State v. Good , 2022 Ohio 1981 ( 2022 )

[Cite as State v. Good, 2022-Ohio-1981.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. Nos. 20AP0028
21AP0011
Appellee
v.
APPEAL FROM JUDGMENT
CHASE M. GOOD ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF WAYNE, OHIO
CASE Nos. 2019 CRC-1 000082
2019 CRC-1 000098
DECISION AND JOURNAL ENTRY
Dated: June 13, 2022
SUTTON, Judge.
{¶1} Defendant-Appellant Chase M. Good appeals the judgment of the Wayne County
Court of Common Pleas. For the reasons that follow, this Court affirms, in part, reverses, in part,
and remands for proceedings consistent with this decision.
I.
Relevant Background Information
{¶2} The State indicted Mr. Good on 30 counts of drug possession, drug trafficking and
weapons charges in Case Nos. 2019 CRC-1 000082 and 2019 CRC-1 000098. Originally, Mr.
Good pleaded not guilty to the indictments. Subsequently, Mr. Good changed his plea to guilty
on 29 counts. Prior to sentencing, the trial court ordered a presentence investigation report (“PSI”)
which is part of the record on appeal. Both the State and Mr. Good’s counsel addressed the court,
and the State requested a sentence of 46 years. Further, Mr. Good addressed the court, stating:
2
I’ve never addressed the [c]ourt on any of my past crimes. I want to thank [my
attorney] for recognizing some of the good I’ve done. But there’s a couple issues
[the State] addressed that wasn’t me. You know, my guns, they wasn’t loaded.
They wasn’t out in the open. They was tucked away. They was locked. You know,
and the amount of drugs he says I sold * * * didn’t happen. I sold drugs for seven
months, Your Honor. That was it. What he got his statistics off of I have no clue.
And the drugs he said I sold or had is astronomical where it never happened because
there was nothing there. I held out for what I said I was going to. I plead guilty to
these charges, whether I was guilty of them or not. You know, I give any addict
the shirt off my back to see them live another day, not to sell any dope. You know,
there’s nobody that can say anything bad about me because I did nothing bad. I
sold drugs. I can’t justify that but I’m not going to let the [c]ourt walk on me the
way [the State] just did. With that I thank the [c]ourt and I apologize to the
community.
{¶3} Prior to issuing Mr. Good’s sentence, the trial court stated:
All right, Mr. Good, the [c]ourt has reviewed the [PSI] as well as the letters written
on your behalf. I will acknowledge that you’ve taken responsibility for these
actions from the beginning. On the day of your arrest you made no issue about it.
I am taking that into consideration, your taking responsibility for your actions.
Although, obviously * * * the actions weren’t very appropriate which you’ve
acknowledged as well. Selling drugs is not something that we need to have in the
community. I am making the sentencing decision based upon the overriding
principles and purposes of felony sentencing; that is to protect the public from
future crime from you or others and to issue some form of punishment. The [c]ourt
has as I indicated reviewed the [PSI] gone down each of these counts and looked
at them. I would also indicate to you that I believe I made a representation to your
attorney during a pretrial when there was a recommendation regarding sentence
that I thought that was a bit high, but when I finally do the calculations it’s actually
in that range. So since we have [18] counts in the first case and 11 in the second.
I’m going to proceed at this point.
(Emphasis added.)
{¶4} The trial court sentenced Mr. Good to 7 and ½ years imprisonment in Case No.
2019 CRC-1 000082, 6 of which are mandatory. Further, the trial court sentenced Mr. Good to 8
years imprisonment in Case No. 2019 CRC-1 000098, 6 of which are mandatory. In ordering these
sentences to run consecutively, the trial court explained:
***
3
it’s necessary I believe to protect and or punish [Mr. Good]. I don’t believe it’s
disproportionate at this point. I would also indicate that [Mr. Good’s] criminal
history does show that consecutive terms would be needed to protect the public.
And for the [r]ecord I would just indicate some of the offenses [Mr. Good] has been
convicted of over the years. It goes back to 1994 with an assault conviction, several
DUI’s, another assault in 1995, probation violations, using weapons while
intoxicated in [1996], an assault in [1996], telephone harassment in [1996],
domestic violence in [1998], assault in [1999], resisting arrest in [2002], a DUI in
[2002]. I would also indicate that all of these are misdemeanors. [2006] a failure
to comply, that was a felony of the third degree. Obstructing official business was
a felony of the fifth degree also in [2006]. And then trafficking in cocaine in [2008]
and some other misdemeanors since [2008], another felony receiving stolen
property in 2014, felony domestic violence in 2016 and some other misdemeanors
so that gives the [r]ecord a general sense of [Mr. Good’s] prior history. So these
terms will run consecutive. * * *
{¶5} Mr. Good now appeals, raising four assignments of error for our review. We note,
on page one of his brief, Mr. Good listed three assignments of error. However, in the body of his
brief, Mr. Good argued four assignments of error, although they are misnumbered. This Court will
now address Mr. Good’s four assignments of error.
II.
ASSIGNMENT OF ERROR I
THE COURT FAILED TO [] MAKE THE REQUIRED FINDINGS AND TO
ADHERE TO R.C. 2929.14(C)(4) AND [R.C.] 2929.41(A) IN IMPOSING
CONSECUTIVE SENTENCES AND [] AS SUCH, THE TRIAL COURT’S
FINDINGS WERE ERRONEOUS AND EXCESSIVE AND ARE
“CONTRARY TO LAW” AND THE SENTENCE IS PLAIN ERROR[.]
{¶6} In his first assignment of error, Mr. Good argues the trial failed to make the requisite
findings pursuant to R.C. 2929.14(C)(4) and R.C. 2929.41(A)1 in imposing consecutive sentences
in this matter. For the following reasons, we agree.
1
R.C. 2929.41 (A), states, in relevant part: “[e]xcept as provided in division (B) of this section,
division (C) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a
prison term, jail term, or sentence of imprisonment shall be served concurrently with any other
prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state,
or the United States.”
4
{¶7} This Court may modify or vacate a felony sentence “only if it determines by clear
and convincing evidence that the record does not support the trial court’s findings under relevant
statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. As explained in Cross v. Ledford, 161 Ohio St. 469 (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 not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.
{¶8} R.C. 2929.14(C)(4) requires trial courts to make certain findings before imposing
consecutive sentences:
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 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.
5
(Emphasis added.)
{¶9} To impose consecutive sentences, “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 * * *.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus. The
court is not required to explain its findings or include “‘a word-for-word recitation of the language
of the statute * * *.’” State v. Brundage, 9th Dist. Summit No. 29477, 2020-Ohio-653, ¶ 17,
quoting Bonnell at ¶ 29. Nevertheless, a reviewing court must be able to “discern that the trial
court engaged in the correct analysis” and conclude “that the record contains evidence to support
the [trial court’s] findings.” Bonnell at ¶ 29. “If it is impossible to discern whether the trial court
engaged in the correct analysis or made the required statutory findings, the imposition of
consecutive sentences must be reversed, and the matter must be remanded for resentencing so that
the trial court ‘can properly consider R.C. 2929.14(C)(4) and make the necessary findings.’” State
v. Gales, 9th Dist. Summit No. 29316, 2022-Ohio-776, ¶ 38, quoting State v. Callaghan, 9th Dist.
Summit No. 29431, 2021-Ohio-1047, ¶ 24-25. See also State v. Mellott, 9th Dist. Wayne Nos.
16AP0081, 16AP0082, 2017-Ohio-7545, ¶ 16.
{¶10} Here, the transcript of the sentencing hearing shows the trial court, pursuant to R.C.
2929.14(C)(4), made some, but not all, of the requisite findings. Specifically, the trial court stated:
it’s necessary I believe to protect and or punish [Mr. Good]. I don’t believe it’s
disproportionate at this point. I would also indicate that [Mr. Good’s] criminal
history does show that consecutive terms would be needed to protect the public.
From these statements, we can discern that the trial court engaged in the correct analysis and made
the appropriate findings as to the first prong of R.C. 2929.14(C)(4), that consecutive sentences are
necessary to punish Mr. Good, and the third prong of R.C. 2929.14(C)(4), R.C. 2929.14(C)(4)(c),
that Mr. Good’s history of criminal conduct demonstrates that consecutive sentences are necessary
6
to protect the public from future crime by Mr. Good. However, as to the second prong of R.C.
2929.14(C)(4), we cannot discern whether the trial court engaged in a complete analysis regarding
whether the consecutive sentences are not disproportionate to the seriousness of the Mr. Good’s
conduct and to the danger Mr. Good poses to the public. Furthermore, the trial court did not make
findings as to the necessity of consecutive sentences in either of its sentencing entries.
{¶11} Therefore, although we make no determination regarding the merits of imposing
consecutive sentences in Mr. Good’s case, the trial court’s imposition of consecutive sentences,
for the reasons stated above, was contrary to law. We reverse the trial court’s imposition of
consecutive sentences and remand the matter for resentencing so the trial court can properly
consider R.C. 2929.14(C)(4) and make the necessary findings prior to sentencing. See Callaghan
at ¶ 24-25.
{¶12} Accordingly, Mr. Good’s first assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE COURT IMPOSED AN EXCESSIVE SENTENCE FOR EACH
COUNT OF EACH INDICTMENT IN EACH OF THE TWO CASES, AND
RUNNING CONSECUTIVE SENTENCES IN TWO COUNTS IN EACH
CASE SENTENCE WAS CONTRARY TO LAW AND WAS PLAIN
ERROR[.]
ASSIGNMENT OF ERROR III
THE COURT FAILED TO GIVE ANY BENEFIT TO MR. GOOD AS A
DEFENDANT DESPITE HIS ACCEPTANCE OF RESPONSIBILITY AND
ACKNOWLEDGMENT AT SENTENCING OF HIS WRONGDOING, AND
AS SUCH, DESPITE BEING WITHIN THE SENTENCING RANGE, THE
SENTENCE WAS UNDULY HARSH AND RETALIATORY AGAINST MR.
GOOD. HENCE, THE SENTENCE IMPOSED IS INCONSISTENT WITH
THE PRINCIPLES AND PURPOSES OF OHIO SENTENCING LAW AND
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IS THEREFORE CONTRARY TO LAW AND THE COURT COMMITTED
PLAIN ERROR BY IMPOSING AN EXCESSIVE SENTENCE ON HIM[.]
{¶13} In his second and third assignments of error, Mr. Good argues his individual
sentences, and aggregate sentence, are contrary to law because they are excessive, unduly harsh,
and retaliatory.2 For the following reasons, we disagree.3
{¶14} The Marcum Court stated: “[a]pplying the plain language of R.C. 2953.08(G)(2),
[an appellate court] may vacate or modify a felony sentence on appeal only if it determines by
clear and convincing evidence that the record does not support the trial court’s findings under
2
We decline to address any additional arguments relating to the imposition of consecutive
sentences, in Mr. Good’s second and third assignments of error, as our disposition of Mr. Good’s
first assignment of error renders these arguments moot.
3
At oral argument, the State conceded it overstated Mr. Good’s criminal history relating
to drugs at the sentencing hearing. However, prior to sentencing, the record reveals the trial court
reviewed the PSI with accurate information regarding Mr. Good’s criminal history dating back to
1993.
8
relevant statutes or that the sentence is otherwise contrary to law.” Marcum, 2016-Ohio-1002, ¶
1. Further, as indicated above:
Clear and convincing evidence is that measure or degree of proof which is more
than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.
Cross, 161 Ohio St. 469 at paragraph three of the syllabus. R.C. 2953.08(G)(2) specifically states:
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.
{¶15} This Court, in its disposition of Mr. Good’s first assignment of error, has already
addressed the trial court’s failure to comply with R.C. 2929.14(C)(4) in issuing consecutive
sentences upon Mr. Good. The other statutes referenced in R.C. 2953.08(G)(2)(a), however, are
not relevant to this appeal. See also State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, ¶ 28
(“R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a sentence if it clearly and
convincingly finds that ‘the record does not support the sentencing court’s findings under’ certain
specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and
(C)(4), and 2929.20(I) are specified.”) (Emphasis added.) Thus, this Court will not engage in an
analysis regarding whether the record supports the trial court’s findings under R.C. 2929.11 and
R.C. 2929.12.
9
{¶16} Further, this Court cannot say there is clear and convincing evidence that Mr.
Good’s individual sentences are contrary to law. According to the Jones Court, supra, “[t]he term
“contrary to law’ was used in R.C. 2953.08(G)(4) when R.C. 2953.08 was enacted in 1995. * * *
At that time, legal dictionaries defined ‘contrary to law’ as ‘in violation of statute or legal
regulations at a given time,’ e.g., Black’s Law Dictionary 328 (6th Ed.1990).” Id. at ¶ 34. Further,
the Jones Court analyzed the evolution of R.C. 2953.08, including the amendments thereto, to
conclude that “R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to
modify or vacate a sentence based on its view that the sentence is not supported by the record
under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. In reaching this conclusion, the Jones Court
explained:
In our view, this evolution reveals two things of importance to this case. First, when
R.C. 2953.08 was enacted in 1995, the term “otherwise contrary to law” in former
R.C. 2953.08(G)(4), 146 Ohio Laws, Part IV, at 7565, meant something other than
an appellate court finding that the record does not support a sentence. This is
because such a finding would have fallen under the provision permitting the
appellate court to vacate a sentence if “the record does not support the sentence.”
Former R.C. 2953.08(G)(1), 146 Ohio Laws, Part IV, at 7564. Second, since R.C.
2953.08 was first enacted, the term “otherwise contrary to law” has not been
expanded or modified to include such findings. This is clear because when the
General Assembly amended R.C. 2953.08(G) in 2000 to eliminate the broad
provision permitting an appellate court to review whether “the record does not
support the sentence,” it left the “otherwise contrary to law” provision that is still
in current R.C. 2953.08(G)(2)(b) unchanged. Concluding that the term “otherwise
contrary to law” nonetheless has expanded to include an appellate court’s
conclusion that a sentence is not supported by the record would run contrary to the
notion that we “must presume that the amendments were made to change the effect
and operation of the law[.]”
(Internal citations omitted.) Id. at ¶ 38.
{¶17} Indeed, Mr. Good was sentenced well within the parameters set forth in the
sentencing guidelines. In that regard, Mr. Good’s sentence is not contrary to law. The State
requested Mr. Good be sentenced to 46 years imprisonment for his crimes. The trial court, after
10
reviewing the PSI and letters submitted in support of Mr. Good, and allowing Mr. Good to
personally address the court, sentenced Mr. Good to 15 and ½ years imprisonment, which is less
than one-third of the sentence suggested by the State. Thus, Mr. Good has failed to demonstrate,
by clear and convincing evidence, that his individual sentences are in violation of a statute or legal
regulation, and are contrary to law.
{¶18} Accordingly, Mr. Good’s second and third assignments of error are overruled.
ASSIGNMENT OF ERROR IV
MR. GOOD WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ALL
TO HIS PREJUDICE[.]
{¶19} In his fourth assignment of error, Mr. Good argues his counsel was ineffective
because he did not provide the trial court with a “prepared sentencing presentation[,]” highlighting
the nature of Mr. Good’s criminal history “to put it in perspective and rebut the [State’s] inaccurate
remarks,” suggesting a lesser term of sentence, presenting mitigating evidence, and bringing in
witnesses to testify in support of Mr. Good. We disagree.
{¶20} To prove ineffective assistance of counsel, an appellant must establish both that:
(1) his counsel's performance was deficient, and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient
if it falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of the syllabus. To establish prejudice, “the defendant must prove that
there exists a reasonable probability that, were it not for counsel's errors, the result of the trial
would have been different.” Id. at paragraph three of the syllabus. If a defendant fails to prove
one prong under Strickland, this Court need not address the other prong. State v. Lortz, 9th Dist.
Summit No. 23762, 2008-Ohio-3108, ¶ 34.
{¶21} At sentencing, Mr. Good’s counsel addressed the trial court, stating:
11
Judge, I know you’re familiar with [Mr. Good] and there’s also been a [PSI] filed
in this matter. I filed a sentencing memorandum.4 I think all those give you a pretty
good picture of who [Mr. Good] is. Has he done some bad, absolutely. And [Mr.
Good] would be the first person to tell you that. He’s also done a lot of good. And
in those letters it tells of times where people are in need, [Mr. Good] is the first one
there, helps others. So again, while he’s done some bad he’s taken responsibility
for that, Judge. And not just here in court, he did it with law enforcement when he
was arrested. Yes, those are mine. Anything in there, that’s all mine. So he’s never
denied that what he’s done is bad. He’s recognized it and I think that’s an important
factor in this case. Judge, I think 46 years is really, really high. There are people
who commit murders or rapes and they don’t get anywhere near that. Not to
minimize this case but at the end of the day it is a drug case. We understand that a
portion of the sentence is going to be mandatory, Judge. But we’d also ask for
some non-mandatory time. That would give [Mr. Good] an incentive to do well
while he’s in prison to better himself while he’s there which is better for everyone.
Lastly, Judge, I filed a motion to waive the mandatory fines in this case. He just
simply doesn’t have the financial wherewithal to satisfy those, Judge, so we ask
that you grant that motion as well. Thank you.
“The presentation of mitigating evidence is a matter of trial strategy, * * * even if counsel’s chosen
strategy proves unsuccessful.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 304,
quoting State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 189. Because there are “countless
ways to provide effective assistance in any given case,” judicial scrutiny of a lawyer’s performance
must be “highly deferential.” Strickland at 689.
{¶22} Here, the record supports that Mr. Good’s counsel presented mitigating factors to
the trial court, such as taking responsibility for his crimes and helping community members in
need of assistance. Moreover, Mr. Good’s counsel argued the State’s request for 46 years is
4
The record indicates counsel filed a document titled “Sentencing Memorandum” with
twelve letters from community members attached in support of Mr. Good.
12
“really high,” in light of this being a “drug” case, when individuals who commit violent crimes get
lower sentences. Further, Mr. Good’s counsel submitted twelve letters from community members
in support of Mr. Good, which the trial court indicated reviewing prior to issuing sentence. Lastly,
the trial court did not impose a 46 year sentence upon Mr. Good, but, instead, sentenced Mr. Good
to 15 and ½ years imprisonment. As such, based upon this record, this Court cannot say Mr.
Good’s counsel’s performance was deficient.
{¶23} Accordingly, Mr. Good’s fourth assignment of error is overruled.
III.
{¶24} For the foregoing reasons, Mr. Good’s first assignment of error is sustained. Mr.
Good’s second, third, and fourth assignments of error are overruled. The judgment of the Wayne
County Court of Common Pleas is affirmed, in part, reversed, in part, and remanded for
proceedings consistent with this decision.
Judgment affirmed, in part,
reversed, in part,
and remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
13
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
BETTY SUTTON
FOR THE COURT
TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and MICHAEL COOPER, Assistant Prosecuting
Attorney, for Appellee.