State v. Daniels , 2023 Ohio 2043 ( 2023 )

[Cite as State v. Daniels, 2023-Ohio-2043.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 22CA1157
v. :
CHRISTOPHER DANIELS, II, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant1.
Kris Blanton, Adams County Prosecuting Attorney, and Austin Ervin,
Assistant Prosecuting Attorney, West Union, Ohio, for appellee.
__________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:6-13-23
ABELE, J.
{¶1} This is an appeal from an Adams County Common Pleas Court
judgment of conviction and sentence. Christopher Daniels, II,
defendant below and appellant herein, assigns two errors for
review:
FIRST ASSIGNMENT OF ERROR:
“THE SENTENCE OF THE TRIAL COURT IS CONTRARY TO
LAW.”
1
Different counsel represented appellant during the trial
court proceedings.
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SECOND ASSIGNMENT OF ERROR:
“THE SENTENCE MUST BE SET ASIDE, BECAUSE THE
TRIAL COURT DID NOT PROVIDE PROPER POSTRELEASE
CONTROL NOTIFICATIONS AT SENTENCING, MAKING THE SENTENCE
VOIDABLE.”
{¶2} In February 2021, an Adams County Grand Jury returned an
indictment that charged appellant with two counts of unlawful
sexual conduct with a minor (with a finding the offender is ten or
more years older than the victim) in violation of R.C. 2907.04(A),
both third-degree felonies.
{¶3} On August 15, 2022, appellant pleaded guilty to one count
of the indictment, the trial court dismissed the second count,
ordered a pre-sentence investigation and set the matter for
sentencing. The court further noted that (1) appellant would be
subject to a mandatory Tier II sex offender classification with
registration every 180 days for 25 years, and (2) a mandatory 5-
year post-release control term.
{¶4} At the September 22, 2022 sentencing hearing, the trial
court emphasized that at the time of the offense, a 15-year age
difference existed between the appellant and the 13-year-old
victim. After considering the appropriate statutory factors, the
court ordered appellant to: (1) serve a 30-month prison sentence,
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(2) serve a mandatory maximum 5-year post-release control term, and
(3) register as a Tier II sex offender/child victim offender
registrant. This appeal followed.
I.
{¶5} In his first assignment of error, appellant asserts that
his sentence is contrary to law. In particular, appellant argues
that the record clearly and convincingly demonstrates that the
trial court failed to consider (1) the R.C. 2929.11 purposes and
principles of sentencing, and (2) the R.C. 2929.12 seriousness and
recidivism factors. Further, appellant contends that the trial
court did not fully consider appellant’s record of military
service.
{¶6} When reviewing felony sentences, appellate courts apply
the standard of review outlined in R.C. 2953.08(G)(2). State v.
Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶ 12, citing
State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, ¶
13. Under R.C. 2953.08(G)(2), the appellate court’s standard of
review is not whether the sentencing court abused its discretion.
Instead, R.C. 2953.08(G)(2) specifies that an appellate court may
increase, reduce, modify, or vacate and remand a challenged felony
sentence if the court clearly and convincingly finds either:
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(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.
A defendant bears the burden to establish, by clear and convincing
evidence, that a sentence is either contrary to law or that the
record does not support the specified findings. State v. Poole,
4th Dist. Adams No. 21CA1151, 2022-Ohio-2391, ¶ 11, citing State v.
Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48; State
v. Smith, 4th Dist. Gallia No. 22CA3, 22CA4, 2023-Ohio-681, ¶ 12;
State v. Helterbridle, 4th Dist. Adams No. 21CA1149, 21CA1150,
2022-Ohio-2756, ¶ 9. “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; State v. Whitehead, 4th Dist. Scioto No. 20CA3931,
2022-Ohio-479, ¶ 107.
{¶7} Specifically with regard to R.C. 2929.11 and 2929.12, in
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
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the Supreme Court of Ohio held that R.C. 2953.08(G)(2) does not
permit an appellate court to review whether the record supports a
sentence as a whole under R.C. 2929.11 and 2929.12. Id. at ¶ 30.
The court determined that “[n]othing 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.
{¶8} Here, appellant does not seek a review of the record as a
whole under R.C. 2929.11 and 2929.12, but instead argues that his
sentence is “contrary to law.” “‘[O]therwise contrary to law’
means ‘“in violation of statute or legal regulations at a given
time.”’” State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198
N.E.3d 68, ¶ 22, quoting Jones, supra, at ¶ 34, quoting Black’s Law
Dictionary 328 (6th Ed.1990). Appellant contends that a review of
the record will show clearly and convincingly that the trial court
failed to consider the R.C. 2929.11 purposes and principles of
sentencing and the 2929.12 seriousness and recidivism factors.
Appellant further asserts that the court did not properly consider
his record of military service when making the sentencing
determination.
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{¶9} R.C. 2929.11 addresses the purposes of felony sentencing
and provides:
(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.
* * *
R.C. 2929.12(A) addresses the seriousness of the crime and
recidivism factors and instructs:
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 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
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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.
In addition, R.C. 2929.12(B)-(E) lists various factors for courts
to consider at sentencing. In Poole, 4th Dist. Adams No. 21CA1151,
2022-Ohio-2391, at ¶ 17, this court wrote:
Because both R.C. 2929.11 and R.C. 2929.12 require the
trial court to consider the factors outlined in those two
statutory provisions, State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, then a trial court’s
failure to consider the factors would render the sentence
“in violation of statute and thus “contrary to law.” This
was our established precedent prior to Jones and nothing
in our interpretation of Jones requires us to abandon it.
State v. Allen, 4th Dist. Pickaway No. 19CA31, 2021-Ohio-
648, ¶ 19 (“under the Supreme Court’s decision in Jones, a
reviewing court no longer needs to determine whether a
trial court’s consideration of the factors in R.C. 2929.11
and 2929.12 are supported in the record. The court’s
consideration of the factors enumerated in these statutes
is sufficient”); see also State v. Neal, 4th Dist. Lawrence
Nos. 14CA31 & 14CA32, 2015-Ohio-5452, ¶ 55 (“A sentence
is contrary to law * * * if the trial court fails to
consider the purposes and principles of felony sentencing
set forth in R.C. 2929.11 and the sentencing factors set
forth in R.C. 2929.12"). “Although a trial court has a
mandatory duty to consider the relevant statutory factors
under R.C. 2929.11 and 2929.12, the trial court is not
required to specifically analyze each factor on the record
or to explain its reasoning before imposing a sentence.”
Id. at ¶ 58; Jones at ¶ 20, citing State v. Wilson, 129
Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31.
See also State v. Young, 4th Dist. Ross No. 22CA10, 2022-Ohio-4223,
¶ 5.
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{¶10} In the case sub judice, our review of the transcript and
sentencing entry reveals that the trial court did consider the R.C.
2929.11 and 2929.12 factors, along with appellant’s military
service. The sentencing transcript referenced his military service
and noted that related to mental health, appellant indicated that
he had been “prescribed medications for post-traumatic stress
syndrome, anxiety and depression * * * [and] has received some
mental health treatment.” Thus, it does appear that the trial
court did consider appellant’s military service during sentencing.
Further, a trial court’s statement in its sentencing entry that it
considered the applicable statutory factors is sufficient to
fulfill a court’s obligations under R.C. 2929.11 and 2929.12.
Young at ¶ 6, citing State v. Neal, 4th Dist. Lawrence No. 14CA31 &
14CA32, 2015-Ohio-5452, ¶ 59.
{¶11} Consequently, after our review of the record, we believe
that appellant’s sentence is not clearly and convincingly contrary
to law. Accordingly, we hereby overrule appellant’s first
assignment of error.
II.
{¶12} In his second assignment of error, appellant asserts that
his sentence should be set aside because the trial court did not
provide proper post-release control notifications at sentencing.
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Appellant argues that the trial court gave a “partial but
incomplete notification” about post-release control, informed him
he would be on post-release control for five years upon his release
from confinement and advised him that a post-release control
violation could result in him being returned to prison for up to
one half of his original sentence. Appellant argues, however, that
the court did not advise him that if convicted of a new felony, the
trial court could terminate post-release control and impose a
prison sentence of one year or however much time that remains on
his post-release control, whichever is greater. R.C. 2929.141.
{¶13} Appellant does acknowledge that R.C. 2929.19 does not
require notification of the consequences for committing a new
felony while on post-release control, but contends that the Supreme
Court of Ohio has stated that the offender at sentencing must be
advised of the consequences for violating post-release control.
State v. Bates, 167 Ohio St.3d 197, 2022-Ohio-475, 190 N.E.3d 610,
¶ 11.
{¶14} “At its core, post[-]release control is a sanction; it is
an additional term of supervision after an offender’s release from
prison that imposes certain restrictions on the offender and, if
violated, it allows the [adult parole authority] to impose
conditions and consequences, including prison time, upon the
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offender.” Bates, ¶ 21, citing R.C. 2967.01(N). Post-release
control aims to modify the offender’s behavior and facilitate the
offender’s safe reintegration into the community. Id., citing
Woods v. Telb, 89 Ohio St.3d 504, 512, 733 N.E.2d 1103 (2000);
State v. Lopez, 10th Dist. Franklin No. 21AP-690, 2022-Ohio-2302, ¶
11.
{¶15} A statutorily compliant imposition of postrelease control
requires a trial court to advise a defendant of three things at the
sentencing hearing and in the sentencing entry: “(1) whether
postrelease control is discretionary or mandatory, (2) the duration
of the postrelease-control period, and (3) a statement to the
effect that the [APA] will administer the postrelease control
pursuant to R.C. 2967.28 and that any violation by the offender of
the conditions of postrelease control will subject the offender to
the consequences set forth in that statute.” State v. Grimes, 151
Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 1, overruled on
other grounds by Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159
N.E.3d 248; Gray at ¶ 13. “[A]ny error in the exercise of [the
court’s] jurisdiction in imposing postrelease control renders the
court’s judgment voidable, permitting the sentence to be set aside
if the error [is] successfully challenged on direct appeal.”
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, at ¶ 4.
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{¶16} In the case sub judice, appellant pleaded guilty to one
count of unlawful sexual conduct with a minor (with a finding that
the offender is ten or more years older than the victim) in
violation of R.C. 2907.04(A), a third-degree felony. Under R.C.
2967.28(B) and (C), the trial court was required to inform
appellant at his sentencing hearing that post-release control is
part of his sentence. Effective September 30, 2021, under amended
R.C. 2967.28(B) and (C), an offender convicted of a felony sex
offense is subject to a five-year post-release control term. Here,
the court sentenced appellant after the effective date of amended
R.C. 2967.28(C) and properly imposed a mandatory five-year post-
release control term. As for notifications, the sentencing
transcript reflects the following:
COURT: The prison sentence that I’m gonna find is
appropriate is 30 months, and that will be the stated
prison term in this case. The term of post-release control
will be mandatory for a term of five years upon your release
[from] prison. Uh, Mr. Daniels, if you violate any of the
conditions of supervision by the parole board, the parole
board may impose more restrictive sanctions. They may
impose longer control sanctions up to the maximum of five
years, or they may order that you serve an additional
prison term of up to one half of the stated prison term
that I’m opposing [sic. imposing] today. * * * So, I went
through post release control, I believe already mandatory
for five years.
In the accompanying September 22, 2022 sentencing entry, the
trial court stated in part:
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The Court has further notified the defendant that post
release control is Mandatory in this case for a maximum of
Five (5) years. If the defendant violates a Post Release
Control Sanction or any condition imposed by the Parole
Board under Revised Code Section 2967.28, the Parole Board
may impose a more restrictive sanction, a prison term not
to exceed nine (9) months, for each violation, or a maximum
cumulative prison term for all violations not to exceed
one-half of the stated prison term originally imposed. If
the violation is a new felony, defendant may receive a
prison term of the greater of one year, OR the time
remaining on post release control, IN ADDITION AND/OR
CONSECUTIVE to any other prison term imposed for the new
offense. The defendant is ordered to serve as part of this
sentence any term of post release control imposed by the
Parole Board, and any prison term for violation of that
post release control.
{¶17} The Supreme Court of Ohio has instructed that, once a
court orally provides all the required advisements at the
sentencing hearing, it must incorporate them into the sentencing
entry. Bates at ¶ 12, citing Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 8, overruled on other grounds by Harper, 160
Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. In Harper, the
court clarified that “[w]hen a case is within a court’s subject
matter jurisdiction and the accused is properly before the court,
any error in the exercise of that jurisdiction in imposing
postrelease control renders the court’s judgment voidable.” Id. at
¶ 4.
{¶18} Here, appellant concedes that neither R.C. 2929.19 nor
the Supreme Court of Ohio require notification of the consequences
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for committing a new felony while on post-release control. Yet,
appellant asserts that, because the court in Bates made it clear
that a trial court must advise an offender at sentencing of the
consequences of a post-release control violation, this court should
conclude that trial courts must give the R.C. 2929.141
notification.
{¶19} Appellee, however, cites State v. Mozingo, 2016-Ohio-
8292, 72 N.E.3d 661 (4th Dist.) for the proposition that R.C.
2929.141 is not a mandatory statutory provision required at
sentencing. In Mozingo, the trial court did not inform the
defendant that a prison term imposed for the commission of a new
felony committed during the period he was on post-release control
would be served consecutively to the prison term for the violation
of post-release control. Id. at ¶ 7. We held that “R.C.
2929.141(A) does not require that the trial court in the original
sentencing context to notify a defendant that a court sentencing
the defendant for a subsequent crime can impose additional
sanctions for the violation of post-conviction relief [sic. post-
release control] the defendant of the potential penalties at
sentencing.” Id. at ¶ 29.
{¶20} In State v. Gordon, 153 Ohio St.3d 601, 2018-Ohio-1975,
109 N.E.3d 1201, the Supreme Court of Ohio acknowledged that R.C.
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2929.141(A)(1) and (2) do not require courts to notify an offender
of the penalty provisions contained therein, but also addressed the
question of whether R.C. 2929.19(B)(2)(e) requires a court to
notify an offender at the initial sentencing hearing that under
R.C. 2929.141(A)(1) and (2) a felony committed during post-release
control and imposition of a separate prison term may be served
consecutively to the prison term imposed for the later felony. The
court held:
R.C. 2929.19(B)(2)(e) sets forth one of the notification
duties that trial courts have at sentencing hearings. R.C.
2929.19(B)(2)(e) unambiguously requires that the court
notify the offender that if the offender violates
postrelease control, the parole board may impose a prison
term of up to one-half of the stated prison term originally
imposed upon the offender. R.C. 2929.19(B)(2)(e) does not
impose any other notification requirement on trial courts.
(Emphasis added.)
Id. at ¶ 11.
{¶21} Thus, Gordon concluded that R.C. 2929.19(B)(2)(e) does
not require at the initial sentencing hearing a court provide
notification to an offender of the penalty provisions contained in
R.C. 2929.141(A)(1) and (2). Id. at ¶ 13. Therefore, we conclude
that in the case sub judice the trial court provided proper post-
release control notifications at sentencing.
{¶22} Accordingly, for all of the foregoing reasons, we
overrule appellant’s second assignment of error and affirm the
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trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Adams County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.