State v. CollinsState v. Collins
For Plaintiff-Appellee
JOHN C. THATCHER PROSECUTING ATTORNEY AARON E. ALLARD ASSISTANT PROSECUTOR 117 East High Street, Suite 234 Mount Vernon, Ohio 43050
For Defendant-Appellant
JOHN A. DANKOVICH ASSISTANT PUBLIC DEFENDER One Public Square Mount Vernon, Ohio 43050
{¶1} Appellant Michael T. Collins appeals from his sentences rendered by the Court of Common Pleas, Knox County, for the felony offenses of having weapons under a disability and tampering with evidence, both with firearm specifications. The relevant facts leading to this appeal are as follows.
{¶2} On the night of July 1, 2011, Appellant Michael T. Collins drove his daughter, Melissa Collins, to her residence on Martinsburg Road to deal with a dispute Melissa was having with her brother, Jesse Collins, concerning her trailer. Appellant, already a convicted felon, had a gun in his vehicle. Jesse Collins and his girlfriend, Lilly Dawn Claggett, were already at the trailer.
{¶3} A confrontation ensued, leading to a car chase and the exchange of gunfire on the road. At some point, appellant fired his weapon and killed Lilly Dawn Claggett and paralyzed his son Jesse. Appellant and Melissa Collins left the scene, and Melissa hid appellant‘s weapon behind a telephone pole in tall grass. The next morning, after he was arrested, appellant led police to the location of the gun.
{¶4} On August 2, 2011, appellant was indicted on one count of Murder (
{¶5} At the conclusion of the trial on July 20, 2012, the jury found appellant not guilty of Murder, Murder, Attempted Murder, Voluntary Manslaughter, Involuntary Manslaughter, Felonious Assault and Felonious Assault. However, appellant was found guilty of Having Weapons Under Disability (
{¶6} On August 24, 2012, after a pre-sentence investigation, the trial court sentenced appellant to two terms of thirty-six (36) months to be served consecutively and a one (1) year term for a gun specification as to the tampering with evidence charge for a total of seven (7) years with credit for four-hundred and nineteen (419) days time served.
{¶7} On September 21, 2012, appellant filed a notice of appeal. He herein raises the following two Assignments of Error:
{¶8} “I. THE TRIAL COURT ERRED IN IMPOSING MAXIMUM CONSECUTIVE SENTENCES.
{¶9} “II. THE TRIAL COURT ERRED IN TAKING INTO CONSIDERATION IMPROPER FACTORS WHEN RENDERING SENTENCE.”
I., II.
{¶10} In his First Assignment of Error, appellant challenges his maximum, consecutive sentences for his convictions of weapons under disability and tampering
{¶11} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, a plurality opinion, the Ohio Supreme Court established a two-step procedure for reviewing a felony sentence. The first step is to “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first step is satisfied, the second step requires the trial court‘s decision be reviewed under an abuse-of-discretion standard. Id. Furthermore, “* * * the right to appeal a sentence under
Maximum Sentence Issue
{¶12} Appellant first argues that the court erred in sentencing him to maximum sentences on the offenses of weapons under disability and tampering with evidence.
{¶13} Subsequent to the Ohio Supreme Court‘s Foster decision, “[t]he decision to impose the maximum sentence is simply part of the trial court‘s overall discretion in issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.” State v. Parsons, Belmont App.No. 12 BE 11, 2013–Ohio–1281, ¶ 14.
{¶15} Appellant directs us to the decision of the Third District Court of Appeals in State v. Blake, Union App.No. No. 14-03-33, 2004-Ohio-1952, a pre-Foster decision. In that case, the defendant, Floyd Neal Blake, had been originally indicted on four counts of rape and four counts of gross sexual imposition. The State thereafter voluntarily dismissed three counts of rape and three counts of gross sexual imposition. Blake and the State then entered into a plea agreement such that the State dismissed the remaining rape charge and Blake entered a guilty plea to one count of gross sexual imposition. The trial court in that case ultimately gave Blake the maximum sentence of five years in prison.
{¶16} On appeal, the Third District Court of Appeals concluded that the trial court had erred in sentencing Blake to the maximum sentence, stating as follows:
{¶17} “In this case, the trial court expressly stated its belief that Blake had committed the offenses which the State had voluntarily dismissed prior to the plea agreement. No evidence was entered to support the conclusion that Blake committed those offenses. The trial court also expressed its belief that Blake had committed the rape charge which was dismissed pursuant to the plea agreement. Although all of these things can be considered to determine likelihood to recidivate, they cannot be the sole basis for imposing the maximum sentence. To allow that is to permit Blake to be
{¶18} Id. at ¶ 6.
{¶19} In the case sub judice, appellant maintains the trial court improperly took into consideration, for sentencing purposes, the counts for which appellant was found not guilty by a jury, including testimony he alleges did not relate to having weapons under disability and tampering with evidence. In support, he points out that the court allowed three persons to make victims’ statements with regard to Lilly Dawn Claggett‘s death. See Sentencing Tr. at 4-10. He additionally directs us to the following statement by the court: “Well, that son that‘s paralyzed and that family that‘s in disorder is a direct result of your actions. I heard the whole trial here, Mr. Collins. Yeah. This didn‘t have to happen.” Id. at 12.
{¶20} Upon review, we are unpersuaded that the aforesaid occurrences during sentencing support the conclusion that the trial court violated the rule of Blake. Moreover, this Court has recognized that self-defense is a “confession and avoidance” affirmative defense in which the defendant admits the elements of the crime but seeks to prove some additional element which absolves the defendant of guilt. See
{¶21} Accordingly, we hold the maximum sentences in this matter were not based on the consideration of improper factors and are not unreasonable, arbitrary or unconscionable.
Consecutive Sentence Issue
{¶22} Appellant next challenges his consecutive sentences on the two third-degree felonies. 2011 Am.Sub.H.B. No. 86, which became effective on September 30, 2011, revived the language provided in former
{¶23}
{¶24} “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:
{¶25} “(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
{¶26} “(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.
{¶27} “(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
{¶28} (Emphases added).
{¶30} Sentencing Entry, August 24, 2012, at 2.
{¶31} Although appellant maintains that his use of the weapon was in self-defense (in reference to the weapons under disability conviction) and that the hiding of the weapon after the shooting was brief (in reference to the tampering with evidence conviction), we find the trial court complied with
Conclusion
{¶32} Upon review, we hold the trial court‘s consecutive, maximum sentences in this matter are not unreasonable, arbitrary or unconscionable. We further hold said sentences are not contrary to law.
{¶34} For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Knox County, Ohio, is hereby affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
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JUDGES
JWW/d 0221
Costs assessed to appellant.
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JUDGES