two other counts, Krug was ultimately convicted of two counts of felonious
assault and one count of carrying concealed weapons. Each of the felonious assault
convictions carried a single RVO specification. The trial court sentenced Krug to eight
years on each of the felonious assault counts and 18 months for the carrying a
concealed weapon count, to be served consecutively. The court then imposed an
additional prison term of ten years for the RVO specification on the first felonious
assault count and another ten-year term for the RVO specification on the second
felonious assault count. The sentences for the RVO specifications were to run
consecutive to each other and to the sentences for the underlying offenses. Thus,
Krug’s total prison term was 37 years. Krug appealed.
{¶11} On appeal, Krug challenged the trial court's imposition of the two
consecutive ten-year prison terms for the RVO specifications on various grounds.
Relevant to the case at bar, Krug argued the sentencing statute does not authorize
multiple consecutive terms for the same prior offenses. Id. at ¶ 173. The court found
that while the statute “only authorizes a single prison term for each RVO specification,
nothing in the statute limits the number of specifications when, as in the instant case,
the offender is charged with multiple counts of underlying offenses.” Id. at ¶ 174.
{¶12} The state now urges us to apply Krug to uphold appellant’s sentence in
this case.
{¶13} Krug, however, is distinguishable. Krug was convicted of, and sentenced
for, two counts of felonious assault. Each count of felonious assault carried a single
RVO specification. Thus, the trial court only imposed a single RVO sentence to
accompany each underlying offense. It did not impose multiple RVO sentences to
accompany each offense as is the case here.
{¶14} Moreover, a careful reading of the sentencing statute resolves this issue in
appellant’s favor.
{¶15} R.C. 2929.14(B)(2) addresses sentencing for RVO specifications. It
contains sub-sections for mandatory RVO sentencing (R.C. 2929.14(B)(2)(b)) and
discretionary RVO sentencing (R.C. 2929.14(B)(2)(a)).

Case No. 17 BE 0025
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{¶16} Pursuant to the mandatory provision:

(b) The court shall impose on an offender the longest prison term
authorized or required for the offense and shall impose on the offender an
additional definite prison term of one, two, three, four, five, six, seven,
eight, nine, or ten years if all of the following criteria are met:

(i) The offender is convicted of or pleads guilty to * * * [an RVO
specification].

(ii) The offender within the preceding twenty years has been convicted of
or pleaded guilty to three or more offenses described in division (CC)(1) of
section 2929.01 of the Revised Code, including all offenses described in
that division of which the offender is convicted or to which the offender
pleads guilty in the current prosecution and all offenses described in that
division of which the offender previously has been convicted or to which
the offender previously pleaded guilty, whether prosecuted together or
separately.

(iii) The offense or offenses of which the offender currently is convicted or
to which the offender currently pleads guilty is * * * any felony of the first
degree that is an offense of violence and the court does not impose a
sentence of life imprisonment without parole * * *.

(Emphasis added); R.C. 2929.14(B)(2)(b).
{¶17} Thus, pursuant to the mandatory RVO sub-section, a sentencing court
must impose on an offender “an” additional RVO prison term of one to ten years when
the offender has been convicted of three or more offenses of violence within the
preceding 20 years and the offender has met the additional statutory criteria. For
example, if the offender has been convicted of felonious assault on three separate
occasions in the preceding 20 years and meets the other criteria, the court must
sentence him to “an additional definite prison term of one, two, three, four, five, six,
seven, eight, nine, or ten years.” R.C. 2929.14(B)(2)(b).

Case No. 17 BE 0025
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{¶18} Keeping this in mind, we turn to the discretionary sub-section, which
provides:

(2)(a) If division (B)(2)(b) of this section does not apply, the court may
impose on an offender, in addition to the longest prison term authorized or
required for the offense, an additional definite prison term of one, two,
three, four, five, six, seven, eight, nine, or ten years if all of the following
criteria are met:

(i) The offender is convicted of or pleads guilty to * * * [an RVO
specification].

(ii) The offense of which the offender currently is convicted or to which the
offender currently pleads guilty is * * * any felony of the first degree that is
an offense of violence and the court does not impose a sentence of life
imprisonment without parole * * *.

(iii) The court imposes the longest prison term for the offense that is not
life imprisonment without parole.

(iv) The court finds that the prison terms imposed pursuant to division
(B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or (3) of this
section are inadequate to punish the offender and protect the public from
future crime * * *.

(v) The court finds that the prison terms imposed pursuant to division
(B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or (3) of this
section are demeaning to the seriousness of the offense * * *.

(Emphasis added); R.C. 2929.14(B)(2)(a).
{¶19} Thus, pursuant to the discretionary RVO sub-section, a sentencing court
may impose on an offender “an” additional RVO prison term of one to ten years if the
offender has met the statutory criteria.
{¶20} The use of the word “an” in both sub-sections indicates the Legislature’s
intent to limit an RVO specification sentence to one sentence per new offense.

Case No. 17 BE 0025
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Additionally, it would be unreasonable to assume that a repeat violent offender who had
been convicted of three offenses of violence in the preceding 20 years could only be
sentenced on one RVO specification per new offense while a repeat violent offender
who had been convicted of two offenses of violence could be sentenced on two or more
RVO specifications per new offense.
{¶21} Based on the above, we conclude that the trial court erred in sentencing
appellant to two separate RVO sentences on each of the four kidnapping counts.
Pursuant to R.C. 2929.14(B)(2), the court should have only imposed one RVO
specification sentence for each new offense. Thus, we must vacate four of appellant’s
ten-year RVO specification sentences (eliminating one RVO specification sentence from
each count and leaving one RVO specification sentence on each count). Doing so
reduces appellant’s sentence by 40 years.
{¶22} Accordingly, appellant’s first assignment of error has merit and is
sustained.
{¶23} Appellant’s second assignment of error states:

MR. HARRIGAN’S 132-YEAR SENTENCE FOR A
CONVENIENCE-STORE ROBBERY, WITH A REPLICA PISTOL,
LASTING LESS THAN TWO MINUTES, IS CLEARLY AND
CONVINCINGLY NOT SUPPORTED BY THE RECORD.

{¶24} Here appellant contends that even if we vacate the four, ten-year
sentences on the duplicative RVO specifications, the remaining 92 year-sentence is
nonetheless not supported by the record. He points out that he was convicted of
robbing a convenience store with a replica pistol. He claims he merely told the
customers to stand to the side during the robbery and the entire incident lasted only
approximately 90 seconds. He notes that he did not physically harm anyone. He
argues this was not the worst form of the offense as the trial court found.
{¶25} Appellant argues that none of the statutory “more serious” factors apply
here. And he states that one of the “less serious” factors does apply, that being that he
did not cause or expect to cause physical harm to any person or property. R.C.
2929.12(C)(3). Appellant asserts that the court simply considered his criminal history in

Case No. 17 BE 0025
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meting out his sentence without considering R.C. 2929.12’s more serious and less
serious factors. He further argues that the facts of this case do not support maximum,
consecutive sentences. He claims that, prior to trial, the state offered him a plea deal
that included a 12-year sentence. He requests that this court modify his sentence in
light of his conduct in this case.
{¶26} When reviewing a felony sentence, an appellate court must uphold the
sentence unless the evidence clearly and convincingly does not support the trial court's
findings under the applicable sentencing statutes or the sentence is otherwise contrary
to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.
{¶27} Appellant was convicted of four first-degree felonies and one second-
degree felony. The possible prison terms for a first-degree felony are three, four, five,
six, seven, eight, nine, ten, or eleven years. R.C. 2929.14(A)(1). The trial court
sentenced appellant to eleven years on each of the first-degree felonies. The possible
prison terms for a second-degree felony are two, three, four, five, six, seven, or eight
years. R.C. 2929.14(A)(2). The trial court sentenced appellant to eight years on the
second-degree felony. Thus, each of the felony sentences was within the applicable
statutory range. Moreover, as discussed above, the trial court sentenced appellant to
ten years on each of the RVO specifications. Once we vacate four of the eight
specification sentences, the remaining specification sentences are within the applicable
statutory range.
{¶28} In sentencing a felony offender, the court must consider the overriding
principles and purposes set out in R.C. 2929.11, which are to protect the public from
future crime by the offender and others and to punish the offender. The trial court shall
also consider various seriousness and recidivism factors as set out in R.C. 2929.12.
“[N]either R.C. 2929.11 nor R.C. 2929.12 requires the sentencing court to make specific
findings regarding the purposes and principles of sentencing, or seriousness and
recidivism factors at the sentencing hearing or in the sentencing judgment entry.” State
v. Taylor, 7th Dist. No. 15 MA 0078, 2016-Ohio-1065, ¶ 14, citing State v. Henry, 7th
Dist. No. 14 BE 40, 2015-Ohio-4145, ¶ 22, State v. Wilson, 129 Ohio St.3d 214, 2011-
Ohio-2669, 951 N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215, 724
N.E.2d 793 (2000).

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{¶29} In sentencing appellant, the trial court made the following findings.
Appellant has two prior felony convictions for felonious assault; a felony conviction for
breaking and entering; four misdemeanor convictions for driving under the influence;
and misdemeanor convictions for driving under suspension, “hit/skip,” and failure to
control. (Sen. Tr. 6-7). Upon being arrested in this case, appellant threatened the lives
of the arresting officer and the former mayor. (Sen. Tr. 7). Appellant has a “hit list” of
people he wants to kill. (Sen. Tr. 7). Appellant’s victims suffered either actual harm or
the threat of psychological and/or economic harm. (Sen. Tr. 7). Appellant has not
responded to previous sanctions. (Sen. Tr. 7). Appellant has a history of drug and
alcohol abuse and has never sought available treatment or counseling. (Sen. Tr. 7-8).
Appellant expressed no remorse and he attempted to excuse his conduct by claiming
he was drunk. (Sen. Tr. 8). Although the gun used was inoperable, the victims did not
know that at the time. (Sen. Tr. 8).
{¶30} Thus, even though the trial court was not required to make findings in
support of its sentence, it gave numerous reasons for imposing the sentence that it did.
And it considered many more factors than simply appellant’s criminal history as he
alleges.
{¶31} Next, we note the trial court sentenced appellant to maximum sentences.
The trial court was not required to make any special findings before sentencing
appellant to maximum sentences. State v. Riley, 7th Dist. No. 13 MA 180, 2015-Ohio-
94, ¶ 34.
{¶32} Finally, we consider the consecutive nature of appellant’s sentences.
{¶33} R.C. 2929.14(C)(4) requires a trial court to make specific findings when
imposing consecutive sentences:

(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to
serve the prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:

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(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 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.

{¶34} It has been held that although the trial court is not required to recite the
statute verbatim or utter “magic” or “talismanic” words, there must be an indication that
the court found (1) that consecutive sentences are necessary to protect the public from
future crime or to punish the offender, (2) that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger posed to
the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c).
State v. Bellard, 7th Dist. No. 12-MA-97, 2013-Ohio-2956, ¶ 17. However, the court
need not give its reasons for making those findings. State v. Power, 7th Dist. No. 12
CO 14, 2013-Ohio-4254, ¶ 38.
{¶35} The transcript of the sentencing hearing must make it “clear from the
record that the trial court engaged in the appropriate analysis.” State v. Hill, 7th Dist.
No. 13 CA 82, 2014-Ohio-1965, ¶ 27.
{¶36} In this case, the trial court made each of the required findings at the
sentencing hearing. First, the court found consecutive prison terms were necessary to
“protect the public and punish [appellant].” (Sen. Tr. 9). Second, the court found that
consecutive prison terms were “not disproportionate with [appellant’s] conduct.” (Sen.
Tr. 9). And third, the court found that appellant’s “criminal history shows that
consecutive terms are needed to protect the public.” (Sen. Tr. 9). Hence, the court

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specifically made each of the consecutive sentencing findings on the record prior to
sentencing appellant. The trial court reiterated these findings in the sentencing
judgment entry.
{¶37} In sum, there is no indication that appellant’s sentence is contrary to law.
{¶38} Accordingly, appellant’s second assignment of error is without merit and is
overruled.
{¶39} For the reasons stated above, the trial court’s judgment is hereby reversed
as to the imposition of four of the eight RVO specification sentences. We accordingly
modify appellant’s sentence to 92 years total.

Waite, J., concurs
Robb, P. J., concurs

Case No. 17 BE 0025
[Cite as State v. Harrigan, 2018-Ohio-3836.]

For the reasons stated in the Opinion rendered herein, the first assignment of
error has merit and is sustained. The second assignment of error is without merit and is
overruled. It is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Belmont County, Ohio, is hereby reversed as to the imposition of
four of the eight RVO specification sentences. It is affirmed in all other respects. We
accordingly modify appellant’s sentence to 92 years total. Costs to be taxed against the
Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.