STATE OF OHIO v. JASON FERGUSON
CASE NO. 15 JE 0008
STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 27, 2016
2016-Ohio-8414
Criminаl Appeal from the Court of Common Pleas of Jefferson County, Ohio Case Nos. 13 CR 136, 14 CR 10, 14 CR 166, 14 CR 170
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin Prosecuting Attorney Atty. Edward L. Littlejohn Assistant Prosecuting Attorney Jefferson County Justice Center 16001 State Route 7 Steubenville, Ohio 43952
For Defendant-Appellant: Atty. Bernard C. Battistel 2021 Sunset Boulevard Steubenville, Ohio 43952
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb
WAITE, J.
{¶1} Appellant Jason Ferguson appeals his March 13, 2015 sentencing entry from the Jefferson County Court of Common Pleas imposing two consecutive maximum prison sentences and a mandatory lifetime Class I Driver‘s License Suspension. This sentencing followed Appellant‘s guilty plea to two counts of failure to comply with an order or signal of a police officer, violations of
Facts and Procedural History
{¶2} Appellant has had an alcohol and drug problem for most of his adult life, which he attributed to his use of prescription pain medication after suffering severe injuries in a car accident and then, years later, in an industrial accident.
{¶3} On or about June 13, 2013, Appellant led police on a high-speed chase, driving in the wrong direction on State Route 7 in Jefferson County, a four-lane divided highway. He was indicted on one count of failure to comply with an order or signal of a police officer on September 4, 2013. (Case No. 13-CR-136).
{¶4} On or about December 25, 2013 and while case no. 13-CR-136 was pending, Appellant, aware that he was under arrest for domestic violenсe, fled from police on foot. He was indicted on January 30, 2014 on one count of escape, in
{¶5} Appellant entered a guilty plea to all three of the charges in the indictments. On February 13, 2014, in a joint judgment entry sentencing Appellant in both cases, the trial court imposed a sentence of five years of community control beginning with intensive supervision, a $7,500.00 fine, and a lifetime weapons disability ban. Further, Appellant‘s Class I Driver‘s License was suspended for three years without eligibility for occupational privileges.
{¶6} Roughly six months later, in August of 2014, Appellant led police on another high speed chase, travelling at speeds in excess of 100 miles per hour. On Decеmber 3, 2014, he was indicted on three counts of felonious assault, in violation of
{¶7} On November 5, 2014, while Case No. 14-CR-170 was pending, Appellant led police on a third high speed chasе through portions of Ohio, West Virginia, and Pennsylvania, at speeds in excess of 100 miles per hour. The chase ended when a West Virginia police officer intentionally collided with the vehicle that Appellant was driving. Appellant was indicted on December 3, 2014 on one count of failure to comply with order or signal of a police officer. (Case No. 14-CR-166).
{¶9}
(A) No person shall fail to comply with any lawful order or direction of any police оfficer invested with authority to direct, control, or regulate traffic.
(B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person‘s motor vehicle to a stop.
(C)(1) Whoever violates this section is guilty of failure to comply with an order or signal of a police officer.
* * *
(5)(a) A violation of division (B) of this section is a felony of the third degree if the jury or judge as trier of fact finds any of the following by proof beyond a reasonable doubt:
(i) The operation of the motor vehicle by the offender was a proximate cause of serious physical harm to persons or property.
(ii) The oрeration of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.
{¶10} The state argued that Appellant caused substantial risk of physical harm with each high speed chase, particularly the November 5, 2014 incident, which lasted for approximately fifteen minutes. The state explained that there were numеrous cars on the road and that Appellant drove through a construction zone. Based on the seriousness of the offenses, the likelihood of recidivism, and Appellant‘s criminal history, which was littered with misdemeanor drug, assault, domestic abuse, and resisting arrest charges dating back to 1992, the state argued in favor of consecutive 30-month sentences for each of the substаntive crimes, as well as the community control violation, for a cumulative sentence of ninety months, or seven-and-one-half years.
{¶11} Defense counsel argued that the state‘s proposed sentence would put Appellant in a category with violent offenders. He claimed that Appellant had committed victimless, weaponless crimes because no оne was injured in any of the high speed chases. Defense counsel characterized Appellant‘s crimes as “[t]hree glorified car chases.” (3/11/15 Hrg. Tr., p. 36.) Because the pleas in case nos. 13-CR-136 and 14-CR-10 resulted in Appellant‘s first felony conviction, defense counsel also argued that “there‘s a substantial period of time there where he was a law-abiding citizen.” Id.
{¶13} Counsel then addressed each of the sentencing factors in
{¶14} Appellant asked the trial court for drug treatment to overcome his addiction to prescription pain medication. He explained that he relied on pain medication to be able to work, and that the final offense was committed after he attempted to get admitted to a drug rehabilitation facility but was told that a bed would not be available until the following day. He threw himself on the mercy of the trial court and he promised that he would not make another mistake. Appellant said
{¶15} Prior to imposing sentence, the trial court judge stated, “if this was just a drug case, [the trial court would] be with [Appellant] all the way. But it‘s not.” Id. at 52. The court reasoned that “the drug casе, he puts himself at risk. This, he put everybody else at risk. * * * Blind, dumb luck is why no one is dead. Blind, dumb luck three times.” Id. Because Appellant was on community control when the substantive crimes were committed, the judge concluded that “he does pose the greatest chance of recidivism.” Id. at 53. Accordingly, Appellant‘s community control was revoked and the court imposed consecutivе maximum terms of imprisonment for each of the substantive crimes and imposed a consecutive one-year term for Appellant‘s community control violation in case no. 13-CR-136, resulting in a cumulative sentence of seven years.
{¶16} During a colloquy regarding community control, Appellant was asked if the judge had forgotten to inform him of any aspect of his plea. When the рrobation officer informed the trial court that it had omitted notice of the license suspension prior to the entry of Appellant‘s plea, the trial court stated, “[A]nd I should have told you [about the lifetime license suspension] before you entered the plea, and I didn‘t. So, if you want to back out of this whole mess, you get to.” Id. at 57.
{¶18} The trial court judge reiterated, “[i]f he wants to back out, he gets to, because I didn‘t tell him about the lifetime license suspension. We‘ll go to trial, if that‘s what you want to do.” Id. at 58. The judge suggested a 10-minute recess in order to allow Appellant to confer with his counsel and consider his options. When the hearing resumed, defense counsel stated, “I‘ve discussed it with my client. We‘re satisfied. * * * We want the sentence imposed by the Court.” Id. at 59.
{¶19} Appellant interrupted the exchange, stating: “No. I don‘t want to do seven years.” Id. The judge responded, “[w]ell, I know you don‘t want to do seven years. Here are your choices: You can do the seven years or you can go to trial and see what happens.” Id. Appellant responded, “[s]even years.” Id. at 60. The judge concluded, “[s]o it‘s everything I just said, plus the lifetime license suspension.” Id.
{¶20} In a joint judgment entry of sentence for both cases filed on March 13, 2015, the trial court imposed a prison term of seven years and a mandatory lifetime Class I Driver‘s License Suspension. This timely appeal fоllowed.
Analysis
{¶21} Appellant advances two assignments of error. The first assignment is based on the length of his prison sentences. The second involves the trial court‘s failure to notify him regarding the imposition of a lifetime Class I Driver‘s License Suspension prior to the entry of his guilty plea.
THE IMPOSITION OF THE MAXIMUM PERIOD OF INCARCERATION AGAINST THE DEFENDANT IS CONTRARY TO O.R.C. §2929.11 AND §2929.12 .
{¶22} An appellate court is permitted to review a felony sentence to determine if it is contrary tо law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. However, “an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.” Id. at ¶ 23.
{¶23} When determining a sentence, a trial court must consider the purposes and principles of sentencing in accordance with
[R]eversal is not automatic where the sentencing court fails to provide reasons for its sentence or fails to state аt sentencing or in a form judgment entry, “after considering
R.C. 2929.11 and2929.12 “. We return to the Adams rule that a silent record raises the rebuttable presumption that the sentencing court considered the proper factors. We hereby adopt the Second District‘s statement that where the trial
court‘s sentence falls within the statutory limits, “it will be presumed that the trial court considered the relevant factors in the absеnce of an affirmative showing that it failed to do so” unless the sentence is “strikingly inconsistent” with the applicable factors. (Emphasis deleted.)
State v. Grillon, 7th Dist. No. 10 CO 30, 2012-Ohio-893, ¶ 131 citing State v. James, 7th Dist. No. 07-CO-47, 2009-Ohio-4392, ¶ 50. Hence, we presume the trial court considered
{¶24} Although there is no reference to either
The second and third offenses were while he was on community control from the first. That‘s horrible.
I think he does pose the greatest chance of recidivism. He keeps messing up, and then telling us what a great guy he is and it‘s not his fault.
I -- I would be with him if all he had was a pocket full of what some doctor prescribed for him, and I would want to fix that. But I can‘t have him kill somebody while we‘re trying to fix his drug problem.
(3/11/15 Hrg. Tr., pp. 53-54.) As such, this record demonstrates the trial court‘s consideration of
{¶25} Next, there is clear and convincing evidence in the record supporting the trial court‘s imposition of maximum sentences for the substantive crimes. In less than two years, Appellant committed the same crime on three separate occasions. Moreover, the commission of the substantive crimes in this case occurred while he was serving a community control sentence for the identical crime. In addition to the fact that Appellant was on community control at the time, his driver‘s license was suspended when he committed the two underlying crimes for which he was sentenced. Of greatest concern, the crimes, as described by the trial court and state, reveal an incalculable and escalating degree of danger to the general public. Defense counsel‘s argument that Appellant led a law-abiding life for a significant number of years completely ignored his substantial misdemeanant history since 1992.
{¶26} Simply stated, Appеllant demonstrated a marked inability to control his own behavior and a blatant disregard for the safety of others, not once, but three separate times in less than two years. The imposition of the maximum allowable sentences under Ohio law is supported by clear and convincing evidence in the record.
{¶28} In summary, the trial court considered the factors in
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT INITIALLY INFORMING THE DEFENDANT THAT HE FACED A LIFETIME DRIVER‘S LICENSE SUSPENSION BEFORE ACCEPTING HIS PLEA.
{¶29} A plea of guilty or no contest must be made knowingly, intelligently and voluntarily for it to be valid and enforceable. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. In order to ensure that a plea in a felony case is knowing, intelligent and voluntary,
{¶30}
{¶31} A defendant must also be informed of his nonconstitutional rights prior to entering a guilty plea, which include the nature of the charges with an understanding of the law in relation to the facts, the maximum penalty, and that after entering a guilty plea or a no contest plea the court may proceed to judgment and sentence.
{¶32} Here, the trial court recognized its error in failing to notify Appellant that he was subject to a lifetime Class I Driver‘s License Suspension prior to accepting his plea. Accordingly, the trial court provided Appellant with an opportunity to withdraw
{¶33} The record establishes that Appellant was given an opportunity to withdraw his plea, with the knowledge of both the imposition of the seven-year prison sentence and the lifetime license suspension. Appellant chose instead to enter a guilty plea to the substantive crimes and the community control violation. Based on the totality of the circumstances, the trial court substantially complied with
Conclusion
{¶34} In summary, the trial court considered the factors in
Donofrio, P.J., concurs.
Robb, J., concurs.