State v. Tackett ( 2013 )

[Cite as State v. Tackett, 2013-Ohio-4286.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-A-0015
- vs - :
DALE L. TACKETT, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 159.
Judgment: Affirmed in part; reversed in part and remanded.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Edward M. Heindel, 450 Standard Building, 1370 Ontario Street, Cleveland, OH 44113
(For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} This is an appeal from the judgment of the Ashtabula County Court of
Common Pleas. Defendant-appellant, Dale L. Tackett, appeals from his conviction and
sentence on two counts of operating a motor vehicle while under the influence of
alcohol (OVI), in violation of R.C. 4511.19, with a specification under R.C. 2941.1413
that he had at least five prior convictions of a similar nature within the past 20 years.
{¶2} Appellant now challenges his sentence, the sufficiency of the evidence
supporting his conviction, and claims that he was denied the right to effective assistance
of counsel.
{¶3} On March 26, 2011, Patrolman Chris Defina (“Defina”) of the Ashtabula
City Police Department was on routine patrol in the area of Main Avenue and West 58th
Street in the City of Ashtabula, Ohio, when he observed appellant passing a vehicle in a
no passing zone at a high rate of speed. When appellant turned into a Circle K
convenience store, Defina activated his overhead lights to initiate a traffic stop. Defina
approached appellant’s vehicle and observed that appellant’s face was flushed and that
his eyes were watery and glossy. It also appeared that appellant was unable to roll
down the window. Defina instructed appellant to open the door, and when appellant did
so, Defina smelled the odor of alcohol emanating from appellant’s person. After
instructing appellant to exit the vehicle, Defina observed numerous open containers in
the vehicle. Further, appellant’s speech was slurred such that he could not be
understood.
{¶4} Defina asked appellant to perform field sobriety tests, but appellant was
not able to adequately complete them. Defina placed appellant under arrest for OVI
and transported him to the Ashtabula City Police Station where he became
argumentative and refused to take a breath test. Appellant was then transported to the
Ashtabula County Medical Center for a blood test. While at the hospital, appellant
behaved erratically, flailed around, and refused to lay still for the blood test. As a result
of appellant’s uncooperative behavior, four officers held him down in order for the nurse
to draw his blood sample. Appellant’s blood alcohol level was 0.232.
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{¶5} On June 16, 2011, appellant was charged in a three-count indictment.
Count one alleged that appellant was operating a motor vehicle while under the
influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(G)(1)(d).
Count two alleged that appellant was operating a motor vehicle while under the
influence of alcohol in violation of R.C. 4511.19(A)(1)(d) and R.C. 4511.19(G)(1)(d).
Both counts contained a specification pursuant to R.C. 2941.1413 that appellant had
previously been convicted of five or more offenses of OVI within 20 years of the
underlying offenses, felonies of the fourth degree. Count three charged appellant with
aggravated menacing, in violation of R.C. 2903.21(A), a felony of the fifth degree, which
count was later dismissed upon motion by the state.
{¶6} The two OVI charges were tried to a jury in February 2012, and the jury
found appellant guilty on both counts. On March 20, 2012, following a sentencing
hearing, the court sentenced appellant to a mandatory term of 120 days in prison on the
OVI counts plus a mandatory term of two years on the specification, to be served
consecutively. Appellant timely appeals and advances the following assignments of
error for our review:
{¶7} “[1.] The trial court erred when it sentenced Tackett to both a 120 [day]
prison sentence on the underlying OVI, and a mandatory prison term of two years on
the specification.
{¶8} “[2.] The conviction for the specification that Tackett had previously been
convicted of five or more similar OVI offenses within twenty years was not supported by
sufficient evidence.
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{¶9} “[3.] Tackett was denied his right to the effective assistance of counsel
guaranteed to him by Art 1, Sec 10 of the Ohio Constitution and the Sixth and
Fourteenth Amendments to the United States Constitution.”
{¶10} R.C. 2941.1413 requires a mandatory prison term of one, two, three, four
or five years to be imposed on offenders where the indictment specifies that they have
been convicted of or have pled guilty to five or more equivalent offenses within 20 years
of the current offense, and the jury finds this specification to be true. Under his first
assignment of error, appellant maintains that the trial court erred when it sentenced him
to both a mandatory 120 day prison term on the underlying OVI offenses as well as a
mandatory prison term of two years on the repeat offender specification. Appellant
requests that his case be remanded to the trial court for resentencing.
{¶11} Appellant relies on this court’s previous decisions in State v. McAdams,
11th Dist. Lake No. 2010-L-012, 2011-Ohio-157, and State v. Stillwell, 11th Dist. Lake
No. 2006-L-010, 2007-Ohio-3190. Specifically, appellant alleges that these cases hold
that it was error to impose a sentence on both the repeat offender specification and the
underlying OVI offenses.
{¶12} Pursuant to R.C. 4511.19(G)(1)(d)(i) where, as here, a defendant is
convicted of a specification under R.C. 2929.1413, the court is required to impose a
mandatory prison term of one, two, three, four or five years in accordance with R.C.
2929.13(G)(2). In all other situations; i.e., where there is no specification of five or more
convictions within 20 years, the trial court has discretion to choose between a
mandatory 60-day term of local incarceration (jail, community based correctional
institution, half-way house, alternative residential facility), or sentencing the defendant to
a mandatory 60-day prison term. Thus, the provisions in R.C. 4511.19(G)(1)(d)(i) for
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mandatory sentences on the underlying OVI charge relate only to situations that do not
involve R.C. 2941.1413 specifications. McAdams at ¶13-15; Stillwell at ¶36; State v.
Kennedy, 2nd Dist. Champaign No. 2011 CA 3, 2011 Ohio 4291, ¶25. If a defendant
pleads guilty or is convicted of an R.C. 2941.1413 specification, the minimum prison
term the judge can impose pursuant to R.C. 4511.19(G)(1)(d)(i) and R.C. 2929.13(G)(2)
is one year. R.C. 2929.13(G)(2) further provides that “the offender shall serve the one-,
two-, three-, four-, or five-year mandatory prison term consecutively to and prior to the
prison term imposed for the underlying offense and consecutively to any other
mandatory prison term imposed in relation to the offense.”
{¶13} In the case before us, under R.C. 2941.1413, the trial court properly
sentenced appellant to a mandatory prison term on the specification. However, as
detailed above, the trial court’s imposition of a 120 day sentence was in error; the
minimum amount of time appellant could face for the underlying offense is one year.
R.C. 2929.13(G)(2).
{¶14} Furthermore, appellant’s characterization of Stillwell and McAdams is
incorrect. In Stillwell, we held “[t]he language and interplay of R.C. 4511.19(G)(1)(d)(ii)
and R.C. 2941.1413 demonstrate that the legislature specifically authorized a separate
penalty for a person who has been convicted of or pleaded guilty to five or more OVI
offenses within twenty years which shall be imposed in addition to the penalty for the
underlying OVI conviction.” Stillwell, at ¶26 (Emphasis added). Though Stillwell dealt
with R.C. 4511.19(G)(1)(d)(ii), its analysis is equally applicable to R.C.
4511.19(G)(1)(d)(i). As for McAdams, there is nothing in that opinion that changes our
holding in Stillwell or affects our holding here.
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{¶15} Accordingly, we agree with the parties that appellant’s sentence was
improper and that this matter is reversed and remanded for re-sentencing with an
instruction to the trial court to impose a valid sentence for the OVI in addition to
whatever the trial court deems appropriate on the specification.
{¶16} Under appellant’s second assignment of error, he contends that State’s
Exhibit A, a certified copy of a 1998 ticket for OVI and driving under suspension in
Ashtabula Municipal Court case number 98 TRC 05667, did not constitute sufficient
evidence of a prior judgment of conviction under Crim. R. 32(C), and therefore, the
specification that he had previously been convicted of five or more OVI offenses within
the last 20 years was not supported by sufficient evidence. Specifically, appellant
argues that State’s Exhibit A does not constitute a valid judgment because the entry
was not signed by a judge nor certified until November 18, 2011. We disagree.
{¶17} Crim. R. 32(C) provides that “[a] judgment of conviction shall set forth the
plea, the verdict, or findings, upon which each conviction is based, and the sentence.
* * * The judge shall sign the judgment and the clerk shall enter it on the journal. A
judgment is effective only when entered on the journal by the clerk.”
{¶18} “[A]n appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trail to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 273
(1991). “On review for sufficiency, courts are to assess not whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390 (1997).
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{¶19} Sharon Goebel, Deputy Clerk of the Ashtabula Municipal Court, testified
that State’s Exhibit A satisfied the requirements of Crim.R. 32(C). Ms. Goebel testified
that Exhibit A was a certified copy of a ticket in Ashtabula Municipal Court case number
98 TRC 05667 A and B. That certification was stamped and signed by Deputy Maria
Rivera on November 18, 2011. The entry shows that appellant pled guilty and was
found guilty by the court of OVI, and that he was sentenced to a fine and jail term with
some of the sentence suspended. The entry further shows that it was entered on the
docket on November 22, 2011.
{¶20} Originally, the municipal court judge forgot to sign the entry. The
document was later signed by the judge on November 18, 2011, pursuant to a nunc pro
tunc entry, effective March 31, 1999, in order to correct the oversight. Appellant
maintains that the nunc pro tunc signature of the judge was not adequate because the
entry was not signed until twelve years after it was originally entered. However, the fact
that the document was a nunc pro tunc entry does not call into question the validity of
the judgment of conviction.
{¶21} Crim.R. 36 states that “[c]lerical mistakes in judgments, orders, or other
parts of the record, and errors in the record arising from oversight or omission, may be
corrected by the court at any time.” (Emphasis added). “These nunc pro tunc entries
‘are limited in proper use to reflecting what the court actually decided, not what the court
might or should have decided.’” State v. Grenter, 11th Dist. Ashtabula No. 2011-A-
0013, 2011-Ohio-6003 at ¶17, quoting State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158,
164 (1995). “‘The term “clerical mistake” * * * is a type of mistake or omission
mechanical in nature which is apparent on the record and which does not involve a legal
decision or judgment by an attorney.’” Oliva v. Maurer, 8th Dist. Cuyahoga No. 60298,
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*3, quoting In re Merry Queen Transfer Corp., 266 F.Supp. 605, 607 (E.D.N.Y. 1967).
“[T]he nunc pro tunc entry does not reflect a modification of an erroneous judgment but
rather supplies omissions of a clerical nature which serve to have the record speak the
truth.” Id. at *4.
{¶22} In Oliva, the trial judge’s signature was omitted from the original judgment
entry. The Eighth Appellate District held that the trial judge properly signed it in a nunc
pro tunc entry in order for the court’s record to reflect the truth, and that the lack of the
judge’s signature was simply an oversight susceptible to correction. Id. Similarly, here,
the trial judge acted within his power to correct an oversight in order to adequately
reflect the record, and did not in any way modify the conviction. Nothing in the nunc pro
tunc entry changed the fact that appellant appeared in court on the day in question, was
convicted of OVI, and that it evidences a prior conviction within the past 20 years.
Furthermore, the entry was signed before it was offered as evidence of the prior
conviction. Moreover, there is no language in the applicable rules or case law
suggesting that there is a time limit on the trial court’s ability to enter a nunc pro tunc
judgment entry in order to correct a clerical error. Accordingly, State’s Exhibit A does
not fall short of the requirements set forth in CrimR. 32(C) and constitutes sufficient
evidence that appellant was convicted of a previous OVI offense. Appellant’s second
assignment of error is without merit.
{¶23} Pursuant to appellant’s third assignment of error, he raises two issues.
First, he contends that he was denied his right to effective assistance of counsel when
trial counsel allowed the introduction into evidence of non-OVI convictions that were
contained in the documents convicting appellant of OVI. Second, he argues trial
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counsel was ineffective for failing to pursue a motion to suppress the result of a blood
test that was forcibly withdrawn.
{¶24} In Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court developed a two-part test to determine whether counsel’s was
ineffective: (1) that counsel’s actions were outside the wide range of professionally
competent assistance, and (2) that the defendant was prejudiced as a result of counsel
action. To establish prejudice, the defendant must show a reasonable probability that
the outcome would have been different. Id. at 694.
{¶25} Turning to the first issue under appellant’s third assignment of error, both
State’s Exhibit A and C were offered into evidence to support the existence of
appellant’s prior OVI convictions. However, appellant takes issue with the fact that
State’s Exhibit A contains a charge for driving under an FRA suspension, and State’s
Exhibit C contains charges of left of center, no operator’s license, and driving under an
FRA suspension. Appellant maintains that those minor, non-OVI offenses should have
either been redacted or a limiting instruction given before they were presented to the
jury because the existence of prior non-OVI offenses is an inflammatory fact, and it is
the natural tendency of a jury to find a defendant guilty based on prior misconduct rather
than limiting its attention to the offense at hand. In other words, appellant argues that
the jury could not have kept an open mind on appellant’s guilt or innocence on the
present offenses in light of the non-OVI convictions that were not relevant to the
specifications. We disagree with appellant’s assertions.
{¶26} As discussed previously in our recitation of the factual background, the
state presented a multitude of evidence which led to appellant’s conviction. Therefore,
any evidence of minor traffic convictions was harmless and not prejudicial to appellant,
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and, in view of the overwhelming other evidence, did not alter the outcome of
appellant’s trial. Accordingly, trial counsel was not ineffective for allowing the
introduction of this evidence.
{¶27} Turning to the second issue under appellant’s third assignment of error,
appellant argues that a motion to suppress appellant’s blood test results would have
likely been granted because appellant was restrained with excessive force by several
officers when his blood sample was drawn in violation of his rights under both the Ohio
and United States Constitution.
{¶28} Ohio’s implied consent statute, R.C. 4511.191(A)(5)(a), provides that a
person arrested for one of the OVI offenses listed in that section must submit to a blood
alcohol level test if requested by a law enforcement officer. If that person refuses to
submit to this test, the law enforcement officer who made the request may resort to
“whatever reasonable means are necessary” to ensure submission to the test. R.C.
4511.191(A)(5)(b). Here, when appellant refused to submit to either a breath or blood
test, it took four officers to hold him down because he was flailing around and refused to
lay still. Defina grabbed a pressure point on appellant’s neck to hold him on the table,
while Patrolman Hoskin held appellant’s diaphragm. Patrolman Howell and Patrolman
Burns held appellant’s legs.
{¶29} In support of his argument that he was restrained with excessive force,
appellant relies on the Fifth Appellate District case of State v. Sisler, 114 Ohio App.3d
337 (2nd Dist.1995) wherein the court discussed the issue of forcibly extracting blood
samples in an OVI case with an uncooperative defendant. In Sisler, the court found that
the defendant’s due process rights were violated, even though he consented to
withdrawal of blood, because he was shackled to the hospital bed and held down by six
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persons while another person withdrew his blood after several failed attempts. Id. at
345. The Second Appellate District determined that such methods offended “a
fundamental sense of justice, notwithstanding the fact that they were also prompted by
Sisler’s violent resistance to the efforts of the state’s officers.” Id. at 344.
{¶30} We note that Sisler was predicated on the landmark United Supreme
Court case of Schmerber v. California, 384 U.S. 757 (1966), which stands as the
seminal case involving the forced extraction of blood from an accused and provides the
framework for most judicial determinations on this topic. In Schmerber, the Court held
that blood alcohol evidence could be taken without a DUI suspect’s consent and without
a warrant when probable cause and exigent circumstances existed (rapid elimination of
blood alcohol content by natural bodily functions). Id. at 770-771. However, the
Schmerber Court emphasized that a blood draw remains subject to Fourth Amendment
standards of reasonableness. Id. at 768. In particular, the procedure must be
conducted without unreasonable force and in a medically acceptable manner. Id. at
771.
{¶31} Here, appellant does not contest that probable cause and exigent
circumstances existed, or that his blood was not drawn in a medically acceptable
manner. Rather, he contends that the actions of the officers undertaken to withdraw his
blood constituted excessive force and violated his right to due process.
{¶32} In a case that followed Schmerber, Graham v. Connor, 490 U.S. 386(1989), the United States Supreme Court clarified that claims of excessive force, such
as here, are analyzed under a balancing test to determine whether the use of force in a
given case is objectively reasonable. Id. at 395. In such cases, the nature and degree
of the intrusion are balanced against the governmental interest in securing the
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evidence. Id. at 396. Unfortunately, “the ‘test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application.’” Id. quoting
Bell v. Wolfish, 441 U.S. 520, 539 (1979). Specifically, the Graham Court explained
that:
{¶33} “[P]roper application [of the balancing test] requires careful attention to the
facts and circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id. at 396.
{¶34} “When applying the objectively reasonable standard, the court should
consider, among other circumstances, (a) whether the officer initiated the physical
violence, (b) whether the accused was combative, uncooperative, or unruly, (c) whether
the accused’s conduct is an immediate threat to the officer’s safety or the safety of
others, (d) the size and physical strength of the accused, (e) the seriousness of the
crime that the accused committed, (f) whether the officer refused the accused’s
reasonable request to submit to a different form of measuring the blood-alcohol level,
and (g) whether the officer responded to the accused’s combative resistance with
inappropriate force.” State v. Mason, Tenn. App. No. 02C-01-9310-CC-00233, 1996
Tenn. Crim App. LEXIS 163 (1996), *37.
{¶35} In light of the lack of uniformity and precision regarding the application of
Fourth Amendment standards in this area, a review of some of the decisions from other
jurisdictions regarding the use of force to obtain a blood specimen is helpful in
determining whether the force in the instant case was objectively reasonable.
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{¶36} In State v. Ravotto, 169 N.J. 227 (2001), the New Jersey Supreme Court
held that the police used unreasonable force in obtaining the defendant’s blood sample
where the defendant was willing to take a breath test, was subject to mechanical
restraints, voiced that he was terrified of needles, and shouted and flailed violently as
the nurse drew his blood. Id. at 241. In People v. Kraft, 3 Cal. App.3d 890 (1970), one
of the officers struck the defendant on the side of his cheek with a closed fist in an
allegedly defensive move, then the officers placed the accused on the floor face down,
applied a scissor lock on his legs, and held his arm up. The California court held that
the officers used excessive force and exceeded the limits of permissible police activity.
Id. at 900.
{¶37} To the contrary, in McCann v. State, 588 A.2d 1100 (Del. 1991), each time
a blood draw was attempted, the defendant withdrew his arm. After the defendant
attempted to bite the officer, the office applied a stun gun to the defendant’s arm. The
Delaware court held that the force used was reasonable and not excessive. Id. at 1102.
In Burns v. State, 807 S.W. 2d 878 (Tex.Ct.App. 1991), two police officers wrestled the
accused to the floor of the emergency room, allowing the lab technician to obtain a
blood specimen. The Texas court, noting that the accused initiated the violence, held
that he was merely restrained after struggling to avoid the blood draw and that the
police officers did not overreact. Id. at 883. In State v. Krause, 484 N.W.2d. 347
(Wis.Ct.App.1992), the accused shouted vulgarities, spit at the officers, and was
generally unruly. Three officers placed a pillow case over his head, tied his feet, and
held his arm while a medical technician obtained the blood specimen. This restraint
caused the needle to injure the accused’s arm. The accused then bit his tongue and
broke a tooth. Nevertheless, the Wisconsin court held that the force used to restrain the
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accused was “reasonable in light of the totality of the circumstances facing the officers
* * *.” Id. at 352.
{¶38} In a case very similar to the instant matter, Carleton v. People, 170 Cal.
App. 3d 1182 (1985), the defendant aggressively resisted the police officers by refusing
to extend his arm. Because of the defendant’s resistance, it was necessary for one of
the police officers to hold him in a “carotid-restraint position, but without carotid
unconsciousness” while another officer held the defendant’s left arm, another his right
arm, and one deputy held each leg. The California court held that the police acted
reasonably and that the degree of force used was not excessive. Id. at 1191. Notable
in the court’s analysis was that none of the officers struck or physically abused the
defendant. Id. at 1190. In another similar case, State v. Worthington, 138 Idaho 470(Ida. App.2002), the defendant was “very combative,” required three police officers and
two nurses to hold him down, and was restrained with a belly restraint. The Court of
Appeals of Idaho held that the force used by police to extract defendant’s blood was
reasonable and necessary and did not violate constitutional standards. Id. at 474.
{¶39} In view of the foregoing, we find that the force used by the officers in this
case was objectively reasonable given the unruly and uncooperative conduct of the
appellant. Appellant was unwilling to take a breath test, refused to lay down for the
blood test, attempted to stand when the nurse came to draw his blood, and was flailing
around. The facts support the conclusion that the officers used only the appropriate
force necessary to restrain appellant, obtain the blood specimen, and to protect their
own and appellant’s safety. The police used force necessary to restrain an actively
resisting defendant and did not strike or physically abuse him in any manner.
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{¶40} Accordingly, based on the foregoing, we conclude that trial counsel was
not ineffective for failing to pursue a motion to suppress the results of appellant’s blood
draw, since the blood specimen was not obtained through the use of excessive force.
Thus, the trial court would not likely have granted a motion to suppress appellant’s
blood sample. Appellant’s third assignment of error is without merit and is hereby
overruled.
{¶41} The judgment of the Ashtabula County Court of Common Pleas is affirmed
in part and reversed in part; and this case is remanded.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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