State v. Harris , 2024 Ohio 246 ( 2024 )

[Cite as State v. Harris, 2024-Ohio-246.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112549
v. :
RAYSHAWN HARRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 25, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-664681-A, CR-22-674711-A, and CR-23-678460-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Omar Siddiq and Gregory Ochocki,
Assistant Prosecuting Attorneys, for appellee.
Mary Catherine Corrigan, for appellant.
LISA B. FORBES, J.:
Rayshawn Harris (“Harris”) appeals his five-to-six-year prison
sentence, which was imposed after he pled guilty to burglary, attempted felonious
assault, and two counts of operating a vehicle while under the influence of alcohol
(“OVI”). After reviewing the facts of the case and pertinent law, we affirm the trial
court’s decision.
I. Facts and Procedural History
On January 31, 2023, Harris pled guilty to burglary in violation of
R.C. 2911.12(A)(1), a second-degree felony, with a notice-of-prior-conviction
specification; attempted felonious assault in violation of R.C. 2923.02 and
2903.11(A)(1), a third-degree felony; and OVI in violation of R.C. 4511.09(A)(1)(a),
a fourth-degree felony.
On February 4, 2023 — four days later — Harris was charged with
another OVI. On March 16, 2023, Harris pled guilty to his most recent OVI, bringing
his total to six OVI convictions.
Also on March 16, 2023, the court sentenced Harris to an indefinite
term of two-to-three years in prison for the burglary, to run concurrent to two years
in prison for the attempted felonious assault, to run consecutive to 18 months in
prison for each of the two OVIs. Harris’s aggregate prison term is five-to-six years.
Harris appeals raising three assignments of error for our review:
I. The trial court’s sentence was contrary to law.
II. The appellant’s constitutional right to due process was violated
when the trial court was neither impartial or neutral.
III. The trial court erred by imposing an unconstitutional sentence
pursuant to the Reagan Tokes Act.
II. Felony Sentencing
R.C. 2953.08(G)(2) provides, in part, that when reviewing felony
sentences, the appellate court’s standard is not whether the sentencing court abused
its discretion; rather, if this court “clearly and convincingly” finds that (1) “the record
does not support the sentencing court’s findings under * * * (C)(4) of section 2929.14
* * *” or (2) “the sentence is otherwise contrary to law,” then we may conclude that
the court erred in sentencing. See also State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231. In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,
169 N.E.3d 649, ¶ 39, the Ohio Supreme Court clarified that R.C. 2953.08(G)(2)
“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.”
A sentence is not clearly and convincingly contrary to law “where the
trial court considers the purposes and principles of sentencing under R.C. 2929.11
as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly
applies post-release control, and sentences a defendant within the permissible
statutory range.” State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525,
¶ 10.
Pursuant to R.C. 2929.11(A), the three 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.”
Additionally, the sentence imposed shall be “commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact on the victim,
and consistent with sentences imposed for similar crimes committed by similar
offenders.” R.C. 2929.11(B).
Furthermore, in imposing a felony sentence, “the court shall consider
the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the
conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the
likelihood of the offender’s recidivism * * *.” R.C. 2929.12. However, this court has
held that “[a]lthough the trial court must consider the principles and purposes of
sentencing as well as the mitigating factors, the court is not required to use
particular language or make specific findings on the record regarding its
consideration of those factors.” State v. Carter, 8th Dist. Cuyahoga No. 103279,
2016-Ohio-2725, ¶ 15.
In his first assignment of error, Harris argues that the trial court
“blatantly failed to take into consideration [R.C.] 2929.12” and 2929.11. Specifically,
Harris argues that the court “disregarded [his] serious alcoholism and need for help,
by stating that he believed [Harris] did not want help.” We note that Harris does
not challenge the postrelease control aspect of his sentence or whether his sentence
is within the statutory range. Therefore, we need not review these issues.
Our review of the record shows that the trial court considered the
following at Harris’s sentencing hearing relating to R.C. 2929.11 and 2929.12.
Harris’s presentence-investigation report indicates that “the victim
suffered a fractured jaw” as a result of Harris assaulting her in front of her five-year-
old child. The record also indicates that the “victim was beaten so badly that she
was unconscious until the morning * * *.” Concerning the seriousness of Harris’s
conduct, the court stated the following: “You know, did you just pummel her with
your fists in front of her five year old, strangled her threw her down the steps? That’s
enough for me.”
Defense counsel stated the following on the record:
My client is 38 years old. As you know he has a 13-year-old son. He
was employed. He has the support of his family.
He also has a serious alcohol addiction. Which absent that underlying
issue we — we are probably not here today. We are probably — and he’s
probably not here on prior occasions in various courts.
Defense counsel stated that Harris makes “good decisions” when he
is sober, noting that Harris appeared in court knowing he was going to prison. “And
he is here today willing to accept the consequences for his actions on these various
dates.” Defense counsel read letters from Harris’s brother, mother, and employer,
all of which showed support for Harris. Defense counsel also noted “the remorse
[Harris] feels for the injuries that he inflicted on the victim in this case.”
Harris stated the following on the record:
I would like to apologize to the victim * * * in this situation. I would
like to apologize to you as well * * * for you giving me an opportunity
and blowing it.
And I w[ould] also like to just — I would like to say sorry for the things
that I’ve done.
And that’s — and that alcohol is a major problem with me, and — and
that it definitely played a factor in a lot of everything that has gone on.
The court repeatedly asked Harris why he assaulted the victim, and
Harris repeatedly answered that “alcohol played a part” in the situation. According
to Harris, other than the alcohol, he did not know “what was the cause” of the
altercation. The court continued:
I’m just going to tell you, you want to come in here to this court, blame
everything on alcohol, and I’m not buying it. I’m not buying it.
Because there’s plenty of people that have alcohol and drug problems
and they’re not violent.
And you’ve been given every opportunity in the world to clean up your
act.
And you’ve thumbed your nose at your parents, at your boss, at your
girlfriend, at the former person in your life, you’ve assaulted her.
So for the record, because he’s going to prison for a substantial period
of incarceration, I want to indicate that this is the record that this
individual has: He has * * * first of all, four prior [OVI] convictions. In
Cuyahoga County Common Pleas Court, in Bedford, in Willoughby, in
Cleveland Municipal Court.
As to Harris’s criminal history, the court found that when he was 21
years old, he was charged with attempted murder, four counts of felonious assault,
and aggravated riot. Ultimately, Harris pled guilty to aggravated assault and was
sentenced to prison. Harris was ordered to abstain from alcohol, bars, and “illegal
drug usage,” and he was “ordered into substance abuse counseling” multiple times.
Harris was convicted of various crimes in 2008 and 2009, including drug abuse and
burglary. In 2010, Harris was convicted of domestic violence. In 2012, he was
convicted of trespassing, in 2013, he was convicted of trafficking in marijuana, and
in 2016, he was convicted of disorderly conduct, criminal damaging, and child
endangering. Harris’s criminal history continued with additional convictions in
2017, 2019, and 2020.
The court noted on the record that Harris was “given every
opportunity in the world to rehabilitate” himself, but his “crimes are becoming even
more violent.” The court stated that Harris had a “careless disregard, some would
say ruthless indifference to the safety of the people in the community.”
In the court’s journal entry memorializing Harris’s felony sentence,
the court stated that it “considered all required factors of the law.”
As noted previously in this opinion, the R.C. 2929.11 and 2929.12
factors that a court must consider when imposing a felony sentence include the
purposes and principles of sentencing, the seriousness of the offender’s conduct, and
the likelihood of recidivism. This court has held that “consideration of the factors is
presumed unless the defendant affirmatively shows otherwise.” State v. Phillips,
8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 8.
Given Harris’s extensive criminal history, most notably his six OVI
convictions, and the harm he caused the assault victim, we find that he failed to
overcome the presumption that the trial court considered the appropriate statutory
factors when imposing an aggregate prison sentence of five-to-six years.
Accordingly, Harris’s first assignment of error is overruled.
III. Impartiality of Trial Court
In his second assignment of error, Harris argues that his
“constitutional rights * * * were violated when the Trial Court made it known that
he doesn’t like people like” him. “It was obvious that [Harris’s prison sentence was]
not based on the cold impartiality of justice, rather the personal disgust the Trial
Court held for” him.
This court has held that “it is incumbent upon the judiciary to remain
detached and neutral in any proceeding before it. * * * When determining whether
or not a trial judge’s comments were appropriate, a reviewing court must decide
whether the remarks were prejudicial to a defendant’s right to a fair” proceeding.
State v. Blazer, 8th Dist. Cuyahoga No. 93980, 2010-Ohio-6367, ¶ 49. “A judge is
presumed to be unbiased and unprejudiced over the matters in which she or he
presides.” State v. Bonnell, 8th Dist. Cuyahoga No. 91785, 2009-Ohio-2721, ¶ 12.
The court stated the following on the record at Harris’s January 31,
2023 plea hearing, after Harris entered his guilty plea. We include what some may
consider an unusually lengthy portion of the transcript. Under the circumstances of
the present case, we find that the trial court’s words best speak for themselves.
THE COURT: Okay. You’ve got five [OVIs]. You just pled guilty to
your fifth [OVI]. What does that tell you about you?
HARRIS: I need some help in that area.
THE COURT: No. Look, help’s been available. Help is available.
People told you you need help for years, you just won’t do it.
HARRIS: I need to apply myself better.
***
THE COURT: You’re engaged in this self-destructive behavior that
results in you having to go to prison over a relationship for what you
did. Five [OVIs], you’re still drinking. Most reasonable people would
say, You know what, I got some problems, I’ve got some behavioral
issues, I got conviction, but not you. Not you. You understand that I
can revoke your bond and incarcerate you right now?
HARRIS: Yes, I do.
THE COURT: I could also say, Okay, you have now violated your bond
and I can sentence you to a state penal institution on the F2 for 8 years
right now, which could become 12 years. I could do that right now.
That’s the awesome power I have. And you, forgive me, are screwing
with society. It’s my job to uphold the peace and dignity of the State of
Ohio, and you’re out there just on a terror, just won’t give it up. Okay?
And you’re talking to a guy who has presided over one tragedy after
another where thoughtless, reckless people like you get behind the
wheel of a car and kill somebody over and over and over again, and I’ve
had to deal with grieving families because of guys like you. Did you
drive to court today?
HARRIS: No, my dad, he brought me.
THE COURT: Is your dad here?
HARRIS: Yes.
THE COURT: Has your dad told you to deal with your alcohol and drug
problems over the years? Look at your father. Did he tell you over the
years? Your father’s shaking his head yes. Right, father?
[FATHER]: Yes, sir.
***
THE COURT: Were you drinking [on the night of the burglary and
attempted felonious assault]?
HARRIS: Was I drinking that night? No.
THE COURT: You know, it’s so interesting, just looking at you and
listening to your hesitation to a simple question demonstrates to me all
I need to know. Was I drinking? Um, you mean that night?
HARRIS: No, I —
THE COURT: No, no, no, don’t interrupt me. I want to impersonate
you. Was I drinking? Oh, you mean that night? Oh, well, it was like
this, we was — were you drinking or not the night that you nearly killed
the woman?
HARRIS: No.
THE COURT: No? So you were stone-cold sober and you made the
decision to go over and physically assault her? Now you want to change
the answer to the question, don’t you?
HARRIS: No, no, I don’t want to change my answer, because I didn’t
go over there intoxicated. That’s what you asked me.
THE COURT: Okay, you’re being clever now. You’re being real clever,
because that wasn’t my question. You’ve already denied you used
alcohol.
HARRIS: Yes. I’m just trying —
THE COURT: Okay, just a minute, don’t interrupt me. So my question
was, You went over there sober, and being of sober mind and sound
judgment, you went over there and assaulted this woman where she
had to spend a week in the hospital? Is that what you’re telling me?
HARRIS: Yes.
THE COURT: You weren’t drunk? Do you want to tell me that you
were using drugs? What explains that behavior? Why would a sober
person do that? Okay, see, you caught yourself in a lie. You shouldn’t
have done that. You’re still drinking, why? You haven’t gone to
CA/NA/AA?
HARRIS: Yes, I go to AA meetings. Actually, my dad, he’s a sponsor
and so he —
THE COURT: He’s a sponsor, he’s in AA?
HARRIS: Yes.
THE COURT: And he can’t — and again, this is not about him
influencing you, because your behavior is not just about drinking.
HARRIS: It’s just been an —
THE COURT: Don’t interrupt me.
HARRIS: Sorry.
THE COURT: Your behavior is not about drinking, because you just
told me that when you assaulted that woman you were stone-cold
sober. So you’re just an angry or evil guy, or whatever. It ain’t about
drinking because you told me it didn’t happen when you were drinking.
You can’t blame it on the drink. We don’t care about the AA, it’s beyond
that. You got a problem, because I don’t like violent offenders who
abuse people like you have. And additionally, there’s testimony from
the victim in the case that you’ve assaulted her in the past.
And as far at the victim is concerned, has he assaulted you in the past
when he’s been intoxicated?
[THE VICTIM]: Every single time.
THE COURT: And this latest event he was intoxicated?
[THE VICTIM]: Very.
THE COURT: And he lied to the Court, therefore?
[THE VICTIM]: Yes, he did.
THE COURT: And he caught himself in a lie, because it would have
been actually better for you to be drunk and go over, but no, no, you’re
sober now, and you went over there stone-cold sober and assaulted her.
So now, as a result of your behavior and the State’s motion to revoke
your bond, I’m going to place you under house arrest without any
exceptions whatsoever. You’re going to be remanded to the county jail,
you’re going to stay there until you get an ankle bracelet on.
HARRIS: I have an ankle bracelet on.
THE COURT: Okay. Then you are remanded to your house, no work
release privileges, no — you’re at home. And the next time I talk to you,
you better demonstrate that my little conversation with you here today
has changed your attitude and that you have a new consciousness,
because you could be facing murder charges right now. This woman
was knocked unconscious, if I’m not mistaken; is that correct?
[THE VICTIM]: That’s correct.
The court then had a brief conversation on the record with the victim,
which established that the victim’s five-year-old son witnessed Harris assaulting his
mother. The court continued:
THE COURT: I wonder what impact that’s going to have on [the
victim’s son’s] life going forward, but you don’t care. Also, you’re
required to report weekly. No alcohol, no drugs, no pot if you don’t
have a medical marijuana card. If you test positive even one more time,
you not only will be incarcerated in the Cuyahoga County jail, but I’ll
immediately go forward with sentencing and you can look forward to
doing the maximum period of incarceration.
Your behavior is destructive to the peace and dignity of the State of
Ohio. It’s my job to be a hero for those that live in this society, okay, to
uphold the standard, so that people aren’t attacked in their own home.
Five [OVIs], that tells me so much about you. You don’t care a thing
about anybody else, you just care about yourself. So I think I’ve
probably been loud and clear, you better do the right thing going
forward. It would be great if you listen to your father’s advice.
***
THE COURT: Do you have children?
HARRIS: Yes.
THE COURT: How many?
HARRIS: One.
THE COURT: How old?
HARRIS: My son will be 13 this year.
THE COURT: Okay. I presume he’s in the custody of his mother?
HARRIS: I mean, we coparent, but we go back and forth, but he lives
with his mom, yes.
THE COURT: I hope he lives with his mother the majority of his time,
because you got issues. You exposed a [five]-year-old to a terrible
night. I’ve handled it, he’s on house arrest. Go home, stay there, don’t
go anywhere. I’m not even going to give you permission to go to
AA/CA/NA, because I know you’d just use it as a joke. So you’re
grounded, you’ll be at home. If you violate the terms and conditions of
your court-supervised release, I’m going to immediately incarcerate
you. Thank you very much.
While we do not condone the trial judge’s harsh, sanctimonious, and
at times misguided comments, we cannot say that these remarks prejudiced Harris.1
Harris is not challenging his guilty plea in this direct appeal, and our review of his
first assignment of error resulted in our finding that his prison sentence was not
clearly and convincingly contrary to law. In fact, the court sentenced Harris to less
than the maximum prison term. One of the offenses to which Harris pled guilty was
a second-degree felony, which is punishable by a prison term of up to eight years.
R.C. 2929.14(A)(2). Harris was sentenced to two-to-three years in prison for this
second-degree felony. Therefore, we cannot say that the trial court “acted from
personal animosity when imposing [Harris’s] sentence.” Bonnell, 8th Dist.
Cuyahoga No. 91785, 2009-Ohio-2721, at ¶ 21.
Accordingly, Harris’s second assignment of error is overruled.
IV. Constitutionality of Reagan Tokes Law
In his third and final assignment of error, Harris argues that the
Reagan Tokes Law, which applies to prison sentences imposed for various felony
offenses, is unconstitutional under the Sixth Amendment right to trial by jury, the
separation-of-powers doctrine, and the due process clause of the Fourteenth
1 We are mindful of the Ohio Supreme Court’s recent opinion in Disciplinary
Counsel v. Gaul, Slip Opinion No. 2023-Ohio-4751.
Amendment. Pursuant to the Ohio Supreme Court’s holding in State v. Hacker,
which addressed and rejected all three of these arguments, this assignment of error
is overruled. State v. Hacker, Slip Opinion No. 2023-Ohio-2535, ¶ 40 (holding that
the Reagan Tokes Law “is not facially unconstitutional” as it relates to separation of
powers, trial by jury, and due process rights).
Accordingly, Harris’s third assignment of error is overruled.
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.
LISA B. FORBES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MICHAEL JOHN RYAN, J., CONCUR