State v. Flanik

2019 Ohio 1412

• Court: Ohio Court of Appeals
• Decided: April 15, 2019
• Docket: 2018-L-103
• Status: Published

Opinion

[Cite as State v. Flanik, 2019-Ohio-1412.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2018-L-103 - vs - :

CHRISTOPHER L. FLANIK, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR 001275.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa Ann Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant- Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Christopher Flanik, appeals from the August 7, 2018 judgment

of the Lake County Court of Common Pleas sentencing him to two consecutive prison

terms of eighteen and twelve months respectively. For the reasons discussed herein,

the judgment is affirmed. {¶2} On November 1, 2017, Wickliffe police observed a car speeding and

driving erratically through a parking lot. An officer followed the car and signaled for the

vehicle to stop by activating the police lights and siren. Appellant, who was driving the

vehicle, did not stop but turned into a residential area. He was operating the vehicle

above the posted speed limit, ran several stop signs, and took a turn too fast causing

him to drive through a resident’s front yard before stopping in a cul-de-sac. The officer

ordered appellant out of the car. He refused and instead attempted to light a crack pipe.

He was forcibly removed from the vehicle and arrested. On the floor of the vehicle,

officers observed a substance later confirmed to be cocaine and a tin foil crack pipe.

{¶3} Appellant was charged with Failure to Comply with Order or Signal of a

Police Officer, a third-degree felony, in violation of R.C. 2921.331(B); Possession of

Cocaine, a fifth-degree felony, in violation of R.C. 2925.11; and Illegal Use or

Possession of Drug Paraphernalia, a fourth-degree misdemeanor, in violation of R.C.

2925.14(C)(1). Appellant waived his right to be present at arraignment and pleas of “not

guilty” were entered on his behalf. At the request of defense counsel, appellant

underwent a competency evaluation and was ultimately deemed competent to stand

trial. In June 2018, appellant withdrew the not guilty pleas and pled guilty to an

amended count one of Attempted Failure to Comply, a fourth-degree felony in violation

of R.C. 2921.331(B) and one count of Possession of Cocaine, a fifth-degree felony in

violation of R.C. 2925.11. The remaining count was nolled.

{¶4} Appellant was sentenced to 18 months in prison for count one and 12

months in prison for count two, to be served consecutively to one another. Appellant

2 appeals, assigning one error with three sub-issues for our review. Appellant’s

assignment of error states:

{¶5} “The trial court erred by sentencing the defendant-appellant to a prison

term of 18 months on a fourth-degree felony, attempted failure to comply and a prison

term of 12 months on a fifth-degree felony, possession of cocaine, to be served

consecutively for a maximum prison term of 30 months.”

{¶6} R.C. 2953.08(G)(2) permits an appellate court to review the record and

increase, reduce, or vacate the sentence, or remand the matter to the sentencing court

for resentencing only if it finds the record does not clearly and convincingly support the

sentencing court's findings or the sentence is otherwise contrary to law. State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶1.

{¶7} Appellant’s first issue asserts:

{¶8} “The trial court erred when it imposed a maximum prison term of 18

months on amended Count One, Attempted Failure to Comply without considering the

statutorily mandated sentencing factors as outlined in R.C. 2921.331(C)(5)(b)(i)-(ix) and

thus, trial court’s sentence is not supported by the record and is contrary to law.”

{¶9} Appellant contends the court was required and failed to consider the

sentencing factors of R.C. 2921.331(C)(5)(b)(i)-(ix) in addition to the factors outlined in

R.C. 2929.12 and 2929.13. R.C. 2921.331(C)(5)(b) states:

{¶10} If a police officer pursues an offender who is violating division (B) of this section and division (C)(5)(a) of this section applies, the sentencing court, in determining the seriousness of an offender’s conduct for purposes of sentencing the offender for a violation of division (B) of this section, shall consider, along with the factors set forth in sections 2929.12 and 2929.13 of the Revised Code that are required to be considered, all of the following:

{¶11} (i) The duration of the pursuit;

3 {¶12} (ii) The distance of the pursuit;

{¶13} (iii) The rate of speed at which the offender operated the motor vehicle during the pursuit;

{¶14} (iv) Whether the offender failed to stop for traffic lights or stop signs during the pursuit;

{¶15} (v) The number of traffic lights or stop signs for which the offender failed to stop during the pursuit;

{¶16} (vi) Whether the offender operated the motor vehicle during the pursuit without lighted lights during a time when lighted lights are required;

{¶17} (vii) Whether the offender committed a moving violation during the pursuit;

{¶18} (viii) The number of moving violations the offender committed during the pursuit;

{¶19} (ix) Any other relevant factors indicating that the offender’s conduct is more serious than conduct normally constituting the offense.

{¶20} This court has held that, in sentencing a defendant for a violation of R.C.

2921.331, the trial court need not make a specific reference to R.C. 2921.331(C)(5)(b)

but, “[r]ather, it is only necessary for the record to show that the trial court was informed

of the pertinent facts so that the court had an opportunity to consider them in light of the

listed statutory factors.” State v. Jackson, 11th Dist. Lake No. 2014-L-124, 2015-Ohio-

2608, ¶21, citing State v. Jordan, 3d Dist. Hardin No. 6-11-05, 2011-Ohio-6015, ¶16-19.

{¶21} In this case the trial court specifically noted:

{¶22} In terms of * * * the attempted failure to comply, the offender did pose a hazard to himself and others on the roadway, and the police officer even though it wasn’t at high rates of speed and there wasn’t numerous traffic signal violations, this is attempted failure to comply. And it was a serious act of attempted failure to comply. The Defendant lit up a crack pipe when stopped by the police, and the police were trying to arrest him.

4 {¶23} The record sets forth the pertinent facts of appellant’s conduct applicable

to R.C. 2921.331(C)(5)(b), including the time and location of the chase, that appellant

was speeding at 45-mph in a 25-mph zone, there was no traffic, he ran three stop signs,

and took a turn too fast causing him to drive onto a residential lawn. In sentencing, the

court expressly stated it reviewed the presentencing report which contained these

details. The trial court reviewed these factors, considering 45-mph to be not a “high rate

of speed” and the running of three stop signs and driving into a residential yard not to be

“numerous” traffic signal violations. Thus, the record indicates the court considered the

R.C. 2921.331(C)(5)(b) factors and appellant’s argument is without merit.

{¶24} Appellant’s second issue asserts:

{¶25} “The trial court erred when it imposed a 30 month maximum prison term

where its findings under R.C. 2929.12 were not supported by the record and were

contrary to law.”

{¶26} Appellant asserts the court ignored and discounted mitigating factors that

made appellant’s conduct less serious, namely, his admitted drug addiction, which the

Supreme Court of Ohio recognized as a valid mitigating factor in State v. Johnson, 144

Ohio St.3d 51, 2015-Ohio-4903, ¶138-139.

{¶27} However, while drug addiction is a factor to be considered, R.C.

2929.12(C) does not dictate the weight to be given any one factor, but only requires that

the trial court consider each factor. See State v. Jones, 7th Dist. Mahoning No. 03-MA-

113, 2005-Ohio-1767, ¶46. The trial court did in fact consider his drug addiction in

sentencing, finding that it would be addressed in prison and will continue to be

5 addressed once released from prison as he will still be subject to community control

sanctions. Thus, appellant’s second issue is without merit.

{¶28} Appellant’s third issue asserts:

{¶29} “The trial court erred when it imposed a prison term of 18 months on count

one, as amended, Attempted Failure to Comply, a fourth-degree felony to be served

consecutively to a prison term of 12 months on count two, Possession of Cocaine, a

fifth-degree felony for a maximum and consecutive prison term of 30 months, where its

findings under R.C. 2929.14 were not supported by the record and were contrary to

law.”

{¶30} Pursuant to R.C. 2929.14(C)(4), the court may impose consecutive

sentences if it finds (1) a consecutive sentence is necessary to protect the public from

future crime or to punish the offender, (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public, and (3) at least one of the factors set forth in R.C.

2929.14(C)(4)(a)-(c) is present:

{¶31} (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

{¶32} (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

{¶33} (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. R.C. 2929.14(C)(4)(a)-(c).

6 {¶34} The Supreme Court of Ohio has held:

{¶35} [i]n order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings. Nor is it required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio- 3177, ¶37.

{¶36} Here, the trial court expressly noted a consecutive sentence is necessary

to protect the public from future crime and to punish appellant, consecutive sentences

are not disproportionate to the seriousness of his conduct and to the danger he poses to

the public, and “his criminal history shows that consecutive terms are needed to protect

the public from future crime.” Thus, all three requirements of R.C. 2929.14(C)(4) are

met. Further, the record supports these findings and the consecutive sentences are not

otherwise contrary to law.

{¶37} While the court applauded appellant’s most recent attempt to “get his out

of control life under control,” it noted he has a history of at least 12 failed rehabilitations

attempts and an extensive criminal history including 19 misdemeanors and 21 felonies.

Furthermore, though he has not been in prison in the last eight years, he does have

multiple convictions and parole violations during that time, including a community

control sanction issued since the instant offense. The court stated it had “a hard time

believing that it only took the arrest here and one day in jail * * * [for] him to be able to

turn his life around.” Thus, appellant’s third issue is without merit.

7 {¶38} In light of the forgoing, we conclude the sentence is supported by the

record and is not clearly and convincingly contrary to law. Appellant’s sole assignment

of error lacks merit.

{¶39} The judgment of the Lake County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.