[Cite as State v. Bickley, 2019-Ohio-16.]


                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,
                                                           CASE NO. 14-18-05
       PLAINTIFF-APPELLEE,

       v.

WENDY BICKLEY,                                             OPINION

       DEFENDANT-APPELLANT.




STATE OF OHIO,
                                                           CASE NO. 14-18-06
       PLAINTIFF-APPELLEE,

       v.

WENDY BICKLEY,                                             OPINION

       DEFENDANT-APPELLANT.



                  Appeals from Union County Common Pleas Court
                   Trial Court Nos. 17-CR-0147 and 17-CR-0146

                                      Judgments Affirmed

                             Date of Decision: January 7, 2019
Case Nos. 14-18-05 and 14-18-06


APPEARANCES:

       Natalie J. Bahan for Appellant

       Andrew M. Bigler for Appellee



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Wendy Jo Bickley (“Bickley”) appeals the

judgments of the Union County Court of Common Pleas, alleging that the trial court

committed several errors during sentencing. For the reasons set forth below, the

judgments of the trial court are affirmed.

                           Facts and Procedural History

       {¶2} On February 27, 2017, Bickley was at home with her husband, Jason

Bickley (“Jason”). Tr. 5. She was aware that her husband had ingested heroin that

evening, but, when she discovered that Jason was unconscious and having difficulty

breathing, she did not immediately call for emergency medical assistance. Tr. 5-6.

At some point, she was in contact with Jason’s mother, who urged Bickley to call

for help. Tr. 12. Eventually, Bickley called 9-1-1. Tr. 12. Before the emergency

personnel arrived, Bickley deleted a number of incriminating text messages. Tr. 23.

At the hospital, Jason showed no signs of brain activity and was placed on life

support. Tr. 6. While Jason was still in the hospital, Bickley went to a pharmacy

and had Jason’s prescriptions for Hydrocodone filled. Tr. 6, 37. Jason died on

February 28, 2017. Tr. 37.

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        {¶3} On July 28, 2017, Bickley was indicted for one count of tampering with

evidence in violation of R.C. 2921.12(A)(1). Doc. A1.1 This charge formed the

basis of case 17-CR-0146. Doc. A1. On July 28, 2017, Bickley was also indicted

for one count of deception to obtain a dangerous drug in violation of R.C.

2925.22(B)(2)(c); one count of aggravated possession of drugs in violation of R.C.

2925.11(A); and one count of aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1). Doc. B1. These charges formed the basis of case 17-CR-0147.

Doc. B1. On January 19, 2018, Bickley pled guilty to one count of tampering with

evidence in case 17-CR-0146 and one count of deception to obtain a dangerous drug

in case 17-CR-0147. Doc. A27, B27.

        {¶4} On January 31, 2018, Bickley appeared before the trial court for

sentencing. Tr. 4. At the hearing, a victim advocate read two victim impact

statements. Tr. 13, 15. The first was from the mother of one of Jason’s children.

Tr. 13. The second statement was from Jason’s mother. Tr. 15. The trial court then

ordered that Bickley be placed on community control for five years for the crime of

tampering with evidence in case 17-CR-0146. Doc. A33. The trial court then

sentenced Bickley to six years in prison for the crime of deception to obtain a

dangerous drug in case 17-CR-0147. Doc. B29. The trial court ordered that the




1
  Numbers preceded by the letter “A” refer to the docket for case 17-CR-0146; numbers preceded by the
letter “B” refer to the docket for case 17-CR-0147.

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Case Nos. 14-18-05 and 14-18-06


period of community control was to be tolled until Bickley completed her prison

term. Doc. A33.

       {¶5} Appellant filed her notice of appeal on February 21, 2018. Doc. A37,

B33. On appeal, Bickley raises the following assignments of error:

                            First Assignment of Error

       The trial court erred in imposing consecutive sentences by not
       considering the factors as enumerated in R.C. 2929.14(C)(4).

                           Second Assignment of Error

       The trial court erred in imposing a prison sentence to run
       consecutive to a community control sanction.

                           Third Assignment of Error

       The trial court committed prejudicial error when it relied on
       victim impact testimony and other information in sentencing.

                             First Assignment of Error

       {¶6} Bickley argues that the trial court erred by imposing consecutive

sentences without making the statutory findings required by R.C. 2929.14(C)(4).

                                   Legal Standard

       {¶7} R.C. 2929.14(C)(4) requires trial courts to make certain statutory

findings in specified situations and reads as follows:

       (4) 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

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Case Nos. 14-18-05 and 14-18-06


        offender’s conduct and to the danger the offender poses to the
        public, and if the court also finds any of the following:

        (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.

        (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.

        (c) The offender’s history of criminal conduct demonstrates that
        consecutive sentences are necessary to protect the public from
        future crime by the offender.

(Emphasis added.) R.C. 2929.14(C)(4). Under R.C. 2929.01(E), a

        “[c]ommunity control sanction” means a sanction that is not a
        prison term and that is described in section 2929.15, 2929.16,
        2929.17, or 2929.18 of the Revised Code or a sanction that is not a
        jail term and that is described in section 2929.26, 2929.27, or
        2929.28 of the Revised Code.

(Emphasis added.) R.C. 2929.01(E).2

                                        Legal Analysis

        {¶8} In this case, the trial court imposed one term of community control and

one prison term. The text of R.C. 2929.14(C)(4) clearly states that this provision

applies to situations in which “multiple prison terms are imposed * * *.” (Emphasis


2
  R.C. 1.05 puts a term in a community-based correctional facility (CBCF) within the definition of
“imprisonment.” R.C. 1.05. However, incarceration in a CBCF is not at issue in this case.

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Case Nos. 14-18-05 and 14-18-06


added.) R.C. 2929.14(C)(4). Under R.C. 2929.01(E), a community control sanction

“is not a prison term.” R.C. 2929.01(E). Thus, the trial court did not impose

multiple prison terms. For this reason, we find that R.C. 2929.14(C)(4) does not

apply to the facts of this case. State v. Malone, 2016-Ohio-5556, 61 N.E.3d 46, ¶

14 (3d Dist.); State v. Bates, 6th Dist. Williams No. WM-12-002, 2013-Ohio-1270,

¶ 68; State v. Tucker, 2017-Ohio-7735, 97 N.E.3d 1056 (10th Dist.).               Thus,

Bickley’s first assignment of error is overruled.

                             Second Assignment of Error

       {¶9} Bickley argues that community control sanctions cannot be ordered

consecutively to a prison sentence.

                                   Legal Standard

       {¶10} Under the Ohio Revised Code, trial courts have broad discretion to

fashion felony sentences. Malone, supra, at ¶ 11. R.C. 2929.13(A) reads as follows:

       Except as provided in division (E), (F), or (G) of this section and
       unless a specific sanction is required to be imposed or is precluded
       from being imposed pursuant to law, a court that imposes a
       sentence upon an offender for a felony may impose any sanction
       or combination of sanctions on the offender that are provided in
       sections 2929.14 to 2929.18 of the Revised Code.

R.C. 2929.13(A). In fashioning a sentence, the trial court is to exercise its discretion

consistent with the overriding purposes of felony sentencing as set forth in R.C.

2929.11(A), which reads as follows:

       A court that sentences an offender for a felony shall be guided by
       the overriding purposes of felony sentencing. The overriding

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Case Nos. 14-18-05 and 14-18-06


       purposes of felony sentencing are to protect the public from
       future crime by the offender and others, to punish the offender,
       and to promote the effective rehabilitation of the offender using
       the minimum sanctions that the court determines accomplish
       those purposes without imposing an unnecessary burden on state
       or local government resources. To achieve those purposes, the
       sentencing court shall consider the need for incapacitating the
       offender, deterring the offender and others from future crime,
       rehabilitating the offender, and making restitution to the victim
       of the offense, the public, or both.

R.C. 2929.11(A).

                                   Legal Analysis

       {¶11} This assignment of error raises an issue that is the subject of a certified

conflict currently pending before the Supreme Court of Ohio. State v. Hitchcock,

152 Ohio St.3d 1045, 2018-Ohio-723, 92 N.E.3d 877. See Malone, supra, at fn. 2.

This Court has previously considered this issue. Malone, supra, at ¶ 5. In Malone,

the trial court sentenced the defendant to a prison term for one offense and a period

of community control for another offense. Id. The trial court tolled the community

control sanction until Malone was released from prison. Id. On appeal, Malone

argued that the trial court impermissibly ordered him to serve these sentences

consecutively. Id. at ¶ 8. This Court held the following:

       there is nothing restricting the trial court’s authority to order an
       offender to serve a period of community control sanctions after
       the completion of a prison term for a separate offense in R.C.
       2929.15, the statute governing community control sanctions in
       felony sentencing.




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Case Nos. 14-18-05 and 14-18-06


Id. at ¶ 11. Thus, we affirmed the trial court’s decision “to order the period of

community control sanctions to be served consecutive to the six-month prison

term.” Id. at ¶ 14. The Malone decision was consistent with several other appellate

districts that had considered this issue. State v. Leedy, 4th Dist. Meigs No. 13CA7,

2015-Ohio-1718, ¶ 8-9; State v. Kinder, 5th Dist. Delaware No. 03CAA12075,

2004-Ohio-4340; State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-

5677, ¶ 4.

       {¶12} However, Bickley relies on a case, State v. Anderson, 2016-Ohio-

7044, 62 N.E.3d 229 (8th Dist.), in which the Eighth District overturned its prior

precedent and held the opposite of Malone. Anderson at ¶ 7 (reversing State v.

Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8). Sitting en banc,

the Eighth District held that trial courts only have the authority to impose sentences

that are expressly authorized by statute. Id. at ¶ 6. After determining the Ohio

Revised Code was silent on this matter, the Eight District concluded that the

legislature did not grant trial courts the authority to order that community control

sanctions be served consecutively to a prison term. Id. at ¶ 19. See also State v.

Ervin, 2017-Ohio-1491, 89 N.E.3d 1, ¶ (12th Dist.) (following Anderson and

holding that trial courts cannot order community control sanctions to be served

consecutively to a prison term).

       {¶13} After Anderson was decided, the Fifth District held, in State v.

Hitchcock, 5th Dist. Fairfield No. 16-CA-41, 2017-Ohio-8255, that trial courts had

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Case Nos. 14-18-05 and 14-18-06


the authority to order that community control sanctions imposed for one offense to

be served consecutively to a prison term imposed for another offense.3 In reaching

this conclusion, the Fifth District stated that the Anderson decision

         essentially removed the court’s discretion which is
         counterintuitive and against the purposes and principles of felony
         sentencing under R.C. 2929.11. The majority decision eliminated
         a trial court's discretion to impose community control sanctions
         on a separate felony count but would leave intact the court's
         authority to impose a prison term on that count to be served
         consecutively to the other felony counts, which directly
         contravenes the General Assembly's directive that trial courts use
         “the minimum sanctions necessary” to accomplish the principles
         and purposes of felony sentencing.

(Citations omitted.) Hitchcock at ¶ 15, citing Anderson, supra, at ¶ 48.

         {¶14} In Anderson, the majority relied upon two Supreme Court of Ohio

cases: State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874,

and State v. Anderson, 143 Ohio St. 3d 173, 2015-Ohio-2089, 35 N.E.3d 512.4 The

Fifth District distinguished these two cases from the Hitchcock decision, adopting

the reasoning of the dissent in the Eighth District’s Anderson opinion and stating:

         The dissent * * * disagreed with the majority concerning the
         application of R.C. 2929.13(A), concluding Barnhouse is limited
         to prohibiting trial courts from imposing consecutive jail
         sentences. The dissenting opinion concluded the Ohio Supreme
         Court’s decision in Anderson is not applicable to the instant issue,
3
  The Fifth District clarified that “the language ‘consecutive’ or ‘concurrent’ is superfluous when ordering a
community control sanction for one offense and a prison sentence for another offense, as the offender cannot
begin to serve the community control sanction until his or her release from prison.” Hitchcock at ¶ 22.
However, in Hitchcock, the trial court did expressly order the community control sanctions to be served
“consecutively” to the prison term. In the case before this Court, the trial court tolled the community control
sanction until the completion of Bickley’s prison term. Doc. A33.
4
  This case went to the Ohio Supreme Court on appeal from the Ninth District and was not related to the
Eight District Anderson, supra, case that is in conflict with Hitchcock, supra.

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Case Nos. 14-18-05 and 14-18-06


       and the en banc majority applied the dicta in that opinion too
       broadly.

(Citations omitted.) Hitchcock at ¶ 16, citing Anderson, supra, at ¶ 45-46. The Fifth

District concluded that

       “it is axiomatic that an offender cannot serve a sentence of
       community control sanctions while in prison. Thus, community
       control sanctions must begin when an offender is released from
       prison. Because of this, it is my view that a trial court need not
       even use the words ‘consecutive’ or ‘concurrent’ when sentencing
       an offender to prison on one felony offense and community
       control sanctions on a separate felony offense because community
       control sanctions cannot commence until the offender is released
       from prison.”

Hitchcock at ¶ 15, quoting Anderson, supra, (Boyle, J., dissenting) at ¶ 49.

       {¶15} After reviewing the applicable case law, we find the reasoning of

Hitchcock to be persuasive. See also State v. Siemering, 1st Dist. Hamilton No. C-

170611, 2018-Ohio-3541, ¶ 13 (holding that Hitchcock was rightly decided).

Following Malone, we hold that the trial court had the authority to toll the

community control sanction that was imposed for one offense until Bickley had

served the term in prison that was imposed for the other offense. Malone, supra, at

¶ 13; State v. Williams, 5th Dist. Fairfield No. 17-CA-43, 2018-Ohio-4518, ¶ 23.

But see State v. Weber, 5th Dist. Fairfield No. 17-CA-36, 2018-Ohio-3174, ¶ 27,

citing State v. Paige, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 13

(Weber noted that the Supreme Court of Ohio adopted the rationale rejected by




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Case Nos. 14-18-05 and 14-18-06


Hitchcock in rendering its decision in Paige.). For this reason, Bickley’s second

assignment of error is overruled.

                              Third Assignment of Error

       {¶16} Bickley asserts that the trial court erred in considering the two victim

impact statements because, under R.C. 2947.051(A), Jason was not a victim of the

crime with which she was charged.

                                    Legal Standard

       {¶17} The Ohio Revised Code directs trial courts to consider a number of

factors in the process of sentencing. R.C. 2947.051(A) directs trial courts to order

the preparation of a victim impact statement in specified situations and reads, in its

relevant part, as follows:

       (A) In all criminal cases in which a person is convicted of or pleads
       guilty to a felony, if the offender, in committing the offense,
       caused, attempted to cause, threatened to cause, or created a risk
       of physical harm to the victim of the offense, the court, prior to
       sentencing the offender, shall order the preparation of a victim
       impact statement * * *. The court * * * shall consider the victim
       impact statement in determining the sentence to be imposed upon
       the offender.

R.C. 2947.051(A). Further, R.C. 2929.12 sets forth a nonexclusive list of factors

that trial courts must consider in the process of felony sentencing but also grants

trial courts the discretion to “consider any other factors that are relevant to achieving

those purposes and principles of sentencing.” R.C. 2929.12(A).




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Case Nos. 14-18-05 and 14-18-06


       {¶18} Under R.C. 2929.12(A), trial courts are “permitted to contemplate any

other circumstances or factors that are relevant to achieving the purposes and

principles of sentencing and are provided significant discretion in determining the

weight to be assigned to these and other statutory factors.” State v. Wobbler, 3d

Dist. Putnam No. 12-01-13, 2002-Ohio-2080, ¶ 15. “In contrast to juries, judges

are presumed to know the law and expected to consider only relevant, material, and

competent evidence during their deliberations.” State v. Thomas, 97 Ohio St.3d

309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 57.

       {¶19} Further, “if defense counsel failed to object to an alleged impropriety

below, all but plain error is waived on appeal.” State v. Davis, 3d Dist. Seneca No.

13-16-30, 2017-Ohio-2916, ¶ 23. Under Crim.R. 52(A), “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court.” Crim.R. 52(B).

       “In order to find plain error under Crim.R. 52(B), there must be
       an error, the error must be an ‘obvious’ defect in the trial
       proceedings, and the error must have affected ‘substantial
       rights.’” “The standard for plain error is whether, but for the
       error, the outcome of the proceeding clearly would have been
       otherwise.” Notice of plain error is taken “only to ‘prevent a
       manifest miscarriage of justice.’”

(Citations omitted.) State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456,

¶ 17. Under Crim.R. 52(B), “the defendant bears the burden of demonstrating that

a plain error affected his substantial rights.” (Emphasis sic.) State v. Perry, 101

Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14.

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Case Nos. 14-18-05 and 14-18-06


                                   Legal Analysis

       {¶20} At the sentencing hearing, the Defense did not raise an objection to a

victim’s advocate reading these two statements. For this reason, we review the

sentencing hearing for plain error. State v. Allard, 75 Ohio St.3d 482, 491, 663

N.E.2d 1277 (1996). On appeal, Bickley’s argument calls for us to assume that the

trial court was not permitted to consider these victim impact statements because the

trial court was not required to consider this information under R.C. 2947.051 or R.C.

2903.13. This assumption is not sound.

       {¶21} While the Revised Code did not require the trial court to order the

preparation of a victim impact statement, the Revised Code also did not forbid the

trial court from considering this information. R.C. 2947.051; R.C. 2930.13; and

R.C. 2929.12(A). Rather, R.C. 2929.12(A) expressly authorizes trial courts to

consider any factors or circumstances that it deems to be relevant to effectuating the

purposes and principles of sentencing. State v. Nutter, 3d Dist. Wyandot No. 16-

01-06, 2001 WL 961748, *1 (Aug. 24, 2001). Since there was no statutory

prohibition on this information, the trial court had the discretion to consider these

victim impact statements and rely upon them inasmuch as they were relevant.

       {¶22} Even if consideration of these statements constituted error, Bickley

has not carried the burden of establishing that her substantial rights were prejudiced.

Most of the information in the victim impact statements was produced in other forms

during the sentencing hearing or in the record. Thus, the trial court had already

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Case Nos. 14-18-05 and 14-18-06


heard much of this information. We cannot find that the trial court abused its

discretion in the sentencing process merely because the trial court, at some point,

may have heard information that was later alleged to be irrelevant. Since Bickley

has not produced evidence to the contrary, we proceed with the presumption that

the trial court only relied upon these victim impact statements inasmuch as the

information contained therein was relevant. For these reasons, Bickley’s third

assignment of error is overruled.

                                    Conclusion

       {¶23} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgments of Union County Court of Common Pleas are

affirmed.

                                                             Judgments Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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