State v. Benedict , 2021 Ohio 966 ( 2021 )

[Cite as State v. Benedict, 2021-Ohio-966.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-25
:
v. : Trial Court Case No. 2019-CR-824
:
ROBERT E. BENEDICT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of March, 2021.
...........
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 100 North Detroit Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Appellant, Robert E. Benedict, appeals from his conviction, on his guilty plea,
of failure to comply with an order or signal of a police officer. Specifically, he asserts the
trial court erred by imposing a maximum sentence. Because we find no merit to this
assertion, the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} Benedict was indicted for failure to comply with an order or signal of a police
officer in violation of R.C. 2921.331(B), a third-degree felony. Almost five months later,
following a Crim.R. 11 plea hearing, Benedict pleaded guilty to the offense. After
ordering a presentence investigation report and conducting a sentencing hearing, the trial
court sentenced Benedict to the maximum 36-month prison sentence. This appeal
followed.
Analysis
{¶ 3} Benedict’s sole assignment of error is as follows:
THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM SENTENCE
ALLOW[ED] BY LAW.
{¶ 4} Appellate review of a felony sentence is controlled by R.C. 2953.08(G)(2),
which states in relevant part as follows:
***
(2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
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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.
{¶ 5} A “trial court has full discretion to impose any sentence within the authorized
statutory range, and the court is not required to make any findings or give its reasons for
imposing [a] maximum or more than minimum sentenc[e].” (Citation omitted.) State v.
King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). But, this being said, the trial
court “must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C.
2929.12.” (Citation omitted.) Id.{¶ 6} Benedict’s first argument in support of the assigned error is that the trial court
“did not properly weigh the factors set forth in the revised code.” Other than a separate
discussion of R.C. 2929.11 and R.C. 2929.12, Benedict does not articulate the statutory
factors to which he is referring. And, other than the R.C. 2929.11 purposes of felony
sentencing and the R.C. 2929.12 sentencing factors, there are, in this case, no additional
statutory provisions the trial court had to consider when reaching its sentencing decision.
Thus, we find no merit to Benedict’s first supporting argument.
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{¶ 7} Benedict’s second argument in support of the assigned error is that the trial
court “did not give * * * due weight to [Benedict’s] genuine remorse * * *.” Benedict does
not cite to and we have not found any authority to support a conclusion that a trial court’s
failure to appropriately consider a defendant’s remorse is a basis upon which an appellate
court may modify or vacate a felony sentence. Given this, there is no merit to Benedict’s
second argument in support of the assigned error.1
{¶ 8} Benedict’s final supporting argument is that the “trial court failed to comply
with R.C. 2929.11 and R.C. 2929.12.” As discussed, when making a felony sentencing
decision, a trial court must consider the R.C. 2929.11 purposes of felony sentencing and
the R.C. 2929.12 felony sentencing factors, but there is no requirement for the trial court
to make any on-the-record findings regarding R.C. 2929.11 and R.C. 2929.12. In this
case, the sentencing hearing transcript reflects the trial court’s consideration of R.C.
2929.11 and R.C. 2929.12.
{¶ 9} Moreover, after the briefs in this case were filed, the Ohio Supreme Court
decided State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __. In Jones,
the Supreme Court, noting that R.C. 2929.11 and R.C. 2929.12 “are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a),” concluded that R.C.
2953.08(G)(2)(a) does not provide “a basis for an appellate court to modify or vacate a
sentence based upon the lack of support in the record for the trial court’s findings under
R.C. 2929.11 or R.C. 2929.12.” Id. at ¶ 28. Jones also concluded that R.C.
1
The record reflects that Benedict, while fleeing the police on a rural highway and through
residential neighborhoods, traveled in excess of 100 miles per hour, ignored red lights,
and passed vehicles he encountered. The record further reflects that Benedict had 22
previous felony convictions and seven previous prison sentences. This presents a sharp
contrast to the remorse Benedict expressed at the sentencing hearing.
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2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or vacate
a felony sentence based upon a conclusion that the sentence is contrary to law because
“the sentence is not supported by the record under R.C. 2929.11 and R.C. 2929.12.” Id.
at ¶ 39. Thus, Benedict’s argument regarding the trial court’s failure to comply with R.C.
2929.11 and R.C. 2929.12 is without merit.
{¶ 10} Having rejected each supporting argument, Benedict’s sole assignment of
error is overruled.
{¶ 11} The judgment of the Greene County Common Pleas Court is affirmed.
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HALL, J., concurs.
DONOVAN, J., concurs:
{¶ 12} I agree that the sentence in this case should be affirmed. However, I do not
read Jones as broadly as the majority.
{¶ 13} Significantly, under R.C. 2929.12(E)(5), the court shall consider that “the
offender shows genuine remorse for the offense.”
{¶ 14} Conversely, although the trial court is not required to make explicit findings
under R.C. 2929.12, it nevertheless shall consider under R.C. 2929.12(D)(5) that “the
offender shows no genuine remorse for the offense.”
{¶ 15} I recognize that the trial court is in the best position to evaluate the sincerity
of an individual’s claimed remorse. Nevertheless, it is a relevant sentencing
consideration, and pursuant to statute is a mandatory factor to be weighed at sentencing.
“The consideration of remorse or its absence as a mitigating or aggravating factor during
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criminal sentencing is accepted in both federal and state courts.” Zhong, Judging
Remorse, 39 N.Y.U. Rev. L. & Soc. Change 133, 137 (2015).
{¶ 16} The majority seems to suggest that, because Benedict is a recidivist, he
was likely not remorseful. Although the trial judge decides if an apology is sincere or
merely aimed at a reduction of sentence, recidivism does not always indicate a feigned
expression of remorse.
{¶ 17} The trial judge also should always determine what weight to give to an
expression of remorse.
Copies sent to:
Marcy A. Vonderwell
Jay A. Adams
Successor of Hon. Stephen Wolaver