State v. Wolf

2021 Ohio 3223

Opinion

[Cite as State v. Wolf, 2021-Ohio-3223.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2021 CA 0009 STEPHEN H. WOLFE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 19 CR 730

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 16, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO PROSECUTING ATTORNEY 446 Howland Drive PAULA M. SAWYERS Gahanna, Ohio 43230 ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 2021 CA 0009 2

Wise, John, P. J.

{¶1} Defendant-Appellant Stephen H. Wolfe appeals his convictions and

sentences entered in the Licking County Court of Common Pleas following a negotiated

plea.

STATEMENT OF THE FACTS AND CASE

{¶2} On September 16, 2019, Trooper Matthew Stoffer of the Ohio State

Highway Patrol attempted to make a traffic stop of a 2013 Peterbilt Semi-truck on State

Route 30 in Wyandot County, Ohio, for failing to have license plates or a PUCO number

displayed on the commercial vehicle. (T. at 9-10). The vehicle, later determined to be

operated by Appellant Stephen Wolfe, did not stop. (T. at 10). The vehicle reached

speeds of 100 mph on Route 30, entering into Crawford County, back into Wyandot

County, before proceeding South on State Route 23 into Marion County and Delaware

County. Id. The vehicle avoided stop strips deployed and ignored multiple cruisers

chasing with lights and sirens activated attempting to stop the vehicle. Id. Appellant

steered his vehicle toward a Trooper placing stop strips on the roadway forcing the

Trooper to move out of the way and injuring himself in the process. Id.

{¶3} The semi-truck collided with a 1989 Jeep Comanche operated by Michael

Slagle, Jr. on Ohio 16 near Cedar Street in Newark, Licking County, Ohio. Id. As a result

of the collision, Slagle suffered serious physical harm requiring his transfer by life flight to

Grant Hospital. (T. at 10-11). The semi-truck reached speeds of 105 mph in Licking

County. (T. at 11). The vehicle continued through Muskingum County and into

Coshocton County. Id. Appellant abandoned the vehicle and was arrested at 1697

Evergreen Park Drive. Id. The chase occurred for more than fifty miles in total. Id. Licking County, Case No. 2021 CA 0009 3

{¶4} Appellant pled guilty to an amended count 1 - assault on a peace officer, a

fourth degree felony, in violation of R.C. §2903.13(A)(C)(5); felonious assault, a second

degree felony, in violation of R.C. §2903.11; failure to comply, a third degree felony, in

violation of R.C. §2921.331; receiving stolen property, a fourth degree felony, in violation

of R.C. §2913.51; and failure to stop after an accident, a fourth degree felony, in violation

of R.C. §4549.02. (T. at 9).

{¶5} At the sentencing hearing on January 24, 2020, Appellant argued that Count

2, Felonious Assault; Count 3, Failure to Comply with Order or Signal of Police Officer,

and Count 5, Stopping After Accident on Public Roads or Highways, should merge with

each other, and that the amended Count 1, Assault on a Peace Officer, should merge

with Count 3, Failure to Comply with Order or Signal of Police Officer. (T. at 18).

{¶6} Appellee State of Ohio opposed the merger of these offenses, arguing that

the Failure to Comply was pled under R.C. §2921.331(C)(5)(a)(ii), for causing a threat of

serious physical harm to persons or property, not under subsection (C)(5)(a)(i), which

would be for causing direct injury to someone. (T. at 22). Additionally, Appellee argued

that a person can commit each of these offenses without committing the others, that

Appellant herein posed a risk of serious physical harm to numerous individuals over his

fifty (50) plus mile incident, that the failure to stop after an accident occurred only in

Licking County and would not merge with the others, and that the two (2) felonious assault

involved separate victims. (T. at 22-23). The trial court declined to merge the offenses,

and Appellant objected. (T. at 23-24, 32).

{¶7} During the sentencing hearing, Appellant expressed remorse for his

conduct. (T. at 24). His trial counsel noted that Appellant was suffering from mental health Licking County, Case No. 2021 CA 0009 4

and drug addiction issues because of injuries he sustained serving in Iraq while in the

armed forces. (T. at 20-21). Trial counsel noted that Appellant's life "changes

dramatically" after he came home from Iraq. (T. at 19). Trial counsel further mentioned

that Appellant was not acting with "malice aforethought," but was merely trying to get to

his mother's home. (T. at 19, 21). Thus, Appellant contended that his prison sentences

should be run concurrent. (T. at 32).

{¶8} The court ordered Appellant to serve consecutive prison sentences. The

court noted that Appellant completed a seven-month prison term, and that he has a

pending charge from an incident in Kalamazoo, Michigan. (T. at 29-20).

{¶9} Specifically, the court ordered Appellant to serve: one (1) year in prison for

the assault on a peace officer offense; two (2) years in prison for the failure to comply

offense; nine (9) months in prison for the receiving stolen property offense; and nine (9)

months in prison for the failure to stop after an accident offense. For the felonious assault

offense, the court ordered Appellant to serve five (5) to seven and one-half (7 ½) years in

prison, for an aggregate sentence of nine and a half (9 ½) to twelve (12) years in prison.

(T. at 30).

{¶10} Appellant appealed his conviction and sentence to this Court. See State v.

Wolfe, 5th Dist. Stark No. 2020 CA 00021, 2020-Ohio-5501. This Court reversed the case

for resentencing pursuant to the Reagan Tokes Act. This Court did not address the issues

of consecutive sentencing or the merger of offenses at that time. Id.

{¶11} On January 11, 2021, the trial court held a hearing for resentencing. At this

hearing, Appellant again raised the issue of merger of offenses and argued that his prison

terms should run concurrently. (Resent. T. at 5-6, 9). Appellee again opposed any merger Licking County, Case No. 2021 CA 0009 5

and asked that the sentence originally imposed on Appellant be re-imposed. (Resent. T.

at 9-11). The trial court again imposed a term of nine and a half (9 ½) years to twelve (12)

years in prison. Id. The trial court ordered the sentences on the counts to be served

consecutively.

{¶12} Appellant now appeals, raising the following assignments of error:

ASSIGNMENTS OF ERROR

{¶13} “I. THE TRIAL COURT ERRED BY FAILING TO MERGE WOLFE'S

OFFENSES FOR ALL BUT THE RECEIVING STOLEN PROPERTY COUNT.

{¶14} “II. THE TRIAL COURT UNLAWFULLY ORDERED WOLFE TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.”

I.

{¶15} In his First Assignment of Error, Appellant argues the trial court erred in

failing to merge his offenses. We disagree.

{¶16} Appellant herein asserts that all of the counts, with the exception of the

receiving stolen property count, should merge. He maintains that he committed all of the

offenses with the same animus and under a common scheme of activity. Upon review,

we find said argument to be unpersuasive.

{¶17} R.C. 2941.25, Ohio's allied-offense statute, provides:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or Licking County, Case No. 2021 CA 0009 6

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus to

each, the indictment or information may contain counts for all such offenses,

and the defendant may be convicted of all of them.

{¶18} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held the following:

1. In determining whether offenses are allied offenses of similar

import within the meaning of R.C. 2941.25, courts must evaluate three

separate factors -the conduct, the animus, and the import.

2. Two or more offenses of dissimilar import exist within the meaning

of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

involving separate victims or if the harm that results from each offense is

separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct supports

multiple offenses may be convicted of all the offenses if any one of the

following is true: (1) the conduct constitutes offenses of dissimilar import,

(2) the conduct shows that the offenses were committed separately, or (3)

the conduct shows that the offenses were committed with separate animus. Licking County, Case No. 2021 CA 0009 7

{¶19} The Ruff court explained at paragraph 26:

At its heart, the allied-offense analysis is dependent upon the facts

of a case because R.C. 2941.25 focuses on the defendant's conduct. The

evidence at trial or during a plea or sentencing hearing will reveal whether

the offenses have similar import. When a defendant's conduct victimizes

more than one person, the harm for each person is separate and distinct,

and therefore, the defendant can be convicted of multiple counts. Also, a

defendant's conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.

{¶20} In the instant case, Appellant was charged with Amended Count 1, Assault

on a Peace Officer, a felony of the 4th degree, which involved a separate, identifiable

victim – State Highway Patrolman Trautman, who was injured while diving out of the way

of Appellant’s moving vehicle while he was trying to place stop strips in the road.

{¶21} Appellant was also charged with Count 2, Felonious Assault, a felony of the

2nd degree, which had a separate identifiable victim in Michael Slagle, Jr., who was

driving the Jeep Comanche in Newark, which made physical contact with Appellant’s

vehicle. Licking County, Case No. 2021 CA 0009 8

{¶22} We likewise find that the Failure to Comply charge, under R.C.

§2921.331(B)(C)(5)(a)(ii), for causing a substantial risk of serious physical harm to

persons or property does not merge. This charge was brought as a felony for fleeing

which took place in and over eight (8) different counties. These actions presented a risk

of serious physical harm to numerous motorists, to both their person and their property.

This charge would not merge with either of the assault convictions, as there are separate,

identifiable victims for those charges, and those victims actually suffered physical harm.

{¶23} We also find a separate animus for the commission of the Failure to Stop

after Accident and the Failure to Comply, because Appellant made a separate decision

to flee after hitting the vehicle in Licking County, and then to continue on into another

county.

{¶24} Based on the foregoing analysis, we find Appellant’s first assignment of

error not well-taken and hereby overrule same.

II.

{¶25} In his second assignment of error, Appellant argues that the trial court erred

in imposing consecutive sentences. We disagree.

{¶26} Revised Code §2953.08(G)(2) sets forth the standard of review for all felony

sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶1.

Pursuant to R.C. §2953.08(G)(2), an appellate court may only “increase, reduce, or

otherwise modify a sentence * * * or may vacate the sentence and remand the matter to

the sentencing court for resentencing” if the court finds by clear and convincing evidence

“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the

sentence is otherwise contrary to law.” R.C. §2953.08(G)(2)(a)-(b). Licking County, Case No. 2021 CA 0009 9

{¶27} R.C. §2929.14(C)(4) provides:

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.

{¶28} “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 Licking County, Case No. 2021 CA 0009 10

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,

2014-Ohio-3177, syllabus. In other words, the sentencing court does not have to perform

“a word-for-word recitation of the language of the statute.” Id. at ¶29. Therefore, “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. If a sentencing court fails to make the findings required

by R.C. 2929.14(C)(4), a consecutive sentence imposed is contrary to law. Id. at ¶ 34.

The trial court is not 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.” Id. at ¶ 37.

{¶29} Here, Appellant concedes the trial court made the appropriate findings

pursuant to R.C. §2929.14(C)(4) both on the record and in its sentencing entry but argues

that the record does not support said findings. Specifically, Appellant argues that the

record fails to support a finding that he committed the most serious offense or is the most

serious offender because he did not commit the offenses with “malice aforethought”, he

accepted responsibility for his actions and was remorseful.

{¶30} Upon review, we find that at the original sentencing hearing, the trial court

found that Appellant had just finished a seven (7) month prison term and was on parole

for a home invasion as well as counts of breaking and entering. (Sent. T. at 29). The trial

court also noted that at that time Appellant had pending charges in Kalamazoo, Michigan,

for breaking and entering and larceny, for which Appellant had warrants for his arrest for

failure to appear, prior to this incident. (Sent. T. at 29-30). The trial court noted that

consecutive sentences were necessary to protect the public, were similar to sentences Licking County, Case No. 2021 CA 0009 11

imposed on others for similar conduct, and were justified by Appellant's criminal history.

(Sent. T. at 30).

{¶31} At the resentencing hearing, the court again found that the prison terms

should run consecutive, finding that “consecutive sentences are necessary to protect the

public from future crime, to punish [Appellant]. That consecutive sentences aren’t

disproportionate to the seriousness of [Appellant’s] conduct and the danger posed to the

public.” (Resent. T. at 12-13). The court also found that Appellant’s “history of criminal

conduct demonstrates consecutive sentences are necessary in this case to protect the

public from future crime. (Resent. T. at 13). Further, in its Judgment Entry on

resentencing, the trial court adopted all parts of the sentence imposed January 24, 2020.

(1/11/2021 Judgment Entry at 4). In said Entry, the trial court again stated that Appellant’s

“history of criminal conduct demonstrates that consecutive sentences are necessary to

protect the public from future crime by the offender.” (1/11/2021 Judgment Entry at 2-3).

{¶32} Upon our review of the record of the sentencing hearings and the judgment

entries, we find the trial court engaged in the appropriate analysis and made the requisite

findings. Therefore, we find the imposition of consecutive sentences in this case was not

contrary to law. Licking County, Case No. 2021 CA 0009 12

{¶33} Appellant’s second assignment of error is overruled.

{¶34} Based on the foregoing, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.

By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.

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