State v. SchmidtState v. Schmidt
Vanessa R. Clapp, Lake County Public Defender, and Melissa Ann Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
O P I N I O N
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Timmothy Scott Schmidt, appeals imposition of a 44.5-year sentence following conviction on two counts of felonious assault with firearm specifications and one count of resisting arrest with a firearm specification. In addition to challenging the length of his prison term, he argues that the resisting arrest count merges. We affirm.
{¶3} The patrolmen did not approach appellant until he paid his bill and stepped into the garage area of the dealership. At that point, the patrolmen stopped him and engaged him in conversation for a few minutes. As the discussion was ending, the patrolmen received confirmation over their portable radios of the arrest warrants. Realizing he was about to be taken into custody, appellant turned and ran toward an exit from the garage.
{¶4} Appellant was carrying a concealed 9mm Smith & Wesson handgun in the back waistband of his pants. The handgun had a full magazine of eight rounds, with one in the chamber, ready to fire.
{¶5} The patrolmen quickly began chase, with Patrolman Planisek leading the way. As appellant neared an open bay door, he reached behind his back and grabbed the handgun with his right hand. At approximately the same time appellant was securing his control over the handgun, Patrolman Planisek caught him and tackled him to the ground. Appellant landed on his stomach, with his right arm extended in front of him. Patrolman Planisek landed on appellant‘s back and attempted to subdue him.
{¶6} While his arm was extended forward on the ground, appellant fired one shot that went to his left, away from the two officers. As he and Patrolman Planisek continued
{¶7} During the short time span in which Patrolman Anderson attempted to call dispatch, Patrolman Planisek continued his efforts to subdue appellant. After shooting Patrolman Anderson the first time, appellant continued firing and shot Patrolman Planisek twice. Appellant fired all nine rounds during the confrontation.
{¶8} All three men suffered serious physical injuries, but none of the wounds were fatal. Both patrolmen had wounds to their torso and legs requiring hospitalization. In addition to his bullet wounds, Patrolman Planisek‘s left eardrum was seriously damaged.
{¶9} Appellant was indicted on two counts of attempted murder, four counts of felonious assault, and one count of resisting arrest. In return for the dismissal of the other four counts, appellant plead guilty to two counts of felonious assault, first-degree felonies under
{¶11} During sentencing, the trial court concluded in regard to the two firearm specifications under the resisting arrest count, the one-year specification under
{¶12} The trial court imposed an eleven-year prison term on each of the felonious assault counts, an eighteen-month term on the resisting arrest count, seven years each on the three firearm specifications, all to be served consecutively for an aggregate prison term of 44.5 years.
{¶13} In challenging his sentence, appellant raises two assignments for review:
{¶14} “[1.] The trial court erred to the prejudice of the defendant-appellant when it
{¶15} “[2.] The trial court erred by sentencing the defendant-appellant to consecutive, maximum prison sentences totaling 44.5 years.”
{¶16} Under his first assignment, appellant argues that his aggregate sentence must be reduced by 8.5 years because the trial court erred in not merging the resisting arrest count and its accompanying firearm specification into the felonious assault counts. He asserts that a separate sentence cannot be imposed for resisting arrest because all three crimes were committed with the same conduct, were committed with the same animus, and had similar import. He further asserts that even though he did not raise the merger issue at the trial level, the trial court‘s alleged error must be considered plain error.
{¶17} As an initial point, it has been generally recognized that an appellate court is obligated to conduct a de novo review of a trial court‘s merger determination, and that any imposition of multiple sentences for allied offenses of similar import is viewed as plain error. State v. Johnson, 7th Dist. Mahoning No. 12 MA 137, 2014-Ohio-4253, ¶ 109. However, for the following reasons, we hold the resisting arrest count does not merge.
{¶18} “The constitutional prohibition against double jeopardy generally protects a criminal defendant from successive prosecutions and multiple punishments for the same crime.” State v. Smith, 11th Dist. Portage No. 2017-P-0053, 2018-Ohio-5183, ¶ 20. In Ohio, the merger of allied offense of similar import is governed by
{¶19} “(A) Where the same conduct by defendant can be construed to constitute
{¶20} “(B) When 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.”
{¶21} In construing the foregoing, the Supreme Court of Ohio held:
{¶22} “1. In determining whether offenses are allied offenses of similar import within the meaning of
{¶23} “2. Two or more offenses of dissimilar import exist within the meaning of
{¶24} “3. Under
{¶25} At the conclusion of the Ruff opinion, the foregoing was restated as follows:
{¶26} “As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
{¶27} In applying Ruff, this court has concluded that two offenses will be deemed to have occurred separately when the elements of one offense are completed before all the elements of the second offense are satisfied. State v. Armstead-Williams, 11th Dist. Portage No. 2016-P-0007, 2017-Ohio-5643. In Armstead-Williams, the question was whether aggravated burglary merged with aggravated robbery:
{¶28} “Under
{¶29} Appellant pleaded guilty to resisting arrest under
{¶30} Appellant‘s convictions for felonious assault were pursuant to
{¶31} Under his second assignment, appellant contests imposition of maximum prison terms on all counts, for an aggregate sentence of 44.5 years. He argues that the trial court‘s consideration of the sentencing factors under
{¶32} The standard of appellate review is set forth in
{¶33} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶34} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard of review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincing finds either of the following:
{¶36} “(b) That the sentence is otherwise contrary to law.”
{¶37} “‘A sentence is contrary to law if (1) the sentence falls outside the statutory range for the particular degree of offense, or (2) the trial court failed to consider the purposes or principles of felony sentencing set forth in
{¶38} Appellant does not dispute that his prison terms fall within the applicable statutory ranges.
{¶39} “A trial court imposing a felony sentence is required to consider the seriousness and recidivism factors found in
{¶40} In asserting that the trial court did not consider all of the relevant statutory factors pertaining to the seriousness of his crimes, appellant notes that the court stated that there were no relevant considerations that the offenses were less serious than conduct normally forming those offenses. According to appellant, this establishes that the trial court did not consider his drug addiction.
{¶41} Notwithstanding, the trial court considered appellant‘s addiction during sentencing. The trial court noted that appellant failed to take full advantage of an opportunity for rehabilitation when it was offered following his conviction for marijuana possession in Florida. Second, the court noted that appellant was also using illegal drugs as a means of making a living. Thus, the trial court considered appellant‘s addiction, but did not afford it any weight. There was considerable evidence showing that the patrolmen suffered serious physical, psychological, and economic harm.
{¶42} Appellant has failed to clearly and convincingly establish that the record does not support the trial court‘s findings and sentence.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.