State v. Evers , 2012 Ohio 5942 ( 2012 )

[Cite as State v. Evers, 2012-Ohio-5942.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-12-02
v.
TAMARA S. EVERS, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-12-03
v.
TAMARA S. EVERS, OPINION
DEFENDANT-APPELLANT.
Appeals from Mercer County Common Pleas Court
Trial Court Nos. 09CRM-095 and 09-CRM-110
Judgment Affirmed in Case No. 10-12-02, and Judgment
Reversed and Cause Remanded in Case No. 10-12-03
Date of Decision: December 17, 2012
Case Nos. 10-12-02, 10-12-03
APPEARANCES:
Gregory D. Wilson and Eric J. Wilson for Appellant
Matthew K. Fox and Scott A. Longo for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-appellant Tamara Evers (“Evers”) brings this appeal from
the judgments of the Court of Common Pleas of Mercer County finding her guilty
of perjury and sentencing her to three years in prison. She also appeals from the
judgment of the Court of Common Pleas of Mercer County finding her guilty of
involuntary manslaughter and sentencing her to eleven years in prison. For the
reasons set forth below, the judgment in case number 10-12-02 is affirmed and the
judgment in case number 10-12-03 is reversed.
{¶2} On July 8, 2008, the victim, T.S., a six month old infant, died
following injuries to his head. During the ensuing investigation into the death,
Evers was called to testify in a probate court hearing concerning the custody of the
remaining children. Evers was asked if she knew how the injuries could have
happened and she answered no. This was a lie. Evers was indicted on November
19, 2009, by the Mercer County Grand Jury on one count of perjury in violation of
R. C. 2921.11(A), a felony of the third degree. This case was assigned case
number 09-CRM-095. On December 17, 2009, the Mercer County Grand Jury
-2-
Case Nos. 10-12-02, 10-12-03
issued an eight count indictment against Evers. The indictment alleged that Evers
had committed the following offenses: 1) Murder in violation of R.C. 2903.02(B),
a felony of the first degree; 2) Felonious Assault in violation of R.C.
2903.11(A)(1), a felony of the second degree; 3) Murder in violation of R.C.
2903.02(B), a felony of the first degree; 4) Endangering Children in violation of
R.C. 29122(B)(1);(E)(2)(d), a felony of the second degree; 5) Involuntary
Manslaughter in violation of R.C. 2903.04(A), a felony of the first degree; 6)
Involuntary Manslaughter in violation of R.C. 2903.04(A), a felony of the first
degree; 7) Involuntary Manslaughter in violation of R.C. 2903.04(A), a felony of
the first degree; and 8) Endangering Children in violation of R.C. 2919.22;
(E)(2)(c), a felony of the third degree. This case was assigned case number 09-
CRM-110. Evers entered pleas of not guilty to all charges at the arraignment held
on January 8, 2010.
{¶3} On December 27, 2010, the State filed a motion in limine to prevent
the testimony of Evers’ expert witness.1 A hearing was held on the motion on
February 7 and 8, 2011. On September 7, 2011, the trial court entered its
judgment limiting the testimony of Evers’ expert witness, but not excluding it.
{¶4} On September 27, 2011, the State and Evers entered into a negotiated
plea agreement in both cases. In case no. 09-CRM-095, Evers agreed to enter a
1
The State filed a motion to consolidate the cases on December 27, 2010. This motion was never
formally ruled upon, though the filings of the motion was made in both cases.
-3-
Case Nos. 10-12-02, 10-12-03
plea of guilty to the offense of perjury as prohibited by R.C. 2921.11(A), a felony
of the third degree. The State offered no concessions in this case. In case no. 09-
CRM-110, Evers agreed to enter an Alford Plea2 to count six of the indictment,
one count of involuntary manslaughter in violation of R.C. 2903.04(A), a felony of
the first degree. In exchange, the State agreed to dismiss the remaining counts of
the indictment. Evers also retained the right to present the testimony of expert
witnesses during sentencing. The trial court accepted the guilty pleas and set the
sentencing hearing for a future date. The sentencing hearing was held on
December 20, 2011. The trial court sentenced Evers to the maximum sentence of
three years in prison in case no. 09-CRM-095. The trial court then sentenced
Evers to a maximum sentence of eleven years in prison in case no. 09-CRM-110.
This sentence was ordered to be served consecutively to the sentence in case no.
09-CRM-095 for a total prison term of fourteen years in prison. Evers appeals
from this sentence and raises the following assignment of error.
The trial court erred in imposing the maximum sentence for
involuntary manslaughter and ordering that the sentence for
perjury and involuntary manslaughter be served consecutively.
Case no. 09-CRM-095 was assigned appellate no. 10-12-02. Case no. 09-CRM-
110 was assigned appellate no. 10-12-03. The cases were consolidated for review
by this court.
2
North Carolina v. Alford (1970), 400 U.S. 25, 91, S.Ct. 160, 27 L.Ed.2d 162. An Alford guilty plea
allows the defendant to enter a guilty plea, yet maintain his/her innocence. There must be strong evidence
of guilt before the plea may be accepted. Id. at 37-38.
-4-
Case Nos. 10-12-02, 10-12-03
Case No. 10-12-02
{¶5} This court notes that the sentence in case no. 10-12-02 for perjury was
the initial sentence and as such was not ordered to be served consecutive to
anything. Evers does not assign any error to the sentence in this case. Therefore,
there is no error for this court to review as to case no. 10-12-02. The judgment
sentencing Evers to three years in prison in case no. 10-12-02 is affirmed.
Case No. 10-12-03
{¶6} As to case no. 10-12-03, Evers claims that the trial court erred in
imposing the maximum and consecutive sentences for the offense. This court sua
sponte finds an issue with the length of the sentence imposed. Here, the trial court
sentenced Evers after the effective date of the current version of R.C. 2929.14.
The trial court imposed the new sentencing terms at the time of sentencing and
imposed a maximum sentence of eleven years. However, at the time the offense
occurred, the maximum possible sentence for the offense charged was ten years in
prison. The provisions of Section 4 of HB 86 specify that the amendments to R.C.
2929.14(A) “apply to a person who commits an offense specified or penalized
under those sections on or after the effective date of this section AND to a person
to whom division (B) of section 1.58 of the Revised Code makes the amendments
applicable.” §4, HB 86 (emphasis added). “If the penalty, forfeiture, or
-5-
Case Nos. 10-12-02, 10-12-03
punishment for any offense is reduced by a reenactment or amendment of a
statute, the penalty, forfeiture, or punishment, if not already imposed, shall be
imposed according to the statute as amended.” R.C. 1.58(B). In this case, the
maximum sentence under the prior version of R.C. 2929.14(A) for the offense
charged was ten years in prison. Under the current version, the maximum
sentence is eleven years in prison. This is an increase in penalty, not a reduction.
Thus, pursuant to R.C. 1.58 and HB 86, the current version of R.C. 2929.14(A)
does not apply in this case. The trial court should have used the prior version of
R.C. 2929.14(A) when sentencing Evers. Since the trial court used the wrong
version of the statute when imposing a sentence, the sentence is contrary to law.
This court need not address the issues raised in the assignment of error because
Evers must be resentenced. The assignment of error is sustained as to case no. 10-
12-03.
{¶7} The judgment of the Court of Common Pleas of Mercer County in
appellate case no. 10-12-02 is affirmed. The judgment of the Court of Common
Pleas of Mercer County in appellate case no. 10-12-03 is reversed and the matter
remanded for further proceedings.
Judgment Affirmed in Case No. 10-12-02,
and Judgment Reversed and Remanded
in Case No. 10-12-03
PRESTON and ROGERS, J.J., concur.
/jlr
-6-