State v. Slack

[Cite as State v. Slack, 2018-Ohio-4926.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
OKEY B. SLACK, II : Case No. 18-CA-003
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 17CR089
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 6, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SEAN M. WARNER DAVID M. HUNTER
164 East Jackson Street 244 West Main Street
Millersburg, OH 44654 Loudonville, OH 44842
Holmes County, Case No. 18-CA-003 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Okey B. Slack, II, appeals his April 20, 2018
maximum sentence by the Court of Common Pleas of Holmes County, Ohio. Plaintiff-
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 6, 2017, the Holmes County Grand Jury indicted appellant
on one count of domestic violence in violation of R.C. 2919.25 and one count of
aggravated menacing in violation of R.C. 2903.21. Said charges arose from an incident
involving appellant and his girlfriend.
{¶ 3} Pursuant to a plea agreement, appellant pled guilty to one count of
abduction in violation of R.C. 2905.02 and the aggravated menacing count. By judgment
entry filed April 20, 2018, the trial court sentenced appellant to an aggregate term of thirty-
six months in prison.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE
MAXIMUM SENTENCE FOR HIS FELONY CONVICTION."
I
{¶ 6} In his sole assignment of error, appellant claims the trial court erred in
sentencing him to the maximum on his felony conviction. We disagree.
Holmes County, Case No. 18-CA-003 3
{¶ 7} R.C. 2953.08 governs appeals based on felony sentencing guidelines.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. Subsection
(G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 8} Subsection (A)(1) provides the following, respectively:
(A) In addition to any other right to appeal and except as provided in
division (D) of this section, a defendant who is convicted of or pleads guilty
Holmes County, Case No. 18-CA-003 4
to a felony may appeal as a matter of right the sentence imposed upon the
defendant on one of the following grounds:
(1) The sentence consisted of or included the maximum prison term
allowed for the offense by division (A) of section 2929.14 or section
2929.142 of the Revised Code, the maximum prison term was not required
for the offense pursuant to Chapter 2925. or any other provision of the
Revised Code, and the court imposed the sentence under one of the
following circumstances:
(a) The sentence was imposed for only one offense.
(b) The sentence was imposed for two or more offenses arising out
of a single incident, and the court imposed the maximum prison term for the
offense of the highest degree.
{¶ 9} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and 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, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 10} " 'An appellate court will not find a sentence clearly and convincingly
contrary to law where the trial court considers the principles and purposes of R.C.
2929.11, as well as the factors listed in R.C. 2929.12, properly imposes post-release
control, and sentences the defendant within the permissible statutory range.' " State v.
Holmes County, Case No. 18-CA-003 5
Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 47, quoting State v.
Ahlers, 12th Dist. Butler No. CA2015-06–100, 2016-Ohio-2890, ¶ 8.
{¶ 11} As noted by this court in State v. Taylor, 5th Dist. Richland No. 17CA29,
2017-Ohio-8996, ¶ 16:
A trial court's imposition of a maximum prison term for a felony
conviction is not contrary to law as long as the sentence is within the
statutory range for the offense, and the court considers both the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the
seriousness and recidivism factors set forth [in] R.C. 2929.12. State v.
Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 10,
16.
{¶ 12} Appellant pled guilty to a felony in the third degree. Pursuant to R.C.
2929.14(A)(3)(b), felonies of the third degree are punishable by "nine, twelve, eighteen,
twenty-four, thirty, or thirty-six months." By judgment entry filed April 20, 2018, the trial
court sentenced appellant to the maximum, thirty-six months. The trial court found with
regard to R.C. 2929.12(B) "a more serious factor that the Victim suffered serious physical,
psychological or economic harm and the offense was facilitated by Offender's relationship
with the Victim." April 20, 2018 T. at 10.
{¶ 13} Appellant argues he should not have been sentenced to the maximum
because the facts do not warrant such a sentence. He argues there is nothing in the
record to support the trial court's finding that the offense was "more serious" because
Holmes County, Case No. 18-CA-003 6
there is no indication that the victim suffered "serious physical, psychological, or economic
harm" under R.C. 2929.12(B)(2). We note the trial court also found "[t]he offender's
relationship with the victim facilitated the offense" under R.C. 2929.12(B)(6).
{¶ 14} In appellant's plea of guilty form that he signed on February 12, 2018,
appellant acknowledged he understood that the maximum penalty was thirty-six months.
Pursuant to the negotiated plea, appellant was to receive eighteen months on the felony
offense. However, as a plea condition, appellant agreed if he "violates any condition of
bond, it will be revoked and State will recommend maximum sentences." Appellant was
released on his own recognizance pending sentencing set for March 30, 2018. While
awaiting sentencing, appellant violated the conditions of his bond.
{¶ 15} During the change of plea hearing, the trial court asked the prosecutor to
recite the substance of the facts. February 12, 2018 T. at 11. The prosecutor stated
when the police arrived on the scene, the victim, appellant's girlfriend, was hiding in a
laundry room, hiding from appellant. Id. The victim told the officers as she and appellant
spent the day together, he became increasingly irate. Id. A physical altercation broke
out in the car and she attempted to get out of the vehicle by trying to jump out. Id.Appellant grabbed her and she "began to fight as hard as she could to break free from
him." Id. "[S]he ended up getting dragged back into the car two (2) times and she finally
got free and road (sic) down the road without her shirt that the Defendant had taken" off.
Id. The victim had scratches on her back and was scared because appellant had
"indicated he was going to kill her and at one point he had her pinned on the ground he
said if she did not go with him he was going to kill the family." Id. at 12.
Holmes County, Case No. 18-CA-003 7
{¶ 16} During the sentencing hearing, the trial court noted it considered the
presentence investigation report, the record in the case, the representations by counsel,
and any victim impact statements. April 20, 2018 T. at 9. The trial court made extensive
findings relative to the factors set forth in R.C. 2929.11 and 2929.12. Id. at 9-10.
{¶ 17} Upon review, we find the sentence imposed is not clearly and convincingly
contrary to law. The sentence is within the statutory range for a felony of the third degree,
and the trial court considered the R.C. 2929.11 and 2929.12 factors and properly imposed
post-release control.
{¶ 18} The sole assignment of error is denied.
{¶ 19} The judgment of the Court of Common Pleas of Holmes County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/db 1120