State v. Jordan , 2010 Ohio 3456 ( 2010 )

[Cite as State v. Jordan, 2010-Ohio-3456.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 09 CO 31PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
CHANCELOR JORDAN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 07 CR 319.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Robert L. Herron
Prosecuting Attorney
Attorney John Gamble
Asst. Prosecuting Attorney
105 S. Market Street
Lisbon, OH 44432
For Defendant-Appellant: Attorney Scott Essad
5815 Market Street, Suite 1
Youngstown, OH 44512
JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: July 8, 2010
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DeGenaro, J.
{¶1} This timely appeal comes for consideration upon the record in the trial court
and the parties' briefs. Defendant-Appellant, Chancelor A. Jordan, appeals the
September 3, 2009 decision of the Columbiana County Court of Common Pleas that
convicted him of one count of drug trafficking and three counts of drug possession and
sentenced him accordingly. On appeal, Jordan argues that the imposition of maximum,
consecutive sentences by the trial court was erroneous. Upon review, Jordan's
arguments are meritless. The sentence chosen was not clearly and convincingly contrary
to law or an abuse of discretion. Accordingly, we affirm the judgment of the trial court.
Facts and Procedural History
{¶2} On October 26, 2007, a Columbiana County grand jury secretly indicted
Jordan on six counts: (1) possession of cocaine, in violation of R.C. 2925.11(A), a fifth-
degree felony; (2) trafficking in cocaine, a violation of R.C. 2925.03(A)(1), a fifth-degree
felony; (3) possession of crack cocaine where the amount involved equals or exceeds 25
grams but is less than 100 grams, in violation of R.C. 2925.11(A), a first-degree felony;
(4) possession of cocaine where the amount involved equals or exceeds 25 grams but is
less than 100 grams, in violation of R.C. 2925.11(A), a third-degree felony; (5) possession
of methamphetamine or methylendioxymethamphetamine (MDMA) in violation of R.C.
2925.11(A), a fifth-degree felony; and (6) possession of heroin where the amount
involved exceeds 10 unit doses but is less than 50 unit doses, in violation of R.C.
2929.11(A), a fourth-degree felony. Attached to Counts Three, Four and Five was a
forfeiture specification for $610 and a set of digital scales. These charges stemmed from
several incidents that occurred between 2003 and 2007.
{¶3} Jordan was arraigned, pled not guilty to the counts in the indictment and
counsel was appointed. Upon Jordan's request, the State filed a bill of particulars.
Subsequently, Jordan reached a Crim.R. 11 agreement with the State, whereby he
agreed to plead guilty to Counts One, Two, Five and Six, and in exchange the State
agreed to dismiss Counts Three and Four. The written plea agreement indicated that at
the time of sentencing, the State would recommend maximum consecutive sentences
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and oppose community control sanctions.
{¶4} The court provided written information to Jordan regarding the charges he
faced, the maximum penalties and the effect of a guilty plea. Jordan filed a written
response to that document. During a hearing held on September 2, 2009, the trial court
engaged in a Crim.R. 11 plea colloquy with Jordan, after which the court accepted
Jordan's guilty plea as knowing, voluntary and intelligent.
{¶5} Per Jordan's request, the trial court proceeded immediately to sentencing.
The prosecutor advocated Jordan receive maximum, consecutive sentences. Defense
counsel argued for a more lenient sentence and made a statement in mitigation of
sentencing. Jordan himself made a statement in mitigation of sentencing.
{¶6} The trial court ultimately pronounced the following sentence:
{¶7} "[I]n relation to the specification of count -- attached to count five; the six
hundred and ten dollars is ordered forfeited. The digital scales is [sic] ordered forfeited to
the State of Ohio, to be disposed of as provided by law.
{¶8} "In relation to count's one, two, and five of the indictment the Defendant is
sentenced to twelve months of [sic] each of those counts. On count six, the Defendant is
sentenced to eighteen months on that count. Those are ordered served consecutive with
each other."
{¶9} The court also gave Jordan credit for time served, and ordered Jordan's
driver's license suspended on each of the counts for a period of six months, to be served
concurrently. The court notified Jordan about a three-year period of discretionary post-
release control following his release from prison. The sentencing decision was
memorialized in a September 3, 2009 judgment entry.
Sentencing
{¶10} In his sole assignment of error, Jordan asserts:
{¶11} "The trial court's sentencing of Appellant Chancelor A. Jordan was clearly
and convincingly contrary to law as well as an abuse of discretion."
{¶12} When reviewing a felony sentence, an appellate court first examines the
sentence to ensure the sentencing court clearly and convincingly complied with the
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applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at
¶4. A sentence is clearly and convincingly contrary to law when the sentencing court
does not comply with all applicable rules and statutes in imposing the sentence. State v.
Gratz, 7th Dist. No. 08-MA-101, 2009-Ohio-695, at ¶8, citing Kalish at ¶13-14. If this
inquiry is satisfied, an appellate court then reviews the trial court's sentencing decision for
abuse of discretion. Kalish at ¶17, 19-20. An abuse of discretion means more than an
error of law or judgment; but rather implies that the court's attitude is unreasonable,
arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d
169, 404 N.E.2d 144. Thus, in the felony sentencing context, "[a]n abuse of discretion
can be found if the sentencing court unreasonably or arbitrarily weighs the factors in R.C.
2929.11 and R.C. 2929.12." State v. Heverly, 7th Dist. No. 09 CO 4, 2010-Ohio-1005, at
¶34.
{¶13} Initially, the State argues that Jordan has forfeited all challenges to his
sentence because he failed to object at the time of sentencing. The State cites State v.
Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, in support of this
argument. However, Payne involved the narrow issue of forfeiture of an alleged Blakely
error on appeal where the defendant failed to object to his sentence on such grounds at a
sentencing proceeding that occurred after the announcement of Blakely. Payne at ¶21
(concerning alleged errors pursuant to Blakely v. Washington (2004), 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403). This is not the issue here, therefore Payne does not apply.
Thus, we review Jordan's sentence under the analysis set forth in Kalish.
{¶14} Turning to the first prong of the inquiry, we must determine whether the
sentence is clearly and convincingly contrary to law. Jordan was convicted of three fifth-
degree felonies and one fourth-degree felony. Fifth degree felonies carry potential prison
terms ranging from six to twelve months. R.C. 2929.14(A)(5). Fourth degree felonies
carry potential prison terms ranging from six to eighteen months. R.C. 2929.14(A)(4).
Thus, the trial court could have sentenced Jordan to a term ranging from six months to
four and a half years. The court chose four and a half years, which is within the
sentencing range. The trial court properly notified Jordan of post-release control pursuant
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to R.C. 2967.28. Further, the trial court afforded Jordan his allocution rights pursuant to
Crim.R. 32(A)(1).
{¶15} Jordan presents two specific arguments as to why his sentence is contrary
to law, the first of which relates to the trial court's failure to make findings before imposing
consecutive sentences pursuant to R.C. 2929.14(E)(4). Jordan acknowledges that State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 held R.C. 2929.12(E)(4)
unconstitutional. However, Jordan asserts that a recent United States Supreme Court
decision, Oregon v. Ice (2009), --- U.S. ---,129 S.Ct. 711, 172 L.Ed.2d 517, abrogates that
1
portion of Foster.
{¶16} Jordan misconstrues the effect Ice has on Foster. The Ohio Supreme Court
excised the unconstitutional provisions requiring judicial fact-finding from the sentencing
statutes, including R.C. 2929.14(E)(4) and R.C. 2929.41(A). Id at ¶97. As a result, the
Court ultimately held that, "[t]rial courts have full discretion to impose a prison sentence
within the statutory range and are no longer required to make findings or give their
reasons for imposing maximum, consecutive, or more than the minimum sentences." Id.at paragraph seven of the syllabus.
{¶17} In Ice, the United States Supreme Court examined an Oregon statute that
required judges to find certain facts before imposing consecutive rather than concurrent
sentences. Id. at 714-20. The Supreme Court upheld the constitutionality of the Oregon
statute and held it did not violate the Sixth Amendment concerns at issue in Apprendi and
Blakely. Id. at 719. The Court concluded that, in light of historical practices and the right
of states to administer their criminal justice systems, the Sixth Amendment did not
prevent states from allowing judges to make any finding of facts necessary to impose
consecutive, rather than concurrent, sentences. Id. at 716-20.
{¶18} Subsequent to Ice, the defendant in State v. Elmore, 122 Ohio St.3d 472,
2009-Ohio-3478, 912 N.E.2d 582, argued that because Foster excised R.C.
2929.14(E)(4) and 2929.41(A), there was neither a statutory nor a constitutional basis to
1
The Ohio Supreme Court has accepted jurisdiction to decide this exact issue and that case is currently
pending before the court. State v. Hodge, Case No. 2009-1997.
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permit the imposition of consecutive sentences. The Ohio Supreme Court declined the
state's post oral argument attempt to argue Ice and rejected Elmore's assigned error
relying exclusively on prior Ohio precedent:
{¶19} "We addressed this issue in State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-
1983, 887 N.E.2d 328. In Bates, we considered whether a trial court has the authority
after Foster to order a prison sentence that it imposes to be served consecutively to a
prison sentence already imposed by another Ohio court. Id. at ¶11. We stated that before
Foster, R.C. 2929.14(E)(4) and 2929.41(A) did not permit a trial court to order a prison
sentence to be served consecutively to a prison sentence previously imposed on the
offender by a different court. Id. at ¶14. However, Foster severed and excised R.C.
2929.14(E)(4) and 2929.41(A) in their entirety. Thereafter, no statute remained to
establish presumptions for concurrent and consecutive sentences. Id. at ¶18.
{¶20} "We held in Bates that in the absence of statutory authority, 'the common-
law presumptions are reinstated.' Bates at ¶18, citing 73 American Jurisprudence 2d
(2007), Statutes, Section 271 (the repeal of a statute that abrogates the common law
operates to reinstate the common-law rule). We also stated that ' "in the absence of [a]
statute [stating otherwise], it is a matter solely within the discretion of the sentencing court
as to whether sentences shall run consecutively or concurrently." ' Id. at ¶13, quoting
Stewart v. Maxwell (1963), 174 Ohio St. 180, 181, 22 O.O.2d 116, 187 N.E.2d 888. See
also State ex rel. Stratton v. Maxwell (1963), 175 Ohio St. 65, 67, 23 O.O.2d 357, 191
N.E.2d 549. ('It is clear that a court has the power to impose consecutive sentences');
Henderson v. James (1895), 52 Ohio St. 242, 254-255, 39 N.E. 805 ('this court, with the
courts of most of the other states, as well as England, has sustained cumulative
sentences without the aid of a statute'). In Bates, we held that after Foster, a 'trial court
now has the discretion and inherent authority to determine whether a prison sentence
within the statutory range shall run consecutively or concurrently.' Bates at ¶19.
{¶21} "Since Foster was decided, the United States Supreme Court has
announced Oregon v. Ice (2009), --- U.S. ----, 129 S.Ct. 711, 714, 172 L.Ed.2d 517, a
case that held that a jury determination of facts to impose consecutive rather than
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concurrent sentences was not necessary if the defendant was convicted of multiple
offenses, each involving discrete sentencing prescriptions. The jury historically played no
role in a decision to impose sentences consecutively or concurrently. The choice rested
exclusively with the judge, and thus the Oregon statutes did not erode any traditional
function of the jury. Further, the state had sovereign authority over the administration of
its criminal justice system, and there was no compelling reason to diminish the state's role
by curbing the state's limitation on the discretion of judges in imposing consecutive or
concurrent sentences.
{¶22} "Foster did not prevent the trial court from imposing consecutive sentences;
it merely took away a judge's duty to make findings before doing so. The trial court thus
had authority to impose consecutive sentences on Elmore." Elmore at ¶32-35. Thus, the
2
Ohio Supreme Court stopped just short of considering Foster in light of Ice.
{¶23} Most appellate districts when faced with this issue have decided that Foster
is still good law that appellate courts must follow unless and until the Ohio Supreme Court
directly overrules it. See, e.g., State v. Dunaway, 12th Dist. Nos. CA2009-05-141,
CA2009-06-164, 2010-Ohio-2304, at ¶89-90; State v. Finn, 6th Dist. Nos. L-09-1162, L-
09-1163, 2010-Ohio-2004, at ¶10; State v. Sabo, 3d Dist. No. 14-09-33, 2010-Ohio-1261,
at ¶34-42; State v. Potter, 10th Dist. No. 09AP-580, 2010-Ohio-372, at ¶7-8; State v.
Moncoveish, 11th Dist. No. 2008-P-0075, 2009-Ohio-6227, at ¶21; State v. Robinson, 8th
Dist. No. 92050, 2009-Ohio-3379, at ¶27-29; State v. Starett, 4th Dist. No. 07CA30, 2009-
Ohio-744, at ¶35.
{¶24} But in State v. Vandriest, 5th Dist. No. 09-COA-032, 2010-Ohio-997, the
Fifth District held that because the appellant was sentenced after Ice and after the Ohio
legislature "amended" R.C. 2929.14 that the trial court was required to make statutory
findings pursuant to R.C. 2929.14(E)(4) before imposing consecutive sentences on
appellant.Id. at ¶9.
{¶25} We conclude that, pursuant to Ice and Elmore, Ohio's post-Foster
2
"We will not address fully all ramifications of Oregon v. Ice, since neither party sought the opportunity to
brief this issue before oral argument." Elmore at ¶35.
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sentencing scheme, which gives a sentencing court the discretion to impose consecutive
sentences without making findings, passes constitutional muster. Ice at 714-715 (noting
that it is "undisputed" that states do not violate the Sixth Amendment by continuing the
common law tradition of entrusting to judges' unfettered discretion the decision whether
sentences shall be served consecutively or concurrently). Elmore at ¶33 (in the absence
of statutory authority, common law presumptions are reinstated and the imposition of
consecutive sentences is within the inherent authority of the court). As such, the trial
court in this case did not err by failing to make findings pursuant to R.C. 2929.14(E)(4).
Jordan's argument to the contrary is meritless.
{¶26} Second, Jordan contends that his sentence was clearly and convincingly
contrary to law because the trial court failed to consider the overriding purposes of felony
sentencing contained in R.C. 2929.11 and the seriousness and recidivism factors
contained in R.C. 2929.12. He argues that the record is silent in this case. However, this
is not accurate since the trial court did state it had considered R.C. 2929.11 and 2929.12
in the sentencing entry. Further, even if the record had been completely silent, this court
has held that reversal is not automatic. State v. Ballard, 7th Dist. No. 08 CO 13, 2009-
Ohio-5472, at ¶71; State v. James, 7th Dist. No. 07 CO 47, 2009-Ohio-4392, at ¶50.
Rather, a silent record creates a presumption that the trial court considered the factors.
James at ¶50. This presumption may be rebutted by affirmatively showing the trial court
failed to consider the proper factors or that the sentence is strikingly inconsistent with
them, which is not the case here. Id. Based on the foregoing, Jordan's sentence is not
clearly and convincingly contrary to law.
{¶27} Thus, we move to the second prong of the analysis which is whether the
chosen sentence was an abuse of discretion. As an initial matter, the trial court may
consider a wealth of information when sentencing the defendant, including but not limited
to: the trial transcript, the defendant's prior arrests, crimes for which the defendant was
acquitted, and otherwise inadmissible evidence including information that was
suppressed prior to trial. Ballard at ¶80-81. Further, although R.C. 2929.12 lists many
specific factors a trial court must consider, the court also has the discretion to consider
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factors not specifically listed in the statute. See R.C. 2929.12(B).
{¶28} Regarding the seriousness of Jordan's crime, there is evidence upon which
the trial court could have reasonably relied to conclude the crime was more serious.
Jordan was involved in numerous drug-related crimes that took place over a period of
years. The prosecutor alleged during sentencing that Jordan was "at the top of the food
chain" in terms of the illegal drug trade in Columbiana County. The prosecutor indicated
that when Jordan was arrested for a federal warrant he was found in the center of Lisbon
with six bags of cocaine in his pocket. The prosecutor showed a video of an informant
purchasing drugs from Jordan, and pointed out the overwhelming evidence of significant
drug trafficking activity at the residence. Further, the prosecutor noted that several young
children were in an adjoining room when the drug activity took place. These
considerations would tend to make the crime more serious. R.C. 2929.12(B). There is
nothing in the record indicating the crime was less serious pursuant to R.C. 2929.12(C).
{¶29} With regard to the likelihood of recidivism, see R.C. 2929.12(D) and (E),
there is no PSI in this case for us to examine, however this is due to Jordan's request to
proceed immediately to sentencing, and his indication that he would not request that the
court consider a community control sanction. Looking at the information that emerged
about Jordan's past at the sentencing hearing, the trial court could have reasonably
concluded recidivism was more likely. From the sentencing hearing it was adduced that
Jordan had been convicted of and served time for a federal drug charge in 2003. The
prosecutor also indicated that Jordan had several convictions in the Cuyahoga County
Court of Common Pleas in 2003, including failure to comply with the signal of a police
officer; breaking and entering; possession of drugs; possession of criminal tools;
tampering with evidence; and trafficking in drugs. The prosecutor also indicated that
Jordan was charged and arrested in Cuyahoga County in May 2007 for receiving stolen
property. The prosecutor also alleged that Jordan had a history of criminal behavior since
he was a juvenile. Defense counsel did not exactly dispute that last allegation, rather
responding that the discovery packet provided by the prosecutor did not include any
crimes prior to 2003.
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{¶30} Jordan did apologize for his crimes during sentencing therefore
demonstrating some remorse which could tend to show recidivism is less likely. R.C.
2929.12(E)(5). However, the apology seems somewhat disingenuous considering
Jordan's earlier comments where he seemed to indicate that the State's failure to indict
him earlier contributed to his continued drug trafficking:
{¶31} "MR JORDAN: I would like, uh, I would like to say, 'Yes, I did sell drugs,
and I went to jail.' And all this from 2003, I believe I was eighteen or nineteen.
{¶32} "And I did, I sold drugs, I went to jail for it, and in this case, I guess I got the
possession from '03, and I was never charged, it's not like I was charged and then I came
and I just kept catching cases.
{¶33} "It's just, they -- I had cocaine in my pocket, I was not indicted-- all this is
coming four years later, it's like they saved it. You know what I'm saying? Maybe if I was
indicted, maybe if -- you know what I'm saying? Maybe I wouldn't have continued to sell
drugs. You know what I'm saying? It's like they just saved it up."
{¶34} These remarks would seem to indicate Jordan's failure to accept full
responsibility for his actions. Thus, on the whole, the trial court could have reasonably
concluded recidivism was more likely. For these reasons, the trial court did not abuse its
discretion in sentencing Jordan.
{¶35} In conclusion, Jordan's sole assignment of error is meritless. Jordan's
sentence was not clearly and convincingly contrary to law or an abuse of discretion.
Accordingly, the judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
Waite, J., concurs in judgment only.