State v. Cottrell , 2023 Ohio 1391 ( 2023 )

[Cite as State v. Cottrell, 2023-Ohio-1391.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
CHIRON S. COTTRELL : Case No. CT2022-0061
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2021-0431
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 27, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN CONNOR DEVER CHRIS BRIGDON
27 North Fifth Street 8138 Somerset Road
P.O. Box 189 Thornville, OH 43076
Zanesville, OH 43702
Muskingum County, Case No. CT2022-0061 2
King, J.
{¶ 1} Defendant-Appellant, Chiron S. Cottrell, appeals his June 6, 2022 sentence
from the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-Appellee is the
state of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 19, 2021, the Muskingum County Grand Jury filed a twenty-
count indictment against Cottrell alleging his involvement in a sophisticated drug
trafficking network using the U.S. Mail for the interstate sale of drugs. On March 21, 2022,
Cottrell pled guilty to one count of engaging in a pattern of corrupt activity (F1) in violation
of R.C. 2923.32 and one count of trafficking in drugs (Methamphetamine) (F2) in violation
of R.C. 2925.03. Both counts included forfeiture specifications. By entry filed June 6,
2022, the trial court sentenced appellant to ten years on the F1 count and two years
mandatory on the F2 count, to be served concurrently.
{¶ 3} Cottrell filed an appeal with the following assignment of error:
I
{¶ 4} "SHOULD (SIC) THIS COURT SHOULD REVERSE THE TRIAL COURT'S
DECISION TO IMPOSE A 10 YEAR SENTENCE ON F1 ENGAGING IN A PATTERN OF
CORRUPT ACTIVITY AND A 2 YEAR MANDATORY SENTENCE ON THE F2
TRAFFICKING DRUGS CONSIDERING THE MITIGATING FACTORS DESCRIBED BY
THE DEFENSE COUNSEL AND THE PSI; BECAUSE, THE SENTENCE WAS IN
CONTRAVENTION OF THE SENTENCING STATUTES R.C. §2929.11 AND R.C.
§2929.12."
Muskingum County, Case No. CT2022-0061 3
I
{¶ 5} Cottrell claims his sentence was in contravention of R.C. 2929.11 and
2929.12. We disagree.
{¶ 6} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That 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,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Muskingum County, Case No. CT2022-0061 4
{¶ 7} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 8} "A sentence is not clearly and convincingly contrary to law where the trial
court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.' " State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶ 9} There is no dispute that the sentences imposed herein are within the
statutory ranges for felonies of the first and second degree. R.C. 2929.14(A)(1) and (2).
In fact, the trial court sentenced Cottrell to the minimum on the F2.
{¶ 10} Cottrell argues his poor health and desire to turn his life around were
mitigating factors to consider and thus he should have been sentenced to the minimum.
He argues the proportionality of his sentence was inconsistent with the principles set forth
in R.C. 2929.11.
{¶ 11} R.C. 2929.11 governs the overriding purposes of felony sentencing and
states the following in pertinent part:
Muskingum County, Case No. CT2022-0061 5
(A) A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. 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 or local government resources. To achieve those
purposes, the sentencing court shall consider the need for incapacitating
the 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.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, 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.
{¶ 12} R.C. 2929.12 governs factors to consider in felony sentencing and states
the following in pertinent part:
(A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter upon an
Muskingum County, Case No. CT2022-0061 6
offender for a felony has discretion to determine the most effective way to
comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code. In exercising that discretion, the court shall
consider the factors set forth in divisions (B) and (C) of this section relating
to the seriousness of the conduct, the factors provided in divisions (D) and
(E) of this section relating to the likelihood of the offender's recidivism, and
the factors set forth in division (F) of this section pertaining to the offender's
service in the armed forces of the United States and, in addition, may
consider any other factors that are relevant to achieving those purposes and
principles of sentencing.
{¶ 13} R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require
the trial court to "use specific language or make specific findings on the record in order to
evince the requisite consideration of the applicable seriousness and recidivism factors."
State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Therefore, although
there is a mandatory duty to "consider" the relevant statutory factors under R.C. 2929.11
and 2929.12, the sentencing court is not required to engage in any factual findings under
said statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17;
State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. "The trial court
has no obligation to state reasons to support its findings, nor is it required to give a
talismanic incantation of the words of the statute, provided that the necessary findings
Muskingum County, Case No. CT2022-0061 7
can be found in the record and are incorporated into the sentencing entry." State v. Webb,
5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.
{¶ 14} As stated by the Supreme Court of Ohio, R.C. 2953.08(G)(2)(b) "does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12." State
v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. "Nothing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12." Id. at 42.
{¶ 15} The Supreme Court of Ohio recently clarified the Jones opinion as follows:
The narrow holding in Jones is that R.C. 2953.08(G)(2) does not
allow an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and
2929.12. See Jones at ¶¶ 31, 39. Nothing about that holding should be
construed as prohibiting appellate review of a sentence when the claim is
that the sentence was imposed based on impermissible considerations—
i.e., considerations that fall outside those that are contained in R.C. 2929.11
and 2929.12. Indeed, in Jones, this court made clear that R.C.
2953.08(G)(2)(b) permits appellate courts to reverse or modify sentencing
decisions that are " 'otherwise contrary to law.' " Jones at ¶ 32, quoting R.C.
2953.08(G)(2)(b). This court also recognized that "otherwise contrary to
law" means " 'in violation of statute or legal regulations at a given time.' "
Muskingum County, Case No. CT2022-0061 8
Id. at ¶ 34, quoting Black's Law Dictionary 328 (6th Ed.1990). Accordingly,
when a trial court imposes a sentence based on factors or considerations
that are extraneous to those that are permitted by R.C. 2929.11 and
2929.12, that sentence is contrary to law. Claims that raise these types of
issues are therefore reviewable.
State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶22.
{¶ 16} Cottrell argues the trial court impermissibly considered prior arrests of
unproven charges thereby violating his due process rights. However, "[c]ourts have
consistently held that 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." Mt. Vernon v. Hayes, 5th Dist. Knox No.
09-CA-00007, 2009-Ohio-6819, ¶ 54. Accord State v. Smith, 5th Dist. Licking No. 09-CA-
42, 2010-Ohio-1232, ¶ 117-118.
{¶ 17} Cottrell cites the case of State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-
2338, 888 N.E.2d 1073, for the premise that his sentence was not proportional and
"shocks the sense of community." Cottrell also cites the Eighth Amendment to the United
States Constitution prohibiting cruel and unusual punishment. However, Cottrell's
sentence is well within the statutory range, a fact he does not challenge. "As a general
rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and
unusual punishment." McDougle v. Maxwell, 1 Ohio St.2d 68,69, 203 N.E.2d 334 (1964).
Muskingum County, Case No. CT2022-0061 9
Accord Hairston at ¶ 21. Further, Cottrell's medical condition is not a factor in the
consideration of cruel and unusual punishment:
In all cases, the United States Supreme Court has applied the Eighth
Amendment prohibition against cruel and unusual punishment to
punishment which is grossly disproportionate to the offense itself. While
defendant, because of his handicaps, may suffer greater hardships in prison
than one without such disabilities, these hardships are not a result of his
conviction or imprisonment but are the result of his physical and mental
conditions which are essentially the same whether defendant is
incarcerated or not. (Emphasis sic.)
State v. O'Shannon, 44 Ohio App.3d 197, 200-201, 542 N.E.2d 693 (10th Dist.1988).
{¶ 18} Accordingly, Cottrell's sentence is neither excessive nor shocking.
{¶ 19} The record demonstrates the trial court received and reviewed the
presentence investigation report, and heard statements from the prosecutor, defense
counsel, and Cottrell himself. The trial court reviewed Cottrell's criminal history which
included prior convictions from 2013, 2007, and 2002. June 2, 2022 T. at 9. The trial
court noted the present case had "a whole bunch of counts dismissed and a bunch of
drugs involved." Id. Cottrell was facing twenty counts and many possible years in prison
before he chose to plead guilty to two counts. The trial court also noted Cottrell's poor
health. Id.Muskingum County, Case No. CT2022-0061 10
{¶ 20} In its sentencing entry, the trial court indicated it considered "the principles
and purposes of sentencing under Ohio Revised Code §R.C. 2929.11 and its balance of
seriousness and recidivism factors under Ohio Revised Code §R.C. 2929.12." The trial
court sentenced Cottrell to terms within the statutory range and ordered them to be served
concurrently. Cottrell has not demonstrated that the trial court imposed the sentence
"based on impermissible considerations—i.e., considerations that fall outside those that
are contained in R.C. 2929.11 and 2929.12." Bryant, supra.
{¶ 21} Upon review, we find the trial court's sentence is not clearly and
convincingly contrary to law. The trial court considered the R.C. 2929.11 and 2929.12
factors, imposed postrelease control, and sentenced Cottrell within the statutory ranges.
{¶ 22} The sole assignment of error is denied.
{¶ 23} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By King, J.
Gwin, P.J. and
Baldwin, J. concur.
AJK/db