State v. Lewis ( 2020 )

[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,
-2-
Case No. 5-20-22
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.
-3-
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
-4-
Case No. 5-20-22
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
-5-
Case No. 5-20-22
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.
-6-
Case No. 5-20-22
{¶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).
-7-
Case No. 5-20-22
{¶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.
-8-
Case No. 5-20-22
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
-9-
Case No. 5-20-22
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
-10-
Case No. 5-20-22
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.
-11-
Case No. 5-20-22
{¶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
-12-