 [Cite as State v. Scharsch, 2014-Ohio-1756.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                  CHAMPAIGN COUNTY

 STATE OF OHIO

           Plaintiff-Appellee

 v.

 DEREK W. SCHARSCH

           Defendant-Appellant

 Appellate Case No. 2013-CA-38

 Trial Court Case No. 2012-CR-140

 (Criminal Appeal from
 (Common Pleas Court)
                                                ...........

                                                OPINION

                                 Rendered on the 25th day of April, 2014.

                                                ...........

KEVIN S. TALEBI, Atty. Reg. #0069198, by JENNIFER E. GELLER, Atty. Reg. #0088855,
Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
     Attorney for Plaintiff-Appellee

MATTHEW J. PIERRON, Atty. Reg. #0090483, Hanes Law Group, Ltd., 507 South Broadway,
Greenville, Ohio 45331
      Attorney for Defendant-Appellant

                                                .............

FAIN, J.

           {¶ 1}   Defendant-appellant Derek W. Scharsch appeals from the trial court’s finding
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that he violated the terms of his community control sanctions imposed as a sentence for Theft,

and the ensuing eight-month prison sentence imposed by the trial court. Scharsch’s 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 has not found any potential assignments of error having

arguable merit. After performing our duty, under Anders, of independent review of the record,

we also have found no potential assignments of error having arguable merit. Accordingly, the

judgment of the trial court is Affirmed.



                                 I. The Course of Proceedings

       {¶ 2}    In 2012, Scharsch was charged with one count of Passing Bad Checks, in

violation of R.C. 2913.11(B) and (F), and one count of Theft, in violation of R.C. 2913.02(A)(3)

and (B)(2).    He pled guilty to Theft, and the Passing Bad Checks charge was dismissed.

Scharsch was sentenced to community control sanctions.

       {¶ 3}    In 2013, Scharsch was charged with a number of violations of the terms of his

community control sanctions. Some of these were ultimately dismissed; on others, he was found

not guilty. Scharsch admitted the following violations:

               2. On or about March 26, 2013 you failed to report to your supervising

       officer as ordered to do so.

               3. Since on and after [sic] March 26, 2013 you have failed to keep your

       supervising officer informed of your whereabouts.

               4. On or about April 1, 2013 you did go to Nashville, Tennessee without

       permission from your supervising officer.
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               6A. You failed to pay fine and costs in Case Number 2012 CR 140 as

       ordered by the Champaign County Common Pleas Court.

       {¶ 4}    Following a hearing, Scharsch was found to have committed the following

additional violations:

               1B. On or about March 26, 2013 you did threaten to do bodily harm to

       Trina Davis in or around Miami County, Ohio.

               1C. On or about March 26, 2013 you did threaten to do bodily harm to

       James Davis in or around Miami County, Ohio.

               1G. On or about May 22, 2013 you did send a text message indicating

       you had a shotgun in your possession in and around Miami County, Ohio.

               1H. On or about June 27, 2013 you did threaten to shoot James Davis

       with a shotgun in and around Miami County, Ohio.

               1I. On or about January 11, 2013 you did forge a check in and around

       Miami County, Ohio.

               1J. On or about May 28, 2013 you did forge a check in and around Miami

       County, Ohio.

               1K. On or about June 27, 2013 you did violate the terms of a protection

       order issued by Miami County Municipal Court, Miami County, Ohio.

               5A. On or about July 1, 2013 you did admit to your supervising officer

       your urine would be positive for cocaine (crack).

               5B. On or around July 1, 2013 you did admit to your supervising officer

       your urine would be positive for marijuana.
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       {¶ 5}     On August 8, 2013, the trial court revoked Scharsch’s community control

sanctions, and imposed a prison sentence of eight months, with a jail-time credit of 41 days. The

trial court recommended Scharsch for a risk reduction sentence under R.C. 5120.036, but did not

recommend him for a transitional control program under R.C. 2967.26, for shock incarceration,

under R.C. 5120.031, or for intensive program prison, under R.C. 5120.032.

       {¶ 6}     From the revocation of his community control sanctions and his eight-month

prison sentence, Scharsch appeals.

       {¶ 7}     Scharsch’s appellate counsel has filed an Anders brief, finding no potential

assignments of error having arguable merit. By entry dated January 22, 2014, we accorded

Scharsch the opportunity to file his own, pro se brief within 60 days. He has not done so.



                II. A Litigant Who Is Aware of an Arguable Reason why the

                 Trial Judge Should Be Disqualified, but Does Not Invoke the

               Disqualification Procedure Under R.C. 2701.03 Until After Trial,

             Cannot Raise the Disqualification Issue for the First Time on Appeal

       {¶ 8}     In reviewing potential assignments of error that he considered, appellate counsel

first raises the issue that the trial judge should have been disqualified due to the fact that the trial

judge had formerly been a prosecutor in a criminal case against Scharsch. We agree with

counsel that Scharsch’s remedy was to seek to disqualify the trial judge, before trial, by means of

an affidavit of bias or prejudice filed with the Supreme Court of Ohio under R.C. 2701.03.

       {¶ 9}     When an alleged basis for disqualification is known to a party for some time

before trial, but an objection is not raised until “well after the judge has participated in the
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proceedings,” the issue is waived. In re Disqualification of Pepple, 47 Ohio St.3d 606, 607,

546 N.E.2d 1298 (1989).        A contrary rule would be unfair to the State where, as here, a

defendant has allowed an issue of fact to be tried to a judge as finder of fact, knowing of a

potential argument for the disqualification of the judge, but only raises the disqualification issue

after the judge has made factual findings against the defendant.

         {¶ 10} We agree with counsel that this potential assignment of error has no arguable

merit.



           III. Ineffective Assistance of Trial Counsel in Having Failed to Object to

            Hearsay Testimony Cannot Be a Basis for Reversal when the Testimony

             Relates to a Charge upon which the Defendant Was Found Not Guilty

         {¶ 11} Counsel next refers to two instances in which Scharsch’s trial counsel failed to

object to hearsay testimony. The first of these concerned testimony of James Davis, in which he

testified that two other individuals, one of whom Davis did not know by name, told Davis that

Scharsch had offered money to them to beat up Davis. There was no objection. This testimony

related to charged violation 1F: “On or about May 22, 2013 you offered money to a person to do

bodily harm to another person in and around Miami County, Ohio.” The trial court found

Scharsch not guilty of this charge.

         {¶ 12} For ineffective assistance of trial counsel to constitute reversible error, there must

be a reasonable probability that absent trial counsel’s errors, the result of the trial would have

been different. State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). Had trial

counsel objected to this hearsay testimony, and had his objection been sustained, evidence would
                                                                                       6


have been kept out of the record to support charged violation 1F. Because Scharsch was found

not guilty of this charged violation, trial counsel’s failure to have objected was necessarily

harmless.



    IV. Ineffective Assistance of Trial Counsel in Having Failed to Object to Hearsay

 Testimony Cannot Be a Basis for Reversal when the Testimony Only Peripherally Relates

           to a Charge of Forgery, and there Is Ample Direct Evidence of the Forgery

       {¶ 13} Scharsch was charged with having forged the signature of his estranged wife,

Julie Scharsch, to two checks made out to her, and cashing them. On re-direct examination,

Julie Scharsch was questioned concerning statements made by April Thacker, a friend of her

husband:

                Q. Okay. And it’s your belief that she [Thacker] does not have any

       knowledge of the forgery allegations, right?

                A. I don’t think that she was present when the checks were cashed. But

       she had made comments to people that she felt bad about taking the money

       because he had bought gas and cigarettes for her for her car.

                Q. So let’s talk a little bit more about that.

                A. Okay.

                Q. Are you saying that she had knowledge that she has been talking about

       the use of the money with other people in town?

                A. Yes, ma’am.

                Q. All right. Tell the Court a little bit more about that.
                                                                                                  7


               A. Just mutual friends. That used to go over there that talked to me. And they said she

       feels really bad because when they found out that I had filed charges against the checks, well, she

       feels really bad about those checks because she knew afterwards and, you know, she told him she

       got into, you know, I guess got into an argument with him about, you know, did you cash those

       checks, if you cashed those checks then you really need to pay her the money back.

       {¶ 14} From the foregoing testimony, it appears that Thacker did not know that Scharsch had, in fact

forged checks to his wife, but knew only that he had been accused of forging the checks. Thacker testified for

the defense, and denied having had any conversation with Scharsch, the defendant, concerning the forgery

allegations.

       {¶ 15} We agree with appellate counsel that even if trial counsel were deemed ineffective for not

having interposed a hearsay objection to Julie Scharsch’s testimony concerning what other people had told her

that Thacker had said, there is no reasonable probability that this affected the outcome of the trial. Copies of

the two allegedly forged checks were admitted in evidence, and Julie Scharsch, who was familiar with her

husband’s handwriting, testified that the forged signatures were in his handwriting. For his part, Scharsch

admitted having told the police that he did sign and negotiate the checks made out to his wife. He claimed that

he was doing it for her convenience, and with her permission. She disputed this.

       {¶ 16} We agree with appellate counsel that this potential assignment of error has no arguable merit.



                          V. The Sentence Is Neither an Abuse of Discretion Nor

                       Clearly and Convincingly Contrary to the Facts in the Record

               {¶ 17} Finally, appellate counsel considered an argument that Scharsch’s sentence is an

       abuse of discretion, but rejected this potential assignment of error as having no arguable merit.
                                                                                          8


Whether Scharsch’s eight-month sentence is reviewed under an abuse-of-discretion standard, or

under a clearly-and-convincingly-contrary-to-the-facts-in-the-record

standard, see State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575, and 25576,

2013-Ohio-5759, we see no reasonable challenge to the sentence.

       {¶ 18} The trial court explained its reason for the sentence:

               THE COURT: * * * . Court has reviewed the sentencing hearing and the

       merits hearing from last week. Court also reviewed those statements from the

       Prosecutor, Defendant, and Defense Counsel. In imposing sentence the Court has

       considered and applied the purposes and principles of sentencing as set forth in

       [R.C.] 2929.11 Divisions A, B, and C.

               Court also evaluated the nature and circumstances of the community

       control violations, statements of counsel, the Defendant, and the victims. Court

       notes that in considering seriousness and recidivism that with regard to more

       serious factors, Defendant’s acts of community control violations encompass

       violence, drug abuse, fraud, and conduct against the administration of justice by

       departing the State of Ohio without the permission of the Court or his probation

       officer and by violating another Court’s order not to have contact with specified

       individuals.

       Regarding the community control violations the Court also notes the Defendant’s

relationship with the victims facilitated the offenses. Court finds no less serious factors. Court

finds that the factors establishing the Defendant’s conduct is more serious outweigh factors that

the Defendant’s conduct was less serious.
                                                                                         9


        With regard to recidivism, the Court notes at the time of committing community control

violations the Defendant was under community control. Defendant shows no genuine remorse

for the offense. And most importantly, Defendant has pending criminal warrants in Miami

County case number 2013-CRA-1962 and 2013-CRA-1963. Felony forgery offenses in Miami

County case number 2013-CRB-2376 for a misdemeanor violation of a protection order offense.

Champaign County violations share the fact pattern as the pending Miami County cases. Court

finds no factors indicate the Defendant less likely to commit future crimes. Court concludes

factors establishing Defendant’s recidivism is more likely outweigh factors establishing

recidivism is less likely.

        Court considered Defendant’s military service record. Court finds he has a military

service record. Court finds Defendant does not have an emotional, mental, or physical condition

that is traceable to the Defendant’s military service in the Armed Forces of the United States.

Court finds Defendant’s service in the Armed Forces was not a contributing factor to the defense

in the commission of the offenses.

        Court also finds Defendant is not amenable to any available community control situation.

Court considered alternatives to incarceration.    Court notes no reasonable alternatives are

available in taking into account the totality of the circumstances, the crimes, and nature of the

Defendant’s community control violations. Defendant is not eligible for residential alternative

to prison because of his pending charges and his criminal – because of pending criminal charges.

        With those sentencing findings made, the Court imposes a term of imprisonment upon the

Defendant under Ohio’s statutory scheme. On Count Two, Court imposes eight months to the

Ohio Department of Rehabilitation and Corrections. Court revokes Defendant’s community
                                                                                                   10


       control.

       {¶ 19} We find no fault with the trial court’s reasoning. We agree with counsel that there is no

potential assignment of error relating to the sentence imposed that has arguable merit.



                       VI. Any Error Regarding Disapproval of Shock Incarceration

                                      or Intensive Program Prison Is Moot

       {¶ 20} We also considered a potential assignment of error concerning the trial court’s disapproval of

Scharsch for Shock Incarceration or Intensive Program Prison, based on an argument that the trial court did not

provide its reasons for disapproval. See State v. Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963.

We conclude that any argument along these lines is moot.

               {¶ 21} On August 8, 2013, Scharsch was sentenced to imprisonment for eight months,

       with a jail-time credit against that sentence of 41 days. In its brief, the State notes that Scharsch

       was released from prison on post-release control on January 8, 2014. Because Scharsch has

       already been released from his term of imprisonment in this case, it is too late to provide him

       with any effective remedy with respect to the trial court’s disapproval of shock probation or

       intensive program prison.



                                               VII. Conclusion

               {¶ 22} We have performed our duty, under Anders, of independent review of the record.

        We find no potential assignments of error having arguable merit. Therefore, the judgment of

       the trial court is Affirmed.
                                                 11


                                 .............

HALL and WELBAUM, JJ., concur.




Copies mailed to:

Kevin S. Talebi
Jennifer E. Geller
Matthew J. Pierron
Derek Scharsch
Hon. Nick A. Selvaggio
