Court of Appeals of Ohio, Seventh District, Belmont
Criminal Appeal from the Court of Common Pleas of Belmont
County, Ohio Case No. 18 CR 31
Dan Fry, Belmont County Prosecuting Attorney, for
Plaintiff-Appellee, No Brief Filed.
Brian A. Smith, Brian A. Smith Law Firm, LLC, for
BEFORE: Cheryl L. Waite, Carol Ann Robb, David A.
OPINION AND JUDGMENT ENTRY
Appellant Joshua Ryan Smerczynski appeals the April 9, 2018,
Belmont County Common Pleas Court judgment entry sentencing
him to a prison term of 18 months for attempted tampering
with evidence, to be served consecutively to a term he was
serving on another conviction. Appellant appeals both the
imposition of consecutive sentences and the maximum sentence
he received for the instant offense. The record, including
Appellant's criminal history, supports the imposition of
the maximum sentence for the instant conviction.
Appellant's second assignment of error is without merit
and is overruled. However, based on the following, the trial
court did not demonstrate that it adequately considered the
necessary factors before imposing consecutive sentences.
Appellant's first assignment of error has merit and is
sustained. Accordingly, while the trial court's
imposition of the maximum sentence for the instant conviction
is affirmed, the court's sentencing entry is vacated in
part and the matter remanded for the limited purpose of
properly considering the statutory consecutive sentencing
and Procedural History
The underlying facts in the record are limited. Appellant was
incarcerated on previous drug related charges. While
incarcerated, on February 8, 2018, Appellant was indicted on
one count of tampering with evidence, in violation of R.C.
2921.12(A)(2), a felony of the third degree. The indictment
[Appellant] knowing that an official proceeding or
investigation was in progress, or was about to be or likely
to be instituted, did make, present, or use any record,
document, or thing, to-wit: a whizzinator; knowing it to be
false and with purpose to mislead a public official who is or
may be engaged in such proceeding or investigation, or with
purpose to corrupt the outcome of any such proceeding or
Apparently, a "whizzinator" is a male urine
simulation device and Appellant attempted to use this device
when he was required to provide a urine sample for testing.
In any event, plea negotiations commenced in the matter.
Pursuant to an agreement with the state, Appellant pleaded
guilty to an amended charge of attempted tampering with
evidence, in violation R.C. 2921.12(A)(2) and R.C. 2923.02, a
felony of the fourth degree.
A sentencing hearing was held on April 9, 2018. The trial
court sentenced Appellant to 18 months in prison to be served
consecutively to the term Appellant was already serving, with
64 days of jail-time credit. Appellant filed this timely
appeal. For clarity, the assignments of error will be
addressed out of order.
OF ERROR NO. 2
RECORD DOES NOT SUPPORT THE TRIAL COURT'S SENTENCE OF
In his second assignment of error Appellant contends the
record does not support imposition of the maximum sentence of
18 months for his conviction on attempted tampering with
Pursuant to the Ohio Supreme Court's holding in State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1, "an appellate court may vacate or modify
a felony sentence on appeal only if it determines by clear
and convincing evidence that the record does not support the
trial court's findings under relevant statutes or that
the sentence is otherwise contrary to law." Id.
On March 26, 2018, Appellant and the state entered into a
plea agreement. In exchange for his guilty plea to attempted
tampering with evidence, the state agreed to stand silent ...