State v. BushState v. Bush
For Plaintiff-Appellee Paul Gains Prosecutor Ralph Rivera Assistant Prosecutor 21 West Boardman St. Youngstown, Ohio 44503
For Defendant-Appellant Attorney John P. Laczko LLC 3685 Stutz Dr., Suite 100 Canfield, Ohio 44406
Dated: September 22, 2014
DONOFRIO, J.
{¶1} Defendant-appellant Zaryl Bush appeals from his conviction and sentence entered in the Mahoning County Court of Common Pleas following his guilty pleas for murder, child endangering, intimidation of witness, and tampering with evidence. Appointed appellate counsel has filed a no-merit brief and requested leave to withdraw.
{¶2} Forty-three-year-old Bush was in a relationship with Shain Widdershaim, who had three sons, fourteen-year-old T.F. and ten-year-old twins. From a period beginning in December 2011 through Bush‘s arrest in January 2013, Bush inflicted serious physical and emotional abuse upon all three children.
{¶3} The abuse reached lethal proportions on January 21, 2013. While the children were at Bush‘s residence, he punched T.F. in the face. (Sentencing Tr. 24-25.) T.F. was knocked unconscious. (Sentencing Tr. 25). As T.F. lay on the ground, Bush kicked him in the head, then picked him up and slammed his head into a wall. (Sentencing Tr. 25). One of the twins was present in the room and witnessed Bush‘s assault on his older brother (Sentencing Tr. 8). He attempted to intervene but was pushed away by Bush. (Sentencing Tr. 8). Bush wiped up T.F.‘s blood, and took the bloody rags to Widdershaim‘s residence nearby to fake a crime scene to make it look like T.F. slipped in the shower and had a seizure. (Sentencing Tr. 8-9). Further, T.F.‘s other twin brother witnessed Bush as he washed his hands with bleach and took the bloody rags from his residence to Widdershaim‘s residence to stage the crime as an accident. (Sentencing Tr. 9.)
{¶4} The attack resulted in T.F. suffering blunt force injuries of the head, contusion to the eyelids, contusion within the mouth, abrasions of the scalp, subdural hemorrhages, subdural and subarachnoid hemorrhages and brain contusions. (Sentencing Tr. 23-24). A few days later, T.F. died as a result of blunt force injuries to the head. (Sentencing Tr. 24). In the two years leading up to T.F.‘s murder, Bush‘s abuse of T.F. included but was not limited to, forcing him to walk on hot coals and run outside in extreme weather. (Bill of Particulars.) In addition, Bush‘s abuse of the twin boys included but was not limited to forcing one of them to take cold showers and
{¶5} On March 7, 2013, a Mahoning County grand jury issued an eighteen-count indictment against Bush and Widdershaim. Bush was named in thirteen of those counts.
{¶6} Of the thirteen counts with which Bush was charged, eight of those counts stemmed from Bush‘s abuse and murder of T.F.. The first four counts and the eighteenth count addressed the offenses surrounding Bush‘s January 21, 2013 murder of T.F.: count 1 – murder for purposely causing the death of T.F. in violation of
{¶7} The fifth, sixth, and seventh counts concerned Bush‘s abuse of T.F. from December 2011 leading up to the murder: count 5 – endangering children as to T.F. in violation of
{¶8} The remaining counts with which Bush was charged (the eighth, ninth, tenth, and twelfth counts) stemmed from Bush‘s abuse of the ten-year-old twin boys, his threats to them in the wake of his assault and murder of their older brother, and his attempt to stage the murder as an accident at Widdershaim‘s residence: count 8 – endangering children as to one of the twin boys, in violation of
{¶9} Bush pleaded not guilty, the trial court appointed him counsel, and the matter proceeded to discovery and other pretrial matters.
{¶10} On June 19, 2013, the parties reached a
{¶11} The trial court conducted a sentencing hearing on June 28, 2013. The court sentenced Bush to fifteen-years to life in prison for count 1 (murder) and found that Bush‘s conviction on count 4 (second-degree-felony endangering children) merged with his conviction in count 1 (murder) for purposes of sentencing. (Sentencing Tr. 27.) For the remaining counts to which Bush pleaded guilty, the court sentenced Bush to terms of imprisonment as follows: three years each for counts 7, 8, and 9 (third-degree-felony endangering children); three years each for counts 10 and 11 (intimidation); and three years for count 12 (tampering with evidence). Further, the court ordered that all of the sentences be served consecutively, for an aggregate sentence of thirty-three years to life in prison. This appeal followed.
{¶12} Bush‘s appointed appellate counsel filed a no-merit brief on March 25, 2014. On April 10, 2014, this court informed Bush of counsel‘s no-merit brief and granted him thirty days to file his own written brief. Bush has not filed his own brief.
{¶13} The no-merit brief review identifies two potential issues for appeal: (1)
{¶14} When appellate counsel seeks to withdraw and identifies that there are no meritorious arguments for appeal, the filing is known as a no-merit brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed2d 493 (1967). This district refers to the no-merit brief as a Toney brief. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
{¶15} In Toney, this Court has recognized an indigent defendant‘s constitutional right to court-appointed counsel for direct appeal of their conviction. Id., paragraph one of the syllabus. After a conscientious examination of the record, counsel should present any assignments of error which could arguably support the appeal. Id., paragraph two of the syllabus. If instead counsel determines that the defendant‘s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, then counsel should inform the appellate court and the defendant of that by brief and ask to withdraw as counsel of record. Id., paragraph three and four of the syllabus. The defendant is then given the opportunity to raise on his own behalf any assignments of error he chooses. Id., paragraph four of the syllabus. The appellate court‘s duty is to examine the record, counsel‘s brief, and any arguments raised by the defendant on his own behalf, and determine if the appeal is wholly frivolous. Id., paragraph five of the syllabus. If after determining that the appeal is wholly frivolous, then the appellate court should permit counsel to withdraw and affirm the judgment of conviction and sentence. Id., paragraph seven of the syllabus.
{¶16} Because Bush entered a guilty plea, our review is limited to examining the same two potential issues identified by his appointed appellate counsel – the plea and the sentence. The first issue we examine is whether Bush entered his plea knowingly, voluntarily, and intelligently within the framework set forth in
{¶17} When determining the voluntariness of a plea, this court must consider
{¶18} A trial court must strictly comply with
{¶19} In the present case, the trial court strictly complied with
{¶20} A trial court need only substantially comply with
{¶21} In the present case, the trial court substantially complied with
{¶22} Therefore, because the trial court complied with
{¶23} Next, we consider Bush‘s sentence of thirty-three years to life in prison. Our review of felony sentences is now a limited, two-fold approach, as outlined in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 26. First, we must examine the sentence to determine if it is “clearly and convincingly contrary to law.” Id. (O‘Conner, J., plurality opinion). In examining “all applicable rules and statutes,” the sentencing court must consider
{¶24} A sentencing court must consider the principles and purposes of sentencing espoused in
{¶25} Here, the trial court expressly stated that it considered the purposes and principles of sentencing under
{¶26} Bush was convicted of murder pursuant to
{¶27} Next, we must evaluate whether the propriety of the trial court‘s ordering of those sentences to be served consecutively. Pursuant to 2011 H.B. 86, effective September 20, 2011, a court imposing consecutive sentencing must make certain findings. This legislation was enacted in response to the Ohio Supreme Court‘s statement that its Foster decision was incorrect in striking down statutory consecutive sentence provisions and that the legislature would need to enact a new
{¶28}
(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:
(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.
{¶29} Thus, the sentencing court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) that
{¶30} Appellate case law had been in flux concerning the extent to which a sentencing court was required to make these findings, particularly as it regarded the extent to which the court needed to make those findings at the sentencing hearing and in the subsequent sentencing entry. During the pendency of this appeal, the Ohio Supreme Court in State v. Bonnell, ___ Ohio St.3d ____, 2014-Ohio-3177, ___ N.E.2d ____ provided clarification holding that the findings required by
{¶31} In this case, the trial court explicitly made all the findings required for imposition of consecutive sentences. At the sentencing hearing, the trial court made it a point to specifically and separately address consecutive sentences and
THE COURT: * * * The Court also has to make a determination about consecutive sentences. The State has recommended consecutive sentences, and the law is that there is a presumption in favor of concurrent terms of incarceration with the Court‘s discretion to
impose consecutive sentences, if necessary, to protect the public and punish the offender, and not disproportionate to the harm caused, and the Court would additionally have to find that the harm in this case is so great or so unusual that a single prison term does not adequately reflect the seriousness of the offender‘s conduct. * * *
THE COURT: The Court does find that consecutive sentences are necessary in this case because the harm was so great or unusual that a single term would not adequately reflect the seriousness of the offender‘s conduct. Consecutive sentences are necessary to protect the public and to punish the offender and not disproportionate to the harm that has been caused.
(Sentencing Tr. 14-15, 26).
{¶32} The July 8, 2013 sentencing entry also contains the required findings:
Pursuant to O.R.C. 2929.14(C)(4), the Court finds “that 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.” The Court further finds that pursuant to O.R.C. 2929.14(C)(4)(b), that 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 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. Therefore, the sentences imposed on the charges of Counts Seven, Eight, Nine, Ten, Eleven, and Twelve are Ordered to be served consecutively to one another in the Department of Rehabilitation and Corrections and
consecutively to the sentence imposed on the charge of Murder in Count One.
{¶33} Thus, the trial court expressly made all of the required findings before imposing consecutive sentences under
{¶34} In sum, the record discloses that the trial court did consider and comply with all applicable statutes in issuing the sentence. The sentence is not clearly and convincingly contrary to law.
{¶35} Our analysis next turns to whether the trial court erred in determining that a thirty-three-years-to-life sentence was appropriate. Here, we note that the state had recommended a sentence of twenty-two years to life in prison. One of the considerations that the state made in recommending that sentence was that Bush‘s guilty pleas spared the twin boys from having to testify at trial. (Sentencing Tr. 10.) Bush‘s trial counsel also argued extensively in support of the weight that should be given to Bush for having accepted responsibility for the crimes and sparing the twin boys to have to testify at trial. (Sentencing Tr. 16-20.)
{¶36} Despite both parties’ arguments and the joint sentencing recommendation, the trial court did not follow that recommendation. Instead, it ordered an aggregate thirty-three-years-to-life sentence. The act of not following the state‘s recommendation and ordering a stiffer penalty does not, in and of itself, render the sentence clearly and convincingly contrary to law or show that the trial court abused its discretion. Trial courts generally are not a party to the plea negotiations and the contract itself. State v. Vari, 7th Dist. No. 07-MA-142, 2010-Ohio-1300, ¶ 24. Thus, “the court is free to impose a sentence greater than that forming the inducement for the defendant to plead guilty so long as the court forewarns the defendant of the applicable penalties, including the possibility of
{¶37} Here, Bush was advised of the maximum penalties involved and was advised multiple times that the trial court was not required to follow the recommendation. The June 24, 2013 Plea Agreement set forth the maximum penalties for the offenses to which Bush had pleaded guilty and following the twenty-two-years-to-life recommendation stated, “THE COURT IS NOT BOUND BY THIS RECOMMENDATION.” At the beginning of the June 19, 2013 plea hearing the trial court noted, “The only discretion in the court, then, is whether or not I adopt the recommendation of the parties regarding sentencing, and that‘s something I will not commit to.” (Plea Tr. 7.) The court went on to orally advise Bush of the maximum penalties involved and when asked, “Do you understand the state is recommending a 22-to-life sentence and that I am not bound by that?” Bush responded, “Yes, Your Honor.” (Plea Tr. 11-12, 15) Furthermore, the record does not indicate that the trial court was a party to the plea agreement. Thus, there is nothing in the record to suggest that the trial court was bound, for any reason, by the recommendation.
{¶38} The record also indicates that the trial court‘s decision to deviate from the recommendation and order a thirty-three-years-to-life sentence was not an abuse of discretion or contrary to law. The trial court considered and weighed all factors when it was determining the appropriate sentence. The court considered the fact that the injury suffered by the victim of the offenses due to Bush‘s conduct was exacerbated because of the age of the victim.
{¶40} In conclusion, for all the foregoing reasons, the potential assignments of error are without merit and an independent review of the case file reveals there are no appealable issues. The conviction and sentence is affirmed and appointed appellate counsel‘s motion to withdraw is granted.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.