State v. Brandon , 2016 Ohio 227 ( 2016 )

[Cite as State v. Brandon, 2016-Ohio-227.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO : Appellate Case Nos. 2014-CA-143
: Appellate Case Nos. 2014-CA-144
Plaintiff-Appellee : Appellate Case Nos. 2014-CA-145
:
v. : Trial Court Case Nos. 14-CR-653
: Trial Court Case Nos. 14-CR-519
DAWAUNE BRANDON : Trial Court Case Nos. 14-CR-596
:
Defendant-Appellant : (Criminal Appeals from
: Common Pleas Court)
:
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OPINION
Rendered on the 22nd day of January, 2016
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RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHARLES W. MORRISON, Atty. Reg. No. 0084368, Post Office Box 41450, Dayton,
Ohio 45441
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Dawaune Brandon appeals his consecutive sentences for drug-possession
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offenses. Brandon argues that the record does not support the trial court’s findings, under
R.C. 2929.14(C)(4), that consecutive service is necessary to protect the public from future
crime by him and to punish him and that consecutive sentences are not disproportionate
to the seriousness of his conduct and to the danger that he poses to the public. The trial
court’s findings in this case are not clearly and convincingly unsupported by the record,
so we affirm.
I. Background
{¶ 2} On August 11, 2014, Brandon was indicted on four felonies in Case No.
2014-CR-519: trafficking in cocaine, a second-degree felony, with a specification that the
offense was committed within the vicinity of a school; trafficking in heroin, a third-degree
felony, also with a specification that the offense was committed within the vicinity of a
school; possession of cocaine, a third-degree felony; and possession of heroin, a second-
degree felony. There was also a specification requesting that he forfeit to the state $454
under R.C. Chapter 2981. While Brandon was out on bond in that case, he committed
five more felonies for which he was indicted on September 8 in Case No. 2014-CR-596:
trafficking in cocaine in the vicinity of a school, a second-degree felony; possession of
cocaine, a third-degree felony; trafficking in heroin in the vicinity of a school, a first-degree
felony; possession of heroin, a second-degree felony; and receiving stolen property (a
motor vehicle), a fourth-degree felony. The following month, October, Brandon was
indicted on two felonies in Case No. 2014-CR-653 that he had committed before the
felonies in the other two cases: carrying a concealed weapon, a fourth-degree felony, and
possession of cocaine, a fifth-degree felony.
{¶ 3} Brandon entered into a plea agreement under which he pleaded guilty in
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Case No. 2014-CR-519 to possession of heroin and forfeited $454, pleaded guilty to
possession of heroin in Case No. 2014-CR-596, and pleaded guilty to possession of
cocaine in Case No. 2014-CR-653. All of the other charges in the cases were dismissed.
The trial court sentenced Brandon to 4 years, 2 years, and 12 months in prison,
respectively. The court found that “consecutive sentences are necessary to protect the
public from future crime and to punish the Defendant and that consecutive sentence [sic]
are not disproportionate to the seriousness of the Defendant’s conduct or to the danger
that he poses to the public,” and that Brandon “committed one or more offenses while
awaiting trial or sentencing on a previous offense.” (Sentencing Tr. 9). Consequently the
court ordered him to serve the sentences consecutively, for a total of 7 years in prison.
{¶ 4} Brandon appealed.
II. Analysis
{¶ 5} The sole assignment of error alleges that the trial court erred by requiring
Brandon to serve the sentences consecutively. Section 2929.14(C)(4) of the Revised
Code permits a court to require the consecutive service of multiple prison terms “if the
court finds that the consecutive service is necessary to protect the public from future crime
or to punish the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.”
The court must also find one of three facts listed in the section, one of which is that the
offender committed one of the offenses while awaiting trial. R.C. 2929.14(C)(4)(a). The
trial court here made all three required findings.
{¶ 6} Brandon admits that he committed one of the offenses while awaiting trial,
but he challenges the other two required findings. He contends that the record does not
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support finding that consecutive sentences are necessary to protect the public from future
crime or that consecutive sentences are not disproportionate to the seriousness of the
offenses.
{¶ 7} “R.C. 2953.08(G)(2) is the appellate standard of review for all felony
sentences, including consecutive sentences.” State v. Bittner, 2d Dist. Clark No. 2013-
CA-116, 2014-Ohio-3433, ¶ 8. When a defendant challenges a trial court’s consecutive-
sentence findings, “R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record,
including the findings underlying the sentence’ and to modify or vacate the sentence ‘if it
clearly and convincingly finds * * * [t]hat the record does not support the sentencing court’s
findings under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ ” State v.
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting R.C.
2953.08(G)(2)(a).
{¶ 8} The Ohio Supreme Court has said that “a trial court is required to make the
findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry, but it has no obligation to state reasons to support its
findings.” Id. at the syllabus. Neither R.C. 2929.11 nor 2929.12 requires trial courts to give
reasons for their sentencing decisions or to make specific findings. R.C. 2929.11 requires
only that courts be guided by certain principles (like the purposes of felony sentencing)
and consider certain matters (like deterrence and rehabilitation). And R.C. 2929.12
requires courts only to consider factors relating to the seriousness of an offender’s
conduct and the likelihood of recidivism. “Trial courts, therefore, are required to consider
the factors set forth in R.C. 2929.12, but they need not articulate their considerations
explicitly on the record.” State v. Mabra, 2d Dist. Clark No. 2014-CA-147, 2015-Ohio-
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5493, ¶ 56. Indeed, this Court and the Ohio Supreme Court have held that “even a silent
record raises the presumption that the trial court considered the factors contained in R.C.
2929.12.” Id., citing State v. Adams, 37 Ohio St. 3d 295, 525 N.E.2d 1361 (1988),
paragraph three of the syllabus, and State v. Carlton, 2d Dist. Montgomery No. 26086,
2014-Ohio-3835, ¶ 18 (observing that “we have held on more than one occasion that a
trial court’s consideration of the statutory sentencing factors may be presumed from a
silent record”).
{¶ 9} In making sentencing decisions, “a trial court may rely on ‘a broad range of
information.’ ” State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43,
quoting State v. Bowser, 186 Ohio App. 3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d
Dist.). The court may consider, among other things, “prior arrests, facts supporting a
charge that resulted in an acquittal, and facts related to a charge that was dismissed
under a plea agreement.” Id. A court may also consider “allegations of uncharged criminal
conduct found in a PSI [presentence investigation] report.” Bowser at ¶ 15.
{¶ 10} At the sentencing hearing here, the trial court said that it had reviewed the
PSI report1 and considered R.C. 2929.11 and 2929.12. As to the more-serious factors in
R.C. 2929.12(B), the court found that Brandon “was selling drugs which, by the nature of
the offense, is part of an organized criminal activity,” R.C. 2929.12(B). (Sentencing Tr. 6).
None of the less-serious factors in R.C. 2929.12(C) applied, found the court. As to the
recidivism factors in R.C. 2929.12(D), the court found that Brandon had committed the
Case No. 14-CR-519 offense in June 2014 for which he was indicted on August 11. A
1Although the PSI report was not in the record, we sua sponte ordered that the record
be supplemented with the report and we have reviewed it.
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week after his indictment, on August 19, while he was out on bond, Brandon committed
the Case No. 14-CR-596 offense. And the offenses in both of those cases were committed
after he had been arrested and charged for the Case No. 14-CR-653 offenses, though
that case had been dismissed and was not pending at the time. The trial court also
considered Brandon’s juvenile record. “His history of criminal activity,” said the court, “if it
were to include his juvenile record, would also demonstrate consecutive sentences were
necessary to protect the public from future crimes by the defendant. As just before he
turned 18, he was found delinquent for offenses which would have been a felony [sic] if
he were convicted as an adult; but even if the juvenile record were not considered, the
fact that he committed another felony offense while awaiting trial or disposition on a prior
offense would indicate consecutive sentences are necessary.” (Id. at 9). The court found
that Brandon had been adjudicated delinquent and that he had not responded favorably
to the sanctions imposed by the juvenile court. The trial court noted that the juvenile court
had placed Brandon on indefinite probation in 2013, which appeared to be in effect still.
The next year, in April 2014, said the court, Brandon committed his first offense as an
adult. The last recidivism factor that the court noted was that Brandon did not show any
genuine remorse for his offenses. As to the not-likely-to-commit-future-crimes factors in
R.C. 2929.12(E), the court found that Brandon had no adult criminal history. The court
also noted that he “scored low on the Ohio Risk Assessment Survey.” (Id. at 8). But the
court questioned the utility of the survey, saying that “[i]f the purpose of that survey is to
decide whether or not there is or what risk of offending or committing further crime might
be, I do have to question the results of the factors they use in that survey.” (Id.).
{¶ 11} Brandon does not challenge any of these factual findings. His argument is
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that these facts are not enough to show that consecutive sentences are necessary to
protect the public from future crime and are not disproportionate to the seriousness of his
offenses. Brandon says that the results of the risk-assessment survey unequivocally show
that he has a low risk of reoffending. Other than in his juvenile record, says Brandon,
there are no objective facts on which to conclude that the risk to the community posed by
a 19-year-old, first-time, non-violent felony offender requires consecutive sentences.
{¶ 12} The standard used to review consecutive sentences is extremely
deferential:
It is important to understand that the “clear and convincing” standard
applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.
2953.08(G)(2) makes it clear that “[t]he appellate court’s standard for review
is not whether the sentencing court abused its discretion.” As a practical
consideration, this means that appellate courts are prohibited from
substituting their judgment for that of the trial judge.
It is also important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative. It does not
say that the trial judge must have clear and convincing evidence to support
its findings. Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court’s findings. In
other words, the restriction is on the appellate court, not the trial judge. This
is an extremely deferential standard of review.
State v. Salyer, 2d Dist. Champaign No. 2013-CA-60, 2015-Ohio-2431, ¶ 21, quoting
State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20-21 (8th Dist.).
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{¶ 13} While Brandon admits to his juvenile record, he cites this Court’s decision
in State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160 (Hall, J., dissenting),
in which a majority of the panel found that an extensive juvenile history, along with a few
adult convictions, did not support the trial court’s findings that consecutive sentences
were necessary to protect the public from future crime and were not disproportionate to
the seriousness of the offenses. Brandon also cites the Adams majority for the idea that
his sentence may demean the seriousness of the impact caused by other felony
offenders.
{¶ 14} The Adams defendant’s juvenile record began when he was 15 years old
with convictions for complicity to unauthorized use of property and breaking and entering.
When he was 16, the defendant was convicted of disorderly conduct. And when the
defendant was 17, he was convicted of failure to control, of misdemeanor drug
possession, and in two separate speeding cases. Several other juvenile cases had been
filed and dismissed. As an adult, the defendant had been convicted of unauthorized use
of property and criminal damaging. The defendant had been convicted in Adams on three
counts of burglary and one count of heroin possession in four separate cases. The trial
court had ordered him to serve his sentences in the cases consecutively, for a total of 20
years in prison, two years shy of the statutory maximum.
{¶ 15} On appeal to this Court, the majority found that the record did not support
the trial court’s findings that consecutive sentences totaling 20 years in prison were
necessary to protect the public or punish the defendant and were not disproportionate to
the seriousness of his conduct and to the danger he posed to the public. The majority
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noted that all of his felonies (convicted and dismissed) occurred within a period of five
months, that none of the offenses was violent, and that all of the burglaries involved theft
offenses. The record showed that the defendant had a history of drug use that had not
been addressed. And the majority questioned some of the prosecutor’s statements about
drugs and the defendant. The majority found that the defendant’s offenses did not reflect
such seriousness and danger to the public that 20 years in prison was necessary. The
sentence, said the majority, “may demean the perceived seriousness of other crimes and
the harm to other victims; for example, the sentence for murder is 15 to life and rape has
a maximum sentence of 11 years.” Adams at ¶ 29.
{¶ 16} The facts in Adams distinguish it from the present case. The record here
does not show that Brandon has an unaddressed drug problem. Rather, according to the
PSI report, he sold drugs because he wasn’t working and needed money. Also,
Brandon’s total sentence is 7 years—a far cry from the Adams defendant’s 20 years. We
see no need to be concerned that Brandon’s sentence will demean the perceived
seriousness of other crimes and the harm to other victims.
{¶ 17} We cannot clearly and convincingly find that the record in this case does
not support the sentencing court’s consecutive-sentence findings.
{¶ 18} The sole assignment of error is overruled.
III. Conclusion
{¶ 19} Having overruled the sole assignment of error, the trial court’s judgment is
affirmed.
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FAIN, J., and WELBAUM, J., concur.
Copies mailed to:
Ryan A. Saunders
Charles W. Morrison
Hon. Richard J. O’Neill