State v. Mitchell

2021 Ohio 1252

Opinion

[Cite as State v. Mitchell, 2021-Ohio-1252.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. CT2020-0041 JONATHAN M. MITCHELL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2020-0172

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 9, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH TODD W. BARSTOW PROSECUTING ATTORNEY 261 West Johnstown Road TAYLOR P. BENNINGTON Suite 204 ASSISTANT PROSECUTOR Columbus, Ohio 43230 27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2020-0041 2

Wise, J.

{¶1} Defendant-Appellant Jonathan M. Mitchell appeals his conviction and

sentence entered in the Muskingum County Court of Common Pleas on three counts of

Aggravated Arson, following a guilty plea.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts, as set forth at the plea hearing, and procedural history

are as follows:

{¶4} On March 20, 2020, Appellant Jonathan M. Mitchell's ex-girlfriend, K.E.,

called the Zanesville Police Department to report that Appellant was making threats to kill

both her and himself. She stated that Appellant also threatened to burn down her house.

{¶5} Hours later, at approximately 3:25 a.m. on March 21, 2020, K.E.’s house

was set on fire. Both the fire department and police department responded and believed

it to be arson.

{¶6} When detectives spoke with K.E., she stated that earlier that evening

Appellant had entered her apartment without her permission, again stating that he was

going to kill himself and was also going to kill her. She ultimately made him leave by

calling the police. K.E. then went to work.

{¶7} Throughout the evening, Appellant continued to call her, in what she

described to be a harassing nature. Appellant threatened to kill her and her family and

repeated that he was going to burn down her house approximately ten (10) different times.

The final call came thirty (30) minutes before the fire was reported. Appellant made Muskingum County, Case No. CT2020-0041 3

statements to her leading her to believe he was actually inside her house. He then

admitted to being in her home and was "warming up." (Plea T. at 14).

{¶8} As part of their investigation, Detectives spoke with the mother of

Appellant's child, who he was with throughout that evening. She stated that Appellant

confessed to setting the fire.

{¶9} K.E.’s residence was a complex which contained three (3) separate

residences. Each residence was harmed by the fire.

{¶10} Appellant was subsequently arrested.

{¶11} On April 15, 2020, the Muskingum County Grand Jury indicted Appellant

Jonathan M. Mitchell on April 15, 2020, on two counts of Aggravated Arson, both felonies

of the first degree; one count of Aggravated Arson, a felony of the second degree; one

count of Burglary, a felony of the third degree, and one count of Trespass in a Habitation,

a felony of the fourth degree.

{¶12} On May 27, 2020, Appellant appeared with counsel and entered a plea of

guilty to the Aggravated Arson counts. The remaining charges were dismissed on the

motion of the State.

{¶13} On July 1, 2020, Appellant appeared with counsel for sentencing. The court

imposed a six (6) year sentence on each of the first-degree felony arson charges and a

three (3) year sentence on the second-degree felony arson charge and ordered the

sentences to be served consecutively, for an aggregate sentence of fifteen years.

{¶14} Appellant now appeals, raising the following assignments of error for review: Muskingum County, Case No. CT2020-0041 4

ASSIGNMENT OF ERROR

{¶15} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF INCARCERATION

IN CONTRAVENTION OF OHIO'S SENTENCING STATUTES.”

I.

{¶16} In his sole assignment of error, Appellant argues the trial court erred by

imposing consecutive sentences. We disagree.

{¶17} This Court reviews felony sentences using the standard of review set forth

in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. Pursuant

to R.C. §2953.08(G)(2), we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court's findings under R.C. §2929.13(B) or (D),

§2929.14(B)(2)(e) or (C)(4), or §2929.20(I), or the sentence is otherwise contrary to law.

{¶18} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in

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

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

of the syllabus.

{¶19} R.C. §2929.14(C)(4) governs consecutive sentences and states the

following: Muskingum County, Case No. CT2020-0041 5

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(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.

(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.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶20} “In 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.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, Muskingum County, Case No. CT2020-0041 6

16 N.E.3d 659, syllabus. “[A] word-for-word recitation of the language of the statute is not

required, and as long as the reviewing court can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.” Id. at ¶ 29.

{¶21} In the case sub judice, Appellant plead guilty to aggravated arson. At

sentencing, the trial court heard arguments made by the parties and reviewed the pre-

sentence investigation. The trial court noted that in 2017, Appellant had a felony

conviction involving three (3) counts of domestic violence, stating:

Two of them felonies of the fourth degree one being a felony of the

fifth degree with a pregnant victim, being your ex, who was pregnant at the

time, and you struck one of your children with a tall boy you threw at her.

She was attacked and the mother was attacked. And then on another date

there was another attack. In that case there was actually three victims.

There were actually two incidents. (Sent. T. at 10).

{¶22} The trial court then reviewed Appellant's criminal history, noting his prior

convictions for criminal damaging, violation of protection order, domestic violence,

disorderly by fighting, fighting, criminal damaging, and aggravated menacing as a

juvenile. The trial court further found:

... it's also noted in the PSI that you went to a counselor for two years after

your 2014 domestic violence who tried to get you off the drinking and marijuana

and on to mental health meds, which you never did. You also claim you returned

to counseling briefly both in 2017 and 2018 and still did not do anything to make

yourself any better. (Sent. T. at 11). Muskingum County, Case No. CT2020-0041 7

{¶23} Appellant argues that no person was physically harmed as a result of his

actions and that although three families were affected, no one presented evidence that

they had suffered harm that was "great or unusual".

{¶24} Perhaps, viewed in a vacuum, there are more gory or horrific arson cases,

however, as noted by the trial court, and admitted to by Appellant, two separate families,

including a child, were home when Appellant set fire to the building. While the actual

monetary and physical harm suffered may have been less than some other arson cases,

the harm that could have come to all who lived in the building (and others) had the fire

spread was unknowable and out of Appellant’s hands once he started the fire.

{¶25} Further, where a defendant commits the same offense against different

victims during the same course of conduct, a separate animus exists for each victim such

that the offenses are not allied, and the defendant can properly be convicted of and

sentenced on multiple counts. State v. Chaney, 8th Dist. No. 97872, 2012-Ohio-4934,

2012 WL 5289942, ¶ 26, citing State v. Gregory, 90 Ohio App.3d 124, 129, 628 N.E.2d

86 (12th Dist.1993).

{¶26} In State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, the

Ohio Supreme Court held that under R.C. §2909.02(A)(1), regarding aggravated arson,

no person shall knowingly set a fire that creates a substantial risk of serious harm or injury

to another person.

{¶27} The defendant in Franklin set a fire that killed six people, but argued that

the aggravated arson counts were allied offenses of similar import that should merge into

one count “because he set only one fire and thus committed only one arson.” Id. at ¶ 48.

The Ohio Supreme Court rejected this argument, finding that even though the defendant Muskingum County, Case No. CT2020-0041 8

set only one fire, each aggravated arson count recognized that his conduct created a

substantial risk of harm to a separate person. Id. See also: State v. Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 23; State v. Johnson, 8th Dist. Cuyahoga No.

108311, 2020-Ohio-568, ¶ 21; State v. Collins, 8th Dist. No. 95415, 2011-Ohio-3241,

(court found that although Collins set one fire, he created a substantial risk of harm or

injury to four children and separate arson counts as to each victim remain).

{¶28} Here, we find that the trial court was entitled to conclude that the harm

caused was so great or unusual that no single term would adequately reflect the

seriousness of Appellant's actions.

{¶29} We further find that the trial court could reasonably conclude that, in light of

the severe nature of the incident, Appellant poses a threat to the public and could commit

future crime and that consecutive sentences were necessary to protect the public from

him and punish him for his actions.

{¶30} Upon our review of the record, we find that the trial court considered the

appropriate recidivism and seriousness factors, made the required findings, gave the

necessary reasons for its findings, and properly applied the statutory guidelines before

sentencing Appellant. Accordingly, we clearly and convincingly find that the record

supports the sentence, and that the sentence is not contrary to law. Muskingum County, Case No. CT2020-0041 9

{¶31} Appellant’s sole assignment of error is overruled.

{¶32} Accordingly, the judgment of the Court of Common Pleas, Muskingum

County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

JWW/d 0405