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State v. Sandercock

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 25, 2018

STATE OF OHIO, Plaintiff-Appellee,
DALE THOMAS SANDERCOCK, Defendant-Appellant.

          Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR 00656. Judgment: Reversed and vacated.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

          Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).



         {¶1} Appellant, Dale Thomas Sandercock, appeals from the judgment of the Ashtabula County Court of Common Pleas, after a trial by jury, convicting him of one count of failure to appear, in violation of R.C. 2937.99(A), (B), a felony of the fourth degree. We reverse and vacate appellant's conviction.

         {¶2} The following testimony was adduced at trial: Mr. Sandercock was originally charged, in case number 2016 CR 426, with one count of felonious assault, a felony of the second degree. Counsel stipulated appellant was released on a personal recognizance bond, and the case involved a felony charge. Attorney Joseph Humpolick, an assistant public defender who retired shortly before the underlying trial, was Mr. Sandercock's attorney of record in the 2016 case. Attorney Humpolick testified he met with Mr. Sandercock at his office in Ashtabula on August 24, 2016. He further testified he provided Mr. Sandercock with a document, which he signed, outlining future hearing dates, including an October 14, 2016 pretrial conference. Attorney Humpolick also provided Mr. Sandercock with other documents relating to discovery in the matter.

         {¶3} On October 13, 2016, a pretrial was held and Mr. Sandercock did not attend the hearing. Attorney Humpolick subsequently sent Mr. Sandercock a letter to notify him that he missed the hearing and advised his client to turn himself in to authorities. As a result of appellant's absence at the October hearing, he was indicted on one count of failure to appear.

         {¶4} The state rested following Attorney Humpolick's testimony and Defense counsel moved for acquittal, pursuant to Crim.R. 29. Defense counsel argued the state failed to identify Mr. Sandercock during its case-in-chief; counsel maintained there was no evidence presented to actually tie the Dale Sandercock on trial to the crime charged. Counsel further argued the state failed to present sufficient evidence that Mr. Sandercock acted recklessly in failing to appear. The trial court overruled the motion without a rationale.

         {¶5} The defense's evidence included testimony of Rebecca Sandercock, Mr. Sandercock's daughter-in-law, who testified she and her husband live in Northfield, in Summit County, Ohio. She stated Mr. Sandercock moved into their home in August 2016. Rebecca drove Mr. Sandercock to his August 24, 2016 appointment with Attorney Humpolick and he returned with a packet of papers after the meeting. Rebecca testified Mr. Sandercock conveyed what he and Attorney Humpolick discussed, including future court dates. According to Rebecca, Mr. Sandercock indicated the first hearing might be rescheduled and his attorney would contact him if the date did not change. She testified Mr. Sandercock noted a November 21 hearing and a December 20 hearing on his calendar and represented the case was important to him.

         {¶6} On October 31, 2017, Rebecca retrieved the mail and gave Mr. Sandercock a letter from Attorney Humpolick that stated he had missed a court date and a warrant had been issued for his arrest. Mr. Sandercock's son, Rick Sandercock, testified he drove his father to the jail early the next morning. Mr. Sandercock turned himself in and Sergeant Donald Dietrich, the Assistant Jail Administrator at the Ashtabula County Sheriffs Department, testified Attorney Humpolick's letter was part of Mr. Sandercock's property when he arrived.

         {¶7} Mr. Sandercock testified he has serious lung and heart conditions and he is on a variety of medications. In August 2016, he had recently moved in with his son and daughter-in-law and noted he had not unpacked most of his belongings. He acknowledged meeting with Attorney Humpolick in August 2016 for "quite some time" and received a "stack of papers in an envelope." He further recognized the gravity of failing to attend any of the scheduled hearings. And, he testified, his absence from the October hearing was not due to heedless indifference, but that he was simply "sloppy about keeping track." Upon receiving Attorney Humpolick's letter in late October, he testified he called the attorney's office and they advised him to "turn yourself in," which he did.

         {¶8} Upon conclusion of its deliberations, the jury found Mr. Sandercock guilty of the offense. Counsel filed a written motion for a pre-sentence investigation report, which the court denied. Mr. Sandercock was subsequently sentenced to a 12-month term of imprisonment. He now appeals and assigns three errors for this court's review. His first assignment of error provides:

         {¶9} "The trial court erred to the prejudice of the defendant by failing to grant his Rule 29 motion for acquittal; furthermore, the jury's verdict was against the manifest weight of the evidence."

         {¶10} We shall begin by addressing appellant's challenge to the sufficiency of the evidence upon which his conviction was premised. A "sufficiency" argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ΒΆ25. "[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of ...

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