STATE OF OHIO v. CORY B. RODEFFER
Appellate Case Nos. 25574/25575/25576
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 27, 2013
[Cite as State v. Rodeffer, 2013-Ohio-5759.]
Triаl Court Case Nos. 2012-CR-2979, 2012-CR-1283, 2012-CR-2887 (Criminal Appeal from Common Pleas Court)
RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 120 West Second Street, 1502 Liberty Tower, Dayton, Ohio 45402 Attorney for Defendant-Appellant
{1} Defendant-Appellant, Cory B. Rodeffer, appeals from his prison sentence of seven years for one count of second-degree felony Robbery (physical harm), and three counts of third-degree felony Robbery (use of force), in Montgomery County Common Pleas Court Case Nos. 2012-CR-1283, 2012-CR-2887, and 2012-CR-2979. Rodeffer contends that the trial court erred in failing to hold a competency hearing to determine whether he was psychologically amenable to sentencing. He also contends that the trial court erred in failing to place him in a rehabilitation/mental health facility on community control sanctions as opposed to prison.
{2} We conclude that the trial court did not err in failing to hold a competency hearing prior to sentencing Rodeffer. A competency hearing was unwarranted because the record does not contain sufficient indicia of incompetence. The trial court also did not err in sentencing Rodeffer to prison as opposed to community control sanctions. In applying the felony sentencing standard of review set forth in
I. Facts and Course of Proceedings
{3} Cory B. Rodeffer, committed two robbery sprees over a six-month period in Montgomery County, Ohio. The various robberies were prosecuted in three separate cases - Montgomery County Common Pleas Court Case Nos. 2012-CR-1283, 2012-CR-2887, and 2012-CR-2979.
{4} In Case No. 2012-CR-1283, Rodeffer robbed three gas station convenience stores
{5} On May 30, 2012, Rodeffer was indicted on one count of Robbery (use of force), a felony of the third degree; two counts of Robbery (physical harm), a felony of the second degree; one count of Petty Theft, a misdemeanor of the first degree; and one count of Failure to Comply, a felony of the third degree. As part of a negotiated plea agreement, Rodeffer pled guilty to one count of second-degree felony Robbery and one count of third-degree felony Robbery. The remaining counts against him were dismissed. On September 20, 2012, the trial court sentenced Rodeffer to community control sanctions not to exceed five years, and ordered him to complete treаtment for his drug abuse through the MonDay Program. After sentencing, Rodeffer was released from prison on electronic home detention pending the availability of a bed at the MonDay Program.
{6} The day after he was sentenced and released, Rodeffer robbed two more gas station convenience stores in the exact same manner as he had before. He was arrested approximately one month later. During his presentence investigation interview, Rodeffer advised that he “lost it” when he found out that he was sanctioned to the MonDay Program. He claims that he was concerned about losing his job and not seeing his daughter. As a result, he
{7} The additional robberies were prosecuted under Case Nos. 2012-CR-2887 and 2012-CR-2979. In each of these cases, Rodeffer pled guilty to one count of Robbery (use of force), a third degree felony. During the plea hearing, the defense requested a psychological report on Rodeffer. The defensе explained that it was not requesting a full competency hearing and was not claiming that Rodeffer lacked competence. Instead, the defense believed that a psychological report would assist in treating Rodeffer‘s mental health issues if he were sentenced to prison. In response, the trial court noted that it would request information on Rodeffer‘s psychological status for purposes of the presentence investigation report (PSI).
{8} The resulting PSI stated that Rodeffer used drugs to self medicate so that he does not have to think about past physical, sexual, and emotional abuse he endured as a child by his father. However, the PSI indicated that Rodeffer had never been diagnosed with a mental health disability, and that he was not under a doctor‘s care. The PSI also stated that Rodeffer had not reported any past or present suicidal or homicidal ideations or attempts.
{9} During the sentencing hearing for the additional robberies, the defense changed its stance on Rodeffer‘s competency. Defense counsel informed the court that he believed Rodeffer was suicidal, and that he questioned Rodeffer‘s cоmpetency to be sentenced due to a steady decline in his mental health since the plea hearing. As a result, the defense made an oral motion for a psychological evaluation in order to determine Rodeffer‘s competency prior to sentencing.
{10} The trial court did not rule on the oral motion and did not order a psychological
{11} Rodeffer appeals from the trial court‘s sentence.
II. The Trial Court Did Not Err in Failing to Conduct a Competency Hearing and in Sentencing Appellant to Prison
{12} Rodeffer‘s sole assignment of error is as follows:
Whether the Trial Court Erred in Failing to Conduct a Hearing on the Ammenability [sic] of Defendant‘s Mental Condition to Endure a Prison Sentence in Lieu of Suitable Community Control Conditions and Thereby Precluded Defendant‘s Constitutional Rights to Due Process Under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10, of the Ohio State Constitution.
{13} Under this assignment of error, Rodeffer contends that the trial court erred in: (1) failing to hold a competency hearing; and (2) failing to place him in a rehabilitation/mental health facility on community control sanctions as opposed to sentencing him to prison.
1. Competency Hearing
{15} “[T]he failure to observe procedures adequate to protect a defendant‘s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), citing Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Accordingly, “[t]he right to a hearing on the issue of competency rises to the level of a constitutional guarаntee where the record contains ‘sufficient indicia of incompetence,’ such that an inquiry into the defendant‘s competency is necessary to ensure the defendant‘s right to a fair trial.” State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995), citing Drope at 175. (Other citations omitted.)
{16} According to Ohio law, a defendant is deemed incompetent to stand trial only if “after a hearing, the court finds by a preponderance of the evidence that, because of the defendant‘s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant‘s defense * * *.”
{17} If the issue of competence “is raised before the trial has commenced, the court shall hold a hearing on the issue * * *. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court‘s own motion.”
{18} The decision whether to hold a competency hearing once trial has commencеd is within “the sound discretion of the trial court.” Berry, 72 Ohio St.3d at 360, citing State v. Rahman, 23 Ohio St.3d 146, 156, 492 N.E.2d 401 (1986). Therefore, the proper standard of review is whether the trial court abused its discretion in failing to hold a competency hearing. ” ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{19} In this case, Rodeffer raised the issue of competence after pleading guilty, but before sentencing; therefore,
{20} In State v. Bock, 28 Ohio St.3d 108, 502 N.E.2d 1016 (1986), the Supreme Court of Ohio held that a defendant who had been hospitalized for drug-related problems, suffered from emotional distress, and commented about suicide, did not meet the definition of incompetence in
{21} In following Bock, we find that Rodeffer has not shown good cause for a competency hearing. Rodeffer exhibited an understanding of the nature and objective of the proceedings against him. He also exhibited a sufficient ability to consult with his attorney and to assist with his defense. The PSI stated that Rodeffer had not been diagnosed with any mental disability, and that he had reported no past or present suicidal or homicidal attempts or ideations. Rodeffer told the court himself that he had no mental condition which would make it difficult for him to understand his legal rights. Plea Hearing Trans. (Nov. 29, 2012) p. 7-8. Per Bock, the fact that Rodeffer abused drugs, had been emotionally distressed from his past abuse, and was possibly suicidal does not amount to incompetence under
{22} Having found no indication of incompetence in the record, it was not an abuse of discretion for the trial court to deny Rodeffer a competency hearing prior to sentencing.
2. Community Control Sanctions
{23} Rodeffer contends that the trial court erred in sentencing him to seven years in prison as opposed to placing him in a rehabilitation/mental health facility on community control sanctions. He claims that he should have received a more lenient sentence, because he is a first-time felony offender. Additionally, he claims that the trial court failed to perform a complete analysis of the relevant sentencing factors, and did not fairly and thoroughly meet the core purposes and principles of sentencing.
{24} We have consistently reviewed felony sentences under the two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See State v. Holloway, 2d Dist. Clark No. 2010-CA-63, 2013-Ohio-4400, ¶ 22; State v. Robinson, 2d Dist. Champaign No. 2012 CA 17, 2012-Ohio-4976, ¶ 17; State v. Murphy, 2d Dist. Clark No. 2010 CA 81, 2011-Ohio-5416, ¶ 14. The first step requires an appellate court to examine the sentencing court‘s compliance with all the applicable rules and statutes in imposing the sentence to determine whether the sentence was clearly and convincingly contrary to law. Kalish at 14-15. If the first step is satisfied, the appellate court is then required to review the sentencing court‘s decision to determine if it constituted an “abuse of discretion.” Id. at ¶ 16-19.
{25} Recently, various appellate jurisdictions in Ohio have begun to review felony sentencing using the standard of review set forth in
{26} In order to understand the departure from the two-part test in Kalish, we must first loоk back to the Supreme Court of Ohio‘s decision in State v. Foster, 109 Ohio St.3d 1,
{27} After Kalish, the United States Supreme Court held that it is constitutionally permissible for States to require judges to make findings of fact before imposing consecutive sentences. Oregon v. Ice, 555 U.S. 160, 164, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The Ohio Supreme Court subsequently held that its decision in Foster remained valid after Ice, and that the judiciary was not required to make findings of fact prior to imposing maximum or consecutive sentences “unless the General Assembly enacts new legislation requiring that findings be made.” State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, paragraph three of the syllabus. Thereafter, the Ohio General Assembly enacted 2011 Am.Sub.H.B. No. 86 (“H.B. 86“), which removed the unconstitutional statutory provisions cited in
{28} Recently, in State v. White, 2013-Ohio-4225, 997 N.E.2d 629 (1st Dist.), the First
We presume the legislature knew what it was doing when it reenacted the
R.C. 2953.08(G)(2) standard of review. And we cannot justify applying an abuse of discretion standard where the legislature has explicitly told us that the standard of review is not an abuse of discretion. Thus, henceforth, we will apply the statutory standard rather than thе Kalish plurality framework to our review of felony sentences. Id. at ¶ 9.
{29} In order to be consistent with the approach of other Ohio appellate districts that have already considered this issue in light of H.B. No. 86, we will no longer apply the two-part test in Kalish when reviewing felony sentences controlled by H.B. 86. From now on we will use the standard of review set forth in
{30}
- That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant; - That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2)(a) -(b).
{31} It is important to note “that the clear and convincing standard used by
{32} Furthermore, “[a]lthough Kalish no longer provides the framework for reviewing felony sentences, it does provide * * * adequate guidance for determining whether a sentence is clearly and convincingly contrary to law.” State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. According to Kalish, a sentence is not contrary to law when the trial court imposes a sentence within the statutory range, after expressly stating that it had considered the purposes and principles of sentеncing set forth in
{33} With these principles in mind, we first note that the record in the present case supports the trial court‘s decision not to place Rodeffer on community control sanctions. We do not clearly and convincingly find an absence of evidence on the record to support the trial court‘s findings.
- A community contrоl sanction * * * would adequately punish the offender and protect the public from future crime, because the applicable factors under section
2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism.
A community control sanction * * * would not demean the seriousness of the offense, because one or more factors under section 2929.12 of the Revised Code that indicate that the offender‘s conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender‘s conduct was more serious than conduct normally constituting the offense.R.C. 2929.13(D)(2)(a) -(b).
{34} In this case, Rodeffer was convicted of second and third-degree felony Robbery. In sentencing Rodeffer, the trial court considered that he committed two separate crime sprees that involved multiple victims and multiple businesses. The court relied heavily on the fact that Rodeffer committed his second crime spree in less than 24 hours after being released on community control sanctions in Case No. 2012-CR-1283. In addition, the court indicated that Rodeffer had an opportunity to go into substance abuse treatment and mental health counseling, but instead chose to terrorize the community by going on a second crime spree.
{35} The trial court‘s findings indicate that Rodeffer had a likelihood of recidivism and that he posed a danger to the community given that he had committed a spree of robberies shortly after being released on community control sanctions. Furthermore, Rodeffer was not a first-time felony offender. His first felony offense occurred as a result of the robberies in April 2012. His second and third felony offenses resulted from the robberies in September 2012. Additionally, his conduct was more serious than conduct that normally constitutes Robbery, because he committed multiple robberies with multiple victims in less than 24 hours. As a result, we do not clearly and convincingly find an absence of evidence on the record to support the trial court‘s findings under
{37} For all the foregoing reasons, Rodeffer‘s sole assignment of error is overruled.
III. Conclusion
{38} Having overruled Rodeffer‘s sole assignment of error, the judgment of the trial court is affirmed.
FROELICH, J., concurring in judgment:
{39} I agree with the majority that the trial court did not abuse its discretion in denying Cory Rodeffer a competеncy hearing prior to sentencing and with the majority‘s ultimate conclusion that the trial court‘s judgment should be affirmed. I write separately to express my disagreement with the majority‘s conclusion that
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{46} The only arguable basis for applying
{47} The decisions of other appellate districts do not hold that this definition of “contrary to law” is not the law of Ohio, only that the second step of the Kalish analysis - the abuse of discretion review - has been superseded by
{48} Other appellate districts may indeed be corrеct that an appeal of a consecutive sentence which argues that the trial court did not make the statutory findings required by
{49} In summary,
{50} In reviewing the record, there is no abuse of discretion in sentencing Rodeffer to prison rather than to community control sanctions. Therefore, I concur that the judgment of the trial court should be affirmed.
HALL, J., concurring:
{51} I agree with Judge Froelich‘s analysis that a strict reading of
{52} Initially, it is imperative to note that Laura Ann Kalish had been convicted of aggravated vehicular homicide, a second-degree felony, and a per se OVI, a first-degree misdemeanor. She was sentenced to five years in prison on the F2 and a concurrent six months on the M1. Therefore, under a strict interpretation of
{53} I view Kalish as an expression by the Ohio Supreme Court that
{54} In light of the forgoing analysis, I concur in the determination that we should join the other districts applying the more-deferential standard of appellate review outlined in
Mathias H. Heck
Andrew T. French
Richard A. Nystrom
Hon. Mary Lynn Wiseman