State v. Parks , 2019 Ohio 2366 ( 2019 )

[Cite as State v. Parks, 2019-Ohio-2366.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1138
Appellee Trial Court No. CR0201801408
v.
Ryan Craig Parks DECISION AND JUDGMENT
Appellant Decided: June 14, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Sarah Haberland, for appellant.
*****
OSOWIK, J.
{¶ 1} Appellant Ryan Parks appeals the May 31, 2018 judgment of the Lucas
County Court of Common Pleas. The trial court sentenced him to 12 months in prison
following his guilty plea and conviction for breaking and entering, in violation of R.C.
2911.13(A) and (C). Parks alleges that, because he could not identify his mental health
conditions with sufficient particularity, the trial court should not have accepted his guilty
plea. He also alleges that his 12-month sentence is contrary to law. Finding no error in
the conviction or sentence, we affirm the judgment.
Facts and Procedural History
{¶ 2} The indictment in this case describes three separate criminal incidents. On
the morning of February 18, 2018, Parks was observed driving a pickup truck that was
reported stolen earlier that day. While stopped at an intersection in downtown Toledo,
Parks offered to sell some tools to a person who was stopped next to Parks. The driver
declined. Later, when the driver learned of the stolen truck, he reported the incident to
law enforcement. Police showed the driver a photo array that included a picture of Parks,
and he identified Parks as the person driving the stolen vehicle. This offense formed the
basis for Count 3 of the indictment.
{¶ 3} On February 25, 2018, victim No. 2 made a police report of a breaking and
entering of his detached garage. Victim No. 2 learned of the event when he noticed a
broken door to his garage and viewed video footage from surveillance cameras. The
footage showed a person entering the garage the night before, at 11:45 p.m., and then
leaving with a snow blower and a welder. Victim No. 2 posted a still shot of the person
on social media, and Parks was identified as the person in the photo. Victim No. 2
presented the photo to police, and it matched a picture of Parks in a criminal database.
This offense formed the basis for Count 2 of the indictment.
2.
{¶ 4} On February 26, 2018, victim No. 3 contacted the police from Florida to
report that his neighbor had called him and told him that he, the neighbor, had found
personal property (two heaters) belonging to victim No. 3 in an alley. The neighbor
returned the heaters to victim No. 3’s home, where he found that the door to a detached
shed had been damaged. It appeared to the neighbor that a snowblower had been taken.
Police questioned a different neighbor, who reported that he had observed Parks pushing
victim No. 3’s snowblower down the street a few days before. This offense formed the
basis for Count 1 of the indictment.
{¶ 5} Parks was indicted on March 7, 2018 on two counts of breaking and
entering, in violation of R.C. 2911.13(A) and (C), both felonies of the fifth degree
(Counts 1 and 2) and a single count of receiving stolen property, in violation of R.C.
2913.15(A) and (C), a felony of the fourth degree (Count 3). During his pretrial
incarceration, Parks was granted three medical furloughs, two in April and one in May.
{¶ 6} At the change-of-plea hearing on May 7, 2018, the parties agreed that Parks
would plead guilty to one count of breaking and entering (Count 1), and the state would
nolle prosequi Counts 2 and 3, although the state requested an order of restitution as to all
counts, totaling $2,600. Before accepting the plea, the court advised Parks of his rights,
as set forth in Crim.R. 11. Of particular relevance to this case, it inquired as to whether
Parks was “clear-headed.” Parks confirmed that he was, and his attorney concurred. The
court also advised Parks of the constitutional rights he was waiving, the effect of his plea
and the maximum sentence that could be imposed, including that he could serve up to 12
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months in prison. After acknowledging all of the above, in open court and in writing, the
trial court accepted Parks’ plea and found him guilty. Noting that “some naughtiness
[had] occurred during [Parks’ medical] furloughs,” the trial court ordered a “new”
presentence investigation (“PSI”).1 The court’s comment was in response to a report by
jail officials that Parks was suspected of smuggling marijuana into the jail when returning
from his medical furloughs. Although there was no direct evidence of smuggling, “there
was always * * * an odor of marijuana in a group of people with this defendant after he
was furloughed.”
{¶ 7} A sentencing hearing was held on May 30, 2018. Through counsel, Parks
acknowledged that the contents of the PSI were accurate and that Parks suffers from an
“out of control” substance abuse problem and a lack of impulse control. As described by
his counsel, Parks is “a nice guy. Doesn’t do anything violent, but if there’s Percocet to
be found, if there’s any snowblowers that he can sell, he just can’t stop [himself]. * * *
[T]he impulse is just too strong.”
{¶ 8} Following victim impact statements offered by victim No. 3 and his wife,
the trial court reviewed Parks’ criminal history, which included eight prior felonies, 30
1
A previous PSI had been conducted just two months before while Parks awaited
sentencing in two other cases (case Nos. CR0201703139 and CR0201702268). In the
former, Parks pled guilty to attempted burglary, in violation of R.C. 2923.02 and
2911.12(A)(2) and (D), a felony of the third degree and failure to comply, in violation of
R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree. In the other, Parks was
found guilty of unauthorized use of a motor vehicle, a misdemeanor of the first degree.
Parks was sentenced in these cases, by separate orders, at the same time as the instant
case. Parks did not appeal either judgment.
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prior misdemeanor convictions, and previous incarcerations. The court then sentenced
Parks to 12 months in prison, restitution in the amount of $2,600, various costs, and three
years of discretionary postrelease control. Through appellate counsel, Parks raises the
following assignments of error for our review:
I. The Trial Court erred when it accepted a guilty plea that was not
knowingly or intelligently by Defendant, as to Count one, Breaking and
Entering. [Sic.]
II. The Trial Court Abused its Discretion at Sentencing, by Failing
to Sentence According to the Law Under R.C. 2929.14.
III. The Trial Court Abused its Discretion at Sentencing by Failing
to Access all of the factors in accordance with R.C. 2929.12. [Sic.]
Law and Analysis
{¶ 9} In his first assignment of error, Parks argues that his inability to describe
“his complete mental health diagnosis,” rendered his plea involuntary and, therefore, the
trial court should not have accepted it.
{¶ 10} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St. 3d 525, 527, 660 N.E.2d 450 (1996).
In considering whether a plea was knowingly, intelligently and voluntarily entered, an
appellate court examines the totality of the circumstances through a de novo review of the
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record to ensure that the trial court complied with constitutional and procedural
safeguards. State v. Meade, 4th Dist. Scioto No. 17CA3816, 2018-Ohio-3544, ¶ 6.
{¶ 11} Crim.R. 11(C)(2) governs the acceptance of guilty pleas in felony
cases. The underlying purpose of the rule is to convey information to the defendant so
that he or she can make a voluntary and intelligent decision regarding whether to plead
guilty. State v. Ballard, 66 Ohio St. 2d 473, 479-480, 423 N.E.2d 115 (1981). If a trial
court fails to comply with Crim.R. 11, then the reviewing court must determine whether
the trial judge failed to explain the defendant’s constitutional or nonconstitutional rights.
State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 30 (Explaining
that a trial court must strictly comply when advising a defendant of his constitutional
rights and must substantially comply when advising of all other rights).
Here, Parks has not alleged a specific violation of Crim.R. 11(C)(2). Instead, he
argues that, because he could not “verbalize [his] mental health conditions [with]
specificity,” the trial court could not have been certain that he entered his plea knowingly.
The transcript reveals the following conversation with regard to Parks’ mental
functioning at the time of the plea:
THE COURT: All right. Are you under the influence of any
medications, drugs or alcohol, which would interfere with your ability to
understand what we are doing?
THE DEFENDANT: No, sir.
THE COURT: Otherwise are you clear-headed this morning?
6.
THE DEFENDANT: Yes, Your Honor.
THE COURT: [Counsel], I know you met with your client at some
length. Would you agree he’s clear-headed today?
THE DEFENDANT: I do, Your Honor. * * *
THE COURT: Mr. Parks, do you now or have you ever suffered
from any mental health or disease?
THE DEFENDANT: Have I suffered? I’m on, yeah, I’m on a case.
Yeah, I’m on a caseload for mental health. I’m on a couple of different
medications for my mental health, but I’m clear now.
THE COURT: What kind of mental health problems do you have?
THE DEFENDANT: I got anxiety, bipolar, I’ve been ADHD, but I
think they call it something different when you are an adult now, and severe
depression.
THE COURT: Okay. And are you taking medication now for those
conditions?
THE DEFENDANT: Yes, sir.
THE COURT: And are you taking those medications strictly in
accordance with the instructions given to you by your doctor?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay.
7.
{¶ 12} First, contrary to Parks’ claim in his brief, he did identify his mental health
conditions with particularity, i.e. anxiety, bipolar disorder, attention deficit hyperactivity
disorder (ADHD), and severe depression. Moreover, “[t]he mere fact that a defendant
suffer[s] from a mental illness or [is] taking psychotropic medication under medical
supervision when he enter[s] a guilty plea is not an indication that his plea was not
knowing and voluntary, that the defendant lacked mental capacity to enter a plea or that
the trial court otherwise erred in accepting the defendant’s guilty plea.” State v.
McClendon, 8th Dist. Cuyahoga No. 103202, 2018-Ohio-2630 (citing cases); see also State
v. Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 71 (“The fact that a
defendant is taking * * * prescribed psychotropic drugs does not negate his competence
to stand trial.”). Furthermore, a defendant is not presumed to be incompetent solely
because he is receiving or has received treatment for mental illness. R.C. 2945.37(F); see
also State v. Bock, 28 Ohio St. 3d 108, 110, 502 N.E.2d 1016 (1986) (“A defendant may be
emotionally disturbed or even psychotic and still be capable of understanding the charges
against him and of assisting counsel.”).
{¶ 13} When we consider the exchange between the court and Parks, we find no
evidence that he lacked the requisite mental capacity to enter into a guilty plea or that the
trial court should not have accepted the plea. To the contrary, Parks and his counsel
asserted that Parks was “clear headed,” and the record, as a whole, supports that
conclusion. That is, Parks actively participated in the proceedings, and he acknowledged
the rights he was waiving by pleading guilty, including the potential penalties he could
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receive. We note the absence of any argument by Parks that there was anything about the
proceedings that he did not understand and/or that some mental infirmity clouded his
judgment. Parks’ history of mental health issues, without more, is insufficient to render
his plea involuntary. Accord State v. Dowdell, 9th Dist. Summit No. 25930, 2012-Ohio-
1326, ¶ 6-10 (Rejecting defendant’s claim that trial court erred in accepting his guilty
plea without a mental health evaluation where trial court engaged in an extensive
dialogue with the defendant at the plea hearing and defendant’s answers demonstrated
that he understood the questions the trial court directed to him). We find that Parks’
guilty plea was knowingly, intelligently and voluntarily made and that the trial court did
not err in accepting his guilty plea. Accordingly, we find that Parks’ first assignment of
error is not well-taken.
{¶ 14} In his second and third assignments of error, Parks challenges his 12-month
prison sentence as being contrary to law under R.C. 2929.11 and 2929.12, respectively.
We discuss the assignments of error together. 2
{¶ 15} We first address the standard of review in sentencing cases and Parks’
claim that the trial court “abus[ed] its discretion” in fashioning a sentence. “[A]ppellate
courts may not apply [an] abuse-of-discretion standard in sentencing-term challenges.”
2
We regard Parks’ reference to “R.C. 2929.14” in the heading of his second assignment
of error to be a typographical error inasmuch as the entirety of his argument pertains to
the application of R.C. 2929.11.
9.
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. Instead,
we review sentencing challenges under R.C. 2953.08(G)(2). The statute allows an
appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence
and remand the matter for resentencing only if it clearly and convincingly finds either of
the following:
(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. R.C. 2953.08(G)(2).
{¶ 16} A sentence is not clearly and convincingly contrary to law where the trial
court has considered the purposes and principles of sentencing under R.C. 2929.11 and
the seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease
control, and imposed a sentence within the statutory range. State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See also State v. Tammerine, 6th Dist. Lucas
No. L-13-1081, 2014-Ohio-425, ¶ 15-16 (Noting that while R.C. 2953.08(G)(2) prohibits
courts from applying the abuse of discretion standard, as set forth in Kalish, that Kalish
“may still be utilized [for purposes of] determining whether a sentence is clearly and
convincingly contrary to law.”). If the appellate court finds that a sentence is not clearly
and convincingly contrary to law, it may vacate or modify the sentence “only if the
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appellate court finds by clear and convincing evidence that the record does not support
the sentence.” Marcum at ¶ 23.
{¶ 17} Here, Parks does not challenge the trial court’s compliance with the
sentencing statutes identified in subsection (a) of R.C. 2953.08(G)(2), nor does he claim
that the trial court misapplied postrelease control or imposed a sentence outside the
statutory range for a fifth-degree felony. See R.C. 2929.14(A)(5) (The range of sentences
that a trial court may impose for a fifth-degree felony “shall be a definite term of six,
seven, eight, nine, ten, eleven, or twelve months.”). Instead, Parks claims that his
sentence is “contrary to law” because the trial court failed to “use ‘minimum sanctions,’”
required by R.C. 2929.11(A) and further failed to consider “all of the factors” set forth in
R.C. 2929.12.
{¶ 18} A trial court that sentences a defendant for a felony offense, “shall be
guided by the overriding purposes of felony sentencing: * * * 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.” R.C. 2929.11(A). When considering the appropriate
sentence, the trial 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.” Id. The sentence must be
reasonably calculated to achieve those purposes “commensurate with and not demeaning
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to the seriousness of the offender’s conduct and its impact upon the victim, and consistent
with sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).
{¶ 19} To comply with the principles and purposes of sentencing, as set forth
above, the trial court must consider the factors set forth in R.C. 2929.12. As this court
has previously explained,
R.C. 2929.12 is a guidance statute. It sets forth the seriousness and
recidivism criteria that a trial court “shall consider” in fashioning a felony
sentence. Subsections (B) and (C) establish the factors indicating whether
the offender’s conduct is more serious or less serious than conduct
normally constituting the offense. Subsections (D) and (E) contain the
factors bearing on whether the offender is likely or not likely to commit
future crimes. While the phrase “shall consider” is used throughout R.C.
2929.12, the sentencing court is not obligated to give a detailed explanation
of how it algebraically applied each seriousness and recidivism factor to the
offender. Indeed, no specific recitation is required. Merely stating that
the court considered the statutory factors is enough.
State v. Brimacombe, 195 Ohio App. 3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11
(6th Dist.) citing State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38
and State v. Arnett, 88 Ohio St. 3d 208, 215, 724 N.E.2d 793 (2000).
{¶ 20} Parks complains that the trial court failed to consider “all” of the R.C.
2929.12 factors, but the record demonstrates otherwise. In fact, the court specifically
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stated that it had “considered the record, the oral statements, the victim impact statement,
the PSI, the overriding purposes and principles of sentencing under 2929.11, and the
seriousness, recidivism and other factors under R.C. 2929.12.” (Emphasis added.) The
court’s May 31, 2018 sentencing entry sets forth a nearly identical statement. The court’s
assertion that it considered the statutory factors is sufficient. Brimacombe.
{¶ 21} Alternatively, Parks claims that the trial court failed to consider the factors
indicating that his conduct was “less serious than conduct normally constituting the
offense,” i.e. the R.C. 2929.12(C) factors. Parks puts forth no argument that any of those
factors is present in his case, and, based upon our review of the record, we find that none
apply. That is, there is no evidence that victim No. 3 “induced or facilitated the offense,”
(Section (C)(1)) or that, in committing the offense, Parks “acted under strong
provocation,” (Section (C)(2)). Likewise, there is no evidence of “substantial grounds to
mitigate [Parks’] conduct” (Section (C)(4)). Finally, the record does indicate that, in
committing the offense, Parks did “physical harm to * * * property” (Section (C)(3)).
Because none of the factors of R.C. 2929.12(C) is present in this case, it cannot be said
that the court erred in failing to consider the lack of seriousness of Parks’ crime. And, as
argued by the state, the record supports the opposite view. The wife of victim No. 3
testified at sentencing that Parks violated her “sense of security” and caused her to feel
“the need to carry a gun into [her] own backyard.” Psychological harm caused by the
offender is a relevant factor in determining an appropriate sentence. R.C. 2929.12(B)(2).
13.
{¶ 22} Finally, Parks complains that the court, in imposing the maximum sentence
“held no regard to the addiction that [he] faces” in contravention of R.C. 2929.11(A)’s
mandate to impose “minimum sanctions.” We disagree. The court observed that Parks
was “contrite” and agreed with Parks’ concession that he needed substance abuse
treatment. On the other hand, when Parks blamed his criminal behavior on his addiction
to heroin and pills, the court observed that Parks’ criminal history began before his use of
illegal drugs. To that, Parks conceded, “I’ve been in trouble my whole life, Your Honor.”
{¶ 23} The court determined that prison was warranted under R.C.
2929.13(B)(1)(b)(x). (Trial court “has discretion to impose a prison term upon an
offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that
is not an offense of violence * * * if any of the following apply: * * * [t]he offender
* * * previously had served [] a prison term.”). The contents of Parks’ PSI, which the
court reviewed during sentencing, indicate that Parks served multiple prison terms in
previous cases, including a one-year prison term in 2013 (for failure to appear) and
another in 2011 (for failure to comply with an order or signal of a police officer). As
further noted by the court, Parks’ extensive criminal history includes “eight prior felonies
as an adult and thirty – three zero – misdemeanors.” Merely because the trial court did
not find Parks’ stated reason, i.e., his addiction, as a compelling reason to impose a lesser
sentence does not render his sentence contrary to law. Accord State v. Filious, 8th Dist.
Cuyahoga No. 104287, 2016-Ohio-8312, ¶ 10 (Rejecting argument that the court failed to
14.
consider R.C. 2929.11 and 2929.12 “simply because it did not agree with the victim’s
[and defendant’s] recommended sentence.”).
{¶ 24} Based upon the record in this case, we do not find clear and convincing
evidence that the record does not support the trial court’s decision to sentence Parks to 12
months in prison. Therefore, we may not vacate or modify the sentence. Marcum, 146
Ohio St. 3d 513, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23.
Conclusion
{¶ 25} We find that the trial court did not err in accepting Parks’ guilty plea. We
also find that the trial court’s decision to impose the maximum prison term was
appropriate to protect the public and to punish Parks for his offense and that the court
properly considered the seriousness and recidivism factors in this case. We find that the
trial court complied with all applicable sentencing requirements when it sentenced him to
prison and that Parks’ sentence is not clearly and convincingly contrary to law under R.C.
2953.08(G)(2). Accordingly, his assignments of error are not well-taken.
{¶ 26} Based on the foregoing, the May 31, 2018 judgment of the Lucas County
Court of Common Pleas is affirmed. Parks is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
15.
State v. Parks
C.A. No. L-18-1138
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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