State v. Music

[Cite as State v. Music, 2015-Ohio-3162.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
: Appellate Case No. 2014-CA-20
Plaintiff-Appellee :
: Trial Court Case Nos. 2014-CR-26
v. : Trial Court Case Nos. 2014-CR-102
:
JOHN A. MUSIC : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 7th day of August, 2015.
...........
KEVIN S. TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor’s Office, 200
North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
DAVID M. MORRISON, Atty. Reg. No. 0087487, Morrison Law Office, LLC, Post Office
Box 750383, Dayton, Ohio 45475
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant John A. Music appeals from his conviction and
-2-
sentence, following guilty pleas, for Domestic Violence, a first-degree misdemeanor;
Assault, a fourth-degree felony; Burglary, a third-degree felony; and, in a separate
prosecution, Domestic Violence, a fourth-degree felony. Music’s assigned appellate
counsel has filed a brief, under the authority of Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he could find no potential assignments
of error having arguable merit. Neither can we. Accordingly, the judgment of the trial
court is Affirmed.
I. The Offenses
{¶ 2} The charges in Case No, 2014 CR 26 in the trial court all concern events
occurring one day in mid-January, 2014. The prosecutor recited these events at the
sentencing hearing:
In the present case [Music] became belligerent. He spat on the
table of Theresa Moorefield. And then Theresa Moorefield understandably
became angry at him for spitting on her table. She asked him to leave and
he refused. Then he subsequently began to assault other people located
in the residence. Assaulted Chelsea Akers. He assaulted Theresa
Moorefield. And he attempted to assault his girlfriend Shyannah Hall.
The girls were so afraid of [Music] that they locked themselves in a
bathroom. Had it not been for Zachariah Mitchell removing [Music] from
the apartment and getting him placed into the hallway and locking the door
[Music] likely would have continued his attempts to assault the girls.
Law enforcement arrived on the scene. [Music] continued in his
-3-
belligerent nature with law enforcement. He made his body limp as they
attempted to remove him from the apartment. This apartment is located on
the second floor. It is essentially an attic. It’s divided – walls were built up
to create separate, little apartments. And there is a very steep staircase
that comes down from that apartment, those apartments, to the outside
area.
[Music] refused to walk willingly down those stairs. Creating a risk
to the safety of law enforcement. The hallway of the staircase is so narrow
that law enforcement could not walk side-by-side with him. So, literally,
one officer had to walk almost in front of him holding an arm while the other
walked behind him holding an arm.
[Music] would make his body go limp and brace his legs on the sides
of the wall of the staircase so as to resist his removal from the apartment.
He kicked a chair that was laying over the staircase causing further risk of
injury to law enforcement and himself. He walked – when finally removed
outside, he, again, fell to the ground making his body limp. And he
attempted to kick Officer Cooper in the groin. Had Officer Cooper not
moved, he would have succeeded. But Officer Cooper moved. And at
the last moment the kick missed the groin area and instead struck Officer
Cooper in the leg.
Officer Cooper was a uniformed officer. There are recordings,
which were provided to Defense Counsel as part of a discovery disclosure,
that clearly illustrate the abusive language and behavior of [Music] and law
-4-
enforcement’s repeated request for him to behave himself. Once in the
cruiser [Music’s] behavior continued. Kicking at the cage. Spitting.
Cursing. Yelling.
THE COURT: And is this while the vehicle was moving?
MR. TALEBI [representing the State]: Both stationary and in
transport. Officer Pratt describes [Music] kicking the back of the cage
behind Officer Pratt’s head while he’s driving [Music] to the police station.
And describes his request for him to stop.
{¶ 3} The charge in Case No. 2014 CR 102 in the trial court concerns events on a
day in early May, 2014. These events were also described by the prosecutor at the
sentencing hearing:
The new criminal activity being yet another act of domestic violence
with yet a completely different victim. This time the victim being Bryan
Lindsey, Jr. [Music’s brother]. Mr. Lindsey apparently, according to the
police report, began to discuss with [Music] his consumption of alcohol.
[Music] was apparently consuming beer at the East Dallas Road address.
When law enforcement arrived on the scene, they were able to
interview Mr. Lindsey. And based on their investigation on what they
believed occurred is that [Music] became angry with Mr. Lindsey for talking
to him about his alcohol consumption. [Music] grabbed a kitchen knife and
threw it at Mr. Lindsey. The kitchen knife missed Mr. Lindsey striking the
refrigerator door.
Mr. Lindsey, fearing for his safety, left the residence. Began to
-5-
cross the street. [Music] pursued him grabbing another large kitchen knife.
Throwing that large kitchen knife at Mr. Lindsey. And this time he
succeeded in striking Mr. Lindsey with this large kitchen knife.
Fortunately, the large kitchen knife struck Mr. Lindsey with the butt or
the handle of the knife and not the sharp end. But it struck him with such
force that it left a fairly significant bruise.
II. The Course of Proceedings
{¶ 4} In Case No. 2014 CR 26, Music was charged by indictment with Assault, in
violation of R.C. 2903.13(A)(C), a first-degree misdemeanor; Burglary, in violation of R.C.
2911.12(A)(1)(d), a second-degree felony; Menacing, in violation of R.C. 2903.22(A), (B),
a fourth-degree misdemeanor; Domestic Violence, in violation of R.C. 2919.25(A), (D)(4),
a third-degree felony; Assault, in violation of R.C. 2903.13(A), (C), a first-degree
misdemeanor; and Assault Upon a Police Officer, in violation of R.C. 2903.13(A)(C)(3),1
a fourth-degree felony.
{¶ 5} Pursuant to a plea agreement, a subsequent charge was added by a bill of
information, charging Music with Burglary, in violation of R.C. 2911.12(A)(3), (D), a
third-degree felony.
{¶ 6} In Case No. 2014 CR 102, Music was charged by bill of information with
Domestic Violence, having previously been convicted in 2010 of Domestic Violence, in
violation of R.C. 2919.25(A),(D)(3), a fourth-degree felony.
1
The indictment erroneously refers to R.C. 2903.13(A)(C)(3), but clearly charges a
violation of R.C. 2903.13(A)(C)(5).
-6-
{¶ 7} On April 14, 2014, in Case No. 2014 CR 26, Music requested, and was
granted, a one-week’s continuance to consider the State’s proposed resolution of the
charges.
{¶ 8} On April 29, 2014, in Case No. 2014 CR 26, Music and the State entered into
a plea agreement wherein the State agreed to amend the Domestic Violence charge to
delete reference to prior convictions, Music agreed to plead guilty to that charge as
amended, to plead guilty to the charge of Assault Upon a Police Officer, and to plead
guilty to an additional charge, added by a bill of information, of Burglary. The State
agreed to dismiss the remaining charges. The State also agreed that it would not pursue
criminal charges against Music relating to attempts to influence the testimony or
availability of witnesses for trial. As part of this plea agreement, Music waived indictment
with respect to the Burglary charge, and accepted service of the bill of information setting
forth that charge. However, Music was not asked to waive his right to one day’s notice of
the bill of information, which had been filed the preceding afternoon. The trial court
ordered a pre-sentence investigation.
{¶ 9} On May 29, 2014, in Case No. 2014 CR 102, Music accepted service of the
bill of information, and pled guilty to the charge of Domestic Violence. As in Case No.
2014 CR 26, Music was not asked to waive one day’s notice of the bill of information.
The trial court then expressed some concern about possibly related Domestic Violence
charges pending in the Champaign County Municipal Court. During a recess, the
prosecutor consulted with the municipal court prosecutor, following which he reported
that these pending charges would be dismissed upon Music’s pleading guilty to the
Domestic Violence charge in Case No. 2014 CR 102.
-7-
{¶ 10} The trial court conducted a sentencing hearing for both cases. The trial
court imposed a five-month sentence for the Domestic Violence offense in Case No. 2014
CR 26, an eighteen-month sentence for Assault Upon a Police Officer, and a 24-month
sentence for Burglary, with the eighteen-month and 24-month sentences to be served
consecutively to one another, but concurrently with the five-month sentence. In Case
No. 2014 CR 102, the trial court sentenced Music to an eighteen-month sentence, to be
served consecutively to the eighteen- and 24-month sentences in Case No. 2014 CR 26,
for a total sentence of 60 months. The trial court also ordered these sentences to be
served concurrently with a pending jail sentence imposed on Music by the municipal
court. No fines or restitution was imposed. The trial court found that Music was not
indigent for purposes of court costs and court-appointed legal fees, and ordered Music to
pay these expenses at a minimum of $50 per month upon his release from confinement.
The trial court approved Music for placement in transitional control, but disapproved him
for shock incarceration or intensive program prison. The trial court made the necessary
findings for the imposition of consecutive sentences. The trial court discussed the
statutory sentencing factors at some length.
{¶ 11} From his conviction and sentence, Music appeals.
III. We Find No Potential Assignments of Error Having Arguable Merit
{¶ 12} Music’s assigned counsel has filed a brief pursuant to Anders v. California,
supra, indicating that he could find no potential assignments of error having arguable
merit. By entry dated April 17, 2015, we allowed Music 60 days within which to file his
own, pro se brief. He has not done so.
-8-
{¶ 13} In his brief, counsel stated that he had considered, as a potential
assignment of error, the failure to have given Music one day after service of the bills of
information within which to answer, as provided in R.C. 2941.49, but had concluded that it
had no merit. We agree.
{¶ 14} R.C. 2941.49 provides that: “A defendant, without his assent, shall not be
arraigned or called on to answer to an indictment until one day has elapsed after receiving
or having an opportunity to receive in person or by counsel, a copy of such indictment.”
Music, through his counsel, accepted service of each bill of information at the same
hearing at which he pled guilty to it. Music did not expressly waive his rights under the
statute. Nevertheless, we conclude that the record demonstrates that Music was not
prejudiced.
{¶ 15} At the April 14, 2014 hearing in Case No. 2014 CR 26, Music requested,
and was granted, a one-week continuance so that he could have more time to consider
the State’s proposed disposition of the case. At the plea hearing on April 29, 2014, the
trial court conducted a thorough plea colloquy, and Music demonstrated no confusion or
uncertainty during the hearing. At this plea hearing, as well as at the plea hearing in
Case No. 2014 CR 102, Music, who was under oath, testified that he had enough
information to make a knowing, intelligent, and voluntary decision with respect to his plea.
{¶ 16} We conclude that the record demonstrates no reasonable possibility that
Music was prejudiced by the failure to have served him with each bill of information at
least one full day before the plea hearing.
{¶ 17} Under Anders v. California, we have an independent duty to review the
record for potential assignments of error having arguable merit. We find none. The
-9-
plea colloquies were exemplary. The trial court made the necessary findings for
consecutive sentences, and the record supports those findings
{¶ 18} We considered one potential assignment of error – that Music was
disapproved for shock incarceration and for intensive program prison without the trial
court giving its reasons for disapproval. We have held that R.C. 2929.19(D) requires that
a trial court give its reasons when disapproving a defendant for either program. State v.
Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963, ¶ 16-27.
{¶ 19} In the case before us, the trial court was not required to set forth any
reasons for disapproving Music for these programs, because Music was not eligible for
them. Under R.C. 5120.032(B)(2)(c), a prisoner serving a prison term for a third-,
fourth-, or fifth-degree felony that is an offense in which the prisoner caused or attempted
to cause actual physical harm to a person is not eligible for intensive program prison.
The eligibility requirements for shock incarceration incorporate R.C. 5120.032. R.C.
5120.031(A)(4). Music’s Assault Upon a Police Officer conviction and his two Domestic
Violence convictions each involved, as an element, the causing, or attempting to cause,
actual physical harm to a person. Therefore, he was not eligible for either program, and
the trial court’s failure to give its reasons for disapproving his participation in the programs
was necessarily harmless.
IV. Conclusion
{¶ 20} No potential assignments of error having arguable merit having been found,
the judgment of the trial court is Affirmed.
.............
-10-
HALL and WELBAUM, JJ., concur.
Copies mailed to:
Kevin S. Talebi
David M. Morrison
John A. Music
Hon. Nick A. Selvaggio