State v. Long , 2024 Ohio 3303 ( 2024 )

[Cite as State v. Long, 2024-Ohio-3303.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113406
v. :
LARENZANEY LONG, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 29, 2024
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-22-670511-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Margaret Graham, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Thomas T. Lampman, Assistant Public Defender, for
appellant.
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Larenzaney Long (“Long”) appeals her sentence
and asks this court to vacate the sentence and remand this case for a new
sentencing hearing. We affirm Long’s sentence.
{¶2} On October 11, 2022, Long pleaded guilty to an amended count of
attempted felonious assault, a third-degree felony, in violation of R.C. 2923.02 and
2903.11(A)(1). At the plea hearing, Long was referred to the court psychiatric clinic
and a sentencing hearing was scheduled for November 11, 2022. Journal Entry
No. 131005588 (Oct. 12, 2022). On November 7, 2022, the sentencing hearing was
rescheduled to November 22, 2022, at Long’s request because she missed her
court-ordered psychiatric appointment. The court ordered Long to reschedule the
appointment. On November 22, 2022, the trial court again, rescheduled the
sentencing hearing to December 22, 2022, at Long’s request because she wanted
to get her personal affairs in order and test negative for all illegal substances. On
December 22, 2022, Long arrived late to court, and the trial court issued a capias.
Long objected and the trial court ordered Long to turn herself in on
December 27, 2022, at 10:00 am. The trial court indicated that Long would be held
in custody until the new sentencing hearing on January 19, 2023. The trial court’s
December 22, 2022, journal entry states:
Defendant present in court. Prosecutor(s) [M. A.] present. Court
reporter [J. S.] present. Defendant to turn herself in on 12/27/22 at
10:00. State of Ohio ordered to notify victim of date/time of
sentencing. Sentencing set for 01/19/2023 at 08:30 AM.
Journal Entry No. 135708603 (Dec. 22, 2022).
{¶3} On December 27, 2022, Long filed a motion to reconsider and notice
of her attempt to comply. In Long’s motion, she stated that she arrived at the court
as instructed and tried to turn herself in to the jail. However, the clerk of courts,
the main sheriff’s desk, and then a police sergeant advised her that the trial court’s
December 22, 2022 journal entry was not sufficient enough for her remand and
that no warrant or capias existed that would allow the jail to hold Long.
{¶4} Long’s motion also requested the trial court to take notice of her
attempts to comply with its December 22, 2022 order and to reconsider the order.
Long moved the court to simply hold the sentencing hearing on January 19 without
ordering her remanded. The record does not reflect whether the trial court granted
or dismissed Long’s motion, but it did issue a journal entry on January 5, 2023,
stating that the sentencing date is still January 19, 2023. The trial court also
ordered Long to be screened for eligibility to be placed in the community-based
correctional facility (“CBCF”). Journal Entry No. 136598117 (Jan. 5, 2023).
{¶5} On January 19, 2023, the trial court continued the sentencing hearing
to February 2, 2023, because the court was engaged in trial on another case. On
February 2, 2023, Long failed to appear in court for the sentencing hearing and a
capias was issued. On September 16, 2023, Long was taken into custody and a new
felony case was added. Journal Entry No. 159704248 (Sept. 26, 2023).
[Cite as State v. Long, 2024-Ohio-3303.]
{¶6} On October 6, 2023, Long filed a motion to reinstate bond. In Long’s
motion, she states that she is pregnant with her third child and failed to appear at
the February 2, 2023 sentencing hearing because she was pregnant and learned
about another indictment against her. Long stated that she was scared she would
be sent to prison while pregnant and unable to make arrangements for the care of
her other two children.
{¶7} The trial court set a hearing on the motion for October 18, 2023. At the
motion hearing, Long waived her presence, and the trial court denied the motion.
The trial court also scheduled the sentencing hearing for October 23, 2023. On
October 31, 2023, the sentencing hearing took place. The record does not reflect
why the hearing was rescheduled for a later date.
{¶8} At the sentencing hearing, the trial court imposed a prison sentence of
30 months. The journal entry reflects that the trial court considered all required
factors of the law and found that prison is consistent with the purpose of
R.C. 2929.11. Journal Entry No. 163375075 (Oct. 31, 2023).
{¶9} The trial court allowed the victim to speak at the sentencing hearing.
She stated: “All I really wanted to say is that since that day, everything has
happened, it’s never, ever been the same in my life.” Tr. 64. The trial court asked,
“[w]hat do you mean by that?” To which the victim responded:
I’m supposed to be in school. I don’t go to school anymore because I
can’t focus right since I had got hit by the vehicle. My head has been
blurring, banging bad. So I’ve been trying to get myself still right since
it happened. And I have a heart murmur, liver condition and kidneys
and I’ve been bleeding out real bad to the point I went to the hospital
every other week or so. It’s just — it’s not the same anymore. My life is
not the same. It’s been downhill since everything happened.
Tr. 65.
{¶10} The trial court asked the victim to speak about her injuries. To which
she replied: “Yes, I had a head injury. I was on blood clot — I had a blood clot in
my eye real bad, I couldn’t see. My lip was busted open.” Id. The victim continued
stating that she still is having problems with her eye and is in the process of trying
to obtain therapy for it. Tr. 66. Long apologized to the victim. Tr. 67.
{¶11} The trial court proceeded with sentencing, and the following
exchanged occurred:
THE COURT: Well, Ms. Long, a couple of things I note. Again,
originally we took your plea on October 11th of 2022, and sentencing
was set for November 10th of 2022. And I believe — I don’t recall
whether or not you were out on bond or not prior to that point in time.
But obviously you were out after the plea. We referred you to the Court
Psychiatric Clinic for an appointment for a report to be prepared. We
had to continue the original sentencing at [defense counsel’s] request.
And the reason that is stated in the Court’s journal entry is that you
missed the psychiatric appointment, and so you were re-ordered to
schedule a new appointment, State was to notify victim of the date and
of the new sentencing date, which at that point in time would have been
November 22nd. So November 22nd we gave you the opportunity to
get your personal affairs in order and test negative for all substances.
You continued it to be rescheduled for December 22nd. On December
22nd we were in court and you were ordered to turn yourself in on
December 27th at 10:00 a.m. On December 27th, we came in, [defense
counsel] asked for a motion for reconsideration for your — not sure —
just filed a motion for reconsideration. In any event —
[Cite as State v. Long, 2024-Ohio-3303.]
DEFENSE COUNSEL: I can explain that, your Honor. I would be
happy to, if you want.
THE COURT: That’s okay, thank you. So there’s an entry — the next
entry is dated January 5th. Sentencing remains set for 1/19 and
ordered to be screened for CBCF eligibility. Maybe that’s why we
continued the original sentencing date. There’s a nunc pro tunc entry,
not sure what it’s for. There’s another entry on January 20th that says
sentencing previously set on 1/19/23 is continued to 1/26 at the Court’s
request. We must have been engaged in a trial.
DEFENSE COUNSEL: I believe so, Judge.
THE COURT: There’s another sentencing that was previously set —
JE that indicates that we are still in trial. That was from 1/26, continued
sentencing for February 2nd. On February 2nd she failed appear. So
there’s that. So I will also just say for the record, I agree, [defense
counsel], I hope you know that I have a very high opinion of you,
particularly your advocacy, and I believe it to be a genuine advocacy on
behalf of your client. I do genuinely appreciate that. I appreciate the
time that your office put in here with respect to reintegration plan.
Regrettably, I so wholeheartedly agree with your assessment that we
are putting her in a much worse situation, and her children are just
screwed. But by the way, I’m also a little offended that knowing by the
way that the JE reads, that the writing was on the wall that you were
going to spend a little timeout. You were responsible enough sometime
during that period of time to get pregnant. I’m not that good in math,
if you just had a child in October, sometime around January, February,
whatever, you chose to be irresponsible and have another child. I can’t
begin to express how frustrated and aggravated I am that now you have
put all of us here, all the rest of us taxpayers in a situation that we are
hoping and praying to God that your children survive foster care and
are not standing in front — next to [defense counsel] in 18 years facing
the same situation that you are, because you had a terrible upbringing.
Without specific recollection, by reading the JE, it clearly was my
thought process — and probably again [defense counsel], I mean this
truly in a [complimentary] sense, because of your advocacy, my guess
is that probably originally I was intending to send her to the
penitentiary, however, I’ll again give you the credit of talking me into
the consideration of CBCF, which I’m likely to have done back at that
point in time. However, after considering the purposes and principles
set forth in felony sentencing, one of the factors I’m to consider is
genuine remorse. I can’t imagine how that can be construed for having
been capias after all this time. So I find that you’re not amenable to
community control sanctions. I’m going to impose a 30-month prison
sentence on this case. Because you will be receiving a prison sentence,
you will be subject to PRC for a mandatory period of one year up to a
maximum of three. If you violate any PRC rules or conditions, you
could go back up for half the time. For rule violations on this felony,
that time can be run consecutive. You’re getting credit for time served,
which I do not have that calculation immediately in front of me. I’m not
imposing any further fines, fees or costs.
Tr. 68-72.
{¶12} Long filed this appeal assigning one error for our review:
Long’s sentence is contrary to law because the trial court based
the sentence on unlawful considerations.
I. Sentence Contrary to Law
A. Standard of Review
{¶13} We review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 1, 21. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and
remand a challenged felony sentence if the court clearly and convincingly finds
either that the record does not support the sentencing court’s findings as required
by relevant sentencing statutes or the sentence is otherwise contrary to law. A
sentence is contrary to law if it falls outside the statutory range for the offense or if
the sentencing court failed to consider the purposes and principles of sentencing
set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v.
Pawlak, 2016-Ohio-5926, ¶ 58 (8th Dist.). Conversely, if the sentence is within
the statutory range for the offense and the trial court considered both the purposes
and principles of felony sentencing in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12, the court’s imposition of any prison term for a
felony conviction is not contrary to law. State v. Woodard, 2018-Ohio-2402, ¶ 35
(8th Dist.); see also State v. Clay, 2020-Ohio-1499, ¶ 26 (8th Dist.), citing Pawlak
at ¶ 58.
B. Law and Analysis
{¶14} In Long’s sole assignment of error, she argues that her sentence is
contrary to law because the trial court expressed that it was offended, frustrated,
and aggravated by Long choosing to have another child. A sentence is contrary to
law if it falls outside the statutory range for the offense or if the sentencing court
failed to consider the purposes and principles of sentencing set forth in
R.C. 2929.11 and the sentencing factors in R.C. 2929.12. Pawlak at ¶ 58.
{¶15} ‘‘This court also recognized that ‘otherwise contrary to law’ means ‘in
violation of statute or legal regulations at a given time.’” State v. Bryant, 2022-
Ohio-1878, ¶ 22, quoting State v. Jones, 2020-Ohio-6729, ¶ 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.” Id.{¶16} Long pleaded guilty to attempted felonious assault, a third-degree
felony, in violation of R.C. 2923.02 and 2903.11(A)(1). According to R.C.
2929.14(A)(3)(b), “[f]or a felony of the third degree that is not an offense for which
division (A)(3)(a) of this section applies, the prison term shall be a definite term of
nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”
{¶17} The trial court sentenced Long to 30 months in prison, which is within
the statutory range for the offense. Next, we determine if the trial court failed to
consider the purposes and principles of sentencing set forth in R.C. 2929.11 and
2929.12. “R.C. 2929.11 and 2929.12 list several factors that the trial court must
consider.” State v. Roby, 2023-Ohio-1889, ¶ 10 (8th Dist.).
However, “R.C. 2929.11 and 2929.12 are not fact-finding statutes and
although the trial court must consider the factors, it is not required to
make specific findings on the record regarding its consideration of
those factors, even when imposing a more-than-minimum sentence.”
Id., quoting State v. Artis, 2022-Ohio-3819, ¶ 13 (8th Dist.), citing State v. Pate,
2021-Ohio-1089, ¶ 6 (8th Dist.).
{¶18} “‘Indeed, consideration of the factors is presumed unless the
defendant affirmatively shows otherwise.’” Id., quoting Artis at ¶ 13, citing State
v. Wright, 2018-Ohio-965, ¶ 16 (8th Dist.). “‘Furthermore, a trial court’s statement
in its sentencing journal entry that it considered the required statutory factors is
sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12.’” Id., quoting
Artis at ¶ 13, citing State v. Sutton, 2015-Ohio-4074, ¶ 72 (8th Dist.); State v.
Clayton, 2014-Ohio-112, ¶ 9 (8th Dist.).
{¶19} As stated above, before the trial court sentenced Long, it stated, in
part:
But by the way, I’m also a little offended that knowing by the way that
the JE reads, that the writing was on the wall that you were going to
spend a little timeout. You were responsible enough sometime during
that period of time to get pregnant. I’m not that good in math, if you
just had a child in October, sometime around January, February,
whatever, you chose to be irresponsible and have another child. I can’t
begin to express how frustrated and aggravated I am that now you have
put all of us here, all the rest of us taxpayers in a situation that we are
hoping and praying to God that your children survive foster care and
are not standing in front — next to [defense counsel] in 18 years facing
the same situation that you are, because you had a terrible upbringing.
Without specific recollection, by reading the JE, it clearly was my
thought process — and probably again [defense counsel], I mean this
truly in a [complimentary] sense, because of your advocacy, my guess
is that probably originally I was intending to send her to the
penitentiary, however, I’ll again give you the credit of talking me into
the consideration of CBCF, which I’m likely to have done back at that
point in time.
Tr. 70-71.
{¶20} Although the trial court referenced her pregnancy, those statements
were not used as nonstatutory factors to determine Long’s sentence. Additionally,
Long’s sentence was not imposed based on impermissible considerations — i.e.,
considerations that fall outside those that are contained in R.C.
2929.11 and 2929.12. See Bryant, 2022-Ohio-1878, ¶ 22. The trial court stated at
the sentencing hearing that it considered the purposes and principles set forth in
felony sentencing guidelines. Tr. 71. Additionally, the journal entry states the
court considered all required factors of law and finds that prison is consistent with
the purpose of R.C. 2929.11.
{¶21} The record does not demonstrate that the trial court used the fact that
Long was pregnant as consideration for sentencing. Nor does the record reflect
that Long’s sentence was retaliatory. The trial court stated that it originally was
considering CBCF. However, because Long failed to appear and a capias was
issued, the trial court found that Long was not amenable to community control
sanctions. Tr. 71-72. The trial court also stated that it considered Long’s genuine
remorse, but because Long was capias for more than six months, it “couldn’t
imagine how that can be construed.” Tr. 71. As such, the trial court did not err in
sentencing Long to 30 months’ imprisonment because the sentence is not contrary
to law because it is well within the statutory range for the offense and the record
demonstrates that the trial court considered the purposes and principles of
sentencing set forth in R.C. 2929.11 and 2929.12.
{¶22} Therefore, Long’s sole assignment of error is overruled.
{¶23} Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
________________________________
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
EILEEN T. GALLAGHER, J., CONCUR