[Cite as State v. Coleman, 2016-Ohio-1111.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-15-1071

        Appellee                                  Trial Court No. CR0201401836

v.

William Coleman                                   DECISION AND JUDGMENT

        Appellant                                 Decided: March 18, 2016

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a November 13, 2014 judgment of the Lucas County

Court of Common Pleas, which found appellant not guilty by reason of insanity on one

count of robbery, in violation of R.C. 2911(A)(2), a second degree felony, and one count

of burglary, in violation of R.C. 2911.12(A)(2), a second degree felony. A third count of
vandalism, in violation of R.C. 2909.05(B)(1) and (E), a fifth degree felony, was

dismissed by directed verdict.

         {¶ 2} On December 16, 2014, the requisite R.C. 2945.40 hearing was held.

Appellant was ordered to be committed to the Northwest Psychiatric Hospital in Toledo

for a maximum period of 16 years. For the reasons set forth below, this court reverses

the sentencing judgment of the trial court and remands for resentencing.

         {¶ 3} Appellant, William Coleman, sets forth the following sole assignment of

error:

               The trial court erred to the prejudice of Appellant by imposing

         consecutive maximum terms of court supervision under R.C.

         2945.401(J)(1)(b).

         {¶ 4} The following undisputed facts are relevant to this appeal. During the early

morning hours of May 18, 2014, appellant broke into his uncle’s residence while his

uncle was asleep. The startled victim awoke to discover his nephew, who has a history of

mental illness and who had just been released from prison, standing over his bed.

Appellant stole a bottle of Percocet from the victim’s nightstand and fled. The victim

pursued appellant outside onto the front porch.

         {¶ 5} When the victim reached the front porch he called 9-1-1 from his cell phone.

In response, appellant began assaulting the victim, preventing him from speaking with the

dispatcher. Appellant then grabbed a shovel and put the victim into a chokehold. The




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victim struggled to free himself, grabbed his phone, ran back inside his house, locked the

doors, and reported the events to 9-1-1.

       {¶ 6} While the victim was speaking with 9-1-1, appellant began breaking the

windows of the victim’s home with a wicker table. Appellant was still inflicting damage

to the home when he was subdued by the arriving police officers.

       {¶ 7} Subsequently, appellant became a patient at the Northwest Ohio Psychiatric

Hospital. A multitude of continuances ensued to enable psychiatric evaluations to assess

appellant’s competency to stand trial. Appellant was deemed competent to face trial.

       {¶ 8} On November 17, 2014, a bench trial commenced. Following trial, appellant

was found not guilty by reason of insanity on the robbery and burglary charges. The

vandalism charge was dismissed by directed verdict.

       {¶ 9} On December 16, 2014, appellant was sentenced pursuant to R.C. 2945.40.

The trial court ordered appellant to be committed to the Northwest Psychiatric Hospital

for a maximum period of 16 years, constituted of consecutive, maximum sentences for

the robbery and burglary charges. This appeal ensued.

       {¶ 10} In the sole assignment of error, appellant contends that the trial court erred

by sentencing him to a 16-year period of commitment. Appellant asserts that the

sentence conflicts with R.C. 2945.401(J)(1)(b). In support, appellant argues that the use

of the singular form of the word “offense” in the statutory language precludes

consecutive sentences in multiple offense scenarios such as this case. Upon our review

of the facts and governing statutory language, we concur.




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       {¶ 11} It is well-established under Ohio law that a trial court must not, “[I]nterpret

a criminal statute so as to increase the penalty it imposes on a defendant if the intended

scope of the statute is ambiguous.” State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-

3478, 912 N.E.2d 582, ¶ 38. Furthermore, the Supreme Court of the United States has

held that ambiguous statutes are to be construed in favor of the defendant, not the state,

under the principles of the rule of lenity. Rewis v. United States, 401 U.S. 808, 91 S.Ct.

1056, 28 L.Ed.2d 493 (1971).

       {¶ 12} R.C. 2945.401 delineates the timeframe for which an individual can be

committed to psychiatric treatment when found not guilty by reason of insanity:

              (J)(1) A defendant or person who has been committed pursuant to

       section 2945.39 or 2945.40 of the Revised Code continues to be under the

       jurisdiction of the trial court until the final termination of the commitment.

       For the purposes of division (J) of this section, the final termination of a

       commitment occurs upon the earlier of one of the following: (b) The

       expiration of the maximum prison term or term of imprisonment that the

       defendant or person could have received if the defendant or person had

       been convicted of the most serious offense with which the defendant or

       person is charged or in relation to which the defendant or person was found

       not guilty by reason of insanity.

       {¶ 13} In State of Ohio v. Hersh, 2012-Ohio-3807, 974 N.E.2d 161, ¶ 2 (8th Dist.),

appellant was charged with three counts of menacing by stalking. The trial court found




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appellant not guilty by reason of insanity and referred her to commitment proceedings.

Id. at ¶ 4. The court, “[I]ndicated that it would retain jurisdiction over the case for 18

months, the maximum time [appellant] could have received had she been found guilty.”

Id. at ¶ 5. Ten months after the sentencing, the trial court extended the period of her

conditional release to five years. Id.

       {¶ 14} Appellant appealed the extension of her sentence on the basis that under

R.C. 2945.401(J)(1)(b), the maximum amount of time the trial court could retain

jurisdiction was 18 months, the maximum amount of time she would have received had

she been found guilty of the felony charges. Id. at ¶ 7. The appellate court agreed. The

case was remanded to vacate the extension of appellant’s sentence. Id. at ¶ 38.

       {¶ 15} Governing precedent, applicable statutory language, and the record of

evidence all demonstrate the veracity of appellant’s position. The trial court is permitted

to commit appellant for psychiatric treatment only for the maximum amount of time

appellant would have received on the most serious offense. As such, appellant should

have only been sentenced to a maximum commitment of eight years. Wherefore, we find

appellant’s assignment of error well-taken.

       {¶ 16} Wherefore, the sentencing judgment of the Lucas County Court of

Common Please is hereby reversed. The case is remanded for resentencing. Appellee is

ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                          Judgment reversed.




5.
                                                                      State v. Coleman
                                                                      C.A. No. L-15-1071




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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