State v. Clay ( 2019 )

[Cite as State v. Clay, 2019-Ohio-2486.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-58
v.
AUDRIC CLAY, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-59
v.
AUDRIC CLAY, OPINION
DEFENDANT-APPELLANT.
Appeals from Logan County Common Pleas Court
Trial Court Nos. CR 18 01 0002 and CR 18 02 0027
Judgments Affirmed
Date of Decision: June 24, 2019
APPEARANCES:
Eric J. Allen for Appellant
David A. Walsh, Jr. for Appellee
Case Nos. 8-18-58 and 8-18-59
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Audric D. Clay (“Clay”), appeals the October 8,
2018 judgment entries of sentence of the Logan County Court of Common Pleas.
We affirm.
{¶2} On January 9, 2018, the Logan County Grand Jury indicted Clay in case
number CR18-01-0002 on two counts of trafficking in cocaine in violation of R.C.
2925.03(A)(1), both fifth-degree felonies. (Case No. CR18-01-0002, Doc. No. 2).
Clay appeared for arraignment on February 12, 2018 and entered pleas of not guilty.
(Case No. CR18-01-0002, Doc. Nos. 11, 12).
{¶3} Clay was subsequently indicted in case number CR18-02-0027 on April
10, 2018 on five counts. Count One of possession of cocaine in violation of R.C.
2925.11(A), (C)(4)(a), a fifth-degree felony; Count Two of having weapons under
disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony; Count
Three of improperly handling firearms in a motor vehicle in violation of R.C.
2923.16(B), (I), a fifth-degree felony; Count Four of tampering with evidence in
violation of R.C. 2921.12(A)(1), (B), a third-degree felony; and Count Five of
illegal use of drug paraphernalia in violation of R.C. 2925.14(C)(1), (F)(1), a fourth-
degree misdemeanor. (Case No. CR18-02-0027, Doc. No. 4). On April 13, 2018,
Clay appeared for arraignment in case number CR18-02-0027 and entered pleas of
not guilty. (Case No. CR18-02-0027, Doc. No. 13).
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{¶4} On August 31, 2018, Clay withdrew his pleas of not guilty and entered
guilty pleas, under a negotiated plea agreement, to both counts in case number
CR18-01-0002 and to Count One in case number CR18-02-0027. (Case No. CR18-
01-0002, Doc. No. 48); (Case No. CR18-02-0027, Doc. No. 34). In exchange for
his change of pleas, the State agreed to dismiss Counts Two, Three, Four, and Five
in case number CR18-02-0027. (Id.); (Id.). The trial court accepted Clay’s guilty
pleas, found him guilty, dismissed Counts Two, Three, Four, and Five in case
number CR18-02-0027, and ordered a presentence investigation (“PSI”). (Id.);
(Id.).
{¶5} On October 8, 2018, the trial court sentenced Clay to 12 months in
prison on both counts, respectively, in case number CR18-01-0002 and ordered that
Clay serve the terms consecutively. (Case No. CR18-01-0002, Doc. No. 51). The
trial court also sentenced Clay to 12 months in prison on Count One in case number
CR18-02-0027, ordering that term to be served consecutively to the consecutive
terms imposed in case number CR18-01-0002 for an aggregate prison term of 36
months. (Case No. CR18-02-0027, Doc. No. 37).
{¶6} On October 15, 2018, Clay filed a notice of appeal in both cases, which
we consolidated for purposes of appeal. (Case No. CR18-01-0002, Doc. No. 61);
(Case No. CR18-02-0027, Doc. No. 47). He raises one assignment of error for our
review.
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Assignment of Error
The trial court erred by imposing a sentence unsupported by the
record per O.R.C. § 2929.14.
{¶7} In his assignment of error, Clay argues that the trial court erred by
imposing the maximum term of imprisonment. In particular, he argues that the
record does not support the trial court’s sentences.
Standard of Review
{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“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.” State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Analysis
{¶9} “It is well-established that the statutes governing felony sentencing no
longer require the trial court to make certain findings before imposing a maximum
sentence.” State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 29,
citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14
(“Unlike consecutive sentences, the trial court was not required to make any
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particular ‘findings’ to justify maximum prison sentences.”) and State v. Hinton, 8th
Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 9 (“The law no longer requires the
trial court to make certain findings before imposing a maximum sentence.”).
Rather, “‘trial courts have full discretion to impose any sentence within the statutory
range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 9,
quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. In this case,
as fifth-degree felonies, trafficking in cocaine and possession of cocaine, carry a
non-mandatory sanction of 6-months to 12-months imprisonment. R.C.
2925.03(A)(1), (C)(2)(a); 2925.11(A), (C)(4)(a); 2929.13(B)(2); 2929.14(A)(5).
Because the trial court sentenced Clay to 36 months in prison, the trial court’s
sentence falls within the statutory range. “[A] sentence imposed within the statutory
range is ‘presumptively valid’ if the [trial] court considered applicable sentencing
factors.” Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572,
2011-Ohio-2791, ¶ 15.
{¶10} “R.C. 2929.11 provides, in pertinent part, that the ‘overriding purposes
of felony sentencing are to protect the public from future crime and to punish the
offender.’” Smith at ¶ 10, quoting R.C. 2929.11(A). “In advancing these purposes,
sentencing courts are instructed to ‘consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the offender, and
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making restitution to the victim of the offense, the public, or both.’” Id., quoting
R.C. 2929.11(A). “Meanwhile, R.C. 2929.11(B) states that felony sentences must
be ‘commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim’ and also be consistent with sentences
imposed in similar cases.” Id., quoting R.C. 2929.11(B). “In accordance with these
principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E)
relating to the seriousness of the offender’s conduct and the likelihood of the
offender’s recidivism.” Id., citing R.C. 2929.12(A). “‘A sentencing court has broad
discretion to determine the relative weight to assign the sentencing factors in R.C.
2929.12.” Id. at ¶ 15, quoting State v. Brimacombe, 195 Ohio App. 3d 524, 2011-
Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio St. 3d 208, 215 (2000).
{¶11} “Although the trial court must consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.
2929.12, the sentencing court is not required to ‘state on the record that it considered
the statutory criteria or discuss[ed] them.’” Maggette at ¶ 32, quoting State v.
Polick, 101 Ohio App. 3d 428, 431 (4th Dist.1995). “A trial court’s statement that
it considered the required statutory factors, without more, is sufficient to fulfill its
obligations under the sentencing statutes.” Id., citing State v. Abrams, 8th Dist.
Cuyahoga No. 103786, 2016-Ohio-4570, citing State v. Payne, 114 Ohio St. 3d 502,
2007-Ohio-4642, ¶ 18. At Clay’s sentencing hearing and in its sentencing entry, the
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trial court considered the R.C. 2929.11 and 2929.12 factors. (October 8, 2018 Tr.
at 12-13); (Case No. CR18-01-0002, Doc. Nos. 51, 71); (Case No. CR18-002-0027,
Doc. No. 37).
{¶12} Specifically, the trial court considered “the purposes and principles of
sentencing set forth in R.C. 2929.11,” and in exercising its discretion, the trial court
considered those factors “relating to the likelihood of the offender’s recidivism”
provided in division (D) as required by R.C. 2929.12(A) when the court considered
the need to deter or incapacitate Clay. (October 8, 2018 Tr. at 6, 9, 12, 15); (Case
No. CR18-01-0002, Doc. Nos. 51, 71); (CR18-02-0027, Doc. No. 37). R.C.
2929.12(A). In assessing whether Clay was likely to commit future crimes, the trial
court considered Clay’s prior record and determined that Clay had a juvenile court
record that was “noteworthy.” (October 8, 2018 Tr. at 6); (Case No. CR18-01-0002,
Doc. No. 71). However, the trial court chose to focus on the “extensive” and
“shocking” nature of Clay’s adult record beginning in 2005 which the trial court
characterized as “legendary.” (Id. at 6, 12, 15); (Id.). See R.C. 2929.12(D)(2).
Specifically, the trial court noted Clay’s extensive record of ten felony convictions
(dating back to 2005) by calling him a “repeat offender.” (October, 8, 2018 Tr. at
6, 12, 15); (Case No. CR18-01-0002, Doc. No. 71); (PSI at 6-10).
{¶13} The trial court also found that Clay hadn’t responded favorably to the
sanctions previously imposed and noted that Clay had “absconded from supervision
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in the past at least three times, and community control sanctions [were] simply a
waste of community control resources.” (October 8, 2018 Tr. at 9); (Case No.
CR18-01-0002, Doc. No. 71). See R.C. 2929.12(D)(3). The trial court also found
that Clay had been violating the terms and conditions of his probation supervision
since his second offense at age fifteen (in 2002) and the record reflects that Clay’s
lack of amenability to community control sanctions and post-release control
continued into his adulthood.1 (Id.). The trial court noted that “to not impose a
prison term--would--[], make a mockery of the criminal justice system.” (October
8, 2018 Tr. at 15); (Case No. CR18-01-0002, Doc. No. 71). Further, the trial court
noted that Clay’s Ohio Risk Assessment System score indicated a high risk of
reoffending. (October 8, 2018 Tr. at 11); (PSI at 15, 17-22). The trial court did not
find that any of the factors under R.C. 2929.12(B) or (C) applied regarding the
seriousness of Clay’s conduct. Moreover, the trial court did not find any factors in
R.C. 2929.12(E) mitigating that Clay is not likely to commit future crimes applied.
{¶14} In our review of the record, the trial court’s findings are clearly and
convincingly supported by the record. Specifically, the PSI also details Clay’s prior
record revealing that Clay has an extensive criminal record dating back to 2000
when he committed his first act of delinquency as a juvenile. The PSI details that
Clay had a history of violating all forms of supervision was ultimately terminated
1
Clay has been terminated from all forms of supervision as a result of violations in at least one of his juvenile
offenses and five of the ten felony offenses he committed an as adult. (PSI at 6-12).
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unsuccessfully at least once resulting in the imposition of post-release-control
sanctions. (PSI at 7).
{¶15} We conclude that it was within the trial court’s discretion to impose a
prison sentence as “the most effective way to comply with the purposes and
principles of sentencing set forth in section 2929.11 of the Revised Code.” R.C.
2929.12(A). See also R.C. 2929.13(D). Accordingly, based upon the foregoing,
Clay’s sentence is not clearly and convincingly contrary to law because it is within
the permissible statutory range and because the trial court properly considered the
criteria found in R.C. 2929.11 and 2929.12. See Maggette, 2016-Ohio-5554 at ¶ 36.
{¶16} For these reasons, Clay’s assignment of error is overruled.
{¶17} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgments Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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