State v. Davis

[Cite as State v. Davis , 2016-Ohio-7347.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-16-09
v.
JAMARCUS TERRELL DAVIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2015-CR-151
Judgment Affirmed
Date of Decision: October 17, 2016
APPEARANCES:
Rob C. Wiesenmayer for Appellant
Benjamin R. Elder for Appellee
Case No. 2-16-09
ROGERS, J.
{¶1} Defendant-Appellant, Jamarcus Terrell Davis, appeals the judgment of
the Court of Common Pleas of Auglaize County convicting him of possession of
heroin, attempted possession of having a weapon while under a disability, and
illegal conveyance of cocaine into a jail and sentencing him to a total of 66 months
in prison. On appeal, Davis argues that the trial court erred in failing to consider
and apply the felony sentencing guidelines and sentencing him to a total prison term
that exceeded the maximum prison term allowed for the most serious offense of
which he was convicted. For the reasons that follow, we affirm the judgment of the
trial court.
{¶2} On December 17, 2015, the Auglaize County Grand Jury returned a
five-count indictment against Davis charging him with one count of complicity to
trafficking in heroin in violation of R.C. 2923.03(A)(2) and 2925.03(A)(2),
(C)(6)(e), a felony of the fourth degree; one count of possession of heroin in
violation of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree; one count of
possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a felony of the
fifth degree; one count of having a weapon while under disability in violation of
R.C. 2923.13(A)(2), a felony of the fourth degree; and one count of illegal
conveyance of cocaine into a jail in violation of R.C. 2921.36(A)(2), a felony of the
third degree. Davis entered pleas of not guilty to all charges.
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{¶3} After a period of plea negotiations, an agreement was reached whereby
Davis agreed to enter a plea of guilty to one count of possession of heroin in
violation of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree; one count of
attempted having a weapon while under a disability in violation of R.C. 2923.02
and 2923.13(A)(2), a felony of the fourth degree; and one count of illegal
conveyance of cocaine into a jail in violation of R.C. 2921.36(A)(2), a felony of the
third degree, in exchange for the State’s dismissal of the remaining charges and a
recommendation that Davis be sentenced to a total of 59 months in prison.
{¶4} At the change of plea hearing, the State explained the facts underlying
the charges:
On December 9th of 2015, the St. Marys Police Department received
a call from the manager at America’s Best Value Inn located there is
St. Marys, Auglaize County, State of Ohio, and reported that an
individual identified as Alisha Hashman had rented room 231 and had
been there for a couple of days and had just paid for a third day and
that the management had noticed between five (5) and six (6) cars
would pull up and go into room 231 and then leave after a very short
period of time. This is the only room rented in this particular building
at the time. Upon learning this information, Task Force set up
observation on December 10th and observed Justin Yates and Alisha
Hashman sitting in a silver Acura parked in front of room 231. The
hotel had identified the Acura as being associated with the room.
[Davis] was seen exiting room 231 and appeared to check the door to
ensure that it was locked. The three (3) then got in the Acura and
drove down to Dayton. The Task Force followed them to Dayton to
an exit, Needmore Road, where they entered an apartment complex;
were there for four (4) or (5) minutes then exited and returned heading
northbound on 75. At one point shortly thereafter they turned around
and went back to the apartment off Needmore Road for another five
(5) or six (6) minutes roughly, then turned around and came back
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north on 75 returning into Auglaize County. The driver, at that time,
was Alisha Hashman. She was under suspension and a stop was
conducted of the vehicle at U.S. 33 and County Road 33 in Moulton
Township, Auglaize County. The State of Ohio officers identified a
strong odor of marijuana coming from the vehicle and the occupants
were removed from the vehicle and patted down for the officers’
safety. While the officers were conducting a pat down of [Davis], a
grey powdery substance in a baggie fell out of his pant leg, which was
later identified as 3.78 grams of heroin as tested by the Bureau, or
BCI&I. Once the baggie fell out of his pants, he was then taken to the
jail and interviewed; was asked if he had anything else on him at
which point he did not represent anything about the cocaine. Once he
was in the intake area, he was again searched and a baggie - another
baggie fell out of his pant leg which was found to be cocaine,
weighing 0.84 grams. A search was conducted pursuant to a search
warrant of the hotel room, room 231, there in St. Marys at the
America’s Best Value Inn. During that search, officers found a Uzi
submachine gun 9 mm weapon with ammunition in a red bag. Inside
the bag was a receipt from Verizon in the name of [Davis]. That
weapon was tested by BCI&I and found to be operable in both the
semi and fully automatic modes.
Feb. 29, 2016 Hrg., p. 20-22. Davis then admitted that he sold a few thousand
dollars’ worth of drugs per week and had purchased the gun from an affiliate of “the
Bloods” for his and his family’s protection.
{¶5} A subsequent pre-sentence investigation report detailed Davis’s lengthy
criminal history, including multiple juvenile convictions, multiple misdemeanor
convictions, and one felony conviction. It also noted a ORAS-PIT score of “high
risk.”1
1
This is an assessment designed to predict an offender’s likelihood of recidivism.
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{¶6} A few months later, a sentencing hearing was held, where the trial court
engaged in a lengthy colloquy with Davis about his criminal history. Then it stated,
After consideration of the information provided to the Court by the
parties, the [p]resentence [i]nvestigation, purposes and principles of
felony sentencing under Section 2929.11 and the criteria set forth in
Chapter 2929 of the Revised Code, noting [Davis’s] ORAS score of
very high range specifically being thirty four [sic] (34), noting
[Davis’s] prior repeat violence of, - offenses of violence, and noting
the nature of the weapon being a [sic] automatic capable machine gun
fully operable, the Court SENTENCES [Davis] as follows: as to
COUNT II, POSSESSION OF HEROIN, a felony in the fourth
degree, EIGHTEEN (18) MONTHS IN THE DEPARTMENT OF
REHABILITATION AND CORRECTIONS * * *; as to AMENDED
COUNT IV, ATTEMPTED POSSESSION OF A WEAPON UNDER
DISABILITY, a felony of the fourth degree, EIGHTEEN (18)
MONTHS; and as to COUNT V, A CHARGE OF ILLEGAL
CONVEYANCE OF DRUGS INTO A JAIL, a felony of the third
degree, THIRTY (30) MONTHS.
May 13, 2016 Hrg., p. 20-21.
{¶7} The Court further stated
that consecutive service is necessary to protect the public from future
crime and to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and
the danger the offender poses to the public, and * * * that the
offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
Id. at p. 21.
{¶8} The trial court memorialized its decision by entry dated May 16, 2015.
In its entry, it reiterated
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that the offender shall serve the prison terms consecutively, pursuant
to R.C. 2929.14(C)(4), because 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 * * * the offender’s
history of criminal conduct demonstrates that the consecutive
sentences are necessary to protect the public from future crime by the
offender.
(Docket No. 70, p. 2).
{¶9} It is from this judgment that Davis appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT COMMITTED ERROR TO THE
SUBSTANTIAL PREJUDICE OF THE
DEFENDANT/APPELLANT IN ENTERING CONVICTIONS
AND IMPOSING CONSECUTIVE SENTENCES [SIC] WAS
[SIC] CONTRARY TO LAW AND FURTHER CONSTITUTED
AN ABUSE OF DISCRETION IN FAILING TO PROPERLY
CONSIDER AND APPLY THE FELONY SENTENCING
GUIDELINES SET FORTH IN OHIO REVISED CODE,
SECTION 2929.22 AND 2929.12.
Assignment of Error No. II
THE TRIAL COURT’S SENTENCE OF THE DEFENDANT-
APPELLANT TO CONSECUTIVE SENTENCES THAT
EXCEED THE MAXIMUM PRISON TERM ALLOWED FOR
THE MOST SERIOUS OFFENSE OF WHICH DEFENDANT
WAS CONVICTED [R.C. 2921.36(A)(2)].
{¶10} Due to the nature of Davis’s assignments of error, we elect to address
them together.
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Assignments of Error Nos. I & II
{¶11} In his first and second assignments of error, Davis argues that the trial
court erred in failing to consider the purposes and principles of sentencing in R.C.
2929.11 and the sentencing factors in R.C. 2929.12. Specifically, Davis argues that
those purposes, principles, and factors, do not support “imposing a consecutive
sentence including the maximum sentence for [possession of heroin] and [attempted
having a weapon while under a disability] * * *.” Appellant’s Brief, p. 11. Davis
further argues that the trial court erred in imposing a total prison term that exceeded
36 months, the maximum prison term for a third-degree felony. We disagree.
{¶12} “A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d Dist.
Putnam No. 12-12-01, 2012-Ohio-3196, ¶ 20. Clear and convincing evidence is that
“which will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
{¶13} R.C. 2929.11(A) provides, “A court that sentences an offender for a
felony shall be guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the public from future crime
by the offender and others and to punish the offender using the minimum sanctions
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that the court determines accomplish those purposes * * *.” “In order to comply
with 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 conduct and
to the likelihood of the offender's recidivism.” State v. Davis, 3d Dist. Auglaize No.
2–11–06, 2011-Ohio-5441, ¶ 14, citing R.C. 2929.12(A)-(D). “[I]n addition, the
court may consider any other factors that are relevant to achieving the purposes and
principles of sentencing.” R.C. 2929.12(A).
{¶14} “However, the trial court is not required to use specific language
regarding its consideration of the seriousness and recidivism factors.” State v.
Holbrook, 3d Dist. Auglaize No. 2-13-06, 2013-Ohio-3786, ¶ 10, citing State v.
Smith, 3d Dist. Auglaize No. 2–06–37, 2007–Ohio–3129, ¶ 26. There is also no
requirement in R.C. 2929.12 that the trial court state on the record that it has
considered those factors. Smith at ¶ 26, citing State v. Polick, 101 Ohio App.3d 428,
431 (4th Dist.1995).
{¶15} Furthermore, 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:
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***
(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)(c).
{¶16} If a court imposes consecutive sentences, it “is required to make the
findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
its findings into its sentencing entry.” State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, ¶ 37. “The court should also include its statutory findings in the
sentencing entry because a court speaks through its journal.” State v. Noble, 3d
Dist. Logan No. 9-14-06, 2014-Ohio-5485, ¶ 13, citing Bonnell at ¶ 29. However,
the court need neither state its reasoning to support its findings nor must it provide
a ‘talismanic incantation’ of R.C. 2929.14(C)(4). Bonnell at ¶ 37.
{¶17} Here, Davis argues that the “offenses were not the most serious form
of the offenses for which he was convicted, and therefore, the imposition of
maximum, consecutive sentences of imprisonment is not supported by the record.”
Appellant’s Brief, p. 10. Specifically, he argues that the factors listed in R.C.
2929.12(B) weigh in favor of a lesser sentence. He explains,
The offense committed herein did not cause physical injury to any
victim. No victim suffered any demonstrated or documented
psychological harm as a result of the offense. The offender did not
have an occupation, elected office or profession which facilitated him
in the commission of the offenses. The offender’s personal reputation
or occupation was not used to facilitate the commission of the offense.
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Also, the record would suggest that [he] did not have any significant
financial gain as a result of his actions in this matter.
Id.{¶18} While some of these factors may weigh in Davis’s favor, the trial court
was allowed to consider other relevant factors, such as Davis’s lengthy criminal
history and the type of weapon used in the commission of the offense. R.C.
2929.12(A)-(D). After stating that it had considered all of this information, the trial
court sentenced Davis to prison terms within the statutory ranges and made the
appropriate consecutive sentence findings under R.C. 2929.14(C)(4).
{¶19} Davis also argues that the trial court erred in imposing a total prison
term that exceeded the maximum prison term for a third-degree felony, the most
serious offense of which he was convicted. In support, he cites R.C. 2953.08(C)(1),
which provides,
[A] defendant who is convicted of or pleads guilty to a felony may
seek leave to appeal a sentence imposed upon the defendant on the
basis that the sentencing judge has imposed consecutive sentences
under division (C)(3) of section 2929.14 of the Revised Code and that
the consecutive sentences exceed the maximum prison term allowed
by division (A) of that section for the most serious offense of which
the defendant was convicted. * * *
{¶20} However, R.C. 2953.08(C)(1) applies only where consecutive
sentences are imposed under R.C. 2929.14(C)(3). R.C. 2929.14(C)(3) mandates
consecutive sentences in limited cases involving violations of R.C. 2911.01
(aggravated robbery), 2913.02 (theft), and 2921.331 (failure to comply). Davis was
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not convicted of any of these offenses, and therefore, R.C. 2953.08(C)(1) is
inapplicable.
{¶21} Considering the trial court considered the appropriate statutes, made
the appropriate findings, and there was evidence in the record to support its findings,
Davis has failed to prove by clear and convincing evidence that his sentence is
unsupported by the record or otherwise contrary to law.
{¶22} Accordingly, we overrule Davis’s first and second assignments of
error.
{¶23} Having found no error prejudicial to the Davis, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr
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