State v. Jones , 2013 Ohio 4820 ( 2013 )

[Cite as State v. Jones, 2013-Ohio-4820.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 61
v. : T.C. NO. 12CR55
TIMOTHY JONES : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of November , 2013.
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LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Public Defender, 250 E.
Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Timothy Jones appeals his conviction for two counts of
aggravated murder, in violation of R.C. 2903.01(A), both felonies of the first degree, and
one count of having a weapon while under disability, in violation of R.C. 2923.13(A)(2), a
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felony of the third degree. Both counts of aggravated murder were accompanied by a
firearm specification. Jones filed a notice of appeal with this Court on September 11, 2012.
On September 27, 2012, we issued a show cause order instructing Jones to explain why his
appeal should not dismissed for failure to file within thirty-days of his judgment entry of
conviction as required by App. R. 4(A). Jones filed a response to the show cause order on
October 11, 2012. On October 22, 2012, we issued a decision finding that Jones had shown
good cause to file a delayed appeal.
{¶ 2} The incident which forms the basis of the instant appeal occurred on October
16, 2011, while Jones was engaged in an argument with one of the victims, Dovon Williams.
The other victim was Arbrie Smith, a friend of Williams, who witnessed the argument.
The confrontation occurred at a residence near the corner of Perrin Avenue and Center
Boulevard in Springfield, Ohio. Evidence adduced during Jones’ trial established that
Williams had beaten up the appellant on two separate prior occasions. Jones was also
aware that Williams had been visiting his girlfriend’s home when he was not present. At
some point during the argument, Jones pulled out a handgun and shot Arbrie Smith in the
head multiple times, killing him. Williams attempted to run away, but Jones chased him
down and shot him several times, killing him as well.
{¶ 3} On January 23, 2012, Jones was subsequently indicted for two counts of
aggravated murder with firearm specifications, and one count having a weapon while under
disability. At his arraignment on February 13, 2012, Jones pled not guilty to the charges
against him, and the trial court set his bond at $1,000,000.00. On May 15, 2012, the trial
court ordered Jones to undergo a mental competency evaluation in light of his request to
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represent himself at trial. The trial court found Jones competent to stand trial and represent
himself in an order filed on June 19, 2012. The trial court also allowed Jones’ appointed
counsel to withdraw but ordered him to act as co-chair to Jones in order to assist Jones if
necessary.
{¶ 4} Jones’ trial began on July 30, 2012, and ended on August 3, 2012, with the
jury finding Jones guilty on all of the counts in the indictment. On August 9, 2012, Jones
was sentenced to life in prison without the possibility of parole on each of the aggravated
murder counts and three years on the single count of weapons under disability. The trial
court ordered the sentences for the aggravated murder counts to run consecutive to each
other and the sentence for the weapon under disability count to run concurrent to the life
sentences.
{¶ 5} It is from this judgment that Jones now appeals.
{¶ 6} Jones’ first assignment of error is as follows:
{¶ 7} “THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT
COULD FIND MR. JONES GUILTY OF AGGRAVATED MURDER IF THE ‘GIST OF
THE OFFENSE’ WAS TO CAUSE A DEATH, ‘REGARDLESS OF WHAT [MR. JONES]
MAY HAVE INTENDED TO ACCOMPLISH BY HIS CONDUCT.’”
{¶ 8} In his first assignment, Jones contends that the trial court erred when it
instructed the jury regarding the definition of “purpose” as it applied to the charges for
aggravated murder. Specifically, Jones argues that the trial court’s use of the “gist of the
offense” instruction in a conviction for aggravated murder was confusing and rose to the
level of plain error.
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{¶ 9} In State v. Kleekamp, 2d Dist. Montgomery No. 23533, 2010-Ohio-1906,
this court stated:
{¶ 10} “‘A criminal defendant has the right to expect that the trial court will give
complete jury instructions on all issues raised by the evidence.’ State v. Williford (1990), 49
Ohio St.3d 247, 251, 551 N.E.2d 1279; State v. Mullins, Montgomery App. No. 22301,
2008-Ohio-2892, ¶ 9. As a corollary, a court should not give an instruction unless it is
specifically applicable to the facts in the case. State v. Fritz, 163 Ohio App.3d 276, 837
N.E.2d 823, 2005-Ohio-4736, ¶ 19. The decision to give a requested jury instruction is a
matter left to the sound discretion of the trial court, and the court's decision will not be
disturbed on appeal absent an abuse of discretion. State v. Davis, Montgomery App. No.
21904, 2007-Ohio-6680, ¶ 14.”
{¶ 11} “Abuse of discretion” has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482
N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of discretion will
result in decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
{¶ 12} A decision is unreasonable if there is no sound reasoning process that would
support that decision. It is not enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result. AAAA Enterprises,
Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990).
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{¶ 13} Regarding the definition of “purpose,” the trial court gave the jury the
following instructions:
A person acts purposely when it is his specific intention to cause a
certain result. It must be established beyond a reasonable doubt that at the
time in question there was present in the mind of the defendant a specific
intention to cause the death of Dovon Williams.1
When the gist of the offense is a prohibition against conduct of a
certain nature, a person acts purposely if his specific intention was to engage
in conduct of that nature, regardless of what he may have intended to
accomplish by his conduct.
Purpose is a decision in the mind to do an act with a conscious
objective of producing a specific result or engaging in specific conduct. To
do an act purposely is to do it intentionally and not accidentally.
Purpose and intent mean the same thing. The purpose with which a
person does an act is known only to himself unless he expresses it to others or
indicates it by his conduct.
The purpose with which a person does an act is determined from the
manner in which it is done, the means used, and all the other facts and
circumstances in evidence.
1
When instructing the jury regarding Count II, the aggravated murder of
Arbrie Smith, the trial court did not repeat the definition of “purpose,” but merely
referred back to the instruction in Count I, which referenced the aggravated
murder of Dovon Williams.
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If a wound is inflicted upon a person with a deadly weapon in a
manner calculated to destroy life, the purpose to cause his death may be, but
is not required to be, inferred from the use of the weapon. The inference, if
made, is not conclusive.
***
Prior calculation and design means that the purpose to cause the death
of another was reached by a definite process of reasoning in advance of the
homicide, which process of reasoning must have included a mental plan
involving studied consideration of the method and means with which to cause
the death.
To constitute prior calculation there must have been sufficient time
and opportunity for the planning of an act of homicide and the circumstances
surrounding the homicide must show scheme designed to carry out the
calculated decision to cause the death.
{¶ 14} Initially, we note that Jones failed to object to the jury instruction, nor did he
request another instruction be substituted in its place. Thus, for purposes of appellate
review, Jones has waived all but plain error. State v. Parrish, 2d Dist. Montgomery No.
21206, 2006-Ohio-4161. Plain error may be noticed if a manifest injustice is demonstrated.
Crim.R. 52(B); State v. Howard, 2d Dist. Montgomery No. 23795, 2011-Ohio-27. In order
to find a manifest miscarriage of justice, it must appear from the record as a whole that but
for the error, the outcome of the trial clearly would have been otherwise. State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978).
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{¶ 15} Jones argues that the court erred when it gave the jury the “gist of the
offense instruction set forth above. Specifically, he argues that by instructing the jury that a
person acts purposefully regardless of what he may have intended to accomplish by his
conduct the court failed to provide adequate instructions regarding a “specific intent to kill”
which a defendant must possess when charged with aggravated murder. State v. Wilson, 74
Ohio St.3d 381, 1996-Ohio-103, 659 N.E.2d 292. In Wilson, the Ohio Supreme Court has
characterized similar language as confusing in a murder prosecution which requires
purpose.” Id. at 393, 659 N.E.2d 292. However, we must remain mindful of the fact that
reviewing courts must consider jury instructions in their entirety. State v. Price, 60 Ohio
St.2d 136, 398 N.E.2d 772 (1979), ¶ 4 of the syllabus. “[A] single instruction to a jury may
not be judged in artificial isolation, but must be viewed in the context of the overall charge.”
Id. at 141. In Wilson, the Ohio Supreme Court rejected an argument that the trial court
committed plain error by using the gist of the offense language in an aggravated murder
trial, in part because [i]n the context of all the instructions given the jury, the court
provided adequate instructions on the element of specific intent to kill. Wilson, 74 Ohio
St.3d at 393.
{¶ 16} Like the Wilson Court, we acknowledge that when read in isolation, the gist
of the offense language could be confusing and misleading to a jury. 2 When read in
2
Jones cites State v. Hooks, 2d Dist. Montgomery No. 16978, 17007,
1998 WL 754574 (October 30, 1998), in support of his assertion that the “gist of
the offense” instruction in an aggravated murder conviction is confusing and
misleading to a jury. In Hooks, however, we noted that the instruction at issue
was given in regards to a separate count for aggravated burglary and not
aggravated murder. Thus, this case is distinguishable and does not support
Jones’ argument.
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context with the rest of the charge, however, it is clear the court provided the jury with
adequate instructions on the specific intent to cause death. The court specifically told the
jury that “[a] person acts purposely when it is his specific intention to cause a certain
result.” The court also told that jury that: It must be established beyond a reasonable
doubt that at the time in question there was present in the mind of the defendant a specific
intention to cause the death of Dovon Williams. Therefore, the gist of offense language
instruction did not amount to plain error in light of all the instructions given to the jury.
{¶ 17} Jones’ first assignment of error is overruled.
{¶ 18} Jones’ second assignment of error is as follows:
{¶ 19} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING
SENTENCES OF LIFE WITHOUT PAROLE.”
{¶ 20} In his second assignment, Jones argues that the trial court erred when it
sentenced him to life imprisonment without the possibility of parole for each count of
aggravated murder.
{¶ 21} Appellant was sentenced to life without the possibility of parole pursuant to
R.C. 2929.03(A)(1)(a), which provides in pertinent part:
(A) If the indictment or count in the indictment charging aggravated murder
does not contain one or more specifications of aggravating circumstances
listed in division (A) of section 2929.04 of the Revised Code, then, following
a verdict of guilty of the charge of aggravated murder, the trial court shall
impose sentence on the offender as follows:
(1) Except as provided in division (A)(2) of this section, the trial court shall
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impose one of the following sentences on the offender:
(a) Life imprisonment without parole. ***.
{¶ 22} R.C. 2953.08(D) governs review of felony sentencing. R.C. 2953.08(D)(3)
provides, [a] sentence imposed for aggravated murder or murder pursuant to sections
2929.02 to 2929.06 of the Revised Code is not subject to review under this section. The
Ohio Supreme Court has held that this is unambiguous: a sentence for aggravated murder
imposed pursuant to R.C. 2929.02 to 2929.06 cannot be reviewed. State v. Porterfield, 106
Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 660. Accordingly, evidentiary review of a
sentence imposed by a trial court pursuant to R.C. 2929.02(A)(1)(a) is precluded.
{¶ 23} Neither Jones nor the State of Ohio discussed the applicability of R.C.
2953.08(D)(3) in their initial briefs to this court. At oral argument, both sides were invited
to file supplemental briefs on the issue. On September 3, 2013, the State of Ohio filed its
supplemental brief and on September 10, 2013 and September 11, 2013, Jones filed his brief
and supplemental authority, respectively.
{¶ 24} The State argues that both R.C. 2953.08(D)(3) and Porterfield prevent
review of Jones’ life term as to each count of aggravated murder. Jones advances two
arguments. First, Jones argues that R.C. 2505.03(A) provides a general right of review of
all final orders which would afford him full review of his sentences. While it is true that
R.C. 2505.03(A) is a general statute that gives Jones a right to appeal his aggravated murder
convictions, it is, nevertheless, a common rule of statutory interpretation which requires that
a specific statute prevail over a general statute. See generally State v. Taylor, 113 Ohio
St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37. Thus, the limited appellate review under R.C.
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2953.08(D)(3) is construed as an exception to the general statute, R.C. 2505.03(A), which
might otherwise apply. Secondly, in its supplemental brief with additional authority, Jones
argues that because the Ohio Supreme Court has accepted State v. Long, 1st Dist. Hamilton
No. C-110160, 2012-Ohio-3052 for review, life without parole sentences are subject to
review. However, Long involves a juvenile. Jones is an adult. The proposition of law
accepted for review in Long involves a constitutional challenge under the Eighth
Amendment when sentencing a child. This constitutional issue is totally absent in Jones’
case. Accordingly, we accept the arguments advanced by the State and find Jones’
arguments unpersuasive.
{¶ 25} The Court of Appeals for the 8th District discussed the longstanding history
of treating aggravated murder sentencing differently from other felony sentencing in
concluding that a sentence of life imprisonment without parole imposed by a three-judge
panel pursuant to R.C. 2929.03 is not subject to review by the appellate court:
The General Assembly's practice of treating sentencing for aggravated
murder and murder convictions differently from other felonies is
longstanding. Before the 1996 Senate Bill 2 felony sentencing amendments,
the courts likewise held that the general felony sentencing requirements did
not apply in aggravated murder cases. (Citations omitted). Defendant has
shown nothing to indicate that the General Assembly intended to change this
well-established sentencing practice and the comprehensive sentencing
scheme in aggravated murder and murder cases.
State v. Hollingsworth, 143 Ohio App.3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001).
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{¶ 26} Pursuant to R.C. 2953.08(D)(3) and case law interpreting this statute, this
Court is without statutory authority to review appellant's sentence on an evidentiary basis.
Jones’ second assignment of error is overruled.
{¶ 27} Jones’ third assignment of error is as follows:
{¶ 28} “THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE
SENTENCES WITHOUT MAKING THE FINDINGS REQUIRED BY R.C. 2929.14(C)
AND CRIM. R. 32(A)(4) AT THE SENTENCING HEARING, AND WITHOUT HAVING
THE FACTUAL BASIS TO MAKE THOSE FINDINGS. SENTENCING ENTRY; T.P.
1-10 (DISPOSITION).”
{¶ 29} In his third assignment of error, Jones contends that the trial court erred
when it failed to make the required findings in order to impose consecutive sentences and
that the record does not support the imposition of consecutive sentences.
{¶ 30} Prior to H.B. 86, R.C. 2929.14(E)(4) required, as a predicate to imposing
consecutive sentences, a finding that “the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the offender
poses to the public,” as well as one of three additional findings. Former R.C.
2929.14(E)(4). In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 270, the
Ohio Supreme Court held that the statutory requirement to make certain findings before
imposing consecutive sentences violated the United States Constitution, and it severed that
requirement from the statute. Id. at ¶ 99-102.
{¶ 31} With H.B. 86, Ohio’s sentencing scheme again requires judicial fact-finding
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for consecutive sentences. Former R.C. 2929.14(B) and (C), which had been severed, were
formally deleted, and the judicial fact-finding requirement for consecutive sentencing,
previously set forth in R.C. 2929.14(E), was reenacted and codified as R.C. 2929.14(C).
{¶ 32} R.C. 2929.14(E) now provides that the trial court “shall impose sentence
upon the offender in accordance with section 2971.03 of the Revised Code, and Chapter
2971 of the Revised Code applies regarding the prison term or term of life imprisonment
without parole imposed upon the offender and the service of that term of imprisonment” if
any of six enumerated conditions apply.
{¶ 33} R.C. 2929.14(C)(4) authorizes the court to require an offender to serve
consecutively multiple prison terms for convictions on multiple offenses. Consecutive
sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to
protect the public from future crime or to punish the offender and (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. In addition to these two factors, the court must find
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
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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.
{¶ 34} In its brief, the State concedes that the trial court failed to make the requisite
findings pursuant to R.C. 2929.14(C)(4) before imposing consecutive sentences. Until that
occurs, we need not address Jones’ argument regarding whether the record supports the
imposition of consecutive sentences. Accordingly, the judgment is reversed, in part, and
this matter is remanded to the trial court so that it may make the requisite findings pursuant
to R.C. 2929.14(C)(4) before imposing consecutive sentences.
{¶ 35} Jones’ third assignment of error is sustained in part.3
{¶ 36} Jones’ fourth and final assignment of error is as follows:
{¶ 37} “THE TRIAL COURT ERRED BY IMPOSING APPOINTED COUNSEL
FEES AND COURT COSTS.”
{¶ 38} In his final assignment, Jones argues that the trial court erred when it failed
to impose court costs and attorney fees at the sentencing hearing, yet did so in the judgment
entry of conviction. The State concedes that it was error for the trial court to fail to orally
notify Jones at the sentencing hearing that it was imposing court costs and attorney fees.
3
We note that this Court’s remand of this matter does not imply either
approval or disapproval of the sentence imposed; rather, it denotes only that the
requisite findings to support the imposition of consecutive sentences are not part
of the record herein.
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Thus, we remand this matter to the trial court for the limited purpose of allowing Jones to
move the court for a waiver of the payment of court costs and attorney fees.
{¶ 39} Jones’ fourth and final assignment of is sustained.
{¶ 40} In light of our disposition with respect to Jones’ third and fourth assignments
of error, the trial court’s judgment is reversed, in part, and this matter is remanded to the trial
court for proceedings consistent with this opinion. In all other respects, the judgment of the
trial court is affirmed.
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WELBAUM, J., concurs.
FROELICH, J., dissenting in part and concurring in judgment:
{¶ 41} The certified conflict question presented in Porterfield was “Whether the
language of R.C. 2953.08(D) prohibits appellate review of a trial court’s sentence when the
defendant is convicted of aggravated murder and sentenced pursuant to a
jointly-recommended sentence.” Id. at ¶ 5.
{¶ 42} Similarly, in Hollingsworth, the defendant was sentenced pursuant to a plea
bargain in which the parties agreed that the defendant would not be sentenced to the
maximum (death) or the minimum (life imprisonment with parole eligibility after
twenty-five full years). He appealed that his sentence of life imprisonment without the
eligibility for parole was “contrary to Ohio law and violates R.C. 2929.11 and 2929.12.” I
do not believe these cases control this appeal.
{¶ 43} R.C. 2953.08(D)(3) prohibits appellate review under R.C. 2953.08 of any
sentence imposed for aggravated murder. R.C. 2953.08 is titled “Appeals based on felony
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sentencing guidelines.” It allows the right to appeal - except in certain situations, including
aggravated murder - on specific listed grounds; it does not prohibit an appeal, even in cases
of aggravated murder, on other, non-listed grounds. Here, Jones’s assignment of error (No.
2) is that “the trial court abused its discretion by imposing sentences of life without parole;”
this is not one of the listed grounds barred by R.C. 2953.08 to aggravated murder defendants.
{¶ 44} I would find that we do have the authority to review the appeal of the
aggravated murder sentence, but otherwise concur in the opinion of the majority.
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Copies mailed to:
Lisa M. Fannin
Stephen P. Hardwick
Hon. Douglas M. Rastatter