[Cite as State v. Gatewood, 2012-Ohio-202.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 18
v. : T.C. NO. 06CR1155
HERMAN R. GATEWOOD : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 20th day of January , 2012.
ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
SHAWN P. HOOKS, Atty. Reg. No. 0079100, 131 N. Ludlow Street, Suite 630, Dayton, Ohio 45420 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Herman R. Gatewood appeals his conviction and sentence 2
for one count of possession of crack cocaine in excess of five grams, in violation of R.C.
2925.11(A), accompanied by a firearm specification; one count of failure to comply with the
order or signal from a police officer, in violation of R.C. 2921.331(B), accompanied by a
firearm specification; one count of illegal conveyance of a prohibited item onto the grounds
of a detention facility, in violation of R.C. 2921.36(A)(2); one count of having a weapon
while under disability, in violation of R.C. 2923.13(A)(3); and one count of carrying a
concealed weapon, in violation of R.C. 2923.12(A)(2). Gatewood filed a timely notice of
appeal with this Court on February 11, 2010.
I
{¶ 2} We initially note that the instant case has already been the subject of a direct
appeal before this Court in State v. Gatewood, Clark App. No. 2008 CA 64, 2009-Ohio-5610
(hereinafter “Gatewood I”). Thus, we set forth the history of the case in Gatewood I, and
repeat it herein in pertinent part:
{¶ 3} “On October 1, 2006, a man driving a gray vehicle pulled into the parking lot at
the Knights of Pythias club in Springfield and fired shots into the air and into the windshield
of another vehicle. Darwin Hicks, an off-duty detective, was present at the club. He called
for uniformed officers and recorded the license plate number of the vehicle. The man left
the club parking lot before the uniformed officers arrived, but he returned as Detective Hicks
was discussing the incident with the responding officers. Detective Hicks identified
Gatewood as the shooter. Officer Kranz approached Gatewood’s car with his gun drawn
and ordered him to put the car in park; Officer Pergram drew his weapon to assist and
observed Gatewood reaching under the seat of his car. When Officer Pergram opened the 3
front passenger door of Gatewood’s vehicle in order to turn off the car, Gatewood inched the
car forward, and Pergram withdrew. Gatewood then fled the scene in his vehicle.
{¶ 4} “Officers Pergram and Kranz pursued Gatewood in their cruisers with the
lights and sirens activated. A short distance away, Gatewood crashed his car and tried to
flee on foot. He was eventually stopped and arrested by Officer Pergram and other officers.
When the officers searched Gatewood’s vehicle, they found a loaded, semi-automatic pistol
slightly to the passenger side under the front seat. When Gatewood was searched at the jail,
officers discovered a bag of crack cocaine in his pocket.
{¶ 5} “Gatewood was indicted on one count of possession of crack cocaine, with a
firearm specification; one count of failure to comply, with a firearm specification; one count
of illegal conveyance of a weapon into a detention facility; one count of having a weapon
under disability; and one count of carrying a concealed weapon, with a firearm specification.
The counts for illegal conveyance and having a weapon under disability were dismissed
shortly before trial.
{¶ 6} “Gatewood initially hired an attorney to represent him, but that attorney filed a
motion to withdraw when a dispute arose over the payment of his fees. The trial court
granted the motion to withdraw. Gatewood refused to cooperate with an assessment to
determine his eligibility to be represented by the public defender. At the pretrial hearing,
Gatewood did not ask to represent himself, but felt he had ‘no choice’ because he had no
‘funds’ and did not want a public defender. The trial court discussed this option with
Gatewood at some length, and Gatewood signed a waiver of counsel. At Gatewood’s trial
two weeks later, he reaffirmed his intention to represent himself. 4
{¶ 7} “Gatewood was tried by a jury and appeared in court in jail attire. The State
called several police officers and a forensic expert to testify in its case-in-chief; Gatewood
did not call any witnesses or testify on his own behalf, although he did engage in voir dire
and gave an opening statement and a closing argument. The jury found Gatewood guilty on
the three remaining counts and on the firearm specifications, which were merged for
purposes of sentencing. Gatewood was sentenced to five years of imprisonment for
possession of crack cocaine, five years for failure to comply, and twelve months for carrying
a concealed weapon, all to be served consecutively to a mandatory one year term on the
firearm specification[,]” for an aggregate sentence of twelve years in prison.
{¶ 8} Gatewood appealed his conviction and sentence, and in an opinion issued on
October 23, 2009, we reversed the judgment of the trial court. Gatewood, 2009-Ohio-5610.
Specifically, we concluded that the trial court erred in failing to inform Gatewood of his
right to appear at his jury trial in clothing other than his jail attire and in failing to inquire as
to Gatewood’s ability to obtain other clothing. Id. Additionally, we held that the trial court
provided insufficient information to allow Gatewood to knowingly and intelligently waive
his constitutional right to the assistance of counsel. Id.
{¶ 9} Upon remand, the trial court returned Gatewood’s case to its active docket on
October 27, 2009. On November 3, 2009, the trial court appointed counsel to represent
Gatewood in a new trial for one count of possession of crack cocaine, with a firearm
specification; one count of failure to comply, with a firearm specification; and one count of
carrying a concealed weapon, with a firearm specification. Gatewood subsequently filed a
motion for a competency evaluation on November 9, 2009, and changed his plea to not 5
guilty by reason of insanity. On December 14, 2009, the trial court found that Gatewood
was competent to stand trial. A trial date was set for January 26, 2010. We note that
Gatewood remained in jail pending the re-trial.
{¶ 10} On January 21, 2010, the State re-indicted Gatewood on the previously
dismissed counts for illegal conveyance and having a weapon while under disability.
Gatewood filed a motion to dismiss the re-indicted counts, arguing a violation of his right to
speedy trial specifically as to those counts. The trial court overruled Gatewood’s motion.
The case proceeded to jury trial on January 27, 2010, after which Gatewood was found
guilty of possession of crack cocaine in excess of five grams, accompanied by a firearm
specification; failure to comply with the order or signal from a police officer, accompanied
by a firearm specification; illegal conveyance of a prohibited item onto the grounds of a
detention facility; having a weapon while under disability; and carrying a concealed weapon.
The trial court sentenced Gatewood to five years in prison on the count of possession of
crack cocaine, in addition to one year for the firearm specification; five years for failure to
comply, plus one year for the firearm specification; five years for illegal conveyance; five
years for having a weapon while under disability; and eighteen months for carrying a
concealed weapon. With the exception of the firearm specifications which were merged,
the trial court ordered that all of the sentences be served consecutively for an aggregate
sentence of twenty-two and one-half years in prison.
{¶ 11} It is from this judgment that Gatewood now appeals.
II
{¶ 12} Gatewood’s first assignment of error is as follows: 6
{¶ 13} “THE TRIAL COURT’S DECISION OVERRULING THE MOTION TO
DISMISS THE RE-INDICTED CHARGES RESULTED IN MR. GATEWOOD’S
CONSTITUTIONAL RIGHTS BEING VIOLATED AS NEARLY TWO YEARS LAPSED
BETWEEN THE DISMISSAL OF THE COUNTS AND WHEN THEY WERE
RE-INDICTED FOLLOWING THE SUCCESSFUL APPEAL.”
{¶ 14} In his assignment, Gatewood contends that his constitutional right to a speedy
trial was violated when the trial court overruled his motion to dismiss the re-indicted counts
for illegal conveyance and having a weapon while under disability. Specifically, Gatewood
argues that because the re-indicted charges arose from the same set of facts as those in the
original indictment filed in October, 2006, the re-indicted charges should have been
dismissed prior to the second trial. In an entry filed on January 27, 2010, the trial court
overruled Gatewood’s motion to dismiss, but did not explain the basis of its decision in that
regard.
{¶ 15} At the outset, we note that the standard for reviewing claims of speedy trial
violations is “whether the trial court's ruling is supported by the evidence or whether the
court abused its discretion by making a finding manifestly against the weight of the
evidence.” See, e.g., State v. Humphrey, Clark App. No. 2002 CA 30, 2003-Ohio-3401,
¶21, citations omitted. Moreover, “[a]n abuse of discretion means more than an error of law
or judgment, it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable.” Id., citing Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87,
482 N.E.2d 1248.
{¶ 16} “The right to a speedy trial is guaranteed to all state criminal defendants by 7
the Sixth and Fourteenth Amendments to the United States Constitution *** and by Section
10, Article I of the Ohio Constitution.” State v. Riley (2005), 162 Ohio App.3d 730, 735, 834
N.E.2d 887, 2005-Ohio-4337. The Ohio General Assembly enacted the provisions in R.C.
§ 2945.71 et seq. in an effort to prescribe “reasonably speedy trial periods consistent with
these constitutional provisions.” State v. O’Brien (1987), 34 Ohio St.3d 7, 8, 516 N.E.2d
218. “The speedy trial provisions constitute a rational effort to enforce the constitutional
right to a speedy trial and must be strictly enforced by the courts.” State v. Pachay (1980), 64
Ohio St.2d 218, 416 N.E.2d 589, syllabus.
{¶ 17} R.C. 2945.71(C)(2) states that defendant charged with a felony “[s]hall be
brought to trial within two hundred seventy [270] days after the person’s arrest.” “For
purposes of computing time under divisions ***(C)(2) *** of this section, each day during
which the accused is held in jail in lieu of bail on the pending charge shall be counted as
three days.” R.C. § 2945.71(E). The time to bring a defendant to trial can be extended for
any of the reasons enumerated in R.C. § 2945.72, including “any period of delay necessitated
by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by
the accused,” and “the period of any continuance granted on the accused’s own motion, and
the period of any reasonable continuance granted other than upon the accused’s own
motion.” R.C. §§ 2945.72(E) & (H).
{¶ 18} As we recently held in State v. Kerby, Clark App. No. 2006 CA 73,
2007-Ohio-3810, Ohio’s speedy trial statute, R.C. 2945.71, does not apply to criminal
convictions that have been overturned on appeal. Rather, we held that the standard to be
applied is one of reasonableness under federal and state constitutions. Id. The time 8
limitation for bringing the appellant to trial is governed by the Sixth Amendment of the
United States Constitution and Section 10, Article I of the Ohio Constitution. “In Barker v.
Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, the court determined this to be ‘a
reasonable period consistent with constitutional standards.’” State v. Hull (2006), 110 Ohio
St.3d 183, 187, 2006-Ohio-4252.
{¶ 19} Initially, we note that the counts for illegal conveyance and having a weapon
while under disability were dismissed by the State immediately prior to Gatewood’s first
trial on February 15, 2008. Pursuant to our holding in Kerby, the speedy trial statute, R.C.
2945.71, does not apply to remanded charges following a defendant’s successful appeal.
2007-Ohio-3810. Because they were dismissed, however, neither dismissed count was at
issue on appeal in Gatewood I. Accordingly, those two counts were still subject to the
270-day requirement in R.C. 2945.71(C)(2). The following speedy trial computation,
therefore, only applies to the two dismissed counts.
{¶ 20} Gatewood was originally indicted on October 10, 2006, and was released on
his own recognizance. The trial court scheduled a criminal pre-trial conference on January
3, 2007. The trial court also scheduled Gatewood’s jury trial on February 13, 2007.
Gatewood failed to appear for the pre-trial conference, and the trial court issued a warrant
for his arrest on January 4, 2007, tolling Gatewood’s speedy trial time. Between October
10, 2006, and January 4, 2007, a total of eighty-six days accumulated towards Gatewood’s
speedy trial time, as he was not incarcerated.
{¶ 21} Gatewood was subsequently arrested on January 13, 2007, and remained in
jail until January 18, 2007, when he posted bond. Generally, when computing how much 9
time has run against the state under R.C. 2945.71, we begin with the day after the accused
was arrested. State v. Broughton (1991), 62 Ohio St.3d 253, 260. Gatewood was in jail for
five days; thus, fifteen days counted against his speedy trial time (three-for-one applied).
On February 13, 2007, Gatewood’s attorney failed to appear for trial, an event which tolled
Gatewood’s speedy trial time. From January 18, 2007, until February 13, 2007,
twenty-seven days accumulated towards Gatewood’s speedy trial time.
{¶ 22} On February 26, 2007, the trial court held Gatewood’s attorney in indirect
contempt for failing to appear for trial. The trial court subsequently permitted Gatewood’s
attorney to withdraw and ordered Gatewood to secure new counsel in an entry issued on
March 12, 2007. The trial court also scheduled Gatewood’s trial for April 11, 2007.
Gatewood failed to appear for trial, and the trial court issued a warrant for his arrest on April
12, 2007. Gatewood was arrested December 12, 2007, but he did not appear before the trial
court until February 1, 2008, when he stated his intention to proceed pro se. The trial court
set bond at $50,000.00 and scheduled Gatewood’s trial for February 15, 2008. From
February 13, 2007, until February 1, 2008, Gatewood’s speedy trial time was tolled. On
February 15, 2008, the State dismissed the counts for illegal conveyance and having a
weapon while under disability. Between February 1, 2008, and February 15, 2008, fifteen
days elapsed while Gatewood was incarcerated, thus, forty-five days counted against his
speedy trial time.
{¶ 23} We issued our decision in Gatewood I on October 23, 2009. On October 27,
2009, the trial court placed Gatewood’s case back on its active docket. The State, however,
did not re-indict Gatewood for the dismissed counts until January 21, 2010. The trial court 10
had previously scheduled Gatewood’s jury trial for January 27, 2010. On January 25, 2010,
Gatewood filed his motion to dismiss the two re-indicted counts for violating his right to
speedy trial. Gatewood’s motion tolled the speedy trial time. Between January 21, 2010,
and January 25, 2010, five days elapsed while Gatewood was incarcerated; thus, fifteen days
counted towards his speedy trial time. For the purposes of R.C. 2945.71(C)(2), only a total
of 188 days accumulated towards Gatewood’s statutory speedy trial time with respect to the
counts for illegal conveyance and having a weapon while under disability. Accordingly,
Gatewood’s statutory right to a speedy trial regarding the two dismissed, and later
re-indicted, counts was not violated. Our analysis, however, does not end here.
{¶ 24} Upon review, we find that the State’s decision to delay the re-indictment of
the counts for illegal conveyance and having a weapon while under disability was
“presumtively prejudicial” to Gatewood. The standard to be applied is one of
reasonableness under federal and state constitutions. The time limitation for bringing the
appellant to trial is governed by the Sixth Amendment of the United States Constitution and
Section 10, Article I of the Ohio Constitution. “In Barker v. Wingo (1972), 407 U.S. 514,
523, 92 S.Ct. 2182, the court determined this to be ‘a reasonable period consistent with
constitutional standards.’” Hull, 110 Ohio St.3d at 187, 852 N.E.2d 706, 710.
{¶ 25} Four factors are to be assessed in determining whether an accused had been
constitutionally denied a speedy trial: 1) the length of the delay; 2) the reason for the delay;
3) the defendant’s assertion of his right to speedy trial; and 4) the prejudice to the defendant.
Id., citing Barker, 407 U.S. at 530.
{¶ 26} “The length of the delay is to some extent a triggering mechanism. Until 11
there is delay which is presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance. Nevertheless, because of the imprecision of the right
to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent
upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530-531.
{¶ 27} In the instant case, we conclude that the delay of Gatewood’s re-indictment
until approximately two years after the first trial was presumptively prejudicial. “[C]ourts
have generally found postaccusation delay ‘presumptively prejudicial’ at least as it
approaches one year.” Doggett v. United States (1992), 505 U.S. 647, 112 S.Ct. 2686, 120
L.Ed.2d 520. Our decision in Gatewood I was not issued until October 23, 2009. The date
the case returned to the trial court’s active docket was on October 27, 2009. The delay
between October 27, 2009, and January 21, 2010, was approximately eighty-six days, an
additional delay beyond the original dismissal. On January 21, 2010, the dismissed counts
were re-indicted, and Gatewood’s trial on remand was set for January 27, 2010. The Ohio
Supreme Court’s holding in State v. Cargile, 123 Ohio St.3d 343, 2009-Ohio-4939, was
issued on September 24, 2009. The State argues that the Cargile decision directly affected
its decision whether to re-indict Gatewood for illegal conveyance on January 21, 2010. The
State’s reliance on Cargile, however, is misplaced. Cargile was issued on September 24,
2009, and the State does not explain why it chose to wait approximately four months after
the decision was issued to re-indict Gatewood. The State further argues that it relied on this
Court’s holding in State v. Cherry, 171 Oho App.3d 375, 2007-Ohio-2133, regarding its
decision to wait to re-indict Gatewood for having a weapon while under disability until
January 21, 2010. Again, the State’s argument is undermined by the fact that the Cherry 12
decision was issued on May 4, 2007. The State was unable to produce any explanation as to
why it chose to wait until January 21, 2010, to re-indict Gatewood for having a weapon
while under disability. Interestingly, Cherry was decided approximately nine months before
the State originally dismissed the count for having a weapon while under disability on
February 15, 2008. Thus, we are not persuaded by the State’s arguments regarding its
decision to wait for approximately two years before re-indicting Gatewood for illegal
conveyance and having a weapon while under disability. It is apparent that the State’s
decision to re-indict Gatewood six days before trial was done for the purpose of creating a
tactical advantage prior to trial. The State also conceded during oral arguments that it
re-indicted Gatewood for the dismissed counts because he refused to enter a plea to other
counts in the indictment. “A governmental delay motivated by bad faith, harassment, or
attempts to seek a tactical advantage weigh heavily against the government.” U.S. v. Marion
(1971), 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468.
{¶ 28} We note that Gatewood did nothing to contribute to the State’s lack of
diligence. After Gatewood filed his motion to dismiss, the burden was on the State to
establish a sound rationale regarding its decision to wait to re-indict Gatewood. In our
view, the State failed to meet its burden in that regard. Accordingly, we hold that the delay
of Gatewood’s re-indictment in this case is presumptively prejudicial and is, therefore,
constitutionally unreasonable such that his right to speedy trial was violated.
{¶ 29} Gatewood’s first assignment of error is sustained in part and overruled in part.
III
{¶ 30} Gatewood’s second assignment of error is as follows: 13
{¶ 31} “THE CONVICTION FOR ILLEGAL CONVEYANCE WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE AND THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT THE CONVICTION BECAUSE THERE WAS NO
EVIDENCE THAT ANY WARNINGS WERE GIVEN TO MR. GATEWOOD OR THAT
HE MADE AN AFFIRMATIVE DENIAL OF POSSESSION.”
{¶ 32} In his second assignment, Gatewood argues that there was insufficient
evidence to support his conviction for illegal conveyance because no evidence was adduced
which established that Gatewood was warned by the arresting officer regarding the
consequences of bringing illegal drugs into jail. Additionally, Gatewood asserts that no
evidence was presented which established that he ever specifically denied possessing drugs
prior to being brought to jail. Gatewood also asserts that his conviction for illegal
conveyance was against the manifest weight of the evidence.
{¶ 33} In light of our disposition with respect to Gatewood’s first assignment of
error, his second assignment of error is rendered moot.
IV
{¶ 34} Gatewood’s third assignment of error is as follows:
{¶ 35} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SUSTAINED THE STATE’S CHALLENGE OF A POTENTIAL JUROR FOR CAUSE
WHEN THAT POTENTIAL JUROR STATED HE WOULD HAVE TO EVALUATE THE
TESTIMONY OF THE POTENTIAL WITNESSES.”
{¶ 36} In his third assignment, Gatewood argues that the trial court abused its
discretion when it sustained the State’s challenge for cause of a potential juror based on 14
statements he made regarding his bias against police officers in Springfield, Ohio.
{¶ 37} A person called as a prospective juror may be challenged for cause if that
person demonstrates bias toward the defendant. R.C. 2945.25; Crim.R. 24(B). “Bias” is a
predisposition to decide a case or an issue in a certain way, which does not leave the mind
perfectly open to conviction. Black’s Law Dictionary (Fifth Ed.). A trial court’s ruling on
a challenge for cause will not be disturbed on appeal absent an abuse of discretion. State v.
Schiebel (1990), 55 Ohio St.3d 71. An abuse of discretion means more than a mere error of
law or an error in judgment. It implies an arbitrary, unreasonable, unconscionable attitude
on the part of the court. State v. Adams (1980), 62 Ohio St.2d 151.
{¶ 38} The State challenged the potential juror for cause after the following exchange
during voir dire:
{¶ 39} “The State: Is there any reason that you wouldn’t be able to serve on our jury
today?
{¶ 40} “Juror #4: I don’t think so but early on in my career I worked in broadcasting
and in two-way communications, and I worked in some other areas there associated with
public service, and I worked a lot with the police and fire and other people in Geauga County
and Cuyahoga County, and working on their weight stations and working on the dispatch to
guys on their radio and even went out directing traffic in the snowstorm.
{¶ 41} “I know that there a lot of heroic police officers and a lot of people just
putting in their time.
{¶ 42} “Q: I think you’ll find –
{¶ 43} “A: I expect if they give testimony, I will listen very carefully and I’ll be 15
highly critical. I lived in Springfield about nine years. I lived over on Light Street, bought
a cheap house and fixed it up, and I got a lot of attention from the police in that
neighborhood, and I’m going to be a little biased, you know, I’m going to be really critical
about what these guys have to say.
{¶ 44} “Q: Well, let’s talk about that. What do you mean you got a lot of attention
from the police in that area?
{¶ 45} “A: I got pulled over and stopped and asked if I had waved to a little girl, and
I didn’t. I had bought fish, and I took him in the house and showed him the fish in the
aquarium.
{¶ 46} “Q: Oh my. And you said –
{¶ 47} “A: And I have been down in the park with my turbo charged Trans-Am and a
guy pulled me over and searched my car, and he cited me for failure to display my license on
the front bumper. I had to go home and build a frame to hold my license. I didn’t have a
license plate.
{¶ 48} “Everywhere I went someone was stopping me and when I was in Cleveland
and Akron and Ashley, Ohio, I never had a problem. I just moved out of town because of
all the attention I was getting for being in Springfield.
{¶ 49} “Q: Well, do you think that that might give you a little bit of bias against the
police here?
{¶ 50} “A: I’m going to pay close attention.
{¶ 51} “Q: I mean, I guess –
{¶ 52} “A: Maybe more attention that other people. 16
{¶ 53} “Q: So that might suggest that you might have a small bias even though –
{¶ 54} “A: The possibility is there.”
{¶ 55} Upon further questioning, the potential juror stated that he recognized the
name of one of the officers who was testifying as possibly being involved in his prior
negative interactions with the Springfield police. The State subsequently made a challenge
for cause, and the trial court, after hearing from both parties, sustained the challenge and
dismissed the potential juror.
{¶ 56} As indicated by the exchange cited above, it was apparent from Juror #4's
responses to the State’s inquiries that he was specifically biased against police officers in
Springfield, Ohio, and would be highly critical, if not dismissive, of their testimony as it
related to the guilt of the accused. Juror #4's candid responses to the State’s inquiries raised
legitimate doubts regarding his ability to consider the testimony of police officers free from
bias. See State v. Caldwell, Franklin App. No. 09AP-685, 2010-Ohio-1324 (excluding for
cause, a juror who expressed a belief that police officers are biased against black
defendants). Based on the record before us, we conclude that the trial court did not abuse
its discretion when it sustained the State’s challenge for cause of Juror #4.
{¶ 57} Gatewood’s third assignment of error is overruled.
V
{¶ 58} Gatewood’s fourth assignment of error is as follows:
{¶ 59} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SENTENCED MR. GATEWOOD TO THE MAXIMUM ON ALL COUNTS AND
ORDERED THAT THEY BE SERVED CONSECUTIVELY WHEN THERE WAS NO 17
EVIDENCE OF ANY PRIOR RECORD AND THE COURT USED IMPROPER
FACTORS IN FASHIONING ITS SENTENCE.”
{¶ 60} In his fourth assignment, Gatewood contends that his sentence was improper
because the trial court failed to affirmatively address the relevant sentencing statutes during
the dispositional hearing. In the alternative, Gatewood argues that the trial court abused its
discretion when it considered improper factors in determining his sentence.
{¶ 61} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others and to punish the offender. To achieve those
purposes, the sentencing court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the offender, and making
restitution to the victim of the offense.” R.C. 2929.11(A). A court that imposes a sentence
for a felony has discretion to determine the most effective way to comply with the purposes
and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12(A). “Although
[State v.] Foster [109 Ohio St.3d 1, 2006-Ohio-856] eliminated judicial fact-finding, courts
have not been relieved of the obligation to consider the overriding purposes of felony
sentencing, the seriousness and recidivism factors, or the other relevant considerations set
forth in R.C. 2929.11, 2929.12, and 2929.13.” State v. Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338, ¶ 25.
{¶ 62} We review a felony sentence using a two-step procedure. State v. Kalish, 120
Ohio St.3d 23, 2008-Ohio-4912, ¶ 4. “The first step is to ‘examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law.’” State v. Stevens, 179 18
Ohio App.3d 97, 2008-Ohio-5775, ¶ 4, quoting Kalish at ¶ 4. “If this step is satisfied, the
second step requires that the trial court’s decision be ‘reviewed under an abuse-of-discretion
standard.’” Id. Generally, abuse of discretion is an “appellate court’s standard for
reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or
unsupported by the evidence.” State v. Money, Clark App. No. 2009CA119,
2010-Ohio-6225, ¶13 (internal citations omitted).
{¶ 63} As we recently explained in State v. Watkins, 186 Ohio App.3d 619,
2010-Ohio-740:
{¶ 64} “Sentencing errors assigned regarding the trial court’s application of R.C.
2929.11 and 2929.12 are reversible or modifiable only upon a finding by clear and
convincing evidence that the sentence is contrary to law. State v. Hawkins, Greene App.
No. 06CA79, ¶8. See, also, State v. Bowshier, Clark App No. 08-CA-58, 2009-Ohio-3429,
¶6, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912; State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855. ‘Contrary to law means’ that a sentencing decision manifestly
ignores an issue or factor which a statute requires a court to consider. Hawkins, supra, at
¶8, citing State v. Lofton, Montgomery App. No. 19852, 2004-Ohio-169, ¶11.
{¶ 65} “When a trial court imposes a sentence that falls within the applicable
statutory range, the court is required to consider the purposes and principles set forth in R.C.
2929.11, as well as the recidivism factors enumerated in R.C. 2929.12. Hawkins, supra, at
¶8, citing Mathis, supra. However, the court need not make any specific findings in order to
demonstrate its consideration of those factors. Id. citing State v. Arnett, 88 Ohio St.3d 208,
215, 2000-Ohio-301; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-855, ¶42.” 19
{¶ 66} In the instant case, it is undisputed that the trial court did not specifically
mention either R.C. 2929.11 or R.C. 2929.12 at the sentencing hearing. The court,
however, did reference both statutes in its judgment entry. A trial court speaks through its
journal entries. State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, ¶47, citation
omitted. In its judgment entry, the trial court stated as follows:
{¶ 67} “The Court considered the record, oral statements of counsel, the defendant’s
statement, the defendant’s prior criminal record, the principles and purposes of sentencing
under Ohio Revised Code Section 2929.11, and has balanced the seriousness and recidivism
factors [set forth in] Ohio Revised Code Section 2929.12.”
{¶ 68} Because the trial court affirmatively stated in its judgment entry that it
considered the factors set out in both R.C. 2929.11 and R.C. 2929.12 in imposing
Gatewood’s sentence, that sentence is not contrary to law. Watkins, 186 Ohio App.3d at 630.
{¶ 69} Having concluded that Gatewood’s sentence is not contrary to law, we must
now review his sentence under an abuse of discretion standard. Id. at 631. Gatewood
asserts that certain statements made by the trial court establish that the court considered
improper factors when it sentenced him. The trial court abuses its discretion when it
considers an improper factor in its sentencing analysis. State v. Davis, Washington App. No.
09CA28, 2010-Ohio-555.
{¶ 70} R.C. 2929.12(A) mandates that, in exercising its “discretion, the court shall
consider the factors set forth in divisions (B) and (C) of this section relating to the
seriousness of the conduct and the factors provided in divisions (D) and (E) of this section
relating to the likelihood of the offender’s recidivism and, in addition, may consider any 20
other factors that are relevant to addressing those purposes and principles of sentencing.”
Accordingly, the trial court had discretion to consider additional factors, but only if those
factors are relevant to the proceedings.
{¶ 71} Gatewood asserts that the following statements made by the trial court at his
disposition clearly establish that the trial court considered improper factors when it
sentenced him:
{¶ 72} “The Court: *** So what’s before the Court is an individual who at some
point in his life decided to engage in either the use or distribution of crack cocaine or both.
Noting for the record that he was convicted of only possession and not trafficking; however,
it is a significant amount of crack cocaine so it makes the Court wonder if perhaps the crack
cocaine was not just for personal use. [Disposition, pgs., 4-5]
{¶ 73} “***
{¶ 74} “The Court has a responsibility to protect the public. It’s a miracle that
nobody was seriously injured or killed, as a result of the defendant’s conduct.” [Disposition,
pg. 5].
{¶ 75} It is vital to avoid both the reality and “perception that no clear standards are
being applied, and that the rule of law is imperiled by sentences imposed for no discernible
reason other than the subjective reactions of the sentencing judge.” State v. Nichols, Clark
App. No. 2010 CA 60, 2011-Ohio-4671, quoting Harmelin v. Michigan (1991), 501 U.S.
957, 1007, 111 S.Ct. 2680, 115 L.Ed.2d 836. We have recently held that a sentence that is
appropriate for a particular criminal offense may be mitigated in recognition of a defendant’s
choice to waive a constitutional right and co-operate with the authorities. State v. Smith, 21
Clark App. No. 08-CA-37, 2009-Ohio-1041. Conversely, the appropriate sentence just
cannot be enhanced as a result of a decision by a defendant who has been equally culpable of
an equivalent offense to stand on that defendant’s rights. Id.
{¶ 76} In the instant case, the trial court penalized Gatewood for not “taking
responsibility and pleading guilty.” [Disposition, pg. 5]. We find that it was improper for
the trial court to opine that, based on the amount of contraband found in his possession,
Gatewood may have been trafficking in crack cocaine, despite the fact that he was not
charged with that offense.
{¶ 77} Additionally, although R.C. 2929.11(A) states that the overriding purposes of
felony sentencing are to protect the public from future crime by the offender and others and
to punish the offender, the trial court seems to have ignored the fact that, in order to achieve
those purposes, it was required to consider, among other things, rehabilitating the offender.
State v. Nichols, Clark App. No. 2010 CA 60, 2011-Ohio-4671. “[T]he sentencing judge
[should] consider every convicted person as an individual and every case as a unique study
in the human failings that sometimes mitigate, sometimes magnify, the crime and the
punishment to ensue.” Pepper v. United States (2011), U.S. , 131 S.Ct.
1229, 1240, 179 L.Ed.2d 196, citing Koon v. United States (1996), 518 U.S. 81, 116 S.Ct.
2035, 135 L.Ed.2d 392. Upon review, we conclude that the trial court abused its discretion
when it sentenced Gatewood by relying on improper factors which evidenced a vindictive
sentence imposed in retaliation for his decision to exercise his constitutional rights.
{¶ 78} Gatewood’s fourth assignment of error is sustained.
VI 22
{¶ 79} Gatewood’s fifth and final assignment of error is as follows:
{¶ 80} “THE CUMULATIVE ERRORS THAT TOOK PLACE THROUGHOUT
THE TRIAL DEPRIVED MR. GATEWOOD OF HIS CONSTITUTIONAL RIGHT TO A
FAIR TRIAL.
{¶ 81} “[S]eparately harmless errors may violate a defendant’s right to a fair trial
when the errors are considered together. State v. Madrigal, 87 Ohio St.3d 378, 721 N.E.2d
52, 2000-Ohio-448. In order to find ‘cumulative error’ present, we must first find that
multiple errors were committed at trial. Id. at 398, 721 N.E.2d 52. We must then find a
reasonable probability that the outcome of the trial would have been different but for the
combination of the separately harmless errors. State v. Thomas, Clark App. No.
2000-CA-43, 2001-Ohio-1353.” State v. Kelly, Greene App. No. 2004-CA-20,
2005-Ohio-305, ¶ 33. “Where no individual, prejudicial error has been shown, there can be
no cumulative error. State v. Blankenship (1995), 102 Ohio App.3d 534, 557, 657 N.E.2d
559.” State v. Jones, Montgomery App. No. 20349, 2005-Ohio-1208, ¶ 66. Where the court
found only one prejudicial error, there was no cumulative error that deprived defendant of a
fair trial. State v. Ruby, 149 Ohio App.3d 541, 2002-Ohio-5381.
{¶ 82} With the exception of our decision sustaining Gatewood’s first and fourth
assignments of error, we have found no other errors to be present. Accordingly, we cannot
find cumulative error in the instant case.
{¶ 83} Gatewood’s final assignment of error is overruled.
VII
{¶ 84} Gatewood’s first and fourth assignments of error having been sustained, his 23
convictions for illegal conveyance and having weapons while under disability are reversed
and vacated, and this matter is remanded to the trial court for re-sentencing on the remaining
counts. In all other respects, the judgment of the trial court is affirmed.
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Andrew R. Picek Shawn P. Hooks Hon. Douglas M. Rastatter