State v. Tinker

[Cite as State v. Tinker, 

.]



                 IN THE COURT OF APPEALS OF OHIO
                            ELEVENTH APPELLATE DISTRICT
                                ASHTABULA COUNTY

STATE OF OHIO,                                  CASE NO. 2022-A-0113

                 Plaintiff-Appellee,
                                                Criminal Appeal from the
        - vs -                                  Court of Common Pleas

HEATHER ANN TINKER,
                                                Trial Court No. 2021 CR 00395
                 Defendant-Appellant.


                                             OPINION

                                  Decided: September 11, 2023
                                Judgment: Reversed and remanded


Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato,
Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Margaret Brunarski, Ashtabula County Public Defender, and Michael J. Ledenko,
Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For
Defendant-Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Heather Ann Tinker, appeals from her sentences for

Tampering with Evidence, Obstructing Justice, and Gross Abuse of a Corpse, in the

Ashtabula County Court of Common Pleas. For the following reasons, we reverse the

judgment of the lower court and remand for further proceedings consistent with this

opinion.

        {¶2}     On October 22, 2021, Tinker was indicted by the Ashtabula County Grand

Jury for Tampering with Evidence, a felony of the third degree, in violation of R.C.
2921.12(A)(1) and (2); Obstructing Justice, a felony of the third degree, in violation of

R.C. 2921.32(A)(5); and Gross Abuse of a Corpse, a felony of the fifth degree, in violation

of R.C. 2927.01(B).

       {¶3}   A trial was held on August 23-25, 2022.         In summary, evidence was

presented that Tinker’s boyfriend, Daniel Taylor, killed his roommate, Crystal Garney, and

pled guilty to murder. Testimony demonstrated that after the murder, on Wednesday,

September 8, 2021, Tinker assisted in moving and hiding Garney’s body by bringing

plastic to Taylor to wrap up the body and by helping Taylor and another individual place

the body in the back of a pickup truck. It further established that Tinker was present when

Garney’s body was placed in a wooded area and covered with pallets.              Testimony

established that Tinker denied knowledge of Garney’s death when questioned by police

and made statements regarding her whereabouts on Wednesday that were inconsistent

with text messages gathered by police.

       {¶4}   A sentencing hearing was held on October 12, 2022. Defense counsel

stated Tinker maintained she had not committed the acts for which she was found guilty

but accepted the jury found her guilty. Counsel argued she was least culpable of those

involved and had “minimal” involvement. Counsel emphasized that she had no felony

adult criminal record and she has struggled with substance abuse. Tinker’s friend testified

regarding her character, her need for counseling, and emphasized that Tinker’s four

children needed their mother in their lives. Tinker did not give a statement at the hearing.

       {¶5}   The victim’s daughter spoke and emphasized the fear of not knowing where

her mother was for five days. She expressed anger about Tinker dumping the body and

then returning to the victim’s house to make breakfast.          The victim’s ex-husband

                                             2

Case No. 2022-A-0113
discussed the pain that had been caused to her children and her parents. The State

argued the actions constituted the worst forms of the offenses and requested the

maximum sentence of seven years.

       {¶6}   The court found that Tinker was unremorseful and unrepentant. It observed

that Tinker had a prior misdemeanor record relating to drug offenses. The court took note

of the “cold-blooded” nature of the murder. The Court found that the “seriousness factors

in this case override the less serious factors, and any type of community control would

demean the seriousness of the offense.” It ordered Tinker to serve a term of three years

in prison for Tampering with Evidence, three years for Obstructing Justice, and one year

for Gross Abuse of a Corpse, with the sentences to be served consecutively for a total

term of seven years in prison. It then found that “these three offenses were committed

as part of one or more courses of conduct, and the harm caused here was so incredibly

great that no single prison term for these three offenses adequately reflects the

seriousness of her chosen conduct.” The court issued an October 18, 2022 Judgment

Entry memorializing the sentence.       The Entry contained the following consecutive

sentencing findings: that consecutive terms are necessary to protect the public from future

crimes and punish the offender; they are not disproportionate to the conduct of the

defendant and the danger she poses to the public; and at least two of the offenses were

part of a course of conduct and the harm caused was so great that no single term

adequately reflects the seriousness of the offender’s conduct.

       {¶7}   Tinker timely appeals and raises the following assignment of error:

       {¶8}   “The trial court clearly and convincingly committed prejudicial error that

deprived Heather A. Tinker of due process of law as guaranteed by the Fourteenth

                                            3

Case No. 2022-A-0113
Amendment to the United States Constitution and Article One, Section Ten of the Ohio

Constitution and violated Revised Code 2953.08 by sentencing her to maximum and

consecutive prison sentences after trial.”

        {¶9}    Tinker argues that the trial judge’s comments at the sentencing hearing

indicated it imposed maximum and consecutive sentences because she took the case to

trial and the sentence should be reversed as it is vindictive. The State contends that the

judge did not indicate the sentence was a result of Tinker going to trial but instead it “only

expressed … astonishment at the Appellant’s attitude.”1

        {¶10} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise

modify a sentence that is appealed under this section or may vacate the sentence and

remand the matter to the sentencing court for resentencing … if it clearly and

convincingly finds … [t]hat the record does not support the sentencing court’s findings

under division … (C)(4) of section 2929.14 [or] … [t]hat the sentence is otherwise

contrary to law.” 

        {¶11} “[A] defendant is guaranteed the right to a trial and should never be

punished for exercising that right or for refusing to enter a plea agreement ….” State v.

O’Dell, 

, 

 (1989), paragraph two of the syllabus;

Bordenkircher v. Hayes, 

, 

, 

 (1978) (“[t]o




1. The State also presents argument on pages 17-18 relating to gross sexual imposition and the
demonstration that the victim was under the age of 13 years old. These errant arguments will not be
considered by this court. We encourage the State to exercise diligence in reviewing its briefs to ensure the
argument presented is appropriate and applicable to the case at hand.
                                                     4

Case No. 2022-A-0113
punish a person because he has done what the law plainly allows him to do is a due

process violation of the most basic sort”). The Ohio Supreme Court has explained that

“[t]here is no question … that a sentence vindictively imposed on a defendant for

exercising his constitutional right to a jury trial is contrary to law.” State v. Rahab, 

, 

, 

. It held that, where a defendant

rejects a plea bargain and is sentenced to a harsher term: “[t]he burden is on the

defendant to show the judge acted vindictively. And an appellate court may reverse a

sentence for vindictiveness only if, upon its examination of the entire record, it clearly and

convincingly finds that the sentence was based on actual vindictiveness.” Id. at ¶ 3.

       {¶12} In support of her argument that vindictive sentencing occurred, Tinker

cites Rahab v. Buchanan, S.D.Ohio No. 1:17-cv-412, 

 (June 8, 2018).

This case was a habeas corpus action taken following Rahab’s appeal to the Ohio

Supreme Court.        The United States Magistrate Judge issued a Report and

Recommendations in response to Rahab’s contention that he was punished for exercising

his right to a jury trial. It concluded that actual vindictiveness was demonstrated by the

record, referencing the following comments by the trial court: defendant “went to trial with

a prove-it defense”; “[he] gambled, he lost”; and “I looked at you and said, do you want

the three or not; you’re looking at eight. And you told me, I don’t want three. … Well,

guess what, you lost your gambling. You did this. You had no defense, and you wouldn’t

take responsibility. You wanted to go to trial. All right, big winner you are.” Id. at *9-11.

       {¶13} In contrast to the federal court magistrate, when the Ohio Supreme Court

addressed this issue, it concluded that the court’s sentence was based on a variety of

factors including the defendant’s lack of remorse, lengthy juvenile record and impact of

                                              5

Case No. 2022-A-0113
his conduct on the victim and was “not convinced that the court sentenced Rahab based

on vindictiveness” rather than these other factors. Rahab, 

, 2017-

Ohio-1401, 

. Further, in the federal court matter, the District Court

judge ultimately found the issue of whether the sentence was vindictive to be moot and

denied the habeas petition since the defendant had been released from prison. Rahab

v. Warden, S.D.Ohio No. 1:17-cv-412, 

, *1 (Feb. 3, 2020).

         {¶14} Nonetheless, the concerns raised in the Rahab cases are not implicated in

the present matter, where the court made no comments whatsoever referencing Tinker’s

decision not to take a plea or to go to trial, as will be outlined further below.

         {¶15} Tinker’s argument is based on several different comments made by the

court.    First, following the statement of Tinker’s friend, Amber Bourbonnais, at the

sentencing hearing, wherein she opined that Tinker’s children need her mother, the

following exchange occurred:

               The Court: You’re aware that Heather has four kids?

               Bourbonnais: Yes.

               The Court: You’re aware that she doesn’t have custody of any of
               them, right?

               Bourbonnais: Correct, yes.

The foregoing exchange has no relation to Tinker’s decision to exercise her right to

proceed to trial nor does it convey that the court’s sentence was based on the exercise

of her right to trial. It was merely responsive to the witness’ emphasis on the request to

be lenient on sentencing due to Tinker’s status as a mother.

         {¶16} Tinker also points to the following exchange, which occurred after Tinker

indicated she would not give a statement:
                                               6

Case No. 2022-A-0113
              The Court: So, after the murder, you took your kids over there to
              spend the night?

              Tinker: No, Your Honor.

              The Court: Okay. I won’t even go any further.

This line of inquiry relates to testimony presented at trial that Tinker and her children

stayed at the victim’s home the day after the murder, spending time with her boyfriend

who had murdered the victim. As with the foregoing, this does not indicate vindictiveness

relating to Tinker’s choice to go to trial. Rather, it evidences the court’s concern with

Tinker’s behavior in this matter and her denial of that conduct.

       {¶17} Finally, Tinker references the judge’s remarks made during its comments

while sentencing Tinker.

          I was going to ask the Defendant some questions, but it’s clear that
          she’s, I think you can say, so genuinely unremorseful and unrepentant
          and uncaring, that it would be pointless. … Looking at the
          seriousness, we had the Defendant’s lover, boyfriend, co-defendant,
          Daniel Taylor, commit an incredibly cold-blooded unnecessary,
          unjustified murder, and he admitted to it. Another co-defendant, Randall
          Campbell, described what happened and how it occurred afterwards,
          and helped fill in the blanks.

          …

          I had questions I was prepared to ask you. I’m not going to be asking
          those. I think it would be a waste of the Court's time and your time,
          because the way in which you sit here in court and have acted
          throughout this case is you don’t think there’s anything wrong with killing
          Crystal, you don’t think there’s anything wrong with dumping her body
          along the railroad tracks, so there isn’t anything I’m ever going to tell you
          to change that opinion.

As with the other comments, these do not reference Tinker’s decision to go to trial.

Instead, they recognize her conduct and attitude. It is evident the court was concerned

with Tinker’s lack of remorse. This is different from a determination that she should be

                                              7

Case No. 2022-A-0113
punished for her failure to take a plea.            A defendant’s demeanor is a relevant

consideration in sentencing. See State v. Detamore, 4th Dist. Athens No. 00CA035, 

, *4 (Mar. 20, 2001) (“defendant’s behavior throughout the course of the trial

[is] relevant to the sentencing”) (citation omitted); State v. Black, 9th Dist. Wayne No.

19AP0013, 

.             While the court chose to give maximum and

consecutive sentences and indicated its displeasure with Tinker’s conduct, we find

nothing in the sentencing transcript that indicates the court’s sentence was based on the

exercise of her right to a jury trial and reject Tinker’s assigned error. See State v. Doak,

11th Dist. Portage No. 2020-P-0046, 

 (although the court gave the

defendant the harshest sentence available under the statute, “[n]othing in the record

suggests the trial court’s decision on sentencing was motivated by an urge to penalize

appellant for exercising his right to be tried by a jury or retaliate against him for electing

to proceed with a jury trial”).

          {¶18} Although we find that there is no reversible error in relation to the foregoing,

we sua sponte address the trial court’s failure to make all of the required consecutive

sentencing findings. An appellate court may recognize errors not raised by appellant sua

sponte pursuant to Crim.R. 52 where there is plain error. State v. Burke, 11th Dist.

Trumbull Nos. 2018-T-0032 and 2018-T-0035, 

; Crim.R. 52(B)

(“[p]lain errors or defects affecting substantial rights may be noticed although they were

not brought to the attention of the court”). This standard has been applied where a court

errs in ordering consecutive sentences. State v. Magee, 

, 

, ¶ 25 (6th Dist.); State v. Vinson, 

, 

, ¶ 66 and 71 (8th

Dist.).

                                                8

Case No. 2022-A-0113
       {¶19} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses

may be ordered to be served consecutively if the court finds it 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 offender’s conduct and to the danger the

offender poses to the public,” and finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are

present. The pertinent R.C. 2929.14(C)(4)(a)-(c) factor here is (b): “[a]t 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 … adequately

reflects the seriousness of the offender’s conduct.”

       {¶20} “To impose consecutive terms, the court ‘is required to make the findings

mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings

into its sentencing entry.’” State v. Elliot, 11th Dist. Trumbull No. 2021-T-0045, 2023-

Ohio-412, ¶ 9, citing State v. Bonnell, 

, 

, 

. “The trial court has no obligation … to engage in a ‘word-for-word recitation’

of the language in the statute or to set forth its reasons to support its findings, as long as

they are discernible in the record.” (Citation omitted.) State v. Cozzone, 

,

 (11th Dist.). “[A] consecutive sentence is contrary to law where the

trial court fails to make the consecutive sentencing findings as required by R.C.

2929.14(C)(4).” (Citation omitted.) State v. Bilicic, 11th Dist. Ashtabula No. 2017-A-0066,

, ¶ 45.

       {¶21} There is no question that the trial court made findings as to each of the

required consecutive sentencing factors in its judgment entry of sentence. However,

                                              9

Case No. 2022-A-0113
while a failure to incorporate findings into the sentencing entry is a clerical mistake that

can be remedied by remanding to issue a nunc pro tunc entry, such entry “cannot cure

the failure to make the required findings at the time of imposing sentence” and reversal

is warranted. Bonnell at ¶ 30 and 37; State v. Philpot, 8th Dist. Cuyahoga Nos. 108271

et al., 

 (“it is well-established that where a trial court has imposed

consecutive sentences in a sentencing journal entry, but failed to make all of the requisite

statutory findings in support of the imposition of consecutive sentences at the sentencing

hearing, the imposition of consecutive sentences is contrary to law”).

       {¶22} The lower court did not make explicit consecutive sentencing findings, other

than the R.C. 2929.14(C)(4)(b) finding relating to the course of conduct. Although a word-

for-word recitation of the findings is not required, we also cannot discern from the record

that the court made the required findings as to the necessity to protect the public from

future crime or to punish the offender or the proportionality of the sentence to the danger

Tinker poses to the public. The court did not address the necessity of the sentences and

failed to make findings relating to any danger Tinker poses to the public.

       {¶23} Given the trial court’s failure to make all necessary consecutive sentencing

findings at the sentencing hearing, we vacate the sentence and remand with instructions

that the trial court resentence Tinker and, if it re-imposes consecutive sentences, make

all necessary statutory findings at the sentencing hearing and in the sentencing entry.

State v. Ferrell, 11th Dist. Portage No. 2017-P-0069, 

.

       {¶24} The sole assignment of error is without merit but the sentence is sua sponte

reversed as discussed above.

       {¶25} For the foregoing reasons, Tinker’s sentences for Tampering with Evidence,

                                            10

Case No. 2022-A-0113
Obstructing Justice, and Gross Abuse of a Corpse in the Ashtabula County Court of

Common Pleas are reversed and this matter is remanded for further proceedings

consistent with this opinion. Costs to be taxed against appellee.



EUGENE A. LUCCI, J.,

ROBERT J. PATTON, J.,

concur.




                                           11

Case No. 2022-A-0113