State v. Jevnikar
2016 Ohio 8113
Ohio Ct. App.2016Background
- John A. Jevnikar faced two Lake County indictments arising from (1) an encounter at Giant Eagle where he allegedly spat on and struck a shopper (Bacon), and (2) an incident in which he allegedly kicked and spit on a police officer.
- In Case No. 15-CR-558, a jury convicted Jevnikar of misdemeanor Assault for striking Bacon but acquitted him of Harassment with a Bodily Substance.
- In Case No. 15-CR-662, Jevnikar pleaded guilty to Attempted Harassment with a Bodily Substance (4th-degree felony) and Assault (4th-degree felony); other counts were dismissed.
- At sentencing the court ordered consecutive prison terms (17 months and 11 months) and concurrent 150 days for the misdemeanor, and ordered $13,000 restitution to Bacon based on medical bills submitted.
- Jevnikar appealed, arguing (1) the court failed to give a lesser-included disorderly-conduct instruction, (2) restitution was improperly awarded in full without considering acquitted conduct or insurance, (3) ineffective assistance of trial counsel, and (4) sentencing error based on consideration of uncharged/unconvicted facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by not instructing on lesser-included offense (disorderly conduct) for assault | No error; jury convicted assault on adequate evidence | Instruction required because evidence could support acquittal on assault and conviction for disorderly conduct | No plain error; instruction not required because evidence supported assault conviction and acquittal would not have been reasonable |
| Whether restitution ($13,000) was improper | Restitution may be based on victim submissions and PSI | Amount improperly includes bills related to acquitted harassment charge and may not account for insurance coverage; court gave no analysis | Reversed in part: remand for reconsideration/hearing because court failed to exclude expenses for acquitted conduct and did not account for insurance coverage |
| Ineffective assistance of counsel (failure to object re: jury instruction and restitution) | Counsel not ineffective because no prejudice and court considered ability to pay | Counsel ineffective for failing to object to instructions and restitution | Not ineffective: claim is moot as restitution remanded; no prejudice shown on instruction issue |
| Whether sentence was contrary to law for considering unconvicted facts and not weighing mitigation | Sentence based on defendant’s character and conduct; court may consider broader record | Court improperly relied on facts for which defendant was not convicted (e.g., taser probe) and failed to weigh mitigation | No reversible error: court may consider broader context; statements about the taser were contextual and not contrary to law; court considered required factors |
Key Cases Cited
- Barnes v. State, 94 Ohio St.3d 21 (2002) (plain-error standard description)
- Thomas v. State, 40 Ohio St.3d 213 (1988) (lesser-included-offense instruction required only when evidence supports acquittal on charged offense and conviction on lesser)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard)
- Madrigal, 87 Ohio St.3d 378 (2000) (applying Strickland in Ohio)
- Marcum v. State, 146 Ohio St.3d 516 (2016) (standard of appellate review for felony sentences)