[Cite as State v. Collins, 2013-Ohio-2419.]


                                         COURT OF APPEALS
                                        KNOX COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. John W. Wise, P. J.
        Plaintiff-Appellee                          Hon. Patricia A. Delaney, J.
                                                    Hon. Craig R. Baldwin, J.
-vs-
                                                    Case No. 12 CA 20
MICHAEL T. COLLINS

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 11CR07-0109


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          June 10, 2013



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN C. THATCHER                                JOHN A. DANKOVICH
PROSECUTING ATTORNEY                            ASSISTANT PUBLIC DEFENDER
AARON E. ALLARD                                 One Public Square
ASSISTANT PROSECUTOR                            Mount Vernon, Ohio 43050
117 East High Street, Suite 234
Mount Vernon, Ohio 43050
Knox County, Case No. 12 CA 20                                                            2

Wise, P. J.

      {¶1}    Appellant Michael T. Collins appeals from his sentences rendered by the

Court of Common Pleas, Knox County, for the felony offenses of having weapons under

a disability and tampering with evidence, both with firearm specifications. The relevant

facts leading to this appeal are as follows.

      {¶2}    On the night of July 1, 2011, Appellant Michael T. Collins drove his

daughter, Melissa Collins, to her residence on Martinsburg Road to deal with a dispute

Melissa was having with her brother, Jesse Collins, concerning her trailer. Appellant,

already a convicted felon, had a gun in his vehicle. Jesse Collins and his girlfriend, Lilly

Dawn Claggett, were already at the trailer.

      {¶3}    A confrontation ensued, leading to a car chase and the exchange of

gunfire on the road. At some point, appellant fired his weapon and killed Lilly Dawn

Claggett and paralyzed his son Jesse. Appellant and Melissa Collins left the scene, and

Melissa hid appellant’s weapon behind a telephone pole in tall grass. The next morning,

after he was arrested, appellant led police to the location of the gun.

      {¶4}    On August 2, 2011, appellant was indicted on one count of Murder (R.C.

2903.02(A)) with a firearm specification, one count of Murder (R.C. 2903.02(B)) with a

firearm specification, one count of Attempted Murder (R.C. 2923.02(A)) with a firearm

specification, Voluntary Manslaughter (R.C. 2903.03(A)) with a firearm specification,

Involuntary Manslaughter (R.C. 2903.04(A)) with a firearm specification, Felonious

Assault (R.C. 2903.11(A)(1)) with a firearm specification, Felonious Assault (R.C.

2903.11(A)(1)) with a firearm specification, Having Weapons Under Disability (R.C.
Knox County, Case No. 12 CA 20                                                           3


2923.13(A)(3)) with a firearm specification, and Tampering With Evidence (R.C.

2921.12(A)(1)) with a firearm specification.

      {¶5}    At the conclusion of the trial on July 20, 2012, the jury found appellant not

guilty of Murder, Murder, Attempted Murder, Voluntary Manslaughter, Involuntary

Manslaughter, Felonious Assault and Felonious Assault. However, appellant was found

guilty of Having Weapons Under Disability (R.C. 2923.13(A)(3)), with a firearm

specification, and Tampering With Evidence (R.C. 2921.12(A)(1)), a felony of the third

degree, with a firearm specification.

      {¶6}    On August 24, 2012, after a pre-sentence investigation, the trial court

sentenced appellant to two terms of thirty-six (36) months to be served consecutively

and a one (1) year term for a gun specification as to the tampering with evidence charge

for a total of seven (7) years with credit for four-hundred and nineteen (419) days time

served.

      {¶7}    On September 21, 2012, appellant filed a notice of appeal. He herein

raises the following two Assignments of Error:

      {¶8}    “I.     THE    TRIAL      COURT      ERRED    IN   IMPOSING      MAXIMUM

CONSECUTIVE SENTENCES.

      {¶9}    “II.   THE TRIAL COURT ERRED IN TAKING INTO CONSIDERATION

IMPROPER FACTORS WHEN RENDERING SENTENCE.”

                                               I., II.

      {¶10} In his First Assignment of Error, appellant challenges his maximum,

consecutive sentences for his convictions of weapons under disability and tampering

with evidence, both felonies of the third degree. In his Second Assignment of Error,
Knox County, Case No. 12 CA 20                                                          4


appellant contends the trial court relied on improper factors in ordering maximum

sentences. We will address these assigned errors together.

      {¶11} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this

first step is satisfied, the second step requires the trial court's decision be reviewed

under an abuse-of-discretion standard. Id. Furthermore, “ * * * the right to appeal a

sentence under R.C. 2953.08(C) does not mean that consecutive sentences for multiple

convictions may not exceed the maximum sentence allowed for the most serious

conviction.” See State v. Beverly, Delaware App.No. 03 CAA 02011, 2003–Ohio–6777,

¶ 17. But we have recognized that “[w]here the record lacks sufficient data to justify the

sentence, the court may well abuse its discretion by imposing that sentence without a

suitable explanation.” State v. Firouzmandi, Licking App.No. 2006–CA–41, 2006–Ohio–

5823, ¶ 52.

                                  Maximum Sentence Issue

      {¶12} Appellant first argues that the court erred in sentencing him to maximum

sentences on the offenses of weapons under disability and tampering with evidence.

      {¶13} Subsequent to the Ohio Supreme Court's Foster decision, “[t]he decision

to impose the maximum sentence is simply part of the trial court's overall discretion in

issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.”

State v. Parsons, Belmont App.No. 12 BE 11, 2013–Ohio–1281, ¶ 14.
Knox County, Case No. 12 CA 20                                                           5


      {¶14} In the case sub judice, both sentences at issue are within the statutory

range for third-degree felonies. See R.C. 2929.14(A)(3).1            However, appellant

specifically contends, as the basis of his Second Assignment of Error, that the trial court

relied on improper factors in ordering maximum sentences.

      {¶15} Appellant directs us to the decision of the Third District Court of Appeals in

State v. Blake, Union App.No. No. 14-03-33, 2004-Ohio-1952, a pre-Foster decision. In

that case, the defendant, Floyd Neal Blake, had been originally indicted on four counts

of rape and four counts of gross sexual imposition. The State thereafter voluntarily

dismissed three counts of rape and three counts of gross sexual imposition. Blake and

the State then entered into a plea agreement such that the State dismissed the

remaining rape charge and Blake entered a guilty plea to one count of gross sexual

imposition. The trial court in that case ultimately gave Blake the maximum sentence of

five years in prison.

      {¶16} On appeal, the Third District Court of Appeals concluded that the trial

court had erred in sentencing Blake to the maximum sentence, stating as follows:

      {¶17} “In this case, the trial court expressly stated its belief that Blake had

committed the offenses which the State had voluntarily dismissed prior to the plea

agreement. No evidence was entered to support the conclusion that Blake committed

those offenses. The trial court also expressed its belief that Blake had committed the

rape charge which was dismissed pursuant to the plea agreement. Although all of these

things can be considered to determine likelihood to recidivate, they cannot be the sole

basis for imposing the maximum sentence. To allow that is to permit Blake to be

1
  Current R.C. 2929.14(A)(3)(b) has reduced the maximum prison term for many third-
degree felonies from 5 years to 36 months.
Knox County, Case No. 12 CA 20                                                             6


convicted of those offenses without a trial or an opportunity to defend himself by cross-

examining the witnesses. The trial court approved the voluntary dismissals by the State

and approved the plea agreement. By doing so, it gave up the right to find Blake guilty

of those charges. By expressing the belief that Blake was guilty of those charges and

basing the sentence on that belief, the trial court indicated a bias towards Blake and

implies an improper sentence. This is especially the case when considering Blake guilty

of the offenses against the second girl. Those charges were voluntarily dismissed by the

State and Blake never indicated any guilt in connection with those charges.”

      {¶18} Id. at ¶ 6.

      {¶19} In the case sub judice, appellant maintains the trial court improperly took

into consideration, for sentencing purposes, the counts for which appellant was found

not guilty by a jury, including testimony he alleges did not relate to having weapons

under disability and tampering with evidence. In support, he points out that the court

allowed three persons to make victims’ statements with regard to Lilly Dawn Claggett's

death. See Sentencing Tr. at 4-10. He additionally directs us to the following statement

by the court: "Well, that son that's paralyzed and that family that's in disorder is a direct

result of your actions. I heard the whole trial here, Mr. Collins. Yeah. This didn't have to

happen." Id. at 12.

      {¶20} Upon review, we are unpersuaded that the aforesaid occurrences during

sentencing support the conclusion that the trial court violated the rule of Blake.

Moreover, this Court has recognized that self-defense is a “confession and avoidance”

affirmative defense in which the defendant admits the elements of the crime but seeks

to prove some additional element which absolves the defendant of guilt. See
Knox County, Case No. 12 CA 20                                                            7

Uhrichsville v. Losey, Tuscarawas App.No. 2005 AP 03 0028, 2005-Ohio-6564, ¶ 9,

citing State v. White (Jan. 14, 1998), Ross App. No. 97 CA 2282. Thus, even though

appellant was acquitted of the more serious charges in this matter based on the

defense of self-defense, it was not improper for the trial court to consider, for sentencing

purposes, the facts surrounding appellant’s placement of himself in the middle of the

violent mayhem that developed on July 1, 2011.

      {¶21} Accordingly, we hold the maximum sentences in this matter were not

based on the consideration of improper factors and are not unreasonable, arbitrary or

unconscionable.

                                  Consecutive Sentence Issue

      {¶22} Appellant next challenges his consecutive sentences on the two third-

degree felonies. 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The General Assembly has thus expressed its intent to revive the

statutory fact-finding provisions pertaining to the imposition of consecutive sentences

that were effective pre-Foster. See State v. Wells, Cuyahoga App.No. 98428, 2013-

Ohio-1179, ¶ 11. These revisions to the felony sentencing statutes now require a trial

court to make specific findings when imposing consecutive sentences. Nonetheless,

“[a]lthough H.B. 86 requires the trial court to make findings before imposing a

consecutive sentence, it does not require the trial court to give its reasons for imposing

the sentence.” State v. Bentley, Marion App.No. 9–12–31, 2013-Ohio-852, ¶ 12, citing

State v. Frasca, Trumbull App.No. 2011–T–0108, 2012–Ohio–3746, ¶ 57. But the

record must clearly demonstrate that consecutive sentences are not only appropriate,
Knox County, Case No. 12 CA 20                                                         8

but are also clearly supported by the record. See State v. Bonnell, Delaware App.No.

12CAA3022, 2012–Ohio–5150.

      {¶23} R.C. 2929.14(C)(4) provides, in relevant part:

      {¶24} “If multiple prison terms are imposed on an offender for convictions of

multiple offenses the court may require the offender to serve the prison terms

consecutively if the court finds 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, and if the court also finds any of the following:

      {¶25} “(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.

      {¶26} “(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 any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

      {¶27} “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

      {¶28} (Emphases added).
Knox County, Case No. 12 CA 20                                                           9


      {¶29} In the case sub judice, the trial court set forth the following findings in its

judgment entry regarding consecutive sentences: “The Court finds consecutive

sentences are necessary to protect the public, to punish the Defendant, are not

disproportionate, and the harm caused by Defendant was so great that a single term

does not adequately reflect the seriousness of Defendant's conduct.”

      {¶30} Sentencing Entry, August 24, 2012, at 2.

      {¶31} Although appellant maintains that his use of the weapon was in self-

defense (in reference to the weapons under disability conviction) and that the hiding of

the weapon after the shooting was brief (in reference to the tampering with evidence

conviction), we find the trial court complied with R.C. 2929.14(C)(4) and we are unable

to find reversible error in the trial court’s decision to impose consecutive sentences in

the case sub judice.

                                          Conclusion

      {¶32} Upon review, we hold the trial court's consecutive, maximum sentences in

this matter are not unreasonable, arbitrary or unconscionable. We further hold said

sentences are not contrary to law.
Knox County, Case No. 12 CA 20                                                     10


      {¶33} Appellant's First and Second Assignments of Error are overruled.

      {¶34} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Knox County, Ohio, is hereby affirmed.


By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0221
Knox County, Case No. 12 CA 20                                             11


              IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MICHAEL T. COLLINS                        :
                                          :
       Defendant-Appellant                :         Case No. 12 CA 20




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Knox County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
