State v. Exon

[Cite as State v. Exon, 2016-Ohio-600.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2014-CA-106
:
v. : T.C. NO. 14CR150
:
JERRY EXON, SR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___19th___ day of ____February___, 2016.
...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
SEAN J. VALLONE, Atty. Reg. No. 0064053, 5 Irongate Park Drive, Suite A, Centerville,
Ohio 45459
Attorney for Defendant-Appellant
JERRY EXON, SR., #A709079, North Central Correctional Institute, 670 Marion-
Williamsport Road, P. O. Box 1812, Marion, Ohio 43301
Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Jerry Exon, Sr. was convicted after a jury trial in the Clark County Court of
Common Pleas of robbery, in violation of R.C. 2911.02(A)(2), a second-degree felony.
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The trial court sentenced him to the maximum term of eight years in prison, to be served
consecutively with sentences imposed in four other cases.
{¶ 2} Exon appeals from his conviction. For the following reasons, the trial court’s
judgment will be affirmed.
I. Factual and Procedural History
{¶ 3} In March 2014, Exon was indicted for robbery, in violation of R.C.
2911.02(A)(2). The charges stemmed from the robbery of a Speedway gas station in
Springfield on February 16, 2014. Exon was arrested in May 2014. At the time of his
arrest, there were warrants for his arrest in several other cases.
{¶ 4} A jury trial in this matter was scheduled for September 10, 2014. The day
before trial, the State filed a notice of its intent to use evidence of Exon’s prior crimes at
trial. It noted that, in a plea deal on August 19, 2014, Exon had pled guilty to one count
of a two-count indictment and agreed to pay restitution on both counts in Clark C.P. No.
2013 CR 668.1 In Case No. 2013 CR 668, Exon and an accomplice had entered the
storage room of the same Speedway store on August 1 and 2, 2013, and stuffed their
clothing with cartons of cigarettes. Although no written entry was filed, the trial court
apparently overruled the State’s motion.
{¶ 5} A one-day trial was held on September 10. After deliberations, the jury
convicted Exon of the February 16 robbery. The following day (September 11), the trial
court sentenced Exon and imposed a sentence of eight years in prison, to be served
consecutively to the sentences previously imposed in Clark M.C. No. 13 CRB 4891, Clark
1
The State’s motion did not identify the offense to which Exon pled in Case No. 13 CR
668. However, the presentence investigation report in this case indicates that he was
convicted of theft and was sentenced to six months in prison, plus restitution.
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C.P. No. 13 CR 668, Clark C.P. No. 14 CR 151, and Clark C.P. No. 14 CR 347. The
court filed a written judgment entry consistent with its announced sentence.
{¶ 6} Exon appealed from the trial court’s judgment. His appellate counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967), indicating that he was unable to find any potential assignments of error having
arguable merit. By entry, we informed Exon that his attorney had filed an Anders brief
on his behalf and granted him 60 days from that date to file a pro se brief. Exon filed a
supplemental pro se brief. The case is now before us for our independent review of the
record
{¶ 7} Exon’s appellate counsel raised four potential assignments of error. Exon’s
supplemental pro se brief raises five assignments of error, which are, in most respects,
similar to those raised by his attorney. We will address them in a manner that facilitates
our analysis.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 8} Counsel’s third potential assignment of error and Exon’s fourth and fifth
assignments of error claim that his conviction for robbery, in violation of R.C.
2911.02(A)(2), was based on insufficient evidence and was against the manifest weight
of the evidence.
{¶ 9} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678
N.E.2d 541 (1997).
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{¶ 10} In contrast, “a weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” Wilson at ¶ 12. See Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“‘manifest weight of the evidence’
refers to a greater amount of credible evidence and relates to persuasion”). When
evaluating whether a conviction is against the manifest weight of the evidence, the
appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in resolving conflicts in
the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” Thompkins, 78
Ohio St. 3d at 387, citing State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶ 11} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684 (Aug. 22, 1997). However, we may determine which of several competing
inferences suggested by the evidence should be preferred. Id. The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be
reversed as being against the manifest weight of the evidence only in exceptional
circumstances. Martin at 175.
{¶ 12} The State presented six witnesses at trial. Exon did not present any
witnesses. The State’s evidence at trial established the following facts:
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{¶ 13} In the early morning hours of February 16, 2014, Richard Reynolds was the
sole employee at the Speedway gas station and convenience store on North Bechtle
Avenue in Springfield. The store has beverage coolers along the walls on the right side
of the store, upon entering the front door. The counter is located to the left of the front
door. A cigarette storage room is located down a short hallway near the counter area.
{¶ 14} At approximately 4:32 a.m., Exon and another man, Henry McWhorter,
entered the Speedway store. McWhorter repeatedly tried to get Reynolds’s attention,
asking him various questions about milk and orange juice products. Reynolds tried not
to walk too far from the counter, but he would step halfway through the store to answer
the questions. After the third time, Reynolds told McWhorter that he could not keep
coming over. At that time, Reynolds noticed that Exon was no longer in sight.
{¶ 15} Reynolds looked into the cigarette room and saw Exon “stashing cartons in
his shirt.” Reynolds told Exon to “drop them and let them go.” Exon placed two cartons
of cigarettes on a table in the room. McWhorter then “stepped up on” Reynolds, making
Reynolds feel “uneasy.” Reynolds told Exon and McWhorter to leave. The men stood
there for a moment, and Exon “looked at [Reynolds] in a threatening way.” Reynolds
stepped back and told Exon to go. Exon walked out of the storage room past Reynolds,
and Reynolds followed Exon and McWhorter toward the front door. Reynolds told them
that he was going to call the police.
{¶ 16} As Exon neared the front door, Reynolds noticed that Exon had a carton of
cigarettes under his left arm. Reynolds started to reach for the carton to retrieve it.
Exon turned and punched Reynolds in the face, hitting him on the chin. Exon looked
Reynolds in the eye, dropped the carton, left the store, and got into a car. The car was
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driven by a third individual who had not entered the store. Reynolds pressed the panic
button at the store and waited for the police to arrive.
{¶ 17} The State presented surveillance video from the Speedway, and Reynolds
described the events as the video was played for the jury.
{¶ 18} Springfield Police Officers Jerrod Osborne and Tyler Elliott responded to
the Speedway. Osborne spoke with Reynolds, and both officers reviewed the
surveillance video with him. Osborne recognized McWhorter from the surveillance
video; Elliott recognized both McWhorter and Exon. The matter was referred to a
detective for the preparation of a photo lineup.
{¶ 19} Springfield Police Officer Sandy Fent testified that she showed two
photospreads to Reynolds on February 18, 2014. She did not know any details about
the case. Fent testified that Reynolds identified the photos for McWhorter and Exon.
{¶ 20} Reynolds testified that, on February 18, he reviewed two photospreads
prepared by the police. Reynolds identified Exon and McWhorter as the individuals
involved in the offense. Reynolds also testified that he had seen both men before at a
liquor store at which he (Reynolds) had worked and that “we’ve had issues.” Reynolds
identified Exon as the man who had been in the cigarette storage room.
{¶ 21} Detective Dan DeWine testified that he was assigned to the case, reviewed
the reports, and viewed the surveillance video. He assembled photospreads concerning
each suspect. As part of his investigation, DeWine also located the driver of the vehicle
and spoke to him and McWhorter. DeWine concluded that McWhorter and Exon had
participated in the incident in the store.
{¶ 22} On appeal, Exon does not argue that he was not involved in the theft of
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cigarette cartons from the Speedway store. To the contrary, he admits his participation
in the theft. Exon argues, however, that he did not cause physical harm to Reynolds.
{¶ 23} R.C. 2911.02, the robbery statute, provides:
(A) No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under the
offender’s control;
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
(3) Use or threaten the immediate use of force against another.
Physical harm to persons is defined as “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). A violation of
R.C. 2911.02(A)(1) or (2) is a second-degree felony. R.C. 2911.02(B). A violation of
R.C. 2911.02(A)(3) is a third-degree felony. Id.
{¶ 24} Reynolds testified that Exon punched him on the chin when he (Reynolds)
reached for the cigarette carton under Exon’s left arm. A still photograph from the
surveillance video, which captures only the left side of Reynolds’s head and shoulder,
also appears to show a fist making contact with the left side of Reynolds’s jaw. Reynolds
stated that Exon made “solid contact,” but it hurt his “pride more than anything.” When
asked on cross-examination about his testimony that the only injury he sustained was to
his ego, Reynolds responded, “I mean other than the slight pain that I felt in my jaw for a
few hours; yeah, my ego was more hurt than anything.”
{¶ 25} Reynolds’s testimony, if believed, was sufficient to establish that, in
attempting or committing a theft offense, Exon had inflicted or attempted to inflict physical
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harm on Reynolds. Reynolds testified that Exon punched him on the chin. Although he
stated that his ego was hurt more than anything, he indicated that he felt slight pain in his
jaw for a few hours after the assault. Moreover, a jury could reasonably conclude that,
by punching Reynolds, Exon attempted to inflict physical harm. See State v. McKinnon,
7th Dist. Columbiana No. 09 CO 17, 2010-Ohio-2145, ¶ 20 (hitting or trying to punch store
employee constituted the infliction or attempt to inflict physical harm). Upon review of
the entire trial transcript, the jury did not lose its way when it convicted Exon of robbery,
in violation of R.C. 2911.02(A)(2).
{¶ 26} Exon’s conviction for robbery, in violation of R.C. 2911.02(A)(2), was neither
based on insufficient evidence or against the manifest weight of the evidence.
III. Ineffective Assistance of Counsel
{¶ 27} Counsel’s first proposed assignment of error and Exon’s first assignment of
error claim that trial counsel rendered ineffective assistance.
{¶ 28} To establish ineffective assistance of counsel, Exon must demonstrate
both that trial counsel’s conduct fell below an objective standard of reasonableness and
that the errors were serious enough to create a reasonable probability that, but for the
errors, the outcome would have been different. See Strickland v. Washington, 466 U.S.
668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136,
538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that his or her
conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at
688, 104 S. Ct. 2052. Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel’s perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
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counsel. State v. Cook, 65 Ohio St. 3d 516, 524-525, 605 N.E.2d 70 (1992); State v.
Rucker, 2d Dist. Montgomery No. 24340, 2012-Ohio-4860, ¶ 58.
{¶ 29} Both appellate counsel and Exon claim that trial counsel acted deficiently
during jury selection. Appellate counsel raises that trial counsel did not challenge an
alternate juror who knew a lawyer in the prosecutor’s office and that counsel did not
challenge the racial make-up of the jury pool. Exon argues that his trial attorney made
no challenges for cause, even though several potential jurors indicated that they knew
police officers or were victims of crime, and trial counsel did not excuse a potential juror
who indicated that he wanted a quick verdict due to job obligations.
{¶ 30} The record does not reflect the racial make-up of the jury pool. There is
nothing in the record to suggest that defense counsel acted deficiently by failing to
challenge the jury pool on racial grounds or by failing to challenge the State’s use of any
peremptory challenges on constitutional grounds.
{¶ 31} Crim.R. 24(C) provides fourteen bases for a potential juror to be challenged
for cause. In addition, in a criminal case involving a non-capital felony offense, each
party has four peremptory challenges. Crim.R. 24(D).
{¶ 32} The record indicates that several prospective jurors knew or were related to
police officers and many potential jurors had previously been victims of crimes, including
theft offenses. However, these prospective jurors indicated that they could be fair and
impartial, and several of the prospective jurors were dismissed by means of peremptory
challenges. We find no arguable claim based on defense counsel’s failure to make any
challenge for cause or his use of peremptory challenges.
{¶ 33} Exon also asserts that trial counsel was deficient for failing to challenge
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Detective DeWine’s presence in the courtroom during the trial. He contends that there
should have been a separation of witnesses.
{¶ 34} Evid.R. 615(A) provides that, at the request of a party, the court shall order
witnesses be excluded from the courtroom so that they cannot hear the testimony of other
witnesses. The court may also order the separation of witnesses on its own motion.
This exclusion does not apply to certain persons, including “an officer or employee of a
party that is not a natural person designated as its representative by its attorney.”
Evid.R. 615(B)(2).
{¶ 35} The record reflects that Detective DeWine, who was seated at the
prosecutor’s table, was introduced to the jury at the beginning of jury selection. Although
the record does not include a request by the State for Detective DeWine to be designated
the State’s representative at trial, DeWine was the lead detective in the case, and it is
apparent that DeWine sat at the prosecutor’s table as the State’s representative during
the trial. And, Exon has not asserted that DeWine’s testimony would have been different
had he not been permitted to sit with the prosecutor. We find no arguable claim that
Exon’s trial counsel acted deficiently in failing to challenge DeWine’s presence in the
courtroom during the trial.
{¶ 36} Exon argues that trial counsel’s “worst mistake” was his failure to object to
Reynolds’s testimony that he had known Exon from his (Reynolds’s) employment at a
different store and that employees “had issues” with Exon. Exon claims that this
testimony amounted to testimony that Exon had committed prior crimes.
{¶ 37} Immediately after Reynolds testified that he recognized Exon and
McWhorter from employment at a different store and that “we’ve had issues,” the trial
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court asked counsel to approach. The court stated: “I don’t have any problem with what
he said so far, but I want to make sure he knows he’s not supposed to mention anything
about his prior. * * * I just want to make sure it doesn’t go any further.” The following
exchange then occurred:
[Prosecutor]: So these were two gentlemen that you had seen coming into
the Speedway location before.
Reynolds: Actually, I used to work at a liquor store and they had – we had
issues with them.
[Defense counsel]: Objection, Your Honor.
[Prosecutor]: Okay. My question is you were familiar –
Reynolds: Yes.
[Prosecutor]: -- with who they were.
Reynolds: Yes.
No further mention was made of any prior conduct by Exon.
{¶ 38} We find no arguable claim trial counsel acted deficiently when he failed to
object to Reynolds’s testimony that he had prior “issues” with Exon. Reynolds’s
testimony did not reference any prior criminal conviction or necessarily indicate that Exon
had engaged in prior criminal conduct. Trial counsel could have reasonably believed
that an objection would highlight Reynolds’s testimony about prior “issues,” and the trial
court’s immediate handling of the matter reflected that the court would have overruled the
objection at that time. Further, the trial court made clear that it would not permit the State
to elicit testimony regarding Exon’s criminal history. When, upon further questioning,
Reynolds clarified that he had had “issues” with Exon while employed at a liquor store,
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Exon’s trial counsel objected. Trial counsel’s conduct did not fall below an objective
standard of reasonableness.
IV. Prosecutorial Misconduct
{¶ 39} Appellate counsel’s second proposed assignment of error and Exon’s
second assignment of error claim that the prosecutor engaged in misconduct, violating
Exon’s right to due process.
{¶ 40} In reviewing claims of prosecutorial misconduct, the test is whether the
prosecutor’s remarks or conduct were improper and, if so, whether those comments
prejudicially affected the substantial rights of the defendant. State v. Jones, 90 Ohio
St.3d 403, 420, 739 N.E.2d 300 (2000). The touchstone of analysis is the fairness of the
trial, not the culpability of the prosecutor. Id., quoting Smith v. Phillips, 455 U.S. 209,
219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). Where it is clear beyond a reasonable doubt
that the jury would have found the defendant guilty, even absent the alleged misconduct,
the defendant has not been prejudiced, and his conviction will not be reversed. See
State v. Underwood, 2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review
allegations of prosecutorial misconduct in the context of the entire trial. State v.
Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v.
Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).
{¶ 41} First, we find nothing improper in the State’s asking Reynolds whether he
knew either of the individuals who came into the Speedway on February 16. The fact
that Reynolds recognized Exon from prior encounters was relevant to the accuracy of his
identification. The prosecutor’s question did not ask for details about the prior
encounters or encourage Reynolds to testify about Exon’s prior criminal conduct.
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{¶ 42} Second, Exon asserts that the prosecutor engaged in misconduct when
Reynolds testified to the “mug shots” that he reviewed. After Reynolds testified that he
had been asked to look at photo arrays, the prosecutor handed Reynolds State’s Exhibit
B-2 and asked Reynolds to identify the exhibit. Reynolds responded, “It’s the mug shots
of the gentlemen that they had me check out when they asked.” The prosecutor then
asked Reynolds if he was able to identify one of the individuals as being involved in the
February 13 incident. Reynolds responded that he was able to, and he indicated the
number of the photo that he had selected. Reynolds testified similarly regarding State’s
Exhibit C-2, the second photospread.
{¶ 43} The prosecutor did not refer to the photographs in the photospreads as mug
shots, nor did the prosecutor make any reference to the fact that individuals in the
photographs might have criminal records. When Detective DeWine testified about the
photospreads, he testified that Exhibit B-2 was “a photo array composite that I have
assembled from the NWS system.” He testified that Exhibit C-2 was “also a photo array
composite that I put together.” The prosecutor did not elicit any testimony as to the
source of the photographs. We find no improper conduct by the prosecutor in his
questioning about the photo arrays.
{¶ 44} Third, Exon asserts that the prosecutor engaged in misconduct when,
during the State’s examination of Reynolds, the prosecutor asked if Reynolds had “ever
been punched in the head before while you were at work at Speedway.” (Tr. at 100.)
Defense counsel objected on relevance grounds, but the objection was overruled.
Reynolds responded, “No.”
{¶ 45} We agree with Exon that this question was irrelevant to the issues before
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the jury. However, we find no basis to conclude that the question and its answer, in the
context of the entire trial, resulted in any prejudice to him.
{¶ 46} Upon review of the record, we conclude that Exon’s right to due process
was not violated as a result of prosecutorial misconduct.
{¶ 47} Finally, in a portion of his third assignment of error, Exon claims that the trial
court abused its judicial discretion by “letting the prosecution proceed with its illegal tactics
as outlined above without declaring a mistrial.” Having concluded that the prosecution
did not engage in misconduct, this argument is also without arguable merit.
V. Sentencing
{¶ 48} Appellate counsel’s fourth proposed assignment of error and a portion of
Exon’s third assignment of error claims that the trial court abused its discretion and
imposed a disproportionately harsh sentence when it imposed the maximum eight-year
sentence for the robbery.
{¶ 49} “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.). 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.
{¶ 50} R.C. 2929.11 requires trial courts to be guided by the overriding principles
of felony sentencing. Those purposes are “to protect the public from future crime by the
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offender and others and to punish 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. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two 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.”
{¶ 51} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense. These factors include
whether the physical or mental injury to the victim was exacerbated because of the
physical or mental condition of the victim; serious physical, psychological, or economic
harm suffered by the victim as a result of the offense; whether the offender’s relationship
with the victim facilitated the offense; and whether the offender committed the offense for
hire or as a part of an organized criminal activity. R.C. 2929.12(C) sets forth four factors
indicating that an offender’s conduct is less serious than conduct normally constituting
the offense, including whether the victim induced or facilitated the offense, whether the
offender acted under strong provocation, whether, in committing the offense, the offender
did not cause or expect to cause physical harm to any person or property, and the
existence of substantial grounds to mitigate the offender’s conduct, although the grounds
are not enough to constitute a defense. R.C. 2929.12(D) and (E) each lists five factors
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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.
{¶ 52} The language of R.C. 2929.11 and R.C. 2929.12 repeatedly refers to the
exercise of the trial court’s discretion when determining the appropriate sentence for an
offense. For example, R.C. 2929.12(A) states that the court “has discretion to determine
the most effective way to comply with the purposes and principles of sentencing set forth
in section 2929.11.” (Emphasis added.) R.C. 2929.12 then describes the factors that
the court must consider, in addition to other “relevant” factors, when imposing sentence.
A reasonable interpretation of these statutes would be that an appellate court should
determine whether the discretion of the trial court was abused and whether the required
and “relevant” factors were considered. And, we recently applied an abuse of discretion
standard in reviewing whether a trial court erred in imposing a maximum sentence for
having a weapon under disability. State v. Fleming, 2d Dist. Clark No. 14-CA-136, 2015-
Ohio-5382; see also, e.g., State v. Wheeler, 9th Dist. Summit No. 27643, 2016-Ohio-15
(concluding that the 36-month maximum sentence of having a weapon under disability
was not an abuse of discretion); State v. Wilson, 7th Dist. Mahoning No. 14 MA 43, 2015-
Ohio-838 (five-year sentence was not an abuse of discretion).
{¶ 53} However, we have been somewhat inconsistent in identifying the
appropriate standard when reviewing the sentence imposed for a specific offense. In
State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), we held that we would no
longer use an abuse of discretion standard in reviewing a felony sentence, but would
apply the standard of review set forth in R.C. 2953.08(G)(2). Under R.C. 2953.08(G)(2),
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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. Rodeffer stated:
Although [State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d
124] no longer provides the framework for reviewing felony sentences, it
does provide * * * adequate guidance for determining whether a sentence
is clearly and convincingly contrary to law. * * * According to Kalish, a
sentence is not contrary to law when the trial court imposes a sentence
within the statutory range, after expressly stating that it had considered the
purposes and principles of sentencing set forth in R.C. 2929.11, as well as
the factors in R.C. 2929.12.
(Citations omitted.) Rodeffer at ¶ 32.
{¶ 54} Many of our cases have expressed reservations about Rodeffer and
evaluate a defendant’s sentence using both standards of review. E.g., State v. Obsorne,
2d Dist. Clark No. 2014-CA-107, 2015-Ohio-3058 (concluding that defendant’s sentence
was not clearly and convincingly unsupported by the record or contrary to law or
constituted an abuse of discretion); State v. Johnson, 2d Dist. Clark No. 2013-CA-85,
2014-Ohio-2308.
{¶ 55} In this case, the trial court heard arguments from the prosecutor and
defense counsel, and Exon spoke on his own behalf. The trial court and counsel had
also reviewed a presentence investigation report. The report indicated that it consisted
of some information from Exon’s 2008 presentence investigation report with an updated
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criminal history, information about the current offense, and updated information regarding
Exon’s incarceration from the Ohio Department of Rehabilitation and Correction (ODRC).
{¶ 56} The State asked the court to impose the maximum eight-year sentence. It
argued that Exon was a “menace to society,” who has three felony charges pending,
including one for possession of cocaine. Exon’s risk assessment survey, prepared in
2013, had showed that Exon was a moderate risk to offend; the State noted that Exon
had four felony convictions since then. The State noted that Exon has violent
tendencies, and it argued that his punching the Speedway clerk reflected those
tendencies. The State emphasized Exon’s extensive criminal history, which included a
juvenile record with time spent in the DYS system, and numerous adult offenses. The
prosecutor argued that Exon had served “at least 10 separate prison sentences for felony
convictions. He has 39 jail sentences, multiple probation and parole violations, and
society needs to be protected from Jerry Exon, Sr., for as long as possible.”
{¶ 57} Defense counsel began by noting that the social and health summary
portions of the presentence investigation report were prepared in 2008, and Exon “took
issue” with some of the things reported. Counsel stated that Exon questioned the
report’s statement that he acknowledged use of marijuana only, and counsel indicated
that Exon would admit to having a long history of substance abuse. Counsel continued,
“In fact, I believe his criminal record clearly shows someone with a long history of use of
substances” and “[t]he vast majority of my client’s convictions * * * are theft and receiving
stolen property, the type of things that arise when someone has an addiction that goes
untreated.” Counsel argued that Exon had not received substance abuse treatment, and
he asked the court to consider placing Exon in a treatment program or to obtain treatment.
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Finally, counsel asked the court to consider that Exon’s co-defendant in this case received
a six-month sentence and also has a “very lengthy criminal history.”
{¶ 58} Exon spoke on his own behalf. He stated that he knew “what I did was
wrong” and that he did it to support a drug habit. He indicated that he was addicted to
crack cocaine and heroin. Exon stated that he had been to prison, but had never
received help with his addiction. Exon asked for some type of treatment, indicating that
he did not want “to be back into this lifestyle” after his punishment.
{¶ 59} The presentence investigation report indicated that Exon was 50 years old
at sentencing. His criminal history included five juvenile offenses in 1982 and 1983, for
which he received suspended sentences. He had numerous adult offenses between
1984 and 2014. These include more than 30 convictions for theft, as well as convictions
for domestic violence, complicity to forgery, telephone harassment, identify theft, resisting
arrest, possession of counterfeit controlled substances, vandalism, disorderly conduct,
criminal trespass, criminal damaging, assault, receiving stolen property, operating a
vehicle while under the influence, failure to appear, and felonious assault. Many of
Exon’s convictions were for misdemeanors. However, Exon had also been sentenced
to prison on ten separate occasions, including the imposition of a prison sentence for
violations of community control. The ODRC rules infraction report indicated that Exon
had been caught stealing in prison.
{¶ 60} The trial court imposed the maximum eight-year sentence. The trial court
noted that, when Exon was placed on community control in 2008, Exon had minimized
his drug problem to the court. According to the presentence investigation report, Exon
had stated that he was using marijuana two times per week, but he did not believe he had
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a problem with marijuana. The court further noted that Exon had attended an inpatient
treatment program, but did not complete it. The court recognized that Exon was now
telling his attorney that he did not remember making these statements, but the court noted
that the trial court had that information in 2008. The court asked Exon if he had been
going to a drug program while in jail. Exon responded that he was attending “Mr. White’s
program.”
{¶ 61} The court reviewed the statutory factors, stating:
* * * There are a lot of cases in here which are quite probable as well
as possibly involved with drug addiction, a lot of thefts oftentimes results in
drug addiction. Don’t know for certain, but they are consistent. There’s
also offenses of violence, domestic violence, assault, assault, felonious
assault.
In reviewing this case and the factors under R.C. 2929.12, I didn’t
find any factors that would make it worse or less serious and any similar
robbery of a felony of the second degree as far as factors under R.C.
2929.12(B) and (C). As to [R.C.] 2929.12(D) and (E), the Defendant was
under release from confinement before trial in both this county and in
Champaign County when the offense was committed.
He does have prior adjudications as delinquent, was not rehabilitated
to a satisfactory degree after being adjudicated delinquent, has a lengthy
history of criminal convictions, many of which are theft convictions, some
[of] which are convictions for offenses of violence. He’s not responded
favorably to previous sanctions imposed for those convictions, and I found
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no genuine remorse for this offense.
There’s no military history to consider.
There’s no up-to-date ORAS score because the conviction was just
handed down yesterday. It is a felony of the second degree. In reviewing
factors under R.C. 2929.13, I find no factors which would overcome
presumption for prison.
Based upon these factors and the facts of this case, the elements
are to cause or attempt to cause or threaten to cause physical harm to
another person. The victim did testify that in his experience in this
instance, he was being threatened, but it wasn’t just a threat. There was
actual assault causing physical harm.
{¶ 62} An eight-year sentence for a relatively minor assault during a theft offense
is no doubt harsh. However, the sentence was within the permissible range for a felony
of the second degree, and Exon’s extensive criminal history and lack of response to
community sanctions or treatment provided justification for the trial court’s decision to
impose a lengthy sentence. We cannot clearly and convincingly find that the sentence
was unsupported by the record or conclude that it was an abuse of discretion.
VI. Conclusion
{¶ 63} We have conducted our independent review of the record pursuant to
Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988), and we agree with
appellate counsel that there are no non-frivolous issues for review.
{¶ 64} The trial court’s judgment will be affirmed.
.............
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DONOVAN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Ryan A. Saunders
Sean J. Vallone
Jerry Exon, Sr.
Hon. Richard J. O’Neill