State v. King , 2022 Ohio 3359 ( 2022 )

[Cite as State v. King, 2022-Ohio-3359.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1205
Appellee Trial Court No. CR0202101687
v.
Marcus King DECISION AND JUDGMENT
Appellant Decided: September 23, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
DUHART, J.
{¶ 1} This case is before the court on appeal by appellant, Marcus King, from a
Lucas County Common Pleas Court judgment sentencing appellant to a 17-month prison
term following his conviction on one count of aggravated assault, as well as 775 days for
a violation of post-release control. For the reasons that follow, we affirm.
Assignments of Error
1. The record in the trial court does not support the imposition of a seventeen month
sentence in the ODRC.
2. The trial court abused its discretion by imposing seven hundred and seventy-five
days in the ODRC for a violation of appellant’s post-release control.
Background
{¶ 2} On September 15, 2021, appellant pled guilty pursuant to North Carolina v.
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to aggravated assault, in
violation of R.C. 2903.12(A)(1), a felony of the fourth degree. At his sentencing hearing
on September 29, 2021, appellant was sentenced to 17 months in prison on the
aggravated assault conviction. Further, because appellant was on post-release control in
another case when he committed the aggravated assault, the trial court found appellant in
violation of his post-release control and sentenced him to 775 days in prison, to be served
consecutively to the prison term for the aggravated assault.
{¶ 3} Appellant appealed.
First Assignment of Error
{¶ 4} Appellant argues that the record does not support his sentence. We review
felony sentences under R.C. 2953.08(G)(2). State v. Purley, 6th Dist. Lucas No. L-21-
1216, 2022-Ohio-2524, ¶ 8. R.C. 2953.08(G)(2) allows an appellate court to increase,
reduce, or otherwise modify a sentence, or vacate the sentence and remand for
resentencing if the court finds by clear and convincing evidence that either of the
2.
following apply: (1) “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” or (b) “the sentence is otherwise
contrary to law.”
{¶ 5} Appellant does not argue that the record does not support his sentencing
under any of the specified statutes. Instead, he contends that his 17-month sentence for
the aggravated assault conviction is contrary to law and a violation of R.C. 2929.11(B)
because his sentence is not proportional to his co-defendants’ sentences, both of whom
were sentenced to community control. Appellant maintains that the statements made by
the prosecutor at the plea hearing did not distinguish the individual roles of the
defendants, so there is no basis for appellant’s more severe sentence.
{¶ 6} The state counters that this argument is precluded by the Ohio Supreme
Court case of State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 and
that the trial court’s sentence is not contrary to law under R.C. 2953.08(G)(2)(b).
{¶ 7} Citing Jones, we have previously stated that “neither R.C. 2953.08(G)(2)(a)
or (b) permits us to vacate or modify appellant's sentence if we find the record does not
support the trial court's imposition of a prison term following its consideration of R.C.
2929.11 and 2929.12.” State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-
Ohio-985, ¶ 13. Appellant has argued that his sentence is in violation of R.C.
2929.11(B), which requires, inter alia, that a sentence be “consistent with sentences
imposed for similar crimes committed by similar offenders,” and thus his argument is
based upon the trial court’s consideration of R.C. 2929.11. See also State v. Hayes, 10th
3.
Dist. Franklin No. 08AP-233, 2009-Ohio-1100, ¶ 10, citing State v. Holloman, 10th Dist.
Franklin No. 07AP-875, 2008-Ohio-2650, at ¶ 19 (Decided prior to Jones, the court
stated that “a defendant claiming inconsistent sentencing must show that the trial court
failed to properly consider the statutory sentencing factors and guidelines found in R.C.
2929.11 and 2929.12.”).
{¶ 8} Appellant acknowledges Jones, but attempts to differentiate it by asserting
that “there is no indication from the court’s record at sentencing, other than a passing
statement, that the court even considered proportionality in fashioning Appellant’s
seventeen-month ODRC sentence.”
{¶ 9} “[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any
specific factual findings on the record. In fact, a trial court's consideration of the factors
set forth in R.C. 2929.11 and R.C. 2929.12 is presumed even on a silent record.”
(Citations omitted.) Purley, 6th Dist. Lucas No. L-21-1216, 2022-Ohio-2524, at ¶ 9.
{¶ 10} Here, the court specifically stated that it did consider R.C. 2929.11. The
law does not require any additional findings. Moreover, Jones does not permit us to
reverse appellant’s sentence based on the court’s consideration of R.C. 2929.11.
{¶ 11} Finding no error, we find appellant’s first assignment of error not well-
taken.
Second Assignment of Error
{¶ 12} Appellant argues that the trial court abused its discretion by imposing 775
days – “the entirety of his remaining PRC time” - for the violation of his post-release
4.
control based on a prior conviction. While he acknowledges that he was informed at his
plea hearing that this additional time could be imposed, appellant contends that the court
“did not expound on the amount of time Appellant faced or the likelihood of said time
being imposed,” and that the trial court additionally did not provide any reasoning
regarding the imposition of this additional sentence at the sentencing hearing.
{¶ 13} The state responds that it was within the court’s discretion to impose the
775 days and that appellant did not “cite to any law or case law indicating the trial court
did not have the discretion to do so.”
{¶ 14} When a person who is on post-release control is convicted of or pleads
guilty to a new felony committed while that person was on post-release control, R.C.
2929.141(A)(1) allows a court to terminate the post-release control term and instead
impose a prison term for the post-release control violation in addition to any prison term
for the new felony. This additional prison term is also referred to as a “judicial sanction.”
State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 13. The
maximum prison term that can be imposed for a violation of the post-release control is
“the greater of 12 months or the amount of time that remained on the existing post-
release-control term.” Id. This additional prison term is not mandatory, but if it is
imposed, it must be served consecutively to the prison term for the new felony. Id. It is
not necessary for a trial court to make any findings before imposing consecutive
sentences under R.C. 2929.141(A)(1) when there is a violation of post-release control.
State v. Pena, 6th Dist. Lucas No. L-13-1030, 2014-Ohio-3438, ¶ 12.
5.
{¶ 15} We first note that the proper standard of review of a sentence imposed
under R.C. 2929.141(A)(1) is the standard set forth in R.C. 2953.08(G)(2), not abuse of
discretion. State v. Miller, 12th Dist. Brown No. CA2021-10-014, 2022-Ohio-1798, ¶ 13.
See also State v. Adcock, 6th Dist. Erie No. E-21-045, 2022-Ohio-2523, ¶ 8. R.C.
2953.08(G)(2) permits a court to modify or vacate a sentence if the record does not
support the trial court’s findings under specific enumerated statutes not at issue here, or,
if the sentence is “otherwise contrary to law.”
{¶ 16} A sentence for a violation of post-release control is not contrary to law as
long as it comports with the requirements of R.C. 2929.141.1 State v. Smith, 8th Dist.
Cuyahoga No. 109963, 2021-Ohio-3099, ¶ 25, citing State v. Lehman, 2d Dist.
Champaign No. 2014–CA–17, 2015–Ohio–1979, ¶ 17. In exercising its discretion under
R.C. 2929.141, a trial court must consider the statutory criteria that apply to any felony
offense, including those set forth in R.C. 2929.11 and R.C. 2929.12. Smith at ¶ 25, citing
State v. Rosales, 2d Dist. Champaign No. 2019-CA-21, 2020-Ohio-1646, ¶ 10.
{¶ 17} R.C. 2929.141(A)(1) permits a trial court to impose the maximum
remaining period of post-release control, and appellant has conceded that the 775 days
was “the entirety of his remaining PRC time.” Further, the judge specifically stated that
1 Appellant cites to R.C. 2967.28(F)(4)(d) as an “applicable code section” with regard to
his second assignment of error. However, R.C. 2967.28(F)(4)(d) is not applicable to
appellant’s second assignment of error. R.C. 2967.28(F)(4)(d) “addresses the length of
post-release control to be imposed following an offender's release from prison on a new
felony committed while on post-release control,” not the imposition of a prison term at a
sentencing for a new offense committed while under post-release control. State v. Lux,
2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 69.
6.
she had considered R.C. 2929.11 and R.C. 2929.12. Appellant’s sentence therefore was
not contrary to law.
{¶ 18} Accordingly, we find appellant’s second assignment of error not well-
taken.
Conclusion
{¶ 19} The judgment of the Lucas County Common Pleas Court is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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