State v. Thompson , 2022 Ohio 2092 ( 2022 )

[Cite as State v. Thompson, 2022-Ohio-2092.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-21-37
v.
KIMANI V. L. THOMPSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 20 11 0264
Judgment Affirmed
Date of Decision: June 21. 2022
APPEARANCES:
Eric J. Allen for Appellant
Stacia L. Rapp for Appellee
Case No. 8-21-37
SHAW, J.
{¶1} Defendant-appellant, Kimani Thompson (“Thompson”), brings this
appeal from the November 2, 2021 judgment of the Logan County Common Pleas
Court sentencing him to a 24-month prison term after Thompson pled guilty to, and
was convicted of, attempted aggravated trafficking in drugs. On appeal, Thompson
argues that the trial court erred in its application of sentencing factors under R.C.
2929.12.
Background
{¶2} On November 10, 2020, Thompson was indicted for aggravated
trafficking in drugs in violation of R.C. 2925.03(A)(1), a second degree felony. It
was alleged that on October 9, 2020, Thompson was involved in selling a
confidential informant over 20 grams of methamphetamine for $1,000.
{¶3} Thompson originally pled not guilty to the charge; however, on July 15,
2021, he entered into a written, negotiated plea agreement wherein he agreed to
plead guilty to the lesser, amended charge of attempted aggravated trafficking in
drugs, a third degree felony. A Crim.R. 11 hearing was held and it was determined
that Thompson was entering a knowing, intelligent, and voluntary plea. Thompson
was found guilty of the amended charge and sentencing was set for a later date.
{¶4} Thompson failed to appear for his scheduled sentencing hearing, so a
capias was issued for his arrest. Thompson’s sentencing hearing was then held
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November 2, 2021, and he was ordered to serve a 24-month prison term. A judgment
entry memorializing his sentence was filed that same day. It is from this judgment
that Thompson appeals, asserting the following assignment of error for our review.
Assignment of Error
The trial court erred by imposing a twenty-four month prison
term.
{¶5} In his assignment of error, Thompson argues that the trial court erred
by imposing a 24-month prison term. More specifically, he contends that the trial
court erred by finding that the drug sale was part of organized criminal activity under
R.C. 2929.12(B)(7), making the conduct more serious than conduct normally
constituting the offense.
Standard of Review
{¶6} Under R.C. 2953.08(G)(2), an appellate court will reverse a 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.” (Emphasis added.) State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, ¶ 1. 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.’” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469(1954), paragraph three of the syllabus.
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Relevant Authority
{¶7} “Trial courts have full discretion to impose any sentence within the
statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9.
A sentence imposed within the statutory range is not contrary to law as long as the
trial court considered the purposes and principles of felony sentencing contained
in R.C. 2929.11 and the sentencing factors contained in R.C. 2929.12. State v. Silfe,
3d Dist. Auglaize No. 2-20-17, 2021-Ohio-644, ¶ 10.
{¶8} Revised Code 2929.11(A) provides, in pertinent part, that the
“overriding purposes of felony sentencing are to protect the public from future crime
by the offender and others, to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state or
local government resources.” To achieve the overriding purposes of felony
sentencing, R.C. 2929.11 directs courts to “consider the need for incapacitating the
offender, deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or both.”
{¶9} In addition, R.C. 2929.11(B) instructs that a sentence imposed for a
felony “shall be reasonably calculated to achieve the three overriding purposes of
felony sentencing * * *, commensurate with and not demeaning to the seriousness
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of the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.”
{¶10} “In accordance with these principles, the trial court must consider the
factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s
conduct and the likelihood of the offender’s recidivism.” Silfe at ¶ 12. A sentencing
court has broad discretion to determine how much weight to assign each sentencing
factor in R.C. 2929.12. Id.{¶11} Importantly, in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,
the Supreme Court of Ohio clarified the proper scope of review of felony sentences
imposed in cases, like the present case, where the defendant’s appeal challenges the
trial court’s application of R.C. 2929.11 and 2929.12. In Jones, the court held
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.
{¶12} The court determined in Jones that R.C. 2953.08(G)(2)(a) does not list
R.C. 2929.11 or 2929.12 as valid reasons to modify or vacate a trial court’s sentence.
The Supreme Court of Ohio held that “an appellate court’s determination that the
record does not support a sentence does not equate to a determination that the
sentence is ‘otherwise contrary to law’ as that term is used in R.C.
2953.08(G)(2)(b).” Jones at ¶ 32. Accordingly, pursuant to Jones, an appellate
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court errs if it modifies or vacates a sentence “based on the lack of support in the
record for the trial court’s findings under R.C. 2929.11 and R.C. 2929.12.” Jones at
¶ 29.
Analysis
{¶13} In this case, the trial court indicated it considered the principles and
purposes of sentencing and the appropriate sentencing statutes, specifically citing
them, then ordered Thompson to serve a 24-month prison term. It is not disputed in
this case that the 24-month prison term was within the appropriate statutory range.
Pursuant to R.C. 2929.14(A)(3)(b), the potential prison terms were “nine, twelve,
eighteen, twenty-four, thirty, or thirty-six months.” As the prison term was within
the appropriate statutory range, and the trial court considered the appropriate
statutes, the prison sentence is presumptively valid. State v. Foster, 3d Dist. Union
No. 14-20-17, 2021-Ohio-3408, ¶ 35.
{¶14} In an attempt to undermine the “presumptively valid” sentence in this
matter, Thompson argues that the trial court erred by determining at sentencing that
Thompson committed the offense “as part of an organized criminal activity,” which
is an aggravating factor under R.C. 2929.12(B)(7). However, we emphasize that
pursuant to Jones, we have no authority to modify or vacate a sentence based on
any lack of support in the record for a trial court’s findings under R.C. 2929.12.
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Jones at ¶ 29. This reason alone would constitute a sufficient basis to overrule
Thompson’s assignment of error.
{¶15} Nevertheless, the trial court specifically explained on the record why
it determined that the drug trafficking in this case was part of “organized criminal
activity.” The trial court determined that Thompson possessed a large amount of
methamphetamine, that he committed the transaction with an accomplice, and that
he ultimately engaged in conduct “that’s greater than normal for someone engaged
in solo independent street sales of surplus drugs merely to satisfy a personal
addiction.” (Tr. at 8). The trial court thus supported its determination by facts in
the record. See State v. Lewis, 3d Dist. Marion No. 9-20-49, 2021-Ohio-1692,
(stating, inter alia, that there is not a bright line test for determining what constitutes
organized criminal activity and that organized criminal activity does not have a
singular application).
{¶16} Finally, even if we could consider the trial court’s evaluation of
sentencing factors under R.C. 2929.11 and R.C. 2929.12 in vacating or modifying
a felony sentence, and even if we did find that the trial court’s determination related
to “organized criminal activity” was erroneous, the trial court still made other
findings that supported the sentence in this matter such as the fact that the sale of
over 20 grams of methamphetamine was more serious than the normal type of
offense here. Thompson’s actions had, in fact, been indicted as a second degree
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felony. In addition, the trial court determined that Thompson had a criminal history
and that he had a failure to respond favorably to prior sanctions.
{¶17} For all of these reasons we find that Thompson has not established that
his prison sentence was clearly and convincingly contrary to law. Therefore, his
assignment of error is overruled.
Conclusion
{¶18} For the foregoing reasons the assignment of error is overruled and the
judgment of the Logan County Common Pleas Court is affirmed.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
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