[Cite as State v. Schwarm , 2017-Ohio-7626.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellee,

vs. RONALD SCHWARM, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-16067 7 TRIAL NO. B-1505471

O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause Remanded Date of Judgment Entry on Appeal: September 15, 2017

Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Scott M. Heenan , Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Candace Crouse , for Defendant-Appellant.OHIO FIRST DISTRICT COURT OF APPEALS

2 M YERS , Judge. 

### {¶1} Defendant-appellant Ronald Schwarm appeals his convictions for two counts of rape and one count of gross se xual imposition. Because the trial court erred by imposing more than the maximum sentence allowed by law for the rape offenses and failed to make the necessary findings on the record at the sentencing hearing to support the imposition of consecutive sentences, we vacate the sentences imposed for rape and the im position of consecutive sentences and remand for resentencing. The judgment of the trial court is otherwise affirmed.
Factual Background


### {¶2} On April 8, 2016, Schwarm pled guil ty to two counts of rape and one count of gross sexual imposition. The rape offenses were both first-degree felonies. Schwarm’s indictment alleged that he had committed each rape offense “on an unspecified date from summer of 1996 through summer of 1998.” The offense of gross sexual imposition was a third-degree felony, alleged in the indictment to have been committed by Schwarm on July 9, 2015. 

### {¶3} For each rape offense, the trial court sentenced Schwarm to 11 years’ imprisonment. For the offense of gross se xual imposition, the court sentenced him to two years’ imprisonment. The court or dered the rape sentences to be served concurrently to each other, but consecutively to the sentence imposed for gross sexual imposition, resulting in an aggregate sentence of 13 years’ imprisonment.OHIO FIRST DISTRICT COURT OF APPEALS

3 Sentencing Issues


### {¶4} In his first assignment of error, Schwarm argues that the trial court erred in sentencing him to 11-year prison terms for the rape offenses because the sentences exceeded the maximum allowed by law at the time that the offenses were
committed. 

### {¶5} Under R.C. 2953.08(G)(2), we may only vacate or modify a defendant’s sentence if we clearly and convincingly find that the record does not support any mandatory sentencing findings or that the sentences imposed are otherwise contrary to law. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; State v. White , 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.). 

### {¶6} Schwarm’s indictment alleged that each rape offense was committed “on an unspecified date from summer of 1996 through summer of 1998.” Until June 30, 1996, an offender convicted of a first-degree felony was subject to an indeterminate sentence, with the maximum sentence being 25 years’ imprisonment.
See former R.C. 2929.11. 

### {¶7} On July 1, 1996, Am.Sub.S.B. No. 2 (“S.B. 2”) went into effect. It
eliminated indeterminate se ntencing and provided that the available sentencing range for a first-degree felony was three to ten years’ imprisonment. State v.
Thomas , 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496, ¶ 10. With respect to the case at bar, the provisions of S.B. 2 were effective from July 1, 1996, through the end of the date range specified in Schwarm’s indictment. 

### {¶8} On September 30, 2011, Am.Sub.H.B. No. 86 (“H.B. 86”) took effect. H.B. 86 increased the maximum sentence available for first-degree-felony offenses to 11 years’ imprisonment. Thomas at ¶ 13. H.B. 86 also contained uncodified lawOHIO FIRST DISTRICT COURT OF APPEALS

4 addressing the effect of R.C. 1.58(B) on its new sentencing provisions. R.C. 1.58(B) provides that “[i]f the penalt y, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.” The uncodified law of H.B. 86 provided for the application of R.C. 1.58(B), specifying that if the potential sentence for an offense was reduced under H.B. 86, then R.C. 1.58(B) would apply to give the bene fit of the reduced sentence to offenders who had not yet
been sentenced. Thomas at ¶ 14. H.B. 86 was in effect at the time of Schwarm’s sentencing. 

### {¶9} If Schwarm committed the rape offenses before July 1, 1996, the date that S.B. 2 went into effect, he would ha ve been entitled to the reduced-sentence benefits of H.B. 86, and the maximum sentences that he could have received for each of the rape offenses would have been 11 years’ imprisonment, instead of the maximum sentence of 25 years’ imprisonment that was provided for at the time the
offenses were committed. Id . at ¶ 17. But if Schwarm committed the offenses on July 1, 1996, or thereafter, he should ha ve been sentenced under the provisions of S.B. 2, and could only have received a ma ximum sentence of ten years’ imprisonment
for his offenses. See State v. Johnson , 9th Dist. Summit No. 26788, 2013-Ohio4680, ¶ 8 (holding that an offender who ha d committed a first-degree felony after the effective date of S.B. 2, but prior to the effective date of H.B. 86, and who was
sentenced after the effective date of H.B. 86, faced a maximum penalty of ten years’ imprisonment). 

### {¶10} Here, the state alleges that because Schwarm pled guilty to charges beginning with an unspecified date in the “summer of 1996,” this included a few daysOHIO FIRST DISTRICT COURT OF APPEALS

5 prior to July 1, 1996, when the maximum sentence was 25 years. Therefore, the state argues, Schwarm could be sentenced to 11 years. Because Schwarm pled guilty to committing offenses that o ccurred within an indeterminate date range that arguably covered both of these time periods, we must determine what law applies. 

### {¶11} The Fourth Appellate District was faced with a similar issue in State v.
Mollohan , 4th Dist. Washington No. 98 CA 13, 1999 WL 671824 (Aug. 19, 1999). In
Mollohan , the defendant was found guilty of gr oss sexual imposition, a third-degree felony. The indictment had alleged that Mollohan committed the offense “on or about summer through Autumn, 1996,” encomp assing time periods that were both pre-S.B. 2 and post-S.B. 2. Id . at *4. Unlike the case at bar, Mollohan faced a lesser sentence under the pre-S.B. 2 law than under the law after S.B. 2 took effect. Id . at *3. Noting that both criminal statutes an d indictments are to be strictly construed against the state and in favor of the accused, the Mollohan court held that the
defendant was entitled to th e “proverbial ‘benefit of the doubt’ ” that the offense occurred prior to the effect ive date of S.B. 2. Id . at *5. 

### {¶12} We agree with this reasoning. Sc hwarm pled guilty to both rape offenses as alleged in the indictment, and the record contains no additional information as to a specific date on which the offenses occurred. Under the rule of lenity, criminal statutes are to be strictly construed against the state and liberally construed in favor of the accused. R.C. 2901.04(A). Consequently, we conclude that
Schwarm is entitled to be se ntenced under the law in effect post-S.B. 2, and that the maximum sentence that he could have received was ten years’ imprisonment for each rape offense.OHIO FIRST DISTRICT COURT OF APPEALS

6 

### {¶13} Accordingly, the trial court erred in imposing an 11-year sentence for each offense of rape, as those sentences were contrary to law. The first assignment of
error is sustained. 

### {¶14} Schwarm argues in his second assign ment of error that the trial court erred in imposing consecutive sentences without making the findings required by R.C. 2929.14(C). 

### {¶15} R.C. 2929.14(C) requires a trial cour t to make various findings before imposing consecutive sentences. A trial court must make these mandated findings at the sentencing hearing and incorporate the findings into the sentencing entry. State
v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The trial court need not recite the findings verbatim , but a reviewing court must be able to
discern from the record that the court engaged in the requ isite analysis and
determine that the record contains evidence to support the findings. Id . at ¶ 29. 

### {¶16} The trial court in this case in corporated findings under R.C. 2929.14(C) into Schwarm’s sentencing entry. It specifically found that consecutive sentences were necessary to protect the pu blic and to punish Schwarm and were not disproportionate to Schwarm’s conduct or th e danger he posed to the public. The court additionally found that at least two of Schwarm’s offenses had been committed as a part of one or more courses of conduct, and that the harm caused by two or more of the offenses had been so great or unusual that a single prison term would not adequately reflect the seriousness of Schwarm’s conduct. See R.C. 2929.14(C)(4)(b). 

### {¶17} While these findings were included in the sentencing entry, the trial court did not state them on the record at the sentencing hearing. The state contends that the findings can be discerned from the language used by the court whenOHIO FIRST DISTRICT COURT OF APPEALS

7 sentencing Schwarm. The state specifically argues that the trial court detailed the harm suffered by the victims of Schwarm’s offenses, and that the court also stated, “Because of the relationship [Schwarm] had [with] these two women. Because of the protection, it is a consecutive sentence.” We are not persuaded. While the trial court need not engage in a word-for-word recitation of findings under the statute, we cannot discern that it engaged in the requis ite analysis under R.C. 2929.14(C) from
these comments or from our review of the record. 

### {¶18} Therefore, we hold that the trial court erred in imposing consecutive sentences without making the requisite findings at the sentencing hearing. The second assignment of error is sustained. Competency


### {¶19} In his third assignment of error, Schwarm argues that the trial court erred by failing to sua sponte order that he undergo a competency evaluation prior to sentencing. He contends that an evaluation was warranted because he presented a confused demeanor and demonstrated irrational behavior, and because a psychiatric report had found him to be in the early stages of a neurocognitive disorder. 

### {¶20} Due-process principles mandate that a criminal defendant who is legally incompetent shall not be subjected to a trial. State v. Berry , 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). Pursua nt to R.C. 2945.37(B), the issue of a defendant’s competence to stan d trial may be raised by the court, the prosecution, or
the defense. Where the record contains evidence to create a sufficient doubt of a defendant’s competence, further inquiry is necessary. Drope v. Missouri , 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Whether to inquire further into aOHIO FIRST DISTRICT COURT OF APPEALS

8 defendant’s competence by ordering a competency evaluation or competency hearing
is within the trial court’s discretion. Berry at 360. 

### {¶21} The following factors should be considered by the trial court when determining whether to order a competency hearing: “(1) doubts expressed by counsel as to the defendant’s competence; (2) evidence of irrational behavior; (3) the defendant’s demeanor at trial; and (4) prio r medical opinion relating to competence
to stand trial.” State v. Rubenstein , 40 Ohio App.3d 57, 531 N.E.2d 732 (8th Dist.1987), paragraph two of the syllabus; see State v. Sewell , 1st Dist. Hamilton Nos. C-930016 and C-930026, 1993 WL 547183, *1 (Dec. 1, 1993). 

### {¶22} Following our independent review of the record, we cannot find that
the trial court abused its di scretion in failing to orde r a competency evaluation. Defense counsel expressed no doubts as to Schwarm’s competence. During the plea hearing, defense counsel re presented to the court that Schwarm was competent to enter a guilty plea. And at the sentencing hearing, defense counsel acknowledged that Schwarm had physically deteriorated with respect to his memory, but stated, “[H]e’s absolutely cognizant that he knows what is going on here. There is not an
issue related to that.” Th e record does not demonstrate that Schwarm’s demeanor during these proceedings indicated any signs of incompetence. 

### {¶23} On appeal, Schwarm points to his comments during the sentencing hearing to argue that he had exhibited irrational behavior. When given the opportunity to speak at sentencing, Schwarm stated, “Well, I am remorseful. I do have these dreams still today about bein g in the military and these young girls coming to me. And I send them back not having any intercourse with them. So the mama-san doesn’t get mad at them. And I pay the money. And so then tell them toOHIO FIRST DISTRICT COURT OF APPEALS

9 get out of the business.” These isolated comments do not demonstrate that Schwarm behaved irrationally, and they are put into context by a psychiatric report issued by the Court Clinic following a court-ordered examination of Schwarm. The psychiatric report explained that Schwarm had engage d the services of underage prostitutes provided to him by a “mama-san” when stat ioned in Korea with the United States Army, and that he felt lingering guilt over these encounters. Schwarm’s comments at sentencing could be described as an attempt to mitigate or explai n his behavior with respect to the rape offenses. 

### {¶24} The psychiatric report gives no indication that Schwarm was incompetent. The report indicates that Schwarm was experiencing mild memory problems and could be in the early stages of Alzheimer’s disease. But with respect to Schwarm’s cognitive abil ities, the report indi cates that he appeared to be of average intellectual ability, presented his thoughts in a well-organized fashion, and was fully oriented to time, place, and situation. 

### {¶25} Because the record did not contain evidence to create a sufficient doubt of incompetence, we find that the tria l court did not err in failing to sua sponte order that Schwarm undergo a competency evaluation. The third assignment of
error is overruled.

Ineffective Assistance


### {¶26} In his fourth assignment of error, Schwarm argues that his counsel was ineffective for failing to raise the issue of Schwarm’s competency at any point during the proceedings. 

### {¶27} Counsel will not be considered ineffective unless her or his performance was deficient and caused actual prejudice to the defendant. StricklandOHIO FIRST DISTRICT COURT OF APPEALS

10 v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance will only be deemed deficient if it fell below an objective standard of reasonableness.
Strickland at 688; Bradley at 142. A defendant is only prejudiced by counsel’s performance if there is a reasonable probability that the outcome of the proceedings
would have been different but fo r the deficient performance. Strickland at 694; Bradley at 142. A reviewing court must indulge a presumption that counsel’s behavior fell within the acceptable range of reasonable professional assistance.
Strickland at 689; Bradley at 142. 

### {¶28} Because the record did not contain evidence to create a sufficient doubt that Schwarm was incomp etent, we cannot find that counsel was deficient for failing to raise the issue of Schwarm’s competency. The fourth assignment of error is
overruled.

Conclusion


### {¶29} Because the trial court erred in im posing 11-year-prison terms for the offenses of rape and in imposing consecutive sentences without the requisite findings, we vacate those portions of Schwarm’s sentence and remand for resentencing. The judgment of the trial court is otherwise affirmed. Judgment affirmed in part and sentence s vacated in part, and cause remanded.

C UNNINGHAM , P.J., and Z AYAS , J., concur
.

Please note: The court has recorded its own entry on the date of the release of this opinion.