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State v. Harper

Court of Appeals of Ohio, First District, Hamilton

December 13, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
JARRARD HARPER, Defandant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NOS. B-1505049 B-1600603 B-1604506

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Brian T. Goldberg, for Defendant-Appellant.

          OPINION

          Cunningham, Judge.

         {¶1} In these consolidated appeals, defendant-appellant Jarrard Harper appeals the sentences entered in three separate cases, but imposed at one sentencing hearing. The trial court imposed three two-year prison terms resulting from two separate high-speed chases where Harper had fled from police and imposed a single two-year prison term for the related violation of a community-control sanction. The trial court ordered the prison terms to be served consecutively. Because the trial court entered a prison term outside the statutory range available for Harper's violation of the prior community-control sanction, the two-year sentence imposed for attempted tampering with evidence in the case numbered B-1505049 must be vacated. But because the trial court was required, by operation of law, to impose the prison terms for Harper's failure-to-comply offenses consecutively to the other prison terms imposed, it was not required to make consecutive-sentencing findings before doing so.

         {¶2} Harper's sentences resulted from three separate incidents. First, in early 2016, Harper entered pleas of guilty to trafficking in heroin, punishable as a third-degree felony, and attempted tampering with evidence, punishable as a fourth-degree felony, in the case numbered B-1505049. The trial court accepted his pleas, found him guilty of the charges, and imposed three-year terms of community control as the sentence for each offense.

         {¶3} Two weeks later, in the second incident, Harper took a vehicle from a Ford dealer's car lot. Police pursued Harper in the stolen vehicle at speeds in excess of 110 miles per hour. Harper ultimately abandoned the vehicle and successfully fled on foot.

         {¶4} In the third incident, in August 2016, Cincinnati police officers executing a search warrant in a heroin-trafficking investigation spotted Harper arriving at the scene of the search in a friend's vehicle. The officers attempted to take Harper into custody. Harper forcefully dragged the driver from her vehicle, commandeered the vehicle, and again fled from the police at high speed. He was ultimately apprehended.

         {¶5} As a result of the two high-speed chases, the Hamilton County Grand Jury returned two new multicount indictments against Harper. For his actions in the first chase from the car dealership, Harper was charged in count two of the case numbered B-1600603 with failure to comply with an order or signal of a police officer while fleeing from the officer in violation of R.C. 2921.331(B), a felony of the third degree. The indictment further provided that Harper's operation of the vehicle had caused a substantial risk of serious physical harm to persons or property.

         {¶6} For his second flight from police, Harper was charged in count four of the case numbered B-1604506 with having a weapon under a disability, and in count five with failure to comply with an order or signal of a police officer while fleeing from the officer, in violation of R.C. 2921.331(B). This count also alleged that, in committing the offense, Harper's operation of the vehicle had caused a substantial risk of serious physical harm to persons or property. Both offenses were punishable as third-degree felony offenses.

         {¶7} On January 11, 2017, Harper entered pleas of guilty to the two then-pending cases, and the state dismissed four other felony charges raised in the two indictments. Harper also entered a no-contest plea to violating the community-control sanctions imposed in early January 2016.

         {¶8} At a sentencing hearing, the trial court revoked the community-control sanctions and imposed a two-year prison term for each offense, including the fourth-degree-felony attempted-tampering offense. The court ordered the two terms to be served concurrently to each other, but consecutively to the sentences imposed for the new offenses. For the January high-speed chase, the trial court imposed a two-year prison term for violating R.C. 2921.331(B), and ordered this term to be served consecutively to each prison term imposed in the other two cases. For the August incident, the trial court imposed two-year prison terms for having a weapon under a disability and for violating R.C. 2921.331(B). These terms were to be served consecutively to each other and consecutively to the other prison terms imposed against Harper. The aggregate prison term was eight years.

         {¶9} At the hearing, the trial court detailed Harper's criminal history, including his heroin trafficking and flights from police, took note that he had committed these serious offenses while on community control, and concluded that Harper lacked remorse or an appreciation of the seriousness of his offenses. It did not refer to the findings necessary under R.C. 2929.14(C)(4) to impose consecutive sentences. It did, however, include those findings in its sentencing entries. Harper appealed from each of the three entries, claiming that the sentences imposed were contrary to law. See R.C. 2953.08(A)(4).

         {¶10} In his first assignment of error, Harper challenges the two-year prison term imposed for Harper's violation of community control for the attempted-tampering-with-evidence offense. He argues that the trial court erred by imposing a sentence outside the statutory range for that offense. The attempted-tampering offense was punishable as a fourth-degree felony. See R.C. 2923.02(E). ...


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