State v. Wampler

[Cite as State v. Wampler, 2014-Ohio-37.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
DAVID F. WAMPLER : Case No. 13-CA-3
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
12 CR 29
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 2, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS
Prosecuting Attorney Box 40
West Jefferson, OH 43162
By: JAMES A. DAVEY
Assistant Prosecuting Attorney
239 W. Main Street, Suite 101
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-3 2
Baldwin, J.
{¶1} Appellant David F. Wampler appeals a judgment of the Fairfield County
Common Pleas Court convicting him of four counts of aggravated arson (R.C.
2909.02(A)(1) &(2)), one count of attempted aggravated arson (R.C. 2909.02(A)(2),
2923.02), and four counts of arson (R.C. 2909.03(A)(1), (B)(2)(b)). Appellee is the
State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On July 6, 2011, appellant lived on 522 East Mulberry Street in Lancaster,
Ohio, with Howard Crane and Rose Bennett. He spent the evening of July 6 drinking
and visiting next door at the home of Kathy Clum. Rose Bennett’s daughter Barbie and
her boyfriend Chip were also at Clum’s house.
{¶3} Appellant began to accuse Barbie of cheating on Chip, and appellant
called Barbie names. Kathy became upset with appellant. The two engaged in an
argument, during which appellant said to Kathy, “I’m going to fuck you up.” Chip
physically picked appellant up and removed him from the back yard. Upon returning
home, appellant told Rose Bennett that he was going to “get the bitch,” referring to
Kathy, and he was going to “burn it down.”
{¶4} At 12:56 a.m. on July 7, 2011, Kathy was sitting on her front porch when
she heard an explosion. Rose noticed flames coming from Kathy’s garage. Rose and
Howard ran next door to alert Kathy to the fire, and helped her remove items from the
garage. The fire began to spread to the house which was about 13-15 feet away,
melting the siding. Shortly thereafter, fires were reported at two homes behind Kathy
Clum’s home on Mulberry street. The fire at one home was started by lighting a lattice
Fairfield County, Case No. 13-CA-3 3
attached to the porch. The flames began climbing to the second story. At the time of
the fire, Jason Uhl was asleep upstairs. When firefighters arrived on the scene, Uhl was
coming out of the house, having been awakened by a phone call from his girlfriend and
by pounding on his door. The third fire was started when a seat cushion on the porch
furniture was set on fire. Gina Getz was home when the fire started. During this same
time period of approximately 45 minutes, three vehicles parked a short distance from
the house fires were set on fire and completely destroyed.
{¶5} The next day, police arrested appellant on a probation violation warrant.
They found him hiding in a closet in his residence. Although appellant had told Howard
Crane he was staying inside after the argument with Kathy, he admitted that he was
walking around outside during the time of the fires. In fact, video surveillance from a
bank recorded appellant walking in the area of the fires during the time period in which
the fires were set.
{¶6} Appellant was charged in a 16-count indictment with four counts of
aggravated arson, one count of attempted arson, ten counts of arson and one count of
theft. The theft charge and several of the counts of arson related to events which
occurred on October 18, 2011.
{¶7} The case proceeded to jury trial in the Fairfield County Common Pleas
Court. At trial, fire inspector Jason Coy testified that the pattern of fires set on July 7,
2011, was consistent with a “spree arsonist,” where three or more fires are set with no
cooling off period, with the arsonist typically having a motive for setting the first fire.
Coy described how by walking the route of the fires set on July 7, 2011, he concluded
that one person could have set all the fires. He further testified that the video showing
Fairfield County, Case No. 13-CA-3 4
appellant walking by a bank at 1:10 a.m. corresponded to appellant’s approximate
location if he walked from the house fires set at 1:07 to the car fires reported at 1:13
a.m. Coy testified that the fires all were consistent with being set with the flick of a
lighter with no accelerant. Crane testified that appellant smoked, and carried a Bic
lighter with him.
{¶8} Following trial, appellant was convicted of four counts of aggravated
arson, one count of attempted aggravated arson, and four counts of arson, all related to
the fires set on July 7, 2011. He was acquitted of the remaining charges, including all
charges related to fires set on October 18, 2011. The court merged counts one and two
and sentenced appellant to eight years incarceration on count one. The court
sentenced appellant to five years incarceration for count three, and 18 months each for
counts four, five, six and seven. The court merged counts eight and nine and
sentenced appellant to nine years incarceration. The court ordered all sentences to run
consecutively. Appellant assigns five errors on appeal to this Court:
{¶9} “I. DEFENDANT-APPELLANT WAS DENIED A SPEEDY TRIAL UNDER
OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
{¶10} “II. THE CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE
AND WAS OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
{¶11} “III. DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY THE
IMPROPER JOINDER OF OFFENSES CONTRARY TO OHIO LAW AND THE STATE
AND FEDERAL CONSTITUTIONS.
Fairfield County, Case No. 13-CA-3 5
{¶12} “IV. DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY A
SENTENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.
{¶13} “V. DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL
CONSTITUTIONS.”
I.
{¶14} Appellant argues that he was denied his right to a speedy trial, as he was
not brought to trial within the time limits set forth in R.C. 2945.71. While the state
argues that appellant has waived this issue by failing to file a motion to dismiss, the
parties did file memoranda to the trial court on the issue of the time remaining for trial,
and the trial court issued a judgment entry on the time remaining for trial on August 17,
2012. Therefore, we will consider this issue on the merits.
{¶15} The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to
these constitutional mandates, R.C. 2945.71 through R.C. 2945.73 prescribe specific
time requirements within which the State must bring an accused to trial. State v. Baker,
78 Ohio St.3d 108, 110, 1997-Ohio-229, 676 N.E.2d 883. R.C. 2945.71 provides, in
pertinent part:
{¶16} “(C) A person against whom a charge of felony is pending:
{¶17} “(2) Shall be brought to trial within two hundred seventy days after the
person's arrest....
Fairfield County, Case No. 13-CA-3 6
{¶18} “(E) For purposes of computing time under divisions (A), (B), (C)(2), and
(D) of this section, each day during which the accused is held in jail in lieu of bail on the
pending charge shall be counted as three days. This division does not apply for
purposes of computing time under division (C)(1) of this section.”
{¶19} However, the time limit can be tolled, or extended, pursuant to R.C.
2945.72, which states, in relevant part:
{¶20} “The time within which an accused must be brought to trial, * * * may be
extended only by the following:
{¶21} “(E) Any period of delay necessitated by reason of a .... motion,
proceeding, or action made or instituted by the accused.
{¶22} “(H) The period of any continuance granted on the accused's own motion,
and the period of any reasonable continuance granted other than upon the accused's
own motion.”
{¶23} Speedy trial statutes are to be strictly construed against the State. State v.
Miller, 113 Ohio App.3d 606, 681 N.E.2d 970(1996). In reviewing a speedy trial claim,
an appellate court must count days chargeable to each side and determine whether the
case was tried within the statutory time limits. City of Oregon v. Kohne, 117 Ohio
App.3d 179, 690 N.E.2d 66 (1997).
{¶24} Appellant was served with the arrest warrant on January 23, 2012. He
was held in jail in lieu of bail; thus the triple-count provision of R.C. 2945.71(E) applied.
{¶25} On January 26, 2012, appellant filed a request for discovery and for a bill
of particulars, thus tolling the time pursuant to R.C. 2945.72(E). At that point, six days
had elapsed pursuant to the triple-count provision. The State responded to appellant’s
Fairfield County, Case No. 13-CA-3 7
request on February 3, 2012. Thus, time began to run again until appellant filed a
request for an appointment of an expert on February 29, 2012, thus tolling the time.
Applying the triple-count provision, seventy-eight more days elapsed, bringing the total
number of days to eighty-four.
{¶26} Appellant filed a motion to continue the trial on March 1, 2012, thus the
time remained tolled pursuant to R.C. 2945.72(H) during the period of continuance.
Trial was set for jury trial starting April 24, 2012. However, on March 30, 2012,
appellant filed a waiver of his speedy trial rights. He filed a withdrawal of his speedy
trial waiver on April 26, 2012. Thus, time ceased to be tolled and began to run again on
April 26, 2012.
{¶27} Time ran from April 26, 2012, until May 23, 2012, when appellant filed a
motion to sever the counts in the indictment, a tolling event pursuant to R.C.
2945.72(E). Based on the triple count provision, eighty-one more days elapsed,
bringing the total number of days elapsed to 165 days. On May 23, 2012, appellant
also filed a waiver of his speedy trial rights for a period of sixty days. Thus, time was
tolled until July 23, 2012.
{¶28} During this time, appellant was indicted on unrelated charges and held in
prison. A defendant is entitled to the benefit of the triple-count provision of R.C.
2945.71(E) only when he is held in prison on solely on the pending charge. State v.
Kaiser, 56 Ohio St. 2d 29, 34,381 N.E.2d 633 (1978). Therefore, as of July 13, 2012,
the triple-count provision ceased to apply.
{¶29} Further, on July 16, 2012, appellant filed a motion to disqualify the
prosecuting attorney, tolling the time until the motion was overruled on July 30, 2012.
Fairfield County, Case No. 13-CA-3 8
Time therefore begin to run again on that date. At that point, 105 days remained in
which appellant must be brought to trial. Appellant’s trial began 85 days later, on
October 23, 2012. Appellant’s right to a speedy trial was not violated in the instant
case.
{¶30} The first assignment of error is overruled.
II.
{¶31} In his second assignment of error, appellant argues that the judgment was
against the manifest weight and sufficiency of the evidence.
{¶32} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1983).
{¶33} An appellate court's function when reviewing the sufficiency of the
evidence is to determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶34} Appellant was convicted of aggravated arson in violation of R.C.
2909.02(A):
Fairfield County, Case No. 13-CA-3 9
{¶35} “(A) No person, by means of fire or explosion, shall knowingly do any of
the following:
{¶36} “(1) Create a substantial risk of serious physical harm to any person other
than the offender;
{¶37} “(2) Cause physical harm to any occupied structure[.]”
{¶38} Appellant was also convicted of arson in violation of R.C. 2909.03:
{¶39} “(A) No person, by means of fire or explosion, shall knowingly do any of
the following:
{¶40} “ (1) Cause, or create a substantial risk of, physical harm to any property
of another without the other person's consent[.]
{¶41} “(B)(1) Whoever violates this section is guilty of arson.
{¶42} “(2) A violation of division (A)(1) of this section is one of the following:
{¶43} “(b) If the value of the property or the amount of the physical harm
involved is one thousand dollars or more, a felony of the fourth degree.”
{¶44} Appellant first argues that the judgments on counts one, three, four and
nine were not supported by sufficient evidence because there was no evidence the
buildings were “occupied structures.” He argues the fires were set to a detached
garage, a porch, and a lattice, not to an occupied structure.
{¶45} Occupied structure is defined by R.C. 2909.01(C):
{¶46} “(C) ‘Occupied structure’ means any house, building, outbuilding,
watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter,
or any portion thereof, to which any of the following applies:
Fairfield County, Case No. 13-CA-3 10
{¶47} “(1) It is maintained as a permanent or temporary dwelling, even though it
is temporarily unoccupied and whether or not any person is actually present.
{¶48} “(2) At the time, it is occupied as the permanent or temporary habitation of
any person, whether or not any person is actually present.
{¶49} “(3) At the time, it is specially adapted for the overnight accommodation of
any person, whether or not any person is actually present.
{¶50} “(4) At the time, any person is present or likely to be present in it.”
{¶51} Appellant appears to interpret R.C. 2909.02(A)(2) to require that the
offender set fire directly to an occupied structure. The statute only requires that the
offender, by means of fire or explosion, knowingly cause harm to an occupied structure.
R.C. 2901.22(B) provides that a “person acts knowingly, regardless of his purpose,
when he is aware that his conduct will probably cause a certain result or will probably be
of a certain nature.”
{¶52} The fire at the home of Kathy Clum was set to an unoccupied garage;
however, the fire started to spread to the house before firefighters were able to
extinguish it. The house was about 13-15 feet from the garage, and the fire was started
on the side nearest the house. The evidence established that the fire melted the siding
on the house, causing physical harm to the house. From this evidence, the jury could
conclude that appellant knowingly caused physical harm to Clum’s home by lighting the
fire in the garage.
{¶53} The fire at the home of Gina Getz was set to furniture on the front porch.
At the time, Gina was asleep upstairs in the home. The porch was attached to the
Fairfield County, Case No. 13-CA-3 11
house. This evidence was sufficient to prove that appellant knowingly caused physical
harm to an occupied structure.
{¶54} The fire at the home of Maria Marzano was set to a lattice attached to the
porch, and the flames began climbing to the second story. At the time of the fire, Jason
Uhl was asleep upstairs. When firefighters arrived on the scene, Uhl was coming out of
the house, having been awakened by a phone call from his girlfriend and by pounding
on his door. The fire did $20,000.00 worth of damage to Marzano’s belongings and
$120,000.00 in damage to the home. This evidence was sufficient to prove that
appellant knowingly caused physical harm to an occupied structure.
{¶55} Appellant next argues that as to the three counts of arson for the vehicles
belonging to Sherry Lowe, William Young and Sara Sells, the evidence was insufficient
to prove that the value of the vehicles or the amount of the physical harm to the vehicles
was at least $1,000.00.
{¶56} R.C. 2909.11 sets forth the criteria to use in evaluating whether the
amount of physical harm is at least $1,000.00, thus elevating the degree of the offense
of arson as defined by R.C. 2909.03 to a felony:
{¶57} “(B) The following criteria shall be used in determining the value of
property or amount of physical harm involved in a violation of division (A)(1) of section
2909.03 or section 2909.05 of the Revised Code:
{¶58} “(1) If the property is an heirloom, memento, collector's item, antique,
museum piece, manuscript, document, record, or other thing that is either irreplaceable
or is replaceable only on the expenditure of substantial time, effort, or money, the value
Fairfield County, Case No. 13-CA-3 12
of the property or the amount of physical harm involved is the amount that would
compensate the owner for its loss.
{¶59} “(2) If the property is not covered under division (B)(1) of this section and
the physical harm is such that the property can be restored substantially to its former
condition, the amount of physical harm involved is the reasonable cost of restoring the
property.
{¶60} “(3) If the property is not covered under division (B)(1) of this section and
the physical harm is such that the property cannot be restored substantially to its former
condition, the value of the property, in the case of personal property, is the cost of
replacing the property with new property of like kind and quality, and, in the case of real
property or real property fixtures, is the difference in the fair market value of the property
immediately before and immediately after the offense.”
{¶61} Sherry Lowe’s 1993 Sundance was completely destroyed by the fire. She
testified that members of her church bought the vehicle for $800.00 so that she could
transport her foster child. She further testified that the child’s car seat was in the
backseat of the car at the time it was destroyed by fire. Viewing this evidence in a light
most favorable to the state, the jury could conclude pursuant to R.C. 2909.11(B)(3) that
the cost of replacing the car and car seat with a car and car seat of like kind and quality
was $1,000.00.
{¶62} William Young testified that he purchased his 1990 Ford Ranger for
$1,000.00 a year earlier. He testified that he scrapped the vehicle after the fire
because the cost to repair it was greater than the cost of the vehicle. Viewing this
evidence in a light most favorable to the state, the jury could conclude pursuant to R.C.
Fairfield County, Case No. 13-CA-3 13
2909.11(B)(3) that the cost of replacing the vehicle with one of like kind and quality was
$1,000.00 or more.
{¶63} Sara Sells testified that she purchased her 1998 Chevy Astro van one
year earlier for $3,000.00. Viewing this evidence in a light most favorable to the state,
the jury could conclude pursuant to R.C. 2909.11(B)(3) that the cost of replacing the van
with one of like kind and quality exceeded $1,000.00.
{¶64} Appellant next argues that the judgment finding him to be the perpetrator
is against the manifest weight of the evidence. All of the fires were reported within a 45-
minute time period, in the area where appellant was living and where he was seen
walking on video surveillance. Appellant was angry with Kathy Clum earlier, and
threatened to “fuck her up.” He also said that he was going to “get the bitch” and
referenced burning as the means he intended to use. The first fire was set to Clum’s
house not long after this argument between appellant and Clum. An expert witness
testified that the pattern of the fires demonstrated “spree arson,” where the motive is
usually detected at the first fire set. In this case, the fire at Clum’s house was the first
fire set, not long after appellant argued with her and threatened her. The next house
fires were set behind Clum’s residence, and the remaining fires were within walking
distance. While there were other suspects which police investigated, they were
eliminated from suspicion fires for a variety of reasons. Based on the evidence
presented, the jury did not lose its way in identifying appellant as the perpetrator.
{¶65} Appellant next argues that the evidence did not support his conviction of
aggravated arson in count eight, as Jason Uhl escaped from the home. He argues
there was not a substantial risk of physical harm to Uhl. We disagree. Uhl was asleep
Fairfield County, Case No. 13-CA-3 14
inside the house when the fire was set. He was awakened by a telephone call from his
girlfriend and someone banging on the door. The house was smoky inside and flames
were beginning to climb to the second story from the lattice. Further, the state
presented expert testimony that if someone was asleep and did not wake up, he
probably would not have made it out of the home safely because of the smoke and fire
damage.
{¶66} Finally, appellant argues that the jury erred in relying on the expert
testimony of Jason Coy, the fire inspector, as he did not phrase his conclusions to a
reasonable degree of scientific certainty. Appellant did not object to his testimony, and
in fact stipulated that Coy was an expert. Appellant does not assign error to the
admission of Coy’s testimony. Therefore, the jury could properly rely on Coy’s
testimony.
{¶67} The second assignment of error is overruled.
III.
{¶68} In his third assignment of error, appellant argues that the court erred in
overruling his motion to sever the counts related to the events of October 18, 2011. The
trial court found that evidence of the events of July 7, 2011 and October 18, 2011
shared similar characteristics, and evidence of the other alleged arsons and of the theft
would have been admissible in separate trials pursuant to Evid. R. 404(B) as proof of
intent, plan, knowledge, motive, opportunity, or absence of accident.
{¶69} Ohio Criminal Rule 8(A) governs joinder of offenses, and provides:
{¶70} “Two or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the offenses charged,
Fairfield County, Case No. 13-CA-3 15
whether felonies or misdemeanors or both, are of the same or similar character, or are
based on the same act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are part of a
course of criminal conduct.”
{¶71} Criminal Rule 14 governs relief from prejudicial joinder, and states:
{¶72} “If it appears that a defendant or the state is prejudiced by a joinder of
offenses or of defendants in an indictment, information, or complaint, or by such joinder
for trial together of indictments, informations or complaints, the court shall order an
election or separate trial of counts, grant a severance of defendants, or provide such
other relief as justice requires. In ruling on a motion by a defendant for severance, the
court shall order the prosecuting attorney to deliver to the court for inspection pursuant
to Rule 16(B)(1) any statements or confessions made by the defendants which the state
intends to introduce in evidence at the trial.”
{¶73} Joinder is liberally permitted to conserve judicial resources, reduce the
chance of incongruous results in successive trials, and diminish inconvenience to the
witnesses. State v. Schaim, 65 Ohio St.3d 51,600 N.E.2d 661, 1992-Ohio-31. Joinder
of offenses solely because they are of the same or similar character creates a greater
risk of prejudice to the defendant, while the benefits from consolidation are reduced
because “unrelated offenses normally involve different times, separate locations, and
distinct sets of witnesses and victims.” Id. When a defendant claims he or she was
prejudiced by the joinder of multiple offenses, the court must determine (1) whether
evidence of the other crimes would be admissible even if the counts were severed; and
(2) if not, whether the evidence of each crime is simple and distinct. Id. at 59. The
Fairfield County, Case No. 13-CA-3 16
defendant bears the burden of proving prejudice and that the trial court abused its
discretion in denying severance. Id.{¶74} Appellant has not demonstrated prejudice from joinder. The jury acquitted
appellant of all counts related to October 18, 2011. The evidence of each of the fires,
and the alleged theft of a motorcycle on October 18, 2011, was simple and distinct. The
jury’s verdict demonstrates that they were able to separate the evidence of each fire
and make a determination on each count. As discussed in assignment of error two, the
jury’s verdict on counts one through nine was supported by the evidence, and appellant
has not demonstrated that he was prejudiced by admission of evidence concerning the
counts on which he was ultimately acquitted.
{¶75} The third assignment of error is overruled.
IV.
{¶76} In his fourth assignment of error, appellant argues that the court erred in
sentencing him consecutively. He argues that his sentence is unfair when compared to
that of Sherie L. Bomar, who was also convicted of aggravated arson, particularly as no
one was injured in appellant’s case. He also argues that the offense were a part of a
“spree” and therefore are allied offenses of similar import.
{¶77} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The General Assembly has thus expressed its intent to revive the
statutory fact-finding provisions pertaining to the imposition of consecutive sentences
that were effective pre-Foster. See State v. Wells, Cuyahoga App.No. 98428, 2013–
Ohio–1179, ¶ 11. These revisions to the felony sentencing statutes now require a trial
Fairfield County, Case No. 13-CA-3 17
court to make specific findings when imposing consecutive sentences. Nonetheless,
“[a]lthough H.B. 86 requires the trial court to make findings before imposing a
consecutive sentence, it does not require the trial court to give its reasons for imposing
the sentence.” State v. Bentley, Marion App.No. 9–12–31, 2013–Ohio–852, ¶ 12, citing
State v. Frasca, Trumbull App.No.2011–T–0108, 2012–Ohio–3746, ¶ 57. Likewise,
“under H.B. 86, a trial court is not required to articulate and justify its findings at the
sentencing hearing when it imposes consecutive sentences as it had to do under S.B.
2.” State v. Redd, Cuyahoga App.No. 98064, 2012–Ohio–5417, ¶ 12. But the record
must clearly demonstrate that consecutive sentences are not only appropriate, but are
clearly supported by the record. See State v. Bonnell, Delaware App.No. 12CAA3022,
2012–Ohio–5150.
{¶78} R.C. 2929.14(C)(4) provides, in relevant part:
{¶79} “(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds 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, and if the court also finds any of the following:
{¶80} “(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.
Fairfield County, Case No. 13-CA-3 18
{¶81} “(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 any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
{¶82} “(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶83} In its sentencing entry, the court found that consecutive sentencing is
necessary to punish appellant and protect the public, consecutive sentencing is not
disproportionate to the purposes and principles of felony sentencing, and consecutive
sentencing is necessary given appellant’s history. Judgment, January 2, 2013. The
trial court explained at length in the sentencing transcript the reasons for sentencing
appellant consecutively. The court was concerned with appellant’s lengthy criminal
history dating back to 1997, and that despite repeated incarcerations, appellant has not
become motivated to deal with his underlying alcohol abuse issues, which the court
believed to be the crux of what led appellant to this point. Sent. Tr. 18. The record
does not reflect what the particular circumstances were of Bomar’s sentence; however,
in the instant case the court clearly set forth its reasons for sentencing appellant to a
lengthy term of incarceration.
{¶84} While appellant claims the fires were a part of the same course of
conduct, the offenses are not allied offenses of similar import.
{¶85} R.C. 2941.25 reads as follows:
Fairfield County, Case No. 13-CA-3 19
{¶86} “(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
{¶87} “(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the defendant may be
convicted of all of them.”
{¶88} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d
1061, the Ohio Supreme Court held: “When determining whether two offenses are allied
offenses of similar import subject to merger under R.C. 2941.25, the conduct of the
accused must be considered.” Id., at the syllabus.
{¶89} Appellant’s reliance on Johnson is misplaced. Each of the fires set by
appellant was a separate act, committed separately. The fact that they were committed
close in time and space as a part of an arson spree does not require merger of the
charges for each individual fire as allied offenses of similar import.
{¶90} The fourth assignment of error is overruled.
V.
{¶91} In his final assignment of error, appellant argues that his trial counsel was
ineffective for failing to move for speedy trial and for failing to seek merger of the
offenses as allied offenses of similar import.
{¶92} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
Fairfield County, Case No. 13-CA-3 20
ineffective assistance of counsel, appellant must show that counsel's performance fell
below an objective standard of reasonable representation and that but for counsel’s
error, the result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, appellant must show that
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied upon as having produced a just result. Id.{¶93} Appellant cannot demonstrate prejudice, as we have found in assignment
of error one that his speedy trial rights were not violated, and in assignment of error four
that the offenses were not allied offenses of similar import.
{¶94} The fifth assignment of error is overruled.
{¶95} The judgment of the Fairfield County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J.
Farmer, P.J. and
Wise, J. concur.