[Cite as State v. Stevens,

.]

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

STATE OF OHIO, CASE NO. 2021-L-105

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

SAM R. STEVENS, JR., Trial Court No. 2021 CR 000302 Defendant-Appellant.

OPINION

Decided: October 24, 2022 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant- Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Sam Stevens, Jr., appeals the trial court’s imposition of maximum

sentences, consecutive sentences, and indefinite sentences.

{¶2} Appellant is sixty years old, and has been diagnosed with bipolar disorder,

schizophrenia, and paranoia. Appellant also claims to be an alcoholic, who started

drinking again after his wife’s recent death. {¶3} On October 2, 2020, the Eastlake Police Department was notified of

Appellant’s vehicle being driven erratically. The peace officers pursued Appellant, but he

did not stop until he crashed into another vehicle.

{¶4} The two peace officers approached the vehicle and ordered Appellant to

step out of the vehicle. When Appellant refused to step out, one of the peace officers

deployed his taser on Appellant. Appellant then armed himself with a firearm and fired

five rounds initiating a shoot-out. One of Appellant’s shots struck a peace officer in his

ballistic vest. Neither peace officer was seriously wounded. They then arrested

Appellant.

{¶5} As a result of his vehicle crashing, Appellant required immediate medical

aid and was transported to a hospital on the same day. Appellant required surgery due

to his injuries, resulting in him losing a portion of his leg, and sustaining severe intestinal

damage.

{¶6} On April 9, 2021, Appellant was indicted on fourteen counts. Appellant pled

not guilty to all counts.

{¶7} On July 28, 2021, the court held a change of plea hearing. As part of a plea

agreement, Appellant pled guilty to five counts, and the remaining counts were dismissed.

{¶8} At the change of plea hearing, Appellant plead guilty to: count three,

attempted murder, pursuant to R.C. 2923.02, with firearm specifications of three years

pursuant to R.C. 2941.145 (specification concerning use of firearm to facilitate offense),

five years pursuant to R.C. 2941.146 (specification concerning discharge of firearm from

motor vehicle), and seven years pursuant to R.C. 2941.1412 (discharging firearm at

peace officer or corrections officer); count four, attempted murder, pursuant to R.C.

2

Case No. 2021-L-105 2923.02, with firearm specifications of three years pursuant to R.C. 2941.145

(specification concerning use of firearm to facilitate offense), five years pursuant to R.C.

2941.146 (specification concerning discharge of firearm from motor vehicle), and seven

years pursuant to R.C. 2941.1412 (discharging firearm at peace officer or corrections

officer); count eight, resisting arrest, pursuant to R.C. 2921.33(C)(1), with firearm

specifications of three years pursuant to R.C. 2941.145 (specification concerning use of

firearm to facilitate offense), and seven years pursuant to R.C. 2941.1412 (discharging

firearm at peace officer or corrections officer); count ten, improperly handling firearms in

a motor vehicle, pursuant to R.C. 2923.16(B), with a contraband/instrumentalities

forfeiture specification pursuant to R.C. 2941.1417 (specification concerning forfeiture of

property) and R.C. 2981.04 (specification concerning forfeiture); and count twelve, failure

to comply with order or signal of police officer, pursuant to R.C. 2921.331(B).

{¶9} On July 28, 2021, the court held a sentencing hearing. The court sentenced

Appellant to eleven to sixteen years imprisonment for count three with an additional seven

years for the firearm specification; eleven to sixteen years for count four with an additional

seven years for the firearm specification; eighteen months for count eight with an

additional seven years for the firearm specification; eighteen months for count ten; and

thirty-six months for count twelve.

{¶10} At the sentencing hearing, the court stated that “I’ve considered all aspects

of 2929.11, 2929.12, 2929.13, and 2929.14 and it’s just not, it’s just not activity that can

ever be tolerated.”

{¶11} On the same day, the court ordered Appellant to serve all prison terms

consecutively. To impose consecutive sentences, the court stated that:

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Case No. 2021-L-105 I have imposed a consecutive sentence in this case because the consecutive sentence is necessary to protect the public from future crime by you as demonstrated by the past and for the appropriate punishment and it is not disproportionate to the seriousness of your conduct and the danger that you pose to the public. And the two offenses, at least two of the offenses, the attempted murder counts in this case which were committed as part of one or more courses of conduct and the harm caused by at least two of these offenses was so great or unusual that no single prison term for any of the offenses committed as part of the course of conduct adequately reflects the seriousness of your conduct as well as the fact that your history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by you.

{¶12} Following the sentence order, Appellant objected to the maximum

sentences imposed, the consecutive sentences imposed, and the indefinite sentencing.

{¶13} “FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT’S ORDER OF

MAXIMUM SENTENCES PURSUANT TO R.C. 2929.12 WAS NOT SUPPORTED BY

THE RECORD.”

{¶14} Appellant first contends that his sentence is contrary to law because the trial

court failed to consider mitigating factors under R.C. 2929.12(C)(4), such as his mental

illnesses, in sentencing.

{¶15} R.C. 2929.12 grants discretion to a court that imposes a sentence to

determine the most effective way to comply with the purposes and principles of

sentencing set forth in section 2929.11.

{¶16} In relevant part, R.C. 2929.12(C)(4), states:

(C) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is less serious than conduct normally constituting the offense:

4

Case No. 2021-L-105 (4) There are substantial grounds to mitigate the offender's conduct, although the grounds are not enough to constitute a defense.

Under R.C. 2953.08(G)(2), the appellate court may modify a sentence if it clearly and convincingly finds 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 or that the sentence is otherwise contrary to law.

{¶17} Thus, when a party makes a challenge that a sentence under R.C.

2929.12(C)(4) is contrary to law because it is not supported by the record, we have no

authority to review or modify the sentence because it is not one of the enumerated

sentencing statutes that are susceptible to review under the “record does not support”

standard. State v. Jones,

,

,

.

{¶18} Rather, a sentencing court fulfills its duty when it states that it has

considered the factors under R.C. 2929.11 and R.C. 2929.12. State v. DeLuca, 11th Dist.

Lake No. 2020-L-089,

. The trial court did so here.

{¶19} Appellant asserts that the factors pursuant to R.C. 2929.12 should have

been weighed differently. Specifically, Appellant claims that the trial court “ignored or

discounted” his mental illnesses as mitigating factors making his offenses less serious

under R.C. 2929.12(C)(4). Yet, “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.” Deluca at ¶ 42.

{¶20} Here, the court stated that it considered the factors under R.C. 2929.12.

Thus, the court fulfilled its duty. Id. at ¶ 18.

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Case No. 2021-L-105 {¶21} Appellant’s first assignment of error is without merit.

{¶22} “SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT’S ORDER OF

CONSECUTIVE SENTENCES FOR AN AGGREGATE MINIMUM OF FORTY-NINE

YEARS AND A MAXIMUM TERM OF FIFTY-FOUR AND ONE-HALF YEARS

PURSUANT TO 2929.14(C) WAS NOT SUPPORTED BY THE RECORD.”

{¶23} When ordering consecutive sentences for multiple offenses, a trial court is

required to make three statutory findings. R.C. 2929.14(C)(4).

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 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.

R.C. 2929.14(C)(4)(a-c).

{¶24} “In order to impose consecutive terms of imprisonment, a trial 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, but it has no obligation to state 6

Case No. 2021-L-105 reasons to support its findings.” State v. Bonnell,

, 2014-Ohio-

3177,

.

{¶25} While the trial court is not required to state exact reasons supporting its

findings, the record must contain a clear basis upon which a reviewing court can

determine that the sentencing court’s findings for imposing consecutive sentences are

supported by the record. Id. at ¶ 27-28.

{¶26} Appellant contends that the record does not support the consecutive

sentences imposed.

{¶27} Unlike R.C. 2929.12, R.C. 2929.14 is enumerated in R.C. 2953.08(G)(2)(a),

which allows us to review whether the consecutive sentences are supported by the

record.

{¶28} Here, the trial court made the statutory findings pursuant to R.C.

2929.14(C)(4) that the consecutive sentences are: 1) necessary to protect the public from

future crime or to punish the offender and are not disproportionate to the seriousness of

the offender's conduct and to the danger the offender poses to the public; 2) 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; and 3)

the offender's history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.

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Case No. 2021-L-105 {¶29} We review each statutory finding accordingly to determine whether the trial

court’s record at the sentencing hearing clearly and convincingly does not support the

findings pursuant to R.C. 2929.14(C)(4).

{¶30} First, we review the finding that consecutive sentences are necessary to

protect the public from future crime or to punish Appellant and are not disproportionate to

the seriousness of his conduct and to the danger he poses to the public.

{¶31} The court’s record reflects it considered that the underlying offense was

Appellant’s third crime involving a firearm in the past ten years. Appellant was previously

convicted for using weapons while intoxicated and aggravated menacing. The

aggravated menacing conviction involved a dispute between Appellant and an apartment

worker, in which Appellant pointed a gun at an apartment employee and caused an

altercation with the police. Considering the past crimes, the record supports the findings

that consecutive sentences are necessary to protect the public from future crime.

{¶32} The record also supports the findings that consecutive sentences are

necessary to punish Appellant and are not disproportionate to the seriousness of his

conduct and to the danger he poses to the public. To support these findings, the court

stated that Appellant continuously created dangerous situations on the day of the incident

and escalated the situation. For example, the court noted that Appellant put an innocent

civilian in danger when he hit the civilian’s vehicle, causing it to roll and totaling the

vehicle. The court also noted that Appellant’s conduct was serious because he initiated

a shoot-out with two peace officers. Lastly, the court found that Appellant poses a danger

to the public because the shooting occurred in “a small neighborhood full of houses with

small lots where shots are going all over the place * * * so you created a dangerous

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Case No. 2021-L-105 situation not only to all the police officers who showed up there but the entire street.”

Thus, we cannot clearly and convincingly find that the record does not support the findings

that consecutive sentences are necessary to punish Appellant and are not

disproportionate to the seriousness of his conduct and to the danger he poses to the

public.

{¶33} The court next found that “at least two of the offenses, the attempted murder

counts in this case which were committed as part of one or more courses of conduct and

the harm caused by at least two of these offenses was so great or unusual that no single

prison term for any of the offenses committed as part of the course of conduct adequately

reflects the seriousness of your conduct.”

{¶34} To support these findings, the court considered that firing at peace officers

was committed as a course of conduct and the harm caused was so great or unusual. To

support this, the court considered that the two peace officers involved in the shooting

were seriously impacted by the incident, and that the victim impact statements reflect that

the officers are traumatized from the event. Therefore, we cannot clearly and

convincingly find that the record does not support these findings.

{¶35} Lastly, the court found that Appellant’s “history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from future

crime by you.” As stated above, the court relied on Appellant’s pre-sentence investigation

and considered that the underlying crime was his third in the past ten years involving a

firearm.

{¶36} In addition to our review under R.C. 2953.08(G)(2)(a), we may also

increase, reduce, otherwise modify, or vacate the sentence and remand the matter to the

9

Case No. 2021-L-105 sentencing court for resentencing if it clearly and convincingly finds that the sentence is

otherwise contrary to law. R.C. 2953.08(G)(2)(b). A sentence is otherwise contrary to

law when the court fails to make the required findings for consecutive sentences. State

v. Barajas-Anguiano, 11th Dist. Geauga No. 2017-G-0112,

.

{¶37} Appellant offers nothing to suggest his sentence is otherwise contrary to law

and limited his evidence to whether the record supports it. Therefore, we cannot clearly

and convincingly find the sentences otherwise contrary to law.

{¶38} But, we also cannot clearly and convincingly find that the record does not

support the findings pursuant to R.C. 2929.14(C)(4).

{¶39} Appellant’s second assignment of error is without merit.

{¶40} Appellant’s third through seventh assignments of error challenge the

constitutionality of R.C. 2967.271, the Reagan Tokes Law. Specifically, Appellant argues

that the Reagan Tokes Law is ripe for review, is void for vagueness, violates the

separation of powers, violates his right to a trial by jury, and violates due process rights.

{¶41} The Ohio Supreme Court recently held that the Reagan Tokes Law is ripe

for review in State v. Maddox, Slip Opinion No. 2022-Ohio 764.

{¶42} In assignments of error four through seven, Appellant makes several

challenges to the constitutionality of the Reagan Tokes Law. Based on this District’s

recent holdings in State v. Reffitt, 11th Dist. Lake Case No. 2021-L-129,

,

and State v. Joyce, 11th Dist. Lake Case No. 2021-

, the

challenges that Appellant advances against the constitutionality of the Reagan Tokes Law

have previously been overruled. Appellant does not advance any novel argument left

unaddressed by our prior decisions.

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Case No. 2021-L-105 {¶43} Pursuant to the above authorities, Appellant’s challenges to the

constitutionality of the Reagan Tokes Law are overruled. Appellant’s third through

seventh assignments of error are without merit.

{¶44} The judgment of the Lake County Court of Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

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Case No. 2021-L-105