State v. Lewis ( 2020 )


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  • [Cite as State v. Lewis, 
    2020-Ohio-6890
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    HANCOCK COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 5-20-22
    v.
    STEVEN R. LEWIS,                                          OPINION
    DEFENDANT-APPELLANT.
    Appeal from Hancock County Common Pleas Court
    Trial Court No. 2019 CR 438
    Judgment Affirmed
    Date of Decision: December 28, 2020
    APPEARANCES:
    Brian A. Smith for Appellant
    Steven M. Powell for Appellee
    Case No. 5-20-22
    PRESTON, J.
    {¶1} Defendant-appellant, Steven R. Lewis (“Lewis”), appeals the April 29,
    2020 judgment of sentence of the Hancock County Court of Common Pleas. For
    the reasons that follow, we affirm.
    {¶2} On October 13, 2019, Lewis’s vehicle was stopped by an officer of the
    Findlay Police Department. Following the stop, the officer ordered Lewis to exit
    the vehicle. The officer then conducted a search of Lewis’s person, during which
    the officer discovered “[a] one by one inch bag” containing suspected
    methamphetamine as well as suspected methamphetamine “in the inside band of
    [Lewis’s] hat.” (Doc. No. 25).
    {¶3} On October 22, 2019, the Hancock County Grand Jury indicted Lewis
    on one count of aggravated possession of drugs in violation of R.C. 2925.11(A), a
    third-degree felony. (Doc. No. 1). On October 30, 2019, Lewis appeared for
    arraignment and pleaded not guilty. (Doc. No. 7).
    {¶4} A change of plea hearing was held on February 25, 2020. At the change
    of plea hearing, the State requested that the single count of the indictment be
    amended from third-degree felony aggravated possession of drugs to fifth-degree
    felony aggravated possession of drugs. (Doc. No. 33); (Feb. 25, 2020 Tr. at 4). The
    trial court granted the State’s request, and Lewis subsequently pleaded guilty to the
    amended count. (Doc. Nos. 30, 33). The trial court accepted Lewis’s guilty plea,
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    found him guilty, and ordered the preparation of a presentence investigation report
    (“PSI”). (Id.).
    {¶5} On April 20, 2020, the trial court sentenced Lewis to 12 months in
    prison. (Doc. No. 35). The trial court filed its judgment entry of sentence on April
    29, 2020. (Id.).
    {¶6} On May 21, 2020, Lewis filed a notice of appeal. (Doc. No. 39). He
    raises one assignment of error for our review.
    Assignment of Error
    Because the record, as shown by clear and convincing evidence,
    does not support the trial court’s findings, pursuant to R.C.
    2953.08(G)(2), the trial court’s sentence of Appellant was not
    supported by the record.
    {¶7} In his assignment of error, Lewis argues that the trial court erred by
    sentencing him to 12 months in prison.
    {¶8} 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.” 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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    Case No. 5-20-22
    {¶9} “‘Trial courts have full discretion to impose any sentence within the
    statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 
    2015-Ohio-4225
    , ¶
    9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 
    2014-Ohio-5485
    , ¶ 9, citing
    State v. Saldana, 3d Dist. Putnam No. 12-12-09, 
    2013-Ohio-1122
    , ¶ 20. As a fifth-
    degree felony, aggravated possession of drugs carries a sanction of 6 to 12 months’
    imprisonment. R.C. 2925.11(A); R.C. 2929.13(B)(2); R.C. 2929.14(A)(5).
    {¶10} In this case, Lewis was sentenced to 12 months’ imprisonment.
    Accordingly, the trial court’s sentence is within the statutory range. “‘[A] sentence
    imposed within the statutory range is “presumptively valid” if the [trial] court
    considered applicable sentencing factors.’” State v. Nienberg, 3d Dist. Putnam Nos.
    12-16-15 and 12-16-16, 
    2017-Ohio-2920
    , ¶ 10, quoting State v. Maggette, 3d Dist.
    Seneca No. 13-16-06, 
    2016-Ohio-5554
    , ¶ 31, quoting State v. Collier, 8th Dist.
    Cuyahoga No. 95572, 
    2011-Ohio-2791
    , ¶ 15.
    {¶11} R.C. 2929.11 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 and local government
    resources.”   R.C. 2929.11(A).     To achieve the overriding purposes of felony
    sentencing, R.C. 2929.11 directs courts to “consider the need for incapacitating the
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    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.”
    
    Id.
     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 of the
    offender’s conduct and its impact upon the victim, and consistent with sentences
    imposed for similar crimes committed by similar offenders.” “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.” Smith at ¶ 10, citing R.C. 2929.12(A). “‘A
    sentencing court has broad discretion to determine the relative weight to assign the
    sentencing factors in R.C. 2929.12.’” Id. at ¶ 15, quoting State v. Brimacombe, 
    195 Ohio App.3d 524
    , 
    2011-Ohio-5032
    , ¶ 18 (6th Dist.), citing State v. Arnett, 
    88 Ohio St.3d 208
    , 215 (2000).
    {¶12} From the record, it is clear that the trial court sentenced Lewis after
    considering the overriding purposes of felony sentencing set forth in R.C.
    2929.11(A) and the relevant R.C. 2929.12(B)-(E) factors. First, at the sentencing
    hearing, the trial court stated that it “consider[ed] the relevant statutory
    requirements, [R.C.] 2929.11, which are * * * the principles and purposes of
    sentencing” as well as “the factors under [R.C.] 2929.12, which are * * * seriousness
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    and recidivism factors.” (Apr. 20, 2020 Tr. at 7). Furthermore, in its judgment entry
    of sentence, the trial court stated that it had “considered * * * the principles and
    purposes of sentencing under the guidelines of [R.C.] 2929.11 and the seriousness
    and recidivism factors under [R.C.] 2929.12.” (Doc. No. 35). “A trial court’s
    statement that it considered the required statutory factors, without more, is sufficient
    to fulfill its obligations under the sentencing statutes.” Maggette at ¶ 32, citing State
    v. Abrams, 8th Dist. Cuyahoga No. 103786, 
    2016-Ohio-4570
    , citing State v. Payne,
    
    114 Ohio St.3d 502
    , 
    2007-Ohio-4642
    , ¶ 18. Therefore, the record establishes that
    the trial court fulfilled its obligation to consider R.C. 2929.11 and 2929.12 when it
    sentenced Lewis.
    {¶13} Nevertheless, Lewis argues that, for a number of reasons, his sentence
    is not supported by the record. First, Lewis argues that “the record shows that none
    of the factors were present making [his] conduct ‘more serious than conduct
    normally constituting the offense.’” (Appellant’s Brief at 6). Indeed, at the
    sentencing hearing, the trial court acknowledged that “other than the amount of
    drugs that were on [Lewis] * * *, there is nothing particularly better or worse about
    these facts than any other facts of a similar nature.” (Apr. 20, 2020 Tr. at 8). Thus,
    the record supports that while the trial court considered whether any of the R.C.
    2929.12(B) and (C) seriousness factors applied, the trial court gave those factors
    little to no weight when it imposed Lewis’s sentence.
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    {¶14} Yet, this does not render Lewis’s sentence unsupported by the record
    because it is clear that the trial court’s sentencing decision was driven by its
    evaluation of the recidivism factors contained in R.C. 2929.12(D) and (E) and its
    determination that, in light of these factors, Lewis was likely to commit future
    crimes. With respect to the factors indicating that Lewis was not likely to commit
    future crimes, the trial court noted that Lewis acknowledged that he was “wrong for
    what [he] did” and that he deserved to be punished. (Apr. 20, 2020 Tr. at 9).
    Accordingly, the trial court considered whether Lewis was less likely to reoffend
    because he expressed genuine remorse. See R.C. 2929.12(E)(5). However, this was
    the only factor that suggested that Lewis was unlikely to reoffend, and the trial court
    stated that the remaining factors “indicate that recidivism is more likely.” (Apr. 20,
    2020 Tr. at 9). The trial court recognized that Lewis had a juvenile record, including
    an adjudication for conduct that would have been a felony if committed by an adult.
    (Id.); (PSI at 3-4). See R.C. 2929.12(D)(2). The trial court also noted that Lewis
    has “an adult record that includes theft offenses, violations of protection orders,
    offenses of violence, [and] drug and alcohol related offenses.” (Apr. 20, 2020 Tr.
    at 9); (PSI at 4-7). See R.C. 2929.12(D)(2). Specifically, the trial court observed
    that Lewis went to prison in 2014 for third-degree felony intimidation of a crime
    victim or witness and that he went to prison in 2015 for trafficking in heroin and
    permitting drug abuse. (Apr. 20, 2020 Tr. at 9-10); (PSI at 6).
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    {¶15} Furthermore, the trial court highlighted instances in Lewis’s history
    that demonstrate that Lewis has not responded favorably to sanctions previously
    imposed for criminal convictions. See R.C. 2929.12(D)(3). The trial court observed
    that after the conclusion of Lewis’s prison term for trafficking in heroin and
    permitting drug abuse, he committed additional misdemeanor offenses. (Apr. 20,
    2020 Tr. at 10); (PSI at 6). The trial court also noted that Lewis was sentenced to
    another prison term in 2018 for possession of heroin and trafficking in heroin, for
    which he was granted judicial release in September 2018. (Apr. 20, 2020 Tr. at 10);
    (PSI at 6). However, Lewis did not comply with the terms of his judicial release,
    and he was terminated unsuccessfully in September 2019—a little more than a
    month before he committed the offense in the instant case. (Apr. 20, 2020 Tr. at
    10); (PSI at 6-7). Finally, the trial court observed that Lewis was charged with and
    convicted of criminal damaging in Seneca County while out on bond in the instant
    case. (Apr. 20, 2020 Tr. at 10); (PSI at 7).
    {¶16} Based on its consideration of the R.C. 2929.12(D) and (E) recidivism
    factors, the trial court concluded that “recidivism is more likely,” and after review,
    we conclude that the record supports the trial court’s conclusion. (Apr. 20, 2020 Tr.
    at 10). As noted above, the trial court has broad discretion to weigh the relevant
    sentencing factors, and a sentence is not unsupported by the record simply because
    the trial court gave more weight to some sentencing factors than it did to others.
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    Therefore, although the trial court did not determine that Lewis’s conduct was more
    serious than conduct normally constituting the offense, because the record supports
    the weight given by the trial court to the R.C. 2929.12(D) and (E) recidivism factors,
    we conclude that Lewis’s sentence is not unsupported by the record.
    {¶17} Next, Lewis argues that his sentence is unsupported by the record
    because “[t]he record does not show that the trial court properly considered the
    possibility of rehabilitation in sentencing [him].” (Appellant’s Brief at 7). He
    contends that “the trial court appears to have rejected the possibility of community
    control, possibly including treatment,” in favor of a prison sentence and that the trial
    court’s decision not to impose a community control sanction shows that it failed to
    consider a sentence that would “promote the effective rehabilitation of the offender”
    as required by R.C. 2929.11(A). (Id.).
    {¶18} We disagree. The record reflects that the trial court was well aware of
    Lewis’s substance abuse problems and his likely need for rehabilitation. At the
    sentencing hearing, the trial court stated that “there are probably drug and alcohol
    issues that need to get addressed.” (Apr. 20, 2020 Tr. at 11). Moreover, after the
    trial court pronounced its sentence, it “strongly suggest[ed]” that Lewis “take
    advantage of what [he] can while [he is in prison], in terms of the counseling and
    treatment and things that are available.” (Id. at 22). Based on the trial court’s
    statements at the sentencing hearing, it appears that a key factor in the trial court’s
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    decision to sentence Lewis to a prison term, rather than a less restrictive sanction
    that might have included drug and alcohol treatment, was the trial court’s conclusion
    that Lewis’s “criminal history * * * indicate[s] [that he does not] follow court orders
    well.” (See id. at 11-12). The record certainly supports the trial court’s concerns in
    this respect. Therefore, contrary to Lewis’s argument, the record establishes that
    the trial court was cognizant of Lewis’s need for rehabilitation, and the record
    further suggests that the trial court might have believed that Lewis was more likely
    to be effectively rehabilitated in prison than on community control. In any event, it
    is clear that the trial court properly considered all of the purposes and principles of
    felony sentencing as required by R.C. 2929.11.
    {¶19} Finally, Lewis argues that “[t]he record * * * shows that the trial court
    failed to consider current conditions in the Ohio incarceration system due to the
    ongoing COVID-19 pandemic.” (Appellant’s Brief at 8). He maintains that
    “[w]hile not specifically codified as a sentencing factor, the trial court should have
    considered issues of prison overcrowding in fashioning its sentence, which it could
    have considered as ‘substantial grounds to mitigate the offender’s conduct, although
    the grounds are not enough to constitute a defense.’” (Id.). See R.C. 2929.12(C)(4).
    {¶20} Lewis’s argument is without merit. We do not believe that R.C.
    2929.12(C)(4) can be applied in the way urged by Lewis.             In general, R.C.
    2929.12(C)(4) directs the trial court to consider the offender’s distinguishing
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    personal characteristics and the particular details of the offender’s conduct when
    determining whether the offender’s conduct is less serious than conduct normally
    constituting the offense. See State v. Will, 10th Dist. Franklin No. 18AP-759, 2019-
    Ohio-3906, ¶ 24 (“[A]n offender’s physical and psychological state can be
    considered as a mitigating factor, under R.C. 2929.12(C)(4), when the offender’s
    physical and psychological state is relevant to the offender’s conduct.”); State v.
    Legg, 4th Dist. Pickaway No. 14CA23, 
    2016-Ohio-801
    , ¶ 56-58 (noting that an
    offender’s youth and status as an accomplice, rather than as a principal, may be
    considered as substantial grounds to mitigate the offender’s conduct). Logistical
    issues inherent in the imprisonment of an offender, such as whether an offender can
    be safely housed in the midst of an ongoing pandemic, have no logical relationship
    to the seriousness of an offender’s conduct.1 See Will at ¶ 25 (“[T]he added cost to
    imprison appellee due to his physical illness has no bearing on the seriousness of
    [his] criminal conduct. * * * [T]he fact that it may cost the state more money to
    incarcerate [him] due to his medical condition does not mitigate his prior conduct *
    * *.”). Accordingly, we conclude that the trial court did not err by not considering
    prison overcrowding and the COVID-19 pandemic as “substantial grounds to
    mitigate” Lewis’s conduct.
    1
    We recognize that, in fashioning a felony sentence, the trial court must “us[e] the minimum sanctions that
    [it] determines accomplish [the purposes of felony sentencing] without imposing an unnecessary burden on
    state or local government resources.” R.C. 2929.11(A). However, Lewis based his argument in R.C.
    2929.12(C)(4), rather than in the purposes and principles of felony sentencing.
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    {¶21} In conclusion, the trial court properly considered the purposes and
    principles of felony sentencing and applied the relevant R.C. 2929.12 factors.
    Furthermore, Lewis’s sentence is within the statutory range. Accordingly, there is
    not clear and convincing evidence that Lewis’s sentence is unsupported by the
    record or that his sentence is otherwise contrary to law. See Nienberg, 2017-Ohio-
    2920, at ¶ 23.
    {¶22} Lewis’s assignment of error is overruled.
    {¶23} Having found no error prejudicial to the appellant herein in the
    particulars assigned and argued, we affirm the judgment of the trial court.
    Judgment Affirmed
    WILLAMOWSKI and ZIMMERMAN, J.J., concur.
    /jlr
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Document Info

Docket Number: 5-20-22

Judges: Preston

Filed Date: 12/28/2020

Precedential Status: Precedential

Modified Date: 12/28/2020