State v. Arthurs

2021 Ohio 3296

• Court: Ohio Court of Appeals
• Decided: September 20, 2021
• Docket: 21CA0002
• Status: Published

Opinion

[Cite as State v. Arthurs, 2021-Ohio-3296.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. W. Scott Gwin, J. -vs- : : Case No. 21CA0002 : PAUL ARTHURS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 20-CR-00436

JUDGMENT: REVERSED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING

DATE OF JUDGMENT ENTRY: September 20, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM C. HAYES MICHAEL S. COX JR. LICKING CO. PROSECUTOR BURKETT & SANDERSON, INC. PAULA M. SAWYERS 73 North 6th St. 20 S. Second St., Fourth Floor Newark, OH 43055 Newark, OH 43055 Licking County, Case No. 21CA0002 2

Delaney, J.

{¶1} Appellant Paul Arthurs appeals from the November 12, 2020 Judgment of

Conviction of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from appellee’s bill of particulars filed

September 30, 2020.

{¶3} On February 21, 2020, the Heath Police Department responded to a

burglary alarm at the Fastenal store on Hebron Road in Licking County, Ohio. Upon

arrival, officers found the exterior door had been forced open and someone had removed

power tools from within the store. Video surveillance was retrieved which showed a white

male in a Pittsburgh Steelers jacket in the store. That individual had been driving an

extended cab two-wheel drive truck, which appeared to be a Ford F150, and was seen

entering the business and forcing entry into a locked storage locker and stealing multiple

power tools. Officers located a discarded tire iron which had been used by the person to

force entry into the business.

{¶4} On April 16, 2020, the Heath Police Department was notified there was a

CODIS hit on the tire iron identifying appellant. Confirmatory testing was completed, and

the appellant was identified as the contributor on the tire iron. Appellant was Mirandized

and interviewed, and admitted committing these offenses, as well as multiple other

offenses in various other jurisdictions.

{¶5} Appellant was charged by indictment with one count of safecracking

pursuant to R.C. 2911.31(A), a felony of the fourth degree [Count I], and one count of

breaking and entering pursuant to R.C. 2911.13(A), a felony of the fifth degree [Count 2]. Licking County, Case No. 21CA0002 3

{¶6} On November 12, 2020, appellant appeared before the trial court and

changed his previously-entered plea of not guilty to one of guilty upon Count II, breaking

and entering. Appellee moved to dismiss Count I in exchange for the guilty plea and the

motion was granted. The trial court accepted appellant’s guilty plea and ordered a pre-

sentence investigation (P.S.I.). Appellant supplemented the record of the instant appeal

with a sealed copy of the P.S.I.

{¶7} The matter proceeded to sentencing on December 18, 2020. Defense trial

counsel argued appellant was a Targeted Community Alternatives to Prison (“TCAP”)

offender pursuant to R.C. 2929.34. The trial court disagreed, found appellant was not a

TCAP offender, and imposed a prison term of 8 months upon Count II.

{¶8} Appellant now appeals from the trial court’s Judgment of Sentence filed

December 18, 2020.

{¶9} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶10} “THE TRIAL COURT COMMITTED HARMFUL ERROR IN FINDING THAT

AT THE TIME OF SENTENCING THE DEFENDANT-APPELLANT WAS NOT AN

ELIGIBLE TARGETED COMMUNITY ALTERNATIVES TO PRISON (“TCAP”)

OFFENDER.”

ANALYSIS

{¶11} Appellant argues the trial court erred in finding he was not an eligible TCAP

offender. We agree to the extent that the trial court must review the alleged factual errors

in the PSI and make the findings required by R.C. 2951.03(B)(5). Licking County, Case No. 21CA0002 4

{¶12} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.

Specifically, R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce,

modify, or vacate a sentence and remand for resentencing if it clearly and convincingly

finds that either the record does not support the sentencing court's findings under R.C.

2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise

contrary to law. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 28.

{¶13} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).

“Where the degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St.

at 477.

{¶14} Appellant argues he is a TCAP-eligible offender. R.C. 2929.34(B)(3)(c)

governs TCAP and provides that on and after July 1, 2018, no person sentenced by the

court of common pleas of a voluntary county to a prison term for a felony of the fifth degree

shall serve the prison term in an institution under the control of the Ohio Department of

Rehabilitation and Correction (“ODRC”), but shall instead serve the sentence as a term

of confinement in a local facility such as a county jail or community-based correctional

facility (“CBCF”). See R.C. 2929.34(C) and (D). Licking County, Case No. 21CA0002 5

{¶15} An offender’s criminal history is relevant to TCAP eligibility. R.C.

2929.34(B)(3)(d)(ii) provides that a defendant who has been previously convicted of a

felony offense of violence as defined by R.C. 2901.01 is ineligible for TCAP's mandated

imprisonment at a non-ODRC facility. The parties agree that appellant has a 2005

conviction for burglary in Ross County pursuant to R.C. 2911.12. R.C. 2901.01(A)(9)

defines an “offense of violence” in pertinent part as a violation “of division (A)(1), (2), or

(3) of section 2911.12.”

{¶16} The current version of R.C. 2911.12, burglary, states the following:

(A) No person, by force, stealth, or deception, shall do any of

the following:

(1) Trespass in an occupied structure or in a separately

secured or separately occupied portion of an occupied structure,

when another person other than an accomplice of the offender is

present, with purpose to commit in the structure or in the separately

secured or separately occupied portion of the structure any criminal

offense;

(2) Trespass in an occupied structure or in a separately

secured or separately occupied portion of an occupied structure that

is a permanent or temporary habitation of any person when any

person other than an accomplice of the offender is present or likely

to be present, with purpose to commit in the habitation any criminal

offense; Licking County, Case No. 21CA0002 6

(3) Trespass in an occupied structure or in a separately

secured or separately occupied portion of an occupied structure, with

purpose to commit in the structure or separately secured or

separately occupied portion of the structure any criminal offense.

(B) No person, by force, stealth, or deception, shall trespass

in a permanent or temporary habitation of any person when any

person other than an accomplice of the offender is present or likely

to be present.

* * * *.

(D) Whoever violates division (A) of this section is guilty of

burglary. A violation of division (A)(1) or (2) of this section is a felony

of the second degree. A violation of division (A)(3) of this section is

a felony of the third degree.

(E) Whoever violates division (B) of this section is guilty of

trespass in a habitation when a person is present or likely to be

present, a felony of the fourth degree.

{¶17} Pursuant to the current version of R.C. 2911.12, an offense under

subsections (A)(1), (2), and (3) is an “offense of violence,” but an offense under

subsection (B) is not. Currently, a violation of subsection (B), trespass in a habitation

when a person is present or likely to be present, is not an “offense of violence” pursuant

to R.C. 2901.01(A)(9). Trespass in a habitation is a felony of the fourth degree.

{¶18} Appellant’s PSI states that he was convicted of burglary, a felony of the

second degree, in the 2005 case. The PSI further states “This is not a TCAP case due Licking County, Case No. 21CA0002 7

to a prior felony Burglary Conviction.” Appellant was convicted under a prior version of

the burglary statute which did not include the “trespass into a habitation” fourth-degree

felony version of the current R.C. 2911.12(B). Appellant argues, however, that he was

convicted of the nonviolent-offense version of the statute in 2005.

{¶19} At the sentencing hearing, appellant argued the 2005 burglary offense was

amended to a fourth-degree felony from a second-degree felony and was not an “offense

of violence.” This statement contradicts the information in the PSI, supra, which indicated

appellant’s burglary conviction was a felony of the second degree. The trial court did not

explicitly address appellant’s argument, but instead cited appellant’s lengthy (nonviolent-

offense) felony criminal history in addition to numerous pending cases in other

jurisdictions, and found appellant was not amenable to a community-control sanction or

probation.

{¶20} On appeal, appellant attached copies of Exhibits B-1 and B-2 to his brief.

Exhibit B-1 is the 2005 indictment indicating appellant was indicted upon a felony of the

fourth degree as follows:

That Paul E. Arthurs, on or about the 9th day of June, 2005,

in the County of Ross aforesaid did by force, stealth, or deception

trespass in a permanent or temporary habitation of another when any

person other than an accomplice of the offender was present or likely

to be present, in violation of R.C. 2911.12 of the Ohio Revised Code,

and against the peace and dignity of the State of Ohio.

* * * *. Licking County, Case No. 21CA0002 8

{¶21} Exhibit B-2 is a 2005 Judgment Entry of Sentence which does not state that

the burglary offense was amended or what degree of offense appellant was convicted of;

he was sentenced to a prison term of six months.

{¶22} Taken at face value, appellant’s exhibits reference only “R.C. 2911.12,” a

felony of the fourth degree, and appear to indicate appellant was indicted upon a statute

analogous to the present version of trespass in a habitation pursuant to R.C. 2911.12(B),

which is by definition not an offense of violence. Again, taken purely at face value, the

exhibits contradict the information contained in the PSI in the instant case about the 2005

burglary.

{¶23} It is not evident to us, though, that the trial court had appellant’s Exhibits B-

1 and B-2 before it at the sentencing hearing. Those documents are therefore outside

the record. The trial court did have the PSI stating the 2005 conviction was a second-

degree felony and rendered appellant ineligible for TCAP. Adding to the procedural

dilemma in this case, appellant did not raise this issue explicitly as an error in the PSI.

Defense trial counsel had the opportunity to review the PSI and referred to it several times

at the sentencing hearing. Defense trial counsel did assert that in 2005 appellant was

ultimately convicted of a fourth-degree felony analogous to trespass in a habitation which

is arguably not an offense of violence. The trial court implicitly rejected appellant’s

argument in referring to his lengthy criminal record and current pending felonies in finding

he is not eligible for a community control sanction.

{¶24} The central issue of this case therefore rests upon an alleged error of fact

in the PSI. R.C. 2951.03(5) addresses alleged factual errors in PSIs and states: Licking County, Case No. 21CA0002 9

If the comments of the defendant or the defendant's counsel,

the testimony they introduce, or any of the other information they

introduce alleges any factual inaccuracy in the presentence

investigation report or the summary of the report, the court shall do

either of the following with respect to each alleged factual inaccuracy:

(a) Make a finding as to the allegation;

(b) Make a determination that no finding is necessary with

respect to the allegation, because the factual matter will not be taken

into account in the sentencing of the defendant.

{¶25} In the instant case, the trial court did not make the findings required by R.C.

2951.03(B)(5), an understandable omission because appellant has imperfectly raised this

issue. Appellant did not explicitly allege an error in the PSI, below or upon appeal.

Appellant made a blanket objection to the trial court’s implicit decision that appellant was

not TCAP-eligible. It is not evident that appellant presented Exhibits B-1 and B-2 to the

trial court to corroborate appellant’s argument. The burden of proof regarding any

inaccuracy is on the defendant who alleges that the report is inaccurate. State v. Sims,

184 Ohio App.3d 741, 2009-Ohio-5751, 922 N.E.2d 298, ¶ 20 (2nd Dist).

{¶26} The trial court did not explicitly make a finding regarding appellant’s

argument about the nonviolent prior burglary offense, nor did it state that no finding was

necessary because the matter would not be taken into account. Rather, the trial court did

not address the argument and was silent on the matter. See, State v. Latronica, 7th Dist.

Mahoning No. 13 MA 164, 2014-Ohio-3685, ¶ 13. Failure to make the requisite findings

may be harmless error, as we have previously found, “if the record reflects that none of Licking County, Case No. 21CA0002 10

the trial court's findings or considerations would be affected in the least by the alleged

inaccuracies in the report.” State v. Williamson, 5th Dist. Richland No. 04 CA 75, 2005-

Ohio-3524, ¶ 25, citing State v. Platz, 4th Dist. Washington No. 01CA33, 2002-Ohio-6149,

¶ 18, internal citations omitted; see also, State v. Caudill, 5th Dist. Ashland No. 06COA42,

2007-Ohio-6175, ¶ 21.

{¶27} “If the error appears on the record and the trial court clearly does not comply

with the statute, then the error will not be harmless error unless the record clearly shows

that the trial court did not consider the inaccuracy or the record reflect that there are

substantial other factors supported in the record that clearly outweighs the inaccuracy.”

State v. Latronica, supra, 2014-Ohio-3685 at ¶ 17. In the instant case, as we have

detailed, the error appears on the record very opaquely, but nonetheless we cannot find

that the trial court did not take the inaccuracy into account, or that other factors supported

in the record outweigh this inaccuracy.

{¶28} In the instant case, appellant is not TCAP-eligible solely because of the

2005 burglary. It is true that appellant has a voluminous criminal history of nonviolent

felonies, and that he has pending felonies in other jurisdictions related to the investigation

of the instant case. Nevertheless, appellant’s TCAP eligibility hinges on this one prior

offense. Appellee argues the error is harmless because TCAP merely governs where

appellant’s “prison term” may be spent, but in fact R.C. 2929.34(B)(3)(c) mandates that

an eligible offender may not be sent to “prison” at all and must serve his or her sentence

in a local jail or CBCF. Despite all of the procedural flaws, this alleged error in the PSI

makes a difference to appellant’s sentence and we are unable to find harmless error. Licking County, Case No. 21CA0002 11

{¶29} The instant case is similar to Latronica, supra, in its effect. In that case, the

Seventh District Court of Appeals found that the trial court’s failure to comply with R.C.

2951.03(B)(5) was not harmless:

The problem here is that there is nothing in the record that

would lead to the conclusion that the trial court did not consider the

inaccuracy. The trial court stated without qualification that it

considered the PSI and made no finding under R .C. 2951.03(B)(5)

regarding the alleged inaccuracy. There are no others statements

from the trial court that suggest that it did not consider the inaccuracy

or that it concluded that the PSI was inaccurate. Therefore, based on

the record before us, it cannot be concluded that the failure to comply

with R.C. 2951.03(B)(5) was harmless in this instance; it is not clear

that the trial court would impose a 36–month sentence if the

inaccuracy was not considered.

That said, nothing in this opinion should be read in a manner

that draws the conclusion that we are of the opinion that the 36–

month sentence was not warranted. We were not asked to review

whether the trial court abused its discretion in issuing the sentence it

did. We are solely asked to decide if the trial court complied with R.C.

2951.03(B)(5), and if it did not, was the error harmless. As stated

above, we find that there was no compliance and the error was not

harmless. Licking County, Case No. 21CA0002 12

State v. Latronica, 7th Dist. Mahoning No. 13 MA 164, 2014-

Ohio-3685, ¶ 24.

{¶30} We similarly do not suggest that appellant’s 8-month sentence was not

warranted under the unique facts of this case. However, because appellant has raised

the issue, however imperfectly, that there is an error in the PSI and he is in fact TCAP-

eligible, we must remand this matter to the trial court for consideration of the R.C.

2951.03(B)(5) factors. The trial court should be given the opportunity to evaluate the

evidence, determine whether the statements in the PSI are in error, and weigh appellant’s

TCAP eligibility.

{¶31} Appellant’s sole assignment of error is sustained. The sentence is vacated

and the matter is remanded for resentencing.

CONCLUSION

{¶32} The sentence is reversed and the matter is remanded for a new sentencing

hearing. Upon remand, the trial court is instructed to comply with R.C. 2951.03(B)(5).

By: Delaney, J.,

Baldwin, P.J. and

Gwin, J., concur.