[Cite as State v. Jeffery, 2011-Ohio-2654.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                         Hon. John W. Wise, J.
                                                    Hon. Julie A. Edwards, J.
-vs-
                                                    Case No. 10 CA 120
TONY A. JEFFERY

        Defendant-Appellee                          OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 09 CR 558H


JUDGMENT:                                       Reversed and Remanded



DATE OF JUDGMENT ENTRY:                          June 1, 2011



APPEARANCES:

For Plaintiff-Appellant                         For Defendant-Appellee

JAMES J. MAYER, JR.                              JOHN C. O'DONNELL, III
PROSECUTING ATTORNEY                             13 Park Avenue West
BAMBI COUCH PAGE                                 Suite 300
ASSISTANT PROSECUTOR                             Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 10 CA 120                                                    2

Wise, J.

      {¶1}   Appellant State of Ohio appeals the decision of the Court of Common

Pleas, Richland County, sentencing Appellee Tony A. Jeffery on one count of failure to

comply with an order or signal of a police officer. The relevant facts leading to this

appeal are as follows.

      {¶2}   On July 20, 2009, an Ontario, Ohio, police officer engaged in a high-speed

pursuit of a pickup truck driven by appellee. The truck crashed into a pole, and appellee

was thereupon apprehended. The pickup was discovered to have been reported stolen

in Obetz, Ohio.

      {¶3}   On November 25, 2009, appellee appeared before the court on a final pre-

trial on a charge of failure to comply with an order or signal of a police officer, R.C.

2921.331(B)/(C)(5)(a)(i) and (ii), a third-degree felony. Appellee and the State agreed

that an additional felony charge against appellee, receiving stolen property, would be

dismissed upon appellee’s plea. It was also agreed that appellee would receive a prison

sentence, with the trial court to determine the length of the sentence from the possible

ranges of one to five years. The matter was set for a change of plea hearing on

December 16, 2009.

      {¶4}   Appellee failed to appear for his change of plea hearing. In the meantime,

in separate cases, the Delaware County Court of Common Pleas sentenced appellee

on April 7, 2010 to sixteen months in prison for receiving stolen property, and the

Franklin County Court of Common Pleas sentenced appellee on a burglary conviction,

resulting in a conveyance to prison on July 21, 2010.
Richland County, Case No. 10 CA 120                                                         3


       {¶5}    Appellee was thereafter located and brought before the court on August 4,

2010. He entered a guilty plea on the charge of failure to comply with an order or signal

of a police officer, and was sentenced to one year in prison, to be served concurrently

with his other two out-of-county sentences.

       {¶6}    On October 13, 2010, the State filed a notice of appeal. It herein raises the

following sole Assignment of Error:

       {¶7}    “I.   THE TRIAL COURT ERRED BY FAILING TO IMPOSE A

CONSECUTIVE PRISON TERM FOR FAILURE TO COMPLY WITH AN ORDER OR

SIGNAL OF A POLICE OFFICER PURSUANT TO OHIO REVISED CODE SECTION

2921.331(D).

                                              I.

       {¶8}    In its sole Assignment of Error, Appellant State of Ohio contends the trial

court committed reversible error by failing to impose upon appellee a statutorily-

mandated consecutive sentence. We agree.

       {¶9}    R.C. 2921.331(B) states as follows: “No person shall operate a motor

vehicle so as willfully to elude or flee a police officer after receiving a visible or audible

signal from a police officer to bring the person's motor vehicle to a stop.”

       {¶10} R.C. 2921.331(C)(4) further states that a violation of division (B) is a

felony of the fourth degree if the trier of fact finds the offender was fleeing immediately

after the commission of a felony, while R.C. 2921.331(C)(5)(a) further states that a

violation of division (B) is a felony of the third degree depending on the nature of cause

or risk of physical harm to persons or property.
Richland County, Case No. 10 CA 120                                                         4


       {¶11} Finally, R.C. 2921.331(D) contains the following sentencing provision

regarding certain convictions for failure to comply with the order of a police officer: “If an

offender is sentenced pursuant to division (C)(4) or (5) of this section for a violation of

division (B) of this section, and if the offender is sentenced to a prison term for that

violation, the offender shall serve the prison term consecutively to any other prison term

or mandatory prison term imposed upon the offender.”

       {¶12} In the case sub judice, the trial court determined that it was impermissible

to sentence appellee consecutive to the prior sentences he had received in Delaware

and Franklin Counties, as indicated by the following discussion with the attorneys:

       {¶13} “MS. COUCH-PAGE: Your Honor, I don’t think concurrent time - -              he’s

eligible for concurrent time on a fleeing and eluding.

       {¶14} “THE COURT: I can’t hear you.

       {¶15} “MS. COUCH-PAGE: I said I don’t think fleeing and eluding allows for

concurrent time by statute.

       {¶16} “THE COURT:         Well, the time he’s doing now is for something that

happened afterwards.

       {¶17} “MS. COUCH-PAGE: Right. But it’s a situation that fleeing and eluding

can’t be concurrent time by statute.

       {¶18} “MR. HITCHMAN: This offense we’re here for today occurred obviously

before the other two offenses.

       {¶19} “THE DEFENDANT: July 17th of last year.

       {¶20} “THE COURT: How can I sentence him to consecutive time for events

that happened afterwards?
Richland County, Case No. 10 CA 120                                                   5


       {¶21} “MS. COUCH-PAGE: The events happened after this case.

       {¶22} “THE COURT: Yeah.

       {¶23} “MS. COUCH-PAGE: Yeah.

       {¶24} “THE COURT: I think it would be up to the judge on those cases whether

or not it’s concurrent or consecutive. I don’t believe I can sentence him consecutive

after the fact.

       {¶25} “MS. COUCH-PAGE: The fact that he wasn’t available here, Your Honor,

I don’t know where he’s been for - - this happened last July.         This   - - all the

negotiations have been ongoing. And then he - - we’re now into July of 2010.

       {¶26} “THE COURT:          What did the Court say in Franklin County about

concurrent or consecutive? Did they say anything?

       {¶27} “MR. HITCHMAN: No, they didn’t say anything.

       {¶28} “* * *

       {¶29} “MR. HITCHMAN: The good news is he has no other cases pending.

       {¶30} “THE COURT: All you legalese, somebody has to know the answer. Can

I sentence him consecutive to something that happened afterwards? I don’t think so.

       {¶31} “MS COUCH-PAGE: Your Honor, it requires under the statute fleeing and

eluding be consecutive time. It doesn’t matter who sentenced him first.

       {¶32} “THE COURT: Well - -

       {¶33} “MS. COUCH-PAGE: Because of the fact that - -

       {¶34} “THE COURT: Where is that in the law?

       {¶35} “MS. COUCH-PAGE: I’ll get it for you. I imagine we’re not sentencing him

today anyway, so I will get it for you.
Richland County, Case No. 10 CA 120                                                     6


      {¶36} “MR. HITCHMAN: We were anticipating being sentenced because he’s in

Noble County.

      {¶37} “THE DEFENDANT: I am four hours away from here.

      {¶38} “MS. COUCH-PAGE: What was indicated in the file back in November of

2009 is that we were to recommend a prison sentence. Brent Robinson, I would suggest

two years based upon the facts.

      {¶39} “THE COURT: I wrote down one year release. That’s what was agreed

to.

      {¶40} “MS. COUCH-PAGE: Well, skip past Mr. Jeffery and I’ll get you where it

says in the statutes about consecutive time on fleeing and eluding.

      {¶41} “THE COURT: Show me where it says it has to be consecutive to time that

happened afterwards. I know it says consecutive to things that happened before. No

question about it. I don’t think it’s constitutional. I don’t think it’s legal to sentence

somebody retroactively to something consecutive.” Tr., Sentencing Hearing, at 13-16.

      {¶42} We first note that R.C. 2929.41(B)(2) reads as follows: “If a court of this

state imposes a prison term upon the offender for the commission of a felony and a

court of another state or the United States also has imposed a prison term upon the

offender for the commission of a felony, the court of this state may order that the

offender serve the prison term it imposes consecutively to any prison term imposed

upon the offender by the court of another state or the United States.”

      {¶43} The General Assembly has thus clearly generally allowed Ohio felony

prison terms to be consecutive to prison terms imposed in other state courts or in the
Richland County, Case No. 10 CA 120                                                     7


federal courts. However, it must be conceded that R.C. 2929.41(B)(2) is silent where, as

here, a defendant has been sentenced in other cases and/or counties in Ohio.

       {¶44} Nonetheless, several Ohio appellate cases have generally approved

“other case” or “prior case” consecutive sentences. For example, in State v. Clark,

Hamilton App.No. C-010532, 2002-Ohio-3135, a defendant challenged his consecutive

sentences following pleas of guilty to charges of robbery, receiving stolen property,

forgery, and failure to comply with the order of a police officer. Id. at ¶2 - ¶ 3. Said

charges were spread out over three separate Hamilton County Common Pleas trial

case numbers. Id. The trial court nonetheless ordered that Clark’s five-year prison term

for robbery (trial case no. B 0101787) and two-year prison term for failing to comply

(trial case no. B 0102417) were to be served consecutively. Id. at ¶ 4. The First District

Court, recognizing the requirements of R.C. 2929.14(E)(3) and R.C. 2921.331(B), found

the imposition of consecutive sentences was not contrary to law and was supported by

the record. Id. at ¶ 14.

       {¶45} The case of State v Spicer, Cuyahoga App.Nos. 92384, 92385, 2010-

Ohio-61, is also instructive. In that case, the Eighth District Court of Appeals held as

follows in the defendant’s challenge to his consecutive sentences: “Although the statute

does not specifically state whether it was meant to apply to instances where a

defendant is being sentenced on two or more separate cases, we find that, pursuant to

R.C. 2921.331(D), a term of imprisonment for failure to comply must run consecutive to

that of any other term of imprisonment, no matter if the sentence is being imposed in the

same or different case.” Id. at ¶ 19, citing State v. Velasquez, Cuyahoga App. Nos.

85135 and 85136, 2005-Ohio-3021, ¶ 2.
Richland County, Case No. 10 CA 120                                                     8

      {¶46} Finally, in State v Mooney, Stark App.No. 2005CA00072, 2005-Ohio-5655,

the defendant, Mooney, pled guilty to one count of failure to comply with the order of a

police officer under Stark County Common Pleas case number 2004CR1488. On the

same day, a jury found Mooney guilty of possession of cocaine under Stark County

Common Pleas case number 2004CR2030. Following a sentencing hearing, Mooney

was sentenced to three years in prison for possession of cocaine, to be served

consecutively with the two-year sentence appellant was separately receiving for failure

to comply with the order of a police officer in case 2004CR1488.

      {¶47} Mooney appealed in the cocaine possession case, case number

2004CR0030. He challenged (pre-Foster) the imposition of the three-year sentence for

cocaine possession consecutive to the two-year sentence for failure to comply with the

order of a police officer in the other common pleas case. In affirming the trial court, we

recited R.C. 2921.331(D), supra, and concluded that a remand “would be futile because

the trial court's imposition of mandatory consecutive sentences as to appellant's two

convictions is statutorily valid regardless of further compliance with R.C. 2929.14(E)(4)

in his present cocaine possession case.” Id. at ¶ 26.

      {¶48} Therefore, based on the foregoing case law guidance, we find merit in the

State’s argument that R.C. 2921.331(D) mandates a sentence consecutive to appellee’s

prior sentences from Delaware and Franklin Counties, even if the crimes appellee

committed in those counties post-dated his acts leading to the failure to comply offense

in the present case. The State’s sole Assignment of Error is sustained.
Richland County, Case No. 10 CA 120                                                 9


      {¶49} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby reversed and remanded, for further

proceedings consistent with this opinion.


By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.



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                                                             JUDGES
JWW/d 0517
Richland County, Case No. 10 CA 120                                          10


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




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
TONY A. JEFFERY                             :
                                            :
       Defendant-Appellee                   :         Case No. 10 CA 120




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

judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to appellee.




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                                            ___________________________________
                                                           JUDGES
