State v. Pate ( 2021 )

[Cite as State v. Pate, 2021-Ohio-1089.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109758
v. :
DEMARKES T. PATE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 1, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-638012-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Thomas Rein, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Demarkes T. Pate, pleaded guilty to receiving
stolen property (a motor vehicle) in violation of R.C. 2913.51, a fourth-degree felony.
The trial court sentenced him to 18 months in prison, the maximum sentence for a
fourth-degree felony. Pate now appeals his sentence, contending that “the record
clearly and convincingly fails to support the imposition of a maximum sentence” for
his offense.
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-ohio-1002, 59 N.E.3d
1231, ¶ 1, 21. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,
modify, or vacate and remand a challenged felony sentence if the court clearly and
convincingly finds either that the record does not support the sentencing court’s
findings as required by relevant sentencing statutes, or the sentence is otherwise
contrary to law.
When sentencing a defendant, a court must consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,
2013-Ohio-5025, ¶ 7. A sentence is contrary to law if it falls outside the statutory
range for the offense or if the sentencing court fails to consider the purposes and
principles of sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C.
2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.
Conversely, if the sentence is within the statutory range for the offense and the trial
court considers both the purposes and principles of felony sentencing in R.C.
2929.11 and the seriousness and recidivism factors in R.C. 2929.12, the court’s
imposition of any prison term — even a maximum term — for a felony conviction is
not contrary to law. State v. Woodard, 8th Dist. Cuyahoga No. 106300, 2018-Ohio-
2402, ¶ 35; see also State v. Clay, 8th Dist. Cuyahoga No. 108500, 2020-Ohio-1499,
¶ 26, citing Pawlak at ¶ 58.
Under R.C. 2929.11(A), a felony sentence shall be “reasonably
calculated” to achieve three “overriding purposes”: to (1) protect the public from
future crime by the offender and others; (2) punish the offender; and (3) promote
the effective rehabilitation of the offender using the minimum sanctions the court
determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources. In addition, a sentence for a felony conviction
must be “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.” R.C. 2929.11(B).
R.C. 2929.12 gives the sentencing court discretion to determine the best
way to comply with the purposes and principles of sentencing set forth in R.C.
2929.11 when imposing a sentence. State v. Bridges, 8th Dist. Cuyahoga No.
107281, 2019-Ohio-1769, ¶ 10; R.C. 2929.12(A). It sets forth a nonexhaustive list of
factors a trial court must consider in determining the seriousness of the offender’s
conduct and the likelihood of recidivism. Those factors include the offender’s
history of criminal convictions, whether the offender has responded favorably to
sanctions previously imposed for criminal convictions, whether the offender has
demonstrated remorse, and any other factors relevant to achieving the purposes and
principles of sentencing. R.C. 2929.12(A); (D)(2); (D)(3); and (D)(5).
Nevertheless, R.C. 2929.11 and 2929.12 are not fact-finding statutes
and thus, although the trial court must “consider” the factors, it is not required to
make specific findings on the record regarding its consideration of those factors,
even when imposing a more-than-minimum sentence. Bridges at ¶ 11, citing State
v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 11, and
State v. Rouse, 8th Dist. Cuyahoga No. 107379, 2019-Ohio-708, ¶ 13. Indeed,
consideration of the factors is presumed unless the defendant affirmatively shows
otherwise. State v. Wright, 8th Dist. Cuyahoga No. 106175, 2018-Ohio-965, ¶ 16.
Pate contends that the 18-month maximum sentence for his offense is
“unwarranted” because, although he had a criminal record, he had graduated from
high school, had a job at a movie theater, and was working on obtaining his
commercial driver’s license. He further contends that his 18-month sentence does
not serve the requirement of R.C. 2929.11 that the trial court use the minimum
sanctions it can to protect the public, punish the offender, and rehabilitate the
offender without imposing an unnecessary burden on state on local resources.
Finally, he asserts that a review of the R.C. 2929.12 factors does not support the
sentence, and that the record indicates the trial court did not even consider the R.C.
2929.12 seriousness and recidivism factors. Pate’s arguments are wholly without
merit.
The record reflects that prior to sentencing Pate, the trial court
reviewed Pate’s extensive criminal history and periods of incarceration as set forth
in the presentence investigation report (“PSI”). The court noted that Pate’s criminal
history includes multiple convictions for menacing, attempted assault, disorderly
conduct, theft, underage alcohol possession, criminal trespass, resisting arrest,
receiving stolen property, and public intoxication that occurred over several years
and in various jurisdictions across the state of Ohio.
The trial court also noted that there were active warrants for Pate’s
arrest pending in multiple jurisdictions at the time of sentencing. As set forth in the
PSI, Pate had active warrants for assault, criminal damaging, disorderly conduct,
underage consumption, and aggravated menacing in the New Philadelphia
Municipal Court; for aggravated trespass and aggravated menacing in the
Willoughby Municipal Court; criminal damaging, menacing, trespass, and grand
theft in the Mentor Municipal Court; criminal trespass in the Cleveland Municipal
Court; and receiving stolen property in the Painesville Municipal Court.
The trial court also reviewed Pate’s “very negative” institutional
summary, which it found reflected numerous infractions, fighting, and extremely
disrespectful and vulgar language to the staff.
When the trial judge gave Pate an opportunity to speak, Pate told her
the summary was “all lies,” and that staff “taunt the inmates.” Further, he told the
judge that this case was merely the result of a “big misunderstanding,” and that his
ex-girlfriend reported the car stolen merely because she was jealous that he had two
women in the car with him. Finally, he said that he had a concussion during the plea
hearing and was not in the “right state of mind” to plead guilty because he had been
“jumped” by other inmates the day before the hearing.
The judge found Pate not credible. She said he had “a pattern of not
doing what he [was] supposed to do,” as well as “a long history of non-compliance,”
and that he had taken responsibility for “absolutely nothing.” The judge then stated
that after considering the factors sets forth in R.C. 2929.11 and 2929.12, she was
sentencing him to 18 months’ incarceration.
The record clearly supports the maximum 18-month sentence. Pate’s
lengthy criminal history and outstanding arrest warrants were alone sufficient to
justify the maximum sentence. In addition, Pate accepted no responsibility
whatsoever for any of his actions.
It is apparent, despite Pate’s argument otherwise, that the maximum
sentence was necessary to protect the public from future crime, punish him, and
promote his rehabilitation. It is also apparent from the record, despite Pate’s
argument otherwise, that the trial judge considered the factors set forth in R.C.
2929.12 when she determined Pate’s sentence, and that these factors supported the
maximum sentence. See R.C. 2929.12(D)(2); (D)(3), and (D)(5) regarding a
defendant’s criminal history, lack of remorse, and failure to respond to sanctions
previously imposed for criminal convictions. And although Pate asserts that the
judge gave no explanation for imposing the maximum sentence, he points us to
nothing that imposes such a requirement.
Finally, the record refutes Pate’s assertion that the judge sentenced
him to the maximum sentence solely because she “did not care for his attitude.”
Although Pate’s attitude was clearly a factor in his sentence, it was not the only
factor. Pate’s attitude, coupled with his lengthy criminal record and his refusal to
take any responsibility for his actions, justified the imposition of a lengthy prison
sentence.
Pate having failed to clearly and convincingly demonstrate that the
record does not support his 18-month sentence or that the sentence is contrary to
law, the assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR