State v. McPheron , 2022 Ohio 2186 ( 2022 )

[Cite as State v. McPheron, 2022-Ohio-2186.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-22-01
v.
SARAH ANN MCPHERON, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2021 CR 0098
Judgment Affirmed
Date of Decision: June 27, 2022
APPEARANCES:
Nicholas A. Catania for Appellant
Edwin A. Pierce for Appellee
Case No. 2-22-01
SHAW, J.
{¶1} Defendant-Appellant, Sarah McPheron (“McPheron”), brings this
appeal from the December 22, 2021 journal entry—orders on sentence of the
Auglaize County Common Pleas Court sentencing her to a prison term of thirty-six
months after McPheron pleaded guilty to, and was convicted of, having weapon
under disability, a third degree felony, plus an additional one thousand one hundred
and nineteen days for a post release control violation on a prior manslaughter
charge.
Relevant Facts and Procedural History
{¶2} On May 6, 2021, McPheron was indicted on two counts of having
weapon under disability, third-degree felonies. Count One identified the alleged
disability as McPheron’s conviction of a felony offense of violence, in violation of
R.C. 2923.13(A)(2), and the disability alleged in Count Two was a conviction of a
felony offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse, in violation of (A)(3). After initially
entering a not guilty plea to both counts, McPheron appeared in court with defense
counsel on December 8, 2021 and entered a plea of guilty to Count One pursuant to
plea negotiations, while Count Two would be dismissed. Part of the plea agreement
was that the State agreed to recommend community control and that McPheron
successfully complete the W.O.R.T.H. Center program. Further, pursuant to the
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plea agreement, McPheron acknowledged her understanding of the time remaining
upon a post-release control violation in Case No. 2015-CR-0128. The trial court
accepted McPheron’s plea, found her guilty, and continued sentencing so that an
updated presentence investigation could be prepared.
{¶3} A sentencing hearing was held on December 22, 2021. Pursuant to the
plea agreement, the State recommended that McPheron be sentenced to community
control and ordered to complete the W.O.R.T.H. program, and defense counsel
asked that the trial court follow this recommendation. Then, McPheron read a letter
she had written for the trial court and defense counsel introduced McPheron’s
institution report of completion of a brief intervention program and her attendance
at “NA” meetings as Exhibit A.
{¶4} After stating that it had considered both the purposes and principles of
felony sentencing under R.C. 2929.11 and the seriousness and recidivism factors of
R.C. 2929.12, the trial court sentenced McPheron by terminating her post-release
control and imposing one thousand one hundred and nineteen days of violation time
on a prior manslaughter conviction, consecutive to thirty-six months imprisonment
for having weapon under disability. The trial court advised McPheron that she could
be subject to up to two years of post-release control upon her release from prison.
The sentence was memorialized in a journal entry—orders on sentence filed
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December 22, 2021. It is from this judgment that McPheron appeals, asserting the
following assignment of error for our review.
Assignment of Error
The trial court’s sentence of the defendant-appellant to a sentence
totaling (36) months, being the maximum definite prison term
allowed for the single offense in question, constituted a clear and
convincing violation of the law in failing to properly consider and
apply the felony sentencing guidelines set forth in Ohio Revised
Code, Section 2929.11 and 2929.12.
{¶5} In her sole assignment of error, McPheron asserts that the trial court
failed to properly consider and apply the felony sentencing guidelines set forth in
R.C. 2929.11 and 2929.12 in imposing the maximum prison term of thirty-six
months on the weapon under disability offense. More specifically, McPheron
argues that the facts of the case in the record show a significantly lesser sentence is
warranted by the sentencing factors and therefore, the maximum sentence imposed
is contrary to law.1
Law and Analysis
{¶6} “A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing.” R.C. 2929.11(A). “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
1
No appeal was taken on the one thousand one hundred and nineteen days additional and consecutive
regarding the termination of post-release control on McPheron’s prior offense of manslaughter.
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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.” Id. “A sentence imposed for a felony shall be
reasonably calculated to achieve the three overriding purposes of felony sentencing
set forth in division (A) of this section, commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders.” R.C. 2929.11(B).
{¶7} “To effectuate compliance with these overriding purposes, the Ohio
Revised Code requires the trial court to consider a number of factors listed in R.C.
2929.12.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. “The
R.C. 2929.12 factors direct the trial court to evaluate the seriousness of the offense
and the likelihood of recidivism.” State v. Berry, 3d Dist. Union No. 14-20-05,
2021-Ohio-1132, ¶ 137, citing R.C. 2929.12. Nevertheless, neither R.C. 2929.11
nor 2929.12 requires a sentencing court to make any specific factual findings on the
record. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, ¶ 20.
{¶8} On appeal, we review a challenge to a felony sentence under R.C.
2953.08(G)(2). State v. Wilson, 3d Dist. Allen No. 1-20-46, 2022-Ohio-504, ¶ 144.
However, under Jones, an appellate court may not “independently weigh the
evidence in the record and substitute its judgment for that of the trial court
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concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12,” nor may it “modify or vacate a sentence based on its view that the
sentence is not supported by the record under [those statutes].” Jones at ¶ 39, 42;
see also State v. Toles, --- Ohio St.3d ---, 2021-Ohio-3531, ¶ 1 (affirming sentencing
judgment based on the authority of Jones). Rather, “R.C. 2953.08(G)(2)(b) permits
an appellate court to modify or vacate a sentence if it clearly and convincingly finds
that the sentence is ‘otherwise contrary to law.’ ˮ Jones at ¶ 32.
{¶9} Here, the record demonstrates that the trial court expressly stated both
on the record at the sentencing hearing and in its journal entry that it had considered
the principles and purposes of felony sentencing under R.C. 2929.11 and the
seriousness and recidivism factors under R.C. 2929.12. (Dec. 22, 2021 Sentencing
Tr. at 13; Dec. 22, 2021 Journal Entry-Orders on Sentence at 1). Further, at the
sentencing hearing, the trial court provided a detailed explanation for its sentencing
decision. Specifically, the trial court asserted: “The Defendant helped her former
boyfriend commit an aggravated murder,” “[s]he was involved in a relationship with
that guy [Aaron],” and “[s]he was involved with [Donnie] before she went to prison
for the manslaughter charge.” (Dec. 22, 2021 Sentencing Tr. at 11). The trial court
pointed out that “[s]he got out and within a few weeks, after her release, hooked up
again with Donnie [], whom she knew to be a drug user.” Id. The trial court further
asserted: “It wasn’t until her second Community Control Sanction violation where
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she was, -- knowing she was being caught for her use of cocaine that she then
suddenly, -- oh, and after * * * one (1) of the guys involved had stabbed one of the
other co-conspirators[.]” Id. at 12. Finally, the trial court noted:
This is not just about drug addiction. There certainly are
codependency issues, but the Defendant hooks up with extremely
violent and dangerous people, who get her to do things, as in this case,
take this guy’s weapons. And we’re talking rifles, we’re talking about
scopes. The rifle was reported stolen out of Spaulding County,
Georgia. The Defendant presents an extreme risk to the community.
Her ORAS score is a 31. * * * [Donnie] is scheduled to get out of
prison in January of ’22. [Defendant] reported that her drug use has
always began with Donnie because “that’s what we do.”
Id. at 12-13.
{¶10} The statements made by the trial court clearly indicate that the trial
court considered R.C. 2929.11 and 2929.12 before it imposed McPheron’s
maximum sentence in this case. Further, McPheron has not demonstrated that her
sentence is clearly and convincingly contrary to law. See Wilson at ¶ 146
(recognizing that a sentence is not clearly and convincingly contrary to law for
purposes of R.C. 2953.08(G)(2)(b) where the trial court has considered the purposes
and principles of sentencing in R.C. 2929.11 in addition to the relevant statutory
factors listed in R.C. 2929.12). For this reason, the assignment of error is overruled
and the judgment of the Auglaize County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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