State v. Rockey

[Cite as State v. Rockey, 2019-Ohio-4101.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-98
:
v. : Trial Court Case No. 2017-CR-685
:
JOHNATHAN ROCKEY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 4th day of October, 2019.
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JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JEFFREY R. McQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite 181,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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TUCKER, J.
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{¶ 1} Defendant-appellant, Johnathan Rockey, appeals from his convictions for
one count of felonious assault, a first degree felony pursuant to R.C. 2903.11(A)(2) and
(D)(1)(a); one count of obstructing official business, a fifth degree felony pursuant to R.C.
2921.31; and one count of failure to comply with an order or a signal of a police officer, a
third degree felony pursuant to R.C. 2921.331(B) and (C)(5). In addition, the trial court
found Rockey to be a repeat violent offender under R.C. 2941.149. The court sentenced
him to consecutive terms in prison amounting to a total of 25 years.
{¶ 2} Raising one assignment of error, Rockey argues that the trial court erred by
ordering that he serve his sentences consecutively. We find that Rockey’s argument
lacks merit, and his convictions are therefore affirmed.
I. Facts and Procedural History
{¶ 3} Officers Melvin and Sanders of the Springfield Police Division visited
Rockey’s residence on the evening of October 20, 2017, to execute two warrants for his
arrest. Trial Transcript 109:13-110:24 and 135:6-135:21. Rockey being elsewhere
when they arrived, the officers surveilled the residence from a nearby park. Id. at 110:25-
112:3 and 136:18-137:11. After several minutes, the officers saw a silver pickup truck
being driven into the back yard, and based on information provided by an anonymous
tipster, they anticipated that Rockey was the driver. See id. at 111:7-112:24 and 137:12-
137:21. The officers approached on foot, Officer Melvin walking toward the truck from
the front, and Officer Sanders from the rear. Id. at 112:14-113:4 and 137:18-138:13.
{¶ 4} As they approached the truck, which was parked with its engine turned off,
the door to the driver’s seat opened, and they were able to identify the driver as Rockey.
See id. at 113:5-114:9 and 138:7-138:17. A moment later, Rockey made eye-contact
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with Officer Melvin, to which Rockey responded by closing his door and starting the truck’s
engine. Id. at 114:4-114:9 and 138:21-139:4. The officers ordered Rockey to stop, but
instead, Rockey accelerated the truck in reverse, forcing Officer Sanders to make way.1
See id. at 114:20-115:1 and 139:11-140:8. Rockey then accelerated the truck forward,
forcing Officer Melvin to make way, and made his escape. Id. at 115:2-116:15 and
140:12-141:4.
{¶ 5} On October 26, 2017, the officers returned to Rockey’s residence, though
they employed different tactics. Id. at 141:24-143:10. Officer Melvin surveilled the
residence from the park as before, whereas Officer Sanders waited in his cruiser on the
street. Rockey arrived in a sport utility vehicle shortly after the officers took up their
positions. See id. at 141:24-143:20. He did not stop, but drove past the cruiser in which
Officer Sanders was waiting, leading to a high-speed pursuit. Id. at 142:23-145:1.
Although Rockey evaded capture that night, he was arrested the following morning. Id.
at 204:14-205:13 and 206:25-209:10.
{¶ 6} A Clark County grand jury issued an indictment against Rockey on November
6, 2017, charging him as follows: Counts 1 and 2, felonious assault in violation of R.C.
2903.11(A)(2); Count 3, obstructing official business in violation of R.C. 2921.31(A); and
Count 4, failure to comply with an order or a signal of a police officer in violation of R.C.
2921.331(B). The two counts of felonious assault included repeat violent offender
specifications.
1 Officer Melvin testified that “Officer Sanders had to jump out of the way to avoid being
hit by Mr. Rockey.” Trial Transcript 114:25-115:1. Officer Sanders testified that he “had
to move out of the way from being struck.” Id. at 139:25-140:8.
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{¶ 7} At the end of a two-day jury trial, the jury returned verdicts of not guilty on
Count 1, and guilty on Counts 2 through 4. The trial court found Rockey to be a repeat
violent offender under R.C. 2929.01(CC) and 2941.149, and it sentenced him to terms in
prison of 11 years on Count 2; one year on Count 3; three years on Count 4; and 10 years
on the repeat violent offender specification. Pursuant to R.C. 2929.14(C)(4)(c), the court
ordered that Rockey serve the terms consecutively.
{¶ 8} The court filed a final judgment entry on August 31, 2018. Rockey timely
filed his notice of appeal to this court on September 7, 2018.
II. Analysis
{¶ 9} For his single assignment of error, Rockey contends that:
APPELLANT’S SENTENCE OF MAXIMUM CONSECUTIVE
SENTENCES IS CLEARLY AND CONVINCINGLY UNSUPPORTED BY
THE RECORD.
{¶ 10} Rockey argues that “the record does not support the sentencing [c]ourt’s
findings under R.C. 2929.14(C)(4).” Appellant’s Brief 11. Under the statute, if an
offender is convicted of more than one offense and is sentenced to more than one term
in prison as a result, the trial court “may require the offender to serve the * * * terms
consecutively if [it] finds” that: (1) “consecutive service is necessary to protect the public
from future crime” or “to punish the offender” sufficiently; (2) “consecutive [service] [is] 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 conditions specified in R.C.
2929.14(C)(4)(a)-(c) is applicable.2 The relevant condition in this case is specified in
2 We refer to the version of the statute in effect from October 17, 2017, through October
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R.C. 2929.14(C)(4)(c), pursuant to which consecutive service is warranted if the
“offender’s history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.” See Transcript of
Proceedings 12:15-13:21, Aug. 31, 2018.
{¶ 11} Three of the four prison terms to which the trial court sentenced Rockey,
however, were subject to compulsory consecutive service, irrespective of the provisions
of R.C. 2929.14(C)(4). Under R.C. 2929.14(B)(2)(b)(i)-(iii), a “court shall impose * * * the
longest prison term authorized or required for [a felony] and [further] shall impose * * * an
additional[,] definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten
years,” if the offender “is convicted of or pleads guilty to a specification of the type
described in [R.C.] 2929.149”; if the offender was previously “convicted of or pleaded
guilty” to two or more first-degree felonies that were offenses of violence “within the
preceding twenty years”; and if the “offense or offenses [for] which the offender currently
is being [sentenced]” is “any felony of the first degree that is an offense of violence * * *.”3
See also R.C. 2901.01(A)(9) (defining “[o]ffense of violence”). Where an offender is
sentenced to “an additional prison term imposed under [R.C.] 2929.14(B)(2)(a) or (b),”
the offender “shall serve [the] additional * * * term * * * consecutively to and prior to the
30, 2018.
3 See fn.2, above. In the version of the statute in effect on October 20, 2017, R.C.
2929.14(B)(2)(b)(ii) applied to cases in which the “offender within the preceding twenty
years [had] been convicted of or pleaded guilty to three or more offenses described in
[R.C. 2929.01](CC)(1) * * *, including all [such] offenses * * * of which the offender [was
being] convicted or to which the offender [was] plead[ing] guilty in [a] current prosecution.”
That is, the statute applied to cases in which the offender was currently being convicted
for an offense of the type described in R.C. 2929.01(CC)(1) and, within the preceding 20
years, had already been convicted of or pleaded guilty to two or more such offenses.
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prison term imposed for the underlying offense.”
{¶ 12} With respect to Count 2 of the indictment, Rockey was convicted for
committing felonious assault on a peace officer in violation of R.C. 2903.11(A)(2), a first
degree felony that is an offense of violence. See R.C. 2901.01(A)(9) (defining “[o]ffense
of violence”) and 2903.11(D)(1)(a) (establishing that a violation of R.C. 2903.11(A) is a
first degree felony if “the victim [of the offense] is a peace officer”). As a result, the trial
court found Rockey to be a repeat violent offender pursuant to R.C. 2929.01(CC) and
2941.149, given that he had twice previously been convicted for felonious assault on a
peace officer. Transcript of Proceedings 9:22-10:4 and 12:15-12:25. R.C.
2929.14(B)(2)(b) consequently mandated that the court “impose * * * the longest prison
term authorized [by R.C. 2929.14(A)(1)]” for the offense of felonious assault, as well as a
term of as many as 10 years for the repeat violent offender specification;4 in turn, R.C.
2929.14(B)(2)(d) directed the court to order that Rockey’s service of the sentence for
felonious assault be consecutive to his service of the sentence for the specification.
{¶ 13} With respect to Count 4 of the indictment, Rockey was convicted for
violating R.C. 2921.331(B) under the circumstances described in R.C.
2921.331(C)(5)(a)(ii)—that is, he was convicted for “caus[ing] a substantial risk of serious
physical harm to persons or property” while “operat[ing] a motor vehicle so as willfully to
elude or flee [from] a police officer after receiving a visible or audible signal” to stop.
According to R.C. 2921.331(D), “[i]f an offender is sentenced pursuant to [R.C.
2921.331](C)(4) or (5) * * * for a violation of [R.C. 2921.331](B) * * *, and if the offender is
4 See fn.2, above.
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sentenced to a prison term for that violation, [then] the offender shall serve the prison
term consecutively to any other prison term or mandatory prison term imposed upon the
offender.” The trial court sentenced Rockey to a prison term of three years for his
violation of R.C. 2921.331(B), and the court was thereby obligated under R.C.
2921.331(D) to order that he serve the term consecutively to the other terms to which he
was sentenced.
{¶ 14} Thus, the court had no authority but to order that Rockey’s service of the
term for felonious assault be consecutive to his service of the term for the repeat violent
offender specification, and that his service of the term for failure to comply with an order
or a signal of a police officer be consecutive to his service of both of the foregoing terms.
The only term that Rockey could have been allowed to serve concurrently was the term
imposed for obstructing official business.5
{¶ 15} On review of a trial court’s order requiring an offender to serve terms in
prison consecutively, an appellate court may reverse only if it finds, based on clear and
convincing evidence, “that the record does not support the trial court’s findings” pursuant
to R.C. 2929.14(C)(4). See State v. Dover, 2d Dist. Clark Nos. 2018-CA-107 & 2018-
CA-108, 2019-Ohio-2462, ¶ 8-9. The trial court, here, made “ ‘the findings mandated by
R.C. 2929.14(C)(4) at [Rockey’s] sentencing hearing,’ ” and “ ‘it ha[d] no obligation to
state reasons to support [those] findings.’ ” Id. at ¶ 9, quoting State v. Bonnell, 140 Ohio
5 To be exact, the trial court could only have allowed Rockey to serve the term for
obstructing official business concurrently with either the term for felonious assault or the
term for the repeat violent offender specification. R.C. 2921.331(D), when applicable,
requires that a term for failure to comply with an order or a signal of a police officer be
served consecutively to all other terms to which an offender has been sentenced.
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St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. For purposes of appeal, the
“ ‘question is not whether the trial court had clear and convincing evidence to support its
findings, but rather, whether [the appellant has shown] clearly and convincingly * * * that
the record fails to support the trial court’s findings.’ ” Id., quoting State v. Withrow, 2016-
Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.).
{¶ 16} Rockey challenges the trial court’s findings in three respects. Appellant’s
Brief 11. First, he argues that consecutive service was “disproportionate to the
seriousness of [his] conduct” inasmuch as “neither of the [Springfield Police Division]
officers suffered harm.” Id. Second, noting that a presentence investigation report was
not prepared in this case, he posits that “in the absence of a presentence investigation
report, the [c]ourt was not in a position to weigh the seriousness and recidivism factors
[set forth in] R.C. 2929.12.” Id. Third, he “submits that it is apparent that the court did
not conduct a diligent review of the seriousness and recidivism factors” before it
sentenced him, given that “the sentencing occurred [merely] [two] days” after his trial. Id.{¶ 17} These arguments are unavailing. Regardless of whether the officers were
physically harmed, the trial court was entitled to view the risk of harm created by Rockey’s
conduct as sufficiently serious of itself to warrant consecutive service, particularly in light
of his criminal history. Furthermore, as Rockey himself acknowledges, the preparation
of a presentence investigation report was not required, and his contention that “the court
did not conduct a diligent review of the seriousness and recidivism factors” is unfounded.
See id.; see also R.C. 2953.01. The record available to the court at the time it sentenced
Rockey, which included his criminal history, provided much, if not all, of the information
the court needed, and the two-day interval between his trial and his sentencing hearing
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was not too brief to permit a diligent review.
{¶ 18} Rockey has not shown clearly and convincingly that the record fails to
support the trial court’s findings pursuant to R.C. 2929.14(C)(4)(c). The court ordered
that Rockey serve his terms in prison consecutively because it found that Rockey’s history
of criminal conduct demonstrated that consecutive service was necessary to protect the
public from the prospect that he would commit additional crimes in the future, and his
criminal history provides at least some support for that finding. Rockey’s assignment of
error is overruled.
III. Conclusion
{¶ 19} As a matter of law, the trial court was required to order consecutive service
of the terms in prison to which it sentenced Rockey for felonious assault, for the repeat
violent offender specification attached to the charge of felonious assault, and for failure
to comply with an order or a signal of a police officer. The trial court could have allowed
concurrent service of the term to which it sentenced Rockey for obstructing official
business, but Rockey has not established by citation to clear and convincing evidence
that the record does not support the trial court’s findings under R.C. 2929.14(C)(4).
Therefore, Rockey’s convictions are affirmed.
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HALL, J., concurs.
FROELICH, J., concurs:
{¶ 20} I concur in the majority’s conclusion. I write separately to lament the
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uncertainty, disproportionality, expense, inconsistency, arbitrariness, and, for all intents
and purposes, non-reviewability sanctioned by many of Ohio’s sentencing laws.
Copies sent to:
John M. Lintz
Jeffrey R. McQuiston
Hon. Douglas M. Rastatter