[Cite as State v. Dixon,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA8

v. :

MELODY DIXON, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Alisa Turner, Glouster, Ohio, for appellant1.

Andrea K. Boyd, Special Prosecuting Attorney, Assistant Attorney General, Columbus, Ohio, for appellee. ___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:8-5-22 ABELE, J.

{¶1} This is an appeal from a Hocking County Common Pleas

Court judgment of conviction and sentence. After Melody Dixon,

defendant below and appellant herein, pleaded guilty to three

counts of tampering with evidence and two counts of obstructing

justice, the trial court sentenced her to serve a total of nine

years in prison.

1 Different counsel represented appellant during the trial court proceedings. 2 HOCKING, 21CA8

{¶2} Appellant assigns four errors for review:

FIRST ASSIGNMENT OF ERROR:

“APPELLANT’S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOLLOWING THE TRIAL COURT DECISION ON THE DEFENSE MOTION TO DISMISS FOR VIOLATION OF APPELLANT’S SPEEDY TRIAL RIGHTS AND CONTINUING THROUGH THE SENTENCING HEARING.”

SECOND ASSIGNMENT OF ERROR:

“THE TRAIL [SIC.] COURT FAILED TO PROPERLY CONSIDER THE SERIOUSNESS AND RECIDIVISM FACTORS OF O.R.C. 2929.12 AND THE PURPOSES OF FELONY SENTENCING IN R.C. 2929.11.”

THIRD ASSIGNMENT OF ERROR:

“PROSECUTORIAL MISCONDUCT IMPROPERLY INFLUENCED THE TRIAL COURT, PREJUDICING THE APPELLANT’S RIGHT TO A FAIR SENTENCING HEARING AND THE PROSECUTOR FAILED TO HONOR THE PLEA AGREEMENT.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY NOT DISMISSING THE INDICTMENT FOR VIOLATION OF APPELLANT’S RIGHT TO A SPEEDY TRIAL PURSUANT TO O.R.C. 2945.73(A).”

{¶3} On or about July 3, 2020, Michael Dixon, appellant’s

father, shot and killed James Whitaker. The prosecution alleged

that appellant (1) had been present when the homicide occurred, (2)

assisted in the disposal of the victim’s body, and (3) lied to law

enforcement about what occurred.

{¶4} On July 28, 2020, law enforcement authorities arrested

appellant for obstructing justice in violation of R.C. 3 HOCKING, 21CA8

2921.32(A)(5), a fifth-degree felony (Case Number 20CR0140). The

complaint alleged that on July 27, 2020, appellant knowingly “made

a false statement in which she later admitted to during the course

of a felony investigation that was being conducted at 23605

Chestnut Grove Road.” At appellant’s July 30, 2020 arraignment,

the trial court set a $100,000 bond, but later modified bond to

$300,000.

{¶5} On September 25, 2020, a Hocking County Grand Jury

returned an indictment that charged appellant with (1) obstructing

justice in violation of R.C. 2921.32(A)(5)/(C)(4), a third-degree

felony, and (2) obstructing justice in violation of R.C.

2921.32(A)(5)/(C)(3), a fifth-degree felony. At appellant’s

October 1, 2020 arraignment, the trial court modified appellant’s

bond to $500,000 and set an October 21, 2020 trial date. Appellant

also filed a motion for discovery.

{¶6} On October 9, 2020, appellee filed a motion for a

continuance due to the “complexity of the case, possible additional

charges and to promote court efficiency * * * 198 days can be

credited towards the 270 days required under R.C. 2945.71(C)(2).

However, the state believes that time is currently tolled (since

Oct. 1, 2020) while Defendant’s Request for Discovery is being

fulfilled.” The trial court continued the jury trial in Case No. 4 HOCKING, 21CA8

20CR0140 to October 29, 2020.

{¶7} On October 23, 2020, a Hocking County Grand Jury returned

an indictment in Case No. 20CR0202 that charged appellant with (1)

seven counts of tampering with evidence in violation of R.C.

2921.12(A)(1)/(B), third-degree felonies, (2) one count of gross

abuse of a corpse in violation of R.C. 2927.01(B)/(C), a fifth-

degree felony, (3) one count of obstructing justice in violation of

R.C. 2921.32(A)(5)/(C)(3), a fifth-degree felony, (4) one count of

obstructing justice in violation of R.C. 2921.32(A)(5)/(C)(4), a

third-degree felony, and (5) one count of engaging in a pattern of

corrupt activity in violation of R.C. 2923.32(A)(1)/(B)(1), a

first-degree felony. Five days later, the trial court dismissed

Case No. 20CR0140 without prejudice due to the superseding

indictment.

{¶8} At appellant’s October 29, 2020 arraignment, appellant

entered not guilty pleas and the trial court scheduled a January

20, 2021 jury trial. However, on November 20, 2020, the trial

court sua sponte continued all jury trials due to the COVID-19

pandemic. Appellant also filed a second discovery request on

December 2, 2020, and the state responded on December 14, 2020. On

January 11, 2021, the trial court again sua sponte continued

appellant’s January 20, 2021 jury trial due to the COVID-19 5 HOCKING, 21CA8

pandemic and noted that, for purposes of speedy trial, the delay

did not count against the state. The court then scheduled a jury

trial on February 16 and 17, 2021.

{¶9} On February 8, 2021, appellant requested a dismissal of

charges and asserted that the state did not bring her to trial

within the R.C. 2945.71 and 2945.72 speedy trial time requirements.

At the motion hearing, Hocking County Sheriff’s Lieutenant

Detective Dustin Robison testified that he investigated James

Whitaker’s death and, when asked “at what point in time would you

consider your investigation complete,” Robison replied, “Right now

I believe it’s still not complete. There’s still questions out

there that we do not know, that we are still seeking the truth.”

Robison testified that appellant’s initial obstruction charges

related to her July 2020 false statements about the victim’s

disappearance. Concerning the second indictment, Robison testified

that appellant made false statements at least three times in one

interview. On March 30, 2021, the trial court denied appellant’s

motion on all counts, except counts nine and ten for which the

court reserved judgment.

{¶10} At appellant’s May 18, 2021 change of plea hearing, the

trial court first advised appellant of her constitutional rights.

When the court asked “anything unusual about your present mental or 6 HOCKING, 21CA8

physical condition,” appellant indicated she had been treated for

depression and post-traumatic stress disorder (PTSD) in the past,

but her plea is knowing, intelligent, and voluntary. Appellant

then pleaded guilty to Counts 4, 5, and 7 tampering with evidence,

all third-degree felonies; Count 9 obstructing justice, a fifth-

degree felony; and Count 10 obstructing justice, a third-degree

felony.

{¶11} At appellant’s June 17, 2021 sentencing hearing, the

trial court indicated it had reviewed the sentencing memorandum and

pre-sentence investigation report. Also, all four of the victim’s

daughters and the victim’s neighbor spoke at sentencing. On

appellant’s behalf, appellant’s counsel read appellant’s prepared

statement. The trial court commented, “the defendant’s life as a

child was far from ideal, and certainly I’m sure that had an

influence on what occurred. However, it doesn’t excuse it.”

{¶12} After the trial court heard the statements and reviewed

the memorandum and the report, the court sentenced appellant to

serve (1) three years in prison on each of Counts 4, 5, and 7, (2)

twelve months in prison on Count 9, and (3) three years in prison

on Count 10. The court further ordered (1) the sentences in Counts

4, 5, and 7 to be served consecutively for a total of nine years,

and (2) the sentences in Counts 9 and 10 to be served concurrently 7 HOCKING, 21CA8

with Counts 4, 5, and 7, for a nine-year total sentence. Finally,

the court ordered appellant to serve a three-year post-release

control term and dismissed Counts 1, 2, 3, 6, 8, and 11. This

appeal followed.

I.

{¶13} In her first assignment of error, appellant asserts that

her trial counsel failed to provide effective assistance of

counsel. In particular, appellant claims that her counsel failed

to (1) preserve the issue of appellant’s speedy trial rights by

allowing her to enter a guilty plea, (2) object to the trial

court’s decision that partially overruled her motion to dismiss

based on speedy trial violations, (3) object to the prosecutor’s

improper sentencing statements, (4) object to the victim’s

daughters’ sentencing statements, (5) explain the impact of

appellant’s PTSD and childhood trauma, or obtain an expert to do

so, and (6) direct the court to consider R.C. 2929.12 and

2929.12(C)(1) at sentencing.

{¶14} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provides that

defendants in all criminal proceedings shall have the assistance of

counsel for their defense. To establish constitutionally

ineffective assistance of counsel, a defendant must show that (1) 8 HOCKING, 21CA8

counsel's performance was deficient, and (2) the deficient

performance prejudiced the defense and deprived the defendant of a

fair trial. Id. at 687. To establish deficient performance, a

defendant must prove that counsel's performance fell below an

objective level of reasonable representation. State v. Conway,

,

,

.

Additionally, a court need not analyze both Strickland test prongs

if it can resolve the claim under one prong. See State v.

Madrigal,

,

(2000); State v.

Bowling, 4th Dist. Jackson No. 19CA2,

, ¶ 12-13.

{¶15} When a court examines whether counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.”

,

. Moreover, because a properly licensed

attorney is presumed to execute all duties ethically and

competently, State v. Taylor, 4th Dist. Washington No. 07CA11,

, to establish ineffectiveness a defendant must

demonstrate that counsel's errors were “so serious” that counsel

failed to function “as the ‘counsel’ guaranteed * * * by the Sixth

Amendment.”

,

.

A. 9 HOCKING, 21CA8

{¶16} Initially, appellant asserts that her trial counsel

failed to provide effective assistance when appellant’s no-contest

plea failed to preserve various issues for appeal. Appellant

points out that when she entered her guilty pleas, the trial court

had not yet ruled on her Count 9 and 10 speedy trial claim, that

she did not know the court would not rule on Counts 9 and 10, and

she did not know her guilty pleas would waive all speedy trial

issues. Appellant thus argues that her trial counsel failed to:

(1) advise her to enter a no contest plea to preserve the speedy

trial issue, and (2) request a final ruling for Counts 9 and 10, or

specifically indicate on the record whether appellant knew that a

guilty plea would waive the issue for appeal. Appellant further

argues that she suffered prejudice because her speedy trial claims

were likely to succeed on appeal.

{¶17} Crim.R. 12(H) provides “[t]he plea of no contest does not

preclude a defendant from asserting upon appeal that the trial

court prejudicially erred in ruling on a pretrial motion * * *,”

see also State v. Luna,

,

(1982). A guilty plea, however, waives a defendant’s right to

challenge R.C. 2945.71 statutory speedy trial claims. State v.

Kelley,

,

(1991), paragraph one of

the syllabus. 10 HOCKING, 21CA8

{¶18} Generally, when considering an ineffective assistance

claim, a defendant must overcome a presumption that counsel’s

challenged action might be considered sound trial strategy. State

v. Hankison, 4th Dist. Scioto No. 09CA3326,

. Relevant to this case, “the strategic decision of a trial

attorney will not form the basis of a claim of ineffective

assistance of counsel, even if there may have been a better

strategy available.” State v. Jackson, 4th Dist. Pickaway No.

11CA20,

, quoting State v. Komora, 11th Dist.

Geauga No. 96–G1994,

, *3 (Apr. 4, 1997), citing

State v. Clayton,

,

(1980).

Further, judicial scrutiny of a lawyer’s performance is highly

deferential. State v. Sallie,

,

;

State v. Newton,

,

(8th Dist.).

{¶19} In the case sub judice, appellee argues that nothing in

the record indicates that (1) the state would have agreed to

resolve this case with no contest pleas to the five offenses to

which appellant pleaded guilty and (2) the trial court would have

been willing to accept no contest pleas. Importantly, as appellee

observes, appellant did, in fact, receive a significant benefit in

exchange for her guilty pleas. Pursuant to the parties’ plea

agreement, the court dismissed six felony charges, including 11 HOCKING, 21CA8

engaging in a pattern of corrupt activity, a first-degree felony.

Thus, appellee argues, although a no contest plea may have

preserved appellant’s right to challenge the speedy trial issue,

appellant instead chose to plead guilty in exchange for the

dismissal of six felony charges.

{¶20} Our review of the record reveals that the trial court

informed appellant that her guilty plea would result in a waiver of

her speedy trial rights. When the court asked appellant if she

understood that she would be “giving up [her] right to a speedy

public jury trial?,” appellant indicated she understood. After the

court thoroughly explained all other rights appellant would waive

with her guilty plea, appellant chose to plead guilty to four

third-degree felonies and one fifth-degree felony. Appellant also

signed a “Petition to Enter Plea of Guilty,” which provides that

her guilty plea waives “any and all constitutional, statutory, or

factual defenses with respect to such crimes and this case.”

{¶21} In State v. McCann, 4th Dist. Lawrence No. 10CA12, 2011-

Ohio-3339, the defendant expressly waived his statutory speedy

trial right and pled guilty. Id. at ¶ 16. This court wrote that

when “an accused enters a plea of guilty he waives his right to

raise the denial of his right to a speedy trial on appeal.” Id.

at ¶ 17, citing Montpelier v. Greeno,

,

HOCKING, 21CA8

581 (1986). As we observed, “[a] plea of guilty constitutes a

complete admission of guilt * * * and waives the right to claim

that the accused was prejudiced by constitutionally ineffective

counsel, except to the extent the defects complained of caused the

plea to be less than knowing and voluntary.” State v. Floyd, 4th

Dist. Scioto No. 92CA2102,

(Oct.13, 1993), quoting

State v. Barnett (1991),

, 596 N.E.2d.

{¶22} In the case sub judice, we find nothing in the record to

indicate that appellant’s decision to enter a guilty plea was not a

voluntary act and could have been sound trial strategy. See State

v. Frankle,

,

, ¶ 24 (2d Dist.)(in

exchange for plea, state dismissed three other charges). Here, in

exchange for appellant’s guilty pleas, the state dismissed six

additional felony charges. In light of these benefits, counsel

reasonably may have decided that the best course of action included

entering the guilty pleas. Moreover, appellant had the

opportunity, but did not express to the trial court, any desire to

refuse to plead guilty and raise on appeal a speedy trial issue.

{¶23} Thus, after our review we do not believe that trial

counsel failed to provide effective assistance of counsel when

appellant entered guilty pleas and received the benefit of having

six felony charges dismissed. Here, appellant also failed to 13 HOCKING, 21CA8

establish prejudice. Furthermore, the record reveals that trial

court fully advised appellant of the consequences of her guilty

pleas and that she entered her pleas knowingly, voluntarily and

intelligently.

B.

{¶24} Appellant also contends that her trial counsel’s failure

to object to the trial court’s decision that partially overruled

her motion to dismiss constitutes ineffective assistance.

Appellant argues that, because trial counsel demonstrated that the

state did not bring appellant to trial within the relevant

statutory period, the burden should have shifted to the state to

establish that speedy trial time had not expired. State v.

Butcher,

,

(1986). Appellant

claims that the state conceded that the first and second

indictments are part of the same transaction, but that the trial

court “abandoned the position of neutral fact finder tasked with

construing ambiguity in the record in favor of the defendant and

went about attempting to save the indictment for the State.”

Further, appellant contends that trial counsel failed to object

when the court declined to rule on counts nine and ten, but instead

stated in its March 30, 2021 decision that it would “rule on these

counts at trial.” Appellant now argues she would not have entered 14 HOCKING, 21CA8

guilty pleas to counts nine and ten if the trial court had

dismissed those counts.

{¶25} The decision of counsel whether to object, or not to

object, ordinarily constitutes a question of trial strategy. State

v. Whitehead, 4th Dist. Scioto No. 20CA3931,

,

citing State v. Frierson, 8th Dist. Cuyahoga No. 105618, 2018-Ohio-

391, ¶ 25, citing State v. Johnson, 7th Dist. Jefferson No. 16 JE

0002,

. Thus, “the failure to make objections

is not alone enough to sustain a claim of ineffective assistance of

counsel.” Conway,

,

, at ¶ 103.

{¶26} Moreover, as we indicated above, in the case sub judice

trial counsel negotiated a plea agreement that resulted in the

dismissal of six felony counts. Consequently, appellant’s guilty

pleas waived, not only her right to challenge the speedy trial

issue, but also any claim of ineffective assistance of counsel

based upon the waiver of those speedy trial issues. See State v.

Miller, 8th Dist. Cuyahoga No. 94790,

, ¶ 15-18.

Thus, we do not find merit to the argument that trial counsel

“[f]ailed to use objections, despite numerous and clear reasons for

doing so.” State v. Johnson,

,

,

, ¶ 140. 15 HOCKING, 21CA8

{¶27} Accordingly, we do not believe that trial counsel’s

decision not to enter an objection could be considered to

constitute deficient performance.

C.

{¶28} Appellant also asserts that at sentencing, her trial

counsel failed to object to the prosecutor’s improper statements.

In particular, appellant argues that the prosecutor inappropriately

urged the court to sentence appellant based on conduct that she did

not personally engage in and to which she had not pleaded guilty.

{¶29} Appellant claims that her trial counsel should have

objected when the prosecutor: (1) characterized appellant’s crimes

as “the worst type of these offenses,” (2) mentioned the time

between the victim’s death and the state’s discovery of appellant’s

involvement, (3) made the statement that “[t]his was after they

killed him *** after he was killed and put in the burn pit as you

heard from the trial,” and (4) mentioned the impact appellant and

her father’s actions have had on the victim’s family. Appellant

argues that these statements (1) constitute prosecutorial

misconduct and establish counsel’s ineffectiveness for the failure

to challenge them, (2) led the trial court astray and encouraged

the court to consider appellant’s father’s crimes when it sentenced

appellant, and (3) constituted a breach of the parties’ plea 16 HOCKING, 21CA8

agreement.

{¶30} “The test for prosecutorial misconduct is whether the

conduct complained of deprived the defendant of a fair trial.”

State v. Jackson,

,

(2001),

citing State v. Apanovitch,

,

(1987). “Isolated comments by a prosecutor are not to be taken out

of context and given their most damaging meaning.” State v. Hill,

,

, (1996). Further, a

defendant has the burden to show that a reasonable probability

exists that, but for the prosecutor's misconduct, the result of the

proceeding would have been different. State v. Loza,

,

, (1994), overruled on other grounds.

{¶31} “Courts have consistently held that evidence of other

crimes, including crimes that never result in criminal charges

being pursued, or criminal charges that are dismissed as a result

of a plea bargain, may be considered at sentencing.” State v.

Starkey, 7th Dist. Mahoning No. 06 MA 110,

,

citing State v. Cooey,

,

(1989).

See also State v. Scheer,

,

,

(4th Dist.) (court free to consider dismissed

charges when determining appropriate sentence); State v. Bowser, 17 HOCKING, 21CA8

,

,

(2d

Dist.)(court may consider information beyond that strictly related

to the conviction offense, and evidence inadmissible at trial, like

hearsay, and consider evidence entirely unrelated to the conviction

offense); accord State v. Beaver, 4th Dist. Washington No. 07CA62,

, State v. Pitzer, 4th Dist. Highland No.

19CA23,

.

{¶32} Consequently, in the case sub judice after our review of

the sentencing hearing transcript, we find no impropriety. Here,

it would have been very difficult to reference appellant’s actions

in a vacuum without also alluding to appellant’s father’s

interrelated crimes. Also, in the context of appellant’s

sentencing hearing, the overwhelming majority of appellee’s

statements directly related to appellant’s conduct. We do not

believe that the prosecution made improper comments about

appellant’s offenses or other matters.

{¶33} Furthermore, even if we considered, for purposes of

argument, that the prosecutor’s comments could be deemed to be

improper, appellant did not establish prejudice. The transcript

reveals that the trial court knew and understood the salient facts

involved in this matter and stated, “the defendant did not kill,

but she did hide what happened.” Finally, the prosecutor’s 18 HOCKING, 21CA8

comments did not constitute a breach of the plea agreement. As we

noted above, prosecutorial statements that concern dismissed

charges or uncharged crimes are permissible and may be useful to

fully inform a sentencing judge about the totality of the

particular situation.

{¶34} Accordingly, we do not believe appellant established that

trial counsel’s failure to object to the prosecutor’s statements

was so unreasonable as to constitute deficient performance.

D.

{¶35} Appellant further asserts that her trial counsel’s

failure to object to the statements from the victim’s daughters

constitutes deficient performance. Appellant argues that, in light

of the nature of the particular charges (obstruction of justice and

tampering with evidence), the actual victim in this case is

“justice,” not the decedent James Whitaker nor the murder victim’s

family. Appellant thus claims that her trial counsel should have

objected to the statements from the victim’s four daughters.

{¶36} In the case at bar, however, we conclude that no error

occurred with the trial court’s consideration of the victim impact

testimony because it is “information relevant to the imposition of

sentence in the case,” pursuant to R.C. 2929.19(A). Here, no

prejudice occurred and appellant failed to show that trial 19 HOCKING, 21CA8

counsel’s decision not to object constitutes a deficient

performance.

E.

{¶37} Appellant further asserts that trial counsel’s failure to

fully explain to the court the impact of appellant’s post-traumatic

stress disorder (PTSD) and childhood trauma, or to obtain a defense

expert to do so, constitutes a deficient performance.

{¶38} Our review of the record reveals that the pre-sentence

investigation report (PSI) thoroughly detailed appellant’s very sad

and traumatic childhood, in which multiple men allegedly victimized

her. The PSI also outlined appellant’s mental health issues.

Further, as appellee notes, the trial court had been fully aware of

appellant’s PTSD diagnosis and stated that it “had an influence on

what occurred,” but concluded that “it doesn’t excuse it.”

{¶39} Appellant also claims that PTSD and childhood trauma

could have been a defense to the various charges if counsel had

argued that her trauma negated the intent element of the crimes.

However, as appellee observes, appellant (1) cites no authority for

her contention that PTSD could have been a complete defense to the

charges, and (2) failed to show prejudice.

{¶40} Therefore, after our review we believe that appellant did

not establish that counsel’s actions were so unreasonable as to 20 HOCKING, 21CA8

constitute ineffective assistance.

F.

{¶41} Finally, appellant asserts that her trial counsel failed

to (1) direct the trial court to consider the R.C. 2929.12 and R.C.

2929.12(C)(1) sentencing factors, and (2) explain how the victim

(“justice”) induced and facilitated these offenses. Appellant

claims that, because she had been victimized in the past and had

provided names to law enforcement, she believes the fact that law

enforcement failed to take appropriate action taught her that “she

is responsible for the crimes committed against her.” Therefore,

appellant maintains, the justice system does not have clean hands

and appellant will serve prison time for “killing [the victim] even

though she was not responsible for his killing.”

{¶42} Our review in the case sub judice reveals, however, that

the trial court did not impose sentence for killing the victim.

Rather, the court sentenced appellant for the failure to report a

murder, then lying about it and assisting in the cover-up of the

crime. Although this court is sympathetic to appellant’s traumatic

childhood, as the trial court aptly stated, appellant is

responsible for her criminal acts.

{¶43} Thus, because appellant failed to establish ineffective

assistance or prejudice, we overrule appellant’s first assignment 21 HOCKING, 21CA8

of error.

II.

{¶44} In her second assignment of error, appellant asserts

that, prior to imposing sentence, the trial court (1) failed to

properly consider the R.C. 2929.11 purposes of felony sentencing

and the R.C. 2929.12 seriousness and recidivism factors, and (2)

improperly imposed maximum sentences. However, as appellee points

out, appellant does not argue that her sentence is contrary to law,

but instead argues that the record does not support the sentence.

R.C. 2953.08(G)(2)(a) provides:

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. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶45} R.C. 2929.11 addresses the purposes of felony sentencing,

while R.C. 2929.12 addresses factors a court should consider when

it imposes a sentence under R.C. 2929.11. “[N]either R.C. 2929.11

nor 2929.12 requires a trial court to make any specific factual 22 HOCKING, 21CA8

findings on the record.” State v. Jones,

, 2020-

Ohio-6729,

; State v. Wilson,

,

,

, ¶ 31. Thus, “a trial court is

required only to ‘carefully consider’ the factors in R.C. 2929.11

and R.C. 2929.12 when imposing sentence.” State v. Allen, 4th

Dist. Pickaway No. 19CA31,

, citing State v.

Mathis,

,

,

; State

v. Kulchar, 4th Dist. Athens No. 10CA6,

; State

v. Rothwell, 4th Dist. Adams No. 20CA1122,

. In

, the court wrote:

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a sentence if it clearly and convincingly finds that ‘the record does not support the sentencing court’s findings under’ certain specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.

The Jones court further stated:

Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12. In particular, R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry like the independent sentence evaluation this court must conduct under R.C. 2929.05(A) when reviewing a death penalty-sentence. See State v. Hundley,

,

,

(recognizing that R.C. 2929.05(A) requires de novo review of findings and other issues within its scope). 23 HOCKING, 21CA8

Id. at ¶ 4; State v. Arbogast, 4th Dist. Adams No. 20CA1119, 2021-

Ohio-484, ¶ 7; State v. Brodt, 4th Dist. Adams No. 21CA1140, 2022-

Ohio-1528, ¶ 10.

{¶46} In the case sub judice, the trial court sentenced

appellant to serve a three-year prison term on each of Counts 4, 5,

and 7 (tampering with evidence), a twelve-month prison term on

Count 9 (obstructing justice), and a three-year prison term on

Count 10 (obstructing justice), with the sentences in Counts 4, 5,

and 7 to be served consecutively for a total of nine years, and the

sentences in Counts 9 and 10 to be served concurrently with the

sentences in Counts 4, 5, and 7. Additionally, the court ordered

appellant to serve a three-year post-release control term and

dismissed Counts 1, 2, 3, 6, 8, and 11.

{¶47} Appellant argues that the R.C. 2929.12 factors do not

support maximum sentences because none of the R.C. 2929.12(B)

factors apply, while all of the R.C. 2929.12(C) and (D) factors do

apply. Further, appellant argues that the R.C. 2929.12(E) factors

weight in appellant’s favor. Finally, appellant contends that the

court did not carefully consider any R.C. 2929.12 factors, but

rather conflated her actions with her father’s actions and, in

effect, sentenced appellant for her father’s crimes.

{¶48} Our review of the record reveals that, in the case at 24 HOCKING, 21CA8

bar, the trial court stated that it considered the record, oral

statements, and the presentence investigation report. The

sentencing hearing transcript also reflects that the court stated,

“[t]he sentence is consistent with the principles of sentencing in

the state of Ohio” pursuant to R.C. 2929.11. Further, the

sentencing entry provides “[t]he Court has considered the record,

oral statements and any victim impact statements, as well as the

principles and purposes of sentencing under R.C. 2929.11, and the

seriousness and recidivism factors under R.C. 2929.12.”

{¶49} Here, appellant appears to request this appellate court

to independently weigh evidence and substitute our judgment for

that of the trial court to arrive at the sentence that best

reflects compliance with R.C. 2929.11 and R.C. 2929.12. However,

this court may not do so because Jones does not permit an appellate

court to engage in this process. Brodt at ¶ 11; Whitehead at ¶

109; State v. Smith, 4th Dist. Scioto No. 20CA3934,

.

{¶50} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III.

{¶51} In her third assignment of error, appellant asserts that

prosecutorial misconduct improperly influenced the trial court, 25 HOCKING, 21CA8

prejudiced her right to a fair sentencing hearing, and resulted in

the prosecutor’s failure to honor the parties’ plea agreement.

{¶52} As we outlined above, “[t]he test for prosecutorial

misconduct is whether the conduct complained of deprived the

defendant of a fair trial.” State v. Jackson,

,

(2001), citing Apanovitch,

;

State v. Keenan,

,

(1993);

State v. Benge, 4th Dist. Adams No. 20CA1112,

.

Therefore, “[t]he touchstone of the analysis ‘is the fairness of

the trial, not the culpability of the prosecutor.’ ” State v.

Powell,

,

,

, ¶ 149,

quoting Smith v. Phillips,

,

,

(1982). “The Constitution does not guarantee an “error

free, perfect trial.” State v. Landrum,

,

(1990). Moreover, “a judge is presumed to be

capable of separating what may be properly considered from what may

not be considered.” In re Disqualification of Forsthoefel,

,

,

. Here, after our

review, we conclude that appellant has not overcome the presumption

that the trial court conducted a fair sentencing hearing and

properly imposed appellant’s sentence.

{¶53} Appellant claims that the prosecutor “improperly urged [Cite as State v. Dixon,

.]

the court to sentence [appellant] based upon conduct she did not

engage in and to which she had not pleaded guilty.” Once again,

however, we believe that the prosecutor’s references to the murder,

when discussing appellant’s obstructing justice and tampering with

evidence, provided important context for the court’s consideration.

In general, at sentencing a prosecutor may comment on the crime as

a whole, including, as we point out above, uncharged crimes and

charges dismissed pursuant to plea agreements. See State v.

Staggs, 4th Dist. Gallia No. 16CA19,

, ¶ 15, citing

State v. Hansen, 7th Dist. Mahoning No. 11 MA 63,

, quoting State v. Starkey, 7th Dist. Mahoning No. 06 MA 110,

; Cooey,

(court can

consider uncharged crimes as part of defendant's social history);

State v. France, 5th Dist. Richland No. 15CA19,

, ¶

20 (uncharged crimes and charges dismissed pursuant to plea

agreements may be considered as factors during sentencing). Here,

appellant’s evidence was intertwined with her father’s actions, but

the trial court could differentiate between the two defendants.

{¶54} Finally, appellant argues that the prosecutor’s comments

breached the parties’ plea agreement. Appellant states that “it is

clear by what charges were dismissed and what charges were pleaded

to that the benefit [appellant] bargained for was to not take [Cite as State v. Dixon,

.]

responsibility for the conduct of Michael Dixon in killing and

burning Mr. Whitaker.”

{¶55} Our review of the plea agreement indicates that the

parties agreed that, in exchange for appellant’s guilty plea to

five felony counts, the state would dismiss six remaining felony

counts. Here, we do not believe appellant established that

appellee’s comments are either improper or prejudicial. Once

again, it is apparent that the trial court had a firm grasp on the

pertinent facts and the nature of appellant’s participation.

{¶56} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error.

IV.

{¶57} In her final assignment of error, appellant asserts that

the trial court should have dismissed the indictment due to the

violation of her right to a speedy trial. However, we initially

point out, and as we observed in our discussion of appellant’s

first assignment of error, in the case sub judice appellant’s

guilty plea waived her ability to challenge the trial court’s

ruling on her speedy trial motion to dismiss. See Kelley,

,

(1991). Moreover, we believe that even

if appellant had properly preserved this issue for review, we would [Cite as State v. Dixon,

.]

find no merit to this issue.

{¶58} The Sixth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution guarantee the right

to a speedy trial. Ohio’s speedy trial statutes, R.C. 2945.71 to

R.C. 2945.73, designate specific time requirements for the state to

bring an accused to trial. State v. Baker,

,

(1997). Under R.C. 2945.71(C)(2), the state must

bring a person charged with a felony to trial within 270 days after

arrest. Each day a defendant is held in jail in lieu of bail will

count as three days in computing speedy trial time. R.C.

2945.71(E). However, certain events may toll speedy trial time,

including continuances granted as a result of defense motions and

reasonable continuance granted other than upon the request of the

accused. See R.C. 2945.72(E) and (H). State v. Taylor,

,

,

. Furthermore, sua

sponte continuances are continuances “granted other than on the

accused’s own motion” and will toll the speedy-trial time if the

record reflects that the period of the continuance is reasonable.

State v. Ramey, 2d Dist. Clark No. 2010 CA 19,

.

{¶59} The Supreme Court of Ohio has held that “[i]n issuing a

subsequent indictment, the state is not subject to the speedy-trial [Cite as State v. Dixon,

.]

timetable of the initial indictment, when additional criminal

charges arise from facts different from the original charges, or

the state did not know of these facts at the time of the initial

indictment.” Baker at syllabus. Thus, it should be determined

whether a second indictment arose from facts different from the

original charges, or whether the state did not know of the later

facts at the time of the initial indictment.

{¶60} On November 20, 2020, the trial court sua sponte issued

its COVID-19 pandemic continuance for all jury trials. The trial

court also observed that the central issue is whether the state

received an additional 270 days due to the new indictment in Case

No. 20CR0202 and, citing

noted that in issuing a

second indictment the state is not subject to the initial

indictment’s speedy trial timetable when additional criminal

charges arise from facts different from the original charges, or

facts unknown at the time of the initial indictment.

{¶61} The trial court concluded that, although appellant argued

that a nexus exists between the two indictments, the connection is

insufficient to overcome the guidance provided in Baker. The court

analogized this case to cases in which, at the time of the initial

indictment, law enforcement suspected that seized drugs are illegal

drugs, but later obtain a second indictment after the substance is [Cite as State v. Dixon,

.]

analyzed and test results received. The court concluded that at

the time of appellant’s arrest, appellee believed appellant had

some involvement with the victim’s death, but was “unaware of

exactly what the involvement was. It is obvious that further

investigation was necessary to discover what Ms. Dixon allegedly

did. If further investigation was necessary, then the State did

not know the facts at the time of the original indictment.”

{¶62} Once again, we believe that if this issue had been

properly preserved for review, the trial court’s determination is

nevertheless correct. Although appellant also argues that the

state conceded that both indictments stemmed from the “same

criminal transaction,” appellee points out that this means from the

same ongoing investigation, not the same circumstances. As this

court held in State v. Thomas, 4th Dist. Adams No. 06CA825, 2007-

Ohio-5340, at ¶ 14, “[t]he holding in Baker is disjunctive, i.e.,

the state need only establish one of the two scenarios, either

different facts or lack of knowledge.”

{¶63} At the motion hearing, Lt. Robison testified that, even

at that point, the investigation was “still not complete.” The

motion hearing transcript reveals that when the grand jury returned

the indictment in Case No. 20CR0140, the state did not know of the

facts that led to the charges for tampering with evidence, gross [Cite as State v. Dixon,

.]

abuse of a corpse, and the pattern of corrupt activity included in

Case No. 20CR0202.

{¶64} Furthermore, we point out that the COVID-19 pandemic

tolling event also extended appellant’s speedy trial time. The

Supreme Court of Ohio addressed this issue in State v. Lynum (In re

Fleegle),

,

,

.

“[A]ll Ohio judges have been advised, trial judges have the

authority to continue trials for defendants on a case-by-case basis

without violating speedy-trial requirements.” Id. at ¶ 7. Thus,

the trial court’s November 20, 2020 sua sponte order to continue

all jury trials due to the COVID-19 pandemic tolled the speedy

trial clock. The court’s December 17, 2020 and January 20, 2021

sua sponte orders to continue all jury trials due to the COVID-19

pandemic tolled the speedy-trial clock.

{¶65} After the February 8, 2021 hearing to consider

appellant’s speedy trial motion, the trial court decided that, at

most, only 189 of appellant’s 270 speedy-trial days had elapsed.

We agree. Even after the tolling period ended, “trial judges have

the authority to continue trials for defendants on a case-by-case

basis without violating speedy-trial requirements * * * courts may

suspend jury trials to prevent the spread of the coronavirus and

they may do so consistent with state and federal speedy-trial [Cite as State v. Dixon,

.]

obligations.” State v. Morant, 7th Dist. Belmont No. 20 BE 0020,

, citing

,

,

; 2020 Ohio Atty.Gen.Ops. No.

2020-002; Ohio Supreme Court Coronavirus Resources. In State v.

Beal,

,

, (5th Dist.), the trial

court’s COVID-19 sua sponte continuances, and the court’s

subsequent continuances related to a crowded docket, were deemed to

be reasonable in purpose and length and, consequently, tolled

speedy trial time.

; see also State v. Young, 5th

Dist. Stark No. 2020CA00155,

, citing State v.

Lee,

,

(1976); State v. Shaffer,

3d Dist. Paulding No. 11-21-05,

(trial court’s

sua sponte continuance tolled speedy-trial time).

{¶66} Thus, we conclude that the trial court’s sua sponte

COVID-19-related continuances, inter alia, tolled appellant’s

speedy trial time. And once again, appellant’s guilty plea waived

her ability to raise speedy trial issues for consideration on

appeal. Thus, we believe the trial court properly overruled

appellant’s speedy trial motion to dismiss.

{¶67} Therefore, based upon the foregoing reasons, we overrule

appellant’s fourth assignment of error and affirm the trial court’s [Cite as State v. Dixon,

.]

judgment.

JUDGMENT AFFIRMED. HOCKING, 21CA8

34

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal HOCKING, 21CA8

35 commences from the date of filing with the clerk.