STATE OF OHIO, Plaintiff-Appellee, vs. RONALD W. FISHER, Defendant-Appellant.
Case No. 13CA25
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
Released: 09/18/14
[Cite as State v. Fisher, 2014-Ohio-4257.]
APPEARANCES:
Brian A. Smith, Barberton, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
McFarland, J.
{¶ 1} Ronald Fisher (Appellant) appeals his conviction in the Washington County Court of Common Pleas after he pleaded guilty to a bill of information charging him with aggravated assault, in violation of
FACTS
{¶ 2} On January 8, 2013, Appellant and his daughter Kayla Fisher went to the residence of William Williams. Williams later claimed after he opened the door, both individuals “charged” into his apartment, and Appellant stabbed Williams. Fisher‘s version of the incident was that when Williams opened the door, Williams grabbed Kayla by the throat and assaulted her. Fisher claimed he “poked” Appellant with a knife in defense of his daughter, and that he punched Williams in self-defense. The altercation lasted approximately 5 minutes and the Fishers left the scene. Kayla Fisher corroborated this story.
{¶ 3} The Fishers were later stopped by officers from the Marietta Police Department. Appellant was returned to the scene, was identified by witnesses, and was taken to the police station. He was later charged by bill of information on one count of burglary, a felony of the third degree and a violation of
ASSIGNMENTS OF ERROR
I. “THE TRIAL COURT ACTED CONTRARY TO LAW WHEN IT SENTENCED APPELLANT BASED ON IMPROPER FACTORS AND FAILED TO SENTENCE APPELLANT ON ALL COUNTS.”
II. “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED APPELLANT TO THE MAXIMUM TERM OF 36 MONTHS IN PRISON.”
A. STANDARD OF REVIEW
{¶ 5} In the past, this court has reviewed felony sentences under the two-step process set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4; State v. Batty, 4th Dist. Ross No. 13CA3398, 2014-Ohio-2826, ¶20; see, also, State v. McClintock, 4th Dist. Meigs No. 13CA4, 2013-Ohio-5598, ¶4; State v. Evans, 4th Dist. Washington No. 11CA16, 2012-Ohio-850, ¶5; State v. Moman, 4th Dist. Adams No. 08CA876, 2009-Ohio-2510, ¶6. Pursuant to Kalish, an appellate court first determines whether the trial court complied with all applicable rules and statutes. Kalish, supra, at ¶4. If it did, the appellate court then reviews the
{¶ 6} However, a growing number of appellate districts have abandoned Kalish‘s second step “abuse of discretion” standard of review. Batty, supra; State v. Brewer, 4th Dist. Meigs No. 14CA1, 2014-Ohio-1903, ¶31. Former
{¶ 7} When the General Assembly reenacted
B. LEGAL ANALYSIS
{¶ 8} Because Appellant‘s assignments of error have to do with Purported errors in his sentencing, we consider them jointly. Appellant has not specifically brought this appeal under the provisions of
{¶ 9} We begin by setting forth the trial judge‘s language and comments as he imposed sentence, in pertinent part as follows:
“The Court has considered the record, the oral statements made in open court this date, the victim impact statement and the pre-sentence investigation, and the principles and purposes of sentencing, set forth in 2929.11 and the seriousness and recidivism factors set forth in 2929.12.
As far as non-binding factors that the Court may consider- - which I don‘t believe I am required to consider, but I have three- - Mr. Fisher has an extensive prior criminal record. He‘s failed to respond favorably in the past to sanctions imposed for criminal convictions. That‘s his - -making recidivism greater. In fact, he‘s had numerous contempt of courts.
Making recidivism unlikely, he does now show remorse, although at the time, he was not remorseful when he first appeared in this court, but he is today, and he‘s had time to reflect on it.
Seriousness factors, there was serious physical injury to the victim. He still reports of pain every day from his wounds. It was an assault, also an a- - an assault offense. That‘s in seriousness factors.
Less serious, none of those are present.
Violence factors, there was physical harm to the- - the victim. It was with a deadly weapon and a dangerous knife. That‘s a violence factor.
Mr. Fisher has previously served a prison term.
And nonviolent, the only one that would appear would be that he did not have a firearm in his presence. He had a knife.
* * *
So, he‘s got an extensive record and a consistent record of drug involvement.
Having been found guilty of burglary and aggravated assault, the Court believes these are merged offenses and you will be sentenced at the election of the State to the - - on the third degree felony….”
{¶ 10} In response to Appellant‘s first argument, Appellee, State of Ohio, responds that
{¶ 11} The journal entry of the sentencing hearing states as follows:
“[A] The Court FINDS the following factors present which make this crime more serious than the norm:
(1) The Defendant caused serious physical harm to the victim.
(2) The victim is still in pain today.
(3) That one of the offenses committed was an assault offense.”
{¶ 12} We agree with Appellee. The sentence imposed by the trial court is not contrary to law because the trial judge considered “other relevant factors,” the fact an assault was committed, or the fact that the victim suffered serious physical harm and continued to experience pain. We find no merit to this argument contained in Appellant‘s first assignment of error and, hereby, overrule it.
{¶ 13} Appellant also argues the trial court‘s sentence was contrary to law when it failed to sentence Appellant on all counts. Specifically, Appellant argues the trial court failed to impose a sentence for aggravated assault. Appellant argues the trial court considered the facts leading to the aggravated assault charge as aggravating factors for purposes of sentencing on the burglary charge, without giving Appellant an opportunity to argue for
“Having been found guilty of burglary and aggravated assault, the Court believes these are merged offenses and you will be sentenced at the election of the state to the - - on the third degree felony….”
The entry further provides:
“…upon Defendant‘s Guilty plea to the crime of Aggravated Assault, a felony of the fourth degree, in violation of
Ohio Revised Code Section 2903.12(A)(2) , as charged in Count Two of the Bill of Information, the Defendant, Ronald W. Fisher, will not be sentenced on this Count. Count Two is merged with Count One, so that in the aggregate, the Defendant Ronald W. Fisher, be imprisoned and confined in the Ohio Correctional Reception Center, at Orient, Ohio, for a definite period of thirty-six (36) months, and be ordered to pay the costs of prosecution….”
{¶ 14} We interpret Appellant‘s argument as, in essence, contending that the counts of burglary and aggravated assault should not have been merged for sentencing. The Double Jeopardy Clause of the United States Constitution prohibits multiple punishments for the same offense. State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶9. To that end, the Ohio General Assembly enacted
“(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} The Supreme Court of Ohio has set forth a test to determine whether offenses are allied offenses of similar import, pursuant to
{¶ 17} “Animus” is defined for purposes of
{¶ 18} An appellate court applies a de novo standard of review in reviewing a trial court‘s
“(A) No person by force, stealth, or deception shall do any of the following: (3) Trespass in an occupied structure…with purpose to commit in the habitation, any criminal offense.”
{¶ 20} Fisher was also convicted of aggravated assault, in violation of
“(A) No person while under the influence of sudden passion, or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly,
(2) Cause or attempt to cause physical harm to another…by means of a deadly weapon, or dangerous ordnance, as defined in section 2923.11 of the Revised Code.”
{¶ 21} In this case, the facts demonstrate that Appellant forced his way into the victim‘s residence and stabbed the victim. Appellant‘s own version of the incident is that the victim assaulted his daughter first and Appellant reacted. Under either scenario, the incident occurred very quickly after the victim opened the door of his apartment. The facts also demonstrate Appellant used a knife and did, in fact, cause physical harm to the victim. Both offenses were committed with the same conduct. At
{¶ 22} Furthermore, the trial judge clearly explained his rationale at sentencing Appellant on the burglary charge only, when he stated that he believed they were merged offenses. We find this portion of Appellant‘s first assignment of error also to be without merit. We conclude by overruling Appellant‘s first assignment of error.
{¶ 23} Finally, Appellant argues the trial court erred by ordering the maximum sentence of 36 months. Specifically, Appellant argues the trial court relied heavily on the finding that an “assault offense” took place, which as a criminal offense, was one of the elements of burglary as defined by
{¶ 24} Maximum sentences do not require specific findings. State v. Lister, 4th Dist. Pickaway No. 13CA15, 2014-Ohio-1405, ¶10, citing State v. White, 2013-Ohio-4225, 997 N.E.2d 629, (1st. Dist.), ¶7. Although trial courts have full discretion to impose any term of imprisonment within the statutory range, they must consider the sentencing purposes in
“(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”
{¶ 25} Appellant relies on Sims, to support his claim that the trial court abused its discretion in sentencing him to the maximum term on the burglary count. Specifically, he argues because he was convicted of burglary, which included an element of “intent” to commit a criminal offense, the trial court was prohibited from considering the offense which he did commit. “‘A trial court may not elevate the seriousness of an offense by pointing to a fact that is also an element of the offense itself.’ ” State v. Sims, 4th Dist. No. 10CA17, 2012-Ohio-238, ¶16, quoting State v. Davis, 4th Dist. NO. 09CA28, 2010-Ohio-555, ¶24. ” ‘Even though [a trial court] has discretion in choosing an appropriate sentence, when a court considers an improper sentencing factor, it has committed an abuse of discretion.’ ”Martin at ¶12, quoting Sims at ¶16, quoting Davis at ¶25. An abuse of discretion is more than an error of judgment; it implies that the court‘s
{¶ 26} Appellee points to a more recent case, State v. Martin, 4th Dist. Washington No. 12CA10, 2013-Ohio-1324, to distinguish the case at bar. In Martin, the defendant appealed his 36-month sentence for failure to comply with an order of a police officer and argued that the trial court abused its discretion by considering an element of his offense to determine whether his crime was more serious than usual for sentencing purposes. The only “seriousness factor” recited by the trial court in the sentencing entry was that the defendant caused serious physical harm to property and there was a potential for serious physical harm to persons. This court held because these same findings are necessary in order to elevate Martin‘s crime to a third degree felony, the court improperly considered an element of his offense to conclude his crime was more serious than the norm for sentence. We therefore held the court considered an improper sentencing factor and abused its discretion.
{¶ 27} Here, Appellant was convicted of burglary, for a violation of
{¶ 28} Appellee argues the sentencing entry shows the court found the offense more serious because Appellant caused serious physical harm to the victim and because the victim was still in pain at the time of sentencing. The entry also indicates the court considered this burglary more serious because the criminal offense was committed and because it was an assault. Appellee argues these are unique facts which reflect an accurate assessment of the relative severity of this particular crime, as compared with other burglaries. We agree.
{¶ 29} Here, the trial court sentenced Appellant to thirty-six months in prison for his violation of
“The Court has considered the record, the oral statements made in open court this date, the victim impact statement and the pre-sentence investigation and the principles and purposes of sentencing, set forth in 2929.11 and the seriousness and recidivism factors set forth in 2929.12.”
{¶ 30} When sentencing an offender, each case stands on its own unique facts. Lister, supra, at ¶13 citing State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-Ohio-5669, ¶15, quoting State v. Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶58. In the sentencing remarks, the trial judge here noted an assault offense took place within the commission of the burglary- not a non-violent offense such as theft or even an act of vandalism. The trial judge also noted a 4-inch knife was used and the victim continued to experience pain months after the incident.
{¶ 31} The trial court imposed a sentence within the appropriate definite prison term pursuant to
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.