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State v. Smerczynski

Court of Appeals of Ohio, Seventh District, Belmont

June 24, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSHUA RYAN SMERCZYNSKI, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 18 CR 31

          Atty. Dan Fry, Belmont County Prosecuting Attorney, for Plaintiff-Appellee, No Brief Filed.

          Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, for Defendant-Appellant.

          BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, P.J.

         {¶1} 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 requirements.

         Factual and Procedural History

         {¶2} 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 read:

[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 investigation.

(2/8/18 Indictment.)

         {¶3} 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.

         {¶4} 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.

         ASSIGNMENT OF ERROR NO. 2

         THE RECORD DOES NOT SUPPORT THE TRIAL COURT'S SENTENCE OF APPELLANT.

         {¶5} 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 evidence.

         {¶6} 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.

         {¶7} 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 ...


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