State v. Cameron , 2013 Ohio 4397 ( 2013 )

[Cite as State v. Cameron, 2013-Ohio-4397.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-86
Plaintiff-Appellee :
: Trial Court Case Nos. 2012-CR-204
v. : Trial Court Case Nos. 2012-CR-483
:
ASSANTE CAMERON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 4th day of October, 2013.
...........
LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia
Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
SHAWN P. HOOKS, Atty. Reg. #0079100, Deal & Hooks, LLC, 131 North Ludlow Street, Suite
630, Dayton, Ohio 45420
Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Assante Cameron appeals from his conviction and sentence
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for one count of Trafficking in Cocaine, in an amount less than five grams, in the vicinity of a
juvenile, in violation of R.C. 2925.03(A)(1), a felony of the fourth degree; one count of
Trafficking in Cocaine, in an amount less than five grams, in violation of R.C. 2925.03(A)(1), a
felony of the fifth degree; and one count of Possession of Heroin, in an amount less than one
gram, in violation of R.C. 2925.11(A), a felony of the fifth degree. Cameron contends that the
trial court abused its discretion by imposing consecutive sentences, including maximum
sentences on two of the three counts, and that the trial court erred by failing to notify him, at the
sentencing hearing, of the possibility of post-release control.
{¶ 2} We conclude that the trial court did not abuse its discretion in imposing sentence.
The State concedes that the trial court erred by failing to notify Cameron, at the sentencing
hearing, of the possibility of post-release control, and takes the position that this cause should be
remanded for re-sentencing so that Cameron may be duly notified of the possibility of
post-release control. We agree.
{¶ 3} That part of the judgment of the trial court imposing post-release control is
Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is
Remanded for re-sentencing accordingly
I. The Offenses
{¶ 4} In early August 2010, Cameron sold a confidential informant less than five grams
of cocaine. In late August 2010, Cameron sold a confidential informant less than five grams of
cocaine in the vicinity of a juvenile.
{¶ 5} When Cameron was arrested in July 2012, he was in possession of 0.18 grams of
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heroin.
II. The Course of Proceedings
{¶ 6} In March 2012, in case no. 12CR0204 in the trial court, Cameron was charged by
indictment with three counts of Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1),
felonies of the fifth degree, and one count of Trafficking in Cocaine, in the vicinity of a juvenile,
in violation of R.C. 2925.03(A)(1), a felony of the fourth degree.
{¶ 7} In July, 2012, in case no. 12CR0483 in the trial court, Cameron was charged by
indictment with one count of Possession of Heroin, in violation of R.C. 2925.11(A), a felony of
the fifth degree.
{¶ 8} In October 2012, in a plea bargain, Cameron pled guilty to one count of
fourth-degree felony Trafficking in Cocaine and one count of fifth-degree Trafficking in Cocaine
in case no. 12CR0204 in the trial court, and to the count of fifth-degree felony Possession of
Heroin in case no. 12CR0483 in the trial court. The remaining counts in case no. 12CR0204 in
the trial court were dismissed. Also as part of the plea bargain, the State agreed to remain silent
at sentencing.
{¶ 9} After a pre-sentence investigation report was prepared and reviewed by trial
counsel and the trial court, Cameron appeared for sentencing. Cameron’s counsel acknowledged
that the pre-sentence investigation report was “fair and complete.” Cameron’s trial counsel
spoke on Cameron’s behalf, urging the trial court to impose community control sanctions.
Cameron then addressed the trial court. In compliance with its agreement, the State remained
silent.
[Cite as State v. Cameron, 2013-Ohio-4397.]
{¶ 10} The trial court imposed the maximum sentence of eighteen months for the
fourth-degree Trafficking in Cocaine offense, the maximum sentence of twelve months for the
fifth-degree Trafficking in Cocaine offense, and a sentence of six months for the fifth-degree
Possession of Heroin offense. The trial court ordered Cameron’s sentences to be served
consecutively, for a total sentence of three years.
{¶ 11} Immediately before imposing sentence, the trial court explained its reasoning, as
follows:
All right. Thank you. The State has agreed to remain silent at
disposition. I do find that community control is not mandatory in this case under
[R.C.] 2929.13(B)(1) because the defendant does have a prior felony conviction
for trafficking in crack cocaine, possession of drugs and trafficking in drugs. I
find that community control is not mandatory under [R.C.] 2929.13(B)(2) because
the defendant has served a prior prison term, six months in the Ohio State
Penitentiary for a possession of drugs and trafficking in drugs.
These are the third and fourth convictions for trafficking in drugs1 for the
defendant, so I do find that consecutive sentences are necessary to protect the
public from future crime and to punish the offender.
The consecutive sentences are not disproportionate to the seriousness of
the defendant’s conduct and to the danger he poses to the public, and I find that
his history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.
1
Cameron also had a prior conviction for possession of drugs.
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{¶ 12} From his conviction and sentence, Cameron appeals.
III. The Trial Court Did Not Abuse its Discretion in Imposing Sentence
{¶ 13} Cameron’s First Assignment of Error is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SENTENCED MR. CAMERON TO THE MAXIMUM ON TWO OF THE
THREE COUNTS AND ORDERED THAT THEY BE SERVED
CONSECUTIVELY WHEN THERE WAS INSUFFICIENT EVIDENCE THAT
HE WAS A DANGER TO SOCIETY AND WITHOUT TAKING INTO
CONSIDERATION HIS ABILITY TO BE REHABILITATED.
{¶ 14} As Cameron acknowledges, a trial court is vested with discretion in deciding
what sentence to impose. Because the trial court is able to observe and hear the defendant, it is
in a better position than a reviewing court to gauge the sincerity and intensity of the defendant’s
expressed desire to reform his conduct to conform with criminal statutes, as well as the
defendant’s ability to do so. The mere fact that a reviewing court might have reached a different
result on a matter confided to the trial court’s discretion, without more, is not enough to find
error. State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 67.
{¶ 15} In support of his argument that the trial court abused its discretion in imposing
sentence in this case, Cameron cites State v. Parker, 193 Ohio App.3d 506, 2011-Ohio-1418, 952
N.E.2d 1159 (2d Dist.), in which we reversed an aggregate sentence of fifteen years for four
Sexual Battery offenses, as constituting an abuse of its discretion. We find Parker
distinguishable.
[Cite as State v. Cameron, 2013-Ohio-4397.]
{¶ 16} The defendant’s offenses in Parker, while obviously serious, were somewhat less
serious than typical sexual battery offenses. All of the offenses involved consensual sexual
activity with the same victim, a sixteen-year-old whose will was not overcome or overborne by
force, or the use of drugs or alcohol. Id. at ¶ 60. Indeed, the defendant’s conduct would not
otherwise have been criminal but for the fact that he was a teacher at the same school at which
the defendant was a victim. We also noted that the defendant in Parker had no prior criminal
history, and “had always led a law-abiding life, earning awards as an outstanding teacher.” Id. at
¶ 61.
{¶ 17} Furthermore, the trial court in Parker expressed as a significant part of its reason
for imposing the fifteen-year sentence that it would “eliminate any hope this victim had that she
might wait for [the defendant] while he served his sentence and after his release have a future
with him.” Id. at ¶ 62. We concluded that this was not a proper reason, because the defendant
had already surrendered his teaching license, and any future relationship he might have with the
victim in his case would not be illegal. Id.
{¶ 18} None of these circumstances find parallels in the case before us. There is no
reason to believe that the offenses to which Cameron pled guilty were less serious than the
typical offenses of that kind, Cameron did not have a crime-free past – indeed, one of the
offenses for which he was sentenced in this case was committed almost two years after the other
offenses for which he was sentenced, and the trial court did not express an improper reason for
the sentence it imposed in this case.
{¶ 19} State v. Gatewood, 2d Dist. Clark No. 2010CA18, 2012-Ohio-202 (Gatewood II),
is another case Cameron cites for the proposition that the trial court abused its discretion by
imposing the sentence it did in the case before us. In that case, the defendant was originally
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sentenced to an aggregate sentence of twelve years in prison for three felony convictions, with
firearm specifications that were merged into a single firearm specification. Id. at ¶ 7. We
reversed that conviction for reasons unrelated to the sentence, and remanded the cause for a new
trial. State v. Gatewood, 2d Dist. Clark No. 2008CA64, 2009-Ohio-5610 (Gatewood I). On
remand, the State re-indicted the defendant on two felony counts that it had previously dismissed.
Gatewood II, at ¶ 10. After the defendant had been convicted on all counts, the trial court
imposed an aggregate sentence of 22½ years, almost double the sentence imposed before the
reversal and remand following the first appeal. Id. at ¶ 10.
{¶ 20} In Gatewood II, we concluded from the record in that case that the trial court had
“penalized [the defendant] for not ‘taking responsibility and pleading guilty,’ ” i.e., for standing
on his rights. Id. at ¶ 75-76. We also concluded that the trial court erred when it opined that the
defendant in that case may have been guilty of another offense, with which he was not charged.
Id. None of the circumstances in Gatewood II we cited as justifying reversal of the sentence in
that case are present in the case before us.
{¶ 21} Cameron concludes his argument in support of this assignment of error by
referring to his desire, expressed at the sentencing hearing, to continue treatment at McKinley
Hall and to be around for his child that his girlfriend was expecting. Again, the trial court was
present to gauge Cameron’s sincerity and the likelihood that he would succeed in rehabilitating
himself without the prison term the trial court imposed. Cameron also stressed that he had been
continuously employed. The trial court was permitted to find that the fact that Cameron was
employed did not immunize him from the imposition of a prison sentence for his offenses.
{¶ 22} We conclude that the trial court did not abuse its discretion in imposing the
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prison sentence it imposed in this case. Cameron’s First Assignment of Error is overruled.
IV. The Trial Court Erred when it Failed to Notify
Cameron of the Possibility of Post-Release Control
{¶ 23} Cameron’s Second Assignment of Error is as follows:
THE SENTENCE SHOULD BE VOIDED BECAUSE THE TRIAL
COURT FAILED TO INFORM MR. CAMERON THAT HE WOULD BE
SENTENCED TO AN OPTIONAL THREE YEARS OF POST-RELEASE
CONTROL DURING THE SENTENCING HEARING.
{¶ 24} Cameron was subject to a possible period of post-release control of up to three
years, in the determination of the parole board. R.C. 2967.28(C). In the sentencing entries in
both cases, the trial court ordered Cameron “to serve as part of this sentence any term of PRC
imposed upon him by the Adult Parole Authority.”
{¶ 25} The trial court also noted, in both sentencing entries, that it notified Cameron, at
the time of his guilty plea, that post-release control was optional in each case, respectively, for
three years. The record reflects that the trial court did so advise Cameron at the plea hearing.
{¶ 26} However, as Cameron argues, and as the State concedes, the trial court did not
notify Cameron at his sentencing hearing that the parole board could impose up to three years of
post-release control.
{¶ 27} Cameron concludes his argument in support of this assignment of error by
requesting us “to reverse the sentence and remand the matter for a new sentencing hearing to
inform Mr. Cameron of the optional post-release control provisions of his sentence.” Other
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language in Cameron’s brief suggests that he may be arguing, in connection with this assignment
of error, that his sentence is completely void, and he is entitled to be re-sentenced, de novo. If
that is the remedy he is seeking, State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, which he cites, does not support it. In Fischer, the Supreme Court of Ohio held that
“when a judge fails to impose statutorily mandated postrelease control as part of a defendant’s
sentence, that part of the sentence
is void and must be set aside.” Id. at ¶ 26 (Emphasis sic).
{¶ 28} Here, the trial court did include post-release control in its sentencing entry; it
failed to refer to post-release control at the sentencing hearing. The proper remedy in such a
case is to reverse that part of the judgment entry imposing post-release control, and to remand the
cause for the proper imposition of post-release control, following notification of the possibility of
post-release control at the sentencing hearing. State v. Blessing, 2d Dist. Clark No. 2011CA56,
2013-Ohio-392, ¶ 41.
{¶ 29} Cameron’s Second Assignment of Error is sustained.
V. Conclusion
{¶ 30} Cameron’s First Assignment of Error having been overruled, and his Second
Assignment of Error having been sustained, that part of the judgment of the trial court imposing
post-release control is Reversed; the judgment of the trial court is Affirmed in all other respects;
and this cause is Remanded for the imposition of post-release control after a re-sentencing
hearing at which Cameron shall be notified of the possibility of post-release control.
. .............
[Cite as State v. Cameron, 2013-Ohio-4397.]
DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Lisa M. Fannin
Shawn P. Hooks
Hon. Douglas M. Rastatter