[Cite as State v. Hamilton, 2019-Ohio-1829.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.      17CA011238

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RANDY HAMILTON                                        COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   16CR095092

                                 DECISION AND JOURNAL ENTRY

Dated: May 13, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Randy Hamilton, appeals from his convictions in the Lorain County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In October of 2016, Mr. Hamilton and his live-in girlfriend (“M.R.”) invited some

friends over to their North Ridgeville home to watch a Cleveland Indians’ World Series game.

Both Mr. Hamilton and M.R. had been drinking that night and, according to Mr. Hamilton, the

two began arguing over cleaning up the house after their friends left. M.R. eventually slammed

shut and locked her bedroom door, which Mr. Hamilton broke open with his shoulder.

According to Mr. Hamilton, M.R. aimed a shotgun at him, so he grabbed it from her, pushed her

away, and attempted to uncock the weapon. The gun went off, hitting M.R. in the chest and

killing her. Mr. Hamilton called 911 and waited for police to arrive.
                                                   2


          {¶3}   Mr. Hamilton was indicted on two counts of murder with firearm specifications,

two counts of felonious assault with firearm specifications, one count of having weapons while

under disability, and one count of receiving stolen property with a firearm specification. He filed

a motion to suppress certain statements he made to police officers, which was denied as

untimely. The case proceeded to a jury trial, and the State eventually dismissed one of the

felonious assault counts with its attendant firearm specification. The jury found Mr. Hamilton

not guilty on both murder charges, but guilty of the lesser-included charges of reckless homicide

and involuntary manslaughter with accompanying firearm specifications. The jury further found

him guilty of the three remaining felonies and their attendant firearm specifications. The State

elected to merge the reckless homicide and involuntary manslaughter convictions into the

felonious assault conviction as allied offenses of similar import for sentencing. The trial court

sentenced Mr. Hamilton to an aggregate total of 15 years and 6 months in prison.

          {¶4}   Mr. Hamilton now appeals and raises six assignments of error for this Court’s

review.

                                                   II.

                                 ASSIGNMENT OF ERROR ONE

          THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A MISTRIAL
          AFTER THE JURORS WERE IMPROPERLY INFLUENCED.

          {¶5}   In his first assignment of error, Mr. Hamilton argues that the trial court erred in

failing to sua sponte grant a mistrial. We disagree.

          {¶6}   It is well-settled that trial courts are permitted to sua sponte grant mistrials. E.g.,

State v. Secessions, 9th Dist. Summit No. 25754, 2011-Ohio-6066, ¶ 14. As the trial judge is in

the best position to determine whether a situation in the courtroom warrants the declaration of a

mistrial, we give great deference to the court’s discretion in that area. State v. Hickman, 9th Dist.
                                                 3


Summit No. 27321, 2015-Ohio-4668, ¶ 21. “‘Mistrials need be declared only when the ends of

justice so require and a fair trial is no longer possible.’” Id., quoting State v. Franklin, 62 Ohio

St.3d 118, 127 (1991). “If a defendant fails to move for a mistrial once he discovers the grounds

that would form the basis for his motion, then he forfeits all but a claim of plain error.” State v.

Litten, 9th Dist. Summit No. 26812, 2014-Ohio-577, ¶ 27.

       {¶7}    The jury reached a verdict in this case, but the trial court reviewed the verdict

forms and then spoke to counsel off the record. Immediately after their private discussion, the

following occurred on the record:

       THE COURT: You have a little bit more work to do. I just want to say, as a
       judge who is in charge of instruction, this is complicated, and you knew that from
       the time it took us to fashion these verdict forms over the course of a couple of
       days.

       But I’m going to instruct you that with respect to Count One, page 3, the lesser
       included of reckless homicide, you need to deliberate and reach a verdict with
       respect to the offense on Count Three. I’m sorry, not -- on page 3. That’s the
       lesser included to Count One.

       On Count Two, that’s the felony murder. You made a finding on one of the lesser
       includeds, but not the second one. So you need to --

       UNIDENTIFIED SPEAKER: Good job.

       THE COURT: You need to -- you need to make your finding on the lesser
       included of involuntary manslaughter. You need to deliberate and reach a
       decision on that. I believe that’s it.

       Counsel, would you agree?

       MR. LIEUX: Yes, Your Honor.

       Mr. CILLO: With the exception of the reservations I had.

       THE COURT: I understand that. You are going to deliberate and reach a verdict
       as to the lesser included on Count One located on page 3, and you are going to
       deliberate on the second lesser included on page 9.
                                                 4


       If you have any questions, reduce those to writing and contact the bailiff. We’re
       adjourned.

The jurors then returned to the jury room for further deliberations as instructed.

       {¶8}    Mr. Hamilton now argues that the unidentified person’s outburst “undoubtedly

influenced the jury and the court should have sua sponte, at the very minimum, inquired as to

whether the jury was influenced.” The record is clear that no objection was made when the

unidentified person said, “Good job.” Mr. Hamilton has thus forfeited all but plain error, yet he

has failed to argue plain error on appeal. See Litten at ¶ 27. “This Court has repeatedly noted

that it will not sua sponte fashion an unraised plain error argument and then address it.” State v.

Thomas, 9th Dist. Summit No. 27580, 2015-Ohio-5247, ¶ 9.

       {¶9}    Accordingly, Mr. Hamilton’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN SENTENCING MR. HAMILTON TO THE
       MAXIMUM SENTENCES.

       {¶10} In his second assignment of error, Mr. Hamilton argues that the trial court erred in

imposing the maximum sentence for his convictions, which is “not commensurate with similar

matters in the Lorain County Court of Common Pleas.” We disagree.

       {¶11} “Trial courts have full discretion to impose a prison sentence within the statutory

range and are no longer required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, paragraph seven of the syllabus. “The Supreme Court of Ohio has held that ‘an

appellate court may vacate or modify a felony sentence on appeal only if it determines by clear

and convincing evidence that the record does not support the trial court’s findings under relevant

statutes or that the sentence is otherwise contrary to law.’” State v. Stevens, 9th Dist. Medina
                                                5


Nos. 16CA0033-M and 16CA0034-M, 2017-Ohio-5482, ¶ 10, quoting State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; R.C. 2953.08(G)(2). “Clear and convincing evidence is

that measure or degree of proof which will produce in the mind of the trier of facts a firm belief

or conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469,

477 (1954).

       {¶12} Mr. Hamilton argues that his sentence was based on his indicted charges, not his

actual convictions, yet he offers no evidence of this and does not dispute the fact that his

sentence falls within the prescribed statutory range. Instead, he refers us to two “similar cases”

in Lorain County with “similar charges” in which the defendants were sentenced to community

control. Without elaborating on the facts or circumstances surrounding either case, he simply

informs us that one defendant was found guilty of involuntary manslaughter and assault while

the other was found guilty of reckless homicide. He then directs our attention to some purported

mitigating factors present in his own case: e.g., Mr. Hamilton called 911, the victim was drunk

and “engaged the argument[,]” the victim attempted to point the shotgun at Mr. Hamilton and he

responded “to save his own life[,]” and the jury found him not guilty of the murder charges.

       {¶13} Even accepting as true Mr. Hamilton’s broad conclusion that his case is “similar”

to two other Lorain County cases in which the defendants were not sent to prison, his argument

here still lacks merit. R.C. 2929.11(B) provides that felony sentences shall be “consistent with

sentences imposed for similar crimes committed by similar offenders.” Courts have held:

       Consistency * * * does not necessarily mean uniformity. Instead, consistency
       aims at similar sentences. Accordingly, consistency accepts divergence within a
       range of sentences and takes into consideration a trial court’s discretion to weigh
       relevant statutory factors. [The task of an appellate court is to examine the
       available data, not to determine if the trial court has imposed a sentence that is in
       lockstep with others, but to determine whether the sentence is so unusual as to be
       outside the mainstream of local judicial practice.] Although offenses may be
       similar, distinguishing factors may justify dissimilar sentences.
                                                 6



State v. Zaharie, 9th Dist. Medina No. 09CA0077-M, 2010-Ohio-3542, ¶ 13, quoting State v.

Marriott, 2d Dist. Clark No. 2008 CA 48, 2009-Ohio-2323, ¶ 37, quoting State v. King, 5th Dist.

Muskingum No. CT06-0020, 2006-Ohio-6566, ¶ 23. “This Court has held that ‘two defendants

convicted of the same offense with a similar or identical history of recidivism could properly be

sentenced to different terms of imprisonment.’” State v. Babb, 9th Dist. Summit No. 23631,

2007-Ohio-5102, ¶ 6, quoting State v. Quine, 9th Dist. Summit No. 20968, 2002-Ohio-6987, ¶

13. “Consequently, an appellant cannot establish, either at trial or on appeal, that his sentence is

contrary to law because of inconsistency by providing evidence of other cases showing similarly

situated offenders who received sentences that are different from his own sentence.” State v.

Carmel, 9th Dist. Summit No. 28463, 2017-Ohio-7589, ¶ 7, citing Quine at ¶ 13. “While

consistent sentences are not derived from case-by-case comparisons, consistency is ensured by

the trial court’s proper application of the statutory sentencing guidelines.” Carmel at ¶ 7, citing

Zaharie at ¶ 13.

       {¶14} Mr. Hamilton has failed to show by clear and convincing evidence that his

sentence is contrary to law.

       {¶15} Accordingly, his second assignment of error is overruled.

                               ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ERRED IN FAILING TO MERGE MR. HAMILTON’S
       SENTENCES FOR HAVING WEAPONS WHILE UNDER DISABILITY AND
       FELONIOUS ASSUALT [SIC] AS THEY ARE ALLIED OFFENSES OF
       SIMILAR IMPORT WITHIN THE MEANING OF R.C. 2941.25.

       {¶16} In his third assignment of error, Mr. Hamilton argues that the trial court erred in

failing to merge two allied offenses of similar import, specifically having weapons while under

disability and felonious assault. We disagree.
                                                 7


       {¶17} “This Court generally applies a de novo standard of review when reviewing a trial

court’s decision regarding the merger of convictions for the purposes of sentencing.” State v.

Harris, 9th Dist. Medina No. 16CA0054-M, 2017-Ohio-8263, ¶ 25, citing State v. Williams, 134

Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. “When applying the de novo standard of review, this

Court gives no deference to the trial court’s legal determinations.” State v. West, 9th Dist. Lorain

No. 04CA008554, 2005-Ohio-990, ¶ 33.

       {¶18} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and [Article I, Section 10,] of the Ohio

Constitution, which prohibits multiple punishments for the same offense.” State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute two or
       more allied offenses of similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or
       similar kind committed separately or with a separate animus as to each, the
       indictment or information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

       {¶19} The Supreme Court of Ohio clarified the standard for an analysis of allied

offenses of similar import in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995. “In determining

whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts

must evaluate three separate factors—the conduct, the animus, and the import.” Id. at paragraph

one of the syllabus. “It is the defendant’s burden to establish his * * * entitlement to the

protections of Section 2941.25.” State v. Dembie, 9th Dist. Lorain No. 14CA010527, 2015-

Ohio-2888, ¶ 8.
                                                 8


       {¶20} “A defendant may expressly waive the protection afforded by R.C. 2941.25.”

State v. May, 9th Dist. Lorain No. 17CA011204, 2018-Ohio-2996, ¶ 8.                 “Waiver is the

intentional relinquishment or abandonment of a right * * *.” State v. Dodson, 9th Dist. Medina

No. 16CA0020-M, 2017-Ohio-350, ¶ 9.           During Mr. Hamilton’s sentencing, the following

discussion was had on the record:

       THE COURT: Thank you. * * *

       State of Ohio, with respect to some counts that merge in this case, and also,
       Attorney Lieux, it’s the Court’s opinion that Counts One, Two and Three merge.
       Counts One, Two and Three would merge. Is the State electing on any one of
       those three counts?

       MR. CILLO: The felonious assault, which I believe is Count Three, Your Honor.

       THE COURT: Attorney Lieux, any comment on the merger analysis?

       MR. LIEUX: No, Your Honor.

Thus, defense counsel agreed to the merger of the reckless homicide, involuntary manslaughter,

and felonious assault counts, and then explicitly declined his opportunity to comment further on

whether any additional counts—e.g., the weapons under disability count—should also be merged

for sentencing. “‘Where the transcript demonstrates that the [S]tate and defense counsel agreed

that offenses were not allied, the issue of allied offenses is waived.’” May at ¶ 8, quoting State v.

Bridges, 8th Dist. Cuyahoga No. 105547, 2017-Ohio-8579, ¶ 22; compare State v. Allen, 1st

Dist. Hamilton No. C-150769, 2016-Ohio-5258, ¶ 10 (stating that while concession that offenses

are not allied strongly indicates waiver of the right to assert an allied-offenses argument, the

issue is forfeited—rather than waived—if the concession is not actually included in a plea

agreement between the parties). Because the record here reveals that Mr. Hamilton agreed to the

merger of certain counts, including the felonious assault count, and refused the trial court’s

invitation to address any additional merger issues, we conclude that Mr. Hamilton intended to
                                                  9


relinquish the opportunity to argue that his weapons under disability and felonious assault

convictions were allied offenses and should be merged for sentencing purposes. See May at ¶ 8.

Consequently, Mr. Hamilton has waived the issue of allied offenses. See id.

       {¶21} Even assuming arguendo that Mr. Hamilton’s explicit refusal to further address

any additional merger issues is somehow insufficient to establish a waiver of the issue of allied

offenses, a review of the record reveals that at no time did he actively seek to have his weapons

under disability and felonious assault convictions merged for sentencing. “Failure to actively

seek the merger of purported allied offenses at the trial court level forfeits the issue for appellate

review.” Id. at ¶ 9. “‘In contrast to waiver, forfeiture is the failure to timely assert a right or

object to an error * * *.’” Id., quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶

21. “This Court has stated that a failure to object or make any allied offenses argument at

sentencing forfeits all but plain error.”     May at ¶ 9, citing Harris, 9th Dist. Medina No.

16CA0054-M, 2017-Ohio-8263, at ¶ 25. Mr. Hamilton has not argued plain error on appeal.

Once again, “[t]his Court * * * will not sua sponte fashion an unraised plain error argument and

then address it.” Thomas, 9th Dist. Summit No. 27580, 2015-Ohio-5247, at ¶ 9.

       {¶22} Mr. Hamilton’s third assignment of error is overruled.

                              ASSIGNMENT OF ERROR FOUR

       THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
       TO THE DETERMINENT [SIC] OF MR. HAMILTON.

       {¶23} In his fourth assignment of error, Mr. Hamilton argues that the jury lost its way

and his conviction for felonious assault was against the manifest weight of the evidence. He

claims to have acted recklessly—not knowingly—and directs us to the not guilty verdicts for

murder, contending that the jury “certainly believed [he] did not act knowingly” as to the murder

charges. “However, ‘[Mr. Hamilton] has not separately argued that the trial court erred by
                                                 10


accepting inconsistent jury verdicts, so our consideration of this argument is limited to whether it

bears on the weight of the evidence. It does not.’” State v. Garrett, 9th Dist. Summit No. 28638,

2018-Ohio-1368, ¶ 4, quoting State v. Phillips, 9th Dist. Summit No. 27552, 2017-Ohio-1186, ¶

20. Even assuming arguendo that the issue was separately argued on appeal, “juries are not

required to reach consistent verdicts between separate counts.” State v. Singh, 9th Dist. Summit

No. 28819, 2018-Ohio-3473, ¶ 15. See also State v. Wasil, 9th Dist. Wayne No. 18AP0001,

2018-Ohio-4463, ¶ 7. Moreover, Mr. Hamilton never objected or raised any argument regarding

inconsistent verdicts at the trial court level and has thus forfeited all but plain error, which we

will not sua sponte raise on his behalf. See Singh at ¶ 15.

       {¶24} This Court has stated:

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary

power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

       {¶25} Mr. Hamilton was convicted of felonious assault under R.C. 2903.11(A)(1),

which prohibits any person from “knowingly * * * [c]aus[ing] serious physical harm to another *

* *.” “A person acts knowingly, regardless of purpose, when the person is aware that the
                                                11


person’s conduct will probably cause a certain result or will probably be of a certain nature.”

R.C. 2901.22(B). “Serious physical harm to persons” means any of the following:

       (a) Any mental illness or condition of such gravity as would normally require
       hospitalization or prolonged psychiatric treatment;

       (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity, whether partial
       or total, or that involves some temporary, substantial incapacity;

       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5).

       {¶26} Upon review of the record, we cannot say that the jury lost its way or the

felonious assault conviction was against the manifest weight of the evidence. In determining that

Mr. Hamilton knowingly committed felonious assault, the jury could infer his state of mind from

the surrounding circumstances in this case. See State v. Orr, 9th Dist. Lorain No. 16CA010909,

2016-Ohio-8463, ¶ 10. Mr. Hamilton testified at trial that he was arguing with M.R. when she

slammed the bedroom door closed in his face and said, “If you don’t like how I do, get the f**k

out.” He further testified, “I tried to open the door. It didn’t open. And I was pissed. And I

took my shoulder and I hit it, and it broke and it did open.” He testified that M.R. said, “You

have it now[,]” and aimed the shotgun at him, so he grabbed the gun from her and pushed her

back into the room by her shoulder. He testified, “I seen (sic) [the shotgun] was cocked, and I

tried to uncock it and it went off.” Detective Patrick West testified at trial that he spoke to Mr.

Hamilton in the police department’s booking room, and Mr. Hamilton said, “I can tell you right

now, buddy, I’m not happy. S**t. I’m not happy. You know how they say a person knows how
                                                12


to push someone’s buttons.” Detective West said, “[E]veryone has buttons[,]” and Mr. Hamilton

replied, “That don’t make it justifiable[] though.”

       {¶27} “‘[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-

4683, ¶ 28, quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

The jury was best able to view the witnesses and observe their demeanor, gestures, and voice

inflections, and use those observations in weighing the credibility of the proffered testimony.

See State v. Cook, 9th Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30.                This Court has

consistently held that “[w]e will not overturn a conviction as being against the manifest weight

of the evidence simply because the trier of fact chose to believe the State’s version of events over

another version.” State v. Fry, 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13. Mr.

Hamilton has also not demonstrated how this is an exceptional case where the evidence

presented weighs heavily in his favor and against conviction. See Thompkins at 387.

       {¶28} Accordingly, Mr. Hamilton’s fourth assignment of error is overruled.

                               ASSIGNMENT OF ERROR FIVE

       THE TRIAL COURT ERRED IN FAILING TO SUPPRESS STATEMENTS

       {¶29} In his fifth assignment of error, Mr. Hamilton argues that the trial court erred in

denying his untimely motion to suppress. We disagree.

       {¶30} A pretrial motion to suppress must be filed within 35 days after arraignment or

seven days before trial, whichever is earlier. Crim.R. 12(C)-(D). “The decision as to whether to

permit the untimely filing of a motion to suppress, under Crim.R. 12, will not be reversed on

appeal absent a showing of an abuse of discretion.” State v. Lough, 9th Dist. Summit No. 21547,

2004-Ohio-596, ¶ 5. An abuse of discretion “implies that the court’s attitude is unreasonable,
                                                  13


arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying an abuse of discretion standard, a reviewing court is precluded from simply substituting

its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

          {¶31} Mr. Hamilton was arraigned on December 1, 2016.             He filed his motion to

suppress over eight months later, on August 9, 2017, and the trial court denied it as untimely. He

now argues “[j]ustice requires that the court should have permitted an untimely filing of the

motion to suppress” because “the stakes were high” and “discovery was ongoing[.]”

          {¶32} Crim.R. 12(D) permits the trial court, in the interest of justice, to extend the time

for making pretrial motions. Moreover, the failure to file a timely motion to suppress results in a

waiver of that issue, “but the court for good cause shown may grant relief from the waiver.”

Crim.R. 12(H). The trial court noted in its order that Mr. Hamilton “did not move the [c]ourt for

an extension of time to file his [m]otion to [s]uppress” and “ha[d] not attempted to establish that

he had good cause for the untimely filing of the [m]otion to [s]uppress.” The court further noted

that even if Mr. Hamilton had moved the court for leave to file his untimely motion, it could only

extend the time to file if it is “in the interest of justice” to do so. See Crim.R. 12(D). This Court

has previously noted that “[a]rguably, it might be ‘in the interest of justice’ for such extension of

time where a defendant is unaware of the nature of the testimony that would have formed the

basis for the motion.” State v. Pelsozy, 9th Dist. Summit No. 23297, 2007-Ohio-148, ¶ 8, citing

Lough at ¶ 6. The trial court found that the content of an audio disc, which was the basis of Mr.

Hamilton’s motion, was made available to him eight months prior to the filing of his motion, and

a written transcript of the audio disc was made available to him four months prior to the filing of
                                                 14


his motion. It is therefore unlikely the trial court would have granted Mr. Hamilton leave to file

his untimely motion to suppress even if he had requested it.

       {¶33} Mr. Hamilton failed to comply with the Crim.R. 12(D) deadline for filing motions

to suppress and never sought leave or showed good cause to file an untimely motion. The trial

court therefore did not err or abuse its discretion in denying the motion as untimely.

       {¶34} Mr. Hamilton’s fifth assignment of error is overruled.

                                ASSIGNMENT OF ERROR SIX

       THE   COURT    ERRED    IN  IMPROPERLY RELYING    ON
       UNSUBSTANTIATED ALLEGATIONS OF OTHER IMPROPRIETIES IN
       WHICH THE PROSECUTOR IMPROPERLY PRESENTED IN THE
       SENTENCING OF MR. HAMILTON.

       {¶35} In his sixth assignment of error, Mr. Hamilton argues that the trial court

improperly relied on comments made by the prosecutor and victims at sentencing regarding prior

incidents in which there were no convictions. We disagree.

       {¶36} Mr. Hamilton argues that past incidents unsupported by convictions are “well

beyond the reasonable scope of sentencing.” However, this Court has stated: “‘Ohio law is clear

that [u]nindicted acts * * * can be considered in sentencing without resulting in error when they

are not the sole basis for the sentence.’” State v. Taylor, 9th Dist. Summit No. 27867, 2016-

Ohio-3439, ¶ 16, quoting State v. D’Amico, 9th Dist. Summit No. 27258, 2015-Ohio-278, ¶ 6,

quoting State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 7. Mr. Hamilton

has not argued that these past incidents were the sole basis for his sentence. Upon our own

review of the record, we determine that the trial court perhaps considered the unindicted acts, but

we find no indication that those acts served as the sole basis for its sentence. See Taylor at ¶ 17.

       {¶37} Mr. Hamilton’s sixth assignment of error is overruled.
                                                15


                                                III.

       {¶38} Mr. Hamilton’s assignments of error are all overruled. The judgment of the

Lorain County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




CARR, J.
CALLAHAN, J.
CONCUR.
                                        16


APPEARANCES:

GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
