State v. Crossley , 2019 Ohio 2938 ( 2019 )

[Cite as State v. Crossley, 2019-Ohio-2938.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-121
:
v. : Trial Court Case Nos. 2018-CR-446
: and 2018-CR-601
VON CROSSLEY :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 19th day of July, 2019.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 10 West Second Street, Suite 2400,
Dayton, Ohio
and
JON PAUL RION, Atty. Reg. No. 0067020, 130 West Second Street, Suite 2150, P.O.
Box 10126, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} Defendant-Appellant, Von Crossley, appeals from two judgments of
conviction, specifically the sentences that were imposed after he pled guilty to charges in
two cases. In Clark C.P. No. 18-CR-446, the trial court sentenced Crossley to three one-
year prison terms, with the terms being imposed consecutively. In Clark C.P. No. 18-
CR-601, the court sentenced Crossley to a total of nine years in prison, and it imposed
the sentence consecutive to the sentence in Case No. 18-CR-446. Crossley’s total
prison term, thus, was 12 years.
{¶ 2} Crossley contends that the record does not clearly and convincingly support
the sentence and that imposition of maximum sentences was contrary to law. For the
reasons that follow, we find no error, and the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} As a preliminary point, we note that while this appeal involves two cases, the
charges arose from the same incident, which occurred on June 28, 2018. On that day,
Springfield police officers were dispatched to West Jefferson Street on an emergency
tone. The emergency tone was “dropped” around 3:57 p.m. and was based on a report
of a man with a gun. The police had a description of a teal S10 Chevy truck with an
oscillating yellow light on the top and a license plate starting with the initials “HEA.”
{¶ 4} Springfield police officer Zachary Massie went to the scene. However,
because three other officers were already there, Massie began to check the surrounding
area for the suspect vehicle. Massie did not have information about the license plate
number because he missed part of the dispatch. The only information he had was that
he was looking for a gray, green, or teal pickup truck with a yellow light on top. While
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traveling southbound on Western Avenue, Massie noticed a dark gray Ford 150 pickup
with a yellow oscillating light that was stopped at a red light. He thought he had the right
vehicle and initiated a stop. After the truck was stopped, Massie and three or four other
officers had their guns out, ordered Crossley out of the truck, and handcuffed him.
{¶ 5} As it turned out, Crossley was not involved in the incident being investigated,
and his truck had a different license plate than the suspect vehicle. During the stop,
however, one of the officers had a K-9 dog at the scene and did a free-air sniff of
Crossley’s vehicle. After the dog alerted, the police found narcotics and a gun in the
truck. Subsequently, on July 9, 2018, an indictment was filed in Clark County Common
Pleas Court, charging Crossley with three counts: (1) carrying a concealed weapon, in
violation of R.C. 2923.12 (a fourth degree felony); (2) improper handling of firearms in a
motor vehicle, in violation of R.C. 2923.16(B) (a fourth-degree felony); and (3) receiving
stolen property in violation of R.C. 2913.51(A) (a fourth-degree felony). The last charge
also carried a one-year firearm specification.
{¶ 6} Crossley had previously posted a surety bond of $15,000 in the Clark County
Municipal Court, and the bond was transferred to the common pleas court case, which
was docketed as Case No. 18-CR-446. At the arraignment in common pleas court,
Crossley pled not guilty, and the $15,000 cash/surety bond was continued. Among the
bond conditions was the requirement that Crossley comply with all criminal provisions of
the Ohio Revised Code.
{¶ 7} On August 13, 2018, the grand jury indicted Crossley for aggravated
trafficking in methamphetamine and aggravated possession of methamphetamine, based
on the narcotics that had been found in his vehicle on June 28, 2018. Both charges were
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specified as involving equal to or greater than five times bulk but less than fifty times the
bulk amount, and were second degree felonies. This case was docketed as Clark Case
No. 18-CR-530.
{¶ 8} When the Southern Ohio Fugitive Apprehension Strike Team arrested
Crossley on August 17, 2018, on warrants for these drug offenses, they found suspected
cocaine on Crossley’s person. Based on the drug results from the prior arrest on June
28, 2018, and the suspected drugs on Crossley’s person, the police obtained a search
warrant for Crossley’s residence. During that search, the police found several operable
firearms, suspected narcotics, multiple baggies, a digital scale, and a blender that was
suspected of being used to cut drugs with baking soda. As a result, the State filed a
motion on August 22, 2018, asking the court to revoke Crossley’s bond.
{¶ 9} On August 24, 2018, the trial court arraigned Crossley on Case No. 18-CR-
530, and also held a bond revocation hearing for Case No. 18-CR-446. After hearing
the evidence (as outlined above), the court revoked Crossley’s bond and ordered that he
be held without bond for the duration of the case.
{¶ 10} Previously, on August 8, 2018, Crossley had filed a motion to suppress
evidence, and a hearing on the motion was scheduled for September 14, 2018. Before
the suppression hearing began, the court arraigned Crossley on Case No. 18-CR-601,
which the State indicated was an indictment that was filed to add a forfeiture specification
to the already existing indictment in Case No. 18-CR-530. Thus, the charges were the
same as they had been in that case (aggravated possession and aggravated trafficking
of methamphetamine), but a forfeiture specification was added. The State also said it
would file a motion to consolidate Case No. 18-CR-601 with the other two cases, which
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had already been consolidated.1
{¶ 11} During the suppression hearing, three police officers testified and described
the facts about the traffic stop that have been outlined above. However, a need for
additional testimony was revealed, and the court said that it would continue the hearing
to let the defense subpoena some police officers. The suppression hearing was never
reconvened, however, because Crossley pled guilty to the charges in both cases on
October 3, 2018.
{¶ 12} According to the plea agreement, Crossley would plead guilty to the
indictments in Case Nos. 18-CR-446 and 18-CR-601, and the State would dismiss Case
No. 18-CR-530. In addition, the State agreed not to proceed on #18-SPD-35557, which
was a search warrant conducted at Crossley’s home on August 18, 2018. The State
further agreed to have a presentence investigation (“PSI”) done, and Crossley agreed to
forfeit $195 in U.S. currency.
{¶ 13} On November 11, 2018, Crossley appeared for sentencing, and the trial
court sentenced him, as noted, to a total of 12 years in prison. This appeal followed.
II. Support for Consecutive Sentences
{¶ 14} Crossley’s First Assignment of Error states as follows:
The Record Does Not Clearly and Convincingly Support Appellant’s
Sentence.
1 This statement was incorrect, as Case Nos. 18-CR-446 and 18-CR-530 had not been
consolidated. Furthermore, the State never filed a motion to consolidate Case Nos. 18-
CR-446 and 18-CR-601, even though the parties and trial court acted as if they had been
joined. In any event, all these cases involved only charges resulting from the June 28,
2018 traffic stop.
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{¶ 15} Under this assignment of error, Crossley contends that the record is unclear
about what factors the trial court considered in concluding that consecutive sentences
were appropriate under each finding required by R.C. 2929.14(C)(4). Furthermore,
Crossley argues that the trial court was required to use specific operative facts to justify
its findings under R.C. 2929.14.
{¶ 16} On appeal, defendants can challenge consecutive sentences in two ways.
“First, the defendant can argue that consecutive sentences are contrary to law because
the court failed to make the necessary findings required by R.C. 2929.14(C)(4).”
(Emphasis sic.) State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 17,
citing R.C. 2953.08(G)(2)(b) and State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177,
16 N.E.3d 659, ¶ 29. “Second, the defendant can argue that the record does not support
the findings made under R.C. 2929.14(C)(4).” Id., citing R.C. 2953.08(G)(2)(a) and State
v. Moore, 2014-Ohio-5135, 24 N.E.3d 1197 (8th Dist.). In this case, Crossley has not
challenged whether the trial court made the necessary findings that R.C. 2929.14(C)(4)
requires.
{¶ 17} As to the second type of challenge, “R.C. 2953.08(G)(2)(a) compels
appellate courts to modify or vacate sentences if they find by clear and convincing
evidence that the record does not support any relevant findings under * * * ‘division * * *
(C)(4) of section 2929.14 * * * of the Revised Code.’ ” State v. Marcum, 146 Ohio St. 3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting R.C. 2953.08(G)(2). “ ‘Clear and
convincing evidence is that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is required
“beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the
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trier of facts a firm belief or conviction as to the facts sought to be established.’ ” Id.,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus.
{¶ 18} “R.C. 2929.14(C)(4) is an exception to the presumption in favor of
concurrent sentences in R.C. 2929.41(A).” State v. Withrow, 2016-Ohio-2884, 64
N.E.3d 553, ¶ 29 (2d Dist.). As pertinent here (according to the trial court’s findings),
R.C. 2929.14(C)(4) provides that:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively 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,
and if the court also finds any of the following:
***
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
{¶ 19} According to Crossley, when a court “imposes consecutive sentences under
R.C. 2929.14, it must also comply with R.C. 2929.19(B)(2)(c), which requires that the
sentencing court ‘make a finding that gives its reasons for selecting the sentences
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imposed.’ ” Appellant’s Brief, pp. 10-11, quoting R.C. 2929.19(B)(2)(c). This is an
incorrect statement of law. This was the wording in former R.C. 2929.19(B)(2)(c).
However, R.C. 2929.19(B)(2) was severed from the rest of the statute in State v. Foster,
109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470. See Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, at ¶ 16-17. As a result, “a trial court ‘has no obligation
to state reasons to support its findings’ in connection with the statutory findings required
to impose consecutive sentences under R.C. 2929.14(C)(4).” Withrow, 2016-Ohio-
2884, 64 N.E.3d 553, at ¶ 31, quoting Bonnell at syllabus.
{¶ 20} Crossley also contends that the record is unclear with respect to the facts
that the trial court considered in concluding that consecutive sentences were needed to
protect the public from future crime. In particular, Crossley stresses that he is a first-time
offender without a felony criminal record, and he was not adjudicated a delinquent child
or confined or unfavorably terminated from post-release control. He further observes
that he acknowledged a substance abuse problem, had a very low Ohio Risk Assessment
Score of 9, and accepted responsibility for his crimes.
{¶ 21} As noted, the trial court did not need to provide specific reasons.
Moreover, we are unable to find that the trial court’s conclusion about the need to protect
the public is clearly and convincingly unsupported by the record. Specifically, Crossley’s
history is not as benign as he suggests. Crossley had 29 grams of methamphetamine
and a gun in his truck when he was first arrested. The evidence at the bond revocation
hearing also indicated that Crossley was dealing drugs when he was released on bond
for this case.
{¶ 22} Specifically, when the trafficking and possession indictments were served
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on Crossley on August 17, 2018, Crossley had suspected drugs in his possession.
Furthermore, a subsequent search of Crossley’s home revealed that he had several guns
in his home. At his home, he also had drugs, as well as other paraphernalia associated
with drug dealing, including digital scales, baggies, and a blender containing some type
of powder residue. According to one of the officers who served the search warrant,
“people use blenders to cut, chop drugs, cocaine, fentanyl, also crack cocaine, with
baking soda.” Transcript of Arraignment and Bond Revocation Hearing, p. 13.
Significantly, these crimes occurred less than two months after the June 28, 2018 traffic
stop, and while Crossley was on bond.
{¶ 23} These facts were all before the trial judge, who heard the testimony at the
bond revocation hearing. In addition, the fact that Crossley was involved in criminal
activity while on bond indicated that he was likely to reoffend.
{¶ 24} Crossley also challenges the trial court’s finding that consecutive sentences
were not disproportionate to the seriousness of his conduct and to the danger he posed
to the public. In this regard, Crossley notes that the trial court merely made a conclusory
statement about the fact that the community had been plagued by gun violence, drug
trafficking, and drug possession. According to Crossley, a conclusory statement that
applies to the entire community, not to a specific defendant, will nearly always result in
maximum consecutive sentencing. We disagree. We have previously observed that
“[t]he impact on the community is a proper factor to consider during sentencing.” State
v. Guerrero-Sanchez, 2d Dist. Montgomery No. 27327, 2017-Ohio-8185, ¶ 64, citing State
v. Sanders, 8th Dist. Cuyahoga No. 97120, 2012-Ohio-1540, ¶ 38, and State v. Sieng,
10th Dist. Franklin No. 06AP-852, 2007-Ohio-1502, ¶ 17.
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{¶ 25} As a final matter, Crossley contends that the record fails to reflect that “[a]t
least two of the multiple offenses were committed as part of one or more courses of
conduct, and the harm caused by two or more of the multiple offenses so committed was
so great or unusual that no single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the seriousness of the offender's
conduct.” R.C. 2929.14(C)(4)(b). As pertinent here, Crossley stresses that besides
commenting that at least two of the multiple offenses were committed as part of a course
of conduct, the court did not elaborate on how his particular offenses differed from other
identical offenses.
{¶ 26} As noted, trial courts are not required to state reasons for their findings
under R.C. 2929.14(C)(4). Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d
659, at syllabus. Nonetheless, given the evidence at the bond revocation hearing, and
the presence of guns, drugs, and drug preparation paraphernalia at Crossley’s home, the
record supports the finding that Crossley’s multiple offenses were committed as part of a
course of conduct, and that the harm caused was greater than usual, such that a single
prison term would not adequately reflect the seriousness of his conduct.
{¶ 27} Accordingly, the First Assignment of Error is overruled.
III. Maximum Sentences
{¶ 28} Crossley’s Second Assignment of Error states that:
The Imposition of Maximum Sentences is Contrary to Law.
{¶ 29} Under this assignment of error, Crossley argues that, in imposing sentence,
the trial court failed to properly consider the principles and purposes of sentencing set
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forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. In particular, Crossley
contends that the trial court’s reference to the community as being “plagued by gun
violence and drugs” is inadequate to raise an inference that the court considered the
statutory factors.
{¶ 30} In the case before us, the court sentenced Crossley to less than maximum
sentences on all counts except the drug trafficking conviction, for which the court imposed
the maximum sentence for a second-degree felony (eight years). See R.C.
2929.14(A)(2)(b) (indicating that for felonies committed before the amendments effective
in March 2019, the prison term shall be a definite term of two, three, four, five, six, seven,
or eight years).
{¶ 31} “Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or
modify a sentence, or it may vacate the sentence and remand for resentencing, only if it
‘clearly and convincingly’ finds either (1) that the record does not support certain specified
findings or (2) that the sentence imposed is contrary to law.” State v. Roberts, 2d Dist.
Clark No. 2018-CA-27, 2019-Ohio-49, ¶ 6. “A sentence is contrary to law when it does
not fall within the statutory range for the offense or if the trial court fails to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing
factors set forth in R.C. 2929.12.” State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135,
¶ 74, citing State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.
{¶ 32} We have repeatedly stressed that “[t]he trial court has full discretion to
impose any sentence within the authorized statutory range, and the court is not required
to make any findings or give its reasons for imposing maximum or more than minimum
sentences.” State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶ 62.
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Accord State v. Gilbreath, 2d Dist. Clark No. 2018-CA-91, 2019-Ohio-642, ¶ 10; State v.
King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.); State v. Whitt, 2d Dist. Clark No.
2014-CA-125, 2016-Ohio-843, ¶ 8. Instead, courts are simply “obligated to consider the
principles and purposes of sentencing under R.C. 2929.11 and the seriousness and
recidivism factors under R.C. 2929.12.” State v. Hand, 2d Dist. Clark No. 2016-CA-51,
2017-Ohio-7340, ¶ 6.
{¶ 33} Under R.C. 2929.11, “[t]he 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.”
{¶ 34} “R.C. 2929.12(B) sets forth nine factors to consider when determining
whether an offender's conduct is more serious, while section (C) sets forth four factors to
consider in determining whether the conduct is less serious. R.C. 2929.12(D) and (E)
both list five factors to consider in making a determination that an offender is more, or
less, likely to reoffend.” Brown, 2017-Ohio-8416, 99 N.E.3d 1135, at ¶ 77.
{¶ 35} In the sentencing entries, the trial court stated that it had “considered the
record, oral statements of counsel, the defendant’s statement, and the principles and
purposes of sentencing under Ohio Revised Code Section 2929.11, and then balanced
the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.”
Case No. 2018-CR-446, Doc. #19, p.1; Case No. 2018-CR-601, Doc. #10, p. 1. Thus,
the trial court did consider R.C. 2929.11 and R.C. 2929.12.
{¶ 36} We have said that “an explanation of the rationale (both case-specific and
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statutory) for a sentence can only increase the public understanding of a particular
sanction and thus the perceived legitimacy of the criminal justice system.” Adams, 2d
Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, at ¶ 18. Nonetheless, we also stressed in
Adams that the trial court is “not required to provide reasons to support its findings.” Id.,
citing Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 27. (Other
citation omitted.). Notably, we have also held a number of times that “ ‘a trial court’s
consideration of the statutory sentencing factors may be presumed from a silent record.’ ”
State v. Brandon, 2d Dist. Clark No. 2014-CA-143, 2016-Ohio-227, ¶ 8, quoting State v.
Carlton, 2d Dist. Montgomery No. 26086, 2014-Ohio-3835, ¶ 18.
{¶ 37} Here, the record was not silent. During the sentencing hearing, the trial
court noted that it had considered the PSI report. In addition, the court commented on
the fact that the community had been plagued by gun violence, drug trafficking, and drug
possession. Transcript of Proceedings, Disposition, pp. 3 and 8.
{¶ 38} Furthermore, as we already observed, the trial court was well aware of the
fact that Crossley’s history did not involve just one incident of criminal behavior.
Crossley’s contention to the contrary is simply inaccurate. See Appellant’s Reply Brief,
pp. 8-9. As noted, the trial court presided over the bond revocation hearing and heard
evidence that Crossley possessed drugs when he was served with the arrest warrant for
the second indictment. The evidence at the revocation hearing also revealed that when
the police searched Crossley’s home, they found multiple weapons, drugs, and
equipment used to prepare drugs for sale.
{¶ 39} We may only reverse, modify, or vacate a trial court’s sentence if it is clearly
and convincingly unsupported by the record. We cannot make that finding here. The
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sentence, being within statutory limits, was also not contrary to law.
{¶ 40} Accordingly, the Second Assignment of Error is overruled.
IV. Conclusion
{¶ 41} Both of Crossley’s assignments of error having been overruled, the
judgment of the trial court is affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Christopher B. Epley
Jon Paul Rion
Hon. Douglas M. Rastatter