State v. Worthen , 2021 Ohio 2788 ( 2021 )

[Cite as State v. Worthen, 2021-Ohio-2788.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29043
:
v. : Trial Court Case No. 2020-CR-3213
:
DIAMOND WORTHEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 13th day of August, 2021.
...........
MATHIAS H. HECK, JR. by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant
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EPLEY, J.
{¶ 1} Defendant-Appellant Diamond Worthen pled guilty to harassment by an
inmate (bodily substance) in violation of R.C. 2921.38(A), a felony of the fifth degree, and
was sentenced to 12 months in prison, to be served concurrently with a sentence in
another case. Worthen appeals from her conviction, claiming that the trial court abused
its discretion in imposing a 12-month sentence due to its failure to properly consider R.C.
2929.11 and R.C. 2929.12 at sentencing. For the following reasons, the trial court’s
judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} In September 2020, Worthen was incarcerated on her conviction for assault
on a peace officer in Montgomery C.P. No. 2020-CR-604. On September 29, she
engaged in criminal conduct toward a corrections officer that resulted in a charge of
harassment by an inmate (bodily substance). Worthen was indicted for that offense on
December 8, 2020, and initially pled not guilty to the charge. The trial court scheduled
status and scheduling conferences. After several continuances, the scheduling
conference was reset to February 12, 2021.
{¶ 3} On the date of the pretrial conference, Worthen changed her plea from not
guilty and entered a guilty plea to the charged offense. The trial court conducted a
Crim.R. 11 plea hearing, during which Worthen stated that she was 19 years old, had
attended school through 11th grade, and was neither under the influence of drugs or
alcohol nor had difficulty understanding the proceedings. Worthen indicated that she
was serving a prison sentence; she had completed her supervision in a separate juvenile
case.
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{¶ 4} The trial court informed Worthen of the maximum possible penalties for
harassment by an inmate, which included a prison sentence of 6, 7, 8, 9, 10, 11, or 12
months in prison. The court further told Worthen that she was eligible for community
control sanctions, but it was going to sentence her to 12 months in prison, concurrently
with the sentence she was then serving in Case No. 2020-CR-604. Worthen told the
court that she did not understand what that meant. The court explained, “You’re going
to do extra time. But between now and the time you finish your sentence that Judge
Dankof gave you on the assault on a peace officer case, you’ll be earning credit on both
cases.” When Worthen asked what her “out date” would be, the court responded, “I don’t
know what your out date will be because – I would suspect your out date would be a year
from now less one day [of jail time credit].” After initially expressing surprise at her
additional incarceration, Worthen stated that she wanted to proceed with her plea.
{¶ 5} The court then explained the effect of a guilty plea and the constitutional
rights that Worthen was waiving by her plea. Worthen expressed that she understood.
The prosecutor read the facts underlying the offense, as alleged in the indictment, and
Worthen, after first stating that she did not agree, indicated that they were true. Worthen
reiterated that she wanted to enter a plea of guilty, and the court accepted her plea as
knowing, intelligent, and voluntary.
{¶ 6} The trial court immediately proceeded to sentencing. Neither defense
counsel nor Worthen spoke on Worthen’s behalf. The court imposed sentence, stating
in part:
Ma’am, after considering the purposes and principles of sentencing, the
seriousness and recidivism factors, and I do have your pre-sentence
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investigation from the case I had with you previously in case number 19-
CR-3203, because that does give me your juvenile history in addition, I am
going to sentence you to 12 months at the Ohio Reformatory for Women.
You’ll be given all applicable jailtime credit which is one day. That will be
served concurrently with -- just a minute, let me get the case number. With
case number 20-CR-604. All costs will be waived.
The trial court’s judgment entry, which was filed on February 18, 2021, was consistent
with its oral pronouncement.
{¶ 7} Worthen appeals from the trial court’s judgment.
II. Review of Worthen’s Sentence
{¶ 8} In her sole assignment of error, Worthen claims that the trial court “failed to
adequately consider the sentencing statutes pursuant to ORC §§ 2929.11-2929.12,
abusing its discretion in sentencing Appellant.” Worthen argues that the trial court failed
to consider all of the relevant factors and, instead, considered only those factors that were
unfavorable to her. She asserts that the trial court should have indicated how it weighed
the sentencing factors, that her conduct was less serious than conduct normally
constituting the offense, and that there were mitigating circumstances, such as her age
and level of education. Upon review of the record, we find no error in the court’s
consideration of R.C. 2929.11 and R.C. 2929.12.
{¶ 9} “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 minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). In determining an appropriate sentence, the
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trial court may consider information beyond that strictly related to the conviction offense.
State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 15 (2d Dist.).
This is because the court is no longer concerned with the narrow issue of guilt. Bowser
at ¶ 14; State v. Wiles, 2d Dist. Clark No. 2017-CA-69, 2018-Ohio-3077, ¶ 19. A court
may consider, for example, the circumstances underlying the offense, information
contained in a presentence investigation report, hearsay evidence, prior arrests, facts
supporting a charge that resulted in an acquittal, and facts related to a charge that was
dismissed under a plea agreement. E.g., State v. McNeil, 2d Dist. Clark No. 2019-CA-
51, 2020-Ohio-3202, ¶ 14; State v. Bodkins, 2d Dist. Clark No. 2010-CA-38, 2011-Ohio-
1274, ¶ 43; Wiles at ¶ 19.
{¶ 10} However, in exercising its 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. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55,
¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,
¶ 38.
{¶ 11} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes 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.” R.C. 2929.11(A). The court must “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. R.C.
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2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony sentencing * * *,
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.”
{¶ 12} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth
four factors indicating that an offender’s conduct is less serious than conduct normally
constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts
are to consider regarding the offender’s likelihood of committing future crimes. Finally,
R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service
record, if any.
{¶ 13} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under that
statute, 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. Huffman, 2d Dist. Miami No. 2016-CA-16, 2017-
Ohio-4097, ¶ 6.
{¶ 14} The Ohio Supreme Court recently stated that R.C. 2953.08(G)(2)(b) “does
not provide a basis for an appellate court to modify or vacate a sentence based on its
view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.”
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State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. “When
reviewing felony sentences that are imposed solely after considering the factors in R.C.
2929.11 and R.C. 2929.12, we do not analyze whether those sentences are unsupported
by the record.” State v. McDaniel, 2d Dist. Darke No. 2020-CA-3, 2021-Ohio-1519, ¶ 11,
citing State v. Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18; Jones at
¶ 26-29. Instead, “[w]e simply must determine whether those sentences are contrary to
law.” Dorsey at ¶ 18. “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.” (Citation omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d
1135, ¶ 74 (2d Dist.).
{¶ 15} In this case, the trial court complied with its obligation to consider the
statutory policies that apply to every felony offense, including those set out in R.C.
2929.11 and R.C. 2929.12. The court expressly stated at sentencing that it had
considered the purposes and principles of sentencing and the seriousness and recidivism
factors. The court informed the parties that it had considered Worthen’s presentence
investigation report from a prior case, Case No. 2019-CR-3203. Although the court did
not make explicit findings regarding each of the sentencing factors, there is nothing in the
record to suggest that the court failed to consider each of them. To the extent that
Worthen claims that her 12-month sentence is not supported by the record under R.C.
2929.11 and R.C. 2929.12, that argument is precluded by Jones.
{¶ 16} Worthen’s assignment of error is overruled.
III. Conclusion
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{¶ 17} The trial court’s judgment will be affirmed.
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TUCKER, P. J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
J. Joshua Rizzo
Thomas M. Kollin
Hon. Mary Katherine Huffman