State v. Jarmon , 2022 Ohio 2327 ( 2022 )

[Cite as State v. Jarmon, 2022-Ohio-2327.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-08-091
: OPINION
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:
DANIEL RAY JARMON, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-01-0109
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
The Law Office of Wendy R. Calaway, Co., LPA, and Wendy R. Calaway, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Daniel Ray Jarmon, appeals his convictions on two counts of first-
degree aggravated robbery. Jarmon contends that: his convictions are not supported by
the evidence; his trial counsel was ineffective; he was compelled to wear identifiable jail
clothing during trial; and his sentence is unlawful. For the reasons discussed below, we
affirm the trial court's rulings and his convictions.
Butler CA2021-08-091
I. Factual and Procedural Background
{¶2} On December 22, 2019, around 2:30 a.m., Rosario Esparza was robbed at
gunpoint on Aster Park Drive in West Chester, Ohio. Nearby, about 20 minutes later, on
Triangle Drive, Wuilly Juarez Rivera, was also robbed at gunpoint. Following an
investigation, police arrested Jarmon for the crimes. In June 2020, he was indicted on two
counts of first-degree aggravated robbery in violation of R.C. 2911.01(A)(1), each with a
three-year firearm specification. The case was tried to a jury, which heard the following
evidence.
{¶3} Each victim testified about his robbery. Esparza testified that he was getting
into his car when a man came up behind him, put a gun to his shoulder and demanded his
wallet and money. He did not have his wallet on him. The robber started rooting around in
Esparza's pockets and pulled out his cellphone, housed in a red case. The robber then fled
with the cellphone. Esparza told police that the robber was wearing blue jeans and a black
top. He testified that a few days after the robbery officers showed him an array of six photos
and asked him if he could identify the robber. Esparza selected Jarmon's picture but told
the officers that he was only 50% certain. He testified at trial that he was now 100% certain
that Jarmon was the robber.
{¶4} As for Rivera, he testified that he was locking his car when he felt a gun on
his head. The robber told him to raise his hands and face the car. The robber rooted
through Rivera's pockets and found some cash and his wallet, containing Rivera's student
ID and soccer ID. Rivera told police that he saw the robber only from behind and did not
see his face at all. He described the man as tall with a thick build and wearing a hoodie
that might have been gray or black in color.
{¶5} The West Chester Police Department began an investigation soon after the
robberies occurred. Detective Jason Flick was assigned to the case and testified that police
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were able to locate Esparza's cellphone by identifying the cell tower that the phone was
pinging. They placed it at the Meadow Ridge Apartments on Aster Park Drive, near the
locations of both robberies. Around 8:00 p.m., on the day of the robberies, Detective Flick
parked his unmarked cruiser near the apartments and settled in to watch. He testified that,
while he watched, other officers tracked Esparza's phone as it pinged every 30 minutes at
various locations around Cincinnati and they kept him updated on the phone's location. At
12:19 a.m. (on December 23), they told Detective Flick that the phone had just pinged near
the IKEA store a half-mile away. Flick testified that three minutes later he watched a man,
who he later learned was Jarmon, enter Apartment Nine. At 12:49 a.m., Detective Flick
was told that Esparza's phone had just pinged at Meadow Ridge Apartments.
{¶6} Detective David Mize testified that he obtained a warrant to search Apartment
Nine based on the ping information and on what Detective Flick had observed. Detective
Kevin Burger led the search, which police executed around 6:00 a.m., on December 24.
Jarmon and his girlfriend were the only people in the apartment. Detective Burger testified
that in Jarmon's bedroom police found an expired Ohio driver license belonging to Jarmon
and, nearby, an R.G. .38 special handgun. In the nightstand, they found Esparza's red
cellphone case. Police also found a black hoodie on the bed. Detective Burger testified
that in the kitchen trash they found Rivera's wallet as well as his student ID and soccer ID.Finally, hidden in the closet of an unoccupied bedroom, police found Esparza's cell phone.
{¶7} Detective Flick testified that police also obtained a search warrant for
Jarmon's cellphone records. The information in the records showed that the phone had
been in the area when the robberies occurred. The phone had been used to place a call
near the Meadow Ridge Apartments on December 22 at 1:43 a.m., less than an hour before
Esparza was robbed.
{¶8} The handgun found in Jarmon's bedroom was sent to the Ohio Bureau of
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Criminal Investigation (BCI) for DNA testing. Sabrina Selbe, a forensic scientist at BCI,
performed the DNA tests. She testified that, although the DNA profile was mixed, Jarmon
was the major contributor to the profile on the gun's grip and the front-sight area.
{¶9} Before trial, defense counsel filed a motion to suppress Esparza's photo-array
identification. Counsel argued that the photo lineup was unnecessarily suggestive and
created a likelihood of misidentification and argued that the state failed to show that the
lineup procedures police used satisfied either the statutory requirements in R.C. 2933.83 or
constitutional requirements. The trial court disagreed and overruled the suppression
motion.
{¶10} At the close of the evidence, the jury found Jarmon guilty on both counts of
first-degree aggravated robbery and both three-year firearm specifications. The trial court
sentenced Jarmon on the first count of aggravated robbery, under the Reagan Tokes Law,
to an indefinite prison term of 11 to 16.5 years and sentenced him to an 11-year term on
the second count. The court sentenced him to a pair of 3-year prison terms for the firearm
specifications. The trial court ordered consecutive service of all the terms, resulting in an
aggregate sentence of 28 to 33.5 years in prison.
{¶11} Jarmon appealed.
II. Analysis
{¶12} Jarmon presents four assignments of error. The first challenges the evidence
supporting his convictions, the second asserts a claim of ineffective assistance of trial
counsel, the third claims that he was compelled to wear identifiable jail clothing during trial,
and the fourth challenges his sentence.
A. Evidentiary Challenges
{¶13} The first assignment of error alleges:
{¶14} THE TRIAL COURT ERRED IN CONVICTING APPELLANT BASED ON
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INSUFFICIENT EVIDENCE AND IN CONVICTING HIM AGAINST THE MANIFEST
WEIGHT OF EVIDENCE IN VIOLATION OF THE FOURTEENTH AMENDMENT.
{¶15} Jarmon contends that the evidence fails to prove that it was he who committed
the robberies. He argues that there is no direct evidence placing him at the scene of either
robbery or showing that it was he who possessed the stolen items found in the apartment.
{¶16} "An appellate court's task when reviewing whether sufficient evidence
supports a defendant's conviction is well-settled and familiar." State v. Jones, 166 Ohio
St.3d 85, 2021-Ohio-3311, ¶ 16. The reviewing court asks whether "after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt." State v.
Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89,
102, fn. 4 (1997). "By contrast, to evaluate a manifest-weight claim, a court must review
the entire record, weigh the evidence and all reasonable inferences, and consider the
credibility of witnesses. The court must decide whether '"the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed."'"
(Citation omitted.) State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶ 208, quoting
State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 328, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
{¶17} Jarmon is correct that no direct evidence was presented that he was the one
who committed the robberies. The Ohio State Supreme Court has held that "[c]ircumstantial
evidence and direct evidence inherently possess the same probative value." Jenks at
paragraph one of the syllabus. Here, the circumstantial evidence presented creates a
strong link between Jarmon and the robberies. The stolen cellphone and its case, and the
stolen wallet and IDs were found in his apartment. A handgun was used to commit each of
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the robberies and a handgun with Jarmon's DNA on the grip was found in his bedroom.
There is no evidence that anyone else possessed either the stolen items or the handgun.
All in all, the evidence persuasively and overwhelmingly shows that it was Jarmon who
committed the robberies. This is not the "'exceptional case in which the evidence weighs
heavily against the conviction,'" State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting
Martin at 175. Given the strength of the evidence presented, we conclude that in finding
Jarmon guilty the jury neither lost its way nor created a miscarriage of justice.
{¶18} "[A] determination that a conviction is supported by the weight of the evidence
will also be dispositive of the issue of sufficiency." (Citations omitted.) State v. Braxton,
10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15. Because "a finding that a
conviction is supported by the manifest weight of the evidence necessarily includes a finding
of sufficiency." (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881,
2011-Ohio-3161, ¶ 11. As we have concluded that Jarmon's convictions are not against
the manifest weight of the evidence, we also conclude that his convictions are supported
by sufficient evidence.
{¶19} The first assignment of error is overruled.
B. Ineffective Assistance of Counsel
{¶20} The second assignment of error alleges:
{¶21} APPELLANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEEN
AMENDMENT AND RELATED OHIO CONSTITUTIONAL RIGHTS.
{¶22} Jarmon contends that his trial counsel's performance was prejudicially
deficient with respect to the motion to suppress, at trial, and at sentencing.
{¶23} "Reversal of a conviction for ineffective assistance of counsel requires that
the defendant show that counsel's performance was deficient and that the deficient
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performance prejudiced the defendant so as to deprive him of a fair trial." State v. Grate,
164 Ohio St.3d 9, 2020-Ohio-5584, ¶ 49, citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984), and State v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs
two and three of the syllabus. "[J]udicial scrutiny of counsel's performance must be highly
deferential." State v. Bird, 81 Ohio St.3d 582, 585 (1998), citing Strickland at 689. To
establish prejudice, the defendant must "demonstrate 'a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.'"
State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 140, quoting Strickland at 688.
{¶24} Jarmon first contends that trial counsel was ineffective in arguing for
suppression of Esparza's photo identification. In the motion to suppress, counsel argued
that the photo lineup was unnecessarily suggestive and created a likelihood of
misidentification and argued that the state failed to show that the procedures used satisfied
either the statutory requirements for photo lineups in R.C. 2933.83 or constitutional
requirements. Jarmon states that counsel also should have argued that the photo lineup
was unnecessarily suggestive and created a likelihood of misidentification both because
Esparza was shown two different photo lineups and Jarmon's photo was the only one that
appeared in both and because police did not use a folder system, which Jarmon asserts is
required by R.C. 2933.83.
{¶25} We find no merit in either potential argument. We see nothing in the record
that suggests Esparza was shown two photo lineups. Esparza testified about only one
lineup, and only one lineup was submitted into evidence (State's Exhibit 40). As for a folder
system, this court has held that R.C. 2933.83 does not require one: "After a thorough review
of R.C. 2933.83, we can find no indication that the folder system or a substantially similar
system must be utilized by law enforcement agencies or criminal justice entities in
performing a photo lineup." (Emphasis sic.) State v. Matthews, 12th Dist. Butler No.
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CA2012-09-175, 2013-Ohio-3482, ¶ 26, citing State v. Henry, 6th Dist. Lucas No. L-11-
1157, 2012-Ohio-5552, ¶ 41 (stating that "[t]he statute does not require the use of the folder
system"). Therefore, Jarmon has failed to establish deficient performance in connection
with the suppression of Esparza's photo identification.
{¶26} Jarmon next contends that trial counsel's performance was deficient during
the trial. He first argues that counsel should have objected to Detective Flick's testimony
about the ping information from Esparza's and Jarmon's cellphones. Jarmon claims that
the testimony was inadmissible because: (1) Flick lacked personal knowledge; (2) the
testimony was hearsay; and (3) it violated the Confrontation Clause. "A witness is required
to testify from first-hand knowledge which has been acquired by perceiving a fact[.]" 1980
Staff Note, Evid.R. 602. For this reason, Evid.R. 602 excludes testimony from a witness
who has no "personal knowledge of the matter." Evid. R. 802 excludes hearsay testimony.
"Hearsay" is defined as "a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R.
801(C). Finally, the Confrontation Clause guarantees a defendant's right to confront
witnesses against him, which means that "[a] witness's testimony against a defendant is * *
* inadmissible unless the witness appears at trial or, if the witness is unavailable, the
defendant had a prior opportunity for cross-examination." Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527 (2009).
{¶27} Detective Flick testified that before he began his investigation the police had
already used the ping information from Esparza's cellphone to locate it in the area of the
apartment complex, so he began his investigation by conducting surveillance there. Flick
further testified that while he watched the apartment complex another officer used the
cellphone's ping information to track the phone and continuously updated him as to its
location. This testimony was not offered to prove the location of Esparza's cellphone.
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Instead, it was used to explain why Detective Flick was watching the apartment complex.
It was also a reason why police obtained a search warrant for Jarmon's apartment.
Ultimately, it was not the location of Esparza's cellphone that connected Jarmon to the
robberies, but the items discovered inside his apartment. This ping testimony had little to
do with whether Jarmon committed the robberies. While the ping information helped identify
Jarmon as a possible suspect, the stolen items found in his apartment made him the leading
primary suspect.
{¶28} The ping testimony regarding Jarmon's cellphone, though, is another matter.
Detective Flick's testimony about Jarmon's cellphone records, obtained with a second
search warrant, was offered to connect Jarmon to the robberies by placing him near their
locations around the time that they occurred. The state implicitly concedes that this
testimony was inadmissible hearsay, as it was offered to prove the location of Jarmon's
cellphone. Nevertheless, we agree with the state that even absent this testimony, the
evidence linking Jarmon to the crimes was overwhelming. Even if this testimony had been
excluded, the outcome of the trial would not have been different.
{¶29} Jarmon also argues that trial counsel failed to meaningfully cross-examine the
forensic scientist about the DNA test results. The scientist testified that the DNA profile
found on the handgun recovered from Jarmon's bedroom was mixed but that Jarmon's
profile was dominant. Jarmon claims that mixed DNA profiles are complicated to interpret
and subject to mistakes involving subjectivity and bias, and he alleges that trial counsel
should have asked the forensic scientist about the editing, application, and error rates
prevalent in this kind of DNA analysis.
{¶30} The Ohio Supreme Court has said that to prevail on a claim like Jarmon
makes here, "a defendant must identify the questions that he believes his counsel should
have asked and must provide some sense of the information that might have been elicited."
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(Citation omitted.) State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶ 155. Otherwise,
the reviewing court "will presume that the choice to forgo cross-examination 'constituted a
legitimate tactical decision.'" (Citations omitted.) Id., quoting State v. Frazier, 115 Ohio
St.3d 139, 2007-Ohio-5048, ¶ 220. Jarmon does not indicate what information his
questions would have elicited, and thus whether they would have been effective is merely
speculation on his part. Jarmon fails to explain how further cross-examination of the
forensic scientist would have made an appreciable difference in this case. See State v.
Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, ¶ 90 (holding that counsel made a legitimate
tactical decision to forgo additional cross-examination when the defendant "fail[ed] to
explain how further cross-examination of [the witness] would have made a difference in his
case").
{¶31} Lastly, Jarmon contends that trial counsel's performance was deficient at the
sentencing hearing. Jarmon first claims that counsel was not prepared for sentencing and
knew nothing about mitigation factors that might have reduced his sentence.
{¶32} At sentencing, trial counsel mentioned Jarmon's criminal record, that he
maintained his innocence, and had possible mental-health issues:
* * * I know that Mr. Jarmon, you know, when we first met and
through the course of this matter has steadfastly maintained his
innocence with myself. It's one of the reasons we had this
matter set for trial and took this matter to trial.
* * * As evidenced by some of the pre-sentence investigation as
well as look at his—review of his discovery, I know Mr. Jarmon
had one contact with the Court as a juvenile, at least that I can
recall. And I think most of his contacts with the Court were
primarily traffic and/or misdemeanor related.
I don't know that—remember specifically if Mr. Jarmon had any
prior felony contacts with the Court. * * * I know there w[ere]
some remarks in the pre-sentence investigation about having
some anxiety and depression, that he was using illicit
substances to help self-medicate that. I don't know if that had
any play or implication in this related matter or not.
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{¶33} After counsel spoke, several members of Jarmon's family addressed the
court. They talked about Jarmon's childhood trauma, history of mental health problems,
and his problems with learning and addiction. Jarmon contends that trial counsel should
have investigated these issues, presented documentation, consulted with an expert on the
effects of childhood trauma, and called additional witnesses.
{¶34} "In general, the extent to which counsel presents mitigation evidence at a
sentencing hearing is a matter of trial strategy. '[E]ven debatable trial tactics and strategies
do not establish ineffective assistance of counsel.'" (Citations omitted.) State v. Brewer,
12th Dist. Brown No. CA2020-11-008, 2021-Ohio-2289, ¶ 14, quoting State v. Cunningham,
12th Dist. Butler No. CA2017-03-034, 2018-Ohio-912, ¶ 25. The record here does not show
that trial counsel failed to investigate the possibility of presenting additional mitigating
evidence. We see little reason to conclude that counsel should have consulted with an
expert concerning Jarmon's childhood trauma, mental health, learning disabilities, or history
of addiction. In addition, it is entirely possible that it was counsel who arranged for Jarmon's
family members to address the trial court—an arguably effective way of presenting the
mitigating factors that Jarmon cites. Nevertheless, Jarmon has not demonstrated a
reasonable probability that his sentence would have been different if trial counsel had
investigated further and presented expert witnesses on these mitigating issues.
{¶35} Jarmon also claims that trial counsel should have objected to the
constitutionality of his indefinite sentence under the Reagan Tokes Law to preserve it for
review. We have consistently held that the Reagan Tokes Law is constitutional. See State
v. Rogers, 12th Dist. Butler No. CA2021-02-010, 2021-Ohio-3282, ¶ 11, 20 (stating that the
Reagan Tokes Law does not violate due process, the separation-of-powers doctrine, or the
right to trial by jury). Despite some disagreement among Ohio appellate districts on this
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issue, the Ohio Supreme Court has not resolved it. Until that court does so, in this district
an indefinite sentence imposed under the Reagan Tokes Law is constitutional. We see no
prejudice from counsel's not objecting to the constitutionality of Jarmon's sentence.
{¶36} Jarmon has failed to establish a claim for ineffective assistance of trial
counsel. The second assignment of error is overruled.
C. Appearing in Jail Clothing at Trial
{¶37} The third assignment of error alleges:
{¶38} MR. JARMON WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL AND DUE
PROCESS OF LAW BY BEING FORCED TO APPEAR BEFORE THE JURY IN JAIL
CLOTHING.
{¶39} Jarmon contends that he was compelled to appear in jail clothing at trial and
that he did not knowingly and intelligently waive the right not to appear in jail clothing.
{¶40} The United States Supreme Court held in Estelle v. Williams, 425 U.S. 501,
504, 96 S.Ct. 1691 (1976), that a defendant's right to due process may be violated if the
defendant is compelled to stand trial before a jury while dressed in identifiable jail clothing.
The Court further held that "the failure to make an objection to the court as to being tried in
such clothes, for whatever reason, is sufficient to negate the presence of compulsion
necessary to establish a constitutional violation." Id. at 512-513.
{¶41} As an initial matter, the record belies Jarmon's claim that he was wearing
identifiable jail clothing. Based on the trial transcript, it appears that Jarmon was wearing
gray sweat clothes, as this is what several witnesses described him as wearing. Even if the
gray sweat clothes could be said to suggest jail clothing, Jarmon failed to demonstrate that
this is what he was compelled to wear. At one point, the trial court asked defense counsel
if Jarmon was going to have "different clothing," and counsel replied that he was unsure,
saying that he did not know "where things stood." Neither this nor anything else in the
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record suggests that Jarmon was forced to wear the clothing that he did. And Jarmon never
objected to wearing the clothing in front of the jury.
{¶42} Jarmon fails to convince us that he was compelled to appear in identifiable
prison clothing at trial. The third assignment of error is overruled.
D. Sentence
{¶43} The fourth assignment of error alleges:
{¶44} THE SENTENCE IMPOSED WAS CONTRARY TO LAW.
{¶45} Jarmon contends that his sentence is contrary to law for several reasons.
First, he argues that his indefinite sentence is unconstitutional because the Reagan Tokes
Law violates the separation-of-powers doctrine and procedural due process. Jarmon failed
to raise the constitutionality of Reagan Tokes in the trial court. Therefore, he has waived it.
Even if the issue were properly before us, as we noted earlier, we have consistently held
that the Reagan Tokes Law does not violate the separation-of-powers doctrine or due
process. See State v. Rogers, 2021-Ohio-3282, at ¶ 11.
{¶46} Jarmon next argues that the trial court penalized him for pleading not guilty
rather than accepting the state's plea offer—in other words, that the trial court punished him
for exercising his right to a jury trial. "It is axiomatic that 'a defendant is guaranteed the right
to a trial and should never be punished for exercising that right.'" State v. Noble, 12th Dist.
Warren No. CA2014-06-080, 2015-Ohio-652, ¶ 11, quoting State v. O'Dell, 45 Ohio St.3d
140 (1989), at paragraph two of the syllabus. "When an appearance of an augmented
sentence is created, even when a defendant may not in fact have been punished for electing
to go to trial, a defendant's sentence must be vacated." (Citation omitted.) Id. at ¶ 12. But:
"vacating a defendant's sentence is not necessary if the court unequivocally dispels any
such inference by clearly stating the defendant's decision to go to trial was not considered
in imposing the sentence." (Citations omitted.) Id.
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{¶47} Jarmon asserts that the trial court's statements at sentencing, at the very
least, create an appearance that the court punished him for taking his case to trial. At the
sentencing hearing, the trial court referred to Jarmon's refusal to consider a plea deal
despite the prospect of a lengthy sentence but said that it was not punishing him for going
to trial:
The Defendant did try the case, as Mr. Bissell's already alluded
to. After numerous discussions the Court had with Mr. Jarmon
about the potential for a very large sentence in this matter,
giving him the opportunity to consider a plea arrangement as
Mr. Bissell's already described. Mr. Jarmon, from the Court's
point of view and Mr. Bissell's point of view, continued to play
games during the entire time including during the course of the
trial. He never did indicate any real willingness to enter a guilty
plea in this matter in spite of the fact that on numerous times it
was discussed.
Nevertheless, the Court is not going to be punishing the
Defendant for the fact that he took this case to trial. This Court
does not impose jury taxes, if you will. On the other hand, the
Court finds that as Mr. Bissell's already alluded to, that this is
the worst of the worst. The Defendant robbed people at
gunpoint on two separate occasions on the same date. And
truly victimized these people. The Court certainly has some
thoughts about the people that he victimized, but be that as it
may, the evidence bore out that he did rob these people at
gunpoint.
(Emphasis added.) While it would have been better had the trial court not said anything
about rejecting the state's plea deal, the court did expressly say that it was not punishing
Jarmon for taking the case to trial. By doing so, the court "unequivocally dispel[led]" any
inference that it was punishing Jarmon for electing trial.
{¶48} Lastly, Jarmon argues that the maximum and consecutive sentences imposed
by the trial court are not supported by the record. However, he does not present much of
an argument as to why he thinks this. He claims only that the trial court's finding that this
case represents the "worst of the worst" is not supported by the facts.
{¶49} R.C. 2953.08(G) defines the standard of appellate review for felony
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sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 21. An appellate
court may modify or vacate a sentence if it clearly and convincingly finds either that "the
record does not support the sentencing court's findings under" certain specified statutory
provisions or that "the sentence is otherwise contrary to law." R.C. 2953.08(G)(2)(a) and
(b). Generally, "a sentence is not contrary to law when the trial court imposes a sentence
within the statutory range, after expressly stating that it had considered the purposes and
principles of sentencing set forth in R.C. 2929.11, as well as the factors in R.C. 2929.12."
State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575, and 25576, 2013-Ohio-5759, ¶
32, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 18. An appellate court is
not permitted "to independently weigh the evidence in the record and substitute its judgment
for that of the trial court concerning the sentence that best reflects compliance with R.C.
2929.11 and 2929.12." State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, ¶ 42. In other
words, "R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding
inquiry[.]" Id.{¶50} Jarmon's 11-year minimum prison terms for each of his aggravated robbery
offenses are the maximum terms for a first-degree felony—but the terms are within the
statutory range. See R.C. 2929.14(A)(1)(a). Also, the trial court here stated that it had
considered the two sentencing statutes, R.C. 2929.11 and 2929.12. Therefore, we need
inquire no further on the individual sentences that the trial court imposed.
{¶51} While concurrent sentences of multiple offenses is presumed, R.C.
2929.14(C)(4) permits a court to order consecutive service if it makes three findings: (1)
"that the consecutive service is necessary to protect the public from future crime or to punish
the offender," (2) "that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public," and (3) that
one of the following applies:
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(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
The trial court here made the requisite statutory findings, finding that Jarmon's history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by him.
{¶52} A defendant may challenge a trial court's consecutive-sentence findings.
"[W]here a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an
appellate court may not reverse the trial court's imposition of consecutive sentences unless
it first clearly and convincingly finds that the record does not support the trial court's
findings." State v. Withrow, 2d Dist. 2d Dist. Clark No. 2015-CA-24, 2016-Ohio-2884, ¶ 38.
See also State v. Gwynn, 158 Ohio St.3d 279, 2019-Ohio-4761, ¶ 16. "[T]he consecutive
nature of the trial court's sentencing should stand unless the record overwhelmingly
supports a contrary result." Id. at ¶ 39.
{¶53} Jarmon points out that neither Esparza nor Rivera were physically injured in
any way and that neither victim offered any testimony about any other harm. The
encounters were brief, says Jarmon, and the items taken were not that valuable. He says
that far more serious robberies occur that involve serious permanent physical harm and
death, the loss of items of much greater value, and burglary and other acts of violence.
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Butler CA2021-08-091
{¶54} Jarmon robbed two people at gunpoint in short order. While no one was
physically hurt, the potential for much greater harm was high. Jarmon's presentence-
investigative report (PSI) shows an extensive criminal history. His juvenile record includes
numerous charges, including charges for burglary and breaking and entering. His adult
record lists 20 arrests from 2017 to 2020 and charges for offenses including drug
possession, driver licensing violations, assault, and weapons violations. Jarmon also has
two probation violations. The PSI also shows that after Jarmon had been charged in the
present case, he was subsequently charged in another case with aggravated possession
of drugs, domestic violence, and aggravated burglary. We cannot clearly and convincingly
find that the record does not support the trial court's consecutive-sentence findings.
{¶55} Jarmon's sentence is not contrary to law. The fourth assignment of error is
overruled.
III. Conclusion
{¶56} We have overruled each of the four assignments of error presented. The trial
court's judgment is therefore affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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