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State of Ohio v Irwin

Case No. 11 CO 7 (OH Ct. App., Dist. 7, Jun. 13, 2012)

Appellant Andrew Irwin appeals his convictions on charges of assault on a police officer and harassment with a bodily substance. The crimes occurred while he was being held in the Columbiana County Jail awaiting retrial for the murder of Emily Foreman. The offenses were fifth degree felonies. He pleaded guilty to both charges. Prior to the sentencing hearing in this case, he was convicted of the murder. A joint sentencing hearing in this case and the murder case occurred shortly thereafter. The court imposed fifteen years to life in prison on the murder conviction, and then imposed two consecutive nine-month prison terms in the instant case. The court also ordered that the sentence in this case be served consecutive to the murder sentence.

Appellant appeals the consecutive sentence imposed in the instant case. The record indicates that the consecutive sentence was warranted for a variety of reasons, including the seriousness of the crime and to deter future crime. Appellant also questions why the two sentences were not merged as allied offenses of similar import, but the crimes were committed against two different police officers. Therefore, they warranted separate punishments. Appellant further contends that he should have been given jail-time credit in this case while being held in the jail on the murder charge. A criminal defendant is not entitled to jail-time credit for confinement arising from another offense. Appellant was held in jail on a murder charge and is not entitled to any jail-time credit in this case. Finally, Appellant offered a pro se assignment of error arguing that the admission of a videotape of a subsequent incident between Appellant and corrections officers violated the rules of evidence. The videotape was admitted at the sentencing hearing. Appellant's own attorney acknowledges that the rules of evidence do not apply at sentencing and that there is no error. The judgment of the trial court is affirmed.

History



On March 19, 2010, Appellant was returned to the Columbiana County Jail to be retried for the murder of Emily Foreman in Case No. 2006-CR-303. On July 13, 2010, he assaulted Sergeant Jared Kinemond and spit on Lieutenant Pete Neiheisel while he was being held in jail. The two officers are employed by the jail. On July 21, 2010, Appellant was indicted on one count of assault, R.C. 2903.13(A), a fifth-degree felony, and one count of harassment with a bodily substance, R.C. 2921.38(A), also a fifth-degree felony. The matter was designated as Case No. 2010-CR-171.




 

 

Judge(s): Cheryl L. Waite
Jurisdiction: Ohio Court of Appeals, District 7
Court of Appeals Judge(s)
Mary DeGenaro
Gene Donofrio
Cheryl Waite

 
Appellant Lawyer(s) Appellant Law Firm(s)
Douglas King Hartford Dickey & King Co LPA

 
Appellee Lawyer(s) Appellee Law Firm(s)
Robert Herron Office of the Columbiana County Prosecutor
Ryan Weikart Office of the Columbiana County Prosecutor

 

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Click the maroon box above for a formatted PDF of the decision.
august 12, 2010 was presented, which showed appellant in a rage and taunting fifth-degree felony, and one count of harassment with a bodily substance, r.c. of emily foreman. the offenses were fifth degree felonies. he pleaded guilty to both and taunting them about the crimes he had committed a few weeks earlier in this -12- {¶17} in this case, the assault charge (r.c. 2903.13(a)) and the harassment offense. id. at ¶8-9. similar to that in state v. russell, 3d dist. no. 9-03-56, 2004-ohio-1950. in russell, consecutive to the sentence in the murder case. this appeal followed. which but for the error, the outcome of the trial would have been different.” state v. anders v. california, 386 u.s. 738, 87 s.ct. 1396, 18 l.ed.2d 493 (1967). counsel admit a videotape at the sentencing hearing that showed him threatening the police {¶3} on march 19, 2010, appellant was returned to the columbiana county arising from another offense. appellant was held in jail on a murder charge and is cook, 83 ohio st.3d 404, 425, 700 n.e.2d 570 (1998). appellant attempts to argue dated: june 13, 2012 {¶5} on december 7, 2010, appellant pleaded guilty to both charges in the {¶20} all of appellant's arguments under this assignment of error are without 1061, at syllabus. columbiana county prosecutor crime. assault and harassment with a bodily substance, to be served consecutively and that an admittedly similar event that happened four weeks after the indictment in this information may contain counts for all such offenses, but the defendant andrew g. irwin ) reviewed for abuse of discretion. state v. gratz, 7th dist. no. 08ma101, 2009-ohio- appearances: support a conviction. r.c. 2903.13(a) states: “no person shall knowingly cause or jail time credit herein. import is plain error.” state v. underwood, 124 ohio st.3d 365, 2010-ohio-1, 922 were struggling to get control over him at the jail. appellant previously pleaded guilty -10- vs. ) opinion ) was convicted and sentenced”. (emphasis added.) r.c. 2967.191 “does not entitle sentences based on the seriousness of the crimes and to deter future crime. {¶7} the record reflects that the sentence is not contrary to law. the crimes no. 07-ma-115, 2009-ohio-3334, ¶19. questions of law are reviewed de novo. prisoner was confined for any reason arising out of the offense for which the prisoner plaintiff-appellee ) incident. additionally, he committed the acts against two different victims. separate hearing that: “i swung on officer gilbert; he's the one that sprayed me. that's why i there is no error in the trial court's overall silence about the factors relied on in instant charges because he failed to sign his recognizance bond and was not any duty on the trial court to set forth its reasoning. the burden is on the defendant johnson, 7th dist. no. 04 ma 193, 2007-ohio-3332, ¶33, citing state v. garrison, around the head and neck area, and that he spit on lt. neiheisel while the officers in the court of appeals jail-time credit in his harassment case from the time of the offense until the date of and should have been merged at sentencing, but there is no merit to his argument. own recognizance. appellant refused to sign the bond. on august 12, 2010, -11- on july 21, 2010, appellant was indicted on one count of assault, r.c. 2903.13(a), a time after it had already imposed a sentence of 15-years to life for the murder. -8- murder charge. a criminal defendant is not entitled to jail-time credit for confinement [cite as state v. irwin, 2012-ohio-2720.] county jail awaiting retrial for the murder of emily foreman. he punched sgt. jared 123 ohio app.3d 11, 16, 702 n.e.2d 1222 (2d dist.1997). donofrio, j., concurs. before doing so.” state v. elmore, 122 ohio st.3d 472, 2009-ohio-3478, ¶35. judges: sentence. different officers. therefore, the sentences should not have merged. the trial court -9- feces, or another bodily substance by throwing the bodily substance at the other appellant was arraigned in this case and the court continued the recognizance bond, which are separate and apart from those on which his current sentence is based.” arbitrary or unconscionable.” state v. adams, 62 ohio st.2d 151, 157, 404 n.e.2d therefore, they warranted separate punishments. appellant further contends that he with a bodily substance charge (r.c. 2921.38(a)) rely on completely different facts to is simply presenting this pro se error to the court as a courtesy to his client. counsel himself. although counsel presents this as an anders assignment of error, he is not facility, with intent to harass, annoy, threaten, or alarm another person, shall cause or of the same or similar kind committed separately or with a separate for defendant-appellant: atty. douglas a. king convictions and sentences are permitted when there are multiple victims. state v. crimes should have merged as allied offenses of similar import. our review of this released on bond at any point during the litigation of the two charges. r.c. 2967.191 the trial court erred by admitting into evidence the of similar import, but the crimes were committed against two different police officers. consecutive nine-month prison terms. on january 25, 2011, appellant was once thereafter. the court imposed fifteen years to life in prison on the murder conviction, jail to be retried for the murder of emily foreman in case no. 2006-cr-303. on july {¶11} appellant alleges that none of the factors found in r.c. 2929.12 are sentencing. the court held that a defendant is not entitled to double-credit for jail- east palestine, ohio 44113 sentencing hearing took place. at sentencing, it was established that appellant, an defendant-appellant ) rehabilitating the offender; and making restitution. r.c. 2929.11(a). the sentence asking to withdraw as counsel as is normally the case when anders is invoked. see appellant postulates that none of seriousness factors found in r.c. 2929.12 apply to 144 (1980). him, and that some of the mitigating factors apply, which should have prevented the fifth-degree felony if committed on the grounds of a local correctional facility after the at the sentencing hearing that he would commit similar crimes in the future if has recognized that the “imposition of multiple sentences for allied offenses of similar -13- a defendant to jail-time credit for any period of incarceration which arose from facts the trial court erred by imposing consecutive found in the record. appellant is mistaken. a trial court is not limited to the specific while he was being held in the columbiana county jail awaiting retrial for the murder reversible error, however, appellant is incorrect. in the face of a silent record the trial received jail-time credit in the murder case. appellant's assignment of error is instant case. the recommended sentence in the plea agreement was for 105 south market street i'm not going to lay down.” (2/1/11 tr., p. 19.) a video from the jail recorded on {¶22} appellant was not held solely on the charges in the instant case, and ) n.e.2d 845, ¶96-102. time served for an offense he committed while already incarcerated on a different officers sprayed mace on appellant which blurred his vision. appellant then spit in state of ohio, columbiana county {¶1} appellant andrew irwin appeals his convictions on charges of assault -5- state of ohio ) case no. 11 co 7 ) court's sentencing decision will be presumed to be correct. kalish at ¶18. as we applying the factors in r.c. 2929.11, r.c. 2929.12 and any other applicable statute. sentences, as part of an overall sentence, is abuse of discretion. see, e.g., state v. an officer in the face causing a swollen lip, lacerations and scrapes on the neck and foster, 109 ohio st.3d 1, 2006-ohio-856, 845 n.e.2d 470. under the current anders assignment of error no. 1 (b) where the defendant's conduct constitutes two or more offenses of -6- incapacitating the offender; deterring the offender and others from future crime; case was issued is not relevant to sentencing, but its relevance should be self- imposing consecutive sentences; it merely took away a judge's duty to make findings than an error of law or judgment; it implies that the court's attitude is unreasonable, not entitled to any jail-time credit in this case. finally, appellant offered a pro se ohio st.3d 1, 2010-ohio-6320, 941 n.e. 2d 768. finally, appellant believes his sentencing hearing and in the sentencing judgment entry. said, ‘that's what happens when you guys do that,’ meaning when you assault me, co 22/ 2011 co 6. atty. ryan p. weikart this is a frivolous assignment of error and is therefore overruled. judgment: affirmed. factors listed in r.c. 2929.12, as the statute itself allows the trial court to consider case. the record indicates that the consecutive sentence was warranted for a variety hon. cheryl l. waite although he remained in jail awaiting his murder trial. {¶16} “when determining whether two offenses are allied offenses of similar sentencing hearing regarding the context of his various altercations with the police. the defendant was serving a prison term when he spit on a teacher in the prison and charges. prior to the sentencing hearing in this case, he was convicted of the on a police officer and harassment with a bodily substance. the crimes occurred {¶24} appellant argues that the prosecutor should not have been permitted to protect the public from future crime and to punish the offender. r.c. 2929.11(a). to of the seriousness and recidivism factors listed in r.c. 2929.12 are relevant. assignment of error no. 1 rendered unconstitutional by foster, trial courts retain the common law discretion to assignment of error arguing that the admission of a videotape of a subsequent record reveals that all of appellant's arguments are meritless. defendant has been charged with a crime, and the victim is an employee of the inquiry is whether the sentence is clearly and convincingly contrary to law, i.e., hon. gene donofrio 13, 2010, he assaulted sergeant jared kinemond and spit on lieutenant pete abuse of discretion. he maintains that the court needlessly “piled on” extra prison and then imposed two consecutive nine-month prison terms in the instant case. the prior to imposing consecutive sentences. hodge at paragraphs one, two and three of discretion to determine the most effective way to comply with the purposes and terms was justified and did not constitute an abuse of the trial court's discretion. the {¶2} appellant appeals the consecutive sentence imposed in the instant because he was actually being held on a charge of murder in another case. there is attempt to cause the other person to come into contact with blood, semen, urine, (2009), does not revive ohio's former consecutive-sentencing statutory provisions, imposing the sentence. gratz at ¶8, citing state v. kalish, 120 ohio st.3d 23, 2008- the syllabus. although the consecutive sentencing statute, r.c. 2929.14(e)(4), was was charged and convicted for harassment. he argued that he should have received appellant also questions why the two sentences were not merged as allied offenses to come forward with evidence to rebut the presumption that the trial court considered because those rules are not applicable at sentencing. all three assignments of error detail why it imposed the consecutive sentences. appellant considers this to be 91 west taggart street state v. ryan, 7th dist. no. 10-ma-173, 2012-ohio-1265, ¶44. person, by expelling the bodily substance upon the other person, or in any other the videotape was admitted at the sentencing hearing. appellant's own attorney -3- the direction of lt. pete neiheisel, hitting him on his mouth. the record describes nine month sentences for the two counts contained ¶60, citing state v. cyrus, 63 ohio st.3d 164, 166, 586 n.e.2d 94 (1992). the record kinemond in the face causing a swollen lip, lacerations and other injuries. the r.c. 2929.12 require mandatory findings by the trial court under state v. hodge, 128 {¶8} appellant argues that the imposition of consecutive sentences was an sentences herein both when it imposed consecutive creating the sentence. appellant was not owed any jail-time credit in this case johnson, 7th dist. no. 10 ma 32, 2010-ohio-6387. an abuse of discretion is “more to fifteen years to life in prison for murder, and to two nine-month prison terms for no legal basis to support the error. character of proceedings: criminal appeal from the court of was required to list or explain at least some of the factors it considered, and that this degenaro, j., concurs. law, the court must determine whether the sentencing court abused its discretion in overruled. state v. carter, 89 ohio st.3d 593, 598, 734 n.e.2d 345 (2000). “plain error is one in facility. r.c. 2903.13(c)(2)(b). all such offenses, and the defendant may be convicted of all of them. 2921.38(a), also a fifth-degree felony. the matter was designated as case no. for plaintiff-appellee: atty. robert herron waite, p.j. indicates that there is a right to jail time credit: “by the total number of days that the {¶9} appellant is correct that the trial court did not explain in any particular hearing. evid.r. 403, generally relating to relevance. appellant correctly points out that the conduct and its impact on the victim. r.c. 2929.11(b). the sentencing court has to vandalism in 2006 arising from a riot at the county jail. appellant stated at the silence constitutes reversible error. appellant also asserts that some of the factors in shall be commensurate with and not demeaning to the seriousness of the offender's by any other caselaw. the hodge case makes clear that the united states supreme 2010-cr-171. are without merit and are overruled. the judgment of the trial court is affirmed. hartford, dickey & king co., lpa 695, ¶8; state v. gray, 7th dist. no. 07ma156, 2008-ohio-6591, ¶17. the initial on a bond in this case whether or not he signed the bond. appellant's situation is impose consecutive sentences. “foster [does] not prevent the trial court from ) may be convicted of only one. sentencing that if there are no serious consequences for jailhouse assaults on police the crimes. further, appellant showed no remorse for his actions and made it clear officers committed by defendants who are serving life sentences, then there will be whether the sentencing court complied with all applicable rules and statutes in should have been given jail-time credit in this case while being held in the jail on the p.o. box 85 {¶13} appellant contends that the crimes were allied offenses of similar import rules of evidence do not apply to sentencing hearings. evid.r. 101(c)(3); state v. court's decision in oregon v. ice, 555 u.s. 160, 129 s.ct. 711, 172 l.ed.2d 517 mentioned its consideration of the purposes and principles of sentencing both at the considered.” state v. johnson, 128 ohio st.3d 153, 2010-ohio-6314, 942 n.e.2d no deterrent on these defendants from committing future assaults. the record is clearly and convincingly contrary to law, and if it is not contrary to law it is then appellant signed his recognizance bond in this case is irrelevant, because he was {¶23} appellant's counsel presents this error as a pro se error from appellant videotape identified and admitted at the sentencing but presumably it is either evid.r. 404(b) relating to other crimes or bad acts, or state v. smith, 71 ohio app.3d 302, 304, 593 n.e.2d 402 (1992). whether or not seventh district {¶25} this appeal only relates to questions about appellant’s felony sentence. history {¶18} r.c. 2921.38(a) states: “no person who is confined in a detention have previously held: “nothing in the statute or the decisions of this court imposes {¶14} r.c. 2941.25 provides: assistant prosecuting attorney consecutive sentences consecutive with the fifteen evident. it is relevant to issues such as appellant's likelihood in committing future hancock, 7th dist. no. 09-je-30, 2010-ohio-4854, ¶55. the ohio supreme court {¶15} merger of allied offenses is a question of law. state v. taylor, 7th dist. of reasons, including the seriousness of the crime and to deter future crime. being held in jail on a murder charge and would not have been eligible to be released police officers about how he assaulted them earlier. the court sentenced appellant swelling on the officer's forehead. these facts are all relevant to the seriousness of case. it is not clear which of the rules of evidence is being invoked in this argument, merit and are overruled. court from imposing consecutive sentences. appellant contends that the trial court incident between appellant and corrections officers violated the rules of evidence. intravenous drug user, punched sgt. kinemond in the head and scratched him animus as to each, the indictment or information may contain counts for court also ordered that the sentence in this case be served consecutive to the murder each, and the court imposed less than the maximum possible sentence for each lisbon, ohio 44432 sentencing.” r.c. 2929.12(a). the purposes and principles of sentences are to no error. the judgment of the trial court is affirmed. is not completely silent with respect to the sentencing statutes because the court import subject to merger under r.c. 2941.25, the conduct of the accused must be {¶10} additionally, there is no fact-finding requirement imposed by hodge or assignment of error no. 2 conclusion thus, was not entitled to jail-time credit in this case. the record indicates that he acknowledges that he himself would not have argued it, knowing full well that there is manner.” no merit to the argument that the rules of evidence were not followed at sentencing {¶6} we review felony sentences to determine whether the sentence is again convicted of the murder of emily foreman. on february 1, 2011, a joint statutory scheme, trial court judges are not obligated to engage in judicial fact-finding {¶4} on july 22, 2010, the trial court set appellant's bond at $5,000 on his appellant did not raise this issue at trial. hence, it is reviewed only for plain error. the sentencing criteria.” state v. gant, 7th dist. no. 04 ma 252, 2006-ohio-1469, principles of sentencing set forth in section 2929.11 and shall consider whether any -4- (a) where the same conduct by defendant can be construed to -7- neiheisel while he was being held in jail. the two officers are employed by the jail. in this case were fifth degree felonies punishable by up to twelve months in prison crimes at issue in this case occurred. the prosecutor made a very good point at replete with evidence supporting the trial court's decision to impose consecutive ohio {¶21} appellant contends that jail-time credit should have been applied to the dissimilar import, or where his conduct results in two or more offenses “any other factors that are relevant to achieving the purposes and principles of acknowledges that the rules of evidence do not apply at sentencing and that there is achieve these purposes, the sentencing court shall consider the need for: {¶19} this record indicates that appellant was being held at the columbiana constitute two or more allied offenses of similar import, the indictment or crimes were not allied offenses primarily because they were committed against two attempt to cause physical harm to another or to another's unborn.” the crime is a gratz at ¶8, citing kalish at ¶17. r.c. 2929.14(e)(4) and 2929.41(a), which were held unconstitutional in state v. -2- [cite as state v. irwin, 2012-ohio-2720.] case no. 2010 cr 171 appellant is aware that the standard of review of the imposition of consecutive provoked. appellant was involved in similar incidents both before and after the hon. mary degenaro {¶12} the record indicates that appellant was in jail on a murder charge when common pleas of columbiana county, n.e.2d 923, ¶31, citing state v. yarbrough, 104 ohio st.3d 1, 2004-ohio-6087, 817 to life indefinite sentence imposed in 2006 cr 303/ 2007 two completely different actions by appellant separated in time by the macing was not required to make any specific findings during the sentencing phase and murder. a joint sentencing hearing in this case and the murder case occurred shortly within 2011 cr 171 and when it imposed those the record demonstrates that the sentence of two consecutive nine-month prison the crimes occurred. the crimes occurred against corrections officers. appellant hit ohio-4912, 896 n.e.2d 124, ¶13-14. if it is not clearly and convincingly contrary to the trial court erred in denying defendant/appellant crimes, his remorse or the lack thereof, and to rebut appellant's own words at the


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