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Help support the publication of case reports on MoreLawDate: 07-10-2019 Case Style: STATE OF OHIO vs. WILLIAM DAVID BLAIRCase Number: 18CA24 Judge: Peter B. Abele Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY Plaintiff's Attorney: Craig M. Jaquith, Office of the Ohio Public Defender Defendant's Attorney: Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney Description:   This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. A jury found William David Blair, defendant below and appellant herein, guilty of (1) aggravated murder in violation of R.C. 2903.01(B), and (2) burglary in violation of R.C. 2911.12(A)(1). {¶ 2} Appellant raises three assignments of error for review: FIRST ASSIGNMENT OF ERROR: 1Different counsel represented appellant during the trial court proceedings. ATHENS 18CA24 2 “THE TRIAL COURT ERRED WHEN IT SENTENCED WILLIAM BLAIR TO LIFE WITHOUT THE POSSIBILITY OF PAROLE DESPITE THE FACT THAT THE RECORD CLEARLY AND CONVINCINGLY DID NOT SUPPORT SUCH A PUNITIVE SENTENCE, AND R.C. 2953.08(D)(3) IS UNCONSTITUTIONAL TO THE EXTENT THAT IT PROHIBITS APPELLATE REVIEW OF MR. BLAIR’S SENTENCE. (AUG. 2, 2018, SENT. TR., P. 10; AUG. 2, 2018, JUDGMENT ENTRY.)” SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES. (AUG. 2, 2018, SENT. TR., PP. 11-12; AUG. 2, 2018, JUDGMENT ENTRY.)” THIRD ASSIGNMENT OF ERROR: “MR. BLAIR RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN TRIAL COUNSEL FAILED TO MOVE TO WAIVE COURT COSTS AT SENTENCING. (AUG. 2, 2018, SENT. TR., PP. 8-9; AUG. 2, 2018, JUDGMENT ENTRY,)” {¶ 3} Mary Robinson was a seventy-one year old woman who had conquered substance abuse issues and had been sober for thirty-six years. Mary’s daughter, Tammie Blair, lived two blocks from Mary. On June 17, 2017, Mary’s friends became concerned when Mary missed an AA meeting that she was expected to lead. Later, Mary’s car was found at Tammie’s home, and Mary found dead inside the home. {¶ 4} In June 2017, an Athens County Grand Jury returned an indictment that charged appellant with one count of aggravated murder (R.C. 2903.01(B)), an unspecified felony, and one count of burglary (R.C. 2911.12(A)(1)), a second-degree felony. Appellant pled not guilty and, after the court resolved several motions in limine, a six-day jury trial began on July 23, 2018. {¶ 5} At trial, George Blair, the victim’s son-in-law and appellant’s brother, testified that ATHENS 18CA24 3 appellant lived with George and his wife Tammie for approximately two and-a-half years when they lived in Athens and before they moved to Chauncey. George stated that Tammie helped appellant to obtain Social Security disability and back pay, and helped him to purchase a truck after they rescued appellant from living under a bridge. George also testified that he and Tammie had planned to visit Tammie’s father in California and that originally, Mary planned to travel with them, but Mary decided to stay home, in part, to help care for the couple’s three cats. {¶ 6} George testified that appellant came to their Chauncey home a few days before he and Tammie left for California and sold George a bag of marijuana. On June 16, 2017, while George and Tammie were in California, appellant called George and asked if they were home. George told appellant that he and Tammie were in California. George testified that the following day, while he was in California, he received a sheriffs deputy’s call stating that they found Mary dead in the couple’s home and that the home appeared to have been burglarized. George stated that he and the deputy Facetimed to attempt to determine what objects may be missing. During that time, George noticed missing computers, TV, Blu-ray player, Roku box, as well as jewelry and approximately $800 in cash. When they returned home, they also noticed other objects were missing including a little box of marijuana they had purchased from appellant before their trip, two or three large bottles of vodka, a can of moonshine, and a vacuum cleaner. {¶ 7} George testified that his brother, Ernie Blair, visited their home after George and Tammie returned from California and asked George if he thought appellant had anything to do with the murder and burglary. When George asked Ernie why he might think that, Ernie told him that appellant tried to sell him a TV. Ernie testified that he had a conversation with appellant before the murder and appellant told him that George owed him money and appellant told Ernie to go to ATHENS 18CA24 4 George’s house and get the “weed.” {¶ 8} Tammie Blair, the victim’s daughter, testified that she and her husband arranged for her mother, Mary, and other friends to check their house while they were in California. Tammie stated that when they returned from their vacation, she noticed pry marks on the doorframe, a stain on the wall under the thermostat, a TV remote from the upstairs bedroom on the floor at the top of the stairs, and TVs, computers and other missing items. {¶ 9} Amy Salzman testified that Mary Robinson was her AA sponsor and they saw each other three or four times per week. Salzman stated that she met Mary for lunch on Friday, June 16, 2017 around noon, and that Mary had mentioned that she was going to chair the AA meeting in the morning on the following day. Salzman testified that when Mary did not attend the meeting, she knew something was wrong. Salzman then visited Mary’s apartment in Chauncey, but it was dark and her car gone, so Salzman called 9-1-1 and asked for a well-check. {¶ 10} Athens County Sheriff’s Deputy Michael Burba testified that he was dispatched to perform a well-check, and when he did not find Mary at home, he drove around the area and found her car parked in the Blairs’ driveway. Burba also noticed a brown sandal on the porch and a shut storm door, but an open inside door. After Burba knocked and announced himself several times, he cupped his hands to see through the window and noticed a body on the floor. When Burba did not get a response, he entered the home and found Mary Robinson’s body on the floor. {¶ 11} Deputy Burba also noticed the victim’s purse near her head, with her glasses and false teeth on the floor beside her, along with a piece of candy. The coroner noticed that the victim had keys in her hand, was wearing a brown sandal that matched the sandal on the porch, and the purse ATHENS 18CA24 5 strap was wrapped around her neck. At this point, the investigation changed to a homicide. Burba further testified that the upstairs looked like it had been ransacked, with a room with a TV receiver but no TV, a chest with a broken model ship on top, cables with no TV, a remote control at the top of the steps, and items pulled from closets. Burba then contacted Tammie Blair, the victim’s daughter. {¶ 12} Athens County Coroner’s Office Death Investigator Ben Ashcraft testified that after he arrived at the scene he noticed the upstairs in disarray and that items appeared to be missing, as evidenced by areas with no dust. The victim, positioned on the living room floor between a coffee table and the couch, had her purse strap around her neck with a ligature mark that indicated force had been used. {¶ 13} Vicky Fluharty testified that she was best friends with Tammie and George Blair and knew the victim well. Fluharty had agreed to help to check the Blair home during their vacation. Fluharty was at the home on Friday, June 15 around noon, for fifteen to twenty minutes to check on the cats and the house looked normal with things “always in their place.” Fluharty said that on Sunday she received a call that asked if she had seen the victim. When she did not find the victim at her own home, Fluharty went to the Blair home, saw the victim’s car in the driveway and noticed police and emergency equipment. After Fluharty identified herself, officers asked her to look to see if anything was missing. Fluharty saw the victim on the floor, and blood on the front door and on the wall behind the pantry door. She also noticed that the upstairs had been ransacked. {¶ 14} Devon Cogar testified that her brother, David Cogar, is appellant’s friend and he allowed appellant to stay with him at his house-trailer “off and on.” Devon was at David’s house-trailer on June 17, 2017 smoking marijuana and watching a movie with appellant and David. Devon stated that appellant drunk Jack Daniels straight from a large bottle. Devon explained that ATHENS 18CA24 6 her brother usually had one, small 20 inch TV in his house-trailer, but on June 17 they watched the movie on a large, flat-screen TV that she never saw again. Devon explained that appellant told them that he got the TV from a house that he helped clean and that it did not work, but he got it to work. {¶ 15} Athens County Prosecutor’s Office Felony Investigator Trent Eskey testified that he executed a search warrant on a blue Ford truck reported to belong to appellant. Eskey testified that the Blairs’ door had been pried open, and that, among other things retrieved from appellant’s truck, he found a crowbar. {¶ 16} Athens County Prosecutor’s Office Felony Investigator Molly Katusin testified that she is certified in obtaining data from cell phones and she testified about (1) Exhibit 50, AT&T Mobility records for appellant’s phone from June 15, 2017 to June 17, 2017, (2) Exhibit 51, tower dump information for one cell tower, (3) Exhibit 52, tower dump information for another cell tower, (4) Exhibit 14B, an extraction record of Tammie Blair’s cell phone, (5) Exhibit 14A, an extraction record from appellant’s phone, (6) Exhibit 14C, an extraction record from Devon Cogar’s cell phone, (7) Exhibit 13B, five boxes of an extraction report from the victim’s phone, (8) Exhibit 13C, an extraction report from David Cogar’s phone, and (9) Exhibit 13A, records obtained from AT&T from June 14, 2017 to June 17, 2017 for appellant’s phone. {¶ 17} Athens County Sheriff’s Detective Brice Fick testified that he visited the Blair home on June 17, 2017 in regard to a suspicious death. Fick stated that they contacted the Ohio Bureau of Criminal Identification and Investigation (BCI&I) and, while they waited, they canvassed two blocks in every direction to see if neighbors had observed anything suspicious. Fick testified that he also Facetimed with George Blair so that Blair could tell him what objects may be missing from the ATHENS 18CA24 7 home. Fick testified that he was also a member of the group of law enforcement officers who arrived at the Cogar home, where they found appellant and his truck. {¶ 18} Athens County Sheriff’s Detective John Deak testified that he assisted Detective Fick in interviewing appellant, who told them that he was at George and Tammie’s home that weekend to help the victim get one of the cats out of the home. Appellant also admitted to being at their home, on the Friday before they left, to sell marijuana. When Deak asked appellant if they would find his DNA on the victim, appellant initially said no. Then, appellant told Deak that he may have shaken the victim’s hand, but otherwise, “there ain’t no way” they were going to find his DNA on the victim. Later, appellant “blurt[ed] out a statement” that “I would never hurt Mary.” Detectives also spoke with appellant about his call to his brother George who told him he was in California. Appellant, however, denied that he knew that George and Tammie were in California. Later, appellant admitted that he also took a bottle of vodka. {¶ 19} Athens County Coroner Dr. Carl Ortman testified that strangulation was the cause of death. Montgomery County Coroner and Forensic Pathologist Dr. Kent Harshbarger testified that he performed the victim’s autopsy and concluded that the cause of death was strangulation. {¶ 20} Ohio Bureau of Criminal Investigation Forensic Scientist Logan Schepeler testified that he tested for DNA and that he examined 11 pieces of evidence. The DNA on the purse handles is a mixture of the victim and an unknown male, with Milton Blair, Tammie Blair, and Jason Kline excluded. The exterior of the purse contained a DNA mixture from the victim and an unknown male, with the male the major contributor. The swab from the wall contained only unknown male DNA. The swab from the victim’s neck showed the victim’s DNA and the same unknown male’s material found on the other items. Schepeler tested the unknown sample against the Combined ATHENS 18CA24 8 DNA Indexing System (CODIS) database. Schepeler also received oral swabs from the appellant and (1) the purse handles indicated appellant’s DNA was a 1 in 2 hundred billion match; (2) the door swab indicated appellant as a major contributor as one in one trillion; (3) the wall swabs indicated appellant with a statistic of rarer than one in one trillion with a single source DNA profile, meaning the profile was only appellant; and (4) the neck swab included the victims’ DNA and appellant’s with a statistic of one in ten billion. {¶ 21} Kevin Horan, an FBI Agent assigned to the Cellular Analyst Survey Team, testified as a cell phone expert. Horan stated that he tracked appellant’s phone the entire day on June 16, 2017 and all five towers measured the phone’s location. From 6:27 p.m. to 7:01 p.m., two outgoing calls were made on appellant’s phone (one at 6:27 and one at 6:28) both to George Blair. The phone stayed in the area of the Cogar residence until 7:01 p.m., then it started to move. From 7:17 to 8:11, multiple hits occurred on the phone, “both on top of the area of where the homicide occurred, and kind of before and after it. There’s a total of 50 different measurements from this same cell site and sector * * * that phone is not moving. * * * You’re just seeing 50 hits kinda laying on top of one another.” From 8:11-8:17, the phone moved along a road, with measurements off three different sectors on two different towers. The phone eventually returns to the Cogar home. The only time on June 16, 2017 the appellant’s phone was in Chauncey was from 7:17 to 8:11 p.m. Horan also examined George Blair’s phone, from noon to 9:00 p.m., and his phone remained in California. {¶ 22} At the conclusion of the state’s case, appellant made a Crim.R. 29 motion for judgment of acquittal. The trial court denied the motion. Subsequently, the defense called Dr. Julie Heinig, a DNA expert and lab director of forensics at DNA Diagnostic Center. Heinig, who conducted a DNA evaluation, noted that when making comparisons you do not know when, or how, ATHENS 18CA24 9 DNA has been deposited. However, Heinig agreed that the DNA on the victim’s purse straps, the interior of the front door, the blood on the home’s interior, and the victim’s neck is appellant’s DNA. Heinig did not independently test the samples and she stated that she agreed with BCI’s conclusions. {¶ 23} Appellant testified that he has two brothers and a sister, that he is closest to his brother Ernie, but is not really close to his brother George. Appellant said that he got along well with Tammie and that he had also helped the victim once with a car repair. Appellant testified that, on the morning of June 16, 2017, he was at Dave Cogar’s, woke up around nine, then went back to sleep until a little after noon. Appellant testified that he took out his dog, then fixed a sandwich and went to Chauncey to Dave Willison’s to smoke marijuana. He testified that after he drove to Chauncey, Willison told him to wait for him at the AmVets. After appellant drove to AmVets and found the parking lot full, he turned around at the Chauncey Marathon and waited. Appellant testified that the victim then pulled up next to him and asked if he could come to George and Tammie’s house to help her remove a cat. Appellant said he then drove to George and Tammie’s house, with Mary following him, and after he pulled in, his dog, who had been in his truck, saw the cats and jumped across the truck and clawed him. Appellant testified that he is taking a blood thinner and that he wiped his blood on a rag and threw it in the back of the truck. {¶ 24} Appellant stated when they entered the house, the cat was on the couch, but ran into the pantry. Appellant explained that he followed the cat into the pantry, which is how his blood stained the pantry wall, but then the cat ran upstairs. Appellant stated that he chased the cat upstairs and it ran back downstairs. Appellant explained that when he returned downstairs, the victim was standing at the door and reported that the cat had run outside. Appellant testified that he told the ATHENS 18CA24 10 victim to tell George and Tammie that he took a half gallon bottle of vodka from their pantry and that he would “get ‘em back when I get my check.” {¶ 25} Appellant further testified, “[a]fter I got the bottle, I reached down and grabbed her purse, handed it to her at the door, and I walked out and she took my hand, put her hand on top of it, and thanked me. And I said, I asked her if she wanted me to lock the door, she said no, she had to water the cats. * * * [s]he was out on the porch filling water when I was backing out of the driveway.” Appellant explained that he returned to Dave Willison’s and someone came and told him that Dave went to Millfield. Appellant then went to Millfield to get marijuana and then returned to Dave Cogar’s residence. {¶ 26} Appellant also testified that he did not have his phone with him that morning because it was on the charger at Cogar’s home. He said that when he returned to Cogar’s house, he picked up his phone and went to Gary McDowell’s where Gary drank a glass of vodka and smoked a “joint or two.” Appellant stated that he then returned to Cogar’s house before 5:00 p.m. Appellant testified that he “would never hurt her [Mary],” and when he last saw her, she was alive. Appellant also testified that he did not steal anything from his brother’s home. {¶ 27} On cross-examination, appellant testified that, in May 2017, he lived in Colorado and worked for his uncle on a marijuana farm. When he returned to Ohio, he brought marijuana with him. Appellant stated that he went to his brother’s (George’s) house on June 13, 2017 to sell marijuana, and appellant traded an ounce of marijuana for $75 and 50 Percocets valued at $325. Appellant explained that he called George on June 16, 2017 to see if he could buy back some marijuana because a friend wanted to buy some that appellant had brought from Colorado. Appellant stated that at that time he learned that George and Tammie were in California. ATHENS 18CA24 11 {¶ 28} Appellant further testified that he did not recall telling the sheriff’s department that he had not been to Chauncey on June 16 because he had no gas in his truck. The state also inquired about appellant’s initial denial of touching Mary and touching her purse. On rebuttal, the state re-called Detective Deak and he testified about appellant’s interview when he learned of the murder at his brother’s house, and appellant had told him, in two recorded statements, that he learned that information on Saturday. Further, Detective Deak testified about discussing with appellant the injuries on his arms on multiple occasions in a recorded session, which they played for the jury. When asked when was the first time he had heard that the appellant’s dog had scratched him when he pulled into the driveway, Detective Deak responded, “This past Friday,” meaning during the jury trial. {¶ 29} After a six-day jury trial, the jury found appellant guilty of aggravated murder and burglary. At the August 2, 2018 sentencing hearing, the trial court sentenced appellant to serve life in prison without parole for the aggravated murder and eight years for the burglary, to be served consecutively to the life term. This appeal followed. I. {¶ 30} In his first assignment of error, appellant asserts that the trial court erred when it sentenced appellant to serve life in prison without the possibility of parole, despite the fact that (1) the record clearly and convincingly did not support such a punitive sentence, and (2) R.C. 2953.08(D)(3) is unconstitutional to the extent that it prohibits appellate review of appellant’s sentence. ATHENS 18CA24 12 A. Review Precluded {¶ 31} For ease of discussion, we first address appellant’s second argument. Appellant was convicted of aggravated murder in violation of R.C. 2903.01(B). The version of R.C. 2953.08(D)(3) in effect at the time of the conviction of the crime governed appeals based on felony sentencing guidelines and provided: “A sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this section.” {¶ 32} The Supreme Court of Ohio addressed the meaning of this statutory provision in State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, when it held: “R.C. 2953.08(D) is unambiguous. ‘A sentence imposed for aggravated murder or murder pursuant to section 2929.02 to 2929.06 of the Revised Code is not subject to review under this section’ clearly means what it says: such a sentence cannot be reviewed.” Porterfield at ¶ 17. {¶ 33} Moreover, this court has held “[i]t is evident that the General Assembly intended to treat sentencing on aggravated murder and murder convictions differently from other felony sentences.” State v. Hawkins, 4th Dist. Gallia No. 13CA3, 2014–Ohio–1224, ¶ 15, citing Porterfield at ¶ 17–18. See also State v. Vance, 4th Dist. Jackson No. 16CA11, 2018-Ohio-1313, ¶ 36. {¶ 34} Thus, pursuant to R.C. 2953.08(D)(3) and the relevant case authority that has interpreted this statute, we do not have the authority to review appellant's sentence. Although we recognize that appellant makes a persuasive argument that the current range of sentencing options should render that prior authority questionable, we will follow that authority until the Ohio Supreme Court directs otherwise. ATHENS 18CA24 13 B. Cruel and Unusual Punishment {¶ 35} Appellant asserts that the Ohio and federal constitutional prohibitions against cruel and unusual punishment mandate appellate review of life without the possibility of parole sentences. In particular, appellant claims that having no opportunity for appellate review of his very severe sentence, when less severe sentences could have been imposed, violates the Eighth Amendment prohibition. {¶ 36} The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment to the United States Constitution applies to the states pursuant to the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Ohio Constitution, Article I, Section 9 includes identical language. The Eighth Amendment's prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The constitutional right flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense. Id. {¶ 37} Appellant attempts to argue similarities between death sentences and life without parole sentences. However, “[t]he Eighth Amendment does not require strict proportionality between crime and sentences. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” State v. Weitbrecht, 86 Ohio St.3d 368, 371-372, 715 N.E.2d 167 (1999). {¶ 38} After our review of the case sub judice, we conclude that life without the possibility ATHENS 18CA24 14 of parole is not disproportionate to appellant’s murder of his brother’s mother-in-law, during the act of burglarizing his brother and sister-in-law’s home. See also State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135 (8th Dist.) (sentence of life imprisonment without the possibility of parole does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.). Moreover, we do not believe that the absence of appellate review for appellant’s severe prison sentence violates the Eighth Amendment. C. Equal Protection {¶ 39} Appellant also contends that R.C. 2953.08(D)(3) violates appellant’s Ohio and federal constitutional rights to equal protection under the law. {¶ 40} The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Appellant cites State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, in support of this proposition. In Noling, the Supreme Court of Ohio held that R.C. 2943.73, a statute that granted appellate review of the denial of DNA applications, was unconstitutional because it distinguished between the rights of capital and non-capital offenders. The court held that no rational basis exists to support the determination that non-capital offenders are entitled to an appeal as of right while capital offenders are entitled only to discretionary review. Id. at ¶ 8. {¶ 41} However, as recently as 2018 this court considered this equal protection challenge in State v. Wilson, 4th Dist. Lawrence No. 16CA12, 2018-Ohio-2700. In Wilson, the defendant argued that other criminal defendants with lesser sentences were allowed appellate review, and death penalty defendants also receive full appellate review, but criminal defendants like Wilson, who receive a ATHENS 18CA24 15 sentence of life without parole, had no appellate review of their sentence. We cited the Second District’s analysis in State v. Burke, 2016-Ohio-8185, 69 N.E.2d 774 (2d Dist.), where the court held that: Ohio's General Assembly certainly may differentiate between criminal offenders on the basis of the perceived seriousness of their crimes. State v. Skapik, 2015-Ohio-4404, 42 N.E.3d 790, ¶ 24 (2d Dist.). Additionally, we find nothing irrational or arbitrary in the legislature's decision to view aggravated murder or murder as a more serious offense such that it warrants a separate statutory scheme from classified felonies. A statute withstands rational-basis scrutiny if it is neither irrational nor arbitrary under any set of facts that reasonably might be conceived to justify it. See, e.g., Phipps v. Dayton, 57 Ohio App.3d 11, 566 N.E.2d 181 (2d Dist.1988) (“A legislative enactment will pass the rational basis test when there exists any set of facts under which the classification at issue rationally furthers a legitimate legislative objective.”). Therefore, in light of the foregoing, we conclude that Burke has not demonstrated a lack of any rational basis for R.C. 2953.08(D)(3). Accordingly, R.C. 2953.08(D)(3) does not violate the Equal Protection Clause. Burke at ¶ 27. {¶ 42} In addition to this District and the Second District, the Fifth District has also concluded that R.C. 2953.08(D)(3) survives constitutional challenge predicated upon the Equal Protection Clause of the Unites States Constitution. See State v. Weaver, 2017-Ohio-4374, 93 N.E.3d 178, ¶ 20, appeal not allowed, 151 Ohio St.3d 1510, 2018-Ohio-365, 90 N.E.3d 950. D. Sentence {¶ 43} Finally, with regard to his sentence, appellant asserts that clear and convincing evidence does not support a determination that life without possibility of parole is the minimum sanction necessary to punish the offender and to protect the public. {¶ 44} R.C. 2929.11 requires a court to consider the seriousness and recidivism factors in R.C. 2929.12 and determine whether the sentence imposed was the “minimum sanction” necessary ATHENS 18CA24 16 to “protect the public from future crime * * * and to punish the offender.” R.C. 2929.11. Appellant argues that because he is unlikely to commit a crime of this nature in the future, the minimum sanction necessary to both punish and protect must include an opportunity for parole. {¶ 45} As the state points out, however, appellant’s statement that he is unlikely to commit a crime of this nature in the future lacks any independent support. Moreover, our review of the record shows that the trial court complied with all of the necessary factors under R.C. 2929.11 and R.C. 2929.12 when it sentenced appellant to serve life in prison without the possibility of parole. {¶ 46} The trial court, in making the R.C. 2929.11 determinations, stated: The Court has considered the principles and purposes of felony sentencing in Ohio. Those purposes are to protect the public from crime by the defendant or others, and to punish the offender using the minimum sanction that the Court determines accomplishes those purposes without imposing an unnecessary burden on State or local government resources. To achieve these purposes, the Court has considered the need to incapacitating the offender, deterring the offender, rehabilitating the offender, and providing for restitution. The Court has also - in formulating this sentence- has ensured that the sentence is not based upon impermissible purposes. That the sentence is consistent with other similar offenses, committed by like-offenders, and not to the extent any sentence can be proportional, that it is proportional to harm caused or impact upon the victims. The Court has also considered the victim impact, which was put forth here today, and has considered that as part of the sentence. {¶ 47} We believe that the trial court fully considered R.C. 2929.11 when it sentenced appellant to, what it concluded, is the minimum sanction necessary to protect the public from future harm and to punish the offender. R.C. 2929.12 requires a trial court to consider the seriousness of the crime and recidivism factors. In the case sub judice, the sentencing transcript contains the following: While there does appear to be good authority out there, certainly from appellate courts, that the typical seriousness and recidivism factors that a Court is required to consider do not apply in cases of unspecified felonies, in an abundance of caution, the Court will also endeavor to weigh those factors, and does find that the ATHENS 18CA24 17 recidivism-likely, strongly outweigh the recidivism-unlikely factors, given the lack of remorse that has been demonstrated by the defendant in this case, and further the offender’s criminal history. The Court further finds that the seriousness factors strongly outweigh the less-serious factors, and would also further note that in terms of the statutory scheme, * * * the victim suffered serious harm in this case, and that also that the offender’s relationship with this victim helped to facilitate that offense * * * Having considered the seriousness and recidivism factors, and having considered the entirety of the record, it is clear to the Court that this defendant cannot be rehabilitated. Obviously nothing that this Court does today can bring back Mary, or to heal the hearts of those who loved her so much. But this Court can ensure that this defendant never causes this sort of pain ever again, at least not as a free man. This case demands a maximum sentence, and this Court will impose the maximum sentence of life in prison, without parole on the unspecified felony of aggravated murder. {¶ 48} A trial court is required to consider the R.C. 2929.12 factors, but has no obligation to make specific findings pertaining to those factors. See State v. Moore, 4th Dist. Adams No. 18CA1070, 2019-Ohio-1467, ¶ 17, citing State v. Brown, 4th Dist. Ross No. 18CA3643, 2018-Ohio-5431, ¶ 30; R.C. 2929.14(A)(3)(a). Moreover, appellant’s contention that his prior offenses are non-violent in nature does not undo the consideration of the current violent offense. Our review of the record reveals that the trial court thoroughly and appropriately analyzed the sentencing considerations contained in both R.C. 2929.11 and R.C. 2929.12. {¶ 49} Accordingly, based upon the reasons set forth above, we overrule appellant’s first assignment of error. II. {¶ 50} In appellant’s second assignment of error, he asserts that the trial court erred in imposing consecutive sentences. {¶ 51} “R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under ATHENS 18CA24 18 ‘division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.’” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. “[C]lear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Marcum, supra, citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Thus, “an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.” Marcum at ¶ 23. {¶ 52} Appellant points out that R.C. 2929.41(A) establishes a statutory presumption in favor of concurrent sentences. In order to impose consecutive terms of imprisonment, a trial court must make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but the court has no obligation to state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. {¶ 53} This court analyzed the R.C. 2929.14(C) determinations in State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, where we held: “Under the tripartite procedure set forth in R.C. 2929.14(C)(4), prior to imposing consecutive sentences the trial court had to find that: (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and (3) * * * the harm caused by two or more multiple offenses was so great or unusual that no single prison term for any of the offenses ATHENS 18CA24 19 committed adequately reflects the seriousness of the offender’s conduct.” Leonhart at ¶ 58. Although it is not necessary for a trial court to use talismanic words in each step of its analysis to comply with R.C. 2929.14(C)(4), it must be clear from the record that the trial court actually made the required findings. State v. Baker, 4th Dist. Athens No. 13CA18, 2014-Ohio-1967, ¶ 37, citing State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013-Ohio-4649, ¶ 64. {¶ 54} The state further notes that the Eighth District Court of Appeals has held that because a sentence of life without parole is completed upon the defendant’s death, “sentences imposed consecutively to life-without-parole sentences are moot because the issue is ‘academic’ [and] this court can issue no decision that will have any practical effect on the controversy.” State v. Herrington, 8th Dist. Cuyahoga No. 106225, 2018-Ohio-3049, ¶ 35, citing State v. Chavez, 8th Dist. Cuyahoga No. 99436, 2013-Ohio-4700, ¶ 47. We see the wisdom in this rationale. Nevertheless, in the case sub judice the trial court heard the particular arguments regarding sentencing and merger, and made the following remarks: The Court has also considered merger. * * * [H}ere were two separate animus’s for each of the offenses, and * * * the animus-for the aggravated murder was not initiated under after the animus for the burglary, and after the burglary had been over way. The Court would decline to merge the sentences here today, and will order that each count is sentenced separately * * * This case demands a maximum sentence, and this Court will impose the maximum sentence of life in prison, without parole on the unspecified felony of aggravated murder. As to burglary, a felony of the second degree, the Court will order the maximum eight-year term, consecutive to the life term. The Court finding consecutive sentence [sic] is necessary to punish the offender, protect the public from future crime, not disproportionate to the seriousness of the conduct or the danger imposed by the defendant, not based upon an impermissible purpose, and finds that the ongoing course of conduct in this case harm that was so great or unusual that single prison term would not adequately reflect the seriousness of that conduct.” (Emphasis added.) {¶ 55} While appellant argues that the consecutive sentences serve no “penological purpose,” ATHENS 18CA24 20 and that the public is not afforded any additional protection by the consecutive sentences, we conclude that the trial court made the required findings on the record, in the sentencing entry, and that the sentence is supported by the record and not contrary to law. {¶ 56} Accordingly, we overrule appellant’s second assignment of error. III. {¶ 57} In his final assignment of error, appellant asserts that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. In particular, appellant asserts that trial counsel should have requested the trial court to waive court costs at sentencing, but failed to do so. {¶ 58} The Sixth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution, provide that defendants in all criminal proceedings shall have the assistance of counsel for their defense. The United States Supreme Court has generally interpreted this provision to mean that a criminal defendant is entitled to the “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To show deficient performance, a defendant must prove that counsel's performance fell below an objective level of reasonable representation. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. Moreover, courts need not analyze both prongs of the Strickland test if a claim can be resolved under only one prong. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 17. ATHENS 18CA24 21 {¶ 59} When determining whether counsel's representation amounts to deficient performance, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland at 689. Because a properly licensed attorney is presumed to execute his duties in an ethical and competent manner, State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10, a defendant bears the burden to show ineffectiveness by demonstrating that counsel's errors were “so serious” that counsel failed to function “as the ‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland at 687. {¶ 60} Appellant argues that trial counsel’s failure to request the waiver of court costs at sentencing constitutes deficient representation. In all criminal cases, a judge must include in the sentence the costs of prosecution and render a judgment against the defendant for such costs, even if the defendant is indigent. R.C. 2947.23(A)(1)(a); State v. Mack, 4th Dist. Washington No. 17CA35, 2018-Ohio-5165; State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. However, a trial court retains jurisdiction to waive, suspend, or modify the payment of the costs “at the time of sentencing or at any time thereafter.” R.C. 2947.23(C). A trial court may waive court costs - but it is not required - if a defendant is indigent. Mack, citing State v. Hawkins, 4th Dist. Gallia No. 13CA3, 2014-Ohio-1224, ¶ 18; State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. {¶ 61} Appellant contends that a conflict exists between Ohio appellate districts regarding whether a trial counsel’s failure to move to waive court costs at sentencing constitutes ineffective assistance of counsel when a defendant is indigent, and appellant points out that the Supreme Court of Ohio will soon decide the issue. In Mack, we referred to the Supreme Court of Ohio’s recent certification of a conflict among appellate districts on the question: “Is trial counsel’s failure to file a ATHENS 18CA24 22 motion to waive court costs at sentencing ineffective assistance of counsel when a defendant has previously been found indigent?” State v. Davis, 152 Ohio St.3d 1441, 2018-Ohio-1600, 96 N.E.3d 297 (recognizing a division of authority between the Eighth and Fifth Appellate Districts, State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861 and State v. Davis, 5th Dist. Licking No. 17CA55, 2017-Ohio-9445). As we held in Mack, “the Fourth District, like the Fifth and Third Districts, does not automatically find a presumption of prejudice where defendant is indigent.” Mack at ¶ 22, citing State v. Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, ¶ 15; State v. Williams, 3d Dist. Auglaize No. 2-13-31, 2014-Ohio-4425, ¶ 17; State v. Harris, 5th Dist. Muskingum No. CT2018-Ohio-0005, 2018-Ohio-2257, ¶ 31. However, unless and until the Supreme Court of Ohio overturns State v. Davis, supra, we will continue to follow Farnese. Mack at ¶ 33. {¶ 62} Accordingly, we conclude that appellant did not demonstrate that trial counsel failed to function as the counsel guaranteed by the Sixth Amendment to the United States Constitution, nor did appellant demonstrate that he suffered prejudice from his counsel’s failure to move for a waiver of costs. {¶ 63} Therefore, based upon the foregoing, we overrule appellant’s third assignment of error. Outcome: Accordingly, based upon for the foregoing reasons, we affirm the trial court’s Plaintiff's Experts: Defendant's Experts: Comments: |
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