[Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-9 : v. : Trial Court Case Nos. 2016-CR-489 : 2017-CR-589 ELIJIAH JOHNSON : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

...........

OPINION

Rendered on the 19th day of October, 2018.

...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

BRYAN K. PENICK, Atty. Reg. No. 0071489 and PATRICK E. O’SHAUGHNESSY, Atty. Reg. No. 0084777, 1900 Kettering Tower, 40 N. Main Street, Dayton, Ohio 45423 Attorneys for Defendant-Appellant ............. -2-

DONOVAN, J.

{¶ 1} This matter is before the Court on the January 12, 2018 Notices of Appeal

of Elijiah Johnson. Johnson appeals from his December 14, 2017 judgment entries of

conviction, issued following pleas of guilty in two cases in the Clark County Court of

Common Pleas. In Case No. 2017-CR-589, Johnson pled guilty to one count of

possession of cocaine, in violation of R.C. 2925.11(A), as set forth in count two of the

indictment, and one count of failure to comply with an order or signal of a police officer,

in violation of R.C. 2921.331(B) and (C)(5), as set forth in count three of the indictment.1

In exchange for his pleas, one count of trafficking in cocaine was dismissed. In Case

No. 2016-CR-489, Johnson pled guilty to one count of possession of heroin, in violation

of R.C. 2925.11(A), as set forth in count four of the indictment. In exchange for his plea,

count three of the indictment, possession of cocaine, was dismissed. Counts one and

two of the indictment applied only to a co-defendant. The court sentenced Johnson to

three years for failure to comply with an order or signal of a police officer, and to one year

each for possession of cocaine and possession of heroin. The sentences for possession

were to be served concurrently. The court found that, pursuant to R.C. 2921.331(D), the

sentence for failure to comply must be served consecutively to the other sentences, for

an aggregate term of four years. We hereby affirm the judgment of the trial court.

{¶ 2} Johnson was indicted on October 12, 2017, in Case No. 2017-CR-589, and

1 Johnson’s indictment provided in part that the operation of his vehicle “caused a substantial risk of serious physical harm to persons or property,” and the offense was accordingly charged as a third degree felony pursuant to R.C. 2921.331(C)(5)(a)(ii). We note that at his plea hearing, the prosecutor indicated to the court that at the time of the offense, Johnson was “driving erratically as he was passing vehicle [sic], running stop signs at 40 miles per hour, and causing a substantial risk of serious physical harm to persons and property.” -3-

on October 3, 2016, in Case No. 2016-CR-489. He entered his guilty pleas in both cases

on November 21, 2017. At the plea hearing, the following exchange occurred:

THE COURT: The possession of heroin offense is a felony of the

fourth degree. The sentencing range for that offense is anywhere from

probation up to and including a maximum penalty of eighteen months in the

Ohio State Penitentiary and a $5,000 fine.

The possession of cocaine offense is a felony of the fifth degree.

The sentencing range for that offense is anywhere from probation up to and

including a maximum penalty of one year in the Ohio State Penitentiary and

a $2,500 fine.

There is also the possibility on each of those possession cases that

you could receive a driver’s license suspension of anywhere from six

months up to five years.

The failure to comply offense is a felony of the third degree. The

sentencing range for that offense is anywhere from probation up to and

including a maximum sentence of three years in the Ohio State Penitentiary,

a $10,000 fine and a lifetime driver’s license suspension.

Do you understand that these are the sentencing ranges for these

three offenses?

THE DEFENDANT: Yes, sir.

THE COURT: If you were sentenced to prison, it would be mandatory

that the prison sentence for the failure to comply be run consecutively to the

sentence on the other two offenses. Do you understand that? -4-

THE DEFENDANT: Yes, sir.

{¶ 3} At sentencing, the court indicated as follows:

THE COURT: The Court finds the defendant was adjudicated

delinquent for robbery, a felony of the second degree, back in 2013, and

aggravated riot, a felony of the third degree in 2013.

He was given a sentence at DYS that was suspended and he was

placed on probation; and then approximately a year later in 2014 the

defendant violated his probation and the Court imposed the DYS sentence.

The Court would note for the record that of these three offenses, the

most serious is a felony of the third degree and because of that, the

mandatory community control provisions with respect to the fourth and fifth

degree felonies, the felony possession offenses, is inapplicable.2

In case #16-CR-489, possession of heroin, a felony of the fourth

degree, I think it should be noted for the record that the defendant was in a

vehicle that got pulled over with a total of four occupants; and when that

vehicle was searched, a semi-automatic handgun was found and while that

weapon cannot be attributed to the defendant beyond a reasonable doubt,

it could have been possessed by anyone or all or some combination of the

four occupants.

The Court is still taking that into consideration that there was a

2 R.C. 2929.13(B)(1)(a)(ii) provides in part that “if an offender * * * pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction * * * if” the “most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.” -5-

firearm in that vehicle at the time of the offense.

{¶ 4} Johnson’s presentence investigation report (“PSI”) reflects that his Ohio

Risk Assessment System score was high. Johnson’s version of events as reflected in the

PSI was as follows:

The defendant relayed the following concerning the instant offense:

“I was driving and the police got behind me. I was a little drunk so I fled in

the car, then hopped out on foot. I got away and ended up passing out at

a friend’s house. When I woke up I felt bad but didn’t want to turn myself

in so I ran until they finally caught up with me.”

When questioned regarding case 16 CR 489B, the defendant

relayed that he thought he had purchased ecstasy but later found that it was

actually heroin and cocaine. He reported he was involved in a traffic stop

in a car he was not the driver of and during the pat down they found the

drugs on him. He reported that after he was charged with this offense he

moved to Florida for approximately one year in an attempt to avoid

consequences for his case.

The defendant reported he was finally served with arrest warrants for

both cases in September at his mother’s house.

{¶ 5} Each of Johnson’s judgment entries of conviction provides that the court

“considered the record, oral statements of counsel, the defendant’s statement, and the

principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and

then balanced the seriousness and recidivism factors under Ohio Revised Code Section

2929.12.” Johnson’s judgment entry of conviction in Case No. 2017-CR-589 provides -6-

that the sentence for failure to comply with an order or signal of a police officer “must run

consecutively to any other prison term imposed upon” Johnson, pursuant to R.C.

2929.331(D).

{¶ 6} Johnson asserts two assignments of error herein, which we will consider

together. They are as follows:

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT

TO CONSECUTIVE PRISON TERMS

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT

TO MAXIMUM PRISON TERMS.

{¶ 7} Johnson asserts that the trial court did not set forth any R.C. 2929.14(C)(4)

analysis on the record during Johnson’s disposition, but imposed a consecutive sentence

nonetheless. “Further, the Trial Court imposed the maximum terms allowable for the

possession of cocaine and failure to comply offenses.”

{¶ 8} As this Court has previously noted:

A trial court has full authority to impose any authorized sentence, and

the sentencing court is not required to articulate its findings or set forth its

reasons for imposing a particular sentence. State v. King, 2013-Ohio-

2021,

, ¶ 45 (2d Dist.). However, the sentencing court must

consider the R.C. 2929.11 and 2929.12 sentencing factors. State v.

Leopard,

,

,

(2d

Dist.), citing State v. Mathis,

,

,

.

Felony sentences are reviewed in accordance with R.C. -7-

2953.08(G)(2). State v. Marcum,

,

,

. Based upon the plain language of R.C. 2953.08(G)(2) “an

appellate court may vacate or modify a felony sentence on appeal only if it

determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence

is otherwise contrary to law.” Marcum at ¶ 1. “This is a very deferential

standard of review, as the question is not whether the trial court had clear

and convincing evidence to support its findings, but whether [the appellate

court] clearly and convincingly find[s] that the record fails to support the trial

court’s findings. State v. Cochran, 2d Dist. Clark No. 2016-CA-33, 2017-

Oho-217, ¶ 17.

State v. Skapik, 2d Dist. Champaign No. 2017-CA-16,

.

{¶ 9} R.C. 2929.14(C)(4), to which Johnson directs our attention, provides:

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 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 -8-

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.

{¶ 10} The court did not impose consecutive sentences pursuant to R.C.

2929.14(C)(4), but rather did so pursuant to R.C. 2921.331(D), the failure to comply

statute, which provides: “If an offender is sentenced pursuant to division (C)(4) or (5) of

this section for a violation of division (B) of this section, and if the offender is sentenced

to a prison term for that violation, the offender shall serve the prison term consecutively

to any other prison term or mandatory prison term imposed upon the offender.” See State

v. Back, 2d Dist. Clark No. 2013-CA-62,

(holding that because

consecutive sentences were mandatory when appellant was convicted for failure to

comply and sentenced pursuant to R.C. 2921.331(C)(4), the trial court was not required

to make the consecutive sentencing findings in R.C. 2929.14(C)(4)). Johnson’s first

assignment of error lacks merit, and it is overruled.

{¶ 11} Johnson’s sentences for possession of cocaine, possession of heroin, and

failure to comply with an order or signal of a police officer were within the statutory ranges

set forth in R.C. 2929.14(A). “ ‘The trial court has full discretion to impose any sentence -9-

within the authorized statutory range, and the court is not required to make any findings

or give its reasons for imposing maximum * * * sentences.’ State v. King,

,

, ¶ 45 (2d Dist.).” State v. Ferguson,

,

(2d Dist.).

{¶ 12} Finally, the court indicated that it considered the principles and factors in

R.C. 2929.11 and 2929.12. As this Court has previously noted:

R.C. 2929.11 requires trial courts to be guided by the overriding

principles of felony sentencing. Those purposes are “to protect the public

from future crime by the offender and others and to punish the offender

using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local

government resources.” R.C. 2929.11(A). The court must “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(B) further provides

that “[a] sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing * * *,

commensurate with and not demeaning to the seriousness of the offender's

conduct and its impact upon the victim, and consistent with sentences

imposed for similar crimes committed by similar offenders.”

R.C. 2929.12(B) sets forth nine factors indicating an offender's

conduct is more serious than conduct normally constituting the offense;

R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct -10-

is less serious. R.C. 2929.12(D) and (E) each list five factors that trial

courts are to consider regarding the offender's likelihood of committing

future crimes. Finally, R.C. 2929.12(F) requires the sentencing court to

consider the offender's military service record and “whether the offender

has an emotional, mental, or physical condition that is traceable to the

offender's service in the armed forces of the United States and that was a

contributing factor in the offender's commission of the offense or offenses.”

State v. Ray, 2d Dist. Champaign No. 2017-CA-33,

.

{¶ 13} Upon review of the record, Johnson’s sentence is neither contrary to law

nor clearly and convincingly unsupported by the record. As noted above, Johnson had

two additional charges against him dismissed pursuant to the plea agreement. In the

course of committing the offenses, Johnson drove erratically, running stop signs, causing

a substantial risk of serious physical harm to persons and property, and he acknowledged

that he was “a little drunk” at the time. His record includes an adjudication of delinquency

for robbery and aggravated riot resulting in a DYS commitment. Johnson’s second

assignment of error is overruled. The judgment of the trial court is affirmed.

.............

WELBAUM, P. J., concurs.

HALL, J., concurring:

{¶ 14} I agree with my colleagues that the consecutive sentences in this case

should be affirmed. So that my silence will not be construed as acquiescence, I continue -11-

to note my belief that there must be some evidence in the record contrary to the sentence,

rather than a clear and convincing failure to support the sentence as stated in the majority

opinion. The difference is my interpretation is in the negative and the other requires some

affirmative information to support consecutive sentences.

{¶ 15} In my opinion that I have previously repeated, “my interpretation of State v.

Marcum,

,

,

, allows a sentence to be

vacated or modified ‘only if the appellate court finds by clear and convincing evidence

that the record does not support the sentence.’ ” (Emphasis added.) Id. at ¶ 23.

* * * I believe the Marcum quote is in the negative. If the record does not

contain evidence from which we can determine that the sentence is clearly wrong,

then it stands, and we are without authority to adjust it. The majority’s quote puts

the burden on the State or the court, incorrectly in my view, to insure there is

information in the record to justify the sentence. This distinction is particularly

important with regard to sentencing following a plea where the record often is

sparse, perhaps even where the defense, or the court, dispenses with a PSI report.

I previously have written that “even a record that is largely silent is not

clearly and convincingly contrary to a trial court’s consecutive-sentencing

determination unless there is substantial affirmative factual information in support

of the defendant to conclude that the trial court is clearly wrong.

State v. Cochran, 2d Dist. Champaign No. 2016-CA-11,

(Hall,

P.J., concurring), citing State v. Kay, 2d Dist. Montgomery No. 26344,

(Hall, J., dissenting); State v. Cencebaugh, 2d. Dist., Montgomery No. 27665, 2018-

Ohio-2216, ¶ 15-16 (Hall, J., concurring). -12-

{¶ 16} I still adhere to the belief that the negative iteration is the correct formulation

of the issue. Nevertheless, in this case, the consecutive sentences are supported by

either formulation of the applicable clear and convincing standard so I concur.

Copies sent to:

Andrew P. Pickering Bryan K. Penick Patrick E. O’Shaughnessy Hon. Douglas M. Rastatter