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State v. Oliver

December 2, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
WILLIE OLIVER, JR., DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 06CR516.

The opinion of the court was delivered by: Vukovich, J.

OPINION

JUDGMENT: Conviction Affirmed; Sentence Vacated; Cause Remanded.

JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite.

{¶1} Defendant-appellant Willie Oliver, Jr. appeals from his conviction in the Mahoning County Common Pleas Court of receiving stolen property, a violation of R.C. 2913.51(A)(4), a fourth degree felony, and failing 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. Multiple issues are raised in this appeal. The first issue is whether the trial court erred when it sentenced Oliver to consecutive sentences. The second issue is whether trial counsel was ineffective for failing to request a more specific bill of particulars. The third issue is whether the trial court abused its discretion when it allowed the deposition of state's witness, Alicia Adams, to be played in lieu of her live testimony. The fourth issue is whether the verdict was against the manifest weight of the evidence. The fifth issue is whether the trial court erred when it denied the Crim.R. 29 motion for acquittal. The sixth issue is whether the trial court's denial of the joinder, new trial, and recusal motions were in error. The seventh issue is whether Oliver's right to confrontation was violated. The last issue is whether the prosecutor committed prosecutorial misconduct when it did not turn over still pictures. For the reasons expressed below, the conviction is affirmed, however, the sentence is vacated and the cause is remanded to the trial court for resentencing with instructions to consider all relevant sentencing statutory factors, specifically R.C. 2921.331(C)(5)(b).

STATEMENT OF FACTS AND CASE

{¶2} 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.

{¶3} 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).

{¶4} 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).

{¶5} On May 9, 2006, Officer David Wilson of the Youngstown Police Department, who had taken the stolen car report from Townsend the previous day, attempted to initiate a stop with a maroon Pontiac Bonneville, license plate number DRU6603. The car did not stop and Officer Wilson pursued the vehicle through the north side of Youngstown. Eventually the car jumped a curb and stopped. The driver got out and ran, jumping fences in people's backyards. Officer Wilson stated the suspect was wearing sweat pants and a white shirt with purple stripes. He and backup were not able to catch the suspect at that point, but they thought they knew the house where he was hiding. Officer Wilson proceeded to write a report and inventory the vehicle. He then saw the suspect, wearing the same clothes, emerge from the fence line, he told the suspect to stop, but instead the suspect ran. The police cornered and apprehended the suspect. Identification on the suspect identified him as Oliver.

{¶6} As a result of the above, Oliver was charged with two counts of failing to comply with an order and one count of receiving stolen property. A jury convicted him of failing to comply with the order in Boardman and also receiving stolen property. However, it found him not guilty of the failing to comply with an order of a police officer for the incident that happened in Youngstown. Oliver was sentenced to 12 months on the receiving stolen property conviction and four years on the failing to comply with an order of a police officer conviction; the sentences were ordered to be served consecutively.

{¶7} Oliver timely appeals. Counsel for Oliver filed a brief containing five assignments of error. Oliver then requested that he be able to file his own brief. This court allowed him to do so and in it he raised four additional assignments of error.

FIRST ASSIGNMENT OF ERROR

{¶8} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT IMPOSED CONSECUTIVE SENTENCES UPON THE APPELLANT."

{¶9} This first assignment of error raises issue with the trial court's order of consecutive sentences. Oliver argues that the trial court did not make the appropriate findings and provide reasons supporting those findings in accordance with R.C. 2929.14(E)(4). He also asserts that the trial court failed to consider the factors enumerated in R.C. 2921.331(C)(5)(b)(1)-(ix) (the failure to comply statute).

{¶10} Recently, the Ohio Supreme Court attempted to resolve the conflict among the appellate districts as to what the standard of review is for reviewing felony sentences. State v. Kalish, Slip Opinion No. 2008-Ohio-4912. However, in that decision,the Supreme Court rendered a plurality opinion (Justices O'Connor, Moyer and O'Donnell), a concurring in judgment only opinion (Judge Willamowski, of the Third District sitting by assignment), and a dissenting opinion (Justices Lanzinger, Pfeifer and Stratton).

{¶11} The plurality concluded that in reviewing felony sentences, the appellate courts must apply a two-step approach. Id. at ¶26 (O'Connor, J., plurality opinion). The first step requires appellate courts 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." Id. (O'Connor, J., plurality opinion). In examining "all applicable rules and statutes," the sentencing court must consider R.C. 2929.11 and R.C. 2929.12. Id. at ¶13-14 (O'Connor, J., plurality opinion). If the sentence is clearly and convincingly not contrary to law, the sentencing court's exercise of discretion "in selecting a sentence within the permissible statutory range is subject to review for any abuse of discretion." Id. at ¶17 (O'Connor, J., plurality opinion). Thus, an abuse of discretion is used to determine whether the sentence satisfies R.C. 2929.11 and R.C. 2929.12. Id. at ¶17 (O'Connor, J., plurality opinion).

{¶12} The concurring in judgment only opinion did not entirely agree with the plurality's "overly broad" two-step approach to reviewing felony sentences. Id. at ¶42 (Willamowski, J., concurring in judgment only). It agreed with the plurality that the sentence should be reviewed under the clearly and convincingly contrary to law standard to determine if the sentencing court complied with all applicable rules and statutes, which would include R.C. 2929.11 and R.C. 2929.12. Id. at ¶42 (Willamowski, J., concurring in judgment only). However, according to it, the clearly and convincingly contrary to law standard is only applicable to R.C. 2929.12 in determining whether the sentencing court "bothered to consider the factors" in R.C. 2929.12(B)-(D). Id. (Willamowski, J., concurring in judgment only). If the sentencing court did consider those factors, then an appellate court would review the application of those factors under an abuse of discretion standard of review. Id. (Willamowski, J., concurring in judgment only). This differs from the plurality opinion in that instead of requiring the entire sentence to be reviewed for an abuse of discretion, only the application of R.C. 2929.12(B)-(D) is reviewed under the abuse of discretion standard.

{¶13} The dissent concluded that post-Foster the standard of felony sentencing review remains unchanged and that only a clearly and convincingly contrary to law standard of review is employed. Id. at ¶43 (Lanzinger, J., dissenting).

{¶14} Considering the above holdings and reasons, in Kalish, what we glean from that opinion is that appellate courts should review felony sentences under both the clearly and convincingly contrary to law standard and the abuse of discretion standard of review. As such, that is the standard we will now use.

{¶15} Oliver's first argument alleging that the trial court, in imposing consecutive sentences, failed to make findings and reasons supporting those findings pursuant to R.C. 2929.14(E)(4). As this court has continually explained, the Ohio Supreme Court in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶83 found this portion of R.C. 2929.14 to be unconstitutional. Id. at ¶15; State v. Hawkins, 7th Dist. No. 07JE14, 2008-Ohio-1529, ¶12; State v. Christian, 7th Dist. No. 07JE9, 2007-Ohio-7205, ¶35. Thus, trial courts are no longer required to make findings and provide reasons in accordance with that section. Consequently, Oliver's argument fails.

{¶16} His second argument concerns R.C. 2921.331(C)(5)(b)(i)-(ix) and the trial court's alleged failure to look at the factors in that section before sentencing him to consecutive terms. He contends that the trial court could not sentence him to consecutive sentences without examining the (C)(5)(b) factors. His contention is not entirely correct.

{¶17} R.C. 2921.331(D) unequivocally states that his sentence for failing to comply with an order of a police officer, violation of R.C. 2921.331(C)(5)(a)(ii), was required to be ordered consecutive to any other prison term imposed upon him. The factors in R.C. 2921.331(C)(5)(b) do not affect that mandate. Instead, they are used to determine the "seriousness" of an offender's conduct along with the factors set forth in R.C. 2929.12 and 2929.13. R.C. 2921.331(C)(5)(b). In this instance where consecutive sentences are mandatory, the seriousness factors are used to determine whether the offender receives the minimum sentence, maximum sentence or some sentence in between for the failure to comply offense. Thus, his insinuation that those factors are somehow necessary for a finding of consecutive sentences is incorrect.

{¶18} That said, the record in this case does not show that the trial court considered the R.C. 2921.331(C)(5)(b) factors before imposing the sentence. R.C. 2921.331(C)(5)(b) lists nine factors to be used to consider the seriousness of an offender's conduct. They are:

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

{¶20} "(ii) The distance of the pursuit;

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

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

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

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

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

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

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

{¶28} These 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. State v. Jones, 8th Dist. No. 89499, 2008-Ohio-802, ¶18; State v. Anderson, 8th Dist. No. 83285, 2004-Ohio-2858, ¶22 (holding "[t]he court is not required by statute or otherwise to state its consideration of statutory factors on the record nor to make any specific finding in relation thereto"); State v. Sheets, 4th Dist. No. 02CA15, 2002-Ohio-6423, ¶26-27.

{¶29} In Jones, the trial court never expressly listed the factors by name. However, at the sentencing hearing, it did consider that Jones was driving 70 mph in a residential area, he ran several stoplights, and the police were driving approximately 90 mph in an active school zone while pursuing him. Consequently, the appellate court determined that this was sufficient to show that the trial court considered the seriousness factors in R.C. 2921.331(C)(5)(b). Jones, 8th Dist. No. 89499, 2008-Ohio-802, ¶17.

{¶30} In Anderson, Anderson entered a no contest plea, the state presented facts, the trial court found him guilty and then sentenced him. On appeal, Anderson argued that the trial court failed to reference the factors in R.C. 2921.331(C)(5)(b). The appellate court indicated that since the trial court found Anderson guilty of the charges based upon the facts presented by the state, it necessarily considered the factors that fell within section (C)(5)(b)(i)--(ix). Thus, it affirmed the sentence because it held those facts indicated that the trial court considered the factors. Anderson, 8th Dist. No. 83285, 2004-Ohio-2858, ¶21-22.

{¶31} In Sheets, at sentencing, Sheets argued the traditional sentencing factors but also argued the seriousness factor in R.C. 2921.331(C)(5)(b). The trial court in its entry stated that it had considered "R.C. 2929.331" seriousness factors as pointed out by Sheets. The appellate court held that while that was an incorrect recitation of the statute number, from the trial court's entry and the record, it was clear that the trial court was referencing the seriousness factors in R.C. 2921.331. Sheets, 4th Dist. No. 02CA15, 2002-Ohio-6423, ¶26-27.

{¶32} Our case is similar to the above cases in that here, like above, the trial court does not expressly state that it considered the factors in R.C. 2921.331(C)(5)(b). However, our case is also distinguishable. The trial court does state that it considered R.C. 2929.11 and R.C. 2929.12, however, it makes no mention of R.C. 2921.331 and its factors. Furthermore, there are no facts discussed at the sentencing hearing. Thus, without any facts and a clear indication that it considered the factors espoused in R.C. 2921.331(C)(5)(b), the trial court erred when it sentenced Oliver.

{¶33} The state contends that Oliver waived the above by not objecting to the sentence and the failure to consider the factors in R.C. 2921.331(C)(5)(b) prior to sentencing. It is true that he did not object. However, he would not have been aware that the trial court did not consider the factors until after the sentence was rendered. Thus, it does not appear that he waived this argument.

{¶34} Therefore, since the record does not indicate that the trial court considered all relevant statutory sections, the sentence is clearly and convincingly contrary to law. This assignment of error has merit.

SECOND ASSIGNMENT OF ERROR

{¶35} "THE STATE'S BILL OF PARTICULARS WAS INADEQUATE. THE DEFENSE COUNSEL WAS INEFFECTIVE NOT TO REQUEST A MORE SPECIFIC ONE."

{ΒΆ36} Oliver's second assignment of error concerns the bill of particulars. During discovery, Oliver's counsel requested a bill of particulars. The state begrudgingly complied with the request. However, in doing so, it noted that in Mahoning County there is open file discovery and a county that has open file ...


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