State v. Johnson ( 2013 )

[Cite as State v. Johnson, 2013-Ohio-3306.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0050-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRIAN W. JOHNSON COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 08-CR-0282
DECISION AND JOURNAL ENTRY
Dated: July 29, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellant, Brian Johnson, appeals from the judgment of the Medina
County Court of Common Pleas. This Court reverses.
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{¶2} On April 15, 2008, Brian and Carol Johnson gave birth to a son, N.J. On June 6,
2008, the Johnsons brought N.J. into the emergency room after noticing something was wrong
with his arm. N.J. was diagnosed with a displaced fracture of the right humerus and twelve
additional bone fractures in various stages of healing.
{¶3} Brian Johnson was indicted on three counts of felonious assault: one count for
May 23rd through May 30th; one count for May 31st through June 6th; and one count for June
6th. In addition, Johnson was indicted on five counts of child endangering: two counts covering
the time period of May 23rd through May 30th; one count for May 31st through June 5th; one
count for May 31st through June 6th; and one count for June 6th.
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{¶4} A jury found Johnson not guilty of felonious assault for May 23rd through May
30th and guilty of the remaining counts. The court sentenced Johnson to seven years for each of
the two felonious assaults, and six years for one of the child endangering charges for May 23rd
through May 31st. The court found the remaining child endangering counts were allied offenses
of similar import. The court ordered Johnson’s sentences to be served consecutively, for a total
of twenty years in prison. Johnson appealed and this Court affirmed in part, reversed in part, and
remanded for re-sentencing. State v. Johnson, 9th Dist. Medina No. 09CA0054-M, 2011-Ohio-
3623.
{¶5} On remand the trial court conducted several hearings and ultimately sentenced
Johnson to seven years on each of the two felonious assault convictions and six months on each
of the child endangering convictions. The court found the two felonious assaults were not allied
offenses of similar import and ordered the sentences to be served consecutively. The court
further ordered the child endangering sentences to be served consecutive to one another, but
concurrent to the felonious assault. Johnson now appeals and raises four assignments of error for
our review. To facilitate the analysis, we address the assignments of error out of order.
II
Assignment of Error Number Two
THE TRIAL COURT’S SENTENCE OF CONSECUTIVE, NEARLY
MAXIMUM TERMS FOR THE FELONIOUS ASSAULTS WAS CONTRARY
TO THE PURPOSES OF THE STATE’S SENTENCING SCHEME AND [R.C.]
2929.14(C)(4)[.]
{¶6} In his second assignment of error, Johnson argues that the court erred in relying
on incorrect factual findings when imposing consecutive sentences.
{¶7} R.C. 2929.14(C)(4) permits the court to impose consecutive sentences if it finds
(1) “that the consecutive service is necessary to protect the public from future crime or to punish
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the offender,” (2) “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 (3) one of the
following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing * * *.
(b) At least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused * * * was so great or unusual that no
single prison term * * * 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 * * *.
R.C. 2929.14(C)(4).
{¶8} At the May 4, 2012 sentencing hearing, the court acknowledged that it had the
discretion to impose consecutive sentences if it found that consecutive sentences were necessary
to protect the public and punish the offender and were not disproportionate. The court then went
on to make specific findings regarding its decision to impose consecutive sentences.
Under R.C. 2929.14(C)(4), the [c]ourt’s going to conclude in this case, based on
the numerous and, the [c]ourt has to say, horrific injuries that were suffered by a
very, very young child, that the harm in the case is so great and so unusual that a
single term would not adequately reflect the seriousness of the conduct of this
Defendant in causing these injuries, that has been found by the doctors, as well as
other hospital personnel, and the injury in this particular case, as a result of that,
the [c]ourt’s going to order consecutive sentences in this particular case * * *.
{¶9} Johnson argues that the court erred in relying on fractures that occurred prior to
May 31st when it found that the “harm caused * * * was so great or unusual that no single prison
term * * * adequately reflects the seriousness of the offender’s conduct.” See R.C.
2929.14(C)(4)(b).
{¶10} Prior to imposing a prison sentence, the court recapped the facts in order to
determine whether some of the offenses were allied offenses of similar import. In doing so, the
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court detailed that “there [we]re a series of events; one, the broken * * * arm, that occurred June
6th; then a series of events that resulted in, well, twelve other separate fractures between May
31st and June 6th.” The court went on to conclude that the two felonious assaults were “not
allied offenses of similar import but, in fact, two separate counts of felonious assault: One, the
June 6th felonious assault relating to the arm hanging and being taken to the emergency room;
and then the May 31st to June 6th events resulting in the other offenses, the other twelve separate
fractures, including fractures to the head, ribs, the right humerus, and several other bones.”
{¶11} This factual finding is unsupported by the record. In fact, in its brief, the “State
concedes all of the twelve fractures did not occur between May 31st and June 6th.” Because the
court relied on this erroneous factual finding in its rationale for ordering the two felonious
assault sentences to be served consecutively, we must reverse the trial court’s imposition of
consecutive sentences and remand this matter for the trial court to conduct a new hearing to
determine whether consecutive sentences are appropriate based on the facts of this case.
{¶12} Johnson’s second assignment of error is sustained.
Assignment of Error Number Four
THE TRIAL COURT INCORRECTLY SENTENCED MR. JOHNSON ON
ALLIED OFFENSES UNDER JOHNSON[.]
{¶13} In his fourth assignment of error, Johnson argues that the trial court erred in
sentencing him on both felonious assault charges because they are allied offenses of similar
import. Because the trial court relied on the erroneous factual findings in its determination that
the offenses were not allied, we decline to address this assignment of error. Instead, we remand
this issue for the trial court to address in the new hearing.
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Assignment of Error Number One
THE TRIAL COURT SENTENCED MR. JOHNSON FOR CONDUCT OF
WHICH HE HAD BEEN ACQUITTED.
Assignment of Error Number Three
THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER THE
PURPOSES AND PRINCIPLES OF [R.C.] 2929.11, AS WELL AS THE
FACTORS LISTED IN [R.C.] 2929.12[.]
{¶14} In his first and third assignments of error, Johnson asserts additional sentencing
errors. In light of our disposition of Johnson’s second assignment of error, these assignments of
error are moot and we decline to address them. App.R. 12(A)(1)(c).
III
{¶15} Johnson’s second assignment of error is sustained. His first and third assignments
of error are moot, and we decline to address his fourth. The judgment of the Medina County
Court of Common Pleas is reversed, and the cause is remanded for proceedings consistent with
the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
WILLIAM T. WHITAKER and ANDREA L. WHITAKER, Attorneys at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and SCOTT G. SALISBURY, Assistant Prosecuting
Attorney, for Appellee.