[Cite as State v. Dixon, 2022-Ohio-2807.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA8
v. :
MELODY DIXON, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Alisa Turner, Glouster, Ohio, for appellant1.
Andrea K. Boyd, Special Prosecuting Attorney, Assistant Attorney General, Columbus, Ohio, for appellee. ___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:8-5-22 ABELE, J.
{¶1} This is an appeal from a Hocking County Common Pleas
Court judgment of conviction and sentence. After Melody Dixon,
defendant below and appellant herein, pleaded guilty to three
counts of tampering with evidence and two counts of obstructing
justice, the trial court sentenced her to serve a total of nine
years in prison.
1 Different counsel represented appellant during the trial court proceedings. 2 HOCKING, 21CA8
{¶2} Appellant assigns four errors for review:
FIRST ASSIGNMENT OF ERROR:
“APPELLANT’S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOLLOWING THE TRIAL COURT DECISION ON THE DEFENSE MOTION TO DISMISS FOR VIOLATION OF APPELLANT’S SPEEDY TRIAL RIGHTS AND CONTINUING THROUGH THE SENTENCING HEARING.”
SECOND ASSIGNMENT OF ERROR:
“THE TRAIL [SIC.] COURT FAILED TO PROPERLY CONSIDER THE SERIOUSNESS AND RECIDIVISM FACTORS OF O.R.C. 2929.12 AND THE PURPOSES OF FELONY SENTENCING IN R.C. 2929.11.”
THIRD ASSIGNMENT OF ERROR:
“PROSECUTORIAL MISCONDUCT IMPROPERLY INFLUENCED THE TRIAL COURT, PREJUDICING THE APPELLANT’S RIGHT TO A FAIR SENTENCING HEARING AND THE PROSECUTOR FAILED TO HONOR THE PLEA AGREEMENT.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY NOT DISMISSING THE INDICTMENT FOR VIOLATION OF APPELLANT’S RIGHT TO A SPEEDY TRIAL PURSUANT TO O.R.C. 2945.73(A).”
{¶3} On or about July 3, 2020, Michael Dixon, appellant’s
father, shot and killed James Whitaker. The prosecution alleged
that appellant (1) had been present when the homicide occurred, (2)
assisted in the disposal of the victim’s body, and (3) lied to law
enforcement about what occurred.
{¶4} On July 28, 2020, law enforcement authorities arrested
appellant for obstructing justice in violation of R.C. 3 HOCKING, 21CA8
2921.32(A)(5), a fifth-degree felony (Case Number 20CR0140). The
complaint alleged that on July 27, 2020, appellant knowingly “made
a false statement in which she later admitted to during the course
of a felony investigation that was being conducted at 23605
Chestnut Grove Road.” At appellant’s July 30, 2020 arraignment,
the trial court set a $100,000 bond, but later modified bond to
$300,000.
{¶5} On September 25, 2020, a Hocking County Grand Jury
returned an indictment that charged appellant with (1) obstructing
justice in violation of R.C. 2921.32(A)(5)/(C)(4), a third-degree
felony, and (2) obstructing justice in violation of R.C.
2921.32(A)(5)/(C)(3), a fifth-degree felony. At appellant’s
October 1, 2020 arraignment, the trial court modified appellant’s
bond to $500,000 and set an October 21, 2020 trial date. Appellant
also filed a motion for discovery.
{¶6} On October 9, 2020, appellee filed a motion for a
continuance due to the “complexity of the case, possible additional
charges and to promote court efficiency * * * 198 days can be
credited towards the 270 days required under R.C. 2945.71(C)(2).
However, the state believes that time is currently tolled (since
Oct. 1, 2020) while Defendant’s Request for Discovery is being
fulfilled.” The trial court continued the jury trial in Case No. 4 HOCKING, 21CA8
20CR0140 to October 29, 2020.
{¶7} On October 23, 2020, a Hocking County Grand Jury returned
an indictment in Case No. 20CR0202 that charged appellant with (1)
seven counts of tampering with evidence in violation of R.C.
2921.12(A)(1)/(B), third-degree felonies, (2) one count of gross
abuse of a corpse in violation of R.C. 2927.01(B)/(C), a fifth-
degree felony, (3) one count of obstructing justice in violation of
R.C. 2921.32(A)(5)/(C)(3), a fifth-degree felony, (4) one count of
obstructing justice in violation of R.C. 2921.32(A)(5)/(C)(4), a
third-degree felony, and (5) one count of engaging in a pattern of
corrupt activity in violation of R.C. 2923.32(A)(1)/(B)(1), a
first-degree felony. Five days later, the trial court dismissed
Case No. 20CR0140 without prejudice due to the superseding
indictment.
{¶8} At appellant’s October 29, 2020 arraignment, appellant
entered not guilty pleas and the trial court scheduled a January
20, 2021 jury trial. However, on November 20, 2020, the trial
court sua sponte continued all jury trials due to the COVID-19
pandemic. Appellant also filed a second discovery request on
December 2, 2020, and the state responded on December 14, 2020. On
January 11, 2021, the trial court again sua sponte continued
appellant’s January 20, 2021 jury trial due to the COVID-19 5 HOCKING, 21CA8
pandemic and noted that, for purposes of speedy trial, the delay
did not count against the state. The court then scheduled a jury
trial on February 16 and 17, 2021.
{¶9} On February 8, 2021, appellant requested a dismissal of
charges and asserted that the state did not bring her to trial
within the R.C. 2945.71 and 2945.72 speedy trial time requirements.
At the motion hearing, Hocking County Sheriff’s Lieutenant
Detective Dustin Robison testified that he investigated James
Whitaker’s death and, when asked “at what point in time would you
consider your investigation complete,” Robison replied, “Right now
I believe it’s still not complete. There’s still questions out
there that we do not know, that we are still seeking the truth.”
Robison testified that appellant’s initial obstruction charges
related to her July 2020 false statements about the victim’s
disappearance. Concerning the second indictment, Robison testified
that appellant made false statements at least three times in one
interview. On March 30, 2021, the trial court denied appellant’s
motion on all counts, except counts nine and ten for which the
court reserved judgment.
{¶10} At appellant’s May 18, 2021 change of plea hearing, the
trial court first advised appellant of her constitutional rights.
When the court asked “anything unusual about your present mental or 6 HOCKING, 21CA8
physical condition,” appellant indicated she had been treated for
depression and post-traumatic stress disorder (PTSD) in the past,
but her plea is knowing, intelligent, and voluntary. Appellant
then pleaded guilty to Counts 4, 5, and 7 tampering with evidence,
all third-degree felonies; Count 9 obstructing justice, a fifth-
degree felony; and Count 10 obstructing justice, a third-degree
felony.
{¶11} At appellant’s June 17, 2021 sentencing hearing, the
trial court indicated it had reviewed the sentencing memorandum and
pre-sentence investigation report. Also, all four of the victim’s
daughters and the victim’s neighbor spoke at sentencing. On
appellant’s behalf, appellant’s counsel read appellant’s prepared
statement. The trial court commented, “the defendant’s life as a
child was far from ideal, and certainly I’m sure that had an
influence on what occurred. However, it doesn’t excuse it.”
{¶12} After the trial court heard the statements and reviewed
the memorandum and the report, the court sentenced appellant to
serve (1) three years in prison on each of Counts 4, 5, and 7, (2)
twelve months in prison on Count 9, and (3) three years in prison
on Count 10. The court further ordered (1) the sentences in Counts
4, 5, and 7 to be served consecutively for a total of nine years,
and (2) the sentences in Counts 9 and 10 to be served concurrently 7 HOCKING, 21CA8
with Counts 4, 5, and 7, for a nine-year total sentence. Finally,
the court ordered appellant to serve a three-year post-release
control term and dismissed Counts 1, 2, 3, 6, 8, and 11. This
appeal followed.
I.
{¶13} In her first assignment of error, appellant asserts that
her trial counsel failed to provide effective assistance of
counsel. In particular, appellant claims that her counsel failed
to (1) preserve the issue of appellant’s speedy trial rights by
allowing her to enter a guilty plea, (2) object to the trial
court’s decision that partially overruled her motion to dismiss
based on speedy trial violations, (3) object to the prosecutor’s
improper sentencing statements, (4) object to the victim’s
daughters’ sentencing statements, (5) explain the impact of
appellant’s PTSD and childhood trauma, or obtain an expert to do
so, and (6) direct the court to consider R.C. 2929.12 and
2929.12(C)(1) at sentencing.
{¶14} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provides that
defendants in all criminal proceedings shall have the assistance of
counsel for their defense. To establish constitutionally
ineffective assistance of counsel, a defendant must show that (1) 8 HOCKING, 21CA8
counsel's performance was deficient, and (2) the deficient
performance prejudiced the defense and deprived the defendant of a
fair trial. Id. at 687. To establish deficient performance, a
defendant must prove that counsel's performance fell below an
objective level of reasonable representation. State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.
Additionally, a court need not analyze both Strickland test prongs
if it can resolve the claim under one prong. See State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v.
Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 12-13.
{¶15} When a court examines whether counsel's representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689, 466 U.S.
668, 104 S.Ct. 2052. Moreover, because a properly licensed
attorney is presumed to execute all duties ethically and
competently, State v. Taylor, 4th Dist. Washington No. 07CA11,
2008-Ohio-482, ¶ 10, to establish ineffectiveness a defendant must
demonstrate that counsel's errors were “so serious” that counsel
failed to function “as the ‘counsel’ guaranteed * * * by the Sixth
Amendment.” Strickland at 687, 466 U.S. 668, 104 S.Ct. 2052.
A. 9 HOCKING, 21CA8
{¶16} Initially, appellant asserts that her trial counsel
failed to provide effective assistance when appellant’s no-contest
plea failed to preserve various issues for appeal. Appellant
points out that when she entered her guilty pleas, the trial court
had not yet ruled on her Count 9 and 10 speedy trial claim, that
she did not know the court would not rule on Counts 9 and 10, and
she did not know her guilty pleas would waive all speedy trial
issues. Appellant thus argues that her trial counsel failed to:
(1) advise her to enter a no contest plea to preserve the speedy
trial issue, and (2) request a final ruling for Counts 9 and 10, or
specifically indicate on the record whether appellant knew that a
guilty plea would waive the issue for appeal. Appellant further
argues that she suffered prejudice because her speedy trial claims
were likely to succeed on appeal.
{¶17} Crim.R. 12(H) provides “[t]he plea of no contest does not
preclude a defendant from asserting upon appeal that the trial
court prejudicially erred in ruling on a pretrial motion * * *,”
see also State v. Luna, 2 Ohio St.3d 57, 58, 442 N.E.2d 1284
(1982). A guilty plea, however, waives a defendant’s right to
challenge R.C. 2945.71 statutory speedy trial claims. State v.
Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph one of
the syllabus. 10 HOCKING, 21CA8
{¶18} Generally, when considering an ineffective assistance
claim, a defendant must overcome a presumption that counsel’s
challenged action might be considered sound trial strategy. State
v. Hankison, 4th Dist. Scioto No. 09CA3326, 2010-Ohio-4617, at ¶
105. Relevant to this case, “the strategic decision of a trial
attorney will not form the basis of a claim of ineffective
assistance of counsel, even if there may have been a better
strategy available.” State v. Jackson, 4th Dist. Pickaway No.
11CA20, 2012-Ohio-6276, ¶ 56, quoting State v. Komora, 11th Dist.
Geauga No. 96–G1994, 1997 WL 184758, *3 (Apr. 4, 1997), citing
State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).
Further, judicial scrutiny of a lawyer’s performance is highly
deferential. State v. Sallie, 81 Ohio St.3d 673, 693 N.E.2d 267;
State v. Newton, 2017-Ohio-7068, 95 N.E.3d 789 (8th Dist.).
{¶19} In the case sub judice, appellee argues that nothing in
the record indicates that (1) the state would have agreed to
resolve this case with no contest pleas to the five offenses to
which appellant pleaded guilty and (2) the trial court would have
been willing to accept no contest pleas. Importantly, as appellee
observes, appellant did, in fact, receive a significant benefit in
exchange for her guilty pleas. Pursuant to the parties’ plea
agreement, the court dismissed six felony charges, including 11 HOCKING, 21CA8
engaging in a pattern of corrupt activity, a first-degree felony.
Thus, appellee argues, although a no contest plea may have
preserved appellant’s right to challenge the speedy trial issue,
appellant instead chose to plead guilty in exchange for the
dismissal of six felony charges.
{¶20} Our review of the record reveals that the trial court
informed appellant that her guilty plea would result in a waiver of
her speedy trial rights. When the court asked appellant if she
understood that she would be “giving up [her] right to a speedy
public jury trial?,” appellant indicated she understood. After the
court thoroughly explained all other rights appellant would waive
with her guilty plea, appellant chose to plead guilty to four
third-degree felonies and one fifth-degree felony. Appellant also
signed a “Petition to Enter Plea of Guilty,” which provides that
her guilty plea waives “any and all constitutional, statutory, or
factual defenses with respect to such crimes and this case.”
{¶21} In State v. McCann, 4th Dist. Lawrence No. 10CA12, 2011-
Ohio-3339, the defendant expressly waived his statutory speedy
trial right and pled guilty. Id. at ¶ 16. This court wrote that
when “an accused enters a plea of guilty he waives his right to
raise the denial of his right to a speedy trial on appeal.” Id.
at ¶ 17, citing Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 12 HOCKING, 21CA8
581 (1986). As we observed, “[a] plea of guilty constitutes a
complete admission of guilt * * * and waives the right to claim
that the accused was prejudiced by constitutionally ineffective
counsel, except to the extent the defects complained of caused the
plea to be less than knowing and voluntary.” State v. Floyd, 4th
Dist. Scioto No. 92CA2102, 1993 WL 415287 (Oct.13, 1993), quoting
State v. Barnett (1991), 73 Ohio App.3d 244, 248-249, 596 N.E.2d.
{¶22} In the case sub judice, we find nothing in the record to
indicate that appellant’s decision to enter a guilty plea was not a
voluntary act and could have been sound trial strategy. See State
v. Frankle, 2015-Ohio-1581, 31 N.E.3d 1290, ¶ 24 (2d Dist.)(in
exchange for plea, state dismissed three other charges). Here, in
exchange for appellant’s guilty pleas, the state dismissed six
additional felony charges. In light of these benefits, counsel
reasonably may have decided that the best course of action included
entering the guilty pleas. Moreover, appellant had the
opportunity, but did not express to the trial court, any desire to
refuse to plead guilty and raise on appeal a speedy trial issue.
{¶23} Thus, after our review we do not believe that trial
counsel failed to provide effective assistance of counsel when
appellant entered guilty pleas and received the benefit of having
six felony charges dismissed. Here, appellant also failed to 13 HOCKING, 21CA8
establish prejudice. Furthermore, the record reveals that trial
court fully advised appellant of the consequences of her guilty
pleas and that she entered her pleas knowingly, voluntarily and
intelligently.
B.
{¶24} Appellant also contends that her trial counsel’s failure
to object to the trial court’s decision that partially overruled
her motion to dismiss constitutes ineffective assistance.
Appellant argues that, because trial counsel demonstrated that the
state did not bring appellant to trial within the relevant
statutory period, the burden should have shifted to the state to
establish that speedy trial time had not expired. State v.
Butcher, 27 Ohio St.3d 28, 31, 500 N.E.2d 1368 (1986). Appellant
claims that the state conceded that the first and second
indictments are part of the same transaction, but that the trial
court “abandoned the position of neutral fact finder tasked with
construing ambiguity in the record in favor of the defendant and
went about attempting to save the indictment for the State.”
Further, appellant contends that trial counsel failed to object
when the court declined to rule on counts nine and ten, but instead
stated in its March 30, 2021 decision that it would “rule on these
counts at trial.” Appellant now argues she would not have entered 14 HOCKING, 21CA8
guilty pleas to counts nine and ten if the trial court had
dismissed those counts.
{¶25} The decision of counsel whether to object, or not to
object, ordinarily constitutes a question of trial strategy. State
v. Whitehead, 4th Dist. Scioto No. 20CA3931, 2022-Ohio-479, ¶ 64,
citing State v. Frierson, 8th Dist. Cuyahoga No. 105618, 2018-Ohio-
391, ¶ 25, citing State v. Johnson, 7th Dist. Jefferson No. 16 JE
0002, 2016-Ohio-7937, ¶ 46. Thus, “the failure to make objections
is not alone enough to sustain a claim of ineffective assistance of
counsel.” Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, at ¶ 103.
{¶26} Moreover, as we indicated above, in the case sub judice
trial counsel negotiated a plea agreement that resulted in the
dismissal of six felony counts. Consequently, appellant’s guilty
pleas waived, not only her right to challenge the speedy trial
issue, but also any claim of ineffective assistance of counsel
based upon the waiver of those speedy trial issues. See State v.
Miller, 8th Dist. Cuyahoga No. 94790, 2011-Ohio-928, ¶ 15-18.
Thus, we do not find merit to the argument that trial counsel
“[f]ailed to use objections, despite numerous and clear reasons for
doing so.” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404,
858 N.E.2d 1133, ¶ 140. 15 HOCKING, 21CA8
{¶27} Accordingly, we do not believe that trial counsel’s
decision not to enter an objection could be considered to
constitute deficient performance.
C.
{¶28} Appellant also asserts that at sentencing, her trial
counsel failed to object to the prosecutor’s improper statements.
In particular, appellant argues that the prosecutor inappropriately
urged the court to sentence appellant based on conduct that she did
not personally engage in and to which she had not pleaded guilty.
{¶29} Appellant claims that her trial counsel should have
objected when the prosecutor: (1) characterized appellant’s crimes
as “the worst type of these offenses,” (2) mentioned the time
between the victim’s death and the state’s discovery of appellant’s
involvement, (3) made the statement that “[t]his was after they
killed him *** after he was killed and put in the burn pit as you
heard from the trial,” and (4) mentioned the impact appellant and
her father’s actions have had on the victim’s family. Appellant
argues that these statements (1) constitute prosecutorial
misconduct and establish counsel’s ineffectiveness for the failure
to challenge them, (2) led the trial court astray and encouraged
the court to consider appellant’s father’s crimes when it sentenced
appellant, and (3) constituted a breach of the parties’ plea 16 HOCKING, 21CA8
agreement.
{¶30} “The test for prosecutorial misconduct is whether the
conduct complained of deprived the defendant of a fair trial.”
State v. Jackson, 92 Ohio St.3d 436, 441, 751 N.E.2d 946 (2001),
citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394
(1987). “Isolated comments by a prosecutor are not to be taken out
of context and given their most damaging meaning.” State v. Hill,
75 Ohio St.3d 195, 204, 661 N.E.2d 1068, (1996). Further, a
defendant has the burden to show that a reasonable probability
exists that, but for the prosecutor's misconduct, the result of the
proceeding would have been different. State v. Loza, 71 Ohio St.3d
61, 78-79, 641 N.E.2d 1082, (1994), overruled on other grounds.
{¶31} “Courts have consistently held that evidence of other
crimes, including crimes that never result in criminal charges
being pursued, or criminal charges that are dismissed as a result
of a plea bargain, may be considered at sentencing.” State v.
Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 16,
citing State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989).
See also State v. Scheer, 158 Ohio App.3d 432, 2004-Ohio-4792, 816
N.E.2d 602, ¶ 17 (4th Dist.) (court free to consider dismissed
charges when determining appropriate sentence); State v. Bowser, 17 HOCKING, 21CA8
186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 15 (2d
Dist.)(court may consider information beyond that strictly related
to the conviction offense, and evidence inadmissible at trial, like
hearsay, and consider evidence entirely unrelated to the conviction
offense); accord State v. Beaver, 4th Dist. Washington No. 07CA62,
2008-Ohio-4513, ¶ 13, State v. Pitzer, 4th Dist. Highland No.
19CA23, 2020-Ohio-4322, ¶ 16.
{¶32} Consequently, in the case sub judice after our review of
the sentencing hearing transcript, we find no impropriety. Here,
it would have been very difficult to reference appellant’s actions
in a vacuum without also alluding to appellant’s father’s
interrelated crimes. Also, in the context of appellant’s
sentencing hearing, the overwhelming majority of appellee’s
statements directly related to appellant’s conduct. We do not
believe that the prosecution made improper comments about
appellant’s offenses or other matters.
{¶33} Furthermore, even if we considered, for purposes of
argument, that the prosecutor’s comments could be deemed to be
improper, appellant did not establish prejudice. The transcript
reveals that the trial court knew and understood the salient facts
involved in this matter and stated, “the defendant did not kill,
but she did hide what happened.” Finally, the prosecutor’s 18 HOCKING, 21CA8
comments did not constitute a breach of the plea agreement. As we
noted above, prosecutorial statements that concern dismissed
charges or uncharged crimes are permissible and may be useful to
fully inform a sentencing judge about the totality of the
particular situation.
{¶34} Accordingly, we do not believe appellant established that
trial counsel’s failure to object to the prosecutor’s statements
was so unreasonable as to constitute deficient performance.
D.
{¶35} Appellant further asserts that her trial counsel’s
failure to object to the statements from the victim’s daughters
constitutes deficient performance. Appellant argues that, in light
of the nature of the particular charges (obstruction of justice and
tampering with evidence), the actual victim in this case is
“justice,” not the decedent James Whitaker nor the murder victim’s
family. Appellant thus claims that her trial counsel should have
objected to the statements from the victim’s four daughters.
{¶36} In the case at bar, however, we conclude that no error
occurred with the trial court’s consideration of the victim impact
testimony because it is “information relevant to the imposition of
sentence in the case,” pursuant to R.C. 2929.19(A). Here, no
prejudice occurred and appellant failed to show that trial 19 HOCKING, 21CA8
counsel’s decision not to object constitutes a deficient
performance.
E.
{¶37} Appellant further asserts that trial counsel’s failure to
fully explain to the court the impact of appellant’s post-traumatic
stress disorder (PTSD) and childhood trauma, or to obtain a defense
expert to do so, constitutes a deficient performance.
{¶38} Our review of the record reveals that the pre-sentence
investigation report (PSI) thoroughly detailed appellant’s very sad
and traumatic childhood, in which multiple men allegedly victimized
her. The PSI also outlined appellant’s mental health issues.
Further, as appellee notes, the trial court had been fully aware of
appellant’s PTSD diagnosis and stated that it “had an influence on
what occurred,” but concluded that “it doesn’t excuse it.”
{¶39} Appellant also claims that PTSD and childhood trauma
could have been a defense to the various charges if counsel had
argued that her trauma negated the intent element of the crimes.
However, as appellee observes, appellant (1) cites no authority for
her contention that PTSD could have been a complete defense to the
charges, and (2) failed to show prejudice.
{¶40} Therefore, after our review we believe that appellant did
not establish that counsel’s actions were so unreasonable as to 20 HOCKING, 21CA8
constitute ineffective assistance.
F.
{¶41} Finally, appellant asserts that her trial counsel failed
to (1) direct the trial court to consider the R.C. 2929.12 and R.C.
2929.12(C)(1) sentencing factors, and (2) explain how the victim
(“justice”) induced and facilitated these offenses. Appellant
claims that, because she had been victimized in the past and had
provided names to law enforcement, she believes the fact that law
enforcement failed to take appropriate action taught her that “she
is responsible for the crimes committed against her.” Therefore,
appellant maintains, the justice system does not have clean hands
and appellant will serve prison time for “killing [the victim] even
though she was not responsible for his killing.”
{¶42} Our review in the case sub judice reveals, however, that
the trial court did not impose sentence for killing the victim.
Rather, the court sentenced appellant for the failure to report a
murder, then lying about it and assisting in the cover-up of the
crime. Although this court is sympathetic to appellant’s traumatic
childhood, as the trial court aptly stated, appellant is
responsible for her criminal acts.
{¶43} Thus, because appellant failed to establish ineffective
assistance or prejudice, we overrule appellant’s first assignment 21 HOCKING, 21CA8
of error.
II.
{¶44} In her second assignment of error, appellant asserts
that, prior to imposing sentence, the trial court (1) failed to
properly consider the R.C. 2929.11 purposes of felony sentencing
and the R.C. 2929.12 seriousness and recidivism factors, and (2)
improperly imposed maximum sentences. However, as appellee points
out, appellant does not argue that her sentence is contrary to law,
but instead argues that the record does not support the sentence.
R.C. 2953.08(G)(2)(a) provides:
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 for 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 convincingly finds either of the following: (a) 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 section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶45} R.C. 2929.11 addresses the purposes of felony sentencing,
while R.C. 2929.12 addresses factors a court should consider when
it imposes a sentence under R.C. 2929.11. “[N]either R.C. 2929.11
nor 2929.12 requires a trial court to make any specific factual 22 HOCKING, 21CA8
findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 20; State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Thus, “a trial court is
required only to ‘carefully consider’ the factors in R.C. 2929.11
and R.C. 2929.12 when imposing sentence.” State v. Allen, 4th
Dist. Pickaway No. 19CA31, 2021-Ohio-648, ¶ 13, citing State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38; State
v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 47; State
v. Rothwell, 4th Dist. Adams No. 20CA1122, 2021-Ohio-1700, ¶ 9. In
Jones at ¶ 28, the court wrote:
R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a sentence if it clearly and convincingly finds that ‘the record does not support the sentencing court’s findings under’ certain specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.
The Jones court further stated:
Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12. In particular, R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry like the independent sentence evaluation this court must conduct under R.C. 2929.05(A) when reviewing a death penalty-sentence. See State v. Hundley, 162 Ohio St.3d 509, 2020-Ohio-3775, 166 N.E.3d 1066, ¶ 128 (recognizing that R.C. 2929.05(A) requires de novo review of findings and other issues within its scope). 23 HOCKING, 21CA8
Id. at ¶ 4; State v. Arbogast, 4th Dist. Adams No. 20CA1119, 2021-
Ohio-484, ¶ 7; State v. Brodt, 4th Dist. Adams No. 21CA1140, 2022-
Ohio-1528, ¶ 10.
{¶46} In the case sub judice, the trial court sentenced
appellant to serve a three-year prison term on each of Counts 4, 5,
and 7 (tampering with evidence), a twelve-month prison term on
Count 9 (obstructing justice), and a three-year prison term on
Count 10 (obstructing justice), with the sentences in Counts 4, 5,
and 7 to be served consecutively for a total of nine years, and the
sentences in Counts 9 and 10 to be served concurrently with the
sentences in Counts 4, 5, and 7. Additionally, the court ordered
appellant to serve a three-year post-release control term and
dismissed Counts 1, 2, 3, 6, 8, and 11.
{¶47} Appellant argues that the R.C. 2929.12 factors do not
support maximum sentences because none of the R.C. 2929.12(B)
factors apply, while all of the R.C. 2929.12(C) and (D) factors do
apply. Further, appellant argues that the R.C. 2929.12(E) factors
weight in appellant’s favor. Finally, appellant contends that the
court did not carefully consider any R.C. 2929.12 factors, but
rather conflated her actions with her father’s actions and, in
effect, sentenced appellant for her father’s crimes.
{¶48} Our review of the record reveals that, in the case at 24 HOCKING, 21CA8
bar, the trial court stated that it considered the record, oral
statements, and the presentence investigation report. The
sentencing hearing transcript also reflects that the court stated,
“[t]he sentence is consistent with the principles of sentencing in
the state of Ohio” pursuant to R.C. 2929.11. Further, the
sentencing entry provides “[t]he Court has considered the record,
oral statements and any victim impact statements, as well as the
principles and purposes of sentencing under R.C. 2929.11, and the
seriousness and recidivism factors under R.C. 2929.12.”
{¶49} Here, appellant appears to request this appellate court
to independently weigh evidence and substitute our judgment for
that of the trial court to arrive at the sentence that best
reflects compliance with R.C. 2929.11 and R.C. 2929.12. However,
this court may not do so because Jones does not permit an appellate
court to engage in this process. Brodt at ¶ 11; Whitehead at ¶
109; State v. Smith, 4th Dist. Scioto No. 20CA3934, 2022-Ohio-371,
¶ 127.
{¶50} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III.
{¶51} In her third assignment of error, appellant asserts that
prosecutorial misconduct improperly influenced the trial court, 25 HOCKING, 21CA8
prejudiced her right to a fair sentencing hearing, and resulted in
the prosecutor’s failure to honor the parties’ plea agreement.
{¶52} As we outlined above, “[t]he test for prosecutorial
misconduct is whether the conduct complained of deprived the
defendant of a fair trial.” State v. Jackson, 92 Ohio St.3d 436,
441, 751 N.E.2d 946 (2001), citing Apanovitch, 33 Ohio St.3d at 24;
State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993);
State v. Benge, 4th Dist. Adams No. 20CA1112, 2021-Ohio-152, ¶ 54.
Therefore, “[t]he touchstone of the analysis ‘is the fairness of
the trial, not the culpability of the prosecutor.’ ” State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149,
quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71
L.Ed.2d 78 (1982). “The Constitution does not guarantee an “error
free, perfect trial.” State v. Landrum, 53 Ohio St.3d 107, 112,
559 N.E.2d 710 (1990). Moreover, “a judge is presumed to be
capable of separating what may be properly considered from what may
not be considered.” In re Disqualification of Forsthoefel, 135 Ohio
St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 9. Here, after our
review, we conclude that appellant has not overcome the presumption
that the trial court conducted a fair sentencing hearing and
properly imposed appellant’s sentence.
{¶53} Appellant claims that the prosecutor “improperly urged [Cite as State v. Dixon, 2022-Ohio-2807.]
the court to sentence [appellant] based upon conduct she did not
engage in and to which she had not pleaded guilty.” Once again,
however, we believe that the prosecutor’s references to the murder,
when discussing appellant’s obstructing justice and tampering with
evidence, provided important context for the court’s consideration.
In general, at sentencing a prosecutor may comment on the crime as
a whole, including, as we point out above, uncharged crimes and
charges dismissed pursuant to plea agreements. See State v.
Staggs, 4th Dist. Gallia No. 16CA19, 2017-Ohio-7368, ¶ 15, citing
State v. Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-Ohio-4574, ¶
22, quoting State v. Starkey, 7th Dist. Mahoning No. 06 MA 110,
2007-Ohio-6702, ¶ 17; Cooey, 46 Ohio St.3d at 35 (court can
consider uncharged crimes as part of defendant's social history);
State v. France, 5th Dist. Richland No. 15CA19, 2015-Ohio-4930, ¶
20 (uncharged crimes and charges dismissed pursuant to plea
agreements may be considered as factors during sentencing). Here,
appellant’s evidence was intertwined with her father’s actions, but
the trial court could differentiate between the two defendants.
{¶54} Finally, appellant argues that the prosecutor’s comments
breached the parties’ plea agreement. Appellant states that “it is
clear by what charges were dismissed and what charges were pleaded
to that the benefit [appellant] bargained for was to not take [Cite as State v. Dixon, 2022-Ohio-2807.]
responsibility for the conduct of Michael Dixon in killing and
burning Mr. Whitaker.”
{¶55} Our review of the plea agreement indicates that the
parties agreed that, in exchange for appellant’s guilty plea to
five felony counts, the state would dismiss six remaining felony
counts. Here, we do not believe appellant established that
appellee’s comments are either improper or prejudicial. Once
again, it is apparent that the trial court had a firm grasp on the
pertinent facts and the nature of appellant’s participation.
{¶56} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error.
IV.
{¶57} In her final assignment of error, appellant asserts that
the trial court should have dismissed the indictment due to the
violation of her right to a speedy trial. However, we initially
point out, and as we observed in our discussion of appellant’s
first assignment of error, in the case sub judice appellant’s
guilty plea waived her ability to challenge the trial court’s
ruling on her speedy trial motion to dismiss. See Kelley, 57 Ohio
St.3d 127, 566 N.E.2d 658 (1991). Moreover, we believe that even
if appellant had properly preserved this issue for review, we would [Cite as State v. Dixon, 2022-Ohio-2807.]
find no merit to this issue.
{¶58} The Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution guarantee the right
to a speedy trial. Ohio’s speedy trial statutes, R.C. 2945.71 to
R.C. 2945.73, designate specific time requirements for the state to
bring an accused to trial. State v. Baker, 78 Ohio St.3d 108, 110,
676 N.E.2d 883 (1997). Under R.C. 2945.71(C)(2), the state must
bring a person charged with a felony to trial within 270 days after
arrest. Each day a defendant is held in jail in lieu of bail will
count as three days in computing speedy trial time. R.C.
2945.71(E). However, certain events may toll speedy trial time,
including continuances granted as a result of defense motions and
reasonable continuance granted other than upon the request of the
accused. See R.C. 2945.72(E) and (H). State v. Taylor, 98 Ohio
St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 31. Furthermore, sua
sponte continuances are continuances “granted other than on the
accused’s own motion” and will toll the speedy-trial time if the
record reflects that the period of the continuance is reasonable.
State v. Ramey, 2d Dist. Clark No. 2010 CA 19, 2012-Ohio-6187, ¶
12.
{¶59} The Supreme Court of Ohio has held that “[i]n issuing a
subsequent indictment, the state is not subject to the speedy-trial [Cite as State v. Dixon, 2022-Ohio-2807.]
timetable of the initial indictment, when additional criminal
charges arise from facts different from the original charges, or
the state did not know of these facts at the time of the initial
indictment.” Baker at syllabus. Thus, it should be determined
whether a second indictment arose from facts different from the
original charges, or whether the state did not know of the later
facts at the time of the initial indictment.
{¶60} On November 20, 2020, the trial court sua sponte issued
its COVID-19 pandemic continuance for all jury trials. The trial
court also observed that the central issue is whether the state
received an additional 270 days due to the new indictment in Case
No. 20CR0202 and, citing Baker, supra, noted that in issuing a
second indictment the state is not subject to the initial
indictment’s speedy trial timetable when additional criminal
charges arise from facts different from the original charges, or
facts unknown at the time of the initial indictment.
{¶61} The trial court concluded that, although appellant argued
that a nexus exists between the two indictments, the connection is
insufficient to overcome the guidance provided in Baker. The court
analogized this case to cases in which, at the time of the initial
indictment, law enforcement suspected that seized drugs are illegal
drugs, but later obtain a second indictment after the substance is [Cite as State v. Dixon, 2022-Ohio-2807.]
analyzed and test results received. The court concluded that at
the time of appellant’s arrest, appellee believed appellant had
some involvement with the victim’s death, but was “unaware of
exactly what the involvement was. It is obvious that further
investigation was necessary to discover what Ms. Dixon allegedly
did. If further investigation was necessary, then the State did
not know the facts at the time of the original indictment.”
{¶62} Once again, we believe that if this issue had been
properly preserved for review, the trial court’s determination is
nevertheless correct. Although appellant also argues that the
state conceded that both indictments stemmed from the “same
criminal transaction,” appellee points out that this means from the
same ongoing investigation, not the same circumstances. As this
court held in State v. Thomas, 4th Dist. Adams No. 06CA825, 2007-
Ohio-5340, at ¶ 14, “[t]he holding in Baker is disjunctive, i.e.,
the state need only establish one of the two scenarios, either
different facts or lack of knowledge.”
{¶63} At the motion hearing, Lt. Robison testified that, even
at that point, the investigation was “still not complete.” The
motion hearing transcript reveals that when the grand jury returned
the indictment in Case No. 20CR0140, the state did not know of the
facts that led to the charges for tampering with evidence, gross [Cite as State v. Dixon, 2022-Ohio-2807.]
abuse of a corpse, and the pattern of corrupt activity included in
Case No. 20CR0202.
{¶64} Furthermore, we point out that the COVID-19 pandemic
tolling event also extended appellant’s speedy trial time. The
Supreme Court of Ohio addressed this issue in State v. Lynum (In re
Fleegle), 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609.
“[A]ll Ohio judges have been advised, trial judges have the
authority to continue trials for defendants on a case-by-case basis
without violating speedy-trial requirements.” Id. at ¶ 7. Thus,
the trial court’s November 20, 2020 sua sponte order to continue
all jury trials due to the COVID-19 pandemic tolled the speedy
trial clock. The court’s December 17, 2020 and January 20, 2021
sua sponte orders to continue all jury trials due to the COVID-19
pandemic tolled the speedy-trial clock.
{¶65} After the February 8, 2021 hearing to consider
appellant’s speedy trial motion, the trial court decided that, at
most, only 189 of appellant’s 270 speedy-trial days had elapsed.
We agree. Even after the tolling period ended, “trial judges have
the authority to continue trials for defendants on a case-by-case
basis without violating speedy-trial requirements * * * courts may
suspend jury trials to prevent the spread of the coronavirus and
they may do so consistent with state and federal speedy-trial [Cite as State v. Dixon, 2022-Ohio-2807.]
obligations.” State v. Morant, 7th Dist. Belmont No. 20 BE 0020,
2021-Ohio-3160 at ¶ 27, citing Fleegle, supra, 161 Ohio St.3d 1263,
2020-Ohio-5636, 163 N.E.3d 609 at ¶ 7; 2020 Ohio Atty.Gen.Ops. No.
2020-002; Ohio Supreme Court Coronavirus Resources. In State v.
Beal, 2021-Ohio-3812, 179 N.E.3d 754, (5th Dist.), the trial
court’s COVID-19 sua sponte continuances, and the court’s
subsequent continuances related to a crowded docket, were deemed to
be reasonable in purpose and length and, consequently, tolled
speedy trial time. Beal at ¶ 39; see also State v. Young, 5th
Dist. Stark No. 2020CA00155, 2021-Ohio-1999, ¶ 19, citing State v.
Lee, 48 Ohio St.2d 208, 357 N.E.2d 1095 (1976); State v. Shaffer,
3d Dist. Paulding No. 11-21-05, 2022-Ohio-421, ¶ 22 (trial court’s
sua sponte continuance tolled speedy-trial time).
{¶66} Thus, we conclude that the trial court’s sua sponte
COVID-19-related continuances, inter alia, tolled appellant’s
speedy trial time. And once again, appellant’s guilty plea waived
her ability to raise speedy trial issues for consideration on
appeal. Thus, we believe the trial court properly overruled
appellant’s speedy trial motion to dismiss.
{¶67} Therefore, based upon the foregoing reasons, we overrule
appellant’s fourth assignment of error and affirm the trial court’s [Cite as State v. Dixon, 2022-Ohio-2807.]
judgment.
JUDGMENT AFFIRMED. HOCKING, 21CA8
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking 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 60 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 the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal HOCKING, 21CA8
35 commences from the date of filing with the clerk.