         [Cite as State v. Schwarm, 2017-Ohio-7626.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :     APPEAL NO. C-160677
                                                       TRIAL NO. B-1505471
        Plaintiff-Appellee,                      :

  vs.                                            :        O P I N I O N.

RONALD SCHWARM,                                  :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
                            Cause Remanded

Date of Judgment Entry on Appeal: September 15, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Candace Crouse, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}   Defendant-appellant Ronald Schwarm appeals his convictions for two

counts of rape and one count of gross sexual imposition. Because the trial court

erred by imposing more than the maximum sentence allowed by law for the rape

offenses and failed to make the necessary findings on the record at the sentencing

hearing to support the imposition of consecutive sentences, we vacate the sentences

imposed for rape and the imposition of consecutive sentences and remand for

resentencing. The judgment of the trial court is otherwise affirmed.

                                Factual Background


       {¶2}   On April 8, 2016, Schwarm pled guilty to two counts of rape and one

count of gross sexual imposition. The rape offenses were both first-degree felonies.

Schwarm’s indictment alleged that he had committed each rape offense “on an

unspecified date from summer of 1996 through summer of 1998.” The offense of

gross sexual imposition was a third-degree felony, alleged in the indictment to have

been committed by Schwarm on July 9, 2015.

       {¶3}   For each rape offense, the trial court sentenced Schwarm to 11 years’

imprisonment. For the offense of gross sexual imposition, the court sentenced him

to two years’ imprisonment. The court ordered the rape sentences to be served

concurrently to each other, but consecutively to the sentence imposed for gross

sexual imposition, resulting in an aggregate sentence of 13 years’ imprisonment.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                                 Sentencing Issues


       {¶4}   In his first assignment of error, Schwarm argues that the trial court

erred in sentencing him to 11-year prison terms for the rape offenses because the

sentences exceeded the maximum allowed by law at the time that the offenses were

committed.

       {¶5}   Under R.C. 2953.08(G)(2), we may only vacate or modify a

defendant’s sentence if we clearly and convincingly find that the record does not

support any mandatory sentencing findings or that the sentences imposed are

otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶ 1; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

       {¶6}   Schwarm’s indictment alleged that each rape offense was committed

“on an unspecified date from summer of 1996 through summer of 1998.” Until June

30, 1996, an offender convicted of a first-degree felony was subject to an

indeterminate sentence, with the maximum sentence being 25 years’ imprisonment.

See former R.C. 2929.11.

       {¶7}   On July 1, 1996, Am.Sub.S.B. No. 2 (“S.B. 2”) went into effect. It

eliminated indeterminate sentencing and provided that the available sentencing

range for a first-degree felony was three to ten years’ imprisonment.         State v.

Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496, ¶ 10. With respect to

the case at bar, the provisions of S.B. 2 were effective from July 1, 1996, through the

end of the date range specified in Schwarm’s indictment.

       {¶8}   On September 30, 2011, Am.Sub.H.B. No. 86 (“H.B. 86”) took effect.

H.B. 86 increased the maximum sentence available for first-degree-felony offenses to

11 years’ imprisonment. Thomas at ¶ 13. H.B. 86 also contained uncodified law




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                     OHIO FIRST DISTRICT COURT OF APPEALS



addressing the effect of R.C. 1.58(B) on its new sentencing provisions. R.C. 1.58(B)

provides that “[i]f the penalty, forfeiture, or punishment for any offense is reduced

by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment,

if not already imposed, shall be imposed according to the statute as amended.” The

uncodified law of H.B. 86 provided for the application of R.C. 1.58(B), specifying that

if the potential sentence for an offense was reduced under H.B. 86, then R.C. 1.58(B)

would apply to give the benefit of the reduced sentence to offenders who had not yet

been sentenced. Thomas at ¶ 14. H.B. 86 was in effect at the time of Schwarm’s

sentencing.

       {¶9}   If Schwarm committed the rape offenses before July 1, 1996, the date

that S.B. 2 went into effect, he would have been entitled to the reduced-sentence

benefits of H.B. 86, and the maximum sentences that he could have received for each

of the rape offenses would have been 11 years’ imprisonment, instead of the

maximum sentence of 25 years’ imprisonment that was provided for at the time the

offenses were committed. Id. at ¶ 17. But if Schwarm committed the offenses on

July 1, 1996, or thereafter, he should have been sentenced under the provisions of

S.B. 2, and could only have received a maximum sentence of ten years’ imprisonment

for his offenses. See State v. Johnson, 9th Dist. Summit No. 26788, 2013-Ohio-

4680, ¶ 8 (holding that an offender who had committed a first-degree felony after

the effective date of S.B. 2, but prior to the effective date of H.B. 86, and who was

sentenced after the effective date of H.B. 86, faced a maximum penalty of ten years’

imprisonment).

       {¶10} Here, the state alleges that because Schwarm pled guilty to charges

beginning with an unspecified date in the “summer of 1996,” this included a few days




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                      OHIO FIRST DISTRICT COURT OF APPEALS



prior to July 1, 1996, when the maximum sentence was 25 years. Therefore, the state

argues, Schwarm could be sentenced to 11 years. Because Schwarm pled guilty to

committing offenses that occurred within an indeterminate date range that arguably

covered both of these time periods, we must determine what law applies.

       {¶11} The Fourth Appellate District was faced with a similar issue in State v.

Mollohan, 4th Dist. Washington No. 98 CA 13, 1999 WL 671824 (Aug. 19, 1999). In

Mollohan, the defendant was found guilty of gross sexual imposition, a third-degree

felony. The indictment had alleged that Mollohan committed the offense “on or

about summer through Autumn, 1996,” encompassing time periods that were both

pre-S.B. 2 and post-S.B. 2. Id. at *4. Unlike the case at bar, Mollohan faced a lesser

sentence under the pre-S.B. 2 law than under the law after S.B. 2 took effect. Id. at

*3. Noting that both criminal statutes and indictments are to be strictly construed

against the state and in favor of the accused, the Mollohan court held that the

defendant was entitled to the “proverbial ‘benefit of the doubt’ ” that the offense

occurred prior to the effective date of S.B. 2. Id. at *5.

       {¶12} We agree with this reasoning.           Schwarm pled guilty to both rape

offenses as alleged in the indictment, and the record contains no additional

information as to a specific date on which the offenses occurred. Under the rule of

lenity, criminal statutes are to be strictly construed against the state and liberally

construed in favor of the accused. R.C. 2901.04(A). Consequently, we conclude that

Schwarm is entitled to be sentenced under the law in effect post-S.B. 2, and that the

maximum sentence that he could have received was ten years’ imprisonment for each

rape offense.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} Accordingly, the trial court erred in imposing an 11-year sentence for

each offense of rape, as those sentences were contrary to law. The first assignment of

error is sustained.

       {¶14} Schwarm argues in his second assignment of error that the trial court

erred in imposing consecutive sentences without making the findings required by

R.C. 2929.14(C).

       {¶15} R.C. 2929.14(C) requires a trial court to make various findings before

imposing consecutive sentences. A trial court must make these mandated findings at

the sentencing hearing and incorporate the findings into the sentencing entry. State

v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The trial

court need not recite the findings verbatim, but a reviewing court must be able to

discern from the record that the court engaged in the requisite analysis and

determine that the record contains evidence to support the findings. Id. at ¶ 29.

       {¶16} The trial court in this case incorporated findings under R.C.

2929.14(C) into Schwarm’s sentencing entry. It specifically found that consecutive

sentences were necessary to protect the public and to punish Schwarm and were not

disproportionate to Schwarm’s conduct or the danger he posed to the public. The

court additionally found that at least two of Schwarm’s offenses had been committed

as a part of one or more courses of conduct, and that the harm caused by two or more

of the offenses had been so great or unusual that a single prison term would not

adequately reflect the seriousness of Schwarm’s conduct. See R.C. 2929.14(C)(4)(b).

       {¶17} While these findings were included in the sentencing entry, the trial

court did not state them on the record at the sentencing hearing. The state contends

that the findings can be discerned from the language used by the court when




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sentencing Schwarm. The state specifically argues that the trial court detailed the

harm suffered by the victims of Schwarm’s offenses, and that the court also stated,

“Because of the relationship [Schwarm] had [with] these two women. Because of the

protection, it is a consecutive sentence.” We are not persuaded. While the trial court

need not engage in a word-for-word recitation of findings under the statute, we

cannot discern that it engaged in the requisite analysis under R.C. 2929.14(C) from

these comments or from our review of the record.

       {¶18} Therefore, we hold that the trial court erred in imposing consecutive

sentences without making the requisite findings at the sentencing hearing. The

second assignment of error is sustained.

                                    Competency


       {¶19} In his third assignment of error, Schwarm argues that the trial court

erred by failing to sua sponte order that he undergo a competency evaluation prior to

sentencing. He contends that an evaluation was warranted because he presented a

confused demeanor and demonstrated irrational behavior, and because a psychiatric

report had found him to be in the early stages of a neurocognitive disorder.

       {¶20} Due-process principles mandate that a criminal defendant who is

legally incompetent shall not be subjected to a trial. State v. Berry, 72 Ohio St.3d

354, 359, 650 N.E.2d 433 (1995).       Pursuant to R.C. 2945.37(B), the issue of a

defendant’s competence to stand trial may be raised by the court, the prosecution, or

the defense. Where the record contains evidence to create a sufficient doubt of a

defendant’s competence, further inquiry is necessary. Drope v. Missouri, 420 U.S.

162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).     Whether to inquire further into a




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                      OHIO FIRST DISTRICT COURT OF APPEALS



defendant’s competence by ordering a competency evaluation or competency hearing

is within the trial court’s discretion. Berry at 360.

       {¶21} The following factors should be considered by the trial court when

determining whether to order a competency hearing:          “(1) doubts expressed by

counsel as to the defendant’s competence; (2) evidence of irrational behavior; (3) the

defendant’s demeanor at trial; and (4) prior medical opinion relating to competence

to stand trial.”   State v. Rubenstein, 40 Ohio App.3d 57, 531 N.E.2d 732 (8th

Dist.1987), paragraph two of the syllabus; see State v. Sewell, 1st Dist. Hamilton Nos.

C-930016 and C-930026, 1993 WL 547183, *1 (Dec. 1, 1993).

       {¶22} Following our independent review of the record, we cannot find that

the trial court abused its discretion in failing to order a competency evaluation.

Defense counsel expressed no doubts as to Schwarm’s competence. During the plea

hearing, defense counsel represented to the court that Schwarm was competent to

enter a guilty plea. And at the sentencing hearing, defense counsel acknowledged

that Schwarm had physically deteriorated with respect to his memory, but stated,

“[H]e’s absolutely cognizant that he knows what is going on here. There is not an

issue related to that.” The record does not demonstrate that Schwarm’s demeanor

during these proceedings indicated any signs of incompetence.

       {¶23} On appeal, Schwarm points to his comments during the sentencing

hearing to argue that he had exhibited irrational behavior.          When given the

opportunity to speak at sentencing, Schwarm stated, “Well, I am remorseful. I do

have these dreams still today about being in the military and these young girls

coming to me. And I send them back not having any intercourse with them. So the

mama-san doesn’t get mad at them. And I pay the money. And so then tell them to




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                      OHIO FIRST DISTRICT COURT OF APPEALS



get out of the business.” These isolated comments do not demonstrate that Schwarm

behaved irrationally, and they are put into context by a psychiatric report issued by

the Court Clinic following a court-ordered examination of Schwarm. The psychiatric

report explained that Schwarm had engaged the services of underage prostitutes

provided to him by a “mama-san” when stationed in Korea with the United States

Army, and that he felt lingering guilt over these encounters. Schwarm’s comments at

sentencing could be described as an attempt to mitigate or explain his behavior with

respect to the rape offenses.

       {¶24} The psychiatric report gives no indication that Schwarm was

incompetent. The report indicates that Schwarm was experiencing mild memory

problems and could be in the early stages of Alzheimer’s disease. But with respect to

Schwarm’s cognitive abilities, the report indicates that he appeared to be of average

intellectual ability, presented his thoughts in a well-organized fashion, and was fully

oriented to time, place, and situation.

       {¶25} Because the record did not contain evidence to create a sufficient

doubt of incompetence, we find that the trial court did not err in failing to sua sponte

order that Schwarm undergo a competency evaluation. The third assignment of

error is overruled.

                                Ineffective Assistance


       {¶26} In his fourth assignment of error, Schwarm argues that his counsel

was ineffective for failing to raise the issue of Schwarm’s competency at any point

during the proceedings.

       {¶27} Counsel will not be considered ineffective unless her or his

performance was deficient and caused actual prejudice to the defendant. Strickland



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v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

Strickland at 688; Bradley at 142.       A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceedings

would have been different but for the deficient performance. Strickland at 694;

Bradley at 142.    A reviewing court must indulge a presumption that counsel’s

behavior fell within the acceptable range of reasonable professional assistance.

Strickland at 689; Bradley at 142.

       {¶28} Because the record did not contain evidence to create a sufficient

doubt that Schwarm was incompetent, we cannot find that counsel was deficient for

failing to raise the issue of Schwarm’s competency. The fourth assignment of error is

overruled.

                                       Conclusion


       {¶29} Because the trial court erred in imposing 11-year-prison terms for the

offenses of rape and in imposing consecutive sentences without the requisite

findings, we vacate those portions of Schwarm’s sentence and remand for

resentencing. The judgment of the trial court is otherwise affirmed.

      Judgment affirmed in part and sentences vacated in part, and cause remanded.



CUNNINGHAM, P.J., and ZAYAS, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.



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