State v. Manon ( 2020 )

[Cite as State v. Manon, 2020-Ohio-1003.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 19-CA-55
:
RAMON A. MACEO MANON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 18CR00699
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 13, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CLIFFORD MURPHY MICHAEL S. PROBST
Asst. Licking Co. Prosecutor 1207 Grandview Ave., Suite 205
20 North Second St., 4th Floor Grandview, OH 43212
Newark, OH 43055
Licking County, Case No. 19-CA-55 2
Delaney, J.
{¶1} Appellant Ramon A. Maceo Manon appeals from the June 6, 2019
Judgment of Sentence of the Licking County Court of Common Pleas. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from appellee’s bill of particulars filed
November 2, 2018.
{¶3} On April 21, 2018, the Ohio State Highway Patrol responded to a traffic
crash on State Route 37 north of Mile Post 11 in Licking County, Ohio. Appellant was
operating a 2017 Honda Accord traveling southbound on S.R. 37 south of Alexandria. As
the Honda proceeded southbound, appellant attempted to pass a concrete truck which
was also southbound on S.R. 37. At the same time, a Chevrolet Uplander was traveling
northbound on S.R. 37.
{¶4} The Honda attempted to overtake and pass the concrete truck, which had
a dashcam video system installed in the interior of the cab. The video shows the Honda
as it passes in front of the truck, and records the impact between the Honda and the
Uplander. After impact, the Honda rotates and is struck again by the concrete truck. As
a result of the impact, all parties were transported from the scene to area hospitals. The
airbag module of the Honda established the Honda reached a speed of 81 miles per hour
prior to impact. The posted speed limit in the area is 55 miles per hour.
{¶5} David Doyle, driver of the concrete truck, had to be mechanically extracted
from the truck and life-flighted to Grant Hospital; he sustained serious physical harm.
Licking County, Case No. 19-CA-55 3
Laurine Anderson, passenger in the Uplander, also sustained serious physical harm as a
result of the head-on collision.
{¶6} Appellant operated a motor vehicle under the influence of alcohol and/or
with a per-se violation of alcohol, to wit, 1.82 grams by weight of alcohol per one hundred
milliliters (gram per cent) of whole blood, pursuant to a search warrant for his blood.
Police noted a strong odor of alcohol, slurred speech, glassy and bloodshot eyes, poor
coordination and lack of awareness, and six out of six clues on the H.G.N. field-sobriety
test.
{¶7} Appellant was charged by indictment with two counts of aggravated
vehicular assault pursuant to R.C. 2903.08(A)(1)(a), both felonies of the third degree, and
one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.
{¶8} Appellant entered pleas of not guilty and filed a motion to suppress the
blood test results, his statements, the search of his vehicle, and the observations and
opinions of police investigators including the results of standardized field sobriety tests.
Appellee responded with a memorandum in opposition, and appellant filed a
supplemental motion to suppress on February 19, 2019.
{¶9} On April 10, 2019, a Notice of Intent to Enter a Plea of No Contest was filed.
On April 11, 2019, appellee filed a motion to amend Counts I and II from aggravated
vehicular assault pursuant to R.C. 2903.08(A)(1)(a) to aggravated vehicular assault
pursuant to R.C. 2903.08(A)(2)(b) [felonies of the fourth degree], and to dismiss Count
III, O.V.I. Appellee stated the amendments and dismissal are due to the inability to obtain
a chain of custody documentation from the hospital that collected blood vials from
appellant. The trial court granted appellee’s motion.
Licking County, Case No. 19-CA-55 4
{¶10} On April 11, 2019, appellant appeared before the trial court to enter pleas
of no contest to Counts I and II as amended. The trial court deferred sentencing pending
completion of a pre-sentence investigation (P.S.I.).
{¶11} The sentencing hearing commenced on June 6, 2019. The trial court
imposed prison terms of twelve months each upon Counts I and II, to be served
consecutively.
{¶12} Appellant now appeals from the trial court’s Judgment of Sentence of June
6, 2019.
{¶13} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶14} “I. MR. MACEO MANON’S PRISON SENTENCES FOR THE FOURTH
DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT ARE CONTRARY TO THE
LAW AS THE TRIAL COURT DID NOT INQUIRE OF THE OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION REGARDING PROGRAMS THAT MAY BE
AVAILABLE TO MR. MACEO MANON PRIOR TO IMPOSING A PRISON SENTENCE
AS REQUIRED BY R.C. 2929.13(B)(1)(C).”
{¶15} “II. MR. MACEO MANON’S PRISON SENTENCES FOR THE FOURTH
DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT ARE CONTRARY TO THE
LAW AS THE TRIAL COURT TRANSCENDED ITS DISCRETION WHEN IT STATED
ON THE RECORD THAT ITS SENTENCE WAS BASED IN WHOLE OR IN PART ON
ITS CONCLUSION THAT MR. MACEO MANON WAS GUILTY OF A HIGHER,
DISMISSED CHARGE AND FOR CONSIDERING SUCH EVIDENCE WHEN IMPOSING
A PRISON SENTENCE.”
Licking County, Case No. 19-CA-55 5
{¶16} “III. MR. MACEO MANON’S CONSECUTIVE PRISON SENTENCES FOR
THE FOURTH DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT ARE
CONTRARY TO THE LAW AS THE TRIAL COURT FAILED TO MAKE THE REQUISITE
FINDINGS UNDER R.C. 2929.14(C)(4) AT THE SENTENCING HEARING.”
{¶17} “IV. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
THE IMPOSITION OF A SENTENCE THAT WAS CONTRARY TO LAW.”
{¶18} “V. MR. MACEO MANON’S PRISON SENTENCES FOR THE FOURTH
DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT [ARE] CONTRARY TO THE
LAW WHERE THE COURT FOUND THAT IT HAD DISCRETION TO IMPOSE A
PRISON SENTENCE UNDER OHIO REVISED CODE SECTION 2929.13(B)(1)(B)(II).”
ANALYSIS
I., II., III., and V.
{¶19} Appellant’s first, second, and fifth assignments of error are related and will
be considered together. Appellant argues the imposition of consecutive prison terms
upon his convictions of two felonies of the fourth degree is in error pursuant to R.C.
2929.13. We disagree.
{¶20} We review the imposed sentence under the standard of review set forth
in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. An appellate court may modify or vacate
a sentence only if the appellate court finds 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.” Id. A sentence is not clearly and convincingly
contrary to law where the trial court “considers the principles and purposes of R.C.
Licking County, Case No. 19-CA-55 6
2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease
control, and sentences the defendant within the permissible statutory range.” State v.
Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶
36. Thus, this court may “increase, reduce, or otherwise modify a sentence only when it
clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported
by the record.” State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d
1217 ¶ 1.
{¶21} Appellant cites the following language in [former] R.C. 2929.13(B)(1)(c) as
support for his argument that the trial court was required to impose a term of community
control instead of prison:
If a court that is sentencing an offender who is convicted of or
pleads guilty to a felony of the fourth or fifth degree that is not an
offense of violence or that is a qualifying assault offense believes that
no community control sanctions are available for its use that, if
imposed on the offender, will adequately fulfill the overriding
principles and purposes of sentencing, the court shall contact the
department of rehabilitation and correction and ask the department
to provide the court with the names of, contact information for, and
program details of one or more community control sanctions that are
available for persons sentenced by the court. Not later than forty-five
days after receipt of a request from a court under this division, the
department shall provide the court with the names of, contact
information for, and program details of one or more community
Licking County, Case No. 19-CA-55 7
control sanctions that are available for persons sentenced by the
court, if any. Upon making a request under this division that relates
to a particular offender, a court shall defer sentencing of that offender
until it receives from the department the names of, contact
information for, and program details of one or more community
control sanctions that are available for persons sentenced by the
court or for forty-five days, whichever is the earlier.
{¶22} As appellee points out, however, pursuant to R.C. 2929.13(B)(1)(b)(ii), the
trial court has discretion to impose a prison term upon an offender who is convicted of or
pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence if
the offender caused physical harm to another person while committing the offense. In
the instant case, appellant caused serious physical harm to two victims and physical harm
to additional victims in the crash. Appellant argues, without citation, that the trial court
did retain discretion to impose a prison term where the defendant caused physical harm,
but “the trial court must contact ODRC and request information concerning available
community control programs.” Brief, 4. We find no such requirement in the plain
language of the statute.
{¶23} The presumption of a community-control sanction is subject to the
exceptions listed in R.C. 2929.13(B)(1)(b). The exception that the trial court found
applicable in this case, R.C. 2929.13(B)(1)(b)(ii), permits a court, in its discretion, to
impose a term of imprisonment for a nonviolent fourth-degree felony after finding that “the
offender caused physical harm to the victim while committing the offense.” (Emphasis
added.) State v. Jones, 1st Dist. Hamilton No. C-140299, 2015-Ohio-1189, ¶ 10, citing
Licking County, Case No. 19-CA-55 8
State v. Barnes, 11th Dist. Trumbull No. 2012–T–0049, 2013–Ohio–1298, ¶ 16. In the
instant case, appellee noted at sentencing that the exception to community-control
applied, and the trial court found the prison term was warranted due to, e.g., the extent of
the injuries sustained by the victims. T. Sentencing, 11-12.
{¶24} Appellant next argues that the trial court erred in considering evidence of
the more serious felonies as originally indicted, and the O.V.I. charge which was
dismissed. We have reviewed the record of the sentencing hearing and do not find that
the remarks of the trial court were improper, much less that they constitute a reason to
invalidate the sentence.
{¶25} In State v. Bailey, 5th Dist. Ashland No. 14-COA-008, 2014-Ohio-5129, at
¶ 26, we stated the following regarding the impact of those factors the trial court may
consider during sentencing:
* * * *. Appellant also takes issue with the emphasis the trial
court placed on his drug abuse and voluntary admissions contained
within the P.S.I., but such information is solidly relevant to the
sentencing analysis. Evidence of other crimes, including crimes that
never result in criminal charges being pursued, or criminal charges
that are dismissed as a result of a plea bargain, may be considered
at sentencing. State v. Starkey, 7th Dist. Mahoning No. 06 MA 110,
2007–Ohio–6702, ¶ 17, citing State v. Cooey, 46 Ohio St.3d 20, 35,
544 N.E.2d 895 (1989). Furthermore, what the defendant is originally
charged with and whether the charge is reduced in exchange for a
plea is relevant to the court in determining the appropriate sentence.
Licking County, Case No. 19-CA-55 9
State v. Hill, 7th Dist. Mahoning No. 13 MA 1, 2014–Ohio–919, ¶ 35.
Our review of a felony sentence includes: (1) the P.S.I.; (2) the trial
court record; and (3) any oral or written statements made to or by the
court at the sentencing hearing. R.C. 2953.08(F). Allegations against
an offender which never resulted in criminal charges may be
contained within a P.S.I. Cooey, 46 Ohio St.3d at 35, 544 N.E.2d
895. This information is part of a defendant's social history and
worthy of consideration by the courts during the sentencing phase.
Id.{¶26} We find the trial court’s remarks were not improper and the trial court was
required to consider the circumstances of the crash, the injuries of the victims, and
appellant’s comments in the P.S.I.
{¶27} Finally, appellant argues the trial court failed to make the required findings
to impose consecutive sentences. In Ohio, there is a statutory presumption in favor of
concurrent sentences for most felony offenses. R.C. 2929.41(A). The trial court may
overcome this presumption by making the statutory, enumerated findings set forth in R.C.
2929.14(C) (4). State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659,
¶ 23. This statute requires the trial court to undertake a three-part analysis. State v.
Alexander, 1st Dist. Hamilton Nos. C–110828 and C–110829, 2012–Ohio–3349, 2012
WL 3055158, ¶ 15.
{¶28} R.C. 2929.14(C)(4) provides,
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
Licking County, Case No. 19-CA-55 10
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and
to the danger the offender poses to the public, and if the court also
finds any of the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control for
a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses committed
as part of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶29} In State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659,
syllabus, the Supreme Court of Ohio stated that: “In order to impose consecutive terms
of imprisonment, a trial court is required to make the findings mandated by R.C.
Licking County, Case No. 19-CA-55 11
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.”
{¶30} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C.
2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing
entry. Id. at the syllabus. However, a trial court's inadvertent failure to incorporate the
statutory findings in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to reflect what
actually occurred in open court. Bonnell, ¶ 30.
{¶31} In the instant case, the record does support a conclusion that the trial court
made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences. We are able to discern that the trial court engaged in the correct analysis and
the record contains evidence to support the findings:
THE COURT: * * * *. I have considered the statements of the
parties, the overriding purposes of felony sentencing, and the
relevant seriousness and recidivism factors. I’ve considered the
presentence investigation report, victim impact statements, the
letters in support of the Defendant. Taking all of these factors into
Licking County, Case No. 19-CA-55 12
consideration, I find that this is a prison sentence due to the—the
nature of the injuries that the victims sustained here, and frankly the
underlying circumstances here. * * * *.
I’m going to impose a prison term on each count; twelve
months on each count. Those will be ordered to be served
consecutively with one another. * * * *.
I find that any presumption in favor of concurrent terms in this
case is overcome by the fact that concurrent terms would not
adequately punish the offender, protect the public, and that it would
demean the seriousness of the offense.
* * * *.
T. Sentencing, 12-13.
{¶32} We find that the record in the case at bar clearly and convincingly supports
the trial court's findings under R.C. 2929.14(C)(4). We find by clear and convincing
evidence that the record does support the trial court's findings under the relevant statutes
and the sentence is not contrary to law.
{¶33} Appellant’s first, second, third, and fifth assignments of error are overruled.
IV.
{¶34} In his fourth assignment of error, appellant argues he received ineffective
assistance of trial counsel because the defense trial counsel did not object to his
purportedly-improper sentence. In light of our conclusions supra that appellant’s
sentence is not contrary to law or otherwise improper, we disagree.
Licking County, Case No. 19-CA-55 13
{¶35} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted
incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In
assessing such claims, “a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S.
91, 101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective assistance
in any given case. Even the best criminal defense attorneys would not defend a particular
client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel
acted “outside the wide range of professionally competent assistance.” Id. at 690.
{¶36} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
{¶37} In the instant case, we have found that appellant’s sentence was proper,
supra. We are therefore unable to find that defense trial counsel erred in failing to object
to the sentence, much less that appellant suffered any prejudice therefrom. Appellant
has not established ineffective assistance of counsel and the fourth assignment of error
is overruled.
Licking County, Case No. 19-CA-55 14
CONCLUSION
{¶38} Appellant’s five assignments of error are overruled and the judgment of the
Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.