Opinion
No. 76202.
Decided December 14, 2000.
Character of Proceeding: Criminal appeal from Court of Common Pleas, Case No. CR-353397.
WILLIAM D. MASON, Cuyahoga County Prosecutor, ELEANORE E. HILOW, Assistant Prosecuting Attorney, Cleveland, Ohio, for Plaintiff-Appellee.
KENNETH D. MYERS, ESQ., Cleveland, Ohio, for Defendant-Appellant.
JOURNAL ENTRY AND OPINION
Defendant-appellant Robert Annotico appeals from his convictions for one count of possession of cocaine, a schedule II drug, in excess of 25 grams, but less than 100 grams (R.C. 2925.11) and one count of possession of criminal tools (R.C. 2923.24) entered after a jury trial. Defendant contends that the evidence was insufficient to sustain the conviction; the judgment was against the manifest weight of the evidence; counsel was ineffective; the trial court erred in sentencing him; and that the trial court erred in imposing a $19,000 fine. We affirm the convictions, but remand for resentencing.
Defendant and his co-defendant, Sheri Rigor, were tried together. The following facts were introduced at trial.
Ronald James Loftis testified that he was arrested with the defendant and co-defendant Rigor. Loftis pled guilty in exchange for his testimony. Loftis stated that he met the defendant and co-defendant more than a year earlier at a party where they were smoking drugs together. He said that on the night in question, the defendant and co-defendant picked him up at his house located on East 64th and Woodland so that they could smoke drugs together. According to Loftis, the defendant and the co-defendant brought the drugs with them. Loftis stated that he was sitting in the front passenger seat, defendant was driving and co-defendant Rigor was sitting in the back seat. According to Loftis, when the officers stopped the vehicle, co-defendant Rigor had the drugs on her person. Loftis claimed that he never possessed the drugs and only had a crack pipe on his person which he threw on the floor. Loftis denied that the drugs were his and admitted that he had several prior convictions for drug abuse.
Cleveland Police Officer Wilsman testified that he and his partner Matt Baeppler were on duty the night of April 14, 1997. They were patrolling the area of East 64th and Buckeye around 2:00 a.m. when he noticed a Jeep Cherokee traveling northbound on East 64th run a stop sign. The officers followed the vehicle, pulled it over and called for back up. Defendant was driving the car, Loftis was in the front passenger seat and co-defendant Rigor was in the back seat.
As the officers exited the patrol car and proceeded to approach the vehicle they saw co-defendant Rigor make a furtive movement. Since the officers suspected a weapon was involved they ordered everyone out of the vehicle with their hands up. The officers removed co-defendant Rigor first. At that time, Officer Wilsman overheard co-defendant Rigor ask Officer Potts what was happening. Officer Potts informed her that a female officer was on her way to conduct a pat down search to determine what Rigor had stuffed in her pants. Rigor then pulled out the bag of crack from her pants. Officer Wilsman recalls Rigor said something to the effect of He gave me this or My boyfriend gave me this or Somebody gave me this, but he could not recall the exact words. (Tr. at 183-184). At that point all the occupants were placed under arrest and the vehicle impounded.
When the vehicle was inventoried, a smaller bag of suspected crack cocaine was found in the glove compartment. Also found was a crack pipe under the driver's seat, and a broken crack pipe in the back seat. The jeep was registered in the name of co-defendant Sheri Rigor.
Officer Baeppler corroborated Officer Wilsman's testimony. He also added that the arrest occurred in an extremely high drug area. (Tr. at 243). He stated that when he asked the occupants of the car how they were related to each other, the defendant responded that he was Rigor's boyfriend. Officer Baeppler testified that a pager was taken from Rigor and that while he had custody of the pager it was going off incessantly. He called one of the numbers on the pager and the person at that number asked where Sheri was.
Officer Baeppler testified that he wrote up the police report regarding the arrests and that he wrote down that Rigor had said, they told me to hide this. He admitted he was not present when Rigor made the statement, but that is what he thought she said based on what the other officers told him. The officer stated that a total of three pagers were confiscated and that he did not attempt to ascertain to whom the pagers were registered. $129.00 was confiscated from the defendant.
Officer Terrence Potts testified that he responded to Officer Baeppler and Wilsman's call for back up. When he arrived on the scene he assisted the officers in getting co-defendant Rigor out of the vehicle. Officer Potts explained to Rigor that they were waiting for a female officer to conduct a pat down search of Rigor to determine what she stuffed down her pants. Potts stated that he then asked Rigor what it was that she had hidden and to take it out. She told the officer that it was not a gun and that He gave it to me. My boyfriend gave it to me. (Tr. at 202). At that point, she unzipped her pants and produced the bag of cocaine. Later, it was determined that defendant was Rigor's boyfriend.
After the trial court heard and overruled motions for acquittal by both defense attorneys, co-defendant Sheri Rigor took the stand in her defense. She stated that she had no prior convictions. According to Rigor, on the night in question she and defendant were at a bar on Denison Avenue and left shortly after midnight. She and the defendant had been dating for about three and one-half years. While at the bar they met up with Loftis, whose house she and defendant had been at many times. All three of them left the bar together and got into her jeep to go to Loftis' house. Although it was her vehicle, defendant drove. On the way to the house, Loftis yelled out that a police car was following them. She said that when the police pulled the car over, Loftis turned around in the front seat, threw a bag in her lap and screamed at her to hide it in her privates. Then Loftis continued to shuffle around in the front seat and Rigor heard the glove compartment open and close. Rigor denied that the pager that the officers found was hers. She claimed that she told the officers that the bag of drugs in her pants was given to her by Loftis. She denied ever telling the officers that the defendant was her boyfriend. She also denied that they ran a stop sign and contended that the police stopped them for no apparent reason.
Based on the above evidence, the jury found the defendant guilty of both counts. The trial court thereafter sentenced the defendant to nine years on the drug possession and one year for the possession of criminal tools, to be served consecutively. Defendant was also fined a total of $19,000.
Defendant now timely appeals assigning five assignments of error. We will address defendant's assignments of error in the order asserted and together where such discussion is appropriate.
I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.
II. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Defendant argues that there was no evidence presented that he had actual or constructive possession of the drugs. He contends that he did not own the vehicle in which the drugs were found and that although he was driving the vehicle, there were two other people in the car with him. This assignment of error has no merit.
The standard of review we must observe in passing on sufficiency of the evidence and manifest weight of the evidence issues were set forth by the Supreme Court of Ohio as follows in State v. Thompkins (1997), 78 Ohio St.3d 380, 386-87:
The state asserts that sufficiency of the evidence and weight of the evidence are synonymous legal concepts. They are not. The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.
With respect to sufficiency of the evidence, 'sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed. 1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict, is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594.
When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 (The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.).
A review of the transcript indicates that defendant did not have any drugs on his person when arrested. However, Officer Wilsman recalled Rigor saying at the scene that He gave me this or My boyfriend gave me this, or Somebody gave me this, without recalling the exact words. Officer Potts also testified that co-defendant Rigor had pulled the drugs out of her pants and told him He gave it to me. My boyfriend gave it to me. Defendant admitted that he was Rigor's boyfriend. Although Rigor claimed at trial that Loftis was the one who gave her the cocaine to hide, Loftis denied that he ever possessed any drugs in the car. This evidence was sufficient to establish defendant's control over the drugs as apparently the jury believed that the defendant gave the drugs to Rigor and instructed her to hide the bag. Although Rigor denied ever saying that her boyfriend gave her the drugs, it is well established that the weight given to the testimony and the credibility of the witnesses is within the province of the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of syllabus. Based on this testimony, we find the evidence was sufficient to sustain the convictions. Nor can it be said that the convictions were against the manifest weight of the evidence.
Assignments of Error I and II are overruled.
III. APPELLANT'S DUE PROCESS RIGHTS WERE ABRIDGED WHEN HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
The Ohio Supreme Court recently stated in State v. Calhoun (1999), 86 Ohio St.3d 279 at 289, the standards to be applied in determining whether counsel's assistance was constitutionally ineffective:
The United States Supreme Court has established a two-step process for evaluating an allegation of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693.
In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64 Ohio St.2d at 110-111, 18 O.O.3d at 351, 413 N.E.2d at 822.
Defendant contends that counsel was ineffective for not obtaining a copy of the suppression hearing transcript which would have indicated that Officer Potts altered his testimony at trial. Defendant argues that at the suppression hearing the Officer testified that when he asked the defendant's girlfriend where she got the drugs she responded that they or he gave it to me. At trial the officer testified that the girlfriend told him that the defendant, who was her boyfriend, gave her the drugs. A review of the motion to suppress transcript indicates that Officer Potts did testify that Rigor told him that her boyfriend gave her the bag of drugs. The following colloquy occurred at the suppression hearing (Tr. at 36) on cross-examination:
Q. At that point in time, she said, yes? She said, yes? Or what did she respond?
A. He gave it to me.
Q. I think you said they or he gave me something?
A. Right.
Q. Did she say who the he was?
A. Her boyfriend, I believe, is how I remember her saying.
Therefore, counsel was not ineffective for failing to request a copy of the transcript from the motion to suppress hearing, as Officer Potts did not testify inconsistently.
Defendant also contends that counsel was ineffective for failing to request a copy of the police report which recorded the girlfriend's statement as, they told me to hide this. Although it was revealed at trial that the police report does record Rigor's statement as, they told me to hide this, Officer Baeppler testified that he wrote the police report and that he did not personally hear what Rigor had said. Instead, Baeppler was relying on statements by other officers in writing the report. Furthermore, it appears from the discussion had at sidebar that counsel was provided with a copy of the police report during discovery. (Tr. at 214, 220). In any event, even if counsel failed to request the written report, it was not prejudicial as counsel was adequately permitted to cross-examine the officer regarding the statement contained within the report.
Assignment of Error III is overruled.
IV. THE TRIAL COURT ERRED IN SENTENCING APPELLANT.
Defendant contends that the trial court erred in sentencing him to less than one year short of the maximum sentence as it was excessive in comparison to sentences imposed for similar offenses in other cases and contravenes public policy. He also argues that by ordering the drug offense count to be served consecutively with the possession of criminal tools count the trial court in essence ordered the maximum sentence.
Pursuant to R.C. 2953.08(G)(1):
The court hearing an appeal of a sentence * * * may increase, reduce, otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the trial court for re-sentencing if the court clearly and convincingly finds any of the following:
(a) That the record does not support the sentence;
In sentencing the defendant, the court should adhere to the overriding purposes of felony sentencing as set forth in R.C. 2929.11, which provides:
(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
In the case herein, the trial court sentenced the defendant to more than the minimum but less than the maximum time permitted by statute. A review of the sentencing hearing transcript indicates that the trial court determined that to sentence the defendant to less than what it ordered would demean the seriousness of the crime. The trial court also noted that defendant had a prior conviction for drug abuse and a prior conviction for domestic violence and that those prior convictions entered into its decision in determining the length of the sentence. Therefore, the trial court adequately stated on the record its reasons for imposing the length of each sentence and complied with the purposes of felony sentencing.
We also note, however, that since the defendant was sentenced to less than the maximum sentence that the trial court was not required to enter any findings as to the amount of time imposed for each sentence. R.C. 2929.19(B)(2) only requires the court to make findings and give reasons for selecting a sentence imposed in five circumstances. State v. Hayes (Nov. 2, 2000), Cuyahoga App. No. 77491, unreported. None of those five listed circumstances are applicable to the defendant in this case, with the exception of the imposition of consecutive sentences which we will address later.
Although we recognize that the trial court essentially sentenced the defendant to one month less than the maximum for drug possession (ten years) by sentencing the defendant to one year shy of the maximum for drug possession and one month shy of the maximum for criminal tools and running them consecutively, this does not constitute the maximum sentence. To treat it as so would open the door to abuse as once we hold that one month less than the maximum should be treated as the maximum sentence we open the door to sentences that are below the maximum, i.e., two months less, a year less, etc. This would be in contravention of the legislature's intent in drafting S.B.2, as the legislature has not required findings when the sentence imposed for a non first time offender is less than the maximum and more than the minimum. State v. Hayes, supra. This Court in State v. Barnes (Aug. 10, 2000), Cuyahoga App. No. 76560, unreported, has even gone as far as holding that in such situations the defendant has no appeal as of right pursuant to R.C. 2953.08. See, also, State v. Schott (July 29, 1999), Cuyahoga App. No. 75455, unreported, where we held:
In this case, defendant-appellant entered a plea of guilty to failure to comply with order or signal of a police officer, a fourth degree felony. The possible sentence for a fourth degree felony is six to eighteen months. See, R.C. 2929.14(A). Defendant-appellant received a seventeen month sentence, less than the maximum eighteen months sentence the trial court could have imposed. Therefore, the trial was not required to state the reasons for its sentence on the record pursuant to R.C. 2929.19(B)(2)(d) (e), as the sentence at issue was not the maximum sentence that could have been imposed. See, State v. Clark, 1998 Ohio App. LEXIS 2689 (June 19, 1998), Greene App. No. 97CA26, unreported; State v. Varner, 1998 Ohio App. LEXIS 4707 (September 14, 1998), Stark App. No. 98CA0016, unreported. Based upon the foregoing considerations, this court cannot now say that the trial court abused its discretion in sentencing defendant-appellant to a term of imprisonment less than the maximum allowable sentence.
Id. at 5. Therefore, although we agree that it would be better practice for the trial court to set forth its reasons or findings in imposing the sentence, the current sentencing laws do not require it in this situation.
We note the trial court failed to advise the defendant of mandatory post-release controls pursuant to R.C. 2929.14(F). However, since this omission was not raised as error on appeal, we will not address it.
We find, however, that the trial court did not adequately state its reasons for requiring the sentences to be served consecutively. Although the trial court stated that it would demean the seriousness of the offenses not to run the sentences consecutively, more findings are necessary in order to impose a consecutive sentence. R.C. 2929.14(E)(4) states:
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and the consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed the multiple offense while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
R.C. 2929.14 requires the court to make findings consistent with the statute. Because the trial court failed to make the required findings, we remand this matter to the trial court for resentencing of the defendant and the inclusion of such a finding if the court, after proper determinations, decides to impose consecutive sentences in this matter. See State v. Albert (Nov. 24, 1997), 124 Ohio App.3d 225, 230; State v. Beck (Mar. 30, 2000), Cuyahoga App. No. 75193, unreported; State v. Maynard (Mar. 16, 2000), Cuyahoga App. No. 75722, unreported.
Assignment of Error IV is sustained.
V. THE TRIAL COURT ERRED IN IMPOSING $19,000.00 IN FINES WHERE THE COURT HAD FOUND APPELLANT TO BE INDIGENT.
Defendant contends that the trial court erred in imposing a $19,000 fine when the trial court thereafter found the defendant indigent for purposes of appeal. This assignment of error has no merit.
R.C. 2929.18(B)(1) states in pertinent part:
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
In the case herein, no affidavit of indigency was filed with the trial court prior to sentencing and no objection was made to the fine at the time it was imposed. As this Court held in State v. Frazier (Oct. 9, 1997), Cuyahoga App. No. 71675-78, unreported at 6:
It is clear that the court should consider the impact a fine has on the offender, however, the court is required to consider such factors only if evidence is offered at the sentencing hearing. State v. Burkitt (1993), 89 Ohio App.3d 214, 229. Where the offender does not object at the sentencing hearing to the amount of the fine and does not request an opportunity to demonstrate to the court that he does not have the resources to pay the fine, he waives any objection to the fine on appeal. Id. at 229. See, also, State v. Johnson (1995), 107 Ohio App.3d 723.
Therefore, since defendant did not file an affidavit of indigency before sentencing and failed to present any evidence at the sentencing hearing that he was unable to pay the fine and made no objection to the imposition of the fine, he waived any objection to the fine on appeal.
Assignment of Error V is overruled.
Judgment affirmed; remanded for resentencing.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's convictions have been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
O'DONNELL, P.J., CONCURS.
KILBANE, J., DISSENTS IN PART AND CONCURS IN PART. (SEE DISSENTING AND CONCURRING OPINION ATTACHED).
On this appeal from a jury verdict and sentence resulting from a trial before Judge Bridget M. McCafferty, I respectfully dissent from the majority's decision on the fifth assignment of error, concur in part and dissent in part on the fourth assignment of error and concur with respect to the first through third assignments of error. I would vacate the sentence and remand for resentencing, not only as to the length of Annotico's prison term, but also for the amount of the fine as well because the proceedings failed to comply with R.C. 2929.18 and 2929.19.
My dissent here will raise many of the same issues surrounding the conviction and Judge McCafferty's sentencing of Annotico's co-defendant, Sheri Rigor. See State v. Rigor (2000), Cuyahoga App. No. 76201, unreported. Therefore, parts of my opinion here will be verbatim repetitions of my dissent in Rigor.
Annotico was sentenced as follows:
I want to note for the record it would demean the seriousness of your offense to sentence you on the low end of this, and you were sentenced — or found guilty by a jury of your peers to two different offenses. In addition to that, I'm taking into account you do have a criminal history that you bring with you on this date and I have taken those factors into consideration in imposing sentence.
I am going to sentence you consecutively for both counts. The first count I'm sentencing you to 9 years at Lorain Correctional Institute and an $18,000 fine, and for Count 2 I'm sentencing you to an additional 11 months and an additional $1,000 fine. Again, I think it would demean the seriousness of the offense to do anything less.
The journal entry, however, contained the rote recitation of statutorily required statements, none of which, of course, occurred at the hearing. The majority, while holding that it was error to pronounce consecutive sentences without the findings required under R.C. 2929.14(E)(4), tacitly approves the judge's inadequate sentencing procedure.
The court considered all the required factors of the law. The court finds that prison is consistent with the purposes of R.C. 2929.11. * * * The sentence includes any extensions provided by law. * * * Drivers license suspended for one year.
At least one goal of sentencing reform under Senate Bill 2 is to achieve greater consistency in sentences imposed for similar crimes committed by similar offenders. R.C. 2929.11(B). An offender should have the right to receive an appropriate sentence, regardless of the idiosyncrasies of the judge presiding over his case. Such consistency leads to greater predictability as well as increasing fairness. Providing greater detail in sentencing decisions not only allows review of the particular cases decided but creates a base for review of later decisions. Unlike the holding of the majority that excuses the imposition of a sentence equal to 99% of the maximum sentence for a first degree felony, I would find that the judge should be required to provide a basis in the record for the sentence imposed.
The majority approves the eleven month incarceration for a fifth degree felony merely because the judge spoke the magical incantation that a lesser sentence would demean the seriousness of the offense. They similarly justify the nine year first degree felony sentence by noting that because the judge mentioned a prior conviction for drug abuse and a prior conviction for domestic violence as factors she considered in imposing the sentence, it is an adequate basis for the sentence.
The majority's beautiful theory cannot withstand an attack by a brutal gang of facts. Before pronouncing sentence, the judge noted Annotico's pretty extensive criminal history : a 1993 drug possession charge for which he served a six month prison sentence, a 1995 conviction for domestic violence for which he served six months in prison and a 1998 minor misdemeanor charge of disorderly conduct for which he paid a $30 fine. The majority appears to find that a nine year sentence based upon this extensive criminal record and possession of 26 grams of crack cocaine is justified. If such contention could be maintained, is it not time to remove the blindfold from the eyes of the goddess that lawyers worship, so that she can see what is the matter with her scales?
Indus. Comm. v. Broskey (1934), 128 Ohio St. 372, 381, 191 N.E. 456, 460, by Justice Stephenson.
The only finding by the judge was her belief that sentencing Annotico at the low end of the applicable sentencing ranges and imposing concurrent sentences would demean the seriousness of the offense. Although the duty to make findings is less demanding than the duty to state reasons, the judge that makes findings must note that it engaged in the analysis set forth in the applicable statute. State v. Edmonson (1999), 86 Ohio St.3d 324, 326, 715 N.E.2d 131, 134. Although the boilerplate statement in her journal entry states that [t]he court considered all of the required factors of the law, it is apparent she did nothing of the sort.
R.C. 2929.19(B)(2)(e) mandates that a judge give reasons for selecting the sentence:
(e) If the sentence is for two or more offenses arising out of a single incident and it imposes a prison term for those offenses that is the maximum prison term allowed for the offense of the highest degree by division (A) of section 2929.14 of the Revised Code, its reasons for imposing the maximum prison term.
To avoid this mandate, the judge imposed the highest possible sentence, 119 months out of a maximum 120 months, by utilizing the loopholes in the sentencing reform legislation. Because the spore of this mode of sentencing finds fertile soil, takes root and may strangle the ideals of sentencing reform, we should not allow such attempts to succeed.
I recognize, as the majority points out, that the judge had no express statutory duty to make findings on the record or state her reasons for imposing the individual sentences, because she did not technically impose the maximum sentences allowable. I find the majority's slippery slope argument unconvincing, because this case does not simply represent a sentence in the upper range of that allowable, but an obvious attempt to impose the maximum sentence available while simultaneously restricting Annotico's right to appeal and grounds for appeal to the greatest extent possible.
Although the majority concedes the failure to do so with respect to the imposition of consecutive sentences.
Sentencing statutes, like all criminal enactments, are to be construed strictly in favor of the accused, and against the State. R.C. 2901.04(A); State v. Smathers (1996), 113 Ohio App.3d 155, 156, 680 N.E.2d 676, 677. The record here shows inadequate consideration of the purposes of sentencing contained in R.C. 2929.11, and the guidelines for determining the length of sentence in R.C. 2929.12, if not a complete failure or affirmative disregard of those provisions. Even if the sentence does not require specific findings and reasons, the record must somehow show that the judge considered and followed the appropriate statutory guidelines. I would find that this sentence shows a failure to evaluate Annotico's conduct under the proper statutory provisions, and is therefore contrary to law pursuant to R.C. 2953.08(A)(4).
I note that the majority, despite its posturing, has not dismissed the appeal.
The majority concludes that the judge properly justified her conduct by stating that a lesser sentence would demean the seriousness of the crime and by noting Annotico's prior criminal record, apparently believing that the judge went beyond the call of duty in making these technically unnecessary findings. However, the majority fails to note that invoking the statutory phrase demean the seriousness of the offender's conduct gives no clue as to the reasons for such a finding, especially when the statutory invocation is itself irrelevant. The bare statement of a statutory phrase does not aid a record that does not support the sentence imposed. Furthermore, because the judge ignored the relevant statutory provisions, the citation to an unnecessary finding shows a misapplication of the statute, rather than a cautious and thorough review.
The length of Annotico's prison term should have been informed by R.C. 2929.12, which requires the judge to consider certain factors before imposing sentence. The first set of factors, contained in R.C. 2929.12(B), concern factors that aggravate the seriousness of the offender's conduct, and include the following:
(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.
(4) The offender's occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
(5) The offender's professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.
(6) The offender's relationship with the victim facilitated the offense.
(7) The offender committed the offense for hire or as a part of an organized criminal activity.
(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
None of these factors exists on the record here. Although R.C. 2929.12(B) allows the judge to consider any other relevant factors that aggravate the seriousness of the offense, no such factors are apparent in the record, and the judge did not specify her reasons for finding Annotico's conduct so damnable. In contrast, the offense does fit one of the listed factors mitigating seriousness found in R.C. 2929.12(C), because Annotico did not cause or attempt to cause physical harm to any person or property as a result of the offense.
R.C. 2929.12(D) requires the judge to consider those factors that indicated Annotico was more likely to commit future offenses, including:
(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release control pursuant to section 2967.28 or any other provision of the Revised Code for an earlier offense.
(2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code, or the offender has a history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions.
(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
The judge did cite Annotico's criminal record in imposing sentence, and his previous offenses do merit consideration as increasing the likelihood of future crime. As noted supra, however, Annotico's criminal history is far from extraordinary, and certainly was not serious enough to justify the sentence imposed. Again, I stress the fact that the judge's sentence was intended to achieve the maximum prison term available while providing the fewest avenues for appeal. The sentence here shows an intent to punish for punishment's sake, without regard or respect for the specific circumstances or the purposes of sentencing. Annotico's criminal record does not justify the sentence imposed, but is instead merely a convenient excuse for the sentence. Not only will Annotico be held in prison far longer than necessary to achieve the purposes of R.C. 2929.11, the citizens of Ohio will be forced to pay for that unnecessary and unfair imprisonment.
Finally, I would also vacate the $19,000 fines and remand that portion of the penalty for resentencing. The majority purports to affirm the $18,000 fine by claiming that Annotico waived error on the issue when he failed to file an affidavit of indigency, object to the fine or present evidence that he lacked the resources to pay the fine. I question the majority's reliance on State v. Frazier (Oct. 9, 1997), Cuyahoga App. No. 71675, unreported, as the majority's cohort disagreed about the viability of Frazier as recently as last year. See State v. Mullins (Nov. 4, 1999), Cuyahoga App. No. 74861, unreported (O'Donnell, J. concurring and dissenting). Although the majority can be seen as deferring to a prior decision of this court, this was exactly the tone of Judge O'Donnell's dissent in Mullins, because he noted that the original Frazier decision failed to follow this court's prior resolution of the issue. In fact, controlling authority in this court conflicts with Frazier, and finds that it was improper to impose a fine on an indigent regardless of whether an affidavit has been filed. State v. Jackson (1985), 21 Ohio App.3d 157, 159, 487 N.E.2d 585, 587. Despite recent case authority indicating that this disposition is allowable, I cannot agree that it is right. The case relied upon by the majority does not acknowledge its conflict with prior decisions of this Court.
Annotico was subject to a maximum fine of $20,000 for the first degree felony conviction, and up to $2,500 for the fifth degree felony conviction. R.C. 2929.18(A)(3)(a) and (e). He was subject to a mandatory fine of at least $10,000, subject to the following exception:
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender. R.C. 2929.18(B)(1).
R.C. 2929.18(E) then provides:
A court that imposes a financial sanction upon an offender may hold a hearing if necessary to determine whether the offender is able to pay the sanction or is likely in the future to be able to pay it.
With respect to the sentencing hearing, R.C. 2929.19(B)(6) provides:
Before imposing a financial sanction under section 2929.18 of the Revised Code, the court shall consider the offender's ability to pay * * *.
Taken together, the statutes first mandate consideration of ability to pay even when an affidavit of indigency is not timely filed: this is accomplished by granting the judge discretion to hold a hearing if necessary to determine that ability. While an offender may be required to file an affidavit of indigency before a judge can waive imposition of a mandatory fine, other sections require the judge to determine ability to pay regardless of whether the affidavit is filed. Furthermore, the duty under R.C. 2929.19(B)(6) suggests that it would be an abuse of discretion to determine an offender was unable to pay but refuse to delay sentencing until an affidavit was filed. Cf. State v. Gibson (1998), 80 Ohio St.3d 626, 687 N.E.2d 750 (finding no abuse of discretion in denying filing of an affidavit where judge expressly considered the offender's ability to pay before imposing fine).
The majority, citing Frazier, supra, finds that a judge need not inquire into an offender's ability to pay if the miscreant does not raise the issue himself. This conclusion is based on the proposition that although a judge has a duty to consider ability to pay, a reviewing court can presume compliance with this duty if faced with a silent record. State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus. Where, however, the record shows that no evidence was available to inform the judge about certain issues, this court has held that the Adams presumption is rebutted, because the lack of information shows a lack of consideration. State v. Ziko (1991), 71 Ohio App.3d 832, 595 N.E.2d 1019. Moreover, the enactment of Senate Bill 2" (Am.Sub.S.B. No. 2) trumps any presumption of compliance or regularity at a sentencing hearing. State v. Ayala (Dec. 16, 1999), Cuyahoga App. No. 75207, unreported.
The record reveals no opportunity by Annotico or his lawyer to articulate any objections on either the term of incarceration or the fine. In this case, the only evidence in the record indicates Annotico's inability to pay any fine imposed. Immediately after imposing sentence, the judge questioned Annotico concerning his ability to pay an appellate lawyer; Annotico replied that he could not and the judge stated she would appoint appellate counsel and order transcripts at state expense for the purposes of his appeal.
Although the Frazier court ruled that a finding of indigence for purposes of appointing counsel does not necessarily indicate the inability to pay a fine, this ruling conflicts with numerous decisions of this court ruling that a finding of indigence for appointment of counsel is relevant to determining the ability to pay a fine, and that it is an abuse of discretion to impose a fine upon an offender who has been sentenced to prison and has been found indigent for purposes of appointment of counsel. Jackson, supra; State v. Davis (May 24, 1984), Cuyahoga App. No. 47622, unreported; State v. Copen (Dec. 21, 1981), Cuyahoga App. No. 43227, unreported; State v. Houston (Jan. 17, 1980), Cuyahoga App. No. 40124, unreported.
The pre-sentence investigation report, which the judge claimed to have reviewed prior to sentencing, revealed that Annotico had no financial assets, and significant debts including $20,000 in child and spousal support arrearages. Additionally his employment as a construction laborer was erratic, his income not substantial, and the imposition of a prison sentence restricted his future ability to pay the fine, especially as his prison term at this point remains just shy of ten years. I would find the imposition of these fines to be an abuse of discretion.
It is noteworthy that if one should find a waiver of objection to this fine(s), it was an error by Annotico's lawyer because he must have been aware of the imposition of a fine as part of the sentence and ought to have filed an affidavit of indigency before sentencing. Such error could be a basis for a timely petition for postconviction relief, or a basis to move this court to re-open his direct appeal, claiming ineffective assistance of appellate counsel. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204. However, both alternatives are unlikely sources of relief; the first because Annotico failed to raise this issue of ineffective assistance in this appeal, and the second because of courts' reluctance to recognize ineffective assistance as anything but strategy. In short, the denial of Annotico's claim here practically defeats any opportunity he has to challenge the fine, even though the penalty is imposed because his lawyer failed to represent him adequately. The doctrine of plain error must be employed to prevent this injustice and protect public confidence in the integrity of the judicial system. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus; State v. Loines (1984), 20 Ohio App.3d 69, 71,-72, 484 N.E.2d 727, 731.
Even if one were to disregard the above arguments, the fines imposed are not supported by the record and must be vacated pursuant to R.C. 2953.08(G)(1)(a). Annotico was subject to a possible fine of up to $20,000 for the first degree felony conviction, and another $2,500 fine for the fifth degree felony conviction. Even if the failure to submit an affidavit of indigency properly subjected Annotico to the mandatory portion of this fine, the mandatory amount was only $10,000. Under any analysis, any fine above this amount was discretionary and one can only conclude from this record that the judge failed to consider his ability to pay before imposing the $19,000 fines. The Frazier rationale concerning the affidavit of indigency would not apply to a discretionary fine.
The Frazier court also cited State v. Burkitt (1993), 89 Ohio App.3d 214, 229, 624 N.E.2d 210, 220, for the proposition that a judge is required to consider the offender's ability to pay only if evidence is offered at the sentencing hearing. Frazier, supra. However, the Clark County Court of Appeals noted in Burkitt that the defendant was informed that the judge was considering imposition of a fine, and that the defendant was expressly invited to offer such evidence. Burkitt, supra. The Burkitt court thus found that the offender had been given a full opportunity to say why the court should not impose the sentence or the fines it proposes[.] Id. at 228, 624 N.E.2d at 220.
Here, the judge did not propose fines prior to imposing them, or invite Annotico to present evidence on his ability to pay the fines either before or after she imposed sentence. Therefore, even if the majority could somehow justify ignoring the controlling authority of Jackson, supra, the Burkitt decision does not support the majority's decision. Just as the prison terms have no support on this record, the fines imposed are not supported by the record and must be vacated pursuant to R.C. 2953.08(G)(1)(a).
Finally, although I concur in the majority's judgment with respect to the first through third assignments of error, I feel it necessary to note my discomfort with Annotico's conviction for possession of criminal tools, R.C. 2923.24. The indictment charged a single count of possession of criminal tools, alleging that Annotico possessed money, pagers, and an automobile; the jury was instructed that if it found that Annotico possessed any one of these items with a criminal purpose, it could convict Annotico of the offense. Annotico surrendered $127 found in his possession at the time of his arrest without challenge.
I find it disheartening that these practices are considered so far beyond controversy that a defendant would acquiesce to them. There are conflicting opinions concerning whether money and pagers can be considered criminal tools when the crime involved is drug possession and there is no evidence of drug transactions. See State v. McShan (1991), 77 Ohio App.3d 781, 603 N.E.2d 1076 (majority finding sufficient evidence to find pager was criminal tool; Harper, J., dissenting). In this case there was no evidence linking the money to the drug possession offense, and no suggestion or instruction that either item met the test for prima facie proof under R.C. 2923.24(B). Furthermore, I certainly would question those authorities finding that the mere possession or use of drugs while in a vehicle renders the vehicle a criminal tool. Such findings appear designed to obtain forfeiture of the vehicle rather than to address criminal behavior.
I note that State v. McDonald (1987), 31 Ohio St.3d 47, 509 N.E.2d 57, did not fully address the use of presumptions when deciding the facial constitutionality of R.C. 2923.24. The McDonald court ironically found that the mens rea requirement of purpose helped save the statute from vagueness and overbreadth challenges, yet failed to address the fact that the statutory presumptions eviscerate the requirement.
Finally, even though courts apparently have approved the use of single-count indictments charging several items as alternatively constituting the criminal tool, I am not comfortable allowing a conviction to stand when the jury could have convicted on a theory unsupported by the evidence. Because it is imperative that the jury link the possession of a particular article with an appropriate mens rea for that article, I would hold that this case presents distinct conceptual groupings requiring jury instructions that explain the need for jury unanimity in specifying which item or items constituted criminal tools. State v. Johnson (1989), 46 Ohio St.3d 96, 104-05, 545 N.E.2d 636, 644; see, also, United States v. Duncan (C.A.6, 1988), 850 F.2d 1104, 1111. We would thus avoid the danger that the jury convicted on a theory that was not supported by sufficient evidence, and future offenders need not acquiesce to the forfeiture of an article when the jury has determined it was not used for a criminal purpose. However, because such an issue requires full briefing and argument before decision, I concur in the majority's judgment on Annotico's first and second assignments of error because he did not raise the issue. On assignment of error three, I concur based upon Annotico's argument.
I would vacate Annotico's sentence in its entirety and remand for resentencing.