State v. Perkins ( 2024 )

[Cite as State v. Perkins, 2024-Ohio-419.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
MICHAEL PERKINS, : Case No. 23CA00021
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Court of Common Pleas, Case No.
21 CR 00054
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 6, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LINDSEY ANGLER CHRIS BRIGDON
Prosecuting Attorney 8138 Somerset Rd.
Guernsey County, Ohio 43725 Thornville, Ohio 43076
Guernsey County, Case No. 23CA00021 2
Baldwin, J.
{¶1} Appellant Michael Perkins appeals his sentence, imposed after he changed
his plea to guilty pursuant to a negotiated plea agreement. The appellee is the State of
Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On November 20, 2020, the appellant was observed by an Ohio State
Highway Patrol trooper driving a white Jeep on I-70 at approximately 1:00 a.m. The Jeep
had an abnormally and persistently loud exhaust and, as the vehicle passed the trooper,
the appellant leaned back in his seat in such a way so as to obscure himself from the
trooper’s view. As the trooper began to follow the Jeep he ran a check of the license plate,
which came back as registered to a blue Volkswagen. The trooper initiated a traffic stop.
{¶3} When asked for his license and registration, the appellant told the trooper
that he did not have a valid driver’s license. The trooper observed the appellant shaking
and avoiding eye contact when he handed over his State I.D. card. The trooper thereafter
learned that the appellant had two felony warrants for his arrest from Belmont County for
aggravated trafficking of drugs in connection with offenses which had occurred in April of
2020 and in July of 2020.
{¶4} Upon discovery of the outstanding felony warrants, the trooper asked the
appellant to exit the vehicle. The appellant was detained, Mirandized, and advised that a
K-9 unit was coming to the scene, at which time the appellant voluntarily admitted to
having Methamphetamine and marijuana in the vehicle. A search of the vehicle revealed
a plastic bag containing a crystal-like rocky substance which was later identified as
Guernsey County, Case No. 23CA00021 3
Methamphetamine; a plastic bag containing a green leafy plant material; and, a metal
grinder containing green plant residue. It was later determined that the amount of
Methamphetamine the appellant possessed at the time of the stop was more than five
times the bulk amount, but less than fifty times the bulk amount.
{¶5} The appellant was taken to Belmont County and released into the custody
of deputies at the sheriff’s office for transport to the Belmont County Jail in connection
with his outstanding Belmont warrants.
{¶6} On March 5, 2021, the appellant was indicted on one count of aggravated
possession of drugs in violation of R.C. 2925.11(A) and (C) (1)(c), a felony of the second
degree. The indictment was sent to the Belmont County Jail for service upon the
appellant; however, he had been transferred to the Noble Correctional Institute, so the
indictment was returned unserved. Service of the indictment was eventually completed
on or about February 10, 2023. The appellant was arraigned on April 12, 2023, at which
time he pleaded not guilty. He was still incarcerated on the Belmont County offenses at
the time of his arraignment. Trial was scheduled for July 5, 2023.
{¶7} The parties negotiated a plea agreement and, on July 5, 2023, appeared
for a Plea and Sentencing Hearing. A Plea of Guilty: Indefinite Sentencing order was
completed in which the appellant agreed in writing to withdraw his not guilty plea and
enter a plea of guilty to one count of aggravated possession of drugs in violation of R.C.
2925.11(A), a felony of the second degree. The minimum penalty range listed in the plea
of guilty form was two to eight years, with a maximum possible definite term of four years
and longest possible maximum of twelve years. The order was signed by both the
appellant and his trial counsel. The appellee outlined the circumstances surrounding the
Guernsey County, Case No. 23CA00021 4
appellant’s arrest, as well as his criminal history, at the onset of the Plea & Sentencing
Hearing.
{¶8} By way of mitigation, the appellant submitted that his father was a police
officer and special Belmont County deputy before passing away, that his mother is retired
and still living but ill, that he has three brothers living both in Ohio and out of state, and
that he has two sons and three grandchildren.1 He submitted further that he is in poor
health. Based upon these purported mitigating factors, the appellant argued for the
imposition of a four to six year sentence.
{¶9} The trial court engaged in the requisite Crim.R. 11 colloquy with the
appellant. In addition, after reviewing the presentence investigation, the trial court outlined
the appellant’s criminal history as follows: he has a history of criminal convictions which
began in 1991, when he was sentenced to a three to fifteen year prison term from which
he was released in 1994; in 1995 he committed a felony theft offense and was once again
sentenced to prison; he had a persistent disorderly conduct charge in 1999, menacing
charges in 2002 and 2003, resisting arrest and disorderly in 2003, drug paraphernalia in
2006, and theft offenses in both January and June of 2015.
{¶10} In addition, the appellant had a fraudulent schemes felony charge in West
Virginia for which he received a one to ten year prison sentence. Finally, he had the
aforementioned Belmont County drug trafficking charges in 2020 for which he had been
indicted at the time of the November of 2020, Guernsey County aggravated possession
offense, as well as a driving under suspension charge. The appellant was in prison on the
Belmont County charges at the time of the July 5, 2023 Plea and Sentencing Hearing.
1
None of the appellant’s family attended the Plea & Sentencing Hearing .
Guernsey County, Case No. 23CA00021 5
{¶11} The trial court noted that this was the appellant’s sixth felony conviction, in
addition to a number of misdemeanors. Based upon the appellant’s criminal history, the
trial court determined that recidivism was more likely, and that it was necessary to punish
the appellant and to protect the public from future crime. The trial court further found that
the appellant’s record demonstrated that consecutive sentences were necessary.
{¶12} The trial court sentenced the appellant to an indefinite prison term of a
minimum of six years and a maximum of nine years, the first six years of which is
mandatory, all to be served consecutive to his sentence on the Belmont County matters.
On July 6, 2023, the trial court issued a Negotiated Plea/Judgment of
Conviction/Judgment Entry of Sentence memorializing its findings.
{¶13} The appellant filed a timely appeal, and sets forth the following sole
assignment of error:
{¶14} “I. SHOULD [SIC] THIS COURT SHOULD REVERSE THE TRIAL
COURT’S DECISION TO IMPOSE A SIX (6) YEAR SENTENCE; BECAUSE, THE
SENTENCE WAS IN CONTRAVENTION OF THE SENTENCING STATUTES R.C.
§2929.11 AND R.C. §2929.12?”
{¶15} The appellant argues that the trial court erred in imposing sentence. We
disagree.
STANDARD OF REVIEW
{¶16} Felony sentences are reviewed under R.C. 2953.08(G)(2). State v. Goings,
6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, 2014 WL 2480615, ¶ 20. An appellate
court may increase, modify, or vacate and remand a judgment only if it clearly and
convincingly finds either “(a) the record does not support the sentencing court's findings
Guernsey County, Case No. 23CA00021 6
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” or
“(b) the sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No.
S-15-025, 2016-Ohio-4759, 2016 WL 3573887, ¶ 7, citing R.C. 2953.08(G)(2).
ANALYSIS
{¶17} The appellant pleaded guilty to the aggravated possession of drugs in
violation of R.C. 2925.11(A), which provides that “[n]o person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance analog,” a felony of the
second degree. R.C. 2925.11 addresses the potential penalties for drug possession
offenses, and states in pertinent part:
(C) Whoever violates division (A) of this section is guilty of one of the
following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the exception of
marihuana, cocaine, L.S.D., heroin, any fentanyl-related compound,
hashish, and any controlled substance analog, whoever violates division (A)
of this section is guilty of aggravated possession of drugs. The penalty for
the offense shall be determined as follows:
* * *
(c) If the amount of the drug involved equals or exceeds five times
the bulk amount but is less than fifty times the bulk amount, aggravated
possession of drugs is a felony of the second degree, and the court shall
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impose as a mandatory prison term a second degree felony mandatory
prison term.
{¶18} R.C. 2929.14 addresses prison terms, and states in pertinent part:
(A) Except as provided in division (B)(1), (B)(2), (B)(3), (B)(4), (B)(5),
(B)(6), (B)(7), (B)(8), (B)(9), (B)(10), (B)(11), (E), (G), (H), (J), or (K) of this
section or in division (D)(6) of section 2919.25 of the Revised Code and
except in relation to an offense for which a sentence of death or life
imprisonment is to be imposed, if the court imposing a sentence upon an
offender for a felony elects or is required to impose a prison term on the
offender pursuant to this chapter, the court shall impose a prison term that
shall be one of the following:
* * *
(2)(a) For a felony of the second degree committed on or after March
22, 2019, the prison term shall be an indefinite prison term with a stated
minimum term selected by the court of two, three, four, five, six, seven, or
eight years and a maximum term that is determined pursuant to section
2929.144 of the Revised Code, except that if the section that criminalizes
the conduct constituting the felony specifies a different minimum term or
penalty for the offense, the specific language of that section shall control in
determining the minimum term or otherwise sentencing the offender but the
minimum term or sentence imposed under that specific language shall be
considered for purposes of the Revised Code as if it had been imposed
under this division.
Guernsey County, Case No. 23CA00021 8
{¶19} Further, R.C. 2929.13 addresses sentencing guidelines for various specific
offenses and degrees of offenses, and states in pertinent part:
(C) Except as provided in division (D), (E), (F), or (G) of this section,
in determining whether to impose a prison term as a sanction for a felony of
the third degree or a felony drug offense that is a violation of a provision of
Chapter 2925. of the Revised Code and that is specified as being subject
to this division for purposes of sentencing, the sentencing court shall comply
with the purposes and principles of sentencing under section 2929.11 of the
Revised Code and with section 2929.12 of the Revised Code.
(D)(1) Except as provided in division (E) or (F) of this section, for a
felony of the first or second degree, for a felony drug offense that is a
violation of any provision of Chapter 2925., 3719., or 4729. of the Revised
Code for which a presumption in favor of a prison term is specified as being
applicable, and for a violation of division (A)(4) or (B) of section 2907.05 of
the Revised Code for which a presumption in favor of a prison term is
specified as being applicable, it is presumed that a prison term is necessary
in order to comply with the purposes and principles of sentencing under
section 2929.11 of the Revised Code. Division (D)(2) of this section does
not apply to a presumption established under this division for a violation of
division (A)(4) of section 2907.05 of the Revised Code.
{¶20} Thus, the potential sentence for the appellant’s aggravated possession of
drugs was two, three, four, five, six, seven, or eight years, and a maximum term that is
determined pursuant to section 2929.144 of the Revised Code. In addition, the trial court
Guernsey County, Case No. 23CA00021 9
had the discretion to find that the remainder of the appellant’s sentence from the 2020
Belmont County charges be served consecutive to the sentence in the within matter.
{¶21} The appellant argues that the sentence imposed by the trial court failed to
comply with R.C. 2929.11 or properly weigh the factors set forth in R.C. 2929.12. We
disagree. R.C. 2929.11 provides in pertinent part:
(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.
{¶22} Further, R.C. 2929.12 provides in pertinent part:
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(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
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.
(B) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant
factors, as indicating that the offender's conduct is more serious than
conduct normally constituting the offense:
(1) The physical or mental injury suffered by the victim of the offense
due to the conduct of the offender was exacerbated because of the physical
or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.
(3) The offender held a public office or position of trust in the
community, and the offense related to that office or position.
Guernsey County, Case No. 23CA00021 11
(4) The offender's occupation, elected office, or profession obliged
the offender to prevent the offense or bring others committing it to justice.
(5) The offender's professional reputation or occupation, elected
office, or profession was used to facilitate the offense or is likely to influence
the future conduct of others.
(6) The offender's relationship with the victim facilitated the offense.
(7) The offender committed the offense for hire or as a part of an
organized criminal activity.
(8) In committing the offense, the offender was motivated by
prejudice based on race, ethnic background, gender, sexual orientation, or
religion.
(9) If the offense is a violation of section 2919.25 or a violation of
section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a
person who was a family or household member at the time of the violation,
the offender committed the offense in the vicinity of one or more children
who are not victims of the offense, and the offender or the victim of the
offense is a parent, guardian, custodian, or person in loco parentis of one
or more of those children.
(C) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant
factors, as indicating that the offender's conduct is less serious than conduct
normally constituting the offense:
(1) The victim induced or facilitated the offense.
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(2) In committing the offense, the offender acted under strong
provocation.
(3) In committing the offense, the offender did not cause or expect
to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute a defense.
(D) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors indicating
that the offender is likely to commit future crimes:
(1) At the time of committing the offense, the offender was under
release from confinement before trial or sentencing; was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code; was under post-release control pursuant to section 2967.28 or any
other provision of the Revised Code for an earlier offense or had been
unfavorably terminated from post-release control for a prior offense
pursuant to division (B) of section 2967.16 or section 2929.141 of the
Revised Code; was under transitional control in connection with a prior
offense; or had absconded from the offender's approved community
placement resulting in the offender's removal from the transitional control
program under section 2967.26 of the Revised Code.
(2) The offender previously was adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or
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pursuant to Chapter 2152. of the Revised Code, or the offender has a
history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory degree
after previously being adjudicated a delinquent child pursuant to Chapter
2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter
2152. of the Revised Code, or the offender has not responded favorably to
sanctions previously imposed for criminal convictions.
(4) The offender has demonstrated a pattern of drug or alcohol
abuse that is related to the offense, and the offender refuses to
acknowledge that the offender has demonstrated that pattern, or the
offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors indicating
that the offender is not likely to commit future crimes:
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had led a law-
abiding life for a significant number of years.
(4) The offense was committed under circumstances not likely to
recur.
Guernsey County, Case No. 23CA00021 14
(5) The offender shows genuine remorse for the offense.
(F) The sentencing court shall consider the offender's military
service record and whether the offender has an emotional, mental, or
physical condition that is traceable to the offender's service in the armed
forces of the United States and that was a contributing factor in the
offender's commission of the offense or offenses.
{¶23} The appellant argues that there is no “victim” in this case and that this fact,
together with the “mitigating factors” presented, render the trial court’s sentence violative
of Ohio law. The appellant’s arguments are unpersuasive and do not establish that the
trial court failed to comply with R.C. 2929.11(A) or properly weigh the factors set forth in
R.C. 2929.12, particularly in light of the appellant’s lengthy criminal history. The
appellant’s criminal history contains a significant number of criminal offenses which were
committed prior to the offense in this case, including six felony convictions, and is
indicative of the fact that the appellant had not led a law-abiding life for many years prior
to the offense in this case.
{¶24} This court recently addressed sentencing issues in State v. Worden, 5th
Dist. Muskingum No. CT2022-0030, 2022-Ohio-4648:
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. The Ohio
Supreme Court further elucidated in State v. Toles, 166 Ohio St.3d 397,
2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,
Guernsey County, Case No. 23CA00021 15
precludes second-guessing a sentence imposed by the trial court based on
its weighing of the considerations in R.C. 2929.11 and 2929.12.’’
Id. at ¶27.
{¶25} In the case sub judice, the sentence imposed by the trial court on the charge
to which the appellant pleaded guilty complies with the applicable sentencing statutes.
The sentence was within the statutory sentencing range. The appellant has not shown
that the trial court imposed the sentence based upon impermissible considerations, for
example, considerations that fall outside those that are contained in R.C. 2929.11 and
R.C. 2929.12. The record contains evidence supporting the trial court's findings based
upon the applicable law. The trial court did not err in imposing sentence upon the
appellant, and we find no basis for concluding that the trial court’s decision is contrary to
law.
{¶26} The overriding purposes of felony sentencing are, inter alia, to punish the
offender and to protect the public from future crime by the offender. The appellant’s
presentence investigation established that he has a significant criminal history. The
sentence imposed by the trial court achieves the aforesaid statutory purposes, as it
punishes the appellant for his offense and protects the public from future crime by the
appellant. To achieve those purposes, the trial court properly considered the appellant’s
history, the need to incapacitate the appellant, and the need to deter the appellant and
others from committing future crimes. The appellant committed the offense of aggravated
possession of drugs, a second degree felony, while there were two warrants out for his
arrest on charges of aggravated trafficking of drugs, and he has a significant history of
criminal behavior. R.C. 2929.12 gives the trial court the discretion to determine the most
Guernsey County, Case No. 23CA00021 16
effective way to comply with the purposes and principles of sentencing set forth in R.C.
2929.11.
{¶27} Based upon the foregoing, we find that the trial court did not commit error
when it sentenced the appellant. The trial court’s sentencing on the charge to which the
appellant pleaded guilty complies with the applicable rules and sentencing statutes. While
the appellant may disagree with the way in which the trial court weighed those factors,
his sentence was within the applicable statutory range. Accordingly, there is no basis
upon which to conclude that the sentence imposed by the trial court is contrary to law.
CONCLUSION
{¶28} Based upon the foregoing, appellant’s sole Assignment of Error is
overruled, and the judgment of the Guernsey County Court of Common Pleas is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.