[Cite as State v. Martin, 2013-Ohio-1324.]



                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                                     :     Case No. 12CA10
                                                   :
        Plaintiff-Appellee,                        :
                                                   :     DECISION AND
        v.                                         :     JUDGMENT ENTRY
                                                   :
PHILIP A. MARTIN,                                  :
                                                   :     RELEASED 03/19/13

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Lisa A. Julius, Columbus, Ohio for appellant.

James E. Schneider, Washington County Prosecutor and Alison L. Cauthorn,
Washington County Assistant Prosecutor, Marietta, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Philip Martin appeals his 36 month sentence for failure to comply with an

order of a police officer and argues that the trial court erred by imposing the maximum

sentence. Among other reasons, Martin contends that the trial court abused its

discretion by considering an element of his offense to determine whether his crime was

more serious than the norm for sentencing purposes. The only "seriousness factor"

recited by the trial court in its sentencing entry was that he caused serious physical

harm to property and there was a potential for serious physical harm to persons.

Because these same findings are necessary in order to elevate Martin's crime to a third

degree felony, the court improperly considered an element of his offense to conclude

his crime was more serious than the norm for sentencing. Therefore, we agree the

court considered an improper sentencing factor and abused its discretion.
Washington App. No. 12CA10                                                                      2

                                           I. FACTS

       {¶2}      Philip Martin led officers on a high speed chase and ended up crashing his

vehicle into the front porch of a house. On the night in question, the Morgan County

Sheriff's Office informed the State Highway Patrol that a vehicle had fled from its

jurisdiction. It described the car and gave its license plate number. Shortly thereafter,

Trooper Gossett encountered the vehicle and activated his lights and siren. When the

driver of the vehicle did not stop, Trooper Gossett pursued the car. During the chase,

the driver reached speeds exceeding 100 miles per hour while traveling in a 45 mile per

hour zone. As they approached downtown Marietta, the driver attempted to turn left,

but lost control of the car and crashed into the front porch of a house. The driver left the

car and fled on foot. The officers began a search of the neighborhood and found Philip

Martin hiding in a nearby yard. Both the vehicle and house were damaged as a result of

the collision.

       {¶3}      Martin was charged with failure to comply with an order or signal of a

police officer, a third degree felony, in violation of R.C. 2921.331(B)&(C)(1)&(5)(a)(i)(ii).

He pleaded guilty and received the maximum sentence of 36 months imprisonment. He

now appeals his sentence.

                                II. ASSIGNMENTS OF ERROR

       {¶4}      Martin raises three assignments of error for our review:

     {¶5} 1. “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
DEFENDANT, PHILIP A. MARTIN, TO THE MAXIMUM TERM OF IMPRISONMENT
FOR A VIOLATION OF R.C. § 2921.331 FAILURE TO COMPLY WITHOUT
CONSIDERING AVAILABLE ALTERNATIVES OR MITIGATING EVIDENCE.”

     {¶6} 2. “THE TRIAL COURT ABUSED ITS DISCRETION BY INCREASING
MR. MARTIN’S SENTENCE BASED ON FACTORS INTRINSIC TO THE
UNDERLYING CRIME OF FELONY VIOLATION OF FAILURE TO COMPLY
PROXIMATE CAUSE OF SERIOUS PHYSICAL HARM TO PERSONS OR
Washington App. No. 12CA10                                                                    3

PROPERTY, R.C. § 2921.331(C)(5)(a)(i) AND RISK OF SERIOUS HARM TO
PERSONS OR PROPERTY, R.C. § 2921.331(C)(5)(a)(ii).”

    {¶7} 3. “THE TRIAL COURT ERRED IN CONSIDERING MR. MARTIN’S
UNCHARGED AND UNPROVED CONDUCT TO THE PREJUDICE OF MR. MARTIN.”

                                  III. LAW AND ANALYSIS

         {¶8}   Martin appeals his 36 month sentence and argues that the trial court

abused its discretion by sentencing him to the maximum term for several reasons.

Because it is dispositive of his appeal, we address Martin’s second assignment of error

initially.

         {¶9}   “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences. First, [we] must 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. If this first prong is satisfied, the

trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, ¶ 26.

                        A. Clearly and Convincingly Contrary to Law

         {¶10} When imposing its sentence, the trial court must consider R.C. 2929.11

and 2929.12; it must also be guided by statutes that are specific to the case itself. Id. at

¶ 13. Because Martin does not argue that his sentence is clearly and convincingly

contrary to law, we need not discuss this step any further than to say we see no obvious

violation of this requirement.

                                   B. Abuse of Discretion

         {¶11} Martin argues that the trial court abused its discretion by considering an

element of the offense to find that his crime was more serious for sentencing purposes.
Washington App. No. 12CA10                                                                  4

       {¶12} “‘A trial court may not elevate the seriousness of an offense by pointing to

a fact that is also an element of the offense itself.’” State v. Sims, 4th Dist. No. 10CA17,

2012-Ohio-238, ¶ 16, quoting State v. Davis, 4th Dist. No. 09CA28, 2010-Ohio-555, ¶

24. “‘Even though [a trial court] has discretion in choosing an appropriate sentence,

when a court considers an improper sentencing factor, it has committed an abuse of

discretion.’” Sims at ¶ 16, quoting Davis at ¶ 25. An abuse of discretion is more than an

error judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 19.

       {¶13} Martin relies on our decision in Sims to support his argument that the trial

court erred when it considered his property damage and potential risk of physical harm

to find that his crime was more serious than the norm. In Sims, we held that because

the use of a deadly weapon is an element of every aggravated robbery conviction, the

trial court could not simply rely upon the fact that the defendant used a knife while

committing the crime in order to determine the offense was more serious than the norm

for the purpose of sentencing. Sims at ¶ 19. We reached this conclusion because the

trial court did not explain how the defendant’s use of the knife involved something more

than an element of the offense. See id. at ¶¶ 16-18. Accordingly, it was an abuse of

discretion for the court to consider it. Id.

       {¶14} Here, Martin pleaded guilty to failure to comply with an order or signal of a

police officer, in violation of R.C. 2921.331(B)&(C)(1)&(5)(a)(i)(ii), which states:

       (B) 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.

        (C)(1) Whoever violates this section is guilty of failure to comply with an
       order or signal of a police officer.
Washington App. No. 12CA10                                                                   5



                                               ***
       (5)(a) A violation of division (B) of this section is a felony of the third
       degree if the jury or judge as trier of fact finds any of the following by proof
       beyond a reasonable doubt:

       (i) The operation of the motor vehicle by the offender was a proximate
       cause of serious physical harm to persons or property.

       (ii) The operation of the motor vehicle by the offender caused a substantial
       risk of serious physical harm to persons or property.

       {¶15} Martin points out that the court’s sentencing entry states that “[t]he Court

FINDS that the following factor is present that makes this crime more serious than

norm: the Defendant caused serious physical harm to property, and there was a

potential for serious physical harm to persons.” This was the only factor the court

identified in its judgment entry that made the crime more serious than the norm. And

because Martin was charged with violating both subsections (C)(5)(a)(i) and

(C)(5)(a)(ii), and he pled guilty as charged, it is apparent that serious physical harm to

property and a substantial risk of serious physical harm to persons are both elements of

the charged offense. Therefore, the record shows that the trial court used an element of

Martin’s offense when considering factors that made his crime more serious for

sentencing. State v. Marcum, 4th Dist. Nos. 11CA8 & 11CA10, 2012-Ohio-572, ¶ 6.

       {¶16} Accordingly, the court abused its discretion by using an improper

sentencing factor and we sustain Martin’s second assignment of error. However, our

decision should not be construed to require the trial court to impose a lighter sentence

on remand. The trial court may determine that, taken together, the pertinent sentencing

factors still warrant a 36 month sentence. Our decision simply mandates that, in

determining Martin’s sentence, the trial court may not rely upon an improper factor.
Washington App. No. 12CA10                                                                               6

Moreover, in determining the seriousness of the offense in this instance, the court must

apply the factors mandated in R.C. 2921.331(C)(5)(b) which it failed to do initially, and

should carry its findings over to its judgment entry.1

                                          V. CONCLUSION

        {¶17} In conclusion, we agree that the trial court abused its discretion by

considering an element of Martin’s offense to determine that his crime was more serious

for the purpose of sentencing. Accordingly, we reverse the trial court’s judgment and

remand for resentencing. As a result, Martin’s remaining assignments of error are

moot and we need not address them. See App.R. 12(A)(1)(c).

                                                                         JUDGMENT REVERSED
                                                                        AND CAUSE REMANDED.




1
 Because the court speaks through its journal entry, mere mention of various factors at the sentencing
hearing is not sufficient. See State v. Blanton, 4th Dist. No. 11CA26, 2012-Ohio-6082, ¶ 22.
Washington App. No. 12CA10                                                                    7

                                    JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
