State v. Ellis , 2018 Ohio 5293 ( 2018 )

[Cite as State v. Ellis, 2018-Ohio-5293.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-03-043
: OPINION
- vs - 12/28/2018
:
ROY B. ELLIS, JR., :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2017-09-1539
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Michele Temmel, 6 South Second Street, Suite 305, Hamilton, Ohio 45011, for appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Roy Ellis, Jr., appeals the sentencing decision of the
Butler County Court of Common Pleas. For the reasons detailed below, we affirm.
{¶ 2} On April 16, 2017, appellant crossed the center line on Hamilton Cleves Road
and struck another vehicle head-on. Appellant was discovered at the scene and found to be
under the influence of heroin and prescription medication. The victim suffered very serious
injuries, resulting in permanent disabilities.
Butler CA2018-03-043
{¶ 3} Appellant was indicted on charges of aggravated vehicular assault in violation
of R.C. 2903.08(A)(1)(a) and (B)(1)(a), a second-degree felony, and vehicular assault in
violation of R.C. 2903.08(A)(2)(b) and (C)(2), a third-degree felony.
{¶ 4} On January 4, 2018, appellant pled guilty to count two of the indictment,
vehicular assault, and the matter was set for sentencing. Prior to the sentencing hearing,
appellant requested a continuance to undergo a mental health evaluation to be used in
mitigation. The trial court denied appellant's request. The trial court then imposed the
maximum sentence, a mandatory five-year prison term. Appellant now appeals, raising two
assignments of error for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT'S DECISION TO IMPOSE THE MAXIMUM SENTENCE
DEFIES THE PURPOSES AND PRINCIPLES OF SENTENCING.
{¶ 7} In his first assignment of error, appellant argues that his five-year prison
sentence is contrary to law because it defies the purposes and principles of sentencing. We
find no merit to appellant's argument.
{¶ 8} This court reviews felony sentences pursuant to the standard of review set forth
in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly and
convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-
Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate a sentence
only if, by clear and convincing evidence, "the record does not support the trial court's
findings under relevant statutes or that the sentence is otherwise contrary to law." State v.
Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7.
{¶ 9} A sentence is not clearly and convincingly contrary to law where the trial court
"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly imposes postrelease control, and sentences the defendant within the
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Butler CA2018-03-043
permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-
Ohio-2890, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only
when it clearly and convincingly finds that the sentence is (1) contrary to law or (2)
unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶
1.
{¶ 10} When a defendant is sentenced, a trial court is not required to consider each
sentencing factor, "but rather to exercise its discretion in determining whether the sentence
satisfies the overriding purpose of Ohio's sentencing structure." State v. Stamper, 12th Dist.
Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 11. The factors set forth in R.C. 2929.12 are
nonexclusive, and R.C. 2929.12 explicitly permits a trial court to consider any relevant factors
in imposing a sentence. Id.{¶ 11} After reviewing the record, we find the trial court did not err by sentencing
appellant to the maximum five-year prison term, as his sentence was not contrary to law and
was supported by the record. As previously noted, appellant was convicted of vehicular
assault in violation of R.C. 2903.08(A)(2)(b), a third-degree felony pursuant to R.C.
2903.08(C)(2). R.C. 2929.14(A)(3)(a) provides the "prison term shall be" 12, 18, 24, 30, 36,
42, 48, 54, or 60 months. As such, appellant's five-year prison sentence is within the
permissible sentencing range.
{¶ 12} The trial court also considered the purposes and principles of sentencing as
required by R.C. 2929.11 and 2929.12. This is evidenced by review of the transcript of the
sentencing hearing and the trial court's sentencing entry. The trial court acknowledged that
appellant may be a good person with a supportive family but noted "justice demands that
there's a price to pay for putting somebody in a wheelchair driving * * * in a state of
intoxication." In this case, appellant's actions caused the victim to suffer severe injuries that
will significantly impact the remainder of her life.
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Butler CA2018-03-043
{¶ 13} After reviewing the record, we find that the trial court's sentence was not
contrary to law and that it is fully supported by the record. Though appellant contends that
he is remorseful, has taken responsibility for his actions, and is suffering from mental health
issues, his arguments in mitigation are unpersuasive given the nature of his conduct. The
consequences of his actions will have lasting and profound impact on the victim. As such,
we find the trial court's sentencing decision was not contrary to law. Appellant's first
assignment of error is overruled.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED WHEN IT DENIED A CONTINUANCE AT THE
REQUEST OF DEFENDANT.
{¶ 16} In his second assignment of error, appellant argues the trial court erred by
denying his request for a continuance. Appellant maintains that the denial of a continuance
prior to the sentencing hearing to undergo a mental health evaluation was unreasonable and
amounted to an abuse of discretion. We disagree.
{¶ 17} The decision whether to grant or deny a continuance is within the sound
discretion of the trial court and should not be reversed on appeal absent an abuse of that
discretion. State v. Unger, 67 Ohio St.2d 65, 67 (1981). An abuse of discretion connotes
more than an error of law or judgment; it implies that the court's attitude was unreasonable,
arbitrary, or unconscionable. State v. Kash, 12th Dist. Butler No. CA2002-10-247, 2004-
Ohio-415, ¶ 31
{¶ 18} Furthermore, a trial court's decision to implement a psychological report under
R.C. 2947.06 is also discretionary. State v. Timberling, 2d Dist. Greene No. 2012-CA-35,
2013-Ohio-1377, ¶ 26; State v. Floyd, 8th Dist. Cuyahoga No. 101301, 2015-Ohio-763, ¶ 17.
Though a trial court "may appoint" psychologists or psychiatrists to make a report concerning
the defendant, it is not mandatory and is reviewed for an abuse of discretion. Id.-4-
Butler CA2018-03-043
{¶ 19} In the present case, the trial court denied appellant's request for a
continuance, which was requested at the sentencing hearing. As indicated above, a
psychological report was not mandatory, and the trial court appropriately noted that appellant
was at least partially responsible for failing to secure that report. Furthermore, the trial court
noted, on several occasions, that it was aware that appellant was suffering from mental
health problems, but nevertheless found the imposition of a five-year prison sentence to be
appropriate. It is not clear how the results from a psychological report would impact the trial
court's sentencing decision, as the court had accepted appellant's claims with respect to
mental health. As a result, we find the trial court did not err by denying appellant's request for
a continuance. Appellant's second assignment of error is overruled.
{¶ 20} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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