State v. Dawson , 2016 Ohio 2800 ( 2016 )

[Cite as State v. Dawson, 2016-Ohio-2800.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-L-109
- vs - :
DAVID D. DAWSON, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 15 CR
000232.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, David D. Dawson, appeals his sentence following his guilty plea
to trafficking in cocaine and related felonies. At issue is whether appellant’s sentence
was contrary to law. For the reasons that follow, we affirm.
{¶2} On July 2, 2015, appellant pled guilty to trafficking in cocaine, a felony of
the fifth degree; attempted tampering with evidence, a felony of the fourth degree;
possession of cocaine, a felony of the fifth degree; and attempted illegal assembly or
possession of chemicals for the manufacture of drugs, a felony of the fourth degree.
{¶3} The statement of facts that follows is derived from evidence presented at
appellant’s guilty-plea and sentencing hearings. On March 16, 2015, a special agent
with the Lake County Narcotics Agency received information from a confidential
informant that appellant was selling crack cocaine from a crack house in Painesville,
Ohio. The confidential informant made arrangements to buy crack cocaine from
appellant and was wired by agents from the Narcotics Agency. The confidential
informant went to the crack house and purchased crack from appellant using recorded
funds.
{¶4} Two days later, on March 18, 2015, Narcotics Agency agents executed a
search warrant at the crack house. They knocked loudly on the front door. An
occupant pulled the window shade on the inside of the front door to the side. The
agents yelled, “police, open the door right now!” However, the occupant did not comply.
After the agents pounded on the front door several times, the occupant finally unlocked
and opened the door. Upon entering the residence, the officers announced they had a
search warrant and walked through the house. While in a bedroom, they heard a toilet
flushing in the adjoining bathroom. The agents entered the bathroom and found
appellant attempting to flush crack cocaine down the toilet. After he was handcuffed,
one of the agents noticed a clear plastic bag containing crack cocaine floating in the
running toilet bowl. The agent recovered the bag and preserved it as evidence.
{¶5} During a search of the crack house, the agents also recovered a second
plastic bag containing crack cocaine on the bathroom sink countertop and $194 in cash
in appellant’s pants pocket. Appellant was also in possession of a scale and a
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measuring cup that contained crack cocaine residue, indicating the manufacture of
crack.
{¶6} In a colloquy between the trial court and appellant during the guilty-plea
hearing, in response to the court’s questions, appellant admitted that he knowingly sold
or offered to sell cocaine on March 16, 2015; that on March 18, 2015, he attempted to
get rid of the cocaine in his possession because he knew the police were in the house
and he did not want them to find the drugs; that on March 18, 2015, he knowingly
possessed cocaine; and that between March 1, 2015 and March 18, 2015, he attempted
to illegally assemble or possess chemicals for the manufacture of crack cocaine.
{¶7} The court found appellant’s guilty plea to be voluntary; accepted the plea;
found appellant guilty of the foregoing offenses; and referred the matter to the probation
department for a pre-sentence report.
{¶8} At the sentencing, pursuant to the agreement of the parties, the court
merged attempted tampering with evidence, possession of cocaine, and attempted
illegal manufacture of drugs. Among these offenses, the state elected to proceed to
sentencing on attempted tampering with evidence, a felony-four, in addition to trafficking
in cocaine.
{¶9} The court noted that appellant, who is 33 years old, has a significant
criminal history. He was sentenced to prison twice, once in 2002 and again in 2006.
{¶10} At sentencing, appellant’s counsel recommended that appellant be
sentenced to seven months in prison on each of the two offenses that did not merge
and that these terms be served consecutively, for a total of 14 months. On the other
hand, the prosecutor recommended a consecutive sentence of 30 months, which was
the maximum potential sentence for these two offenses. The court sentenced appellant
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to 11 months for trafficking in cocaine and 17 months for attempting tampering with
evidence, for a total of 28 months in prison.
{¶11} Appellant appeals his sentence, asserting the following for his sole
assignment of error:
{¶12} “The trial court erred by sentencing the defendant-appellant to a
consecutive, twenty-eight month prison term.”
{¶13} Appellant argues the trial court erred in sentencing him to 28 months
because, in his view, the court did not consider: (1) the less seriousness factor that he
did not cause physical harm to anyone (R.C. 2929.12(C)(3)), or (2) the inapplicability of
the recidivism factor that he refuses to acknowledge a pattern of drug abuse that was
related to the instant offenses (R.C. 2929.12(D)(4)).
{¶14} The Supreme Court of Ohio, in State v. Marcum, ___ Ohio St.3d ___,
2016-Ohio-1002, held that appellate courts must apply the standard of review set forth
in R.C. 2953.08(G)(2) when reviewing felony sentences. Id. at ¶1. Thus, applying the
plain language of that statute, the Supreme Court held that “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.” Id. The Court
further held that “appellate courts may not apply the abuse-of-discretion standard in
sentencing-term challenges.” Id. at ¶10.
{¶15} Absent evidence to the contrary, a reviewing court will presume the trial
court considered all appropriate sentencing factors, even if the record is silent. State v.
Kish, 11th Dist. Lake No. 2010-L-138, 2011-Ohio-4172, ¶8. Further, there is no
requirement that the court state on the record that it considered the statutory sentencing
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criteria. Id. However, the trial court satisfies its obligation to consider the statutory
principles and factors by stating that it considered them. State v. Brown, 11th Dist. Lake
No. 2014-L-075, 2015-Ohio-2897, ¶34. Moreover, this court has stated, “[a] trial court is
not required to give any particular weight or emphasis to a given set of circumstances; it
is merely required to consider the statutory factors in exercising its discretion.” State v.
Delmanzo, 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶23. In this case, the trial
court met its obligations under the law.
{¶16} The trial court stated on the record during the sentencing hearing and in
its sentencing entry that it considered the purposes and principles of felony sentencing
in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12.
{¶17} Further, during the sentencing hearing, the court said it considered the
complete record in this case, including the presentence report, the recommendation of
the probation department, the sentencing memorandum presented on behalf of
appellant, and the statements made by appellant.
{¶18} With respect to the less seriousness factors, the court considered the fact
that none of the current offenses involved violence. With respect to the factors making
recidivism less likely, the court noted that appellant pled guilty to his crimes, accepted
responsibility for his involvement, and has shown genuine remorse.
{¶19} However, the court placed greater emphasis on factors in appellant’s case
that made recidivism more likely. These included appellant’s history of a juvenile
delinquency adjudication and his long history of criminal convictions as an adult. The
court noted that appellant has 21 prior convictions between 2001 and prior to the instant
conviction (not counting his probation violations), seven of which were for felonies,
including felonies involving violence. The court noted that appellant had not responded
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favorably when sanctions were previously imposed in that he had probation violations in
2002 and 2004. The court also noted that appellant served two prison terms that were
imposed concurrently in two separate cases in 2002. He served another prison term
between 2006 and 2011. And, appellant served two prison sentences consecutively
between 2013 and 2015. The court noted that appellant had only been out of prison for
some 10 days between March 6, 2015 and March 18, 2015, and was on post-release
control when he committed the instant crimes.
{¶20} While appellant may not agree with the emphasis placed by the trial court
on his criminal record and the fact that he was only out of prison for ten days and on
post-release control when he committed these crimes, he cannot reasonably dispute
that the court considered the sentencing criteria in R.C. 2929.11 and R.C. 2929.12.
{¶21} In view of the foregoing, we do not clearly and convincingly find that the
trial court’s sentence was contrary to law.
{¶22} For the reasons stated in this opinion, the assignment of error lacks merit
and is overruled. It is the order and judgment of this court that the judgment of the Lake
County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.
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