State v. Veney

[Cite as State v. Veney, 2021-Ohio-2434.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28989
:
v. : Trial Court Case No. 2020-CR-823
:
ROBERT L. VENEY, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 16th day of July, 2021.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
DAVID E. STENSON, Atty. Reg. No. 0042671, 131 North Ludlow Street, Suite 316,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Robert L. Veney, Jr. appeals from his conviction for one
count of failure to comply with an order or signal of a police officer (serious physical
harm/substantial risk), in violation of R.C. 2921.331(B) and R.C. 2921.331(C)(5), a felony
of the third degree. Veney filed a timely notice of appeal on December 16, 2020.
{¶ 2} The incident which formed the basis for Veney’s conviction occurred on
March 4, 2020, when Veney fled from police and initiated a chase that lasted
approximately two minutes. On August 6, 2020, Veney was indicted for one count of
failure to comply with an order or signal of a police officer. At his arraignment on
September 22, 2020, Veney stood mute, and the trial court entered a plea of not guilty on
his behalf.
{¶ 3} On October 20, 2020, Veney pled guilty to the charged offense. On
December 1, 2020, the trial court sentenced Veney to 12 months in prison and suspended
his driver’s license for five years. In addition to reviewing his presentence investigation
report (PSI), the trial court stated that it had watched the police cruiser camera video
which depicted the car chase involving Veney. The record establishes that neither
Veney nor his trial counsel objected to the trial court’s decision to review the video of the
car chase.
{¶ 4} Veney now appeals from his conviction.
{¶ 5} Veney’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN VIEWING AND RELYING UPON AN
UNAUTHENTICATED VIDEOTAPE FOR SENTENCING PURPOSES AND
DENYING APPELLANT HIS CONSTITUTIONAL RIGHT TO
CONFRONTATION.
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{¶ 6} Veney contends that the trial court erred when it reviewed the video of the
chase from the police cruiser camera prior to sentencing him for failure to comply with an
order or signal of a police officer. Specifically, Veney argues that the trial court’s reliance
on the video at sentencing was erroneous because: 1) the video was unauthenticated; 2)
the video was not played during the sentencing hearing; and 3) Veney “had no opportunity
for cross-examination relevant to the video.” Appellant’s Brief, p. 5.
{¶ 7} Initially, we note that Veney failed to object to the trial court’s consideration
of the police cruiser camera video at sentencing. As we have noted:
It is well-settled that failure to object waives all but plain error. State v.
Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 25 (2d
Dist.), citing McBride v. Quebe, 2d Dist. Montgomery No. 21310, 2006-
Ohio-5128. “Plain error exists ‘if the trial outcome would clearly have been
different, absent the alleged error in the trial court proceedings.’ ” Id., citing
State v. Rollins, 2d Dist. Clark No. 2005-CA-10, 2006-Ohio-5399.
State v. Kessel, 2019-Ohio-1381, 133 N.E.3d 1086, ¶ 33 (2d Dist.). Accordingly, we will
review Veney’s argument under a plain error analysis.
{¶ 8} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500,
2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d
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54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 9} Veney does not specifically argue that his 12-month sentence was
unsupported by the record or contrary to law. Rather, Veney argues that it was not
appropriate for the trial court to review the video evidence of the car chase prior to
sentencing. We disagree.
{¶ 10} This is the entirety of the trial judge’s comments on the video:
I watched that video, and you know, the officer was trying to pull you over
for a license plate violation not because you were being profiled. And if
that’s what you want to believe then that narrative may be why you decided
that it’s okay for you to put yourself, the police officers but more importantly
innocent members of the public at risk all because you didn’t want to get a
ticket for not having the appropriate license plate. And I can’t ignore how
dangerous your driving was.
(Tr. at 14.)
This was a short pursuit -- it was short because the police cut -- cut it off.
And you -- I mean you could be seen, when they cut it off, speeding over on
the side of the road, weaving through the traffic. And that’s not -- that danger
is not something that I can ignore. And it has become an all too common
occurrence that puts innocent people in the public in jeopardy.
(Tr. at 14-15.)
{¶ 11} We have repeatedly stated that, for purposes of sentencing, a court “is not
confined to [considering] the evidence that strictly relates to the conviction offense
because the court is no longer concerned * * * with the narrow issue of guilt.” State v.
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Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.); see also
State v. Waggoner, 2d Dist. Montgomery No. 28453, 2020-Ohio-212, ¶ 12.
Nevertheless, here the video of the pursuit was direct evidence of Veney’s admitted
crime. At sentencing, courts may consider, for example, “hearsay evidence, facts related
to charges that were dismissed pursuant to a plea bargain, and allegations contained in
a PSI report.” State v. Bautista, 2d Dist. Clark No. 2015-CA-74, 2016-Ohio-5436, ¶ 12,
citing State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 8. In light
of this precedent and the fact that, under Evid.R. 101(C)(3), authentication rules do not
apply, we find no error in the trial court’s consideration of the video of the chase involving
Veney from the police cruiser camera. See State v. McNeil, 2d Dist. Clark No. 2019-CA-
51, 2020-Ohio-3202, ¶ 14.
{¶ 12} We have also held that “unsworn statements, not subject to cross-
examination, have long been a feature of pre-sentence investigations and reports that
trial judges consider in exercising their sentencing discretion, and sentencing
proceedings, after a defendant's guilt has been adjudicated, have traditionally been
exempted from the evidentiary rigors governing the trial of a criminal case.” State v.
Spears, 2d Dist. Montgomery No. 14869, 1995 WL 614338, *5 (Oct. 18, 1995). It was
certainly within the trial court’s sound discretion to conclude, after reviewing the video of
the chase, that Veney’s initiation of a chase endangered other drivers and/or the police
even though the chase was brief. Importantly, Veney does not suggest that the video is
not of his pursuit.
{¶ 13} Veney also argues that, pursuant to Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531, 159 L.Ed.2d 403, “a defendant’s Sixth Amendment right to a jury trial has
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been violated when a judge makes findings that increase a sentence based on facts not
found by a jury or admitted as part of a plea agreement.” Appellant’s Brief, p. 5-6. Upon
review, we find that the U.S. Supreme Court’s holding in Blakely does not apply in the
instant case. Additionally, Veney also relies upon a dissent by then Judge William
O’Neill in State v. Schaub, 11th Dist. Lake No. 2003-L-091, 2005-Ohio-703, ¶ 65-87, for
the proposition that the trial court erred when it reviewed the video of the car chase prior
to imposing sentence.
{¶ 14} We reiterate that Veney has waived his right to argue a Blakely issue on
appeal because he failed to raise that objection at the time of sentencing. State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23; State v. Dixon, 2d Dist.
Montgomery No. 21796, 2008-Ohio-184, ¶ 24. Even so, the record does not
demonstrate a violation of Veney's Sixth Amendment rights.
{¶ 15} The Blakely Court stated, “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to the jury, and proved beyond a reasonable doubt.” Here, Veney was
sentenced to 12 months in prison for failure to comply with an order or signal of a police
officer, a felony of the third degree. The maximum prison term for the offense was 36
months in prison. R.C. 2929.14(A)(3)(b). Veney’s sentence was clearly not above the
“prescribed statutory maximum,” and therefore Blakely was inapplicable.
{¶ 16} Veney’s sole assignment of error is overruled.
{¶ 17} The judgment of the trial court is affirmed.
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HALL, J. and EPLEY, J., concur.
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Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
David E. Stenson
Hon. Mary Katherine Huffman