STATE OF OHIO, Plaintiff-Appellant -vs- TONY A. JEFFERY, Defendant-Appellee
Case No. 10 CA 120
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 1, 2011
2011-Ohio-2654
Hon. W. Scott Gwin, P. J., Hon. John W. Wise, J., Hon. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 09 CR 558H; JUDGMENT: Reversed and Remanded
For Plaintiff-Appellant
JAMES J. MAYER, JR. PROSECUTING ATTORNEY BAMBI COUCH PAGE ASSISTANT PROSECUTOR 38 South Park Street Mansfield, Ohio 44902
For Defendant-Appellee
JOHN C. O‘DONNELL, III 13 Park Avenue West Suite 300 Mаnsfield, Ohio 44902
Wise, J.
{¶1} Appellant State of Ohio appeals the decision of the Court of Common Pleas, Richland County, sentencing Appellee Tony A. Jeffery on one count of failure to comply with an order оr signal of a police officer. The relevant facts leading to this appeal are as follows.
{¶2} On July 20, 2009, an Ontario, Ohio, police officer engaged in a high-speed pursuit of a pickup truck driven by aрpellee. The truck crashed into a pole, and appellee was thereupon apprehended. The pickup was discovered to have been reported stolen in Obetz, Ohio.
{¶3} On November 25, 2009, appellee appeared before the court on a final pre-trial on a charge of failure to comply with an order or signal of a police officer,
{¶4} Appellee failed to appear for his change of plea hearing. In the meantime, in separate cases, the Delaware County Court of Common Pleas sentenced appellee on April 7, 2010 to sixteen months in prison for receiving stolen property, and the Franklin County Court of Common Pleas sentenced appellee on a burglаry conviction, resulting in a conveyance to prison on July 21, 2010.
{¶6} On October 13, 2010, the State filed a nоtice of appeal. It herein raises the following sole Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED BY FAILING TO IMPOSE A CONSECUTIVE PRISON TERM FOR FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE OFFICER PURSUANT TO OHIO REVISED CODE SECTION 2921.331(D).
I.
{¶8} In its sole Assignment of Error, Appellant State of Ohio contends the trial court committed reversible error by failing to impose upon aрpellee a statutorily mandated consecutive sentence. We agree.
{¶9}
{¶10}
{¶12} In the case sub judice, the trial court determined that it was impermissible to sentence appellee conseсutive to the prior sentences he had received in Delaware and Franklin Counties, as indicated by the following discussion with the attorneys:
{¶13} “MS. COUCH-PAGE: Your Honor, I don‘t think concurrent time - - he‘s eligible for concurrent time on a fleeing and eluding.
{¶14} “THE COURT: I can‘t hear you.
{¶15} “MS. COUCH-PAGE: I said I don‘t think fleeing and eluding allows for concurrent time by statute.
{¶16} “THE COURT: Well, the time he‘s doing now is for something that happened afterwards.
{¶17} “MS. COUCH-PAGE: Right. But it‘s a situation that fleeing and eluding can‘t be concurrent time by statute.
{¶18} “MR. HITCHMAN: This offеnse we‘re here for today occurred obviously before the other two offenses.
{¶19} “THE DEFENDANT: July 17th of last year.
{¶20} “THE COURT: How can I sentence him to consecutive time for events that happened afterwards?
{¶22} “THE COURT: Yeah.
{¶23} “MS. COUCH-PAGE: Yeah.
{¶24} “THE COURT: I think it would be up to the judge оn those cases whether or not it‘s concurrent or consecutive. I don‘t believe I can sentence him consecutive after the fact.
{¶25} “MS. COUCH-PAGE: The fact that he wasn‘t available here, Your Honor, I don‘t know where he‘s been for - - this happened last July. This - - all the negotiations have been ongoing. And then he - - we‘re now into July of 2010.
{¶26} “THE COURT: What did the Court say in Franklin County about concurrent or consecutive? Did they say anything?
{¶27} “MR. HITCHMAN: No, they didn‘t say anything.
{¶28} “* * *
{¶29} “MR. HITCHMAN: The good news is he hаs no other cases pending.
{¶30} “THE COURT: All you legalese, somebody has to know the answer. Can I sentence him consecutive to something that happened afterwards? I don‘t think so.
{¶31} “MS COUCH-PAGE: Your Honor, it requires under the statute fleеing and eluding be consecutive time. It doesn‘t matter who sentenced him first.
{¶32} “THE COURT: Well - -
{¶33} “MS. COUCH-PAGE: Because of the fact that - -
{¶34} “THE COURT: Where is that in the law?
{¶35} “MS. COUCH-PAGE: I‘ll get it for you. I imagine we‘re not sentencing him today anyway, so I will get it for you.
{¶37} “THE DEFENDANT: I am four hours away from here.
{¶38} “MS. COUCH-PAGE: What was indicated in the file back in November of 2009 is that we were to recommend a prison sentence. Brent Robinson, I would suggest two years based upon the facts.
{¶39} “THE COURT: I wrote down one year release. That‘s what was agreed to.
{¶40} “MS. COUCH-PAGE: Well, skip past Mr. Jeffery and I‘ll get you where it says in the statutes about consecutive time on fleeing and eluding.
{¶41} “THE COURT: Show me where it says it has to be consecutive to time that happened afterwards. I know it says consecutive to things that happened before. No question about it. I don‘t think it‘s constitutional. I don‘t think it‘s legal to sentence somebody retroactively to something consecutive.” Tr., Sentencing Hearing, аt 13-16.
{¶42} We first note that
{¶43} The General Assembly has thus clearly generally allowed Ohio felony prison terms to be consecutive to prison terms imposed in other state courts оr in the
{¶44} Nonetheless, several Ohio appellate cases have generally approved “оther case” or “prior case” consecutive sentences. For example, in State v. Clark, Hamilton App.No. C-010532, 2002-Ohio-3135, a defendant challenged his consecutive sentences following pleas of guilty to charges of robbery, recеiving stolen property, forgery, and failure to comply with the order of a police officer. Id. at ¶2 - ¶ 3. Said charges were spread out over three separate Hamilton County Common Pleas trial case numbers. Id. The trial court nonetheless ordered that Clark‘s five-year prison term for robbery (trial case no. B 0101787) and two-year prison term for failing to comply (trial case no. B 0102417) were to be served consecutively. Id. at ¶ 4. The First District Court, recognizing the requirements of
{¶45} The case of State v Spicer, Cuyahoga App.Nos. 92384, 92385, 2010-Ohio-61, is also instructive. In that case, the Eighth District Court of Appeals held as follows in the defendant‘s сhallenge to his consecutive sentences: “Although the statute does not specifically state whether it was meant to apply to instances where a defendant is being sentenced on two or more separate cases, we find that, pursuant to
{¶47} Mooney аppealed in the cocaine possession case, case number 2004CR0030. He challenged (pre-Foster) the imposition of the three-year sentence for cocaine possession consecutive to the two-year sentence for failure to comply with the order of a police officer in the other common pleas case. In affirming the trial court, we recited
{¶48} Therefore, based on the foregoing case law guidance, we find merit in the State‘s argument that
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
JUDGES
JWW/d 0517
STATE OF OHIO, Plaintiff-Appellant -vs- TONY A. JEFFERY, Defendant-Appellee
Case No. 10 CA 120
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to appellee.
JUDGES