State v. Bickley

2019 Ohio 16

STATE OF OHIO, PLAINTIFF-APPELLEE, v. WENDY BICKLEY, DEFENDANT-APPELLANT.

CASE NO. 14-18-05

CASE NO. 14-18-06

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

January 7, 2019

OPINION

Appeals from Union County Common Pleas Court

Trial Court Nos. 17-CR-0147 and 17-CR-0146

Judgments Affirmed

APPEARANCES:

Natalie J. Bahan for Appellant

Andrew M. Bigler for Appellee

WILLAMOWSKI, J.

{¶1} Defendant-appellant Wendy Jo Bickley ("Bickley") appeals the judgments of the Union County Court of Common Pleas, alleging that the trial court committed several errors during sentencing. For the reasons set forth below, the judgments of the trial court are affirmed.

Facts and Procedural History

{¶2} On February 27, 2017, Bickley was at home with her husband, Jason Bickley ("Jason"). Tr. 5. She was aware that her husband had ingested heroin that evening, but, when she discovered that Jason was unconscious and having difficulty breathing, she did not immediately call for emergency medical assistance. Tr. 5-6. At some point, she was in contact with Jason's mother, who urged Bickley to call for help. Tr. 12. Eventually, Bickley called 9-1-1. Tr. 12. Before the emergency personnel arrived, Bickley deleted a number of incriminating text messages. Tr. 23. At the hospital, Jason showed no signs of brain activity and was placed on life support. Tr. 6. While Jason was still in the hospital, Bickley went to a pharmacy and had Jason's prescriptions for Hydrocodone filled. Tr. 6, 37. Jason died on February 28, 2017. Tr. 37.

{¶3} On July 28, 2017, Bickley was indicted for one count of tampering with evidence in violation of R.C. 2921.12(A)(1). Doc. A1.¹ This charge formed the basis of case 17-CR-0146. Doc. A1. On July 28, 2017, Bickley was also indicted for one count of deception to obtain a dangerous drug in violation of R.C. 2925.22(B)(2)(c); one count of aggravated possession of drugs in violation of R.C. 2925.11(A); and one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1). Doc. B1. These charges formed the basis of case 17-CR-0147. Doc. B1. On January 19, 2018, Bickley pled guilty to one count of tampering with evidence in case 17-CR-0146 and one count of deception to obtain a dangerous drug in case 17-CR-0147. Doc. A27, B27.

{¶4} On January 31, 2018, Bickley appeared before the trial court for sentencing. Tr. 4. At the hearing, a victim advocate read two victim impact statements. Tr. 13, 15. The first was from the mother of one of Jason's children. Tr. 13. The second statement was from Jason's mother. Tr. 15. The trial court then ordered that Bickley be placed on community control for five years for the crime of tampering with evidence in case 17-CR-0146. Doc. A33. The trial court then sentenced Bickley to six years in prison for the crime of deception to obtain a dangerous drug in case 17-CR-0147. Doc. B29. The trial court ordered that theperiod of community control was to be tolled until Bickley completed her prison term. Doc. A33.

{¶5} Appellant filed her notice of appeal on February 21, 2018. Doc. A37, B33. On appeal, Bickley raises the following assignments of error:

First Assignment of Error

The trial court erred in imposing consecutive sentences by not considering the factors as enumerated in R.C. 2929.14(C)(4).

Second Assignment of Error

The trial court erred in imposing a prison sentence to run consecutive to a community control sanction.

Third Assignment of Error

The trial court committed prejudicial error when it relied on victim impact testimony and other information in sentencing.

First Assignment of Error

{¶6} Bickley argues that the trial court erred by imposing consecutive sentences without making the statutory findings required by R.C. 2929.14(C)(4).

Legal Standard

{¶7} R.C. 2929.14(C)(4) requires trial courts to make certain statutory findings in specified situations and reads as follows:

(4) 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 that consecutive sentences are not disproportionate to the seriousness of theoffender'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 one or more of the multiple offenses 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) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses 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.

(Emphasis added.) R.C. 2929.14(C)(4). Under R.C. 2929.01(E), a

"[c]ommunity control sanction" means a sanction that is not a prison term and that is described in section 2929.15, 2929.16, 2929.17, or 2929.18 of the Revised Code or a sanction that is not a jail term and that is described in section 2929.26, 2929.27, or 2929.28 of the Revised Code.

(Emphasis added.) R.C. 2929.01(E).²

Legal Analysis

{¶8} In this case, the trial court imposed one term of community control and one prison term. The text of R.C. 2929.14(C)(4) clearly states that this provision applies to situations in which "multiple prison terms are imposed * * *." (Emphasisadded.) R.C. 2929.14(C)(4). Under R.C. 2929.01(E), a community control sanction "is not a prison term." R.C. 2929.01(E). Thus, the trial court did not impose multiple prison terms. For this reason, we find that R.C. 2929.14(C)(4) does not apply to the facts of this case. State v. Malone, 2016-Ohio-5556, 61 N.E.3d 46, ¶ 14 (3d Dist.); State v. Bates, 6th Dist. Williams No. WM-12-002, 2013-Ohio-1270, ¶ 68; State v. Tucker, 2017-Ohio-7735, 97 N.E.3d 1056 (10th Dist.). Thus, Bickley's first assignment of error is overruled.

Second Assignment of Error

{¶9} Bickley argues that community control sanctions cannot be ordered consecutively to a prison sentence.

Legal Standard

{¶10} Under the Ohio Revised Code, trial courts have broad discretion to fashion felony sentences. Malone, supra, at ¶ 11. R.C. 2929.13(A) reads as follows:

Except as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, a court that imposes a sentence upon an offender for a felony may impose any sanction or combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18 of the Revised Code.

R.C. 2929.13(A). In fashioning a sentence, the trial court is to exercise its discretion consistent with the overriding purposes of felony sentencing as set forth in R.C. 2929.11(A), which reads as follows:

A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overridingpurposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. 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.

R.C. 2929.11(A).

Legal Analysis

{¶11} This assignment of error raises an issue that is the subject of a certified conflict currently pending before the Supreme Court of Ohio. State v. Hitchcock, 152 Ohio St.3d 1045, 2018-Ohio-723, 92 N.E.3d 877. See Malone, supra, at fn. 2. This Court has previously considered this issue. Malone, supra, at ¶ 5. In Malone, the trial court sentenced the defendant to a prison term for one offense and a period of community control for another offense. Id. The trial court tolled the community control sanction until Malone was released from prison. Id. On appeal, Malone argued that the trial court impermissibly ordered him to serve these sentences consecutively. Id. at ¶ 8. This Court held the following:

there is nothing restricting the trial court's authority to order an offender to serve a period of community control sanctions after the completion of a prison term for a separate offense in R.C. 2929.15, the statute governing community control sanctions in felony sentencing.

Id. at ¶ 11. Thus, we affirmed the trial court's decision "to order the period of community control sanctions to be served consecutive to the six-month prison term." Id. at ¶ 14. The Malone decision was consistent with several other appellate districts that had considered this issue. State v. Leedy, 4th Dist. Meigs No. 13CA7, 2015-Ohio-1718, ¶ 8-9; State v. Kinder, 5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340; State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, ¶ 4.

{¶12} However, Bickley relies on a case, State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229 (8th Dist.), in which the Eighth District overturned its prior precedent and held the opposite of Malone. Anderson at ¶ 7 (reversing State v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8). Sitting en banc, the Eighth District held that trial courts only have the authority to impose sentences that are expressly authorized by statute. Id. at ¶ 6. After determining the Ohio Revised Code was silent on this matter, the Eight District concluded...