[Cite as State v. Richmond, 2011-Ohio-6807.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                   GREENE COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 2011-CA-17
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 10-CRB-2012
v.                                                :
                                                  :
JUSTIN RICHMOND                                   :     (Criminal Appeal from
                                                  :     (Xenia Municipal Court)
        Defendant-Appellant              :
                                                  :
                                               ...........

                                               OPINION

                           Rendered on the 30th day of December, 2011.

                                               ...........

RONALD LEWIS, Atty. Reg. #0061980, Xenia Municipal Prosecutor’s Office, 101 N. Detroit
Street, Xenia, Ohio 45385
        Attorney for Plaintiff-Appellee

DAVID R. MILES, Atty. Reg. #0013841, 125 West Main Street, Suite 201, Fairborn, Ohio
45324
      Attorney for Defendant-Appellant

                                                       .............

FAIN, J.

        {¶ 1} Defendant-appellant Justin Richmond appeals from his conviction and sentence

for Domestic Violence and Assault, which were merged for sentencing purposes, following a

jury trial. Richmond contends that his conviction is against the manifest weight of the

evidence. We conclude that a reasonable jury could decide to credit the victim’s statements,
                                                                                            2


made shortly after her injury to various persons, that her injury was sustained as a result of

Richmond’s having hit her in the head with a cell-phone; and could reasonably decide not to

credit her trial testimony exculpating Richmond.

       {¶ 2} Richmond next argues that his trial counsel was ineffective. We conclude that

his trial counsel was not ineffective.    Defense counsel’s voir dire, while brief, was not

constitutionally ineffective. Counsel’s strategic decision to leave on the jury a former police

officer with experience in domestic violence cases was not constitutionally ineffective.

Counsel had engaged the juror in a brief colloquy, and may have determined that he would

make a better juror than someone who would advance onto the jury, or become an alternate

juror, as a result of a peremptory challenge to the former police officer. Because some of the

victim’s out-of-court statements were likely to        be admitted as excited utterances or

statements made for purposes of medical diagnosis and treatment, it was not ineffective for

counsel to make a strategic decision to let them all come in and have the victim explain, in her

trial testimony, why she had falsely accused Richmond of having struck her. The victim’s

prior inconsistent statement was properly used by the State on cross-examination to impeach

her testimony on behalf of Richmond; therefore, trial counsel was not ineffective for not

having objected thereto.      The prosecutor’s comment, in closing argument, concerning

Richmond’s not having accompanied the victim to the hospital, was not improper. The

testimony of the victim, herself, supported a reasonable conclusion that Richmond did not go

with her to the hospital. Therefore, defense counsel was not ineffective for having failed to

object to this line of argument.

       {¶ 3} Richmond next contends that the trial court erred by failing to merge his
                                                                                           3


Assault and Domestic Violence convictions. The convictions were merged “for sentencing

purposes,” and only one sentence was imposed. This is all that is required under State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2.         Although the State did not elect which

conviction should survive merger, Richmond does not assign this failure as error.

Nevertheless, we will remand this cause for the State to elect, and for the trial court to

recognize, upon which of the two convictions Richmond has been sentenced.

       {¶ 4} Finally, Richmond contends that the trial court abused its discretion by

imposing a sentence of 180 days in jail and a $500 fine. We conclude that this sentence was

not unreasonable in view of the nature of the injury inflicted and Richmond’s prior

convictions for multiple offenses, including domestic violence, assault, and child endangering.

 The fact that Richmond was offered (but rejected) a plea bargain that would have involved

suspended jail time does not render the sentence imposed unreasonable. Because the victim

had recanted and was going to testify for the defense, the State had an incentive to offer

Richmond an advantageous plea bargain. Most plea bargains involve some concession on the

State’s part in exchange for the certainty of a conviction, with a reciprocal abandonment by

the defendant of the possibility of an acquittal in exchange for more lenient treatment.

       {¶ 5} Because we reject all of Richmond’s arguments, the judgment of the trial court

is Affirmed.

                I. Richmond’s Girlfriend Tells Others Richmond Hit Her

                    in the Head with a Cell-phone, But Recants at Trial.

       {¶ 6} Nicole Keeton, the victim in this case, is the mother of Richmond’s children,

one of whom was born after the trial in this case. She was Richmond’s girlfriend at the time
                                                                                         4


of the alleged assault. Jerri Carmen, Abby Moore (Carmen’s girlfriend and Keeton’s cousin),

Keeton and Richmond were at the Ramada Inn (formerly the Holiday Inn) in Xenia one night

in August, 2010, for karaoke night. They had been at Keeton’s house earlier. It appears that

at least some of the four had had some alcoholic beverages at Keeton’s house, and that all

except Moore, who was only 19, had some alcohol at the Ramada. Carmen could not recall if

Keeton had had alcohol at the house; Moore testified that Keeton had been drinking alcoholic

beverages at the house, and was “drunk.”

       {¶ 7} Carmen testified that Keeton and Richmond had been “bickering” at the

Ramada, because Richmond wanted to leave, while Keeton wanted to stay. Moore, who left

the Ramada before Keeton and Richmond went outside, testified that they had not been

arguing around her.

       {¶ 8} After Moore left the Ramada for a few minutes to get some money from her

home, which was nearby, Keeton and Richmond were outside in the parking lot. About ten

minutes after Moore left, Keeton called Moore on her cell phone, “screaming and crying and

hollering and talking about Justin, and saying Justin’s crazy * * * .” By the time Moore

returned to the Ramada, about five minutes later, Keeton was inside “with blood all over her

face.” According to Moore, Keeton was hysterical, screaming and crying. Keeton told

Moore that Richmond had hit her in the head with a cell phone.

       {¶ 9} Carmen testified that when Keeton came back inside the Ramada, she was

crying and screaming, and was very emotional. He said that she was clear in reporting that it

was Richmond who had hit her.

       {¶ 10} Dallas Dean Hanson, who was working as a desk clerk at the Ramada that
                                                                                           5


night, testified that he saw Keeton return to the Ramada with a gash on her forehead. He said

that Keeton was crying and hysterical, very upset. He said that she said that she had been hit

in the head by her boyfriend with her cell phone.

         {¶ 11} Ben Boedecker, a paramedic with the Xenia Fire Department, reported to the

scene. He identified two photographs of Keeton, depicting her injury, which were admitted in

evidence. Upon refreshing his recollection with his report, he testified that Keeton had told

him that she had been hit on the head by her boyfriend with a cell phone. Boedecker took her

vital signs and recommended that she go to the hospital to have her laceration stitched.

         {¶ 12} Matthew Cvitkovich, a Xenia police officer, testified that he saw Keeton when

he reported to the scene. He identified the two photographs depicting Keeton’s injury. He

testified that she told him that her live-in boyfriend had assaulted her with a cell phone. He

testified that Keeton “was adamant about requesting charges,” and also wanted a protection

order.

         {¶ 13} Keeton testified on Richmond’s behalf, and was the sole defense witness. She

testified that she had become “very much intoxicated” at her house before they went to the

Ramada, and that she drank more at the Ramada. She testified that she and Richmond were

getting along very well. She testified that in the Ramada parking lot she “was yelling and

cursing about something.”

         {¶ 14} Keeton testified that she and Richmond wound up in a K-Mart parking lot,

where they encountered “two guys that obviously knew” Richmond. According to her trial

testimony, there was “a big argument” that resulted in “a physical altercation” with Richmond,

ending up with her “getting pushed out of the way.” As a result, Keeton fell and hit what she
                                                                                           6


believed was a parking sign, causing the injury to her head.

       {¶ 15} Keeton denied that Richmond had hit her. She could not recall having told

anyone that Richmond hit her. When asked to explain why she might have told people that

Richmond hit her, she testified: “I believe that once I had gotten up off the ground and walked

back to the Ramada that he was like – his name was the only thing on my mind.”

       {¶ 16} Keeton described her state of mind as: “Just obliverated (sic). I was out of my

mind, drunk.” When asked whether this was “a very emotional moment for you,” Keeton

responded in the affirmative.

       {¶ 17} When Keeton was asked about having requested a protection order and that

charges be brought against Richmond, she testified: “I believe I was coerced to do that by a

friend who was at the hospital with me.” She did not identify the friend.

       {¶ 18} Keeton testified that she was “together with” Richmond, and that she intended

to stay with him. She testified that she was pregnant with Richmond’s child, and that they

had another child. She responded affirmatively when asked, “You’d do anything to protect

him, correct?”

       {¶ 19} Following a jury trial, Richmond was convicted of Assault and Domestic

Violence. Both orally at the sentencing hearing, and in its judgment entry, the trial court

stated that: “The offenses merge for sentencing purposes.” Richmond was fined $500 and

sentenced to 180 days in jail. From his conviction and sentence, Richmond appeals.

    II. Richmond’s Conviction Is Not Against the Manifest Weight of the Evidence.

       {¶ 20} Richmond’s First Assignment of Error is as follows:

       {¶ 21} “THE MANIFEST WEIGHT OF THE EVIDENCE DOES NOT SUPPORT
                                                                                            7


APPELLANT’S CONVICTIONS FOR ASSAULT AND DOMESTIC VIOLENCE.”

       {¶ 22} The manifest-weight-of-the-evidence standard of appellate review is set forth in

State v. Thompkins (1997), 78 Ohio St.3d 380, 387:

               Although a court of appeals may determine that a judgment of a trial court is
       sustained by sufficient evidence, that court may nevertheless conclude that the
       judgment is against the weight of the evidence. [State v. ] Robinson, supra, 162 Ohio
       St. [486] at 487, 55 O.O. at 388–389, 124 N.E.2d at 149. Weight of the evidence
       concerns “the inclination of the greater amount of credible evidence, offered in a trial,
       to support one side of the issue rather than the other. It indicates clearly to the jury
       that the party having the burden of proof will be entitled to their verdict, if, on
       weighing the evidence in their minds, they shall find the greater amount of credible
       evidence sustains the issue which is to be established before them. Weight is not a
       question of mathematics, but depends on its effect in inducing belief.” (Emphasis
       added.) Black's [Law Dictionary (6 Ed.1990)], supra, at 1594.

               When a court of appeals reverses a judgment of a trial court on the basis that
       the verdict is against the weight of the evidence, the appellate court sits as a “
       ‘thirteenth juror’ ” and disagrees with the factfinder's resolution of the conflicting
       testimony. Tibbs [v. Florida (1982)], 457 U.S. [31] at 42, 102 S.Ct. [1211] at 2218,
       72 L.Ed.2d [652] at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175,
       20 OBR 215, 219, 485 N.E.2d 717, 720–721 (“The court, reviewing the entire record,
       weighs the evidence and all reasonable inferences, considers the credibility of
       witnesses and determines whether in resolving conflicts in the evidence, the jury
       clearly lost its way and created such a manifest miscarriage of justice that the
       conviction must be reversed and a new trial ordered. The discretionary power to grant
       a new trial should be exercised only in the exceptional case in which the evidence
       weighs heavily against the conviction.”).

       {¶ 23} State v. Thompkins involved weighing competing inferences.                 Where

conflicting testimony is involved, we have expanded upon Thompkins in State v. Lawson

(August 22, 1997), 2nd Dist. Montgomery No. 16288:

        Because the factfinder, be it the jury or, as in this case, the trial judge, has the
opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a
court of appeals to find that a judgment is against the manifest weight of the evidence requires
that substantial deference be extended to the factfinder's determinations of credibility. The
decision whether, and to what extent, to credit the testimony of particular witnesses is within
the peculiar competence of the factfinder, who has seen and heard the witness. Contrastingly,
the decision as to which of several competing inferences, suggested by the evidence in the
                                                                                                8


record, should be preferred, is a matter in which an appellate judge is at least equally qualified,
by reason and experience, to venture an opinion. Therefore, although this distinction is not set
forth in Thompkins, supra, we conclude that a decision by a factfinder as to which testimony to
credit, and to what extent, is a decision that is entitled to greater deference than the decision as
to how much logical force to assign an inference suggested by that evidence – in short, how
persuasive it is.

       {¶ 24} Richmond’s argument that his conviction is against the manifest weight of the

evidence is that Keeton’s in-court testimony manifestly outweighs her hearsay statements that

Richmond hit her. We do not find this argument persuasive. Keeton’s consistent account of

her injuries minutes after receiving them occurred while she was in an emotional state that

reduced her tendency to reflect upon the consequences of making her statements – i.e., they

were excited utterances.      But her in-court testimony occurred after she had had the

opportunity to reflect upon the effect of Richmond’s conviction upon her relationship with

him. She admitted that she would do anything to protect him.

       {¶ 25} Keeton testified that she was driven to the hospital by her cousin, Moore, and

that Carmen also went with them to the hospital. In her testimony, she implied, at least, that

Richmond did not accompany her to the hospital. Richmond’s absence is more consistent

with his having injured her than with her testimony that she was injured accidentally while in

his presence.

       {¶ 26} We conclude that this is not the rare case where the jury lost its way, resulting

in a manifest miscarriage of justice. Richmond’s First Assignment of Error is overruled.

                           III. Trial Counsel Was Not Ineffective.

       {¶ 27} Richmond’s Second Assignment of error is as follows:

       {¶ 28} “APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES
                                                                                            9


CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”

                    A. The Test for Ineffective Assistance of Counsel.

       {¶ 29} “Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel's performance.”         State v.

Bradley (1989) 42 Ohio St.3d 136, second paragraph of syllabus.

                    B. Counsel Was Not Ineffective During Voir Dire.

       {¶ 30} Richmond first contends that his counsel’s voir dire of the prospective jurors

was inadequate, noting that it was only four pages in the transcript. A defendant’s voir dire is

often much shorter than the State’s, since it follows the State’s voir dire, during which many

of the points defense counsel may wish to cover have already been explored. While defense

counsel’s voir dire was brief, counsel did engage five of the prospective jurors individually.

We have read the voir dire, and we do not find it to have been ineffective.

       {¶ 31} Richmond next points to two places where the trial court stopped his counsel

during voir dire. But these were actually instances in which his counsel was attempting to be

more thorough – more effective – than the court would allow. In the first instance, counsel

attempted to ask one prospective juror: “In weighing the – in weighing the credibility of

people, on a scale of one to ten, how much would – if you had two stories, how much would

one side have to outweigh the other before you actually came to a decision as to which you

believe?” This would have been good to have known in assessing the prospective juror, but

the court would not allow it.

       {¶ 32} The second instance in which the trial court stopped counsel during voir dire
                                                                                           10


would have been potentially even more effective, had the court allowed it. Counsel attempted

to elicit from the jurors themselves reasons why a defendant might choose not to testify in a

case – i.e., reasons why a defendant might exercise the Fifth Amendment privilege against

self-incrimination: “Now, I’m sure a lot of you have seen crime shows on TV and you’ve seen

where the – sometimes the defendants choose not to testify. Can any of you give me any

reasons why a defendant may choose not to testify in a case?” If the court had allowed this

question, a prospective juror might have come up with an innocent explanation of why a

defendant might elect not to testify, which would have constituted a validation of that innocent

explanation by the jury, itself.     Or, a prospective juror might have come up with an

inculpatory reason – “he doesn’t want to admit that he’s guilty,” for example. In that event,

the juror’s tendency to draw an adverse inference from the defendant’s decision to exercise his

privilege against self-incrimination would be exposed, and defense counsel could then

innoculate the remaining jurors against that tendency, aided by the judge’s instructions, and

also consider keeping that particular juror off the jury.

       {¶ 33} From the defense point of view, both of these questions were potentially useful.

 But the trial court wouldn’t allow them. (In noting this, we are not indicating that the trial

court erred in disallowing these questions.)

       {¶ 34} Richmond next argues that his counsel was ineffective for not having discussed

the presumption of innocence and the reasonable-doubt standard of proof. Both of these were

covered in the trial court’s instructions to the jury. It appears to have been defense counsel’s

strategy, in this “she said, she said” case where the conflict was between the victim’s

statements at the time and her in-court testimony, to argue that of course the jury should
                                                                                            11


believe the victim’s testimony from the witness stand; i.e., that it wasn’t even a close call.

Making a great deal out of the reasonable-doubt standard of proof would have been somewhat

inconsistent with that strategy. Relying heavily upon reasonable doubt essentially argues to

the jury that although the evidence may preponderate against the defendant, it is not so clear as

to justify a finding of guilt. That was not defense counsel’s strategy in this case, and we

cannot say that the strategy defense counsel followed was so unreasonable as to constitute

ineffective assistance of counsel.

       {¶ 35} Richmond next argues that his counsel was ineffective for not having exercised

a peremptory challenge (he did not use his last peremptory) to keep a retired Cedarville police

officer off the jury. The State had examined the retired officer, “Mr. W,” at some length. It

had elicited that he had been retired since 2001, that he had responded on more than one

occasion to domestic violence calls, and that he could be fair and impartial in this case

because: “It’s all about the evidence.”

       {¶ 36} Defense counsel also addressed one question to Mr. W. Defense counsel had

asked one prospective juror how he would determine the credibility of witnesses, and had

elicited the response: “Well, you’d listen to what they said and if it made sense to my own

experiences, or not, I kind of just used my common knowledge and common sense.” Defense

counsel then inquired of Mr. W: “Mr. [W], how would you go about that?,” to which Mr. W

responded: “Basically the same way, but on a – you know, you got to not read into what’s

being said.”

       {¶ 37} We were not there when Mr. W, the retired police officer, responded to the

questions put to him. Defense counsel was. Defense counsel had the opportunity to look
                                                                                           12


Mr. W in the eye and assess him as a potential juror. Defense counsel may have concluded,

from what he saw and heard, that despite Mr. W’s background as a retired police officer, or

perhaps because of that background, he would make a good juror from the defense point of

view. Furthermore, when it came time to decide whether to exercise the defendant’s last

peremptory challenge, that decision had to be made in recognition that if Mr. W were excused,

then someone else would move into the jury box, and yet another prospective juror would

move into the position of alternate.      Counsel may have made the judgment that these

alternative prospects would be no better, or perhaps worse, from the defendant’s point of

view.

        {¶ 38} There was clearly no basis for challenging Mr. W for cause. We cannot say,

from this record, that defense counsel was ineffective for having failed to exercise a

peremptory challenge against Mr. W.

          C. Defense Counsel Was Not Ineffective for Having Failed to Object

                to the Admission of the Victim’s Out-of-Court Statements.

        {¶ 39} The State elicited testimony from all five of its witnesses that Keeton told each

of them, shortly after her injury, that Richmond hit her in the head with a cell phone, causing

the injury. Richmond contends that his trial counsel was ineffective for having failed to

object to this testimony as hearsay.

        {¶ 40} Carmen, Moore, and Hanson testified that Keeton was “hysterical,” “crying,”

“screaming,” or “very upset,” when she made the statement, shortly after the event, that

Richmond had hit her in the head with a cell phone. Clearly, the testimony of each of these

witnesses concerning Keeton’s out-of-court statement would have been admissible under the
                                                                                          13


excited-utterance exception to hearsay in Evid. R. 803(2): “A statement relating to a startling

event or condition made while the declarant was under the stress of excitement caused by the

event or condition.”

       {¶ 41} Boedecker, the paramedic called to the scene, was there to provide any

necessary medical attention. Keeton’s statement to Boedecker was clearly admissible under

Evid. R. 803(4): “Statements made for purposes of medical diagnosis or treatment and

describing medical history, or past or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof insofar as reasonably pertinent to

diagnosis or treatment.” (Emphasis added.)

       {¶ 42} Cvitkovich, the police officer who responded to the scene, and evidently also to

the hospital, was the last of these witnesses who received a statement from Keeton concerning

the cause of her injury. It appears that by the time Keeton spoke to him, she had calmed

down. His testimony concerning Keeton’s out-of-court statement was the only testimony that

might have been subject to a hearsay objection.

       {¶ 43} Cvitkovich was also the last witness to testify on behalf of the State. By that

time, the jury had heard four witnesses relate that Keeton had told each of them that Richmond

had caused her injury by hitting her in the head with a cell phone. Interposing a hearsay

objection would have been pointless.        Furthermore, Keeton was going to testify on

Richmond’s behalf, which meant that her oral statement to Cvitkovich, as well as the written

statement she gave him, would have been admissible to impeach her testimony, so the jury

was going to hear it in any event.

       {¶ 44} Richmond also contends that his trial counsel was ineffective for having failed
                                                                                           14


to object to the State’s having used Keeton’s written statement to impeach her testimony,

during cross-examination. The written statement was never admitted in evidence, but the

State showed it to her, and used it to impeach her testimony. A prior inconsistent statement

may be used to impeach a witness. Evid. R. 801(D)(1). Richmond cites State v. Justice

(1994), 92 Ohio App.3d 740, for the proposition that a prior inconsistent statement by a victim

is not admissible to impeach the victim. But that decision did not involve impeachment.

The statement was offered in the State’s case-in-chief in that case, which the court of appeals

found to have been erroneous, but harmless. Id., at 744, 747-748. Here, Keeton’s prior

inconsistent statement was properly used on cross-examination to impeach her testimony.

                   D. Defense Counsel Was Not Ineffective for Having

                        Failed to Object to the State’s Closing Argument.

       {¶ 45} According to Keeton’s out-of-court statements, Richmond caused her injury by

hitting her in the head with a cell phone. According to her in-court testimony, she fell and hit

her head on a parking sign while they were both together in a K-Mart parking lot. By either

account, Richmond was with Keeton – the mother of his child – when she was injured. The

State argued to the jury that the fact that he did not accompany her to the hospital was more

consistent with his having caused the injury than with the injury having occurred through no

fault on his part. Keeton contends that his counsel should have objected to this argument

upon the ground that there was no direct evidence of Richmond’s whereabouts when Keeton

went to the hospital.

       {¶ 46} Carmen testified that he went with Moore and Keeton to the hospital. Keeton

testified that Moore drove her to the hospital. In her direct testimony, Keeton was asked: “It
                                                                                          15


was only the two of you in the car?”        She responded: “And Jerri Carmen.” From this

question and response, during Richmond’s direct examination of Keeton, it is reasonable to

conclude that Richmond did not go with her to the hospital. Thus, the factual predicate upon

which this contention is predicated is groundless.

       {¶ 47} We conclude that Richmond’s trial counsel was not ineffective. His Second

Assignment of Error is overruled.

    IV. The Trial Court Did Merge the Assault and Domestic Violence Convictions.

       {¶ 48} Richmond’s Third Assignment of Error is as follows:

       {¶ 49} “THE TRIAL COURT ERRED IN NOT MERGING THE CONVICTIONS OF

ASSAULT AND DOMESTIC VIOLENCE.”

       {¶ 50} Richmond contends that because the offenses of which he was convicted were

allied offenses of similar import, “these two offenses should not only merge for sentencing

purposes, but should also merge for one conviction.”

       {¶ 51} A defendant may be “convicted” of multiple allied offenses of similar import –

in the sense of having been adjudicated guilty of the multiple offenses – as long as he is

sentenced upon only one of them.        A “conviction” for R.C. 2941.25(A) purposes is an

adjudication of guilt together with a sentence.      State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, ¶ 24-26.

       {¶ 52} In the case before us, Richmond was adjudicated guilty of both offenses, but

the trial court specified, both at the sentencing hearing and in its sentencing entry, that the

offenses merged for sentencing purposes. And, most importantly, only one sentence was

imposed: a $500 fine and a 180-day jail sentence. Thus, we conclude that the trial court did
                                                                                           16


merge the convictions, and Richmond’s assignment of error is not demonstrated in the record.

       {¶ 53} Properly, the State should have elected upon which conviction Richmond was

to be sentenced. Whitfield, supra, at ¶ 23-24. But Richmond does not assign as error the fact

that this was not done. It is clear from the record that only one sentence was imposed.

Although we overrule this assignment of error, we will remand this cause to the trial court for

the limited purpose of obtaining and recognizing the State’s election upon which of

Richmond’s two offenses his sentence has been imposed.

                  V. Richmond’s Sentence Is Not an Abuse of Discretion.

       {¶ 54} Richmond’s Fourth Assignment of Error is as follows:

       {¶ 55} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO A TERM OF SIX MONTHS.”

       {¶ 56} Richmond contends that the trial court did not consider the statutory purposes

and principles of sentencing. He also contends that he received a maximum sentence “for

going to trial and losing.”

       {¶ 57} The sentence was authorized by law. R.C. 2929.24(A)(1). At the sentencing

hearing, the State made the following argument:

       I think that the Defendant in this case, your Honor, has a long history of irresponsible
       behavior. He also has a history of violent behavior. He has prior convictions for a
       domestic violence, prior convictions for assault, prior convictions for child
       endangering, prior convictions for vandalism, prior convictions for criminal damaging.
        There are multiple prior convictions.

       I think it’s extremely unfortunate that the Defendant will miss significant events in his
       life; however, he’s the one that made the decision that brought him here today. I also
       think that there is very little acknowledgment, in my opinion, that he did anything
       wrong. The only thing I heard today was he didn’t want to go to jail. I fully expect
       the Defendant’s behavior not to change – I see no pattern it’s ever changed – in the
       future. Therefore, I would request that he be given the maximum penalty of six
                                                                                            17


       months in jail rather than probation or any type of classes or counseling or anything
       along those lines. I personally feel that based upon his history that will do little to no
       good.

       {¶ 58} The trial court then observed:

       I have a CCH for Mr. Richmond. It appears that Mr. Richmond has a conviction for
       assault in 2000, a conviction for endangering children in 2003, a conviction for
       criminal damaging in 2006, a conviction for domestic violence in 2007, a conviction
       for disorderly conduct which was a reduction from telephone harassment in April
       2010. It is the Court’s opinion that even though the jury has convicted Mr. Richmond
       on assault and domestic violence, those two convictions do merge for sentencing
       purposes.

       {¶ 59} Richmond cites R.C. 2929.21(A) and (B), which provide as follows:

       (A) A court that sentences an offender for a misdemeanor or minor misdemeanor
       violation of any provision of the Revised Code, or of any municipal ordinance that is
       substantially similar to a misdemeanor or minor misdemeanor violation of a provision
       of the Revised Code, shall be guided by the overriding purposes of misdemeanor
       sentencing. The overriding purposes of misdemeanor sentencing are to protect the
       public from future crime by the offender and others and to punish the offender. To
       achieve those purposes, the sentencing court shall consider the impact of the offense
       upon the victim and the need for changing the offender's behavior, rehabilitating the
       offender, and making restitution to the victim of the offense, the public, or the victim
       and the public.


       (B) A sentence imposed for a misdemeanor or minor misdemeanor violation of
       a Revised Code provision or for a violation of a municipal ordinance that is
       subject to division (A) of this section shall be reasonably calculated to achieve
       the two overriding purposes of misdemeanor sentencing set forth in division
       (A) of this section, commensurate with and not demeaning to the seriousness of
       the offender's conduct and its impact upon the victim, and consistent with
       sentences imposed for similar offenses committed by similar offenders.

       {¶ 60} By considering Richmond’s history of violent offenses, the trial court was

considering the need for changing Richmond’s behavior, as well as the need to protect the

public from future criminal acts. We have looked at the two photographs of the victim, after

her injury, which were received in evidence. They portray a significant gash to her forehead,
                                                                                          18


which had evidently produced a fair amount of blood before having been cleaned up. At least

one witness, Moore, referred to “blood all over her face.”            The injury, while not

life-threatening or disabling, was not trivial, either. We conclude that the sentence was not

excessive.

       {¶ 61} Finally, Richmond argues that because the trial court had expressed its

willingness to accept a plea bargain and sentencing agreement that would include a suspended

jail sentence, the trial court was effectively imposing an enhanced sentence in retaliation for

Richmond’s having rejected an offered plea bargain. Richmond cites State v. Warren, (1998),

125 Ohio App.3d 298, and State v. Scalf (1998), 126 Ohio App.3d 614, in support of his

contention. In each of those cases, the trial court made remarks that could lead to the

conclusion that a harsher sentence was being imposed in retaliation – i.e., as punishment – for

the defendant’s having rejected an offered plea bargain. Warren, 125 Ohio App.3d at 307,

Scalf, 126 Ohio App.3d at 622-623.

       {¶ 62} In State v. Warren, supra, the court of appeals distinguished between a trial

court’s encouraging a guilty plea by imposing a lesser sentence upon a defendant who pleads

guilty than the defendant would have received upon conviction after trial – which is

permissible, and punishing a defendant for exercising the right to go to trial – which is

impermissible. Id., at 306-307. It is admittedly a fine line. Essentially, if the sentence

imposed for criminal conduct upon conviction after the rejection of a plea bargain and trial is

greater than the sentence that would have been imposed for the exact same criminal conduct

upon conviction after trial if no plea bargain had ever been offered, then the sentence is

punishing a defendant for his decision to stand trial, and that is impermissible. But if the
                                                                                            19


sentence imposed for criminal conduct upon conviction after the rejection of a plea bargain

and trial is the same as the sentence that would have been imposed (or at least no greater than

the sentence that would have been imposed) for the exact same criminal conduct upon

conviction after trial if no plea bargain had ever been offered, then the defendant is not being

punished for his decision to stand trial, and that is permissible.

       {¶ 63} In the case before us, there are no remarks in the record to suggest that the trial

court was retaliating against Richmond for his having rejected the plea bargain offered by the

State. In most plea bargains, the State will offer some inducement to obtain a guilty plea. In

this case, the State had the obvious problem that the victim, who was the only eyewitness, had

recanted her statements incriminating Richmond, and was going to testify in his defense.

That gave the State a powerful incentive to offer a substantial concession to Richmond in an

effort to induce him to plead guilty. By electing to decline the plea offer and go to trial,

Richmond lost the benefit that he could have obtained from having accepted the plea offer.

On the other hand, the only way Richmond could have obtained an acquittal was by going to

trial. This involved an analysis of the risk of going to trial that is necessarily present in any

plea negotiation.

       {¶ 64} Richmond’s Fourth Assignment of Error is overruled.

                                        VI. Conclusion.

       {¶ 65} All of Richmond’s assignments of error having been overruled, the judgment of

the trial court is Affirmed. Because the State did not elect, and the trial court did not

recognize, upon which of Richmond’s two convictions the sentence was imposed, this cause is

Remanded to the trial court for the making of that election.
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                                  .............

FROELICH and HALL, JJ., concur.


Copies mailed to:

Ronald Lewis
David R. Miles
Hon. Michael K. Murry
