[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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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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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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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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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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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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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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{¶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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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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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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