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State v. Robinson

Court of Appeals of Ohio, Fourth District, Meigs

May 8, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ANDREW ROBINSON, Defendant-Appellant.

          CRIMINAL APPEAL FROM COMMON PLEAS COURT

          Brian A. Smith, Akron, Ohio, for appellant [1].

          James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for appellee.

          DECISION & JUDGMENT ENTRY

          PETER B. ABELE, JUDGE

         {¶ 1} This is an appeal from a Meigs County Common Pleas Court judgment of conviction and sentence. The jury found Andrew Robinson, defendant below and appellant herein, guilty of (1) vandalism in violation of R.C. 2909.05(B)(1)(b), a fifth-degree felony, and (2) failure to appear in violation of R.C. 2937.99, a fourth-degree felony. The trial court sentenced appellant to serve 30 months in prison.

         {¶ 2} Appellant assigns four errors for review:

FIRST ASSIGNMENT OF ERROR:
"WHETHER THE TRIAL COURT'S DECISION TO PROCEED TO JURY TRIAL ONE DAY AFTER APPELLANT'S ARRAIGNMENT ON THE CHARGE OF VANDALISM IN CASE NUMBER 17-CR-166, WHERE APPELLANT'S COUNSEL INDICATED THAT SHE WAS NOT PREPARED FOR TRIAL AND WAS NOT AWARE OF WHEN APPELLANT WAS GOING TO BE RE-INDICTED, WAS AN ABUSE OF DISCRETION."
SECOND ASSIGNMENT OF ERROR:
"WHETHER THE TRIAL COURT ERRED IN ENTERING A JUDGMENT OF CONVICTION AND SENTENCING AGAINST APPELLANT FOR, WITH RESPECT TO THE CHARGE OF VANDALISM, ON A FIFTH-DEGREE FELONY, AND, WITH RESPECT TO THE CHARGE OF FAILURE TO APPEAR, ON A FOURTH-DEGREE FELONY, WHERE THE RECORD SHOWS THAT THE VERDICT FORMS SUPPLIED BY THE TRIAL COURT AND USED BY THE JURY DID NOT COMPLY WITH R.C. 2945.75(A)(2), IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS."
THIRD ASSIGNMENT OF ERROR:
"WHETHER THE TRIAL COURT'S SENTENCE OF APPELLANT TO THE MAXIMUM SENTENCE ON BOTH CHARGES, WITH THE SENTENCES TO RUN CONSECUTIVELY TO ONE ANOTHER, WAS CONTRARY TO LAW, WHERE THE TRIAL COURT DID NOT MAKE THE REQUIRED FINDINGS UNDER R.C. 2929.14(C)(4) "
FOURTH ASSIGNMENT OF ERROR:
"WHETHER THE TRIAL COURT'S SENTENCE OF APPELLANT TO THE MAXIMUM SENTENCE ON BOTH CHARGES, WITH THE SENTENCES TO RUN CONSECUTIVELY TO ONE ANOTHER, WAS CONTRARY TO LAW, WHERE THE RECORD SHOWED ONLY ONE PREVIOUS FELONY CONVICTION AND WHERE NONE OF THE SERIOUSNESS FACTORS FOR FELONY SENTENCING UNDER R.C. 2929.12 WERE PRESENT."

         {¶ 3} On March 16, 2017, a Meigs County Grand Jury returned an indictment that charged appellant with one count of vandalism in violation of R.C. 2909.05(B)(2) (Case No. 17-CR-031). The charge arose from a February 27, 2017 incident at the Middleport Jail in which appellant allegedly broke the jail holding cell's lock mechanism. The trial court conducted appellant's arraignment on June 29, 2017 and scheduled an initial pre-trial hearing on July 19, 2017, a final pre-trial hearing on August 10, 2017, and a jury trial on September 14, 2017. At the arraignment, the trial court also released appellant on a recognizance bond. When appellant failed to appear for both the initial and final pre-trial hearings, the court issued an arrest warrant and vacated the jury trial date. After appellant's August 12, 2017, arrest, he appeared in court on August 15, 2017, and the court scheduled a final pre-trial on August 30, 2017 and a jury trial on September 14, 2017.

         {¶ 4} On September 22, 2017, the trial court re-scheduled the final pre-trial hearing to be held on October 11, 2017 and a jury trial on October 19, 2017. On October 11, 2017, the court issued an entry to indicate that the parties were in the process of negotiating a settlement and that the trial date remained the same. On October 19, 2017, the court continued the jury trial to November 16, 2017. On October 23, 2017, the state filed a nolle prosequi and indicated that the matter would be presented to "the November Grand Jury under a new subsection of Section 2909.05 of the Ohio Revised Code."

         {¶ 5} On September 7, 2017, a Meigs County Grand Jury returned an indictment that charged appellant with one count of failure to appear in violation of R.C. 2937.99, a fourth-degree felony, (Case No. 17-CR-133). The indictment alleged that appellant failed to appear for the final pre-trial hearing in Case No. 17CR031, as required after his August 10, 2017 release. The trial court conducted appellant's arraignment on September 22, 2017, and, on October 11, 2017, issued an entry to indicate that the parties continued to negotiate and that the trial date remained the same. On October 19, 2017, the court continued the jury trial to November 15, 2017.

         {¶ 6} On November 6, 2017, the state re-indicted appellant on the vandalism charge in violation of R.C. 2909.05(B)(1)(b) (Case No. 17-CR-166). The indictment alleged that appellant knowingly caused physical harm to property owned or possessed by another, regardless of the property's value or the amount of damage, and the property was necessary for the owner or possessor to engage in the owner's or possessor's profession, business trade, or occupation. The second vandalism indictment stemmed from the same act as the first vandalism indictment.

         {¶ 7} Subsequently, the trial court scheduled appellant's arraignment on the new vandalism charge on November 27, 2017, an initial pre-trial hearing on December 13, 2017, a final pre-trial hearing on January 17, 2018 and a jury trial on February 1, 2018. However, the court rescheduled the arraignment and ordered that appellant's arraignment be held on November 15, 2017. Additionally, during appellant's November 15, 2017 arraignment, the court advised the parties that the case must proceed to jury trial the following day, November 16, 2017.

         {¶ 8} At trial, Court Bailiff John Jagers testified that (1) he is familiar with the vandalism charge (Case No. 17CR31); (2) he was present at appellant's June 29, 2017 arraignment on the initial vandalism charge and appellant's release on his own recognizance; (3) appellant received a copy of the arraignment entry, (4) the entry provided that, as a condition of appellant's recognizance, he must appear and answer a charge of vandalism; and (5) he gave appellant a card that included notice of the next date that appellant had to appear in court (for the July 19, 2017 initial pre-trial). Jagers further testified that appellant failed to appear at both his July 19, 2017 first pre-trial and his August 10, 2017 final pre-trial.

         {¶ 9} Middleport Police Patrolman Michael Oliver testified that, on February 27, 2017, the police dispatcher contacted him and asked for assistance with an unruly inmate. Oliver stated that appellant, while in the holding cell, told Oliver that he was not provided the opportunity to make a telephone call. Oliver, however, checked the phone logs and concluded that appellant did, in fact, make a phone call during his booking process at the jail and Oliver relayed this information to appellant. Upon hearing this information, appellant became upset, threw food from his tray, struck the toilet with the tray, attempted to strike the video camera with the tray, and, when unsuccessful, slid the tray under the door and kicked the cell door. Oliver then observed appellant kick the door and dislodge the door handle and lock mechanism. At that time, Oliver called a supervisor and they removed appellant from the holding cell. Oliver also testified that, because the lock mechanism had to be replaced, the holding cell could not be used for approximately two weeks. During the trial, the defense cross-examined the state's witnesses, but did not introduce evidence or call witnesses.

         {¶ 10} At the conclusion of the trial, the jury returned guilty verdicts on both counts. The trial court sentenced appellant to serve 12 months in prison on the vandalism offense, 18 months on the failure to appear offense, and ordered the sentences be served consecutively for a total of 30 months in prison. Appellant filed a motion ...


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