State v. Polhamus , 2014 Ohio 145 ( 2014 )

[Cite as State v. Polhamus, 2014-Ohio-145.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
: Appellate Case No. 2013-CA-3
Plaintiff-Appellee :
: Trial Court Case No. 12-CR-201
v. :
:
CLIFFORD A. POLHAMUS, JR. : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 17th day of January, 2014.
...........
ANTHONY E. KENDELL, Atty. Reg. #0067242, and ROBERT E. LONG, III, Atty. Reg.
#0066796, Miami County Prosecuting Attorney’s Office, 201 West Main Street, Safety Building,
Troy, Ohio 45373
Attorney for Plaintiff-Appellee
CARL BRYAN, Atty. Reg. #0086838, 266 Xenia Avenue, #225, Yellow Springs, Ohio 45387
Attorney for Defendant-Appellant
..........
HALL, J.
{¶ 1} Clifford A. Polhamus appeals from his January 4, 2013 judgment entry of
conviction on two fourth-degree felony counts of receiving stolen property–a semi truck and a
2
motorcycle–in violation of R.C. 2913.51(A). After a bench trial, the trial court sentenced
Polhamus to a 17-month prison term on each count and ordered that they be served
consecutively.1 We affirm.
I. The Evidence
{¶ 2} At trial, Sergeant Lee McCartney of the Miami County Sheriff’s Office testified
that, on April 18, 2012, he and other officers executed a search warrant at Polhamus’ home at
5345 East U.S. 36, in Miami County, looking for a stolen semi truck:
Q. * * * All right. What did you do, what was your part in that?
A. My main responsibility was to help identify the reported stolen truck
out of the State of Texas.
Q. Okay and could you see that from the road?
A. I could not positively identify it from the road, but it matched the
description. I could not positively i.d. the truck until I was actually in contact with
it.
Q. Okay, but the search warrant was issued on that?
A. That’s correct.
Q. * * * So you went in; what happened?
A. Once we were on scene, I immediately went up to the truck. The
physical identifiers matched which made me proceed on at that point to see if I
could find the VIN number from the manufacturer on the truck, which I was able
1
The trial court also found Polhamus not guilty of having a weapon while under
disability.
3
to find on the left frame rail.
Q. * * * And then once you established that, what did you do with that
information or what was done with that information?
A. The [VIN] number was called into our dispatch to verify if it was the
stolen truck, and we received confirmation back that it was.
{¶ 3} McCartney stated that he searched the truck. There was “a lot of personal
property inside the truck, a lot of clothing. But inside the glove box in particular there was two
log books that were filled out by the operator which showed signatures by Clifford Polhamus.”
McCartney said that there also were “several legal documents in there as far as vehicle
inspections, vehicle registration, those type of things inside the glove box. Also in there, there
was lots of miscellaneous pieces of papers and some like membership type cards and stuff that
also had [Polhamus’] information on it.” McCartney identified items retrieved from the truck,
including the log books. He stated that the last entry in one log book is dated March 31, 2012,
and is signed by Polhamus as the driver, and that the last entry in the second log book is dated
April 4, 2012, and is also signed by Polhamus as the driver.
{¶ 4} On cross-examination, Sergeant McCartney testified as follows:
Q. And to whom was–you said it was reported stolen * * * to whom was
the title issued, do you know?
A. My understanding the–the vehicle was forfeited to the Sheriff’s Office
in Texas, but as far as who the title was made out to, I’m not sure.
Q. Did you ever see any title, registration to that vehicle?
4
A. No sir.
{¶ 5} Detective John Bailey of the Comal County, Texas, Sheriff’s Office testified that
he became familiar with Polhamus when Polhamus “attended a [forfeiture] hearing that I had in
Comal County in reference to a Peter Built [sic] truck/tractor that I had seized.” According to
Bailey, he “seized the truck/tractor and a Great Dane semi trailer at the same time, because they
were attached. I seized both of them because of [sic] the vin numbers had been changed on both
of them.” Bailey identified a copy of a May 7, 2012 Texas Certificate of Title for a “1998 Peter
Built [sic] truck tractor” in the name of the Comal County Sheriff’s Office. He identified a court
order issued after the forfeiture hearing, and he stated that “it shows that on August 25th of 2011
that Judge rewarded [sic] the Peter Built [sic] truck tractor to the Comal County Sheriff’s
Office.”
{¶ 6} Bailey stated that the truck was kept in an impound lot after he seized it, and that
prior to the forfeiture hearing, on the first weekend in August 2011, the truck was stolen from the
lot. He testified that video surveillance of the lot shows that two people approached the gates and
opened one of the gates “a little bit.” One person then entered the lot, got into the truck, and
drove it out, after the other person had “pushed the gates open.” Bailey then testified that he
learned the truck had been found in Ohio:
Q. * * * At some point in time in April, were you contacted by the Miami
County Sheriff’s Office?
A. April of this year, yes, sir.
Q. * * * And did they give you a VIN number on a truck that they noticed
at the defendant’s house?
5
A. No. Initially they–when they contacted me, they asked for some more
details, and then I sent them copies of my report with the VIN number on it * * *
***
A. –and pictures of the truck.
Q. And it was confirmed that way?
Q. Yes sir.
{¶ 7} On cross-examination, Detective Bailey stated that the VIN number on the truck
came back to “somewhere up north” and that there was no response to his attempts by regular
and certified mail to reach the registered owner. Bailey stated that the events giving rise to the
forfeiture of the truck began when he initiated a traffic stop on it at a truck stop in New
Braunfels, Texas, in July 2011. According to Bailey, he approached the truck from the rear and
ran the license plate on the trailer, which was registered to “a 1985 48 foot Monon semi trailer.”
“I could tell this was not a Monon trailer,” Bailey testified, “and I could tell it wasn’t 48 foot
long. So I waited till it pulled away from the–the gas pumps, and then I stopped it in a different
part of the parking lot, before it got on the highway.” During the stop, Bailey also ran the license
plate of the truck and “didn’t find a stolen report on it.” He stated that the driver of the truck was
Mr. Ellis, who had a valid Florida driver’s license. Bailey stated that he had Ellis “drive the truck
and trailer from the truck stop to my impound lot.” According to Bailey, Ellis said that he worked
for C & P Transportation. Bailey stated that he asked Ellis who owned the truck, and Ellis said “it
was–he said his boss’ name was–I think he said Dee Polhamus.” Bailey stated that he asked Ellis
“to try to contact her where I could get copies of the paperwork showing where they had gotten
the truck and trailer.” Ellis reached Delana Polhamus, Polhamus’ wife, and Bailey asked her to
6
fax him paperwork for the truck and trailer “to show wherever they had gotten [them].” But
Bailey “never received anything.”
{¶ 8} Detective Bailey testified that he had no information indicating that Polhamus
was involved in the theft of the truck from the impound lot. And Bailey testified that he does not
know the identity of the people who took the truck from the lot. He stated that at the time of the
forfeiture hearing, he was unaware of the truck’s whereabouts.
{¶ 9} Bailey also testified about the title to the truck:
Q. Now the date the title issued here says May 7th of 2012?
A. Yes sir.
Q. When did that happen?
A. That happened after we were notified of the recovery of the vehicle.
Q. * * * So when does this vehicle become a part of this title? In May of
2012, even though the hearing was in August of 2011?
A. It was awarded to the Sheriff’s Office in August of 2011. This is the
form that we turn into [sic] the State of Texas to get a title.
A. And there’s another form that we turn into [sic] the State * * * to
reassign VIN number.
***
A. And * * * that whole thing is turned into [sic] the State–
***
A. –before the title is issued. Whenever we had it awarded to us, we didn’t
have possession of the truck, so we didn’t transfer the title until it was recovered.
[Cite as State v. Polhamus, 2014-Ohio-145.]
{¶ 10} On re-direct examination, Bailey stated that he impounded the truck pursuant to
Texas Transportation Code Section 501.158. He stated that the statute provides that “a peace
officer may seize a vehicle or vehicle part, without a warrant, if he has probable cause to believe
that the vehicle is stolen or has had a serial number removed, altered or obliterated. And it also
says that the vehicle or vehicle part may be treated as stolen property for the purposes of custody
and disposition.” Bailey stated that VIN numbers on both the truck and trailer had been altered2
and that the truck and trailer each had more than one VIN number. He stated that he removed the
fictitious numbers. At the forfeiture hearing, said Bailey, Polhamus asserted ownership of the
truck and stated that “he built the truck.” Bailey testified that he did a complete inspection of the
vehicle, and that it is a “1998 Peter Built” [sic]. But he stated that the “VIN and the title they
were using on it at the time I seized it was for a 1990 Peter Built” [sic].
{¶ 11} Detective Sergeant Jason Moore of the Miami County Sheriff’s Office testified
that he was involved in the execution of the search warrant on Polhamus’ home. He stated that
“[i]nitially the search warrant was to examine a truck that was located on the property.”
According to Moore, “[o]nce that search warrant was done, evidence was recovered. Deputy
Waymire developed probable cause to petition the Court for a secondary warrant, which was to
include out buildings and the residence.” Sergeant McCartney testified that in one of those
buildings they found a stolen motorcycle:
Q. Okay let’s talk about the motorcycle for a while. Where * * * did you
find that at?
2
There was questioning at trial suggesting that Texas law and Ohio law differed on the subject. Not so. Ohio law too makes it a
felony to “remove, deface, cover, alter, or destroy any vehicle identification number.” R.C. 4549.62(A). Likewise, under Ohio law a vehicle
whose VIN “has been so removed, defaced, covered, altered, or destroyed shall be seized and forfeited * * *.” R.C. 4549.62(D)(2)(a).
8
A. It was in the small garage closest to the residence.
Q. * * * [A]nd did you check the VIN on that?
A. Yes sir.
Q. All right, and did you run it? Or was it run?
A. I did not personally. Yes but it was run.
Q. Okay and what did it come back?
A. It come back stolen out of the–Troy.
Q. * * * And how long ago?
A. I believe it was in the year 2000.
Q. * * * [A]nd what type of motorcycle is it?
A. It’s a 1973 Harley Davidson.
Q. What particular model?
A. I don’t recall the model.
Q. * * * I’m going to hand you what’s been marked as State’s Exhibit 7 as
well. See if you recognize that.
A. Yes that’s going to be the registration that was attached to the
motorcycle.
Q. Okay and it came back stolen?
A. The license plate came back to a–I believe it was 1966 Harley
Davidson.
Q. Registered in who’s name?
A. Delana Polhamus.
9
Q. Okay so it was fictitious plates?
A. Yes sir.
McCartney testified on cross examination about when it was stolen:
Q. And you determined that–you or someone determined that this
motorcycle was * * * involved in an investigation back in 2000, wasn’t it?
A. Yeah, through NICB’s records, it showed it was taken in 2000.
{¶ 12} Tony Cotrell testified that he was contacted by the Miami County Sheriff’s
Office to identify a 1973 Harley Davidson motorcycle. He said that a 1973 Harley had been
stolen from him “eleven/twelve years ago.” Cotrell identified the motorcycle as his using the VIN
number and said that the bike was in the same condition that it was in when it was stolen. Cotrell
then testified about the circumstances surrounding the theft and about Polhamus:
Q. * * * Let’s go back to the night that it was taken. * * * You were
talking to me about that a little bit earlier. What transpired that night before it
came up missing?
A. I was on probation and–
Q. What were you on probation for?
A. Alcohol.
***
Q. Misdemeanor?
A. Yes sir.
***
A. And the next thing I know I was sitting at home and the Troy Police
10
knocked on my door and asked me if I had been shooting a gun. And I, I told them
no I don’t even own a gun, and I was drinking then at the time, and they arrested
me and–
Q. Violating probation?
A. Yes sir.
Q. * * * Now are you familiar with Clifford Polhamus?
A. No I’m not. I’m–I’ve only seen Clifford one time.
Q. And when did you see him?
A. It’s–it was probably thirteen years ago or better.
Q. Okay and where was he at at the time?
A. At Stan Scott’s garage.
Q. * * * Was there anybody–as you were being arrested, was there
anybody in the area that you noticed?
A. Mr. Scott’s pickup was sitting in the Ernst’s Gravel Pit lot.
***
A. And there was several people with him. But when they arrested me, I–I
told the city police that when they arrested me that somebody would be breaking
in my garage, you know, and it was probably an hour or so after that Sheila, my
girlfriend right now, went and checked and my motorcycle and stuff had been
stolen out of my garage.
Q. Okay did you recognize anybody else in Scott’s truck?
A. It was dark, I really couldn’t say, but I just know there was three or four
11
people with him.
Q. * * * And have you seen that motorcycle since that day before the
Sheriff’s Office called you?
A. Yes sir I did. I had seen Clifford riding it.
Q. Okay, when?
A. This has been six years ago or better.
Q. Okay and did you report it?
A. Yes sir I did.
Q. Who did you report it to?
A. The Sheriff’s Department.
Q. Okay anything come out of that?
A. No sir.
Q. How did you know it was your bike?
A. It just–it just looked like my bike, you know, and–
***
A. My dad bought that motorcycle and–
Q. What year and, particular model was it?
A. It was a ‘73 FLH.
Q. What’s FLH?
A. It’s the model number of it–it’s the full dresser style motorcycle.
{¶ 13} On cross-examination, Cotrell testified that around the time of the theft the bike
did not need repairs:
12
Q. Did you wreck your vehicle anytime around then?
A. Did I what?
Q. Did you wreck it? This motorcycle?
A. No.
Q. Did you ever have a need to have it repaired?
A. No sir.
II. Sentencing
{¶ 14} In sentencing Polhamus, the trial court said the following:
In determining the sentence, the Court has considered the Pre-Sentence
Investigation Report that was done, the statement of the defendant’s counsel and
also the statement of the Assistant Prosecuting Attorney. The Court has also
considered the purposes and principles of the sentencing statute, which would
include the recidivism factors which include the defendant’s history of criminal
convictions and his failure to respond favorably to sanctions for criminal conduct
and the defendant’s absence of remorse for his conduct. The Court has also
considered the seriousness factors and also the sentencing factors for felonies of
the fourth degree, and those would include that the defendant has a prior
conviction for causing physical harm to a person and also he has previously served
time in prison.
The Court also finds that of note in the defendant’s prior conviction was
the–I think–let me make sure I get it right–he has a prior conviction in 2004 for
Engaging in a Pattern of Corrupt Activity that dealt with the theft of semis from
13
that time. And that’s particularly troublesome to the Court since Mr. Polhamus
stole a semi that was under the control of Texas authorities and it had been–and it
was stolen from a locked facility.
So it’s the judgment of the court, that [sic] and the Court finds that
consecutive sentences are necessary to protect the public from future crime, and to
punish the defendant, and that a consecutive sentence is not disproportionate to
the seriousness of the Defendant’s conduct, and the defendant’s history of criminal
conduct shows that a consecutive sentence is necessary to protect the public from
future crime by the defendant. * * *
III. Analysis
{¶ 15} Polhamus asserts four assignments of error herein.
A. The First Assignment of Error
APPELLANT’S TWO CONVICTIONS FOR RECEIVING STOLEN
PROPERTY WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 16} Concerning review of a manifest-weight challenge, this court has said:
“[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is
more believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525, 2009 WL 282079, ¶ 12. See Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“manifest weight of the evidence”
refers to a greater amount of credible evidence and relates to persuasion”). When
14
evaluating whether a conviction is contrary to the manifest weight of the evidence,
the appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684 (Aug. 22, 1997). However, we may determine which of several competing
inferences suggested by the evidence should be preferred. Id. The fact that the
evidence is subject to different interpretations does not render the conviction
against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of
conviction should be reversed as being against the manifest weight of the evidence
only in exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485 N.E.2d
717.
State v. Hudson, 2d Dist. Clark No. 2011 CA 100, 2013-Ohio-2351, ¶ 40-41.
{¶ 17} Polhamus was found guilty of receiving stolen property–the semi truck and the
motorcycle–under R.C. 2913.51(A), which provides that “[n]o person shall receive, retain, or
dispose of property of another knowing or having reasonable cause to believe that the property
15
has been obtained through commission of a theft offense.” Regarding the truck, Polhamus makes
the following argument:
The evidence pointed to Appellant’s wife, Delana Polhamus as the rightful
owner of the truck: 1) the registration was in her name; 2) the truck had not been
reported stolen; 3) the driver of the truck, Mr. Ellis, was never detained or accused
of wrongdoing; 4) Mr. Ellis indicated [Delana Polhamus] was the owner; and 5)
Appellant appeared, presumably on his wife’s behalf and without being accused of
any wrongdoing, in front of the Texas Justice of the Peace in order to claim the
vehicle. In short, the Appellant and his wife exhibited several incidents of
ownership. Appellant was justified in his belief that he was in lawful possession of
the vehicle.
By contrast, when the Miami County Sheriff checked the VIN against his
data base that on April 18, 2012 [sic] but at trial could not recall to whom it came
back. It certainly was not Comal County, because Comal County had to grant
themselves title some three weeks later, on May 7, 2012. Comal County was not
even in possession of the truck at the time it “awarded” itself the property but
without receiving title. Appellant believes a detailed exposition of Texas forfeiture
law is unnecessary here. Nevertheless, he wishes to point out that no provision of
Texas law was ever cited. Even more critically, whatever form or order ostensibly
awarding the property to Comal County had no VIN, which is the sin qua non of
vehicle identification as it relates to ownership. The VIN is coterminous with title;
one cannot obtain legal title without a VIN. From Appellant’s standpoint, Comal
16
County is operating on a theory that it can take whatever property it wishes and
make it theirs, even after the fact.
(Brief of Appellant at 8-9, emphasis sic).
{¶ 18} Detective Bailey testified that he initiated a traffic stop of the truck in July 2011,
after discovering that the trailer did not match the trailer to which the license plate was registered.
Upon further investigation, Bailey learned that the VIN numbers on both the trailer and truck had
been altered. Bailey spoke to Polhamus’ wife on the phone, and she failed to produce the
documents he requested regarding ownership of the truck. So pursuant to Texas Transportation
Code Section 501.158,3 he seized the truck and trailer. While the truck was in the impound lot
awaiting disposition, it was stolen. Contrary to Polhamus’ assertion, Comal County did not
“grant themselves title,” but rather a forfeiture hearing was held, see Tex.Crim.Proc.Code Ann.
47.01. Although Polhamus attended the hearing and asserted ownership of the truck, on August
25, 2011, the justice of the peace ordered the truck forfeited to the county.4 Eight months later,
3
This section provides:
(a) A peace officer may seize a vehicle or part of a vehicle without a
warrant if the officer has probable cause to believe that the vehicle or part:
(1) is stolen; or
(2) has had the serial number removed, altered, or obliterated.
(b) A vehicle or part seized under this section may be treated as stolen
property for purposes of custody and disposition of the vehicle or part.
Tex. Transportation Code Ann. 501.158.
4
State’s exhibit 9, identified as a “certified copy of the Court Order that was issued at the end of the forfeiture hearing” (Trial
transcript 21) also indicates that Detective Bailey seized the vehicle on July 5, 2011 because it had a “removed, altered, or obliterated number
in violation of Chapter 501 of the Texas Transportation Code.” It also contains a Justice of the Peace Order dated “7-15-11” requiring that the
17
on April 18, 2012, Sergeant McCartney and other officers recovered the truck from Polhamus’
property. The log books in the truck indicated that Polhamus had been driving the truck as late as
April 4, 2012. Bailey testified that upon recovery of the truck he requested and received a
reassigned VIN number as well as a certificate of title for the truck.
{¶ 19} We note that no proof of title to the truck was necessary to find that Polhamus
received stolen property. In State v. Rhodes, 2 Ohio St.3d 74, 442 N.E.2d 1299 (1982), a theft of
a motor vehicle case, the Supreme Court held that “[f]or purposes of determining the commission
of a theft offense under R.C. 2913.02, one need not hold a certificate of title to be in lawful
possession of a motor vehicle. * * * The important question is not whether the person from
whom the property was stolen was the actual owner, but rather whether the defendant had any
lawful right to possession.” Rhodes at 76. Even before Rhodes, we had held that the same concept
applies to a charge of receiving stolen property. “All that is necessary in a case such as this one
[receiving two stolen motorcycles] with respect to the element ‘property of another,’ which is
analogous to a larceny case in this regard, is evidence of a wrongful taking from the Possession of
another because the exact state of the title of the stolen property on the date of the crime is of no
concern to the thief except that it must have been in someone else. Particular ownership is not
vital as to the thief.” (Citation omitted.) State v. Emmons, 57 Ohio App.2d 173, 177, 386 N.E.2d
838 (2d Dist.1978). Here there is more than ample evidence that the semi truck was in the
rightful possession of the Texas authorities when it was stolen from their impound lot.
{¶ 20} Regarding the truck, having thoroughly reviewed the entire record, we conclude
that Polhamus’ conviction for receiving stolen property is not against the manifest weight of the
property be held by the sheriff’s office pending a determination of the rightful owner.
18
evidence. In other words, since Polhamus retained the truck, knowing or having reasonable cause
to believe that it had been obtained through the commission of a theft offense, exceptional
circumstances requiring reversal of Polhamus’ conviction are not demonstrated.
{¶ 21} As to the motorcycle, Polhamus argues as follows:
The court relied on the testimony of Mr. Cotrell, who says the bike was his
“eleven/twelve” years ago. He has a history of drinking and trouble with the law.
He said he was not familiar with Appellant, yet claims he saw him riding what
“looked” like his bike. Appellant argues these extant uncertainties compound one
another, calling into question whether Mr. Cotrell’s testimony was probative
whatsoever.
Indeed, the bike was found on property owned by Appellant’s wife, but
there is a simple explanation: Mr. Cotrell wrecked his bike, had Appellant work
on the bike, and never paid for the work. Mr. Cotrell testified (at first, anyhow)
that he had seen Appellant just once before, at Stan Scott’s garage some thirteen
years ago. Mr. Scott’s garage presumably refers to a place where motorcycle
repairs take place. Given the weaknesses in Mr. Cotrell’s testimony, and given
Appellant’s line of questioning as to the historical disposition of the bike, it
cannot be said that the offense has been proven beyond a reasonable doubt.
{¶ 22} We initially note that Polhamus ignores Sergeant McCartney’s testimony that he
ascertained, pursuant to the VIN number on the 1973 Harley Davidson, that it had been reported
stolen in Troy, Ohio, in 2000, and that the motorcycle bore fictitious license plates. The
motorcycle, like the truck, was found on Polhamus’ property. Cotrell testified that when he
19
identified the bike it was in the same condition as when it was taken from him. He stated that he
had observed Polhamus riding the motorcycle six years ago and had reported his observation to
authorities. Contrary to Polhamus’ assertions, Cotrell testified that he did not wreck the
motorcycle or have occasion to have it repaired.
{¶ 23} Regarding the motorcycle, again, having thoroughly reviewed the entire record,
we cannot conclude that the trier of fact lost its way in finding Polhamus guilty of receiving
stolen property. He retained the motorcycle knowing or having reasonable cause to believe that it
had been obtained through the commission of a theft offense. Since Polhamus’ convictions are
not against the manifest weight of the evidence, his first assigned error is overruled.
B. The Second Assignment of Error
WHEN THE TRIAL COURT OPTED TO MAKE SPECIFIC FACTUAL
FINDINGS TO JUSTIFY IMPOSING CONSECUTIVE SENTENCES, AND
THOSE FINDINGS WERE ERRONEOUS, THE RESULTING SENTENCE
WAS CONTRARY TO LAW AND AN ABUSE OF DISCRETION.
{¶ 24} Polhamus asserts that his “sentence was contrary to law because the court failed
to make the necessary findings, instead justifying the imposition of consecutive terms on specific
findings based on false assumptions and misinformation.” Polhamus asserts that the court
specifically failed to find that “consecutive sentences are not disproportionate * * * to the danger
the offender poses to the public.” And he asserts that “more critical were the findings the court
opted to make, but which it was not obligated to make.” (Emphasis sic). Polhamus cites the trial
court’s finding that his 2004 conviction for engaging in a pattern of corrupt activity is
“particularly troublesome to the Court since Mr. Polhamus stole a semi that was under the control
20
of Texas authorities and it had been–and it was stolen from a locked facility.” Polhamus asserts
that this “finding [that he stole the semi truck] was false; it had no basis in the record. Appellant
was never charged with, much less convicted of stealing anything. He was never even suspected
of having anything to do with the incident leading to Comal County’s loss of possession of the
truck.” Polhamus asserts that he is “entitled to relief under R.C. 2953.08.” Finally, Polhamus
asserts that the trial court abused its discretion in imposing consecutive sentences.
{¶ 25} The State responds that “the trial court did not state that the Appellant had stolen
the semi from a locked facility in Texas. Rather the trial court indicated that the Appellant stole a
semi that was under the control of Texas authorities, and that this semi had been stolen from a
locked facility.” The State further asserts that receiving stolen property is a theft offense, pursuant
to R.C. 2913.01(K)(1), and since “to steal or commit a theft are synonymous terms, then by
committing the Theft offense of Receiving Stolen Property, the Appellant stole a semi that was
under the control of Texas authorities.” Finally, the State asserts that the “record before the trial
court supported its findings for consecutive sentences.”
{¶ 26} Pursuant to Am.Sub.H.B. No. 86 (H.B. 86), in a sentencing on or after the
effective date of September 30, 2011, the revived and recodified version of R.C. 2929.14(C)(4) is
in effect. State v. Nichols, 2d Dist. Clark No. 2012 CA 38, 2013-Ohio-3285, ¶ 9. R.C.
2929.14(C)(4) requires a trial court to make certain findings before imposing consecutive
sentences:
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
21
the public from future crime or to punish the offender and that 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 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.
{¶ 27} R.C. 2953.08, which governs the appellate review of felony sentences, provides:
The court hearing an appeal under division (A), (B), or (C) of this section shall
review the record, including the findings underlying the sentence or modification
given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is
22
appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court’s standard for review is
not whether the sentencing court abused its discretion. The appellate court may
take any action authorized by this division if it clearly and convincingly finds
either of the following:
(a) That the record does not support the sentencing court's findings under
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, whichever, if any,
is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2). “When a statute directs a court to make findings before imposing a
particular sentence, a failure to make those findings is ‘contrary to law.’” State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453, ¶ 12 (8th Dist.), citing State v. Jones, 93 Ohio St.3d 391, 399,
754 N.E.2d 1252 (2001). See also State v. Goodspeed, 2d Dist. Montgomery No. 19979,
2004-Ohio-1819, ¶ 41 (construing the findings requirement in former R.C. 2929.14(B)(2), and
noting that “[u]nlike many other procedural requirements, the findings * * * regimen does not
readily lend itself to a substantial compliance alternative”); State v. Castle, 2d Dist. Champaign
No. 02CA09, 2003-Ohio-45, ¶ 37 (construing the findings requirement in former R.C.
2929.14(E)(4), and saying that the court was not obligated to mimic the exact language of the
statute, “although that is probably the better practice,” adding that “[n]evertheless, the ‘not
disproportionate’ finding required by R.C. 2929.14(E)(4) * * * must clearly be expressed on the
record”). However, despite the Eighth District’s strong language in Venes that separate and
23
distinct statutory findings were necessary, the district has continued to interpret statements by
the trial court that do not precisely track the statutory language as being sufficient to impose
consecutive sentences. See e.g. State v. Carman, 8th Dist. Cuyahoga No. 99463, 2013-Ohio-4910(finding that “consecutive sentences are not disproportionate to the seriousness of your conduct,”
and that “it is reprehensible conduct, and its not disproportionate to order that you serve these
terms consecutively,” coupled with an additional finding that “consecutive sentences are
necessary to protect the public,” was sufficient to satisfy R.C. 2929.14 (C)(4) even though the
decision fails to expressly reveal that the trial court said consecutive sentences were not
disproportionate to the danger the offender posed to the public). See also State v. Wright, 8th
Dist. Cuyahoga No. 98901, 2013-Ohio-3132, ¶ 7.
{¶ 28} Here the trial court stated “that consecutive sentences are necessary to protect the
public from future crime, and that a consecutive sentence is not disproportionate to the
seriousness of the Defendant’s conduct * * *.” This statement mirrors the language in R.C.
2929.14(C)(4). Admittedly, the court did not recite the next phrase in the statute, “and to the
danger the offender poses to the public.” But the court did state that “the defendant’s history of
criminal conduct shows that a consecutive sentence is necessary to protect the public from future
crime by the defendant,” mirroring the language in R.C. 2929.14(C)(4)(c). Moreover the court
recognized that Polhamus had “a prior conviction in 2004 for Engaging in a Pattern of Corrupt
activity that dealt with the theft of semis from that time.”5 From the statements made in the
context of this record, we conclude that the trial court found that consecutive sentences are not
5
The pre-sentence investigation report that the trial court reviewed is part of our
record. It reveals that Miami County deputies were contacted about thefts of semi trucks
from Sharonville, Ohio, and Hamilton, Ohio. “Seven different vehicles, semi’s, tractors,
24
disproportionate to the danger Polhamus poses to the public.
and trailers were seized” from Polhamus’ property as the result of a search warrant.
[Cite as State v. Polhamus, 2014-Ohio-145.]
{¶ 29} Finding that consecutive sentences are necessary to protect the public when it is
apparent that the court has also considered the proportionality of the sentence to the conduct is
virtually the same as finding that consecutive sentences are not disproportionate to the danger the
offender poses to the public. Prior to the elimination of the former, identical statutory findings
requirement for consecutive sentences, 6 we discussed a trial court’s omission of the exact
statutory phrase in State v. McNichols, 2d Dist. Greene No. 2004 CA 62, 2005-Ohio-1933. In
McNichols, while the omission was not assigned as error, so our discussion of the issue was
dicta, we commented that although the trial court “did not expressly find that consecutive
sentences were not disproportionate to the danger McNichols posed to the public, such a finding
can be readily inferred from the court’s remarks at sentencing * * *.” McNichols at ¶ 31. The trial
court’s remarks in McNichols were no more or less extensive than what the trial court here said
about Polhamus.
{¶ 30} If we require the trial court to say more than was said in this case, we are
effectively requiring courts to follow precisely the language of the statute or, worse yet, simply to
read the statutory language into the record merely to satisfy the statutory consecutive-sentences
requirement. The focus should be on whether the trial court performed the required analysis and
made appropriate conclusions, not on whether it can read the statute into the record. We believe
the trial court made sufficient findings to satisfy the statutory requirements to impose consecutive
sentences.
{¶ 31} With regard to the trial court’s statement that Polhamus “stole a semi,” we
disagree with the State’s argument that because receiving stolen property comes under the
6
Former R.C. 2929.14(E)(4), which required findings identical to the current R.C. 2929.14(C)(4) for consecutive sentences, was
held unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
26
definition of a theft offense the terms are synonymous, making the trial court’s statement
accurate. However, we also disagree with Polhamus’ argument that the record contains no
information “that appellant had any involvement” in the removal of the truck from a locked
facility in Texas. (Appellant’s brief, 14). There was no objection to the statement, and we
conclude, under Crim.R. 52(B), that it does not amount to plain error and that we should not
recognize it.
{¶ 32} Plain error is recognized where, but for the error, the result of the trial would
clearly have been otherwise. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
two of the syllabus. An appellate court should exercise the “utmost caution” when taking notice
of plain error and should do so only “under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
{¶ 33} At sentencing, the trial court said that Polhamus had “a prior conviction in 2004
for Engaging in a Pattern of Corrupt activity that dealt with the theft of semis from that time.”
(Sentencing Tr. 6). The court continued, “And that’s particularly troublesome to the Court since
Mr. Polhamus stole a semi that was under the control of Texas authorities and it had been–and it
was stolen from a locked facility.” Id. Actually, Polhamus was convicted of receiving the semi as
stolen property, stolen from the impound lot of the Comal County, Texas, sheriff’s office. In our
view, the statement that the defendant “stole” the semi was most likely a misspeak or verbal slip
by the trial court. But even if it was an intentional statement, it had no bearing on the outcome.
{¶ 34} In our view there was no objection because it was clear that an objection would
not make any difference in the outcome. This case was tried to the court, and the trial judge
specifically found Polhamus guilty of receiving stolen property, not theft. The same judge
27
sentenced Polhamus, so the judge must have been fully aware of the specific charge and of his
own specific finding that “the defendant is guilty as charged in Count 2 of the Indictment for the
offense of Receiving Stolen Property [the semi] * * *.” (Decision of the Trial Court, 2).
{¶ 35} Moreover, the evidence presented at trial and in the record established that the
truck was stopped in Texas in July 2011, and it was discovered that the VIN “had been changed,”
making the truck subject to confiscation. Polhamus’ wife failed to provide evidence of
ownership, so the truck was confiscated. Several weeks later, the truck was stolen from the Texas
impound lot. In August 2011, a forfeiture hearing for the truck was held in Texas. Polhamus
attended and testified that he built the truck. In April 2012, Polhamus was found in possession of
the truck and of log books indicating that he had been driving it. Polhamus did not testify at trial,
but he did make a statement for the pre-sentence investigation report (PSI): “The Truck I went &
picked it up, no one was doing anything with it, I wasn’t going to let it sit at the truck stop. At the
time, Texas was not awarded it.” (PSI, 4). The PSI also reveals that Polhamus’ wife, Delena,
when asked by Sergeant McCartney whether one of Polhamus’ friends helped him get the truck,
said that it was probably one of his friends from Florida, but she did not know who. (Id. at 18).
The accumulation of these facts, in our view, is adequate to conclude that Polhamus was
probably complicit in the removal of the truck, so much so that the theft/receiving misstatement
would not make any difference in the result.7 Had there been an objection, the trial court would
7
“[A] trial court may rely on ‘a broad range of information’ at sentencing. State v. Bowser, 186 Ohio App.3d 162, 926 N.E.2d 714,
2010–Ohio–951, ¶ 13. ‘The evidence the court may consider is not confined to the evidence that strictly relates to the conviction offense * * *’
Id. at ¶ 14, 926 N.E.2d 714. * * * ‘[B]ased on how the court perceives true facts in a case, it may believe that the offender committed a crime
other than, or in addition to, the one to which he pleaded.’ Id. at ¶ 20, 926 N.E.2d 714. Notably, a court may consider ‘allegations of
uncharged criminal conduct found in a PSI report[.]’ Id. at ¶ 15, 926 N.E.2d 714.” State v. Bodkins, 2d Dist. Clark No. 10-CA-38,
2011-Ohio-1274, ¶ 43. Moreover, the burden of proof at a sentencing hearing is the preponderance of evidence. State v. Daniel, 10th Dist.
28
have corrected the technical misstatement, and the result would undoubtedly have been the same.
Because we are unable to conclude that the trial court’s misstatement made any difference, the
error is not plain and therefore not reversible.
{¶ 36} Finally, appellant argues that the sentence was an abuse of discretion. In State v.
Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575, 25576, 2013-Ohio-5759, a panel of this court
recently held the standard of review for felony sentencing is whether the sentence is clearly and
convincingly unsupported by the record or contrary to law. This standard is more deferential to
the trial court’s determination than an abuse of discretion. Nonetheless, even under an abuse of
discretion review, we find no error. “A trial court has broad discretion in sentencing a
defendant and a reviewing court will not interfere with the sentence unless the trial court abused
its discretion.” (Citations omitted.) State v. Bray, 2d Dist. Clark No. 2010 CA 14,
2011-Ohio-4660, ¶ 28. Abuse of discretion requires an attitude that is unreasonable, arbitrary or
unconscionable. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Given the facts recited by the trial court and its
consideration of the PSI and the applicable statutory requirements, we are simply unable to find
any abuse of discretion in sentencing, and therefore the sentence is not clearly and convincingly
unsupported by the record.
{¶ 37} The Appellant’s second assignment of error is overruled.
C. The Third Assignment of Error
WHEN COUNSEL FAILED TO INFORM THE COURT THAT IT WAS
MISINFORMED AT THE SENTENCING HEARING, APPELLANT WAS
Franklin No. 05AP-564 & 683, 2006 -Ohio- 4627, ¶ 29.
29
DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 38} The two requirements for a finding of ineffective assistance are that counsel’s
performance fell below an objective standard of reasonable representation and that prejudice
arose from this deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). To show prejudice, the defendant must affirmatively demonstrate to a
reasonable probability that were it not for counsel’s errors, the result of the trial would have been
different. Id.; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Further, the threshold inquiry should be whether a defendant was prejudiced, not whether
counsel’s performance was deficient. See id. at 697.
{¶ 39} Polhamus’ argument is that trial counsel was ineffective for failing to object to
the trial court’s conclusion that he stole the truck. We have already concluded the trial court’s
verbal slip was likely not objected to because it was apparent that an objection would not make
any difference in the outcome. The trial judge had found Polhamus guilty of receiving stolen
property and had to be aware of its own findings. The trial court heard the evidence that revealed
Polhamus knew the truck had been confiscated by Comal County, Texas, and reviewed the PSI
admission that he “picked it up” in Texas before the forfeiture hearing. Polhamus appeared for
the forfeiture hearing and claimed he built the truck. The truck, which was still subject to
confiscation for having altered VINs, was later found in his possession and contained documents
showing that he had been driving it. Assuming that the failure to correct the trial court’s
misstatement was deficient performance, we fail to see any reasonable probability that the result
would have been different. Polhamus removed the truck from Texas knowing the Texas
30
authorities had a claim to it. If the trial court’s conclusion that Polhamus “stole” the truck was
only a misstatement, it was harmless. If it was the court’s intended conclusion, it was supported
by the record. In either event, the result would be no different. Accordingly, Appellant’s third
assignment of error is overruled.
D. The Fourth Assignment of Error
APPELLANT WAS DENIED DUE PROCESS AND EQUAL
PROTECTION UNDER THE UNITED STATES AND OHIO
CONSTITUTIONS BY VIRTUE OF HIS CONVICTION AGAINST THE
WEIGHT OF THE MANIFEST EVIDENCE, THE IMPOSITION OF
CONSECUTIVE SENTENCES BASED ON FALSE ASSUMPTIONS AND
MISINFORMATION, AND HIS BEING DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL.
{¶ 40} Polhamus’ assertions here simply repeat those in his first three assigned errors.
We determined that his convictions are not against the manifest weight of the evidence, that the
court did not commit reversible error in sentencing, and that the record does not demonstrate
ineffective assistance of counsel. Therefore the fourth assigned error is overruled.
{¶ 41} The judgment of the trial court is affirmed.
..........
WELBAUM, J., concurs.
DONOVAN, J., concurring in part and dissenting in part:
{¶ 42} I agree with the majority’s resolution of the first assignment of error, but disagree
with the resolution of the second assignment of error.
31
{¶ 43} The trial court did not make a mandatory statutory finding that a consecutive
sentence is not disproportionate “to the danger the offender poses to the public.” R.C.
2929.14(C)(4).
{¶ 44} In my view, a “substantial compliance” test does not meet the statutory mandates,
nor does it provide the uniformity and consistency intended by the legislature. The issue before us
is not whether the court can justify the sentence it imposed, but rather did the trial court satisfy the
express language of R.C. 2929.14(C)(4). In my opinion, it did not and we should not “infer”
findings.
{¶ 45} As Judge Richard Rogers aptly stated in his concurring opinion in State v. Bentley,
3d Dist. Marion No. 8-12-31, 2013-Ohio-852, “I do not believe that the General Assembly
intended that the reviewing court should have to review every comment by the trial court and
weigh those comments in order to determine whether it would make the necessary findings when
the trial court has not.”
{¶ 46} Furthermore, the trial court’s conclusion that Polhamus “stole” the semi is not
established by the record. The majority suggests that Polhamus was “probably complicit,” to the
theft. However, this speculation should not enter into a sentencing decision which also
minimalized the findings required for consecutive terms. In my view, the unfairness of sentencing
on the basis of an offense for which Polhamus had not been charged or convicted is self-evident in
light of Detective Bailey’s testimony that he had no information that Polhamus was involved in the
theft of the truck. I would hold this erroneous conclusion is an abuse of discretion, 8 thus
8
The majority cites to Rodeffer, suggesting the standard for review of
felony sentencing is whether the sentence is clearly and convicingly unsupported
by the record or contrary to law. However, the Ohio Supreme Court has not
32
constituting prejudice.
{¶ 47} For these reasons, I would reverse and remand for resentencing.
..........
Copies mailed to:
Anthony E. Kendell
Robert E. Long III
Carl Bryan
Hon. Christopher Gee
abandoned the two prong analysis set forth in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124. As noted in Judge Froelich’s separate
concurrence in Rodeffer, R.C. 2953.08 begins with “in addition to any other right
to appeal * * *. “Thus by its language, R.C. 2953.08 does not limit an appellate
court’s review only to the grounds stated in that statute.”