Message
×
loading..

State v. Hayes ( 2019 )


Menu:
  • [Cite as State v. Hayes, 2019-Ohio-1609.]
    COURT OF APPEALS
    KNOX COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                     JUDGES:
    Hon. W. Scott Gwin, P. J.
    Plaintiff-Appellee                        Hon. John W. Wise, J.
    Hon. Craig R. Baldwin, J.
    -vs-
    Case No. 18 CA 11
    ROSE HAYES
    Defendant-Appellant                       OPINION
    CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
    Pleas, Case No. 17 CR 11 0274
    JUDGMENT:                                      Affirmed
    DATE OF JUDGMENT ENTRY:                        April 29, 2019
    APPEARANCES:
    For Plaintiff-Appellee                         For Defendant-Appellant
    CHARLES T. McCONVILLE                          KEVIN J. GALL
    PROSECUTING ATTORNEY                           33 West Main Street
    117 East High Street, Suite 234                Suite 109
    Mount Vernon, Ohio 43050                       Newark, Ohio 43055
    Knox County, Case No. 18 CA 11                                                           2
    Wise, J.
    {¶1}    Defendant-Appellant Rose M. Hayes appeals her sentence entered in the
    Knox County Common Pleas Court following a guilty plea to one count of Aggravated
    Possession of Drugs and one count of Possessing Drug Abuse Instruments.
    {¶2}    Appellee is the State of Ohio.
    STATEMENT OF THE FACTS AND CASE
    {¶3}    The relevant procedural facts leading to this appeal are as follows.
    {¶4}    On November 7, 2017, the Knox County Grand Jury indicted Rose Hayes
    on one count of Aggravated Possession of Drugs, a felony of the fifth degree, in violation
    of R.C. §2925.11(A), and one count of Possessing Drug Abuse Instruments, a
    misdemeanor of the second degree, in violation of R.C. §2925.12(A).
    {¶5}    The Indictment alleged that the conduct occurred October 4, 2017. At the
    time she committed the offense in this case, Appellant was under indictment in Knox
    County Court of Common Pleas Case 17CR08-0172 for Permitting Drug Abuse, a felony
    of the fifth degree. (Docket, Case No. 17CR08-0172).
    {¶6}    On April 27, 2018, Appellant entered a plea of guilty to both counts of the
    Indictment in 17CR11-0274. Having previously been found guilty following a jury trial in
    Case No. 17CR08~0172, the Knox County Court of Common Pleas sentenced her on
    both cases.
    {¶7}    At the sentencing hearing, the trial court sentenced Appellant to eleven (11)
    months imprisonment in Case No. 17CR08-0172. (Sent. Entry, Apr. 27, 2018). In Case
    No.17CR11-0274, the trial court sentenced Appellant to nine (9) months imprisonment on
    Count One; and two (2) months of imprisonment on Count Two. The sentences on the
    Knox County, Case No. 18 CA 11                                                          3
    two counts were ordered to be served concurrently to each other, and consecutively to
    the sentence in Case No. 17CR08-0172. (Sent. Entry, Apr. 27, 2018).
    {¶8}   During the sentencing hearing, the trial court stated that Appellant had
    allowed a known drug dealer to move into her house and had created a risk to the
    neighborhood and to law enforcement in apprehending him. (Sent. T. at 15). The trial
    court also noted that Appellant committed the offense in Case No. 17CR11-0274 while
    awaiting trial on Case No. 17CR08-0172. (Sent. T. at 17). Additionally, the court noted
    that Appellant was not amenable to community control and provided reasons for such
    finding. (Sent. T. at 16:1-18). Appellant had been screened for treatment at the West
    Central Community Based Correctional Facility, but was combative with the screener and
    stated that she did not need the help the CBCF could provide. 
    Id. {¶9} In
    imposing a prison sentence the trial court explained "I just don't know
    what else to do with you." 
    Id. The court
    also stated that law enforcement had to put extra
    effort into abating the nuisance that was created by the drug dealing at Appellant's
    residence. (Sent T. 18:1-4). This information was before the court from Det. DeChant's
    testimony in Case No. 17CR08-0172. (Trial T. at 84-85). Det. DeChant had testified that
    he was the primary affiant in a civil nuisance case involving 807 N. Mulberry Street, that
    he was familiar with the undercover drug buys conducted there, and that the house had
    been boarded up. (Id).
    {¶10} Appellant now appeals, raising the following Assignment of Error:
    ASSIGNMENT OF ERROR
    {¶11} “I. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A
    PRISON SENTENCE IN VIOLATION OF THE SENTENCING STATUTES.”
    Knox County, Case No. 18 CA 11                                                         4
    I.
    {¶12} In her sole Assignment of Error, Appellant argues the trial court erred in
    imposing a prison sentence in this matter. We disagree.
    {¶13} R.C. §2953.08(G)(2), “Appeals based on felony sentencing guidelines”
    provides:
    The court hearing an appeal under division (A), (B), or (C) of this
    section shall review the record, including the findings underlying the
    sentence * * *. The appellate court may increase, reduce, or otherwise
    modify a sentence that is appealed under this section or may vacate the
    sentence and remand the matter to the sentencing court for resentencing.
    The appellate court's standard for review is not whether the sentencing
    court abused its discretion. The appellate court may take any action
    authorized by this division if it clearly and convincingly finds either of the
    following:
    (a) That the record does not support the sentencing court's findings
    under division (B) or (D) of section 2929.13, division 2929.13(B)(2)(e) or
    (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
    Code, whichever, if any, is relevant;
    (b) That the sentence is otherwise contrary to law. R.C.
    2953.08(G)(2).
    {¶14} “[A]ppellate courts must adhere to the plain language of R.C.
    2953.08(G)(2).” State v. Marcum, 
    146 Ohio St. 3d 516
    , 2016–Ohio–1002, 
    59 N.E.3d 1231
    ,
    ¶7. An appellate court may only modify or vacate a sentence if it finds by clear and
    Knox County, Case No. 18 CA 11                                                            5
    convincing evidence that the record does not support the sentencing court's decision. 
    Id. at ¶23.
    Clear and convincing evidence is that “ ‘which will produce in the mind of the trier
    of facts a firm belief or conviction as to the facts sought to be established.’ ” State v.
    Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7 quoting, 
    Marcum, supra
    ,
    quoting Cross v. Ledford, 
    161 Ohio St. 469
    , 
    120 N.E.2d 118
    (1954), paragraph three of
    the syllabus. Clear and convincing evidence is that measure or degree of proof which is
    more than a mere “preponderance of the evidence,” but does not require the certainty of
    “beyond a reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.
    {¶15} R.C. §2929.14(C)(4) governs consecutive sentences and states the
    following:
    (4) If multiple prison terms are imposed on an offender for convictions
    of multiple offenses, the court may require the offender to serve the prison
    terms consecutively if the court finds that the consecutive service is
    necessary to protect the public from future crime or to punish the offender
    and 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 if the court also finds any of the following:
    (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
    Knox County, Case No. 18 CA 11                                                           6
    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.
    {¶16} “In order to impose consecutive terms of imprisonment, a trial court is
    required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
    and incorporate its findings into its sentencing entry, but it has no obligation to state
    reasons to support its findings.” State v. Bonnell, 
    140 Ohio St. 3d 209
    , 
    16 N.E.3d 659
    ,
    2014-Ohio-3177, syllabus.
    {¶17} Initially, we note that Appellant does not argue that the trial court failed to
    make the appropriate sentencing findings. Instead, Appellant, in part, disagrees with the
    trial court's seriousness findings under R.C. §2929.12, as well as the trial court's
    imposition of a prison sentence rather than community control.
    {¶18} Upon review of the record before us, as set forth above, the trial court made
    the following sentencing findings on the record: Appellant had allowed a known drug
    dealer to move into her house and had created a risk to the neighborhood and to law
    enforcement in apprehending him (Sent. T. at 15); Appellant committed the offense in
    Case No. 17CR11-0274 while awaiting trial on Case No. 17CR08-0172 (Sent. T. at 17);
    Appellant was not amenable to community control having been screened for treatment at
    the West Central Community Based Correctional Facility, became combative with the
    screener and stated that she did not need the help the CBCF could provide (Sent. T. at
    Knox County, Case No. 18 CA 11                                                                7
    16:1-18). The trial court, in imposing a prison sentence, explained "I just don't know what
    else to do with you." 
    Id. The court
    also stated that law enforcement had to put extra effort
    into abating the nuisance that was created by the drug dealing at Appellant's residence.
    (Sent T. 18:1-4).
    {¶19} We further find that the trial court, in its Sentencing Entry, stated that it found
    Appellant committed one or more offenses while she awaited trial or sentencing (R.C.
    §2929.14(C)(4)(a)), and that Appellant’s history of criminal conduct demonstrates that
    consecutive sentences are necessary to protect the public from future crime by the
    Appellant (R.C. §2929.14(C)(4)(c)). (See (May 1, 2018, Sentencing Entry at 2).
    Additionally, the trial court stated:
    The Court noted on the record that the circumstances of the
    defendant’s conduct in connection with the crime created a serious threat
    to the safety of the community in which the Defendant lives, and a threat to
    the safety of the law enforcement officers who were involved in her arrest.
    (May 1, 2018, Sentencing Entry at 2).
    {¶20} Based on our review, we find that the record demonstrates that the trial
    court made the seriousness findings pursuant to R.C. 2929.12(B) & (C). Here, the trial
    court's sentence was within the statutory range. Moreover, the record reveals that the trial
    court properly considered the statutory purposes and factors of felony sentencing
    {¶21} Accordingly, we find that the trial court did not err in the imposition of
    Appellant's prison sentence and did not fail to consider the statutory factors required when
    imposing a prison sentence.
    {¶22} Appellant’s assignment of error is overruled.
    Knox County, Case No. 18 CA 11                                                         8
    {¶23} For the reasons stated in the foregoing opinion, the decision of the Court of
    Common Pleas, Knox County, Ohio, is affirmed.
    By: Wise, J.
    Gwin, P. J., and
    Baldwin, J., concur.
    JWW/d 0423
    

Document Info

Docket Number: 18 CA 11

Judges: Wise, J.

Filed Date: 4/29/2019

Precedential Status: Precedential

Modified Date: 4/30/2019