State v. Duffy

[Cite as State v. Duffy, 2020-Ohio-3137.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 18CA011342, 18CA011343,
18CA011344, 18CA011345,
Appellee 18CA011346, 18CA011347,
18CA011348, 18CA011349
v.
ZIAIRE DUFFY
APPEAL FROM JUDGMENT
Appellant ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 13CR087762, 13CR088424,
13CR089520, 14CR089550,
14CA089912, 15CR091194,
15CR091285, 15CR091286
DECISION AND JOURNAL ENTRY
Dated: June 1, 2020
TEODOSIO, Presiding Judge.
{¶1} Appellant, Ziaire Duffy, appeals from the trial court’s judgment in the Lorain
County Court of Common Pleas. This Court affirms in part, reverses in part, and remands for
resentencing.
I.
{¶2} Mr. Duffy pled guilty to a multitude of felonies and misdemeanors, ranging from
felonies of the third degree down to minor misdemeanors and spanning eight different case
numbers: 13CR087762; 13CR088424; 13CR089520; 14CR089550; 14CR089912; 15CR091194;
15CR091285; and 15CR091286. He was sentenced to fifty-eight months in prison for case
2
numbers 14CR089550 and 15CR091286, but received community control for the remaining six
cases.
{¶3} The trial court later granted Mr. Duffy judicial release and ordered him to enter and
successfully complete the Lorain/Medina County Community Based Correctional Facility
(“CBCF”). Mr. Duffy was unsuccessfully discharged from CBCF. The trial court held a probable
cause hearing and decided to continue Mr. Duffy on community control at that time. Many more
violations of community control sanctions followed. After a merits hearing, the trial court found
Mr. Duffy guilty of violating the terms and conditions of his community control sanctions and
sentenced him to an aggregate total of thirteen years and four months in prison.
{¶4} Mr. Duffy now appeals and raises four assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR ONE
TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM RESERVED
SENTENCE ON ALL EIGHT CASES BASED ON TECHNICAL VIOLATIONS
OF COMMUNTY [SIC] CONTROL SANCTIONS.
{¶5} In his first assignment of error, Mr. Duffy argues that the trial court erred when it
imposed the maximum reserved sentence in all eight of his cases based on “technical violations”
of community control sanctions. We disagree.
{¶6} The standard of review used by appellate courts in reviewing felony sentences is
not whether the sentencing court abused its discretion. R.C. 2953.08(G)(2). The Supreme Court
of Ohio has held that “an appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the trial court’s
findings under relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum,
146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1. See also R.C. 2953.08(G)(2). “Clear and convincing
3
evidence is that measure or degree of proof which will produce in the mind of the trier of facts a
firm belief or conviction as to the allegations sought to be established.” Cross v. Ledford, 161
Ohio St. 469, 477 (1954).
{¶7} R.C. 2929.15(B)(1)(c) provides that, when community control sanctions are
violated, the trial court is permitted to sentence the offender to an appropriate prison term under
the law. Effective September 29, 2017, however, R.C. 2929.15(B)(1)(c) was amended by H.B.
49, and now provides that prison terms being imposed for community control violations are subject
to certain limitations for mere “technical violations.” See R.C. 2929.15(B)(1)(c)(i)-(ii). When the
underlying offense is a felony of the fifth degree, the prison term imposed shall not exceed ninety
days for either technical violations of community control sanctions or any violations of law that
constitute new criminal misdemeanor offenses. R.C. 2929.15(B)(1)(c)(i). When the underlying
offense is a felony of the fourth degree and is neither an offense of violence nor a sexually-oriented
offense, the prison term imposed shall not exceed one hundred eighty days for either technical
violations of community control sanctions or any violations of law that constitute new criminal
misdemeanor offenses. R.C. 2929.15(B)(1)(c)(ii).
{¶8} No definition for what constitutes a “technical” violation is included in the Ohio
Revised Code.1 The Supreme Court of Ohio, in State ex rel. Taylor v. Ohio Adult Parole Auth.,
66 Ohio St. 3d 121, 124, (1993), noted that the United States Court of Appeals for the Sixth Circuit,
in Inmates’ Councilmatic Voice v. Rogers, 541 F.2d 633 (6th Cir.1976), fn. 2, previously defined
“technical violations” as “those violations of the terms and conditions of the parole agreement
1
We note that three cases, State v. Nelson, State v. Blake, and State v. Castner, all centering
around what should constitute a “technical violation” for purposes of R.C. 2929.15(B)(1)(c)(i)-
(ii), have been accepted by the Supreme Court of Ohio for jurisdictional reviews. See 04/03/2019
Case Announcements, 2019-Ohio-0049; 05/01/2019 Case Announcements, 2019-Ohio-0214;
10/29/2019 Case Announcements, 2019-Ohio-1221.
4
which are not criminal in nature[,] such as failure to report to the parole officer, association with
known criminals, leaving employment, leaving the [s]tate, etc.” We remain cognizant of the fact
that the courts in those two cases were interpreting technical violations of parole, and not technical
violations of community control under R.C. 2929.15(B)(1)(c). See State v. Kernall, 1st Dist.
Hamilton No. C-180613, 2019-Ohio-3070, ¶ 15. Nevertheless, many Ohio appellate districts have
applied this definition to sentencing determinations under R.C. 2929.15. See State v. Urban, 5th
Dist. Delaware Nos. 18 CAA 09 0066, 18 CAA 09 0067, and 18 CAA 09 0068, 2019-Ohio-2244,
¶ 19, citing State v. Abner, 4th Dist. Adams Nos. 18CA1061 and 18CA1062, 2018-Ohio-4506,
State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-2249, State v. Pino, 11th Dist.
Lake No. 2017-L-171, 2018-Ohio-2825, and State v. Johnson, 5th Dist. Licking No. 18-CA-37,
2019-Ohio-376.
{¶9} Still, other courts have declined to limit the definition of “technical violations”
under R.C. 2929.15(B)(1)(c) to refer only to violations “that are not otherwise criminal.” See State
v. Neville, 8th Dist. Cuyahoga No. 106885, 2019-Ohio-151, ¶ 43-44, 48-49 (determining that a
failure to report may be a technical violation in some instances, but several months of avoiding
community control sanctions, i.e., failing to report at all, is not a mere technical violation); State
v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 14 (“Had the legislature intended
R.C. 2929.15 (B)(1)(c)(i) to apply to all violations of community control which were non-criminal
in nature, it could have specifically stated so in the statute.”). Such courts have instead determined
that where “the special condition was a substantive rehabilitative requirement which addressed a
significant factor contributing to appellant’s criminal conduct” the violation “cannot be considered
a technical violation of community control.” See, e.g., State v. Calhoun, 6th Dist. Wood No. WD-
5
17-067, 2019-Ohio-228, ¶ 30; State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-
2672, ¶ 18.
{¶10} Mr. Duffy argues that his community control violations included failures to report
to the probation department, a failure to complete the CBCF program, and failed drug screens,
which he asserts are merely technical violations. Even assuming without deciding that those
violations were merely technical in nature, Mr. Duffy’s conduct and violations in this matter far
exceeded these less serious infractions and, in fact, included criminal conduct.
{¶11} Mr. Duffy’s probation officer summarized Mr. Duffy’s violations for the trial court
at the merits hearing on May 25, 2018. Following his judicial release from prison, Mr. Duffy was
placed in CBCF, but was unsuccessfully discharged from the program following allegations that
he destroyed some toilets at the facility. He then tested positive during five different drug tests for
marijuana, oxycodone, and cocaine, and then failed to report for three additional drug tests. He
was assessed by Lorain County Alcohol and Drug Abuse Services (“LCADA”), but failed to
follow its recommendations. He failed to call the Substance Abuse Monitoring (“SAM”) phone
line eighteen times. He was arrested and charged with domestic violence, disrupting public
services, unlawful restraint, and possession of cocaine. He failed to report to his probation officer,
and a capias was issued for his arrest. He was then charged with aggravated robbery and theft.
While the police were attempting to arrest him, Mr. Duffy rammed his vehicle into a police cruiser
and proceeded to lead police on a high speed car chase. When they finally caught him, the police
found twenty grams of suspected heroin, eighteen grams of suspected crack cocaine, and
$4,800.00.
{¶12} The prosecutor offered further details for the court as to Mr. Duffy’s violations. As
to the domestic violence and unlawful restraint charges, the prosecutor stated at the hearing that
6
Mr. Duffy had been threatening to shoot the victim with a gun. She “broke free” and escaped once
Mr. Duffy passed out. Police observed bruises and scrapes on her and saw text messages on her
phone in which Mr. Duffy had threatened to kill her. When the police attempted to arrest him, he
led them on a dangerous, high speed, car chase in which he drove through the front yards of homes.
In another incident, Mr. Duffy was asked to leave someone’s property, so he pulled out his gun,
put it in the victim’s face, and said, “I’m going to shoot you in the face.” He fled from police again
and led them on another high speed chase. He drove through stop signs, drove through flower
beds in front yards, and kept his headlights off. Police were forced to abandon that pursuit due to
safety concerns for the public. Thereafter, Mr. Duffy posted “F12” on Facebook, which the
prosecutor stated is street terminology for “F the police.” The prosecutor stated that Mr. Duffy
was also a suspect in several other firearm-related assaults, where he put guns in victims’ faces
and threatened to kill them, but then fled from the police. In another high speed chase with police,
he actually crashed into a police cruiser and “totaled” it.
{¶13} The record therefore reveals that some of Mr. Duffy’s violations included serious
and violent criminal offenses, which could not be considered mere “technical violations” of his
community control within the ambit of R.C. 2929.15(B)(1)(c). Mr. Duffy nonetheless stresses on
appeal that he was never actually convicted of any of these new criminal charges, as they were
dismissed sometime later.2 But, courts have held that conduct which constitutes a criminal offense,
even if the offender is never actually charged or convicted, cannot be considered a mere “technical
violation” of community control. See State v. Swetnam, 5th Dist. Licking No. 2019 CA 00010,
2
Appellate counsel conceded at oral argument that Mr. Duffy was then indicted federally
on some of these dismissed charges.
7
2019-Ohio-5186, ¶ 18; State v. Ross, 2d Dist. Champaign No. 2019-CA-9, 2019-Ohio-4368, ¶ 16;
Abner, 2018-Ohio-4506, at ¶ 15-16; Cozzone, 2018-Ohio-2249, at ¶ 39.
{¶14} Accordingly, we find no merit in Mr. Duffy’s argument that his myriad of
violations, which included serious, felony criminal offenses, amounted on the whole to mere
“technical violations” of his community control sanctions. The trial court was therefore not limited
by the language set forth in R.C. 2929.15(B)(1)(c)(i)-(ii) when sentencing Mr. Duffy to prison.
Consequently, Mr. Duffy has not shown by clear and convincing evidence that his sentence was
contrary to law. See Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, at ¶ 1; R.C. 2953.08(G)(2).
{¶15} Mr. Duffy’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE REQUISITE
FINDINGS TO SUPPORT CONSECUTIVE SENTENCES PURSUANT TO R.C.
2929.14(C).
{¶16} In his second assignment of error, Mr. Duffy argues that the trial court failed to
make the requisite findings under R.C. 2929.14(C) when it imposed consecutive sentences. We
agree that the court failed to make all of the requisite findings for the imposition of consecutive
sentences.
{¶17} Again, the standard of review for reviewing felony sentences is not whether the
sentencing court abused its discretion. R.C. 2953.08(G)(2). “[A]n appellate court may vacate or
modify a felony sentence on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, at ¶ 1; R.C.
2953.08(G)(2).
8
{¶18} Following a community control violation, the trial court conducts a second
sentencing hearing in which the court sentences the offender anew and must comply with the
relevant sentencing statutes. State v. Trice, 9th Dist. Summit Nos. 29258 and 29283, 2019-Ohio-
5098, ¶ 25, citing State v. Fraley, 105 Ohio St. 3d 13, 2004-Ohio-7110, ¶ 17. “In order to impose
consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but
it has no obligation to state reasons to support its findings.” State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, syllabus. R.C. 2929.14(C)(4) provides:
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:
(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.
(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.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶19} “[I]f the trial court does not make the factual findings required by R.C.
2929.14(C)(4), then ‘a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of imprisonment imposed * * *.’”
Bonnell at ¶ 23, quoting R.C. 2929.41(A). A word-for-word recitation of the language of the
statute is not required, however, provided the reviewing court can discern that the trial court
9
engaged in the correct analysis and can determine that the record contains evidence to support the
findings. Id. at ¶ 29. In other words, trial courts are not required to give a “talismanic incantation”
of the words of the statute, provided the necessary findings can be found in the record and are
incorporated into the sentencing entry. Id. at ¶ 37.
{¶20} Mr. Duffy has not argued that any findings made by the trial court were unsupported
by the evidence or that the sentencing entry failed to incorporate the findings, but instead only
argues that the trial court failed to make the requisite findings for the imposition of consecutive
sentences. See, e.g., State v. Snyder, 9th Dist. Summit No. 28109, 2016-Ohio-7881, ¶ 17.
{¶21} Although the trial court here did not utilize the specific language contained within
R.C. 2929.14(C)(4) when imposing consecutive sentences, it was not required to do so. See
Bonnell at ¶ 29, 37. In our review of the sentencing transcript, however, we can only discern from
various statements made by the trial court that it engaged in a proper analysis to make some, but
not all, of the findings required for the imposition of consecutive sentences under R.C.
2929.14(C)(4). The court made various statements to Mr. Duffy prior to sentencing him, such as:
“I don’t know anyone in this courtroom that would lead the police on a chase and
ram their cars, and put people at risk”;
“I think I’ve had plenty of time to observe how you have behaved after you’ve left
prison, and you have not respected the Court’s orders”;
“I gave you strict orders as to how you were to comport and conduct yourself, and
you have not done that * * *”;
“I hung significant prison time over your head, and I made it very clear to you that
these would run consecutive * * *”;
“[T]he eight cases you had in this courtroom showed to me that you were a thug, a
potential menace to society * * *”; and
“You put people’s lives at risk, and I’m not going to allow that to happen anymore
under my watch.”
10
These statements permit us to conclude that the trial court engaged in the proper analysis and
found: (1) consecutive sentences were necessary to protect the public from future crime or to
punish him; and (2) Mr. Duffy’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crimes by Mr. Duffy. This Court cannot
discern, however, either from the aforementioned statements or from anything else in the record,
that the trial court engaged in any analysis or made the requisite findings regarding consecutive
sentences not being disproportionate to the seriousness of Mr. Duffy’s conduct and to the danger
he poses to the public. See, e.g., State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, ¶ 259.
{¶22} Accordingly, the imposition of consecutive sentences in Mr. Duffy’s case was
contrary to law. See Bonnell at ¶ 37. We are therefore constrained to reverse the trial court’s
imposition of consecutive sentences and remand the matter for a limited resentencing hearing for
the court to properly consider R.C. 2929.14(C)(4) and make the necessary findings. See State v.
Mellott, 9th Dist. Wayne Nos. 16AP0081 and 16AP0082, 2017-Ohio-7545, ¶ 16; State v. Marcum,
9th Dist. Wayne No. 16AP0084, 2017-Ohio-7655, ¶ 9-10; State v. Thompson, 9th Dist. Wayne
No. 15AP0016, 2016-Ohio-4689, ¶ 48.
{¶23} Mr. Duffy also argues that because he was initially placed on community control
in six of his cases, the trial court already made certain findings at his original sentencing hearing
which would be inconsistent with any findings made at the merits hearing supporting consecutive
sentences. He contends that the trial court should not be able to “change” its original findings and
should have therefore been barred from ultimately imposing consecutive sentences. Not only has
Mr. Duffy failed to cite any authority supporting this speculative claim, but he has failed to
separately assign this argument as error. See App.R. 16(A)(7); State v. Marzolf, 9th Dist. Summit
No. 24459, 2009-Ohio-3001, ¶ 16 (“[A]n appellant’s assignment of error provides this Court with
11
a roadmap on appeal and directs this Court’s analysis.”). See also App.R. 12(A)(1)(b); State v.
Harlow, 4th Dist. Washington 13CA29, 2014-Ohio-864, ¶ 10 (stating that appellate courts review
assignments of error, not mere arguments). In this assignment of error, Mr. Duffy specifically
challenges only the trial court’s failure to make the requisite findings for the imposition of
consecutive sentences, and we decline to address other arguments not assigned as error. See In re
F.R., 9th Dist. Lorain No. 14CA010543, 2015-Ohio-1877, ¶ 7.
{¶24} Because the trial court failed to make all of the requisite findings under R.C.
2929.14(C)(4) for the imposition of consecutive sentences, Mr. Duffy’s second assignment of error
is sustained.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED
MAXIMUM CONSECUTIVE SENTENCES ON A FIRST-TIME OFFENDER.
{¶25} In his third assignment, Mr. Duffy argues that the trial court abused its discretion
when it imposed maximum, consecutive sentences on a first-time offender.
{¶26} It is unclear from Mr. Duffy’s merit brief if he is arguing that the record does not
support more than the minimum sentence for each individual offense or that the record does not
support the trial court’s imposition of consecutive sentences. To the extent he challenges the
imposition of consecutive sentences as being unsupported by the record, our disposition of his
second assignment of error has rendered that argument moot, and we therefore decline to address
it. See App.R. 12(A)(1)(c).
{¶27} To the extent he is challenging the length of his individual sentences, his argument
is not rendered moot by our limited remand under his second assignment of error, as the individual
sentences for each offense are not vacated and are not subject to de novo sentencing on remand.
See State v. Henderson, 9th Dist. Summit No. 27794, 2016-Ohio-679, ¶ 15. Nevertheless, this
12
argument must fail because it is expressly premised on an incorrect standard of review. Once
again, the standard of review used by appellate courts in reviewing felony sentences is not whether
the sentencing court abused its discretion. R.C. 2953.08(G)(2). “[A]n appellate court may vacate
or modify a felony sentence on appeal only if it determines by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, at ¶ 1; R.C.
2953.08(G)(2).
{¶28} In his merit brief, Mr. Duffy “urges this Court to review the sentence * * * and find
that the trial court abused its discretion.” As this request would require us to analyze Mr. Duffy’s
sentence under an incorrect standard of review, we decline to do so. Mr. Duffy has failed to
demonstrate by clear and convincing evidence that the record does not support the trial court’s
findings under relevant statutes or that his sentence is otherwise contrary to law. See id. We
decline to sua sponte fashion and then address such an argument on his behalf. See Cardone v.
Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument exists
that can support this assignment of error, it is not this [C]ourt’s duty to root it out.”).
{¶29} Mr. Duffy attempts to remedy this error by arguing in his reply brief that he, in fact,
stated the correct standard of review in his second assignment of error. We find no merit in this
argument. He further attempts to raise a new argument that the trial court impermissibly increased
his sentence for violating the community control sanctions of his judicial release, which we decline
to address. See State v. Osborne, 9th Dist. Lorain No. 15CA010727, 2017-Ohio-785, ¶ 8, quoting
State v. Caldwell, 9th Dist. Summit No. 26306, 2013-Ohio-1417, ¶ 9 (“‘[A] party may not raise
new * * * issues for consideration in his reply brief; rather, the reply brief is merely an opportunity
to reply to the brief of the appellee.’”).
13
{¶30} Mr. Duffy’s third assignment of error is moot in part and overruled in part.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT ABUSED ITS DISCREDTION [SIC] WHEN IT DENIED
THE DEFENDANT A COMPETENCY EVALUTION [SIC] AND HEARING
PRIOR TO THE MERITS HEARING.
{¶31} In his fourth assignment, Mr. Duffy argues that the trial court abused its discretion
when it denied him a competency evaluation and hearing prior to the merits hearing. We disagree.
{¶32} “[T]he decision whether to grant a hearing on competency at a revocation hearing
is within the sound discretion of the trial court, and must be determined on a case-by-case basis.”
State v. Davis, 12th Dist. Warren Nos. CA2015-09-081 and CA2015-09-082, 2016-Ohio-879, ¶
10, citing State v. Brank, 5th Dist. Tuscarawas No. 2006AP090053, 2007-Ohio-919, ¶ 44, State v.
Qualls, 50 Ohio App. 3d 56 (10th Dist.1988), and State v. Bell, 66 Ohio App. 3d 52, 57 (5th
Dist.1990). “In a probation hearing, a defendant has a due process right to a competency hearing
when there is a substantial basis for the suggestion that appellant is incompetent.” State v. Holman,
8th Dist. Cuyahoga No. 100468, 2014-Ohio-3908, ¶ 8.
{¶33} Mr. Duffy argues that he demonstrated a “substantial basis for a competency
hearing” because the trial court previously ordered a mental health screening for him. While the
transcript reflects that the court indeed ordered a mental health screening when it originally
sentenced Mr. Duffy to community control, the results of that screening are not in the record before
us. The mere existence of a prior order for a mental health screening, without more, does not
establish “a substantial basis for the suggestion that appellant is incompetent.” Mr. Duffy also
asserts that “[he] and his father are known by the trial court to have mental health issues[,]” yet he
fails to cite to the record to support this claim. See App.R. 16(A)(7). Mr. Duffy has failed to
14
demonstrate that a substantial basis existed for the suggestion that he was incompetent, and we
therefore determine that the trial court did not abuse its discretion in denying his request.
{¶34} Mr. Duffy also challenges the trial court’s denial of his request for a continuance,
yet he fails to separately assign this argument as error. See Marzolf, 2009-Ohio-3001, at ¶ 16
(“[A]n appellant’s assignment of error provides this Court with a roadmap on appeal and directs
this Court’s analysis.”). See also App.R. 12(A)(1)(b); Harlow, 2014-Ohio-864, at ¶ 10 (stating
that appellate courts review assignments of error, not mere arguments). Mr. Duffy’s assignment
of error specifically challenges only the trial court’s denial of his request for a competency
evaluation and hearing, and we decline to address other arguments not assigned as error. See In
re F.R., 2015-Ohio-1877, at ¶ 7.
{¶35} Mr. Duffy’s fourth assignment of error is overruled.
III.
{¶36} Mr. Duffy’s first and fourth assignments of error are both overruled. His second
assignment of error is sustained. His third assignment of error is moot in part and overruled in
part. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in
part, and remanded for further proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
15
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY IN PART AND DISSENTING IN PART.
{¶37} I concur in judgment only with respect to the second assignment of error as I would
simply conclude that the trial court failed to make the required statutory findings in support of
consecutive sentences.
{¶38} In regard to the third assignment of error, I agree that any challenge regarding
whether the record supports the imposition of consecutive sentences is moot. To the extent that
Duffy challenges the length of his individual sentences, I respectfully dissent as I would order the
parties to provide further briefing regarding whether the individual sentences comported with the
dictates of R.C. 2929.20.
16
APPEARANCES:
JASON S. HARLESS, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.