State v. Connin
| Decision Date | 17 December 2021 |
| Docket Number | F-21-001 |
| Citation | 2021 Ohio 4445 |
| Parties | State of Ohio Appellee v. David A. Connin Appellant |
| Court | Ohio Court of Appeals |
2021-Ohio-4445
State of Ohio Appellee
v.
David A. Connin Appellant
No. F-21-001
Court of Appeals of Ohio, Sixth District, Fulton
December 17, 2021
Trial Court No. 20CR57
Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
DECISION AND JUDGMENT
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Fulton County Court of Common Pleas, which, following jury convictions for two R.C. 2937.29 violations, sentenced appellant, among other sanctions, to pay his appointed-counsel fees. For the reasons set
forth below, this court affirms, in part, and reverses, in part, the judgment of the trial court.
I. Background
{¶ 2} The underlying criminal conviction of appellant David A. Connin for felony drug possession giving rise to this appeal, case No. 19CR104, was affirmed by this court in State v. Connin, 6th Dist. Fulton No. F-20-005, 2020-Ohio-6867. In the course of that felony case, on December 17, 2019, and again on March 13, 2020, appellant was granted release from custody on his own recognizance with certain conditions, including the promise to appear in court as required, also called a personal recognizance bond. After appellant pled no contest to possession of cocaine and the trial court found him guilty of that felony offense, he failed to appear for sentencing twice: the first time on April 21, 2020, and the second time on April 23.
{¶ 3} On May 19, a Fulton County Grand Jury indicted appellant with two counts of recklessly failing to appear while released on his personal recognizance bond in connection with a felony charge, a violation of R.C. 2937.29, and a fourth-degree felony pursuant to 2937.99(A). Appellant pled not guilty, and a jury trial was held on October 13. The jury found appellant guilty of both counts. As journalized on December 31, the trial court concurrently sentenced appellant to prison for 13 months for each offense. In addition to other sentencing matters, the trial court further stated, "Defendant is ordered to pay all prosecution costs and court-appointed counsel costs."
{¶ 4} Appellant appeals and sets forth three assignments of error:
I. The State failed to show Mr. Connin had notice of the hearings, and failed to prove that Mr. Connin acted "recklessly."
II. The jury lost its way and created a manifest miscarriage of justice by convicting a person of failure to appear during a national and state-wide lockdown caused by a global pandemic
III. The imposition of attorney fees is contrary to law.
II. Sufficiency of the Evidence
{¶ 5} In support of his first assignment of error, appellant argues that appellee, the state of Ohio, failed to meet its burden to show two elements of the offense beyond a reasonable doubt: (1) that appellant had actual notice of the sentencing hearings, and (2) that appellant acted "recklessly." Appellant argues that no one personally contacted him of the date of sentencing and that he was confused over when he would appear for sentencing due to the COVID-19 state of emergency in Ohio. Appellant concludes that such insufficient evidence at trial violated his due process rights and constitutes plain error warranting reversal of his convictions.
{¶ 6} We review de novo, as a question of law, the challenge to whether the evidence in the record is legally sufficient to sustain a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Appellate courts do not evaluate the credibility of the evidence when determining its sufficiency because our role is to decide whether the evidence, if believed, can sustain the verdict as a matter of law. State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 132. "'The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'" (Citations omitted.) State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 24. All admissible evidence may be considered on a claim of insufficient evidence. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80. For the following reasons we find the record includes sufficient evidence, if believed by the jury, that sustains finding beyond a reasonable doubt appellant acted recklessly when he failed to appear at his case No. 19CR104 sentencing hearings on April 21 and 23, 2020.
{¶ 7} R.C. 2937.29 governs the offense of failure to appear as required by an accused while released on personal recognizance: "A failure to appear as required by such [personal] recognizance shall constitute an offense subject to the penalty provided in [R.C. 2937.99]." Pursuant to R.C. 2937.99(B), appellant's two violations resulted in two, new fourth-degree felonies.
{¶ 8} The Ohio Supreme Court confirms that where a statute does not specify a mens rea or does not plainly indicate imposing strict liability, then recklessness is sufficient culpability to commit the offense. State v. Adams, 62 Ohio St.2d 151, 152-53, 404 N.E.2d 144 (1980), citing former R.C. 2901.21(B), now R.C. 2901.21(C). This court recognizes that a violation of R.C. 2937.29 is not a strict liability offense and that proof of recklessly mens rea is an element of that offense. State v. Treft, 6th Dist. Wood No. WD-07-085, 2009-Ohio-1127, ¶ 27.
{¶ 9} Appellee has the burden to show two elements beyond a reasonable doubt that appellant violated R.C. 2937.29: (1) appellant was released on personal recognizance, and (2) appellant recklessly failed to appear at the required court proceeding. State v. Oviedo, 6th Dist. Wood No. WD-13-085, 2015-Ohio-135, ¶ 16, citing State v. Hicks, 4th Dist. Highland No. 08CA6, 2009-Ohio-3115, ¶ 31. Appellant does not dispute the first Oviedo element that while he was released on personal recognizance in case No. 19CR104 after his March 13, 2020 conviction for felony cocaine possession, he failed to appear for sentencing on April 21 and 23.
{¶ 10} Appellant disputes, however, the sufficiency of the evidence supporting the second Oviedo element that he acted recklessly. Reckless mens rea is defined by statute:
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
R.C. 2901.22(C).
{¶ 11} Appellant's first argument that he was entitled to, and did not receive, actual notice of his sentencing hearing is readily disposed of because appellee did not have to prove appellant had actual notice of the sentencing dates: recklessly, not knowingly, mens rea is required by R.C. 2937.29. Hicks at ¶ 32 and 49;
State v. Balas, 68 Ohio App.3d 524, 526-27, 589 N.E.2d 86 (9th Dist.1990); see State v. Blackburn, 11th Dist. Trumbull No. 2001-T-0052, 2003-Ohio-605, ¶ 23-24, (knowingly mens rea is a higher standard than recklessly pursuant to R.C. 2901.22). Although actual notice is not required, we find in the record that at appellant's December 17 sentencing hearing for this case, he admitted he knew of the April 21 sentencing hearing, but chose, instead, to go to work: "I think back to that day when I was supposed to be in Court and I made the decision to go to work instead of court and was at home so I missed [unintelligible] * * *."
{¶ 12} Even without that admission after the jury convicted him, the record shows that appellant knew or should have known his appearance was required at his case No. 19CR104 sentencing. First, we find the presentence investigation report contains appellant's lengthy criminal history where he has experience that a sentencing hearing followed each of his convictions.
{¶ 13} Second, appellant's case No. 19CR104 probation officer told appellant that sentencing was the next step. When appellant was found guilty on March 13, the trial court ordered a presentence investigation report prior to sentencing, and appellant was required to cooperate with the adult probation office. Shane Chamberlin, chief adult probation officer for Fulton County Common Pleas Court, testified at the October 13 trial he met with appellant on March 16 and gave him a packet of information to complete and deliver at their next meeting on March 23. The morning of March 23, the day the packet of information should be ready, the statewide pandemic order went into effect, and Mr.
Chamberlin called appellant to cancel the face-to-face meeting: "I directed Mr. Connin to send that paperwork to me in the mail and then once I received that paperwork I would take care of that PSI interview over the phone." Appellant did not appear for the March 23 face-to-face meeting, so Mr. Chamberlin believed he had a good phone number for him. When Mr. Chamberlin did not receive the packet in the mail, he contacted appellant by telephone four times between March 27 and 31. Appellant responded once, between the second and third contact by Mr. Chamberlin, so Mr. Chamberlin knew, again, he had a good phone number for appellant. Appellant did not indicate he had any difficulty understanding or completing the packet. For the final voicemail to appellant on March 31, Mr. Chamberlin testified giving "clear instructions * * * that if he did not make contact with me by the end of the business day, that I would conclude that he did not want to participate in the * * * presentence investigation process * * * [and] that I would inform the court to proceed with sentencing." When Mr. Chamberlin did not receive the packet after an additional two days, on April 2, he sent written notice to the trial...
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