[Cite as State v. Jones, 2013-Ohio-4820.]




              IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO. 2012 CA 61

v.                                                     :            T.C. NO.   12CR55

TIMOTHY JONES                                          :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                  :

                                                       :

                                            ..........

                                            OPINION

                         Rendered on the         1st       day of        November       , 2013.

                                            ..........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Public Defender, 250 E.
Broad Street, Suite 1400, Columbus, Ohio 43215
       Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Timothy Jones appeals his conviction for two counts of

aggravated murder, in violation of R.C. 2903.01(A), both felonies of the first degree, and

one count of having a weapon while under disability, in violation of R.C. 2923.13(A)(2), a
                                                                                          2

felony of the third degree. Both counts of aggravated murder were accompanied by a

firearm specification. Jones filed a notice of appeal with this Court on September 11, 2012.

 On September 27, 2012, we issued a show cause order instructing Jones to explain why his

appeal should not dismissed for failure to file within thirty-days of his judgment entry of

conviction as required by App. R. 4(A). Jones filed a response to the show cause order on

October 11, 2012. On October 22, 2012, we issued a decision finding that Jones had shown

good cause to file a delayed appeal.

       {¶ 2}    The incident which forms the basis of the instant appeal occurred on October

16, 2011, while Jones was engaged in an argument with one of the victims, Dovon Williams.

 The other victim was Arbrie Smith, a friend of Williams, who witnessed the argument.

The confrontation occurred at a residence near the corner of Perrin Avenue and Center

Boulevard in Springfield, Ohio.        Evidence adduced during Jones’ trial established that

Williams had beaten up the appellant on two separate prior occasions. Jones was also

aware that Williams had been visiting his girlfriend’s home when he was not present. At

some point during the argument, Jones pulled out a handgun and shot Arbrie Smith in the

head multiple times, killing him. Williams attempted to run away, but Jones chased him

down and shot him several times, killing him as well.

       {¶ 3}    On January 23, 2012, Jones was subsequently indicted for two counts of

aggravated murder with firearm specifications, and one count having a weapon while under

disability. At his arraignment on February 13, 2012, Jones pled not guilty to the charges

against him, and the trial court set his bond at $1,000,000.00. On May 15, 2012, the trial

court ordered Jones to undergo a mental competency evaluation in light of his request to
                                                                                            3

represent himself at trial. The trial court found Jones competent to stand trial and represent

himself in an order filed on June 19, 2012. The trial court also allowed Jones’ appointed

counsel to withdraw but ordered him to act as co-chair to Jones in order to assist Jones if

necessary.

        {¶ 4}    Jones’ trial began on July 30, 2012, and ended on August 3, 2012, with the

jury finding Jones guilty on all of the counts in the indictment. On August 9, 2012, Jones

was sentenced to life in prison without the possibility of parole on each of the aggravated

murder counts and three years on the single count of weapons under disability. The trial

court ordered the sentences for the aggravated murder counts to run consecutive to each

other and the sentence for the weapon under disability count to run concurrent to the life

sentences.

        {¶ 5}    It is from this judgment that Jones now appeals.

        {¶ 6}    Jones’ first assignment of error is as follows:

        {¶ 7}    “THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT

COULD FIND MR. JONES GUILTY OF AGGRAVATED MURDER IF THE ‘GIST OF

THE OFFENSE’ WAS TO CAUSE A DEATH, ‘REGARDLESS OF WHAT [MR. JONES]

MAY HAVE INTENDED TO ACCOMPLISH BY HIS CONDUCT.’”

        {¶ 8}    In his first assignment, Jones contends that the trial court erred when it

instructed the jury regarding the definition of “purpose” as it applied to the charges for

aggravated murder. Specifically, Jones argues that the trial court’s use of the “gist of the

offense” instruction in a conviction for aggravated murder was confusing and rose to the

level of plain error.
                                                                                             4

          {¶ 9}   In State v. Kleekamp, 2d Dist. Montgomery No. 23533, 2010-Ohio-1906,

this court stated:

          {¶ 10} “‘A criminal defendant has the right to expect that the trial court will give

complete jury instructions on all issues raised by the evidence.’ State v. Williford (1990), 49

Ohio St.3d 247, 251, 551 N.E.2d 1279; State v. Mullins, Montgomery App. No. 22301,

2008-Ohio-2892, ¶ 9. As a corollary, a court should not give an instruction unless it is

specifically applicable to the facts in the case. State v. Fritz, 163 Ohio App.3d 276, 837

N.E.2d 823, 2005-Ohio-4736, ¶ 19. The decision to give a requested jury instruction is a

matter left to the sound discretion of the trial court, and the court's decision will not be

disturbed on appeal absent an abuse of discretion. State v. Davis, Montgomery App. No.

21904, 2007-Ohio-6680, ¶ 14.”

          {¶ 11} “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482

N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

          {¶ 12} A decision is unreasonable if there is no sound reasoning process that would

support that decision. It is not enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result. AAAA Enterprises,

Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990).
                                                                                         5

       {¶ 13} Regarding the definition of “purpose,” the trial court gave the jury the

following instructions:

               A person acts purposely when it is his specific intention to cause a

       certain result. It must be established beyond a reasonable doubt that at the

       time in question there was present in the mind of the defendant a specific

       intention to cause the death of Dovon Williams.1

               When the gist of the offense is a prohibition against conduct of a

       certain nature, a person acts purposely if his specific intention was to engage

       in conduct of that nature, regardless of what he may have intended to

       accomplish by his conduct.

               Purpose is a decision in the mind to do an act with a conscious

       objective of producing a specific result or engaging in specific conduct. To

       do an act purposely is to do it intentionally and not accidentally.

               Purpose and intent mean the same thing. The purpose with which a

       person does an act is known only to himself unless he expresses it to others or

       indicates it by his conduct.

               The purpose with which a person does an act is determined from the

       manner in which it is done, the means used, and all the other facts and

       circumstances in evidence.



          1
           When instructing the jury regarding Count II, the aggravated murder of
   Arbrie Smith, the trial court did not repeat the definition of “purpose,” but merely
   referred back to the instruction in Count I, which referenced the aggravated
   murder of Dovon Williams.
                                                                                              6

              If a wound is inflicted upon a person with a deadly weapon in a

       manner calculated to destroy life, the purpose to cause his death may be, but

       is not required to be, inferred from the use of the weapon. The inference, if

       made, is not conclusive.

       ***

              Prior calculation and design means that the purpose to cause the death

       of another was reached by a definite process of reasoning in advance of the

       homicide, which process of reasoning must have included a mental plan

       involving studied consideration of the method and means with which to cause

       the death.

              To constitute prior calculation there must have been sufficient time

       and opportunity for the planning of an act of homicide and the circumstances

       surrounding the homicide must show scheme designed to carry out the

       calculated decision to cause the death.

       {¶ 14} Initially, we note that Jones failed to object to the jury instruction, nor did he

request another instruction be substituted in its place. Thus, for purposes of appellate

review, Jones has waived all but plain error. State v. Parrish, 2d Dist. Montgomery No.

21206, 2006-Ohio-4161. Plain error may be noticed if a manifest injustice is demonstrated.

Crim.R. 52(B); State v. Howard, 2d Dist. Montgomery No. 23795, 2011-Ohio-27. In order

to find a manifest miscarriage of justice, it must appear from the record as a whole that but

for the error, the outcome of the trial clearly would have been otherwise. State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978).
                                                                                               7

       {¶ 15} Jones argues that the court erred when it gave the jury the “gist of the

offense instruction set forth above. Specifically, he argues that by instructing the jury that a

person acts purposefully regardless of what he may have intended to accomplish by his

conduct the court failed to provide adequate instructions regarding a “specific intent to kill”

which a defendant must possess when charged with aggravated murder. State v. Wilson, 74

Ohio St.3d 381, 1996-Ohio-103, 659 N.E.2d 292. In Wilson, the Ohio Supreme Court has

characterized similar language as confusing in a murder prosecution which requires

purpose.” Id. at 393, 659 N.E.2d 292. However, we must remain mindful of the fact that

reviewing courts must consider jury instructions in their entirety. State v. Price, 60 Ohio

St.2d 136, 398 N.E.2d 772 (1979), ¶ 4 of the syllabus. “[A] single instruction to a jury may

not be judged in artificial isolation, but must be viewed in the context of the overall charge.”

Id. at 141. In Wilson, the Ohio Supreme Court rejected an argument that the trial court

committed plain error by using the gist of the offense language in an aggravated murder

trial, in part because [i]n the context of all the instructions given the jury, the court

provided adequate instructions on the element of specific intent to kill. Wilson, 74 Ohio

St.3d at 393.

       {¶ 16} Like the Wilson Court, we acknowledge that when read in isolation, the gist

of the offense language could be confusing and misleading to a jury. 2 When read in


          2
           Jones cites State v. Hooks, 2d Dist. Montgomery No. 16978, 17007,
   1998 WL 754574 (October 30, 1998), in support of his assertion that the “gist of
   the offense” instruction in an aggravated murder conviction is confusing and
   misleading to a jury. In Hooks, however, we noted that the instruction at issue
   was given in regards to a separate count for aggravated burglary and not
   aggravated murder. Thus, this case is distinguishable and does not support
   Jones’ argument.
                                                                                                8

context with the rest of the charge, however, it is clear the court provided the jury with

adequate instructions on the specific intent to cause death. The court specifically told the

jury that “[a] person acts purposely when it is his specific intention to cause a certain

result.” The court also told that jury that: It must be established beyond a reasonable

doubt that at the time in question there was present in the mind of the defendant a specific

intention to cause the death of Dovon Williams. Therefore, the gist of offense language

instruction did not amount to plain error in light of all the instructions given to the jury.

       {¶ 17} Jones’ first assignment of error is overruled.

       {¶ 18} Jones’ second assignment of error is as follows:

       {¶ 19} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING

SENTENCES OF LIFE WITHOUT PAROLE.”

       {¶ 20} In his second assignment, Jones argues that the trial court erred when it

sentenced him to life imprisonment without the possibility of parole for each count of

aggravated murder.

       {¶ 21} Appellant was sentenced to life without the possibility of parole pursuant to

R.C. 2929.03(A)(1)(a), which provides in pertinent part:

       (A) If the indictment or count in the indictment charging aggravated murder

       does not contain one or more specifications of aggravating circumstances

       listed in division (A) of section 2929.04 of the Revised Code, then, following

       a verdict of guilty of the charge of aggravated murder, the trial court shall

       impose sentence on the offender as follows:

       (1) Except as provided in division (A)(2) of this section, the trial court shall
                                                                                             9

       impose one of the following sentences on the offender:

       (a) Life imprisonment without parole. ***.

       {¶ 22} R.C. 2953.08(D) governs review of felony sentencing. R.C. 2953.08(D)(3)

provides, [a] sentence imposed for aggravated murder or murder pursuant to sections

2929.02 to 2929.06 of the Revised Code is not subject to review under this section. The

Ohio Supreme Court has held that this is unambiguous: a sentence for aggravated murder

imposed pursuant to R.C. 2929.02 to 2929.06 cannot be reviewed. State v. Porterfield, 106

Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 660. Accordingly, evidentiary review of a

sentence imposed by a trial court pursuant to R.C. 2929.02(A)(1)(a) is precluded.

       {¶ 23} Neither Jones nor the State of Ohio discussed the applicability of R.C.

2953.08(D)(3) in their initial briefs to this court. At oral argument, both sides were invited

to file supplemental briefs on the issue. On September 3, 2013, the State of Ohio filed its

supplemental brief and on September 10, 2013 and September 11, 2013, Jones filed his brief

and supplemental authority, respectively.

       {¶ 24} The State argues that both R.C. 2953.08(D)(3) and Porterfield prevent

review of Jones’ life term as to each count of aggravated murder. Jones advances two

arguments. First, Jones argues that R.C. 2505.03(A) provides a general right of review of

all final orders which would afford him full review of his sentences. While it is true that

R.C. 2505.03(A) is a general statute that gives Jones a right to appeal his aggravated murder

convictions, it is, nevertheless, a common rule of statutory interpretation which requires that

a specific statute prevail over a general statute. See generally State v. Taylor, 113 Ohio

St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37. Thus, the limited appellate review under R.C.
                                                                                        10

2953.08(D)(3) is construed as an exception to the general statute, R.C. 2505.03(A), which

might otherwise apply. Secondly, in its supplemental brief with additional authority, Jones

argues that because the Ohio Supreme Court has accepted State v. Long, 1st Dist. Hamilton

No. C-110160, 2012-Ohio-3052 for review, life without parole sentences are subject to

review. However, Long involves a juvenile. Jones is an adult. The proposition of law

accepted for review in Long involves a constitutional challenge under the Eighth

Amendment when sentencing a child. This constitutional issue is totally absent in Jones’

case.   Accordingly, we accept the arguments advanced by the State and find Jones’

arguments unpersuasive.

        {¶ 25} The Court of Appeals for the 8th District discussed the longstanding history

of treating aggravated murder sentencing differently from other felony sentencing in

concluding that a sentence of life imprisonment without parole imposed by a three-judge

panel pursuant to R.C. 2929.03 is not subject to review by the appellate court:

               The General Assembly's practice of treating sentencing for aggravated

        murder and murder convictions differently from other felonies is

        longstanding. Before the 1996 Senate Bill 2 felony sentencing amendments,

        the courts likewise held that the general felony sentencing requirements did

        not apply in aggravated murder cases. (Citations omitted). Defendant has

        shown nothing to indicate that the General Assembly intended to change this

        well-established sentencing practice and the comprehensive sentencing

        scheme in aggravated murder and murder cases.

State v. Hollingsworth, 143 Ohio App.3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001).
                                                                                         11

       {¶ 26} Pursuant to R.C. 2953.08(D)(3) and case law interpreting this statute, this

Court is without statutory authority to review appellant's sentence on an evidentiary basis.

Jones’ second assignment of error is overruled.

       {¶ 27} Jones’ third assignment of error is as follows:

       {¶ 28} “THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE

SENTENCES WITHOUT MAKING THE FINDINGS REQUIRED BY R.C. 2929.14(C)

AND CRIM. R. 32(A)(4) AT THE SENTENCING HEARING, AND WITHOUT HAVING

THE FACTUAL BASIS TO MAKE THOSE FINDINGS. SENTENCING ENTRY; T.P.

1-10 (DISPOSITION).”

       {¶ 29} In his third assignment of error, Jones contends that the trial court erred

when it failed to make the required findings in order to impose consecutive sentences and

that the record does not support the imposition of consecutive sentences.

       {¶ 30} Prior to H.B. 86, R.C. 2929.14(E)(4) required, as a predicate to imposing

consecutive sentences, a finding 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,” as well as one of three additional findings.            Former R.C.

2929.14(E)(4). In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 270, the

Ohio Supreme Court held that the statutory requirement to make certain findings before

imposing consecutive sentences violated the United States Constitution, and it severed that

requirement from the statute. Id. at ¶ 99-102.

       {¶ 31} With H.B. 86, Ohio’s sentencing scheme again requires judicial fact-finding
                                                                                           12

for consecutive sentences. Former R.C. 2929.14(B) and (C), which had been severed, were

formally deleted, and the judicial fact-finding requirement for consecutive sentencing,

previously set forth in R.C. 2929.14(E), was reenacted and codified as R.C. 2929.14(C).

       {¶ 32} R.C. 2929.14(E) now provides that the trial court “shall impose sentence

upon the offender in accordance with section 2971.03 of the Revised Code, and Chapter

2971 of the Revised Code applies regarding the prison term or term of life imprisonment

without parole imposed upon the offender and the service of that term of imprisonment” if

any of six enumerated conditions apply.

       {¶ 33} R.C. 2929.14(C)(4) authorizes the court to require an offender to serve

consecutively multiple prison terms for convictions on multiple offenses. Consecutive

sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to

protect the public from future crime or to punish the offender and (2) that consecutive

sentences are not disproportionate to the seriousness of the offender's conduct and to the

danger the offender poses to the public. In addition to these two factors, the court must find

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
                                                                                             13

       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.

       {¶ 34} In its brief, the State concedes that the trial court failed to make the requisite

findings pursuant to R.C. 2929.14(C)(4) before imposing consecutive sentences. Until that

occurs, we need not address Jones’ argument regarding whether the record supports the

imposition of consecutive sentences. Accordingly, the judgment is reversed, in part, and

this matter is remanded to the trial court so that it may make the requisite findings pursuant

to R.C. 2929.14(C)(4) before imposing consecutive sentences.

       {¶ 35} Jones’ third assignment of error is sustained in part.3

       {¶ 36} Jones’ fourth and final assignment of error is as follows:

       {¶ 37} “THE TRIAL COURT ERRED BY IMPOSING APPOINTED COUNSEL

FEES AND COURT COSTS.”

       {¶ 38} In his final assignment, Jones argues that the trial court erred when it failed

to impose court costs and attorney fees at the sentencing hearing, yet did so in the judgment

entry of conviction. The State concedes that it was error for the trial court to fail to orally

notify Jones at the sentencing hearing that it was imposing court costs and attorney fees.



          3
           We note that this Court’s remand of this matter does not imply either
   approval or disapproval of the sentence imposed; rather, it denotes only that the
   requisite findings to support the imposition of consecutive sentences are not part
   of the record herein.
                                                                                                 14

Thus, we remand this matter to the trial court for the limited purpose of allowing Jones to

move the court for a waiver of the payment of court costs and attorney fees.

        {¶ 39} Jones’ fourth and final assignment of is sustained.

        {¶ 40} In light of our disposition with respect to Jones’ third and fourth assignments

of error, the trial court’s judgment is reversed, in part, and this matter is remanded to the trial

court for proceedings consistent with this opinion. In all other respects, the judgment of the

trial court is affirmed.

                                           ..........

WELBAUM, J., concurs.

FROELICH, J., dissenting in part and concurring in judgment:

        {¶ 41}    The certified conflict question presented in Porterfield was “Whether the

language of R.C. 2953.08(D) prohibits appellate review of a trial court’s sentence when the

defendant    is   convicted    of   aggravated    murder     and   sentenced    pursuant    to    a

jointly-recommended sentence.” Id. at ¶ 5.

        {¶ 42} Similarly, in Hollingsworth, the defendant was sentenced pursuant to a plea

bargain in which the parties agreed that the defendant would not be sentenced to the

maximum (death) or the minimum (life imprisonment with parole eligibility after

twenty-five full years). He appealed that his sentence of life imprisonment without the

eligibility for parole was “contrary to Ohio law and violates R.C. 2929.11 and 2929.12.” I

do not believe these cases control this appeal.

        {¶ 43} R.C. 2953.08(D)(3) prohibits appellate review under R.C. 2953.08 of any

sentence imposed for aggravated murder. R.C. 2953.08 is titled “Appeals based on felony
                                                                                             15

sentencing guidelines.” It allows the right to appeal - except in certain situations, including

aggravated murder - on specific listed grounds; it does not prohibit an appeal, even in cases

of aggravated murder, on other, non-listed grounds. Here, Jones’s assignment of error (No.

2) is that “the trial court abused its discretion by imposing sentences of life without parole;”

this is not one of the listed grounds barred by R.C. 2953.08 to aggravated murder defendants.

       {¶ 44} I would find that we do have the authority to review the appeal of the

aggravated murder sentence, but otherwise concur in the opinion of the majority.

                                         ..........

Copies mailed to:

Lisa M. Fannin
Stephen P. Hardwick
Hon. Douglas M. Rastatter
