STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO VS. ANDREW G. IRWIN
CASE NO. 11 CO 7
SEVENTH DISTRICT
June 13, 2012
[Cite as State v. Irwin, 2012-Ohio-2720.]
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2010 CR 171 JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Robert Herron Columbiana County Prosecutor Atty. Ryan P. Weikart Assistant Prosecuting Attorney 105 South Market Street Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Douglas A. King Hartford, Dickey & King Co., LPA 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44113
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
{¶1} Appellant Andrew Irwin appeals his convictions on charges of assault on a police officer and harassment with a bodily substance. The crimes occurred while he was being held in the Columbiana County Jail awaiting retrial for the murder of Emily Foreman. The offenses were fifth degree felonies. He pleaded guilty to both charges. Prior to the sentencing hearing in this case, he was convicted of the murder. A joint sentencing hearing in this case and the murder case occurred shortly thereafter. The court imposed fifteen years to life in prison on the murder conviction, and then imposed two consecutive nine-month prison terms in the instant case. The court also ordered that the sentence in this case be served consecutive to the murder sentence.
{¶2} Appellant appeals the consecutive sentence imposed in the instant case. The record indicates that the consecutive sentence was warranted for a variety of reasons, including the seriousness of the crime and to deter future crime. Appellant also questions why the two sentences were not merged as allied offenses of similar import, but the crimes were committed against two different police officers. Therefore, they warranted separate punishments. Appellant further contends that he should have been given jail-time credit in this case while being held in the jail on the murder charge. A criminal defendant is not entitled to jail-time credit for confinement arising from another offense. Appellant was held in jail on a murder charge and is not entitled to any jail-time credit in this case. Finally, Appellant offered a pro se assignment of error arguing that the admission of a videotape of a subsequent incident between Appellant and corrections officers violated the rules of evidence.
History
{¶3} On March 19, 2010, Appellant was returned to the Columbiana County Jail to be retried for the murder of Emily Foreman in Case No. 2006-CR-303. On July 13, 2010, he assaulted Sergeant Jared Kinemond and spit on Lieutenant Pete Neiheisel while he was being held in jail. The two officers are employed by the jail. On July 21, 2010, Appellant was indicted on one count of assault,
{¶4} On July 22, 2010, the trial court set Appellant‘s bond at $5,000 on his own recognizance. Appellant refused to sign the bond. On August 12, 2010, Appellant was arraigned in this case and the court continued the recognizance bond, although he remained in jail awaiting his murder trial.
{¶5} On December 7, 2010, Appellant pleaded guilty to both charges in the instant case. The recommended sentence in the plea agreement was for consecutive nine-month prison terms. On January 25, 2011, Appellant was once again convicted of the murder of Emily Foreman. On February 1, 2011, a joint sentencing hearing took place. At sentencing, it was established that Appellant, an intravenous drug user, punched Sgt. Kinemond in the head and scratched him
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES HEREIN BOTH WHEN IT IMPOSED CONSECUTIVE NINE MONTH SENTENCES FOR THE TWO COUNTS CONTAINED WITHIN 2011 CR 171 AND WHEN IT IMPOSED THOSE CONSECUTIVE SENTENCES CONSECUTIVE WITH THE FIFTEEN TO LIFE INDEFINITE SENTENCE IMPOSED IN 2006 CR 303/ 2007 CO 22/ 2011 CO 6.
{¶6} We review felony sentences to determine whether the sentence is clearly and convincingly contrary to law, and if it is not contrary to law it is then reviewed for abuse of discretion. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17.
{¶7} The record reflects that the sentence is not contrary to law. The crimes in this case were fifth degree felonies punishable by up to twelve months in prison each, and the court imposed less than the maximum possible sentence for each crime.
{¶8} Appellant argues that the imposition of consecutive sentences was an abuse of discretion. He maintains that the court needlessly “piled on” extra prison time after it had already imposed a sentence of 15-years to life for the murder. Appellant postulates that none of seriousness factors found in
{¶9} Appellant is correct that the trial court did not explain in any particular detail why it imposed the consecutive sentences. Appellant considers this to be reversible error, however, Appellant is incorrect. In the face of a silent record the trial court‘s sentencing decision will be presumed to be correct. Kalish at ¶18. As we have previously held: “Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria.” State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, ¶60, citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992). The record is not completely silent with respect to the sentencing statutes because the court mentioned its consideration of the purposes and principles of sentencing both at the sentencing hearing and in the sentencing judgment entry.
{¶10} Additionally, there is no fact-finding requirement imposed by Hodge or by any other caselaw. The Hodge case makes clear that the United States Supreme Court‘s decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), does not revive Ohio‘s former consecutive-sentencing statutory provisions,
{¶11} Appellant alleges that none of the factors found in
{¶12} The record indicates that Appellant was in jail on a murder charge when the crimes occurred. The crimes occurred against corrections officers. Appellant hit an officer in the face causing a swollen lip, lacerations and scrapes on the neck and swelling on the officer‘s forehead. These facts are all relevant to the seriousness of the crimes. Further, Appellant showed no remorse for his actions and made it clear at the sentencing hearing that he would commit similar crimes in the future if provoked. Appellant was involved in similar incidents both before and after the crimes at issue in this case occurred. The prosecutor made a very good point at sentencing that if there are no serious consequences for jailhouse assaults on police officers committed by defendants who are serving life sentences, then there will be no deterrent on these defendants from committing future assaults. The record is replete with evidence supporting the trial court‘s decision to impose consecutive sentences based on the seriousness of the crimes and to deter future crime.
{¶13} Appellant contends that the crimes were allied offenses of similar import and should have been merged at sentencing, but there is no merit to his argument. Appellant did not raise this issue at trial. Hence, it is reviewed only for plain error. State v. Carter, 89 Ohio St.3d 593, 598, 734 N.E.2d 345 (2000). “Plain error is one in which but for the error, the outcome of the trial would have been different.” State v. Hancock, 7th Dist. No. 09-JE-30, 2010-Ohio-4854, ¶55. The Ohio Supreme Court
{¶14}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶15} Merger of allied offenses is a question of law. State v. Taylor, 7th Dist. No. 07-MA-115, 2009-Ohio-3334, ¶19. Questions of law are reviewed de novo. State v. Ryan, 7th Dist. No. 10-MA-173, 2012-Ohio-1265, ¶44.
{¶16} “When determining whether two offenses are allied offenses of similar import subject to merger under
{¶18}
{¶19} This record indicates that Appellant was being held at the Columbiana County Jail awaiting retrial for the murder of Emily Foreman. He punched Sgt. Jared Kinemond in the face causing a swollen lip, lacerations and other injuries. The officers sprayed mace on Appellant which blurred his vision. Appellant then spit in the direction of Lt. Pete Neiheisel, hitting him on his mouth. The record describes two completely different actions by Appellant separated in time by the macing incident. Additionally, he committed the acts against two different victims. Separate convictions and sentences are permitted when there are multiple victims. State v. Johnson, 7th Dist. No. 04 MA 193, 2007-Ohio-3332, ¶33, citing State v. Garrison, 123 Ohio App.3d 11, 16, 702 N.E.2d 1222 (2d Dist.1997).
{¶20} All of Appellant‘s arguments under this assignment of error are without merit and are overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT JAIL TIME CREDIT HEREIN.
{¶21} Appellant contends that jail-time credit should have been applied to the instant charges because he failed to sign his recognizance bond and was not released on bond at any point during the litigation of the two charges.
{¶22} Appellant was not held solely on the charges in the instant case, and thus, was not entitled to jail-time credit in this case. The record indicates that he received jail-time credit in the murder case. Appellant‘s assignment of error is overruled.
ANDERS ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE THE VIDEOTAPE IDENTIFIED AND ADMITTED AT THE SENTENCING HEARING.
{¶23} Appellant‘s counsel presents this error as a pro se error from Appellant himself. Although counsel presents this as an Anders assignment of error, he is not asking to withdraw as counsel as is normally the case when Anders is invoked. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel is simply presenting this pro se error to the Court as a courtesy to his client. Counsel acknowledges that he himself would not have argued it, knowing full well that there is no legal basis to support the error.
{¶24} Appellant argues that the prosecutor should not have been permitted to admit a videotape at the sentencing hearing that showed him threatening the police and taunting them about the crimes he had committed a few weeks earlier in this
CONCLUSION
{¶25} This appeal only relates to questions about Appellant‘s felony sentence. The record demonstrates that the sentence of two consecutive nine-month prison terms was justified and did not constitute an abuse of the trial court‘s discretion. The crimes were not allied offenses primarily because they were committed against two different officers. Therefore, the sentences should not have merged. The trial court was not required to make any specific findings during the sentencing phase and there is no error in the trial court‘s overall silence about the factors relied on in creating the sentence. Appellant was not owed any jail-time credit in this case because he was actually being held on a charge of murder in another case. There is no merit to the argument that the rules of evidence were not followed at sentencing
Donofrio, J., concurs.
DeGenaro, J., concurs.