State v. Jones , 2013 Ohio 3141 ( 2013 )

[Cite as State v. Jones, 2013-Ohio-3141.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99121
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DONOVAN D. JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-561081 and CR-562160
BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Marc D. Bullard
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} This appeal is a companion case to State v. Collins, 8th Dist. No. 99111,
and State v. Minifee, 8th Dist. No. 99202.
{¶2} Defendant-appellant, Donovan Jones (“Jones”), appeals his drug trafficking
sentence. For the reasons set forth below, we affirm.
{¶3} In Cuyahoga C.P. No. CR-561081, Jones was charged in a three-count
indictment. Count 1 charged him with drug trafficking, Count 2 charged him with drug
possession, and Count 3 charged him with possession of criminal tools. Each count
carried a forfeiture of money and a forfeiture of a cell phone specification.
{¶4} In Cuyahoga C.P. No. CR-562160, Jones and codefendants, Devin Collins
(“Collins”) and Patrick Minifee (“Minifee”), were charged in a 13-count indictment.
Count 1 charged each of them with kidnapping, Count 2 charged each of them with
attempted murder, Counts 3 and 4 charged each of them with felonious assault, Counts 5
and 6 charged each of them with aggravated robbery, Counts 7 and 8 charged Jones with
having a weapon while under disability, Count 9 charged Collins with having a weapon
while under disability, Count 10 charged each of them with discharging a firearm on or
near a prohibited premises. Count 11 charged each of them with carrying a concealed
weapon. Count 12 charged each of them with improperly handling a firearm in a motor
vehicle. Count 13 charged each of them with tampering with evidence. Counts 1, 2, 3,
4, 5, 6, and 10 carried various firearm and forfeiture specifications. Counts 7, 8, 9, 11,
12, and 13 carried forfeiture specifications.
{¶5} In September 2012, Jones entered a guilty plea in both cases. In
CR-561081, he pled guilty to drug trafficking as charged in Count 1 and Counts 2 and 3
were nolled. In CR-562160, he pled guilty to an amended count of robbery (Count 5),
with the forfeiture specifications. The firearm specifications on Count 5 were deleted
and the remaining counts were nolled.
{¶6} In CR-561081, the trial court sentenced Jones to 12 months in prison. In
CR-562160, the trial court sentenced him to two years of community control sanctions,
upon his release from prison in CR-561081.
{¶7} Jones now appeals, raising the following sole assignment of error for
review.
Assignment of Error
The trial court erred when it sentenced [Jones] to the maximum term of 12
months in prison for a fifth degree felony.
{¶8} In reviewing a felony sentence, we take note of R.C. 2953.08(G)(2), which
provides in pertinent part:
The court hearing an appeal * * * shall review the record, including the
findings underlying the sentence or modification given by the sentencing
court.
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 (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.
{¶9} In the instant case, Jones pled guilty to drug trafficking, a fifth-degree
felony, in violation of R.C. 2925.03(A)(2). Jones argues the trial court erred by
sentencing him to 12 months in prison because under R.C. 2929.13(B)(1)(c), the court
was required to impose community control sanctions.
{¶10} R.C. 2929.13, as amended by H.B. 86, effective September 30, 2011, creates
a presumption in favor of community control for fourth-degree and fifth-degree felonies
if certain factors apply. R.C. 2929.13(B)(1); State v. Lyles, 8th Dist. No. 97524,
2012-Ohio-3362, ¶ 10. R.C. 2929.13(B)(1) provides that:
(a) 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, 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 or to an offense of violence that is a misdemeanor and that
the offender committed within two years prior to the offense for which
sentence is being imposed.
(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.
***
(c) If a court that is sentencing 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 believes that no community
control sanctions are available for its use that, if imposed on the offender,
will adequately fulfill the overriding principles and purposes of sentencing,
the court shall contact the department of rehabilitation and correction and
ask the department to provide 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. Not later than forty-five days after receipt of a
request from a court under this division, the department shall provide 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, if any. Upon making a
request under this division that relates to a particular offender, a court shall
defer sentencing of that offender until it receives from the department 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 or for forty-five days,
whichever is the earlier.
{¶11} Jones argues that the trial court erred by failing to comply with
R.C. 2929.13(B)(1)(c), in that it did not contact the department of rehabilitation and
correction and request information regarding community control sanctions prior to
imposing a prison term. Jones, however, is exempt from the application of R.C.
2929.13(B)(1)(c), by virtue of R.C. 2929.13(B)(1)(a)(i)-(ii) and 2929.13(B)(1)(b)(x),
because Jones served a prison term on a previous case and was convicted of robbery in
CR-562160, which was within two years of the sentence in the instant case. Moreover,
Jones committed the robbery while on bond in the instant case. See State v. Robinson,
2d Dist. No. 2012 CA 17, 2012-Ohio-4976, ¶ 22, (where the court found that the
appellant was exempt from R.C. 2929.13(B)(1)(c), by virtue of the application of
R.C. 2929.13(B)(1)(a)(iii) because appellant violated his bond in another case).
Therefore, Jones was ineligible for community control sanctions.
{¶12} Jones further argues that the trial court failed to consider the seriousness
factors and the consistency and proportionality of his sentence. R.C. 2929.11(B)
provides that a felony sentence shall be “commensurate with and not [demean] the
seriousness of the offender’s conduct and its impact upon the victim, and [shall be]
consistent with sentences imposed for similar crimes committed by similar offenders.”
Additionally, R.C. 2929.12 sets forth a nonexhaustive list of factors that a trial court must
consider when rendering its sentence so as to determine the seriousness of the offense and
the likelihood of recidivism.
{¶13} We note that a trial court is not required to use “‘talismanic words to comply
with the guidelines and factors for sentencing.”’ State v. Goins, 8th Dist. No. 98256,
2013-Ohio-263, ¶ 10, quoting State v. Brewer, 1st Dist. No. C-000148, 2000 Ohio App.
LEXIS 5455 (Nov. 24, 2000). It must, however, be clear from the record that the trial
court actually made the required statutory findings. Id., citing State v. Pierson, 1st Dist.
No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998). A trial court satisfies this
statutory requirement when the record reflects that the court has engaged in the required
analysis and has selected the appropriate statutory criteria. See State v. Edmonson, 86
Ohio St.3d 324, 326, 1999-Ohio-110, 715 N.E.2d 131.
{¶14} In the instant case, the trial court imposed a maximum sentence of 12
months in prison, and stated on the record that, in doing so, it considered the facts of the
case, “all the principles and purposes of felony sentencing, the appropriate recidivism and
seriousness factors and all the statutory requirements of the court.” Jones was 25 years
old at the time of sentencing. The court stated:
In those short 25 years, you’ve got some pretty serious prior histories. I
see two possession of deadly weapon in school safety zone, although they
were dismissed.
***
Then you have the domestic violence, felonious assault.
***
And then there was a * * * robbery case [for which you were sentenced to a
year in prison.]
***
[A] year and a month after you got sentenced from [that trial judge, you]
happened to get her again on the docket[.]
***
You got [sentenced] again in that case. So that was six months there.
Not long after that, you get this heroin case with myself. You’re out on
bond, and you’re drinking. You’re partying. You’re hanging out with
Mr. Collins and Mr. Minifee, and you got yourself mixed up in an
extremely serious situation.
{¶15} The trial court next considered the seriousness of the offense and why Jones
was not amenable to community control sanctions, by stating that:
[Y]ou knew you were in big trouble because of what you and your cohorts
had done. So I got a serious problem as far as community control
sanctions with you.
You score a 12. You are a high risk on our offender risk assessment
instrument, and I would have a difficult time putting you on probation.
***
So the court is going to do this: I don’t think you are amenable for
community control sanctions on the drug case. It’s just your record is too
bad[.]
{¶16} Based on the foregoing, we find that the trial court properly considered the
statutory requirements of R.C. 2929.11 and 2929.12.
{¶17} With respect to Jones’s proportionality argument, this court has previously
found that in order to support a contention that a sentence is disproportionate to sentences
imposed upon other offenders, the defendant must raise this issue before the trial court
and present some evidence, however minimal, in order to provide a starting point for
analysis and to preserve the issue for appeal. State v. Edwards, 8th Dist. No. 89181,
2007-Ohio-6068; State v. Lang, 8th Dist. No. 92099, 2010-Ohio-433, discretionary
appeal not allowed, 126 Ohio St.3d 1545, 2010-Ohio-3855; State v. Cooper, 8th Dist. No.
93308, 2010-Ohio-1983. A review of the record in the instant case reveals that defense
counsel did not raise the issue of proportionality at the sentencing hearing. Nor did he
present evidence as to what a “proportionate sentence” might be. Thus, he not has
preserved the issue for appeal.
{¶18} Accordingly, the sole assignment of error is overruled.
{¶19} Judgment is 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR