State v. Jones , 2019 Ohio 1772 ( 2019 )

[Cite as State v. Jones, 2019-Ohio-1772.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107429
v. :
WARREN JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 9, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-624743-A and CR-18-627179-B
Appearances:
Mark A. Stanton, Public Defender, and John T. Martin,
Assistant Public Defender, for appellant.
Michael C. O’Malley, Prosecuting Attorney, and Shannon
M. Raley, and Lindsay Raskin, Assistant Prosecuting
Attorneys, for appellee.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, Warren Jones (“appellant”), appeals from his
sentence following a guilty plea. He raises the following assignment of error:
The trial court illegally sentenced appellant to prison in violation of
R.C. 2929.13.
After careful review of the record and relevant case law, we affirm
appellant’s sentence.
I. Procedural and Factual History
On January 30, 2018, appellant was named in a two-count indictment
in Cuyahoga C.P. No. CR-18-624743-A, charging him with receiving stolen property
in violation of R.C. 2913.51(A); and obstructing official business in violation of R.C.
2921.31(A). Appellant was released on personal bond. However, on February 14,
2018, appellant failed to appear in court for his arraignment hearing. As a result,
his bond was forfeited and a capias was issued. Appellant was finally taken into
custody on March 23, 2018.
On April 11, 2018, appellant was named in an eight-count indictment
in Cuyahoga C.P. No. CR-18-627179-B, charging him with six counts of theft in
violation of R.C. 2913.02(A)(1); and single counts of grand theft in violation of R.C.
2913.02(A)(1); and petty theft in violation of R.C. 2913.02(A)(1). The indictment
stemmed from an incident that occurred on March 21, 2018.
On May 21, 2018, appellant pleaded guilty in Cuyahoga C.P. No. CR-
18-624743-A to receiving stolen property in violation of R.C. 2913.51, a felony of the
fourth degree. On the same day, appellant pleaded guilty in Cuyahoga C.P. No.
CR-18-627179-B to grand theft in violation of R.C. 2913.03, a felony of the fourth
degree; and theft in violation of R.C. 2913.02, a felony of the fifth degree. The
remaining counts in each case were nolled.
Following a Crim.R. 11 colloquy, the trial court accepted appellant’s
guilty pleas in each case and referred him to the county probation department for a
presentence investigation report.
On June 13, 2018, the trial court held a consolidated sentencing
hearing. In Cuyahoga C.P. No. CR-18-624743-A, appellant was sentenced to 12
months in prison on the receiving stolen property offense. In Cuyahoga C.P. No.
CR-18-627179-B, appellant was sentenced to 17 months in prison on the grand theft
offense, to run concurrently with an 11-month prison term on the theft offense. The
trial court further ordered the prison terms imposed in each case to run
consecutively, for an aggregate prison term of 29 months.
Appellant now appeals from his sentence.
II. Law and Analysis
In his sole assignment of error, appellant argues the trial court erred
when it imposed a term of imprisonment rather than community-control sanctions.
In reviewing felony sentences, appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2), an appellate
court may increase, reduce, or modify a sentence, or it may vacate the sentence and
remand for resentencing, only if it clearly and convincingly finds either (1) the record
does not support certain specified findings or (2) the sentence imposed is contrary
to law. An appellate court does not review a trial court’s sentence for an abuse of
discretion. Marcum at ¶ 9-10.
As an initial matter, we recognize that ordinarily R.C. 2953.08(A)(2)
bars appellate review of a prison term imposed upon a fourth- or fifth-degree felony
pursuant to R.C. 2929.13(B) absent a motion for leave.1 However, under the
circumstances presented in this case, we find R.C. 2953.08(A)(2) to be inapplicable.
As this court has stated, the “statute only operates to block review of instances where
the trial court ‘specifies’ a finding under R.C. 2929.13(B)(1)(b).” State v. Torres, 8th
Dist. Cuyahoga No. 104905, 2017-Ohio-938, ¶ 8, citing State v. Lopez, 2015-Ohio-
5269, 43 N.E.3d 492 (8th Dist.); State v. Freeman, 8th Dist. Cuyahoga No. 103677,
2016-Ohio-3178. In this case, the trial court did not specify a finding under R.C.
2929.13(B)(1)(b). Thus, we find it necessary to address the merits of appellant’s
assigned error to determine whether the record supports the application of R.C.
2929.13(B)(1)(b) in this matter.
On appeal, appellant argues the trial court erred by sentencing him to
a term of incarceration because “community control sanctions were the only
available sentence” pursuant to the criteria set forth under R.C. 2929.13(B)(1). For
the reasons the follow, we find no merit to appellant’s position.
1 R.C. 2953.08(A)(2) provides, in relevant part:
If the court specifies that it found one or more of the factors in division
(B)(1)(b) of section 2929.13 of the Revised Code to apply relative to the
defendant, the defendant is not entitled under this division to appeal as a
matter of right the sentence imposed upon the offender.
R.C. 2929.13(B)(1)(a), which creates a presumption in favor of
community-control sanctions for nonviolent fourth- or fifth-degree felonies meeting
certain criteria, states:
Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that
is not an offense of violence or that is a qualifying assault offense, the
court shall sentence the offender to a community control sanction of at
least one year’s duration if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty
to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, the
department, within the forty-five-day period specified in that division,
provided the court with the names of, contact information for, and
program details of one or more community control sanctions of at least
one year’s duration that are available for persons sentenced by the
court.
(iv) The offender previously has not been convicted of or pleaded guilty
to a misdemeanor offense of violence that the offender committed
within two years prior to the offense for which sentence is being
imposed.
R.C. 2929.13(B)(1)(a)(i)-(iv).
The parties do not dispute that the above factors are satisfied in this
case. However, the applicability of R.C. 2929.13(B)(1)(a) is subject to the exceptions
listed in R.C. 2929.13(B)(1)(b), under which a trial court regains the discretion to
impose a prison term on a defendant who otherwise would be subject to mandatory
community control. Relevant to this case, R.C. 2929.13(B)(1)(b), states:
The court has discretion to impose a prison term upon an offender who
is convicted of or pleads guilty to a felony of the fourth or fifth degree
that is not an offense of violence or that is a qualifying assault offense
if any of the following apply:
***
(iii) The offender violated a term of the conditions of bond as set by the
court.
***
(xi) The offender committed the offense while under a community
control sanction, while on probation, or while released from custody on
a bond or personal recognizance.
After careful review of the record, we find the imposition of a prison
term instead of a community-control sanction for appellant’s fourth- and fifth-
degree felony convictions was proper pursuant to R.C. 2929.13(B)(1)(b)(iii) and
2929.13(B)(1)(b)(xi).
We note that “R.C. 2929.13(B)(1)(b) does not require a trial court to
enter a specific finding to the applicability of the section.” State v. Dudley, 5th Dist.
Ashland No. 14-COA-015, 2014-Ohio-5419, ¶ 13; State v. Henslee, 5th Dist.
Muskingum No. CT2017-0009, 2017-Ohio-5786, ¶ 15; State v. Hamilton, 1st Dist.
Hamilton No. C-140290, 2015-Ohio-334 ¶ 8. As previously stated, the trial court
did not make any specific findings under R.C. 2929.13(B)(1)(b) in this case.
However, the record establishes that appellant violated a condition of his bond in
Case No. CR-18-624743-A when he failed to appear for his arraignment hearing on
February 14, 2018. See R.C. 2929.13(B)(1)(b)(iii). In addition, the record
establishes that in March 2018, appellant committed the offenses in Case No. CR-18-
627179-B while he was released from custody on bond in Case No. CR-18-624743-A.
See R.C. 2929.13(B)(1)(b)(xi).
Thus, viewing the circumstances of each case individually, we find at
least one exception delineated under R.C. 2929.13(B)(1)(b) applies in each case.
Because the application of R.C. 2929.13(B)(1)(b)(iii) and 2929.13(B)(1)(b)(xi) is
supported by the record, the trial court had discretion to impose a term of
imprisonment rather than community control sanctions. Appellant does not
challenge the consecutive nature of his prison sentences, and we find no basis to
conclude the trial court’s exercise of discretion was otherwise contrary to law or
clearly and convincingly unsupported by the record.
Appellant’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR