State v. Brown

[Cite as State v. Brown, 2019-Ohio-3288.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 28197 and 28198
:
v. : Trial Court Case Nos. 2018-CR-2603
: and 2018-CR-2274
JAMES T. BROWN :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 16th day of August, 2019.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, 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
PAMELA L. PINCHOT, Atty. Reg. No. 0071648, 345 North Main Street, Suite 2,
Springboro, Ohio 45066
Attorney for Defendant-Appellant
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DONOVAN, J.
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{¶ 1} In Montgomery C.P. No. 2018-CR-2274, James T. Brown appeals from a
judgment entry of conviction following a plea of guilty to one count of aggravated
possession of drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. He was
sentenced to 12 months in prison. In Montgomery C.P. No. 2018-CR-2603, Brown
appeals from a judgment entry of conviction following a plea of guilty to petty theft, in
violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. In Case No. 2018-
CR-2603, Brown was sentenced to 180 days in the Montgomery County Jail, to be served
concurrently with the sentence in Case No. 2018-CR-2274. Brown asserts that his
maximum sentences were not clearly and convincingly supported by the record and/or
were contrary to law. We hereby affirm the judgment of the trial court.
{¶ 2} On August 6, 2018, Brown was indicted for aggravated possession of drugs.
He failed to appear for his arraignment on September 4, 2018. On September 26, 2018,
he was charged by way of a bill of information with petty theft. On September 27, 2018,
Brown pled guilty to both offenses. At the plea hearing, the court indicated that Brown
had “verbally waived the right to grand jury as well as the 24-hour rule,” and that Brown
had signed the appropriate forms to memorialize his waiver in the misdemeanor case.
{¶ 3} Brown was sentenced on October 25, 2018. The court indicated that it had
reviewed Brown’s presentence investigation report and that it considered the purposes
and principles of sentencing and the seriousness and recidivism factors in imposing
sentence for the felony offense. The court advised Brown that, upon his release, he may
be required to serve three years of post-release control under the supervision of the
parole board. The court disapproved placement in programs of shock incarceration and
intensive program prison because of Brown’s criminal history. The court noted in each
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case that Brown was entitled to 36 days of jail time credit.
{¶ 4} Brown asserts the following assignment of error:
THE TRIAL COURT’S IMPOSITION OF SENTENCE, WHICH WAS
THE MAXIMUM SENTENCE OF 12 MONTHS IN PRISON FOR
DEFENDANT-APPELLANT’S CONVICTION OF POSSESSION OF A
CONTROLLED SUBSTANCE, A FELONY OF THE FIFTH DEGREE, AND
SIX (6) MONTHS IN PRISON FOR DEFENDANT-APPELLANT’S
CONVICTION OF THEFT, A MISDEMEANOR OF THE FIRST DEGREE,
IS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD
AND/OR IS CONTRARY TO LAW.
{¶ 5} Brown asserts that, applying the purposes and principles of sentencing
contained in R.C. 2929.11 and the sentencing factors contained in R.C. 2929.12 to his
case, the maximum sentence was not appropriate. He argues that there was no
evidence to support a finding that any factor contained in R.C. 2929.12 existed, which
would support the conclusion that his conduct was more serious than that normally
constituting the offense. Brown argues that there was, however, evidence in the record
to support a finding under R.C. 2929.12(C)(3) that his conduct was less serious than
conduct normally constituting the offense, “in that [the] very nature of the charges –
possession of drugs and petty theft – demonstrate that [Brown] did not expect to cause
physical harm to any person or property.” Brown argues that there was also evidence
that he was not likely to commit future crimes, as set forth in R.C. 2929.12(E)(3) and (5),
insofar as he had “lived a law-abiding life for a significant number of years prior to
committing the offense[s] and he exhibited genuine remorse.”
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{¶ 6} The State notes that this appeal may be moot as it relates only to the
imposition of the maximum sentences; it also argues that Brown’s sentence was not
contrary to law, and that the sentence was supported by the record.
{¶ 7} The Ohio Department of Rehabilitation and Correction’s website indicates
that Brown was placed on transitional control with supervision by the Adult Parole
Authority on March 22, 2019, for a period of six months. In other words, he is serving the
last six months of his felony sentence on transitional control. A violation of transitional
control could result in Brown’s return to the institution to serve the balance of his felony
sentence. R. C. 2967.26(F). Because he has not completed his sentence, his appeal
is not moot.
{¶ 8} As this Court has noted:
When reviewing felony sentences, appellate courts apply the
standard of review found in R.C. 2953.08(G)(2), not an abuse of discretion
standard. State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), 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.
“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 * * * sentences.” State
v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial
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court must consider the statutory criteria 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. * * * R.C. 2929.12(B) sets forth nine factors indicating that an offender's
conduct is more serious than conduct normally constituting the offense,
whereas R.C. 2929.12(C) sets forth four factors indicating that an offender's
conduct is less serious than conduct normally constituting the offense.
Similarly, R.C. 2929.12(D) and (E) each lists five factors that trial courts are
to consider regarding an offender being more or less likely to commit future
crimes.
Although statutory maximum sentences do not require any of the
findings specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found
it appropriate “for appellate courts to review those sentences that are
imposed solely after consideration of the factors in R.C. 2929.11 and
2929.12 under a standard that is equally deferential to the sentencing court.
That is, an appellate court may vacate or modify any sentence that is not
clearly and convincingly contrary to law only if the appellate court finds by
clear and convincing evidence that the record does not support the
sentence.” Marcum at ¶ 23.
State v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 6-8.
{¶ 9} Brown’s felony sentence is not contrary to law; pursuant to R.C.
2929.14(A)(5), the maximum sentence for a felony of the fifth degree is 12 months. As
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noted above, the trial court indicated to Brown at sentencing that it considered the R.C.
2929.11 and R.C. 2929.12 factors, and the trial court was not required to discuss the
individual factors contained within the statutes. Roberts at ¶ 13, citing State v. Sparks,
2d Dist. Montgomery No. 2017-CA-95, 2018-Ohio-3298, ¶ 8. That being so, an appellate
court cannot infer from a trial court’s failure to discuss the specific statutory factors that it
did not consider them. Id.
{¶ 10} Further, Brown’s felony sentence is not clearly and convincingly
unsupported by the record. His presentence investigation report, which the court
considered, reflects that he had 25 prior adult misdemeanor offenses dating back to 1994,
including drug and theft offenses. Brown’s adult felony record included convictions for
possession of drugs (2002), forgery (2006), burglary (2006), receiving stolen property
(2007), robbery (2010), and breaking and entering (2012). His felony record further
reflected that he had previously been granted intervention in lieu of conviction, placed in
the Stop and the MonDay programs, and placed on community control supervision. At
sentencing, after Brown asked the court for “an opportunity to get into treatment and get
help again,” the court responded that “the difficulty with our present situation is your
criminal history with this constituting your seventh felony and 26th misdemeanor and your
past efforts at supervision having a record of not being successful.” Based on our review
of the record, including the presentence investigation report, we do not find that Brown’s
felony sentence was clearly and convincingly unsupported by the evidence.
{¶ 11} Finally, Brown’s appeal of his misdemeanor conviction is moot because, in
light of his time spent in prison and his jail time credit, Brown has completed his 180 day
sentence, and there is no relief we can afford. State v. Wright, 2d Dist. Montgomery No.
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26471, 2015-Ohio-3919, ¶ 14, 27.
{¶ 12} Brown’s assignment of error is overruled, and the judgment of the trial court
is affirmed.
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HALL, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Pamela L. Pinchot
Hon. Mary Lynn Wiseman