State v. White , 2020 Ohio 717 ( 2020 )

[Cite as State v. White, 2020-Ohio-717.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-19-32
v.
DEANGELO T. WHITE,
OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 17 CR 389
Judgment Affirmed
Date of Decision: March 2, 2020
APPEARANCES:
Mark M. Noland for Appellant
Case No. 9-19-32
SHAW, P.J.
{¶1} Defendant-appellant, Deangelo T. White1 (“White”), brings this
appeal from the April 24, 2019, judgment of the Marion County Common Pleas
Court sentencing him to an aggregate fifty-four months in prison. On appeal, White
argues that the trial court erred by imposing maximum consecutive prison terms
despite the presence of mitigating factors.
Background
{¶2} On September 21, 2017, White was indicted for Engaging in a Pattern
of Corrupt Activity in violation of R.C. 2923.32(A)(1), a felony of the first degree,
Trafficking in Heroin in violation of R.C. 2925.03(A)(2), a felony of the fourth
degree, Trafficking in a Counterfeit Controlled Substance in violation of R.C.
2925.37(B), a felony of the fifth degree, Possession of Criminal Tools in violation
of R.C. 2923.24(A), a felony of the fifth degree, Corrupting Another with Drugs in
violation of R.C. 2925.02(A)(3), a felony of the second degree, Trafficking in
Heroin in violation of R.C. 2925.03(A)(2), a felony of the fifth degree, and
Possession of Heroin in violation of R.C. 2925.11(A)(1), a felony of the fifth
degree.2 White originally pled not guilty to the charges.
1
The trial court’s judgment entry states White’s name as “Deangelo AKA ‘E’ ‘D-UP’ ‘Dustin Smith’ T.
White.”
2
The indictment also included a forfeiture specification claiming that $1,895.00 in currency was acquired
through commission of an offense set forth in the indictment.
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{¶3} On February 21, 2019, White entered into a written negotiated plea
agreement wherein he agreed to plead guilty to Trafficking in Heroin in violation of
R.C. 2925.03(A)(2), a felony of the fourth degree, and the amended charge of
Attempted Corrupting Another with Drugs in violation of R.C. 2923.02(A) and R.C.
2925.02(A)(3), a felony of the third degree. In exchange for the guilty pleas, the
State, aside from reducing the Corrupting Another with Drugs charge to an
“Attempt” crime, also agreed to dismiss the remaining charges against White. The
written plea agreement was signed by White, his attorney, the prosecutor and the
judge. (Doc. No. 33).
{¶4} A Criminal Rule 11 hearing was conducted wherein the trial court
determined that White was entering knowing, voluntary, and intelligent pleas. A
factual basis for the charges was read into the record, indicating that on July 19,
2016, a confidential informant made a heroin purchase from White within 1,000 feet
of an elementary school constituting the Trafficking in Heroin charge, and that on
January 10, 2017, an individual was involved in a vehicle crash after overdosing on
drugs he purchased from White constituting the amended Attempted Corrupting
Another with Drugs charge.
{¶5} On April 22, 2019, the matter proceeded to sentencing wherein White
was ordered to serve a maximum eighteen months in prison on the Trafficking in
Heroin charge and a maximum thirty-six month prison term on the Attempted
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Corrupting Another with Drugs charge. Those prison terms were ordered to be
served consecutively for an aggregate fifty-four month prison term. A judgment
entry memorializing White’s sentence was filed April 24, 2019. It is from this
judgment that White appeals, asserting the following assignment of error for our
review.
Assignment of Error No. 1
The trial court erred when it sentenced Appellant to the
maximum amount of prison time in each case and ran the time
consecutively.
{¶6} In White’s assignment of error, he argues that the trial court erred by
ordering him to serve maximum, consecutive prison terms in this matter.
Specifically, he contends that the record did not support the severity of the
sentence.3
Standard of Review
{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the
3
We note that the State failed to file a brief in this matter, a practice that we strongly discourage. Pursuant
to App.R. 18(C), “If an appellee fails to file the appellee’s brief within the time provided by this rule, or
within the time as extended, the appellee will not be heard at oral argument except by permission of the court
upon a showing of good cause submitted in writing prior to argument; and in determining the appeal, the
court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if
appellant's brief reasonably appears to sustain such action.”
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trier of facts a firm belief or conviction as to the facts sought to be established.’
” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
Analysis
{¶8} “ ‘The 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 [a] minimum sentence[].’ ” State
v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v.
King, 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. Freeman, 3d
Dist. Union No. 14-18-16, 2019-Ohio-669, ¶ 12. Nevertheless, when exercising its
sentencing discretion, a trial court must consider the statutory policies that apply to
every felony offense, including those set out in R.C. 2929.11 and R.C.
2929.12. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing
State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, ¶ 38.
{¶9} Revised Code 2929.11 provides that sentences for a felony 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). In order to comply with
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those purposes and principles, R.C. 2929.12 instructs a trial court to consider
various factors set forth in the statute relating to the seriousness of the offender’s
conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(E).
{¶10} In the case sub judice, White was convicted of a third degree felony
and a fourth degree felony. Pursuant to R.C. 2929.14(A)(3)(b), a prison term for a
third degree felony violation such as the one in this case “shall be a definite term of
nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” Pursuant to R.C.
2929.14(A)(4), a prison term for a fourth degree felony “shall be a definite term of
six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,
seventeen, or eighteen months.” Here, the trial court sentenced White to a thirty-
six month prison term on the third degree felony and an eighteen month prison term
on the fourth degree felony. Both prison terms were thus within the appropriate
statutory ranges.
{¶11} Moreover, in fashioning the sentence, the trial court indicated that it
had considered the principles and purposes of sentencing, the relevant seriousness
and recidivism factors and the specific facts of this case. In fact, the trial court’s
judgment entry specifically cited R.C. 2929.11 and R.C. 2929.12. “A trial court’s
statement that it considered the required statutory factors, without more, is sufficient
to fulfill its obligations under the sentencing statutes.” State v. Maggette, 3d Dist.
Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 32, citing State v. Abrams, 8th Dist.
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Cuyahoga No. 103786, 2016-Ohio-4570, ¶ 14, citing State v. Payne, 114 Ohio St. 3d
502, 2007-Ohio-4642, ¶ 18.
{¶12} Despite the trial court’s clear compliance with statutory authority,
White contends that maximum sentences were not warranted in this matter. He
contends that his only criminal history consisted of misdemeanors and that he had
led a law-abiding life since his last drug sale in January of 2017. Contrary to
White’s claim, the trial court was concerned with White’s pattern of drug sales,
including a sale near a school, and the fact that one of his drug sales caused an
overdose while an individual was driving, which could have resulted in death or
serious harm. In addition, the trial court was aware that if White had proceeded to
trial he was facing exposure to up to twenty years in prison for all of the charges.
White had actually been charged with a first degree felony and a second degree
felony, the latter of which was ultimately reduced. When reviewing the record, we
cannot find that the trial court’s order of maximum prison terms were clearly and
convincingly contrary to law, particularly where the trial court stated it had
considered the appropriate statutes.
{¶13} Next, White argues that the trial court erred in imposing consecutive
sentences. “Except as provided in * * * [R.C. 2929.14(C)], * * * a prison term, jail
term, or sentence of imprisonment shall be served concurrently with any other
prison term, jail term, or sentence of imprisonment imposed by a court of this state,
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another state, or the United States.” R.C. 2929.41(A). Revised
Code 2929.14(C) provides:
(4) 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:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4).
{¶14} “R.C. 2929.14(C)(4) requires a trial court to make specific findings
on the record before imposing consecutive sentences.” State v. Nienberg, 3d Dist.
Putnam Nos. 12-16-15, 12-16-16, 2017-Ohio-2920, ¶ 17, citing State v. Hites, 3d
Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11 and State v. Peddicord, 3d Dist.
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Henry No. 7-12-24, 2013-Ohio-3398, ¶ 33. “Specifically, the trial court must find:
(1) consecutive sentences are necessary to either protect the public or punish the
offender; (2) the sentences would not be disproportionate to the offense committed;
and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies.” Id.,
citing Hites at ¶ 11 and Peddicord at ¶ 33.
{¶15} When imposing consecutive sentences, the trial court must make the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
those findings into its sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-
Ohio-3177, ¶¶ 29, 37. In complying with this requirement, the trial court “has no
obligation to state reasons to support its findings.” Id. at ¶ 37. “[P]rovided that the
necessary findings can be found in the record and are incorporated into the
sentencing entry,” a trial court need not recite a “talismanic incantation” of the
language of R.C. 2929.14(C)(4) to properly impose consecutive sentences. Id.
{¶16} In this case, at the sentencing hearing the trial court ordered the prison
terms to be served consecutively, finding that
consecutive sentences are necessary to punish the Defendant or to
protect the public from future crime and that the sentences are
not disproportionate to the seriousness of the Defendant’s
conduct and the danger posed by the Defendant.
The Court further finds that multiple offenses were
committed as part of a course of conduct and the harm caused by
the multiple offenses so committed was so great or unusual that
no single prison term for either of the offenses committed as part
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of the course of conduct adequately reflects the seriousness of the
conduct.
(April 22, 2019, Tr. at 10). The findings made at the sentencing hearing were
reflected in the trial court’s judgment entry.
{¶17} In this case the trial court’s findings were facially compliant with R.C.
2929.14(C)(4)(b) and thus the record supports the imposition of consecutive
sentences. See State v. Starr, 6th Dist. Lucas No. L-14-1194, 2015-Ohio-2914, ¶¶
9-17; State v. Bynum, 3d Dist. Shelby No. 17-18-20, 2019-Ohio-3139.
Nevertheless, although the trial court was not required to make further findings to
support consecutive sentences beyond the statutory language in R.C. 2929.14(C)(4),
White argues that the trial court’s actual (C)(4) findings were not supported because
he had no prior felonies4, he had led a law-abiding life since his most recent charge
in this case, he had obtained employment, and he had seven children who resided
with him and depended on him.
{¶18} Again the trial court was concerned with the fact that the crimes White
pled guilty to were committed nearly six months apart, that the first drug sale was
in the vicinity of a school, and that the second sale resulted in an overdose and
caused a vehicle crash. Given that there were two identifiable separate incidents in
4
There was an extensive discussion at the sentencing hearing regarding White’s potential criminal history in
Michigan. White made claims that the crimes in Michigan were not committed by him, and the State was
unable to verify that the felony crimes purportedly attributed to White in Michigan were, in fact, committed
by him. Due to the confusion, the trial court indicated it would not consider any of the supposed Michigan
criminal history in this matter.
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this matter, both with aggravating factors, we cannot find that the trial court’s
sentence was clearly and convincingly contrary to law. Therefore, White’s
assignment of error is overruled.
Conclusion
{¶19} For the foregoing reasons White’s assignment of error is overruled
and the judgment of the Marion County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and ZIMMERMAN, J.J., concur.
/jlr
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