State v. Oliver

2010 Ohio 4182

• Court: Ohio Court of Appeals
• Decided: September 3, 2010
• Docket: 09 MA 44
• Status: Published

Opinion

[Cite as State v. Oliver, 2010-Ohio-4182.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 09 MA 44 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) WILLIE OLIVER ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2006 CR 516

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. James E. MacDonald Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Louis M. DeFabio 4822 Market Street, Suite 220 Youngstown, Ohio 44506

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: September 3, 2010 WAITE, J. -2-

{¶1} Appellant, Willie Oliver, Jr. appeals the five year sentence imposed by

the Mahoning County Common Pleas Court at a resentencing hearing held on

February 4, 2009. Appellant was convicted by a jury on one count of receiving stolen

property, a violation of R.C. 2913.51(A)(C), a fourth degree felony, and one count of

failure to comply with the order or signal of a police officer, a violation of R.C.

2921.331(B)(C)(1)(5)(a)(ii), a third degree felony. On resentencing, the trial court

imposed a twelve month sentence for receiving stolen property, and a four year

sentence for failure to comply, to be served consecutively pursuant to statute. R.C.

2921.331(D).

{¶2} Appellant successfully challenged the very same sentence, which the

trial court originally imposed on September 11, 2007 in State v. Oliver, 2008-Ohio-

6371, based on the trial court’s failure to place on the record its consideration of the

factors set forth in R.C. 2921.331.

{¶3} R.C. 2921.331(C)(5) reads, in pertinent part:

{¶4} “(b) 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:

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

{¶6} “(ii) The distance of the pursuit; -3-

{¶7} “(iii) The rate of speed at which the offender operated the motor vehicle

during the pursuit;

{¶8} “(iv) Whether the offender failed to stop for traffic lights or stop signs

{¶9} “(v) The number of traffic lights or stop signs for which the offender

failed to stop during the pursuit;

{¶10} “(vi) Whether the offender operated the motor vehicle during the pursuit

without lighted lights during a time when lighted lights are required;

{¶11} “(vii) Whether the offender committed a moving violation during the

pursuit;

{¶12} “(viii) The number of moving violations the offender committed during

the pursuit;

{¶13} “(ix) Any other relevant factors indicating that the offender's conduct is

more serious than conduct normally constituting the offense.”

{¶14} In Oliver I, we stated, “[t]hese factors do not need to be expressly

mentioned nor do specific findings as to the factors need to be made, rather, all that

is needed to be shown is that the trial court considered the factors.” (Internal

citations omitted.) Id. at ¶28. As a consequence, the trial court, at the resentencing

hearing, simply stated that it had considered the factors listed in the statute before re-

imposing the original sentence. (2/4/08 Tr., pp. 14-15.)

{¶15} A succinct summary of the trial testimony relevant to this appeal was

provided in Oliver I: -4-

{¶16} “Sometime after 7:30 p.m. on May 7, 2006, David Townsend’s 1990

maroon Pontiac Bonneville with license plate number DRU6603 was stolen from the

driveway abutting his property on Selma in Youngstown, Ohio. (Tr. 163, 165, 370).

The next morning when he noticed it was gone, he called the Youngstown Police

Department and reported the car stolen.

{¶17} “During the early morning hours of May 8, 2006, Boardman Police were

called to the BP on the corner of South Avenue and Rt. 224. (Tr. 184). The clerk at

the BP called the police about two suspects, a male and female, that had previously

shoplifted at that store. (Tr. 184, 250). The clerk indicated that the two suspects

were driving a 1990 maroon Pontiac with license plate number DRU6603. (Tr. 185-

186). Those two suspects were later identified as Willie Oliver and Alicia Adams.

(Tr. 263).

{¶18} “The officer did not see the suspects or the car when he checked the

BP, however, he did notice them leaving Doral Drive. He proceeded to follow them to

I-680. When the vehicle entered the I-680 on ramp, the officer activated his

overhead lights. (Tr. 187). At that point the Bonneville accelerated, left the road a

couple of times, fishtailed and almost crashed. (Tr. 188). The officer testified that he

ended the pursuit because of the danger to the driver and passenger and any other

vehicles on the road. (Tr. 189, 210).” Oliver I at ¶2-4.

{¶19} In his first assignment of error, Appellant contends that the trial court

abused its discretion when it imposed a four year sentence for failure to comply with

the order or signal of a police officer, and that the sentence itself was contrary to law.

In his supplemental assignment of error, Appellant contends that the trial court -5-

violated his right to due process when it failed to address his claim that the

presentence report contained an error, that is, that Appellant had been convicted of

attempted murder. For the following reasons, the judgment of the trial court is

affirmed.

ASSIGNMENT OF ERROR NO. 1

{¶20} “THE TRIAL COURT’S SENTENCE OF FOUR (4) YEARS OF

IMPRISONMENT WAS CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF

DISCRETION.”

{¶21} We review felony sentences using two standards of review. We must

determine whether the sentence is contrary to law and whether it constitutes an

abuse of discretion. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State

v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. A sentence is clearly and

convincingly contrary to law when the sentencing court does not comply with all

applicable rules and statutes in imposing the sentence. Gratz, at ¶8, citing State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶13-14. An abuse of

discretion may occur if the sentencing court unreasonably or arbitrarily weighs the

factors in R.C. 2929.11 and R.C. 2929.12. Gratz at ¶8, citing Kalish at ¶17.

{¶22} For a felony of the third degree, the minimum sentence is one year and

the maximum sentence is five years. The overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish

the offender. R.C. 2929.11(A). To achieve these purposes, the sentencing court must

consider the need for: incapacitating the offender; deterring the offender and others

from future crime; rehabilitating the offender; and making restitution. Id. A sentence -6-

must be commensurate with and not demeaning to the seriousness of the offender's

conduct and its impact upon the victim. R.C. 2929.11(B).

{¶23} The sentencing court has discretion to determine the most effective way

to comply with the purposes and principles of sentencing set forth in section 2929.11

but must consider whether any seriousness and recidivism factors listed in R.C.

2929.12 are relevant. R.C. 2929.12(A). In addition, the trial court may consider any

other factors that are relevant to achieving those purposes and principles of

sentencing. Id.

{¶24} Turning to Appellant’s challenges to the sentence imposed in this case,

he first argues that the trial court failed to articulate any consideration of the statutory

factors at all. Therefore, he claims, the sentence is contrary to law. In the

alternative, he argues that “if the trial court’s rote recitation that it considered the

seriousness factors suffices,” the sentence imposed constitutes an abuse of

discretion. (Appellant’s Brf., p. 13).

{¶25} The trial court in this case did not mention any of the factors listed in

R.C. 2929.12 at the sentencing hearing, but did state that it considered the factors in

the statute, as well as the principles and purposes of sentencing listed in R.C.

2929.11, in imposing the four year sentence. (2/4/09 Tr., p. 13.) In State v. Arnett

(2000), 88 Ohio St.3d 208, 724 N.E.2d 793, the Supreme Court held that, “the

sentencing judge could have satisfied her duty under R.C. 2929.12 with nothing more

than a rote recitation that she had considered the applicable [factors].” Id. at 215.

Consequently, the sentence cannot be found to be contrary to law for the reasons

argued by Appellant. -7-

{¶26} Next, Appellant contends that none of the aggravating factors listed in

R.C. 2929.12 were present in this case, while the existence of a mitigating factor

listed in the statute should have resulted in a lesser sentence. Specifically, Appellant

argues that he did not cause or expect to cause any physical harm to any person or

property. Thus, the sole applicable consideration listed in R.C. 2929.12 is a

mitigating factor. Based on Appellant’s lengthy criminal history, and the fact that he

was on parole at the time of the offense due to a 1995 conviction for robbery, he

does concede that the recidivism factors favor a longer sentence.

{¶27} With respect to the factors listed in R.C. 2921.331(C)(5)(b), Appellant

argues on appeal, as he did before the trial court, that the facts established at trial

demonstrate, “the least serious form of failure to comply that could exist.”

(Appellant’s Brf., p. 9.) He claims that the duration and distance of the pursuit were

very short, and the rate of speed was minimal. He did not fail to stop at street lights

and his headlights were on during the brief pursuit.

{¶28} Appellant further argues that the court abused its discretion in imposing

a four year sentence based on sentences previously imposed by Ohio courts for

more egregious violations of the statute. For instance, the Eighth District Court of

Appeals affirmed a four year sentence in State v. Jones, 8th Dist. No. 477530, 2008-

Ohio-802, ¶17, where the defendant ran stop signs while leading police on a 90 mph

chase through an active school zone. Another defendant who led police on a two

mile chase at speeds reaching 120 mph through a busy construction zone on

Interstate 71 received a 17 month sentence. See State v. Battle, 8th Dist. No. 82503,

2003-Ohio-4951, at ¶3-5. -8-

{¶29} Appellant’s abuse of discretion argument is premised on the fact that

the pursuit in this case was, “at best, seconds long.” (Appellant’s Brf., p. 9.)

However, his argument ignores the fact that the brief duration and length of the

pursuit resulted not from Appellant’s compliance, but was due to the officer’s decision

to terminate pursuit because of his concerns for the public safety. Appellant should

not reap the benefit at sentencing of the fact that the officer chose to terminate his

pursuit.

{¶30} Moreover, in the case sub judice, during the limited time that the officer

pursued Appellant, Appellant’s car “accelerated, left the road a couple of times,

fishtailed and almost crashed. (Tr. 188).” Oliver I at ¶4. Although the chase was

brief, the trial testimony established that Appellant recklessly operated his car in a

particularly dangerous area of the road; the on-ramp of a highway.

{¶31} In addition to Appellant’s reckless conduct during the commission of the

crime, his trial counsel conceded that, even without the attempted murder charge

erroneously included in his pre-sentence investigation report, see infra, Appellant had

a lengthy criminal history. Moreover, Appellant was on parole when he committed

the crimes at issue in this appeal. Therefore, the trial court did not abuse its

discretion in imposing a four year sentence.

{¶32} Because Appellant’s sentence is not contrary to law and does not

constitute an abuse of discretion on the part of the trial court, Appellant’s first

assignment of error is overruled. -9-

SUPPLEMENTAL ASSIGNMENT OF ERROR

{¶33} “THE TRIAL COURT ERRED, PURSUANT TO OHIO REVISED CODE

§2951.03(B)(5), BY IMPOSING A SENTENCE WITHOUT MAKING A FINDING

AFTER THE DEFENDANT MADE SPECIFIC OBJECTIONS TO AN ALLEGED,

PRIOR CONVICTION IN THE PRE-SENTENCE REPORT. FURTHER, THE

APPELLANT WAS DENIED DUE PROCESS OF LAW AT THE SENTENCING

HEARING.”

{¶34} At the original sentencing hearing, the state recommended the

maximum sentence. The state relied upon Appellant’s criminal record, arguing:

{¶35} “[B]ased upon the pre-sentence investigation,* * *[Appellant] has been

convicted of 15 different offenses. Four of those were felonies, including one for

attempted murder. [Appellant] served a seven-year period on this attempted murder

charge, which may even indicate that his record would be worse if he was out during

that period.” (9/11/07 Tr., p. 3.)

{¶36} Appellant’s trial counsel objected to the content of the presentence

report, stating that Appellant was never convicted of attempted murder. According to

his trial counsel, Appellant has a common name, which he shares with both his father

and his son, who have both been convicted of a number of crimes, and one other

Willie Oliver, who his trial counsel had represented in Youngstown Municipal Court.

Trial counsel explained that, “[b]ecause of that, some of this has bled across into the

PSI.” (9/11/07 Tr. p., 7.) However, even without the erroneous information, trial

counsel conceded that Appellant had “a lengthy record.” (9/11/07 Tr. p., 6.) -10-

{¶37} The trial court held a resentencing in the matter. At the resentencing

hearing, Appellant was represented by new counsel. His counsel told the trial court

that, “[t]he state indicated that [Appellant] had been convicted of attempted murder at

the last sentencing. That absolutely is not true.” (2/4/09 Tr., p. 11.) Trial counsel

did, however, proceed to describe the crimes Appellant actually committed:

{¶38} “[Appellant] was convicted of a robbery, an aggravated felony two, in

Trumbull County in 1995. It is a pre-Senate Bill 2 robbery, so that’s why it’s an agg

[sic] felony two. It was an indefinite sentence, which was three to 15 years, which

was the minimum, and he had a firearm specification. He basically has served about

ten years of that sentence because he’s serving part of that sentence now on a

parole violation based on this case. He has a felony receiving stolen property from

Judge Durkin’s [sic] that I believe arose some time in 2004, and he has these cases.

So there certainly is a criminal record there; however, I think when you’re doing this

balancing test, * * * recidivism certainly is more likely than not * * * *” (2/4/09 Tr., p.

11.)

{¶39} The record reflects that in addition to the crimes listed by his trial

counsel, Appellant has previous convictions for assault, drug abuse, drug

possession, theft, carrying a concealed weapon, and mishandling a firearm in a

motor vehicle. Appellant does not argue that he was not convicted of these crimes.

Based on Appellant’s criminal history, his counsel conceded at the resentencing

hearing that “recidivism certainly is more likely than not,” and that Appellant, “hasn’t

responded favorably to rehabilitative efforts in the past.” (2/4/09 Tr., pp. 10-11.) -11-

{¶40} On appeal, the trial court could not locate the PSI for our review. As a

consequence, the Adult Parole Authority faxed an unsigned copy to the Clerks’

Office. In the report, which contained a “follow-up date” of September 12, 2007,

there is no attempted murder conviction listed. It is not clear from the record whether

the trial court relied on the amended PSI in the resentencing hearing.

{¶41} R.C. 2951.03(B) reads, in pertinent part:

{¶42} “(5) If the comments of the defendant or the defendant's counsel, the

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

factual inaccuracy in the presentence investigation report or the summary of the

report, the court shall do either of the following with respect to each alleged factual

inaccuracy:

{¶43} “(a) Make a finding as to the allegation;

{¶44} “(b) Make a determination that no finding is necessary with respect to

the allegation, because the factual matter will not be taken into account in the

sentencing of the defendant.”

{¶45} Interpreting R.C. 2951.03(B), appellate courts in Ohio have recognized

that a failure to make the requisite findings pursuant to the statute is harmless error if

the record reflects that none of the trial court’s findings or considerations would be

affected by the alleged inaccuracies in the report. State v. Caudill, 5th Dist. 06 COA

42, 2007-Ohio-6175, ¶21-22, State v. Platz, 4th Dist. No. 01 CA33, 2002-Ohio-6149,

at ¶18, State v. Roby, 11th Dist. No. 2001-A-0029, 2003-Ohio-603, ¶53.

{¶46} The facts in this case are similar to the facts presented in State v. Elder,

8th Dist. No. 80677, 2002-Ohio-3797. In Elder, the Eighth District Court of Appeals -12-

determined that, “the trial court never addressed the presentence investigation report

other than to state that it had reviewed it prior to the sentencing hearing.

Furthermore, it never mentioned Elder's prior criminal record in imposing the

sentence. Accordingly, we find that the trial court's failure to make the requisite

findings pursuant to R.C. 2951.03(B)(5) was harmless error.” Id. at ¶56. The same

could be said, here, except that the record does not indicate whether the trial court

received a PSI at resentencing.

{¶47} Because the record does not reflect that the trial court relied on an

erroneous conviction, which appears to have been mistakenly included in the original

PSI, in imposing sentence at Appellant’s resentencing, Appellant’s supplemental

assignment of error is also overruled and the trial court’s decision is affirmed in total.

Donofrio, J., concurs.

DeGenaro, J., concurs.