State v. Tanner , 2020 Ohio 5413 ( 2020 )

[Cite as State v. Tanner, 2020-Ohio-5413.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-9
:
v. : Trial Court Case No. 2019-CR-117
:
D’AVAUGHNTAE DA’QUAN TANNER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of November, 2020.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JAMES A. ANZELMO, Atty. Reg. No. 0068229, 446 Howland Drive, Gahanna, Ohio
43230
Attorney for Defendant-Appellant
.............
DONOVAN, J.
-2-
{¶ 1} D’Avaughntae Da’Quan Tanner appeals from a judgment of the Clark
County Court of Common Pleas, which convicted him on his guilty plea of one count of
obstructing official business, in violation of R.C. 2921.31, a felony of the fifth degree. The
trial court imposed a 12-month prison sentence. We affirm the judgment of the trial court.
{¶ 2} Tanner was charged by a bill of information on February 25, 2019, and he
entered a guilty plea on April 10, 2019. At the plea hearing, the parties jointly
recommend that the court not violate Tanner’s post-release control at that time; the plea
agreement also called for a presentence investigation (PSI) to be conducted before
sentencing and that Case. No. 2018-CR-711 be dismissed. Tanner waived his right to a
grand jury and 24-hour service of an indictment. The prosecutor then read the following
facts into the record: On October 5, 2018, officers of the German Township Police
Department observed Tanner operating a vehicle and learned that Tanner’s license was
suspended. When officers initiated a traffic stop with lights and siren, Tanner failed to
stop and continued at a speed above the posted limit, “raising the risk of physical harm *
* * and with the effort to delay the officers in making that arrest.” The trial court found
Tanner guilty, and sentencing was set for May 2, 2019.
{¶ 3} On May 1, 2019, Tanner’s attorney filed a motion to continue, noting that
Tanner was getting a mental health assessment and would like to have the results of the
assessment made a part of the PSI. The court granted the motion and rescheduled
sentencing for May 15, 2019. The record reflects that Tanner failed to appear on May
15, and a capias was issued for Tanner’s arrest on June 7, 2019.
{¶ 4} Sentencing occurred on January 17, 2020. At sentencing, the prosecutor
pointed out that, according to the PSI, Tanner had a prior felony conviction for a robbery
-3-
for which he had been sentenced to five years and then placed on community control,
and that in June 2017 Tanner had violated the terms of his community control and a nine-
month sentence was imposed. The prosecutor also noted prior convictions for
obstructing official business, driving under suspension, and theft in which Tanner had
failed to comply with the terms of probation or to pay fines and costs. Based on this
history and the fact that Tanner had not appeared for sentencing in this case, the State
asked to court to find that Tanner was “not amenable to community control sanctions and
[to] impose a prison sentence of at least nine months.”
{¶ 5} The trial court noted that Tanner had failed to appear for sentencing and that
a mental health assessment for which he been granted a continuance had never been
made part of the record. The Court also made the following findings:
As to whether or not the offense is more serious or less serious, I
find no factors indicating that it is more serious than that normally
constituting this offense. There was no - - defendant did not cause or
appear to expect to cause physical harm to persons or property.
As to recidivism, [Tanner] was under release pursuant to [R.C.]
2967.28 [and was on post-release control when this offense was
committed].
Prior adjudications of delinquency, was not rehabilitated to a
satisfactory degree after prior adjudications of delinquency. [Tanner] has
a history of criminal convictions. It appears in most of those cases there
was attempts to help the defendant. I see anger management and mental
health assessment required in 2015 and again in 2017 out of Dayton, Ohio;
-4-
but the defendant has not responded favorably to sanctions previously
imposed.
I find no genuine remorse for the offense. There is no military
service record to consider. The defendant did score low on the Ohio Risk
Assessment Survey.
The Court also now considers the fact that the defendant failed to
appear for [the] disposition eight months ago, which would indicate to the
Court that [the defendant is] not amendable to available community control
sanctions.
The Court there[fore] finds that a prison term is consistent with the
purposes and principles of the Revised Code to punish the defendant and
protect the community.
The defendant’s not amenable to available community control
sanctions. A sentence of imprisonment is commensurate with the
seriousness of [the] conduct and impact on the victim, which in this case is
the community, and does not place an unnecessary burden on state
governmental resources.
{¶ 6} The court’s January 21, 2020 judgment entry of conviction imposed the 12-
month sentence and stated that post release control was “optional for a period of up to
three years.” Tanner filed a motion to stay the sentence, which the trial court overruled.
Tanner also filed a motion to stay in this Court, which the State opposed; we overruled
the motion on September 4, 2020.
{¶ 7} Tanner asserts two assignments of error on appeal. The first assignment of
-5-
error is as follows:
THE TRIAL COURT UNLAWFULLY ORDERED D’AVAUGHNTAE
TANNER TO SERVE A PRISON SENTENCE, INSTEAD OF COMMUNITY
CONTROL, IN VIOLATION OF HER RIGHTS TO DUE PROCESS,
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION AND FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION.
{¶ 8} This Court has noted:
The established standard of review for felony sentences is codified
in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 8-9. The statute empowers an appellate court to
vacate or modify a sentence only if it clearly and convincingly finds that the
record does not support the sentence or that the sentence is contrary to
law. Id. See also State v. Mayberry, 2d Dist. Montgomery No. 27530,
2018-Ohio-2220, ¶ 41. This standard is highly deferential. State v.
Tepfenhart, 2d Dist. Clark No. 2018-CA-81, 2019-Ohio-651, ¶ 15.
State v. Clem, 2d Dist. Clark No. 2019-CA-61, 2020-Ohio-690, ¶ 7.
{¶ 9} R.C. 2929.13(B)(1)(a) provides:
Except as provided in division (B)(1)(b) of this section, if an offender
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, the court
shall sentence the offender to a community control sanction or combination
of community control sanctions if all of the following apply:
-6-
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the court
with the names of, contact information for, and program details of one or
more community control sanctions of at least one year's duration that are
available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded
guilty to a misdemeanor offense of violence that the offender committed
within two years prior to the offense for which sentence is being imposed.
{¶ 10} “This mandate notwithstanding, R.C. 2929.13(B)(1)(b) affords a trial court
discretion to impose a prison term upon a defendant who otherwise would fit within the
scope of division (B)(1)(a) if one or more of the enumerated factors apply.” Clem at ¶ 9.
R.C. 2929(B)(1)(b) provides:
The 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 or that is a qualifying assault offense if any
of the following apply:
***
(ix) The offender at the time of the offense was serving, or the
-7-
offender previously had served, a prison term.
(x) The offender committed the offense while under a community
control sanction, while on probation, or while released from custody on a
bond or personal recognizance.
{¶ 11} We conclude that Tanner has not demonstrated that the record clearly and
convincingly does not support the sentence imposed by the trial court. Tanner had been
previously sentenced to prison and had committed obstructing official business while on
post-release control, and Tanner’s sentence was within the statutory range for a felony of
the fifth degree. R.C. 2929.14(A)(5). Tanner’s first assignment of error is overruled.
{¶ 12} Tanner’s second assignment of error is as follows:
THE TRIAL COURT UNLAWFULLY ORDERED D’AVAUGHNTAE
TANNER TO SERVE A SENTENCE IN AN INSTITUTION FOR MALE
PRISONERS, INSTEAD OF FOR FEMALE PRISONERS, IN VIOLATION
OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶ 13} As this Court has previously noted:
The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution provides that “no State shall * * * deny to any
person within its jurisdiction the equal protection of the laws.” Section 2,
Article I of the Ohio Constitution states: “All political power is inherent in the
people. Government is instituted for their equal protection and benefit, and
they have the right to alter, reform, or abolish the same, whenever they may
deem it necessary; and no special privileges or immunities shall ever be
-8-
granted, that may not be altered, revoked, or repealed by the General
Assembly.” Although worded differently, “[t]he limitations placed upon
governmental action by the Equal Protection Clauses of the Ohio and
United States constitutions are essentially identical.” Beatty v. Akron City
Hosp. (1981), 67 Ohio St.2d 483, 491, 21 O.O.3d 302, 424 N.E.2d 586.
As a general rule, “ ‘[a] person bringing an action under the Equal
Protection Clause must show intentional discrimination against him
because of his membership in a particular class, not merely that he was
treated unfairly as an individual.’ ” Hill v. Croft, Franklin App. No. 05AP–
424, 2005-Ohio-6885, at ¶ 16, quoting Huebschen v. Dept. of Health &
Social Servs. (C.A.7, 1983), 716 F.2d 1167, 1171. “A ‘class of one,’
however, may appropriately maintain an equal protection claim where the
plaintiff alleges both that the state treated the plaintiff differently from others
similarly situated and that no rational basis exists for such difference in
treatment.” Meyers v. Columbus Civ. Serv. Comm., Franklin App. No.
07AP–958, 2008-Ohio-3521, at ¶ 18. In an equal-protection claim,
government actions that affect suspect classifications or fundamental
interests are subject to strict scrutiny by the courts. Eppley v. Tri-Valley
Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908
N.E.2d 401, ¶ 14. In the absence of a suspect classification or
fundamental interest, the state action is subject to a rational-basis test. Id.State v. Turner, 192 Ohio App.3d 323, 2011-Ohio-393, 949 N.E.2d 57, ¶ 24-25 (2d Dist.).
{¶ 14} We note that, near the conclusion of Tanner’s sentencing hearing, the trial
-9-
court indicated that Tanner was “to be conveyed to the Ohio Department of Rehabilitation
and Corrections, care of the Marysville Reformatory for Women in Marysville, Ohio.”
After the court ordered Tanner to pay court costs and conducted other business related
to the case, the proceedings were recessed at 9:34 a.m. The record then reflects that
Tanner’s case was recalled at 11:22 a.m. the same day. At that time, the court indicated
as follows:
The Court is recalling Case No. 19-CR-0117, the State of Ohio versus
D’Avaughntae Tanner.
One matter is a correction. I made out the wrong institution the defendant
was supposed to be transferred to. The correct institution is Orient
Correctional Facility in Orient, Ohio1.
{¶ 15} The court then advised Tanner of the right to appeal. Tanner did not
respond when asked by the court to acknowledge an understanding of those appellate
rights, but counsel for Tanner stated, “He does, Judge.” The court asked the record to
reflect Tanner’s refusal to respond.
{¶ 16} Tanner directs our attention to Doe v. Massachusetts Dept. of Corr., D.
Mass. No. 17-1225-RGS, 2018 WL 2994403 (June 14, 2018). Doe involved a
transgender woman housed in a male prison overseen by the Massachusetts Department
of Correction (“MDOC”). Doe filed a complaint against MDOC and several of its officials,
alleging that she had been discriminated against in violation of the Americans with
Disabilities Act of 1990 and the Rehabilitation Act of 1973 by her placement in a male
1
The court’s judgment entry of conviction, through which it speaks, stated that Tanner
was “ORDERED conveyed to the Ohio Department of Rehabilitation and Correction, c/o
the Orient Facility, Orient, Ohio.”
-10-
prison. Id. at *1. The complaint further alleged that MDOC had failed to make reasonable
accommodations of her Gender Dysphoria disability and alleged violations of the Equal
Protection and Due Process Clauses of the Fourteenth Amendment and violations of the
Federal Civil Rights Act. Id. Insofar as Doe sought relief against MDOC and the
officials who supervised her, we conclude that the case is inapplicable to Tanner’s appeal.
{¶ 17} Significantly, R.C. 5120.01 delegates authority to the Ohio Department of
Rehabilitation and Correction (“ODRC”) to assign inmates to particular institutions,
including by sex. See ODRC Policy No. 79-ISA-05, Lesbian, Gay, Bisexual,
Transgender, Intersex (LGBTI) Policy, (Eff. July 13, 2015). We further note that Tanner
was identified as male in both the presentence investigation report and in the police report
attached thereto. There is nothing in the record from which we can discern that Tanner
is in the wrong institution based upon gender. Moreover, neither Tanner nor his counsel
objected to Tanner’s assignment to a male facility at sentencing. Accordingly, we
presume the regularity of the proceedings below. Tanner’s second assignment of error
is overruled.
{¶ 18} The judgment of the trial court is affirmed.
............
FROELICH, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
James A. Anzelmo
Hon. Richard J. O’Neill