STATE OF OHIO v. JAMES FERGUSON
C.A. CASE NO. 08CA0050
T.C. CASE NO. 07CR1011
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
August 26, 2011
[Cite as State v. Ferguson, 2011-Ohio-4285.]
GRADY, J.
(Criminal Appeal from Common Pleas Court)
O P I N I O N
Rendered on the 26th day of August, 2011.
. . . . . . . . .
David W. Phillips, Atty. Reg. No. 0019966, Clark County Special Prosecutor for the State of Ohio, Union County Justice Center, 221 West Fifth Street, Marysville, OH 43040
Attorney for Plaintiff-Appellee
David R. Miles, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn, OH 45324
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, J.:
{¶ 1} Defendant, James Ferguson, appeals from his conviction and sentence for child endangering, permitting child abuse, and felonious assault.
{¶ 2} Defendant and his wife, Vonda Ferguson, adopted six
{¶ 3} In August 2006, Defendant James Ferguson was indicted in Union County on thirty charges relating to the abuse of his children. That case was dismissed by the State in March 2007. On October 16, 2007, Defendant was indicted by the Clark County grand jury on the same charges: twenty counts of endangering children,
{¶ 4} Defendant timely appealed to this court from his conviction and sentence.
Facts
{¶ 5}
{¶ 6} Defendant was aware that his wife, Vonda Ferguson, had stabbed Joseph with a pen and burned him with an iron. Defendant threatened to kill Joseph if he told anyone about the abuse. Joseph had to wear soiled underwear on his head and eat the excrement if he soiled himself. He also had to stand against a wall for prolonged periods of time, even overnight.
{¶ 7} Valnita testified about being beaten with a duct-taped stick and a white Honda belt. She further testified that all of the children, except the baby Vivian, were beaten with the belt. During the beatings by Defendant, Vonda Ferguson would laugh.
{¶ 8} Julius testified that he was beaten and hit a lot for minor things. He was struck with a belt or a stick, and had marks on the back of his thighs and buttocks.
{¶ 9} Sherita testified that she was duct-taped to a table and beaten with a bat, a belt, and a stick by Defendant. She was beaten so hard that she bled through her panties and could hardly walk. She has scars on her legs, buttocks, and back. Sherita was forced to put soiled garments in her mouth, and Vonda Ferguson struck her toes and fingers with a hammer hard enough that her nails would turn black and fall off. The children had to stand against a wall for hours. Sherita would steal food because she was hungry.
{¶ 10} Jermaine testified that the atmosphere in the Ferguson home was warlike, and a lot of violence was inflicted on the children. Jermaine was beaten on his bare buttocks with a duct-taped stick for up to ten minutes at a time, and as a result he has scars. Defendant kicked and punched Jermaine, and forced
{¶ 11} Examinations of Jermaine, Valnita, and Joseph by Dr. Applegate and Dr. Scribano revealed scarring on the children‘s thighs, backs, and buttocks that was consistent with physical abuse. Burn marks were observed on Valnita and Joseph, and a stab wound was found on Joseph.
{¶ 12} All of the abused children, except Sherita, were examined by a psychologist, Dr. Jolie Brahms. Jermaine was very damaged by the abuse, Julius was suicidal as a result of severe depression, and Valnita indicated that she needed counseling to adapt to a family. Dr. Brahms found that “there was no Joseph.”
{¶ 13} Early in the investigation of the Fergusons’ treatment of their children, Defendant was interviewed by Union County Sheriff‘s Detective Jon Kleiber. The interview took place at Defendant‘s place of employment, Honda of America, and Defendant was not in custody. Defendant admitted whipping the children with his white Honda belt until they bled. Defendant also admitted
{¶ 14} Defendant‘s defense at trial was that the children‘s allegations of abuse were grossly exaggerated and a contrived attempt to escape a disciplined home, and that the allegations were induced by leading questions asked by investigators.
FIRST ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO AMEND FIFTEEN CHILD ENDANGERING COUNTS OF THE INDICTMENT DURING THE TRIAL.”
{¶ 16} During the trial the Stated filed a motion to amend fifteen of the twenty counts of endangering children to include
{¶ 17}
{¶ 18} In State v. Hamilton, Montgomery App. No. 22895, 2009-Ohio-4602, we concluded that Colon I implicitly overruled O‘Brien. Id., at ¶17. After our decision in Hamilton, and the Supreme Court‘s decision in Colon I, the Ohio Supreme Court on March 25, 2010, decided State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, wherein it held that an amendment to an indictment for endangering children that added language that the victim suffered serious physical harm was proper per
{¶ 19} In light of the Supreme Court‘s approval of O‘Brien in Pepka, a decision released after Colon I and II, and our decision in Hamilton, we conclude that the holding in O‘Brien regarding the amendment of indictments remains good law. See also State v. Rice, Hamilton App. No. C-080444, 2009-Ohio-1080. Under O‘Brien, an amendment to include an omitted essential element of the offense is proper if the name or the identity of the crime is not changed, and the accused has not been misled or prejudiced by the omission of the element from the indictment. O‘Brien, at paragraph two of the syllabus. That is the case here.
{¶ 20} Defendant states in conclusory fashion that he was misled
{¶ 21} Because this record does not demonstrate that Defendant was misled or prejudiced by the omission of the mens rea element from some, but not all, of the child endangering counts, or by the permitted amendment, the amendment to include that omitted essential element was proper, and Defendant was not entitled to a continuance or discharge of the jury. Pepka; O‘Brien;
{¶ 22} Defendant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 23} “APPELLANT‘S FIVE CONVICTIONS FOR PERMITTING CHILD ABUSE SHALL BE REVERSED BECAUSE THE TRIAL COURT LACKED JURISDICTION.”
{¶ 24} Defendant argues that because the indictment failed to include a culpable mental state for the permitting child abuse charges, it failed to charge an offense and accordingly the trial court lacked subject matter jurisdiction over those offenses. Therefore, Defendant‘s convictions for those offenses must be reversed. We disagree.
{¶ 25}
{¶ 26} “No parent, guardian, custodian, or person having custody of a child under eighteen years of age or of a mentally or physically handicapped child under twenty-one years of age shall cause serious physical harm to the child, or the death of the child, as a proximate result of permitting the child to be abused, to be tortured, to be administered corporal punishment or other physical disciplinary measure, or to be physically restrained in a cruel manner or for a prolonged period.”
{¶ 27}
{¶ 28} Even though the indictment omitted the mens rea element of recklessness from the permitting child abuse charges, this is not the rare case where that error permeated the entire trial and resulted in multiple errors, resulting in a structural error, rather than a plain error, analysis. State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749 (Colon II). The prosecutor argued to the jury that recklessness was required for the permitting child abuse charges. Even more importantly, the trial court instructed the jury on the culpable mental state of recklessness as it applies to permitting child abuse in accordance with Ohio Jury Instructions §CR 503.15. With respect to each count of permitting child abuse, the court instructed the jury that they must find that Defendant recklessly permitted the abuse. The omission of the mens rea element from an indictment does not require reversal where, as here, the trial court properly instructs the jury. State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, at ¶16; Colon II.
{¶ 29} Defendant‘s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 30} “APPELLANT‘S ENTIRE INDICTMENT IS VOID DUE TO THE IMPROPER APPOINTMENT OF A SPECIAL PROSECUTOR.”
{¶ 31} The prosecution of this case in Clark County was conducted by Union County Prosecuting Attorney David Phillips, several of his assistant prosecuting attorneys, and assistant Ohio Attorney General Chris Wagner. Defendant argues that his indictment is void due to the improper appointment of a special prosecutor. Defendant cites no authority to support that claim.
{¶ 32} At the outset we note that Defendant‘s claim was not raised in the trial court below. Accordingly, Defendant has waived all but plain error. Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been different. State v. Long, supra.
{¶ 33} Objections based upon defects in the institution of the prosecution, such as this, must be raised by motion prior to trial or they are waived.
{¶ 34} At the request of the Clark County Prosecuting Attorney, and pursuant to
{¶ 35} Defendant‘s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 36} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION TO SUPPRESS STATEMENTS.”
{¶ 37} Defendant argues that the trial court erred by overruling his motion to suppress statements he made to police.
{¶ 38} During the previous criminal proceedings against Defendant in Union County, on the same charges that he abused his children, Defendant filed a motion to suppress statements he made to Union County Sheriff‘s Detective Jon Kleiber during an interview
{¶ 39} After criminal proceedings were subsequently filed against Defendant in Clark County, Defendant filed the same motion to suppress his oral statements he previously filed in the Union County case. The trial court held a hearing on February 20, 2008, at which no witnesses testified. The court instead heard the oral arguments of counsel. On April 10, 2008, the trial court overruled Defendant‘s motion to suppress his statements.
{¶ 40} The State argues that the doctrine of res judicata bars relitigation of the motion to suppress Defendant‘s statements that Defendant previously litigated in the Union County proceedings. We disagree. Res Judicata bars all subsequent actions based on any claim arising out of a transaction or occurrence that was the subject matter of a previous action in which a valid, final judgment was entered. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379. The judgment of the Union County Common Pleas Court overruling
{¶ 41} In arguing that the trial court erred in overruling his motion to suppress his statements, Defendant claims that he was in custody at the time he gave his statements to police, and that his statements were not voluntary. However, whether Defendant was in custody is immaterial, because it is undisputed that Miranda warnings were given and that Defendant waived his Miranda rights prior to questioning.
{¶ 42} With respect to Defendant‘s claim that his statements were not voluntary, in State v. Moore, Greene App. No. 07CA93, 2008-Ohio-6238, at ¶12-13, we stated:
{¶ 43} “The Due Process Clause requires an inquiry separate from custody considerations and compliance with Miranda regarding whether a suspect‘s will was overborne by the circumstances surrounding the giving of a confession. Dickerson v. United States (2000), 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405. Voluntariness of a confession and compliance with Miranda are analytically separate inquiries. State v. Pettijean (2000), 140 Ohio App.3d 517, 748 N.E.2d 133. Even if Miranda warnings are not required, a confession may be involuntary if the defendant‘s will was
{¶ 44} “The due process test takes into consideration both the characteristics of the accused and the details surrounding the interrogation. Id. Factors to be considered include the age, mentality, and prior criminal experience of the accused; the length, intensity and frequency of the interrogation, the existence of physical deprivation or mistreatment, and the existence of threats or inducements. State v. Edwards (1976), 49 Ohio St.2d 31, 358 N.E.2d 1051. A defendant‘s statement to police is voluntary absent evidence that his will was overborne and his capacity for self-determination was critically impaired due to coercive police conduct. Colorado v. Spring (1987), 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954; State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711, 1996-Ohio-108.”
{¶ 45} The record demonstrates that following Defendant‘s waiver of his Miranda rights, Defendant was coherent, straight forward, and very cooperative in answering questions. Although Defendant was questioned by police for a total of five and one-half hours, he used the restroom during a break, and there was at all times food and water available nearby, although Defendant never requested any of those things. There was no physical deprivation, mistreatment, or coercive police conduct. No threats or promises
{¶ 46} The totality of the facts and circumstances surrounding Defendant‘s interrogation do not demonstrate that Defendant‘s will was overborne by coercive police conduct and that his confession was involuntary.
{¶ 47} Defendant‘s fourth assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶ 48} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION TO DISMISS FOR DUE PROCESS AND SPEEDY TRIAL VIOLATIONS.”
{¶ 49} On February 5, 2008, Defendant filed a motion to dismiss the indictment for a violation of his speedy trial rights. On March 11, 2008, the State filed a memorandum in opposition to Defendant‘s motion. On April 11, 2008, the trial court filed an Entry overruling Defendant‘s motion. The court‘s Entry did not contain any findings of fact or conclusions of law, and merely stated:
{¶ 50} “Upon review of the Court record, written and oral arguments of counsel, the Court finds that the Defendant‘s motion to dismiss on grounds of speedy trial and due process violations is not well taken and the same is denied.”
{¶ 51} On April 14, 2008, Defendant filed a request for written findings of fact and conclusions of law with respect to the trial
{¶ 52} By Decision and Entry filed on December 16, 2010, we remanded this case to the trial court for findings of fact and conclusions of law with respect to the trial court‘s denial of Defendant‘s motion to dismiss for a violation of his speedy trial rights. We further provided the parties with ample opportunity to file additional briefs on this issue after the trial court‘s findings were filed.
{¶ 53} On May 11, 2011, the trial court filed an Entry containing its findings of fact and conclusions of law with respect to the trial court‘s denial of Defendant‘s motion to dismiss on speedy trial grounds. No additional briefs on the speedy trial issue have been filed by either party.
{¶ 54} The
{¶ 55}
{¶ 56} The time limits for bringing a defendant to trial may be extended or tolled by
{¶ 57} “The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
{¶ 58} “* * *”
{¶ 59} “(E) Any period of delay necessitated by reason of a
{¶ 60} “* * *”
{¶ 61} “(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion.”
{¶ 62} A review of the files and records in this case reveals that at the time Defendant filed his motion to dismiss for want of a speedy trial on February 5, 2008, far more than the 270 days allowed for trial by
The Union County Case
{¶ 63} Defendant was indicted on these same charges in Union County, Ohio, on August 4, 2006. On August 7, 2006, Defendant was served with a summons on that indictment, at which point the speedy trial time began to run. Defendant was not arrested on these charges. Speedy trial time ran from August 7, 2006 until
{¶ 64} On September 27, 2006, the speedy trial time began running again and ran until October 20, 2006, when Defendant began filing from that date onward a number of additional pretrial motions, including a motion to compel the State to produce one of the child victims for trial, a motion for a protective order, a motion to compel discovery, a motion in limine, and a motion for a directed verdict. Those motions tolled the time for trial pursuant to
{¶ 65} As the trial court correctly points out in its findings of fact and conclusions of law on the speedy trial issue, throughout
{¶ 66} Between September 27, 2006, and October 20, 2006, twenty-three days chargeable to the State for speedy trial purposes elapsed. From October 20, 2006, until March 22, 2007, when the State dismissed this case, the time for trial was tolled as a result of Defendant‘s pretrial motions that were still pending,
The Clark County Case
{¶ 67} Defendant was reindicted on these same charges in Clark County, Ohio, on October 16, 2007. The time period between the State‘s dismissal of this case on March 22, 2007, and Defendant‘s reindictment on these same charges on October 16, 2007, is not included in the speedy trial computations because no charges were
{¶ 68} On October 17, 2007, Defendant was served with a summons on the Clark County indictment and the speedy trial time began to run. Defendant was not arrested on these charges. Speedy trial time ran from October 17, 2007, until February 5, 2008, at which time Defendant filed a motion to dismiss and a motion to suppress the evidence which tolled the time for trial pursuant to
{¶ 69} On April 10, 2008, the trial court overruled Defendant‘s motion to dismiss and his motion to suppress, and the speedy trial time began running again, and ran until April 14, 2008, at which time Defendant‘s jury trial commenced. Between April 10, 2008,
{¶ 70} At the time Defendant filed his motion to dismiss on February 5, 2008, claiming a violation of his speedy trial rights, thirty one days chargeable to the State for speedy trial purposes had elapsed during the Union County proceedings, and one hundred and eleven days chargeable to the State for speedy trial purposes had elapsed during the Clark County proceedings, for a total of one hundred and forty-two elapsed days. That is well within the two hundred and seventy day limit allowed by
{¶ 71} Furthermore, at the time Defendant‘s jury trial commenced in Clark County, on April 14, 2008, a total of one hundred and fifteen days chargeable to the State for speedy trial purposes had elapsed in the Clark County proceedings. That figure added to the thirty-one days chargeable to the State for speedy trial purposes that elapsed during the Union County proceedings, results in a total of one hundred and forty-six days chargeable to the State for speedy trial purposes that had elapsed. Again, that is well within the allowable two hundred and seventy day limit for bringing Defendant to trial.
{¶ 72} Defendant also complains that his constitutional speedy
{¶ 73} Here, the seven month delay between dismissal of the Union County, Ohio, proceeding by the State and Defendant‘s reindictment on those same charges in Clark County, Ohio, is legally insufficient to establish presumed prejudice and trigger a review
{¶ 74} Defendant‘s fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 75} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION FOR A CONTINUANCE OF THE JURY TRIAL.”
{¶ 76} The grant or denial of a continuance is a matter entrusted to the broad, sound discretion of the trial court, and an appellate court must not reverse the trial court‘s decision absent an abuse of discretion. State v. Unger (1981), 67 Ohio St.2d 65. An abuse of discretion means more than a mere error of law or an error in judgment. It implies an arbitrary, unreasonable, unconscionable attitude on the part of the trial court. State v. Adams (1980), 62 Ohio St.2d 151.
{¶ 77} In Ungar v. Sarafite (1964), 376 U.S. 575, 589-90, 84 S.Ct. 841, 11 L.Ed.2d 921, the United States Supreme Court stated:
{¶ 78} “The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend
{¶ 79} The Ohio Supreme Court has adopted a balancing test that weighs against any potential prejudice to a defendant, concerns such as the court‘s right to control its own docket, and the public‘s interest in the prompt and efficient dispatch of justice. Unger, 67 Ohio St.2d at 67. In evaluating a motion for a continuance, the court should consider: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstances which give rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. Id. at 67-68.
{¶ 80} On February 12, 2008, the court ordered trial of this
{¶ 81} The State argued that Defendant‘s request for a continuance, based upon the fact that the bill of particulars filed by the State raised new legal issues and was merely a delaying tactic, because Defendant had received essentially the same bill of particulars on August 29, 2006, over a year before, during the Union County proceedings, and Defendant at all times had open access to the State‘s entire file in this matter and therefore knew the facts and issues in this case. On April 11, 2008, the trial court filed its Entry denying Defendant‘s request for a continuance of the trial. On April 14, 2008, Defendant filed a motion seeking reconsideration of the court‘s previous ruling denying a continuance. Just prior to the start of trial on April
{¶ 82} The principal reason for Defendant‘s request for a continuance was his claim that the bill of particulars filed in 2006 in the Union County proceedings had been found by that court to lack specificity sufficient to fairly put Defendant on notice of what conduct on his part constituted the criminal offense(s) with which he was charged, and that the nearly identical bill of particulars filed on March 28, 2008, in the Clark County proceedings, suffered from the same deficiencies, because it failed to provide specific dates, times, and places the offenses occurred, and that those deficiencies had to be cured by a more specific bill of particulars before Defendant could properly prepare his defense. Simply stated, Defendant wanted a continuance to compel a more specific bill of particulars.
{¶ 83} Although there is no indication that a previous continuance had been sought by Defendant, the delay Defendant sought was of unspecified length. The State argued that the trial should not be delayed because the victims were prepared to go forward, so they could move on with their lives. Furthermore, as discussed in more detail in Defendant‘s seventh assignment of error, in addition to the bill of particulars filed on March 28,
{¶ 84} On these facts and circumstances, an abuse of discretion on the part of the trial court in denying Defendant‘s requested continuance has not been demonstrated. Defendant‘s sixth assignment of error is overruled.
SEVENTH ASSIGNMENT OF ERROR
{¶ 85} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION FOR AN ORDER COMPELLING THE STATE TO PROVIDE A PROPER AND SPECIFIC BILL OF PARTICULARS.”
{¶ 86} On March 28, 2008, two weeks before trial, the State filed a bill of particulars in compliance with the trial court‘s previous order that a bill of particulars be filed. Defendant complains that this bill of particulars filed by the State was strikingly similar to the one the Union County Court of Common Pleas found to be deficient. On the morning of trial, April 14,
{¶ 87} The offenses charged in this case involved the horrendous physical abuse of five young children that occurred almost daily over an extended period of time. The indictment filed on October 16, 2007, the bill of particulars filed on March 28,2008, and the amended indictment and bill of particulars filed on April 18, 2008, all specified that the offenses occurred during a four-year period of time, from July 24, 2000 through November 19, 2004.
{¶ 88} Defendant was charged with multiple counts of endangering children,
{¶ 89} Nevertheless, where an accused requests a bill of
{¶ 90} In many cases involving child abuse the victims are young children who are simply unable to remember exact dates and times, particularly where the crimes involve a repeated course of conduct over an extended period of time. Barnecut, supra. That is the case here. Furthermore, there is no evidence that the State knew of any more specific dates for the offenses than those in the indictment and bill of particulars. The State was simply unable to supply specific dates when each of these many offenses occurred because it did not have that information.
{¶ 91} The only remaining question is whether the State‘s inability to supply more specific dates and times for each of these many offenses that occurred over a four-year period resulted in material detriment to Defendant‘s ability to defend himself. Defendant claims in conclusory fashion that is the case, but fails
{¶ 92} Defendant‘s defense at trial was not that he was indisputably elsewhere during part, but not all, of the times specified for when these offenses occurred. Instead, Defendant‘s defense was that the children‘s stories about being abused were grossly exaggerated and therefore lies, that they were induced by leading questions and coaching by investigators, that Defendant‘s punishment of the children was proper parental discipline, and that it was Defendant‘s wife, Vonda Ferguson, not Defendant, who abused the children. The inexactitude in supplying dates and times that these offenses occurred would not be a material detriment to Defendant‘s ability to defend himself on those theories. Barnecut. No violation of Defendant‘s right to a fair trial or due process has been demonstrated.
{¶ 93} Defendant‘s seventh assignment of error is overruled.
EIGHTH ASSIGNMENT OF ERROR
{¶ 94} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A CUMULATIVE SIXTY-FIVE YEAR SENTENCE.”
{¶ 95} Defendant argues that the trial court abused its
{¶ 96} In State v. Jeffrey Barker, Montgomery App. No. 22779, 2009-Ohio-3511, at ¶36-38, we wrote:
{¶ 97} “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum, consecutive, or more than minimum sentences. State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the trial court must consider the statutory policies that apply to every felony offense, including those set out in
{¶ 98} “When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence, including
{¶ 99} “‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the trial court‘s attitude is unreasonable, arbitrary, or unconscionable.’ State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.”
{¶ 100} A review of the sentencing hearing demonstrates that the trial court considered the presentence investigation report, the purposes and principles of felony sentencing,
{¶ 101} In arguing that his sixty-five year prison term is excessive and constitutes an abuse of the trial court‘s discretion, Defendant points out that he has no previous convictions, he has
{¶ 102} Although the trial court imposed the maximum sentence allowable for each offense, it ran some sentences concurrently and others consecutively for a total sentence of sixty-five years. The record before us justifies the sentence imposed on Defendant. No abuse of discretion on the part of the trial court is demonstrated.
{¶ 103} Defendant‘s eighth assignment of error is overruled.
NINTH ASSIGNMENT OF ERROR
{¶ 104} “THE TRIAL COURT ERRED IN NOT MAKING A COMPLETE RULING ON THE ISSUE OF COURT COSTS AND RESTITUTION.”
{¶ 105} In his ninth and final assignment of error, Defendant argues only one issue with respect to the imposition of court costs and restitution: that the trial court‘s original June 10, 2008 Judgment Entry of Conviction did not constitute a final, appealable order because it did not include court costs and instead indicated that issue was still before the court and would be set for a hearing at a later date. In its brief, the State agreed with Defendant that the trial court‘s Judgment Entry of Conviction is not a final, appealable order because it did not include the costs of prosecution, and requested that we remand the matter to the trial court to calculate and impose court costs.
{¶ 106} In our Decision and Entry filed on July 14, 2010, we concluded that because the record in this case demonstrates that when the trial court filed its Judgment Entry of Conviction it clearly intended to impose court costs but deferred determination of the amount of those costs, the court‘s failure to calculate and include court costs in its Judgment Entry of Conviction constitutes a clerical error that may be corrected per
{¶ 107} No notice of appeal has been filed by either party from the trial court‘s October 28, 2010 Amended Judgment Entry of Conviction, and neither party has filed a supplemental brief challenging the amount of costs imposed by the trial court in this case, or the trial courts’ refusal to order restitution. Accordingly, Defendant‘s finality argument in this assignment of error has become moot by virtue of the trial court‘s October 28, 2010 Amended Judgment Entry of Conviction. There being no other issue raised relevant to court costs or restitution, Defendant‘s ninth assignment of error is overruled.
{¶ 108} The judgment of the trial court will be affirmed.
FROELICH, J., concurs
BROGAN, J. concurring separately.
BROGAN, J., concurring:
{¶ 109} I concur in the well-reasoned opinion of Judge Grady in all respects except whether the court‘s judgment entry of July 14, 2010 was a final appealable order. In State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, the Ohio Supreme Court held that a sentencing entry is a final appealable order as to costs. Justice Stratton writes in pertinent part the following:
{¶ 110} ” ‘A judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order.’ Bell v. Horton (2001), 142 Ohio App.3d 694, 696, 756 N.E.2d 1241. For example, an order that determines liability but defers the determination of damages is not a final appealable order, because it does not in effect determine the action and prevent a judgment or otherwise meet the definition in
R.C. 2505.02(B)(1) . State ex rel. A&D Ltd. Partnership v. Keefe (1996), 77 Ohio St.3d 50, 53, 671 N.E.2d 13. However, when the remaining issue ‘is mechanical and unlikely to produce a second appeal because only a ministerial task similar to asserting costs remains,’ then the order is final and appealable. (Emphasis added.) State ex rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 546, 684 N.E.2d 72.”{¶ 111} “Pursuant to
R.C. 2947.23 , it is undisputed that trial courts have authority to assess costs against convicted criminal defendants. When a court assesses unspecified costs, the only issue to be resolved is the calculation of those costs and creation of the bill. Calculating a bill for the costs in a criminal case is merely a ministerial task. Therefore, we hold that failing to specify the amount of costs assessed in a sentencing entry does not defeat the finality of the sentencing entry as to costs. See State v. Slater, Scioto App. No. 01CA2806, 2002-Ohio-5343, 2002 WL 31194337, ¶ 5, fn. 3.”
{¶ 112} More than two years before the court imposed the sentence upon Ferguson, the State filed a motion to certify the costs of prosecution as “court costs” under
{¶ 113} I therefore believe the July 14, 2010 judgment entry was not a final appealable order because it required the trial court to determine the threshold question of whether the special prosecutor fees were costs as encompassed by
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Copies mailed to:
David W. Phillips, Esq.
David R. Miles, Esq.
Hon. Richard J. O‘Neill