State v. Phillips

[Cite as State v. Phillips, 2016-Ohio-4672.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-150376
TRIAL NO. B-1402743
Plaintiff-Appellee, :
vs. :
VINCENT L. PHILLIPS, :
Defendant-Appellant. :
__________________________ :
APPEAL NO. C-150378
STATE OF OHIO : TRIAL NO. B-1402743
Plaintiff-Appellant, :
vs. : O P I N I O N.
VINCENT L. PHILLIPS, :
Defendant-Appellee. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in C-150376; Affirmed and Cause Remanded
in C-150378
Date of Judgment Entry on Appeal: June 29, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee/Plaintiff-Appellant,
Timothy J. McKenna, for Defendant-Appellant/Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Following a jury trial, defendant-appellant/defendant-appellee
Vincent L. Phillips appeals from his convictions for the attempted murder of a North
College Hill police officer, with an accompanying specification for firing at a peace
officer, carrying a concealed weapon, tampering with evidence, and receiving stolen
property. Because we hold that the convictions were not against the manifest weight
and sufficiency of the evidence adduced at trial, and because Phillips was not denied
the effective assistance of trial counsel, we affirm the trial court’s judgment in
Phillips’ appeal.
{¶2} The state also appeals, challenging the trial court’s failure to impose
additional prison terms for one- and three-year firearm specifications that the jury
had found Phillips guilty of committing. Because the trial court was required, as a
matter of law, to impose an additional prison term for the one-year firearm-
possession specification accompanying the tampering-with-evidence offense, we
remand the matter to the trial court.
I. Encounter In The Alley
{¶3} In the late evening of May 20, 2014, North College Hill police officers
Keith Ryan and Shaun Miller responded to complaints of a group of disorderly
juveniles on the street. Phillips was one of the group. He had been drinking and was
carrying a loaded and cocked semiautomatic pistol. As the officers approached the
group to investigate, Phillips, then age 19, fled on foot. Officer Miller ordered
Phillips to stop and then pursued him into a darkened alleyway.
{¶4} Officer Miller, with his Taser stun gun in his hand, was gaining ground
on Phillips. When he was within 15 feet of Phillips, Officer Miller saw two separate
muzzle flashes just ahead of him in the darkness. Numerous witnesses described
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OHIO FIRST DISTRICT COURT OF APPEALS
hearing the two distinct gunshots about one second apart. Officer Miller was
unharmed and sought cover.
{¶5} Additional police officers, including an officer with a canine unit,
responded and they quickly apprehended Phillips. He was hiding on a nearby garage
roof. The canine unit discovered Phillips’ discarded pistol, still operable and ready to
fire, about 70 feet from his hiding place.
{¶6} When Phillips was arrested he was informed of his Miranda rights to
remain silent. But Phillips responded loudly, “Fuck North College Hill police.” He
berated another North College Hill police officer, screaming, “Then fuck you; you
ain’t shit.” Phillips then yelled out, “North College Hill ain’t shit. I wish I would have
got that bitch ass cop.”
{¶7} Investigating officers found two spent casings near where Officer
Miller had seen the muzzle flashes. They were determined to have been fired from
Phillips’ pistol. A bullet hole was found in a garage near where Officer Miller had
been just as Phillips had begun to fire. The investigators found gun residue on
Phillips’ hands. The pistol had been stolen from a local gun shop.
{¶8} At the police station, Phillips had calmed himself and was cooperative,
polite, and compliant with police requests. In a videotaped confession he admitted
shooting at Officer Miller. He later clarified that he had shot only to effect his
escape.
{¶9} The Hamilton County Grand Jury returned an indictment alleging five
felony offenses: attempted murder and felonious assault, each with accompanying
firearm-facilitation and peace-officer specifications, carrying a concealed weapon,
tampering with evidence, with an accompanying firearm-possession specification,
and receiving stolen property.
{¶10} At trial, Phillips testified in his own defense, claiming that he had been
drunk and had fled from the police in fear that they would find his concealed pistol.
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OHIO FIRST DISTRICT COURT OF APPEALS
He testified that while being pursued by Officer Miller, he had tried to unload and
disassemble the pistol. As he attempted to remove the magazine, the pistol
accidentally discharged twice.
{¶11} The jury returned guilty verdicts on each offense and specification.
The trial court received sentencing memoranda. The state urged a 26-year aggregate
sentence be imposed. After receiving the memoranda, and hearing the arguments of
counsel, the trial court imposed a five-year prison term for the attempted-murder
offense charged in Count 1 of the indictment. It also imposed a seven-year prison
term for the accompanying peace-officer specification—Specification 2—and ordered
that term to be served consecutively to and prior to the term for the predicate felony
offense. Because the trial court determined that felonious assault, as alleged in
Count 2 of the indictment, was an allied offense of similar import to attempted
murder, it did not impose a sentence for that offense or any of the accompanying
specifications. The trial court also imposed a 12-month prison term for the carrying-
a-concealed-weapon offense, and 18-month terms for the tampering-with-evidence
offense under Count 4, and the receiving-stolen-property offense. Those prison
terms were to be served concurrently with the prison term for attempted murder.
{¶12} But the trial court ordered that the remaining specifications, including
the three-year firearm-facilitation specification, Specification 1 to Count 1, and the
single firearm-possession specification accompanying the tampering-with-evidence
offense charged in Count 4, would “merge” with the seven-year prison term imposed
for the peace-officer specification to the attempted-murder offense “for the purpose
of sentencing.” The aggregate prison term was 12 years.
{¶13} Both Phillips and the state appealed from the trial court’s judgment of
conviction. We consolidated the appeals for briefing and resolution.
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OHIO FIRST DISTRICT COURT OF APPEALS
II. Phillips’ Appeal
{¶14} Raising three assignments of error, Phillips challenges the convictions,
though not the sentences, entered below.
a. Sufficiency and weight-of-the-evidence claims
{¶15} In two interrelated assignments of error, Phillips challenges the weight
and the sufficiency of the evidence adduced at trial to support his conviction for
attempted murder, and the accompanying peace-officer specification. Although
Phillips extends his arguments here to also challenge the felonious-assault offense,
the trial court did not enter a judgment of conviction on that charge. Moreover,
Phillips does not advance any argument attacking the weight or the sufficiency of the
evidence supporting his convictions on the remaining charges. See State v. Sanders,
1st Dist. Hamilton Nos. C-140579 and C-140580, 2015-Ohio-5232, ¶ 41 (holding that
alleged errors not argued in the appellate brief are deemed waived).
{¶16} Phillips was convicted of attempted murder under R.C. 2923.02(A),
which proscribes purposely engaging in conduct which, if successful, would have
resulted in a criminal offense, here murder, in violation of R.C. 2903.02. A person
acts purposely when he specifically intends to cause a certain result. See R.C.
2901.22(A). The accompanying peace-officer specification alleged that Phillips had
discharged a firearm at a peace officer while committing the attempted-murder
offense. See R.C. 2941.1412.
{¶17} Our review of the entire record fails to persuade us that the jury, acting
as the trier of fact, clearly lost its way and created such a manifest miscarriage of
justice that the convictions must be reversed and a new trial ordered. See State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We can find no basis in
this record to conclude that this is that “exceptional case in which the evidence
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OHIO FIRST DISTRICT COURT OF APPEALS
weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
{¶18} The jury was entitled to reject Phillips’ explanation, made to the jury at
trial, that he had fled from the police because he was drunk and carrying a firearm,
that he had tried to unload the weapon while fleeing, and that while he was doing so,
the weapon accidentally discharged twice. He denied having any intent to harm
Officer Miller. And he couldn’t recall making any threatening statements about the
police officers after his arrest. Phillips’ theory of defense rested largely on his trial
testimony and his characterization that there was little evidence to corroborate the
state’s contention that he had acted purposely in attempting to murder Officer
Miller.
{¶19} The state presented ample evidence to support the convictions,
including Phillips’ own statement to the arresting and investigating officers that he
had shot at Officer Miller, a peace officer, and that he had wished that he “would
have gotten that bitch ass cop.” The state also introduced substantial physical and
testimonial evidence that Phillips had been carrying a loaded and cocked firearm,
that he had fled when confronted by the police, that he had disappeared into an alley
pursued by Officer Miller, and that two distinct gunshots were heard moments later.
Officer Miller testified that as he closed to within 15 feet of Phillips he saw two bright
muzzle flashes and then took cover. Two spent cartridges were recovered from the
site of the muzzle flashes. The bullets passed close by Officer Miller. One likely
struck a nearby garage located in the opposite direction from which Phillips had said
he was pointing the weapon when it accidentally discharged.
{¶20} Police officers located Phillips minutes later hiding on the roof of a
nearby garage. A police canine unit located his discarded pistol under a tree about
70 feet away. Contrary to Phillips’ assertion that he had partially disassembled the
weapon, it was found fully loaded, with the magazine still in the pistol grip. Phillips’
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OHIO FIRST DISTRICT COURT OF APPEALS
hands contained gunshot residue. Police and firearm experts at trial testified that
Phillips’ semiautomatic pistol was very unlikely to discharge accidentally during
unloading. The weapon could only be fired if the grip safety and the trigger safety
were depressed and if the shooter applied substantial pressure to the trigger.
{¶21} While there may have been some inconsistencies in some of the
witnesses' testimony, these inconsistencies did not significantly discredit their
testimony. As the weight to be given the evidence and the credibility of the witnesses
were for the jury, sitting as the trier of fact, to determine, in resolving conflicts and
limitations in the testimony, the jury could have found that Phillips had purposely
attempted to murder a peace officer. See 2903.02, 2923.02(A) and 2941.1412; see
also State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus.
{¶22} When reviewing the legal sufficiency of the evidence to support a
criminal conviction, we must examine the evidence admitted at trial in the light most
favorable to the prosecution and determine whether the evidence could have
convinced any rational trier of fact that the essential elements of the crime were
proven beyond a reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-
Ohio-791, 842 N.E.2d 996, ¶ 36; see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). In deciding if the evidence was sufficient, we neither
resolve evidentiary conflicts nor assess the credibility of the witnesses, as both are
functions reserved for the trier of fact. See State v. Campbell, 195 Ohio App.3d 9,
2011-Ohio-3458, 958 N.E.2d 622 (1st Dist.).
{¶23} Here, the record reflects substantial, credible evidence from which the
triers of fact could have reasonably concluded that all elements of attempted murder
and the peace-officer specification had been proved beyond a reasonable doubt,
including that Phillips had purposely fired two gunshots at a pursuing police officer
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OHIO FIRST DISTRICT COURT OF APPEALS
at a range of 15 feet. See State v. Baron, 1st Dist. Hamilton No. C-100474, 2011-
Ohio-3204, ¶ 8; see also Conway at ¶ 36.
{¶24} Phillips’ first and second assignments of error are overruled.
b. Ineffective-assistance claim
{¶25} Phillips next argues that he was denied the effective assistance of
counsel for various claimed deficiencies by his trial counsel, including his failure to
employ a crime-scene reconstructionist at trial, and his withdrawal of the motion to
suppress Phillips’ statements made to police after the shooting. The arguments
must fail.
{¶26} To prevail on a claim of ineffective assistance of trial counsel, Phillips
must show, first, that trial counsel’s performance was deficient and, second, that the
deficient performance was so prejudicial that he was denied a reliable and
fundamentally fair proceeding. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct.
838, 122 L.Ed.2d 180 (1993); see also Strickland v. Washington, 466 U.S. 668, 689,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraphs two and three of the syllabus. A reviewing court will
not second-guess trial strategy and must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance. See State v.
Mason, 82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998).
{¶27} In light of Officer Miller’s statements about his pursuit of Phillips and
the other testimonial and physical evidence from the crime scene, it is unclear how
the absence of testimony from a crime-scene reconstructionist rendered the trial
unreliable. Also, the likelihood of success on Phillips’ motion to suppress statements
made after receiving a Miranda warning was low.
{¶28} Phillips’ trial counsel worked to discredit the state’s theory of the case
and to highlight inconsistencies in the witnesses’ testimony. He vigorously argued
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OHIO FIRST DISTRICT COURT OF APPEALS
that Phillips had accidentally discharged the weapon while attempting to unload it.
After reviewing the entire record, and in light of our resolution of the first and
second assignments of error, we hold that counsel’s efforts were not deficient, and
that Phillips was not prejudiced in any way. The result of the trial was reliable and
fundamentally fair. See Fretwell at 370. Phillips’ third assignment of error is
overruled.
III. The State’s Appeal On Sentencing
{¶29} The state has also appealed from the judgment of conviction. See
2953.08(B)(2). In its single assignment of error, the state argues that the sentences
imposed on Phillips for the attempted-murder offense and specifications in Count 1
of the indictment and the tampering-with-evidence offense and specification in
Count 4 are contrary to law. The gravamen of the state’s argument is that, in
addition to imposing a seven-year prison term for the peace-officer specification
accompanying the attempted-murder offense, the trial court should have imposed
both the three-year firearm-facilitation specification also accompanying that offense,
and the one-year firearm-possession specification accompanying the tampering-
with-evidence offense. We agree, in part.
{¶30} A specification “is merely a sentencing provision that requires an
enhanced penalty upon certain findings,” and is “contingent upon an underlying
felony conviction.” State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d
498, ¶ 16. The key to the following analysis is recognizing the primary distinction
between the three types of specifications that the jury found Phillips guilty of: the
one-year firearm-possession specification, the three-year firearm-facilitation
specification, and the seven-year peace-officer specification. The first two
specifications are described in R.C. 2941.141 and 2941.145; the last, in R.C.
2941.1412. The penalties associated with the two firearm specifications are found in
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2929.14(B)(1)(a). The penalty enhancement resulting from being found guilty
of the peace-officer specification is found in R.C. 2929.14(B)(1)(f). The interaction of
the penalties for the two firearm specifications and the peace-officer specification
governs our analysis.
{¶31} In its presentence memorandum and at the sentencing hearing, the
state urged the trial court to impose these specifications and to order that they be
served consecutively. Therefore, under R.C. 2953.08(G)(2), we may modify or vacate
the challenged sentences only if we clearly and convincingly find that they are
contrary to law. See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).
Here, that means that the state must demonstrate that the trial court was required,
as a matter of law, to impose the additional prison terms for the one- and three-year
firearm specifications.
{¶32} The state notes that the trial court determined that the felonious-
assault offense charged in Count 2 of the indictment was an allied offense of similar
import to the attempted-murder offense charged in Count 1. See R.C. 2941.25. Thus
the court did not impose a sentence for the felonious-assault offense, or for its
accompanying specifications. On appeal, the state concludes that “the application of
two seven-year specifications would not apply to Phillips as a result.” Thus it chose
not to challenge any failure to impose mandatory prison terms for specifications
related to the felonious-assault offense. See State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, paragraph two and three of the syllabus (rejecting
the sentencing-package doctrine and prohibiting an appellate court from vacating a
sentence that is not properly before it as the subject of an appeal); see also State v.
Evans, 113 Ohio St.3d 100, 2007-Ohio-861, 863 N.E.2d 113; Sanders, 1st Dist.
Hamilton Nos. C-140579 and C-140580, 2015-Ohio-5232, at ¶ 41 (holding that
alleged errors not argued in the appellate brief are deemed waived).
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OHIO FIRST DISTRICT COURT OF APPEALS
a. No additional penalty for the firearm-facilitation specification
accompanying the attempted-murder offense
{¶33} We begin with the state’s contention that the trial court was required
to impose an additional three-year prison term to the sentence for attempted murder
because the jury had found Phillips guilty of Specification 1 to that offense—a
firearm-facilitation specification. The specification, under R.C. 2941.145, alleged
that Phillips had a firearm on his person or under his control while committing the
attempted-murder offense, and that he had displayed, brandished, or used the
firearm to facilitate the predicate offense.
{¶34} R.C. 2929.14(B)(1)(a)(ii) provides that
[I]f an offender who is convicted of or pleads guilty to a felony
also is convicted of or pleads guilty to a specification of the type
described in section * * * 2941.145 of the Revised Code, the court shall
impose on the offender one of the following prison terms:
***
(ii) A prison term of three years if the specification is of the
type described in section 2941.145 of the Revised Code * * * .
(Emphasis added.)
{¶35} While the jury returned a guilty verdict on the firearm-facilitation
specification accompanying Count 1, the trial court did not impose a sentence for this
specification. The state notes that the usual definition of conviction includes both a
finding of guilt and the imposition of a sentence. E.g., Crim.R. 32. Since no sentence
had been imposed on this specification, ordinarily its reliance on the statute would
be inapposite. But the state argues that when statutory language places a conviction
on equal footing with a guilty plea by requiring proof of either to trigger a sentencing
requirement, the term “conviction” is essentially synonymous with and refers only to
a determination of guilt. We agree.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} The Supreme Court of Ohio and other appellate courts have
interpreted the word “convicted,” when used in the phrase “convicted of or pleads
guilty to,” to mean only a determination of guilt and not the imposition of sentence
upon that determination. See State ex rel. Watkins v. Fiorenzo, 71 Ohio St.3d 259,
260, 643 N.E.2d 521 (1994); see generally State v. Mullins, 10th Dist. Franklin No.
14AP-480, 2015-Ohio-3250, ¶ 9-10. In State v. Baker, 119 Ohio St.3d 197, 2008-
Ohio-3330, 893 N.E.2d 163, ¶ 12, the Ohio Supreme Court identified four ways that a
defendant can be convicted of a criminal offense under this usage: by entering a plea
of guilty; by entering a plea of no contest and being convicted upon a finding of guilt
by the court; by being found guilty by the court after a bench trial; or, as here, by
being found guilty based upon a jury verdict.
{¶37} Since the jury had determined that Phillips was guilty of attempted
murder and the attendant three-year firearm-facilitation specification through its
verdicts, the state maintains that, the trial court was required to impose the
additional three-year prison term upon Phillips under R.C. 2929.14(B)(1)(a)(ii).
{¶38} But here, the trial court actually imposed a seven-year mandatory
prison term, under Specification 2 to the same attempted-murder offense. See R.C.
2929.14(B)(1)(f). That specification alleged that Phillips had discharged a firearm at
a peace officer while committing the attempted-murder offense. See R.C. 2941.1412.
In accordance with R.C. 2929.14(C)(1)(c), the trial court ordered the seven-year
prison term to be served consecutively to and prior to the five-year prison term
imposed for the predicate felony offense. See State v. Parker, 8th Dist. Cuyahoga
No. 98272, 2013-Ohio-2898, ¶ 10.
{¶39} But other provisions of R.C. 2929.14(B)(1)(f) limit a trial court’s
authority to join the seven-year term with other firearm-specification terms. The last
sentence of the section provides that “[i]f a court imposes an additional prison term
on an offender under division (B)(1)(f) of this section relative to an offense, the court
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OHIO FIRST DISTRICT COURT OF APPEALS
shall not impose a prison term under division (B)(1)(a) or (c) of this section relative
to the same offense.” (Emphasis added.) The three-year firearm-facilitation term
challenged here is a prison term provided for under division (B)(1)(a) of R.C.
2929.14. Where, as here, there is an apparent conflict between a general statutory
provision for the imposition of an additional prison term, and a more specific one
expressly proscribing that act, we rely upon the canon of statutory construction that
the specific legislation prevails over the general. See R.C. 1.51.
{¶40} Thus, we hold that a trial court that imposes a seven-year prison term
for a peace-officer specification cannot also impose a three-year prison term for a
firearm-facilitation specification for the same offense. See State v. Berecz, 4th Dist.
Washington No. 08CA48, 2010-Ohio-285, ¶ 63 (applying identical language in
former R.C. 2929.14(D)(1)(f)); see also State v. Phillips, 8th Dist. Cuyahoga No.
96329, 2012-Ohio-473, ¶ 55 (state conceded that, under former R.C.
2929.14(D)(1)(f), a seven-year peace-office specification accompanying a felonious-
assault count could not be combined with other, three-year firearm specifications for
that offense).
{¶41} Since the trial court’s failure to impose an additional three-year prison
term was not clearly and convincingly contrary to law, the trial court did not err in
failing to do so. See R.C. 2953.08(G).
b. The trial court was required to impose a one-year prison term for the
firearm-possession specification
{¶42} The state next challenges the trial court’s failure to impose an
additional one-year prison term to the sentence imposed for tampering with
evidence as alleged in Count 4 of the indictment. The trial court imposed an 18-
month prison term for the predicate felony offense. While the court ordered that
term to be served concurrently with the 12-year aggregate term imposed for
attempted murder, there is no requirement in R.C. 2929.14(B) that sentences for
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OHIO FIRST DISTRICT COURT OF APPEALS
underlying offenses must be imposed consecutively for an offender to receive
separate sentences on related specifications. See State v. Fortune, 2015-Ohio-4019,
42 N.E.3d 1224, ¶ 21 (11th Dist.).
{¶43} As the state argues, the trial court’s obligation to impose a mandatory
one-year prison term is found in R.C. 2929.14(B)(1)(a)(iii). That statute provides
[I]f an offender who is convicted of or pleads guilty to a felony
also is convicted of or pleads guilty to a specification of the type
described in section 2941.141 * * * of the Revised Code, the court shall
impose on the offender one of the following prison terms:
***
(iii) A prison term of one year if the specification is of the type
described in section 2941.141 of the Revised Code that charges the
offender with having a firearm on or about the offender’s person or
under the offender’s control while committing the felony.
{¶44} It is clear from the record that the trial court failed to comply with this
mandate, and we can find no specific statutory provision, as we did above, excusing
the court from this obligation. There was no indication in the court’s sentencing
entry, or at the sentencing hearing, that the court intended to or actually did impose
any period of confinement for the firearm-possession specification to Count 4. The
sentencing entry simply states that “* * * SPECIFICATION #1 TO COUNT #4 [IS]
MERGED WITH SPECIFICATION #2 TO COUNT #1 FOR THE PURPOSE OF
SENTENCING.” This use of courthouse shorthand is not sufficient to demonstrate
that the trial court complied with its obligation under R.C. 2929.14(B)(1)(a)(iii) to
impose on the offender a one-year prison term. Were the conviction and sentences
imposed under the attempted-murder offense to be overturned on subsequent
appeal, the state would clearly be prejudiced by this failure.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶45} Since the trial court was required, as a matter of law, to impose the
additional one-year prison term for the firearm-possession specification, and order it
to be served consecutively to and prior to the term for tampering with evidence, we
clearly and convincingly find that the sentence imposed for Count 4 was contrary to
law. See R.C. 2953.08(G)(2).
c. No requirement that the one-year firearm-possession specification be
imposed consecutively to any other prison term
{¶46} The state next argues that the trial court was required to impose the
one-year prison term for the firearm-possession specification to be served
consecutively not only to the 18-month sentence for tampering with evidence, but
also to the seven-year peace-officer specification imposed under Count 1.
{¶47} The state first maintains that under R.C. 2929.14(C)(1)(a), a one-year
prison term imposed for a firearm-possession specification must be served
consecutively to any other prison term. To the contrary, R.C. 2929.14(C)(1)(a)
provides only that when a trial court imposes a mandatory prison term based on a
firearm-possession specification, the offender must serve that term consecutively to
any other mandatory prison term for a firearm specification, a drive-by shooting
specification, a human-trafficking specification, or a pregnancy-related-offense
specification, and consecutively to and prior to the prison term imposed for the
predicate felony. The statute does not mention peace-officer specifications.
{¶48} The state next asserts that R.C. 2929.14(B)(1)(g) required the trial
court to impose the additional one-year prison term consecutively to the term for the
seven-year peace-officer specification.
{¶49} R.C. 2929.14(B)(1)(g) creates an exception to the general rule
prohibiting multiple punishments for two or more firearm specifications arising out
of a single act or transaction. See R.C. 2929.14(B)(1)(b). The exception provides that
a trial court shall impose a separate prison term for each of the two most serious
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OHIO FIRST DISTRICT COURT OF APPEALS
specifications where (1) an offender is determined to be guilty of two or more
felonies, one of which is a felony specifically enumerated in the statute, such as
attempted murder, and (2) the offender is determined to be guilty of firearm
specifications under R.C. 2929.14(B)(1)(a) in connection with two or more of the
felonies. See State v. Adams, 1st Dist. Hamilton No. C-120059, 2013-Ohio-926, ¶ 31.
{¶50} But the language of R.C. 2929.14(B)(1)(b) and 2929.14(B)(1)(g) reveals
that the General Assembly enacted the latter statute to provide an exception to the
general rule contained in the former, against imposing more than one penalty for
multiple firearm specifications when the offender has committed certain, serious
offenses. See State v. Isreal, 12th Dist. Warren No. CA2011-11-15, 2012-Ohio-4876, ¶
73. As with R.C. 2929.14(C)(1)(a), the statute does not mention the peace-officer
specification, and does not control the trial court’s decision on whether to impose a
penalty for a firearm-possession specification consecutively to another specification
not described in R.C. 2929.14(B)(1)(a).
{¶51} This is particularly so where the General Assembly has provided that
guidance in other statutory enactments. As noted above, R.C. 2929.14(B)(1)(f)
prevents the imposition of a penalty for a firearm specification when a seven-year
prison term has been imposed for a peace-officer specification. And R.C.
2929.14(C)(1)(c) describes which other prison terms must be served consecutively to
any prison term imposed for a peace-officer specification.
{¶52} The statute provides, in its entirety, that
If a mandatory prison term is imposed upon an offender
pursuant to division (B)(1)(f) of this section, the offender shall serve
the mandatory prison term so imposed consecutively to and prior to
any prison term imposed for the underlying felony under division (A),
(B)(2), or (B)(3) of this section or any other section of the Revised
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OHIO FIRST DISTRICT COURT OF APPEALS
Code, and consecutively to any other prison term or mandatory
prison term previously or subsequently imposed upon the offender.
{¶53} Unlike the other consecutive-sentencing provisions of R.C.
2929.14(C)(1), including the previously cited division (C)(1)(a), division (C)(1)(c)
does not contain the mandate that a prison term for the peace-officer specification
must be imposed consecutively to terms imposed under other divisions of R.C.
2929.14(B) or to any other mandatory prison terms, except for the underlying felony.
“Therefore, we can only assume that the legislature did not intend that the
mandatory seven-year firearm specification was required to run consecutively to any
other mandatory firearm specification or any other mandatory prison term,” save for
the predicate felony offense, and prior sentences or additional sentences imposed
upon the offender by an unrelated indictment. Parker, 8th Dist. Cuyahoga No.
98272, 2013-Ohio-2898, at ¶ 15. Thus there is no statutory authority that would
require the court to impose the one-year prison term for the firearm-possession
specification consecutively to the seven-year peace-officer prison term.
{¶54} But, as the Parker court noted, the trial court can exercise its
discretion and order a firearm-possession specification, not imposed for the same
offense, to be served consecutively to the term for the peace-officer specification, if
the court deems it warranted and the sentence is not otherwise contrary to law. See
id. at ¶ 17.
{¶55} Since the trial court was required to impose the additional prison term
for the one-year firearm-possession specification, but was not required to order that
it be served consecutively to the term for the seven-year peace officer specification,
upon remand the trial court shall impose the mandatory term and then exercise its
discretion as to whether to impose that term consecutively to any other. See R.C.
2953.08(G)(2). The state’s sole assignment of error is sustained, in part, in that the
trial court was required to impose an additional prison term for the one-year
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OHIO FIRST DISTRICT COURT OF APPEALS
firearm-possession specification accompanying the tampering-with-evidence offense
in Count 4. It is overruled in all other respects.
IV. Conclusion
{¶56} Having overruled each of Phillips’ assignments of error, in the appeal
numbered C-150376, and having sustained the state’s assignment of error, in part, in
its appeal numbered C-150378, we affirm the trial court’s judgment and remand the
cause to the trial court with instructions that it impose a one-year prison term for the
firearm-possession specification accompanying Count 4. The term for the firearm-
possession specification is to be served consecutively to and prior to the 18-month
prison term imposed for the tampering-with-evidence offense in that count. It lies
within the trial court’s discretion as to whether to impose the term for that
specification consecutively to the seven-year prison term imposed for the peace-
officer specification under Count 1.
Judgment accordingly.
DEWINE and MOCK, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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