STATE OF OHIO, Plaintiff-Appellee, vs. DEMETRIUS RAILEY, Defendant-Appellant.
APPEAL NO. C-120029
TRIAL NO. B-1107720
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 19, 2012
[Cite as State v. Railey, 2012-Ohio-4233.]
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentence Vacated, and Cause Remanded
Date of Judgment Entry on Appeal: September 19, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Tim McKenna, for Defendant-Appellant.
Please note: This case has been removed from the accelerated
J. HOWARD SUNDERMANN, Presiding Judge.
{1} Defendant-appellant Demetrius Railey appeals his conviction for abduction following a benсh trial. In two assignments of error, he challenges the sufficiency and weight of the evidence supporting the conviction and the trial court‘s imposition of an 18-month prison sentence. Finding merit only in his second assignment of error, wе affirm the trial court‘s finding of guilt, but we vacate Railey‘s sentence, and remand this case to the trial court for resentencing in accordance with this opinion and the law.
I. Trial Court Proceedings
{2} Railey was indicted for one count of kidnapping in connection with a domestic dispute that resulted in a three-and-a-half hour standoff with police. Railey‘s case proceeded to a trial before the court. During the trial, the state presented evidencе that Railey and his girlfriend had had a very heated argument in their apartment in the early morning hours of November 29, 2011. Railey‘s girlfriend called 911 and reported that an assault was ongoing in the apartment. She made a second “oрen” call to 911. Officer Anthony Egner was listening to the 911 call while en route to the apartment. He testified that a woman was screaming “help me” and a male voice stated, “Where‘s my gun?”
{3} When Officer Egner arrived, he knocked оn the apartment door. Railey opened the door. Officer Egner asked Railey to step outside, but Railey slammed the door shut and locked it. Officer Egner
{4} Officer Egner testified that one hour after the SWAT team arrived, Railey‘s girlfriend came out of thе apartment and was placed in his patrol car. Railey, however, remained in the apartment for three and a half hours.
{5} Officer Barry Rogers, a SWAT team member, testified that upon his arrival, he was informed that Railey had a gun and had barricaded himself in the apartment with his girlfriend and her child. During attempted negotiations with Railey, Railey said it would take $50,000 for him to let the child out of the apartment. Officer Rogers testified that the standoff lasted until poliсe used a battering ram to open the door because Railey had moved a couch in front of it. When they searched the apartment, the police found the child asleep in her room.
{6} At the conclusion of the state‘s evidence, Railey‘s counsel made a
{7} Railey testified that he lived in the apartment with his girlfriend and her child. According to Railey, Officer Egner came to the door, but he spoke only with Railey‘s girlfriend. His girlfriend told Officer Egner that “nothing was going [on and that she was] fine.” Railey asked his girlfriend to go outside and talk with thе police. She then left the apartment and he locked the door behind her. When his girlfriend failed to return, he fell asleep on the couch, which was next to the front door, and woke up to a battering ram in his face.
{8} Rаiley testified that he was unaware the SWAT team had been called. He denied being upset, yelling obscenities at the police, or pushing the couch against the door. Railey testified that he did not negotiate with poliсe. Railey admitted that his girlfriend‘s four-year-old daughter was asleep in the apartment. He testified that he cared for the child on a daily basis, and that it was usual for him to be alone in the apartment with her. He denied moving the child or taking her without her mother‘s permission.
{9} Railey‘s girlfriend testified that she lived with Railey and her four-year-old daughter, and that she had given Railey permission to watch her daughter while she was working. The trial court found Railey guilty of abduction аnd sentenced him to 18 months in prison.
II. Sufficiency and Weight of the Evidence
{10} In his first assignment of error, Railey argues that his conviction was based on insufficient evidence and was against the manifest weight of the evidence.
{11} When a defendant claims that his conviction is supрorted by insufficient evidence, this court must review the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found all the elements of the crime proved beyond a reasonable doubt. State v. Eley, 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978). When reviewing a defendant‘s claim that his conviction is against the manifest weight of the evidence, this court must weigh the evidence and the credibility of the witnesses to determine if the trier of
{12} To convict Railey of abduction, the state had to show that Railey, without privilege to do sо, knowingly by force or threat, restrained the liberty of his girlfriend‘s child under circumstances that created a risk of physical harm to the child or placed her in fear. See
{13} The state presented evidence that Railey‘s girlfriend had called police to report an assault; police had heard Railey state on an “open” 911 call “where‘s my gun;” Railey had then barricaded himself in an apartment with his girlfriend‘s four-year-old child for three and а half hours. During negotiations with SWAT officers, he told police he wanted $50,000 to release the child. Despite repeated requests, he never released her. The police had to use a battering ram to open thе apartment door because Railey had placed a couch in front of it. Contrary to Railey‘s assertions, this evidence was sufficient for the trial court to find that Railey had, without privilege, knowingly by force or threat, restrained the liberty of the child under circumstances that created a risk of physical harm to her.
{14} Moreover, the trial court, as the trier of fact, was in the best position to judge the credibility of the witnesses. While Railey presented the trial court with a different version of events, and both he and his girlfriend testified that he had permission to watch the child, the trial court was free to reject their testimony. Based upon our review of the record, we cannot conclude that the trial court lost its way and created such a manifest miscarriage of justice that we must reverse Railey‘s conviction for abduction and order a new trial. As a result, we overrule his first assignment of еrror.
III. Railey‘s Sentence
{15} In his second assignment of error, Railey challenges the lawfulness of his prison sentence. This challenge is well taken.
{16} Railey was sentenced after the effective date of Am.Sub.H.B. No. 86. In State v. Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 9, we clarified that following the effеctive date of Am.Sub.H.B.No. 86, we still employ the two-step analysis set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 14, when reviewing felony sentences. Thus, we must first determine whether Railey‘s sentence was contrary to law. Alexander at ¶ 9.
{17} At the January 2012 sentencing hearing, the trial court told Railеy that it was imposing a 12-month prison sentence for the abduction offense. The trial court did not, however, verbally notify Railey about the possibility of postrelease control or the ramifications of violating postrеlease supervision or postrelease-control sanctions.
{18} The trial court then journalized a judgment of conviction that improperly stated that Railey had been convicted of kidnapping instead of abduсtion and that imposed an 18-month prison sentence instead of the 12-month sentence pronounced at the sentencing hearing. The judgment of conviction further provided that Railey could be subject to up to three yеars of postrelease control and explained the ramifications of Railey violating postrelease supervision.
{19} On March 16, 2012, the trial court sua sponte journalized a second judgment of conviction nunc pro tunc to January 2012. The entry, while correcting the offense from kidnapping to abduction, incorrectly
{20}
{21} While Railey was physically present in court when the trial court pronounced the 12-mоnth prison sentence, he was not “present” as contemplated by
{22} Here, the trial court, in violation of the due-process right embodied in
{23} Railey‘s sentence is also contrary to law because the trial court failed to advise Railey at his sentencing hearing that he may be subject to up to three years of postrelease supervision following his release from prison, and that the parole board could impose a prison term of up to one-half of the prison term originally imposed, if he violated supervision or a condition of his postrelease control. See
IV. Conclusion
{24} Accordingly, we affirm the trial court‘s judgment with respect to the finding of guilt. But we must vacate Railеy‘s 18-month sentence, and remand this cause to the trial court for resentencing, including oral notification of Railey‘s postrelease control obligations, in accordance with this opinion and the law.
Judgment affirmed in part, sentence vacated, and cause remanded.
CUNNINGHAM and DINKELACKER, JJ., concur.
Please note:
The court has recorded its own entry this date.