[Cite as State v. Kauffman, 2021-Ohio-3847.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
:
STATE OF OHIO :
: Appellate Case No. 2021-CA-5
Plaintiff-Appellant :
: Trial Court Case No. 2020-CR-141
v. :
: (Criminal Appeal from
COREY KAUFFMAN : Common Pleas Court)
:
Defendant-Appellee :
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OPINION
Rendered on the 29th day of October, 2021.
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R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, Prosecuting Attorney, Darke County
Prosecutor’s Office, 504 South Broadway Street, 3rd Floor, Greenville, Ohio 45331
Attorney for Plaintiff-Appellant
MISTY M. CONNORS, Atty. Reg. No. 0075457, P.O. Box 340246, Dayton, Ohio 45434
Attorney for Defendant-Appellee
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HALL, J.
{¶ 1} The State of Ohio appeals a judgment of the Darke County Court of Common
Pleas, which dismissed an indictment against Corey Kauffman based on the trial court’s
finding that insufficient reasons existed for his prosecution. We conclude that the
likelihood of an additional prison term provided enough reason for prosecution to preclude
dismissal. We therefore reverse.
I. Factual and Procedural Background
{¶ 2} On August 28, 2020, Kauffman was indicted in Darke C.P. No. 2020-CR-141
on one count of improperly handling firearms in a motor vehicle, in violation of R.C.
2923.16(B), a fourth-degree felony, and one count of having weapons while under
disability, in violation of R.C. 2923.13(A)(3), a third-degree felony. Both charges were
based on the same firearm and on Kauffman’s prior conviction for drug trafficking.
Kauffman was released on bond.
{¶ 3} While out on bond, Kauffman got into more trouble. On January 28, 2021, he
was indicted in Darke C.P. No. 2020-CR-229 on one count of failure to comply with an
order or signal of a police officer (causing a substantial risk of serious physical harm to
persons or property), in violation of R.C. 2921.331(B), a third-degree felony, and one
count of aggravated possession of drugs (methamphetamine), in violation of R.C.
2925.11(A),(C)(1)(a), a fifth-degree felony.
{¶ 4} The cases were set for trial on March 23 and 24, 2021. On March 23, 2021,
Kauffman pleaded guilty to the failure-to-comply charge in the second case (Case No.
2020-CR-229), and the aggravated possession charge in that case was dismissed. The
trial court sentenced him to 12 months in prison.
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{¶ 5} On March 30, 2021, the trial court dismissed the indictment in Case No.
2020-CR-141 over the State’s objection, finding that insufficient reasons existed for
prosecution.
{¶ 6} The State appeals the dismissal.
II. Analysis
{¶ 7} The sole assignment of error alleges:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISMISSED
THIS CASE SUA SPONTE PURSUANT TO CRIMINAL RULE 48(B) OVER
THE OBJECTION OF THE STATE.
{¶ 8} Crim.R. 48(B), which provides the procedure for the dismissal of a criminal
case by a court over the objections of the State, provides that “if the court over the
objection of the state dismisses an indictment, information, or complaint, it shall state on
the record its findings of fact and reasons for the dismissal.”
{¶ 9} We review a trial court's dismissal of an indictment for an abuse of
discretion. State v. Busch, 76 Ohio St.3d 613, 616, 669 N.E.2d 1125 (1996).
{¶ 10} The trial court gave six reasons for its decision to dismiss Case No. 2020-
CR-141. One, the court found that Kauffman was serving a 12-month prison sentence for
a third-degree felony in Case No. 2020-CR-229 and that bringing him back for another
trial would result in delays and incur additional expenses. Two, the court noted that the
most serious charge in Case No. 2020-CR-141 was also a third-degree felony and said
that it appeared to be unlikely that a conviction in that case would result in additional
prison time. Three, the court noted that Case No. 2020-CR-141 had been set for trial for
March 23, 2021, and that Kauffman had requested a continuance, to which the State did
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not object. According to the court, before granting the continuance, all agreed to schedule
the second trial on March 23, 2021, so that both cases could be kept moving, regardless
of which one was ready first. Four, the court cited the heavy case load of the public
defenders and noted that increasing that load with this case seemed unwarranted. Five,
the court said that the gun involved in Case No. 2020-CR-141 would be forfeited based
on Kauffman’s criminal history alone. And six, the court concluded that the effects of
delays on many other pending cases due to the COVID-19 pandemic further reduced the
need to prosecute the first case. From the record, it is apparent that the focus of the trial
court’s decision to dismiss the case was that Kauffman would not receive any additional
punishment for a conviction because, as the court said, the State would be unable to
support an argument for consecutive sentencing, and there was little point in prosecuting
given the other pressing concerns.
{¶ 11} If Kauffman were to be convicted and sentenced to prison in Case No. 2020-
CR-141, that sentence would necessarily be served consecutively to his prison sentence
in Case No. 2020-CR-229. R.C. 2921.331(D) states that, if a failure-to-comply offense is
a third-degree felony and the offender is sentenced to prison, “the offender shall serve
the prison term consecutively to any other prison term or mandatory prison term imposed
upon the offender.” We have explained:
The language of R.C. 2921.331(D) requires a sentence for failure to comply
to be served consecutively to any other sentence. The statute does not limit
itself to sentences imposed at the time of the failure-to-comply conviction.
Any potential ambiguity in R.C. 2921.331(D) is clarified by R.C.
2929.14(C)(3), which provides: “If a prison term is imposed for * * * a felony
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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 upon the
offender.”
(Emphasis sic.) State v. Rose, 2d Dist. Champaign No. 2020-CA-28, 2021-Ohio-2859,
¶ 5. In Rose, the defendant had been previously sentenced to prison for third-degree-
felony failure to comply in violation of R.C. 2921.331(B). “That being so, he was required
to serve his prison term for failure to comply ‘consecutively to any other prison term * * *
previously or subsequently imposed[.]’ ” (Emphasis sic.) Id. at ¶ 6, quoting R.C.
2929.14(C)(3). Therefore, we concluded, the subsequent prison term for aggravated drug
possession imposed in Rose was “required to be served consecutively.” Id. See also
State v. White, 2d Dist. Montgomery No. 28338, 2020-Ohio-5544, ¶ 67 (“Because White
was convicted of failure to comply with an order or signal of a police officer, a third-degree
felony, in [a prior case], the trial court also properly imposed consecutive sentences as
required by statute.”).
{¶ 12} The trial court’s reasoning that a conviction would not support consecutive
sentencing was wrong. Consecutive sentencing findings are not required when
consecutive sentencing is mandatory. State v. Thompson, 2d Dist. Montgomery No.
28308, 2020-Ohio-211, ¶ 16. Furthermore Kauffman was under a disability because of a
prior conviction for drug trafficking. Despite not being allowed to have a gun, he was found
with one, transporting it loaded inside the passenger compartment of his vehicle. These
are not minor offenses, and the State should have been allowed to proceed with the
prosecution. In addition, there is a mandatory driver’s license suspension.
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{¶ 13} In sum, if Kauffman were convicted and sentenced to prison in the first case,
he would be required to serve that sentence consecutively to his prison sentence in the
second case and be subject to a license suspension. Consequently, the outcome of
prosecuting Case No. 2020-CR-141 would change things. We believe that this situation
precluded dismissal, fatally undermining the trial court’s conclusion that insufficient
reasons existed for prosecution of Case No. 2020-CR-141. In our opinion, the trial court
abused its discretion by dismissing the indictment.
{¶ 14} The sole assignment of error is sustained.
III. Conclusion
{¶ 15} The trial court’s judgment is reversed. This case is remanded to the trial
court for further proceedings.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
R. Kelly Ormsby, III
Misty M. Connors
Hon. Jonathan P. Hein