State v. Andrews , 2021 Ohio 3507 ( 2021 )

[Cite as State v. Andrews, 2021-Ohio-3507.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1199
Appellee Trial Court No. CR0202001276
v.
Jeremy Andrews DECISION AND JUDGMENT
Appellant Decided: September 30, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
John F. Potts, for appellant.
*****
ZMUDA, P.J.
I. Introduction
{¶ 1} This matter is before the court on appeal of the October 29, 2020 judgment
of the Lucas County Court of Common Pleas, challenging the imposition of consecutive
sentences. For the reasons that follow, we affirm.
II. Background and Procedural History
{¶ 2} On December 15, 2019, appellant, Jeremy Andrews, went to the Encore Bar
in Toledo to confront a man. He took his loaded gun, equipped with a green laser sight.
Nearby police responded to the sound of gunshots, and they observed people exiting the
bar and a man fleeing with appellant in pursuit. Appellant fired at the man, but missed.
Police approached appellant, and he threw his gun down and fled on foot. Police quickly
apprehended appellant and recovered the gun.
{¶ 3} While in custody, immediately after the incident, appellant placed several
phone calls from jail. Based on these recorded calls, police learned that appellant went to
the bar after his girlfriend called him and told him another man, D.H., had assaulted her
there. Appellant’s girlfriend had children with both appellant and D.H., and she believed
appellant was just going to beat D.H., not try to shoot him. D.H. was later charged with
domestic violence based on the assault on appellant’s girlfriend, and D.H. admitted to
being present at the bar that night.
{¶ 4} On February 14, 2020, appellant was indicted for felonious assault in
violation of R.C. 2903.11(A)(2) and (D), a felony of the second degree, with a three-year
firearm specification pursuant to R.C. 2941.145(A), (B), (C), and (F) in Count One; and
tampering with evidence in violation of R.C. 2921.12(A)(1) and (B), a felony of the third
degree in Count Two. Appellant entered a plea of not guilty to the charges at
arraignment.
2.
{¶ 5} On August 20, 2020, appellant waived indictment as to a new charge by
information, Count Three, discharging a firearm on or near a prohibited premises in
violation of R.C. 2923.162(A)(3) and (C)(2), a felony of the third degree, with a one-year
firearm specification pursuant to R.C. 2941.141. The new charge was part of a plea
negotiation, in which appellant would plead guilty to Count Two and the new Count
Three, with the one-year firearm specification. Prior to appellant entering his plea, his
trial counsel noted the offenses did not merge but argued that the trial court should not
“make the findings that the statute would require for the counts to run consecutively.”
The trial court clarified that it could sentence consecutively, and if the maximum
sentences were imposed as to each charge, appellant faced a potential sentence of 72
months with an additional 1-year mandatory consecutive sentence for the firearm
specification.
{¶ 6} With this clarification stated on the record, appellant withdrew his prior plea
of not guilty, and entered a plea of guilty to Count Two, as charged in the indictment and
a plea of guilty to Count Three, with the specification, as charged by information. The
trial court accepted the plea, found appellant guilty, and referred him for a presentence
investigation. In addition to the investigation, several individuals submitted letters on
appellant’s behalf for the trial court’s consideration at sentencing.
{¶ 7} On October 29, 2020, the trial court held a sentencing hearing and, after
consideration of the principles and purposes of sentencing under R.C. 2929.11 and
3.
balancing the seriousness, recidivism, and other factors under R.C. 2929.12, determined a
community control sentence was not appropriate. The trial court imposed a sentence of
12 months as to count two and a sentence of 24 months as to count three. The trial court
also imposed a mandatory, consecutive one-year term for the gun specification attached
to count three. After considering the factors under R.C. 2929.14(C)(4), the trial court
ordered the sentences for counts two and three to run consecutively, for an aggregate
prison term of 48 months.
{¶ 8} Appellant filed a timely appeal of this judgment.
III. Assignments of Error
{¶ 9} Appellant now asserts the following assignment of error:
IT CONSTITUTED ERROR TO IMPOSE CONSECUTIVE
SENTENCES FOR THE SUBSTANTIVE OFFENSES OF CONVICTION
BECAUSE THE REQUIRED FINDINGS ARE NOT SUPPORTED BY
THE RECORD.
IV. Analysis
{¶ 10} Appellant challenges the imposition of consecutive sentences for the
substantive offenses in Counts Two and Three, but does not argue that the trial court
failed to make the statutory findings. Instead, appellant argues the facts recited into the
record do not support the trial court’s findings, and the presumption for concurrent
sentences weighed against consecutive sentences based on the record.
4.
{¶ 11} We review a felony sentence pursuant to R.C. 2953.08(G)(2). State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. “On appeals
involving the imposition of consecutive sentences, R.C. 2953.08(G)(2)(a) directs the
appellate court ‘to review the record, including the findings underlying the sentence’ and
to modify or vacate the sentence ‘if it clearly and convincingly finds * * * [t]hat the
record does not support the sentencing court’s findings under division * * * (C)(4) of
section 2929.14 * * * of the Revised Code.’” State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 28.
{¶ 12} The statute requires recitation of statutory findings pursuant to R.C.
2929.14(C)(4) to support imposition of consecutive sentences, with no requirement that
the trial court recite its factual findings at hearing or in the sentencing entry. Bonnell at ¶
27. The consecutive sentences, moreover, shall be affirmed “as long as the reviewing
court can discern that the trial court engaged in the correct analysis and can determine
that the record contains evidence to support the findings[.]” Id. at ¶ 29.
{¶ 13} There is no dispute, in this case, that the trial court engaged in the correct
analysis under R.C. 2929.14(C)(4). Appellant argues, however, that the record did not
support any of the trial court’s findings. R.C. 2929.14(C)(4) requires findings, as
follows:
If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
5.
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.
{¶ 14} Pursuant to R.C. 2953.08(G)(2), we may only reverse a trial court’s
findings if we determine the record does not clearly and convincingly support those
findings under R.C. 2929.14(C)(4), with appellant bearing the burden of demonstrating
6.
error in this regard. State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2021-Ohio-2256, ¶
8, citing State v. Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20; see also
State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434. ¶ 6. In this case,
appellant fails to demonstrate any error relative to the trial court’s findings, and instead
relies on policy argument favoring minimum sanctions.
{¶ 15} First, appellant fails to demonstrate a lack of support for consecutive
sentences, considering the factors under R.C. 2929.14(C)(4). As the record reflects,
appellant’s criminal history spans 12 years, including both juvenile and adult convictions.
Three of his juvenile adjudications, moreover, were for felony offenses of violence, and
he had previously failed to comply with conditions of community control in another case,
demonstrating factors supporting the need to protect the public from future crime. R.C.
2929.14(C)(4)(c); State v. Priest, 6th Dist. Wood No. WD-18-071, 2019-Ohio-4901, ¶ 16
(finding under R.C. 2929.14(C)(4)(c) supported by 30-year criminal record, numerous
misdemeanor and traffic offenses that included offenses of violence, one felony
conviction, and failure to respond well to prior community control sanctions).
{¶ 16} Appellant also fails to refute the finding that consecutive sentences were
necessary as punishment, and not disproportionate to the seriousness of his conduct or the
danger posed to the public pursuant to R.C. 2929.14(C)(4). The record demonstrates that
appellant went to the bar with a loaded gun to confront his girlfriend’s ex-boyfriend, after
learning that the ex-boyfriend had assaulted her. He fired in the direction of the man as
7.
he fled, and while no bullet struck its target, the danger posed to those in the area of the
gunfire was real. As police approached, appellant threw the gun to conceal it, and ran to
avoid apprehension. A loaded gun, discarded on the street, also poses a real danger.
{¶ 17} In arguing lack of support for consecutive sentences, appellant mainly
reiterates appellant’s positive qualities, and rather than point to an absence of supporting
facts for the trial court’s findings, appellant argues that his criminal history is not “such a
serious nature” to merit consecutive sentences, and consecutive sentences are not
necessary to punish appellant, who fired a single shot and immediately discarded the gun.
Appellant’s argument, however, only disputes the weight that should be given the facts as
support for consecutive sentences, when contrasted with other indications of his good
character.
{¶ 18} Appellant does not point to a lack of supporting facts for consecutive
sentences, but instead asserts policy argument in support of his appeal, relying on the
Eighth District Court of Appeals as stated in State v. Metz, 2019-Ohio-4054, 146 N.E.3d
1190 (8th Dist.). However, Metz is not controlling authority. The controlling authority,
moreover, contradicts the conclusion reached in Metz based on factors under R.C.
2929.11 and 2929.12. Metz at ¶ 109-110. The law is clear that appellate review is
limited by R.C. 2953.08(G)(2), which does not include review of the individual sentences
under R.C. 2929.11 and 2929.12. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-
8.
4761, 141 N.E.3d 169, ¶ 17-18; State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649, ¶ 39.
{¶ 19} Therefore, to the extent appellant argues his sentence is not supported by
the record based on factors under R.C. 2929.11 and 2929.12, we find such argument is
not part of our review under R.C. 2953.08(G)(2). Accordingly, considering the record
and appellant’s failure to demonstrate the absence of supporting facts for the trial court’s
imposition of consecutive sentences, we find appellant’s sole assignment of error not
well-taken.
V. Conclusion
{¶ 20} For the forgoing reasons, we affirm the judgment of the Lucas County
Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
9.
State of Ohio
v. Jeremy Andrews
L-20-1199
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, P.J.
____________________________
Myron C. Duhart, 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/.
10.