State v. Carr

[Cite as State v. Carr, 2021-Ohio-1983.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-12-129
: OPINION
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:
VINCENT P. CARR, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-04-0505
Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315
High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for appellant
S. POWELL, J.
{¶ 1} Appellant, Vincent P. Carr, appeals his conviction in the Butler County Court
of Common Pleas after he pled guilty to one count of trafficking in hashish. For the reasons
outlined below, we affirm.
{¶ 2} On October 27, 2020, Carr, who is Caucasian, pled guilty to one count of
trafficking in hashish in violation of R.C. 2925.03(A)(1), a third-degree felony. The charge
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included a forfeiture specification, pursuant to R.C. 2941.1417 and 2981.04, that required
Carr to forfeit $2,766 as proceeds of the offense. Prior to accepting Carr's guilty plea, the
trial court addressed Carr personally and stated, in pertinent part, the following:
You're going to plead guilty to one count. It is a third-degree
felony. As a result of conviction, there is a possibility that you
would be placed on community control. There is also a
possibility that you would be sent to prison.
If you're placed on community control, you'll be under the
supervision of the probation department for a period of time of
up to five years. Under that supervision, you would have rules
you would have to follow. If you didn't follow those, you could
have extra rules added, you could have the length of time of
supervision extended, or in the worst case scenario, you would
have community control revoked, and then you would be sent to
prison.
{¶ 3} Continuing, the trial court stated:
If you are sent to prison, either initially at sentencing or as a
result of revocation of community control, you would be given a
specified term or length of time to serve. That term would be
somewhere between 9 months and 36 months. After
completing that term of imprisonment, you would then face the
possibility of being placed on three years of post-release control.
That would be optional. It would be at the discretion of the
parole authority.
If they decided to place you on that, you would be under their
supervision when you left prison. You would have rules you
would have to follow. If you didn't follow those, you could be
sent back to prison for an additional amount * * * totaling up to
one-half of your initial sentence. If you violated those rules by
committing a new offense, you could also be convicted of that
and sentenced for that, in addition to any time you would serve
for violating those rules of supervision.
{¶ 4} Following this advisement, the trial court asked Carr if he understood. Carr
responded, "Yes, Your Honor." The trial court also asked Carr if he understood the charge
against him and the maximum possible penalty that he faced. Carr again responded, "Yes."
The trial court then reviewed the plea form with Carr. During this review, the trial court
advised Carr of the following:
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I'm going to review with you the form you've signed. It sets forth
that one charge, which is Count III. It is trafficking in hashish. It
is a third-degree felony. It carries with it a maximum possible
prison sentence of 36 months, and a maximum possible fine of
$10,000. There is the potential of a driver's license suspension.
But I will not impose that. Post-release control, again, is
discretionary for a possible period of three years.
{¶ 5} After reviewing the plea form with Carr, the trial court asked Carr if he had
read, signed, and discussed the plea form with his attorney. Carr responded, "Yes" to all
three questions. Carr also answered "Yes" when asked by the trial court if he understood
what the plea form said and whether Carr understood the effect of signing the plea form.
Following this exchange, the trial court accepted Carr's guilty plea upon finding the plea
was knowingly, intelligently, and voluntarily entered. The trial court then scheduled the
matter for sentencing.
{¶ 6} On December 8, 2020, the trial court held a sentencing hearing. During this
hearing, but prior to issuing its sentencing decision, the trial court, without prompting from
either party, stated:
What I'm struggling with is balance, I guess. I don't want to get
into a big societal spiel about disproportionate sentences, and
proportionate sentences, and backgrounds. And I guess I could
get into the term of "white privilege" if I wanted to go down that
road. And those are all kinds of things swirling around here.
{¶ 7} After noting that Carr, whose father is a physician and whose mother is a
nurse, was somebody "with almost no record" outside of a few minor drug offenses as a
juvenile, the trial court stated:
But in this case, seemingly – I mean, this is a – not elaborate
drug trafficking operation necessarily. But you've got a large
amount of hashish here coming in from Los Angeles. You've
got apparently some third person involved besides you and
[your co-defendant], Mr. mad chemist guy here. And besides
the two of you, you've got some other guy involved apparently
to shield yourself. You hoped, I guess, it would shield yourself
from detection if you had this sent to somebody else.
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{¶ 8} Continuing, the trial court stated:
Large amount being sold, kind of wholesale by you. You were,
like the, I'll say, big wholesaler. And maybe big is a wrong
expression. But, apparently, you organized this from California.
Had it shipped to somebody else. You then transported it to
[your codefendant], who was going to do whatever he did on the
retail level, I suppose. Kind of stay behind the scenes, keep
your hands clean. You know, that's a very serious operation.
{¶ 9} Later, after again noting that it was a "sizable amount of hashish" that Carr
pled guilty to trafficking, the trial court stated:
With that kind of situation, even though your record is not bad,
it just seems – I mean, what I'm faced with basically is a young
man who's got – and I don't want to penalize somebody for
coming from an upper middle class family. And I don't want to
advantage somebody from [coming] from an upper class – or
upper middle class, let's say – professional level, because those
are the old sociological terms. * * * But whatever you want to
call that. Whatever. We're talking about a doctor here. We're
talking about a doctor father and a nurse mother. And you
know, the – what most of us would consider today to be kind of
an upper class.
{¶ 10} The trial court then stated:
I don't want to penalize, neither do I want to advantage anybody
from whatever situation, socioeconomic background,
demographic background that person comes from. So what I'm
left with here is a very, very young man, just, you know, 18 years
old, I guess, when this got going; 19 at this point in time. But
very young, very little record, but just jumping right in to some
just extraordinarily illegal and seemingly easy way to make a lot
of money without having to work at a regular job. And I can't
find that a proper response to that would be to place that person
on community control.
{¶ 11} Following these statements, Carr's trial counsel interjected and moved the
trial court for a continuance so that Carr could submit a memorandum outlining "all of the
arguments in light of the recidivism factors and the seriousness factors." The trial court
denied this request.
{¶ 12} Moving then to its sentencing decision, the trial court stated that it had
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considered (1) the record; (2) the "overriding purposes of felony sentencing;" (3) the
necessary "serious and recidivism factors;" (4) the "information contained in the pre-
sentence investigation report;" and (5) "any and all statements" made at the sentencing
hearing prior to issuing its decision. The trial court then sentenced Carr to the minimum
allowable nine-month prison term for the offense of third-degree felony trafficking in
hashish, minus two days of jail-time credit. The trial court also ordered Carr to pay court
costs and a mandatory $5,000 fine. The trial court further notified Carr that he was subject
to an optional three-year postrelease control term upon his release from prison.
{¶ 13} After the trial court imposed its sentence, Carr's trial counsel objected to the
trial court's sentencing decision. In support of this objection, Carr's trial counsel argued that
it was improper for the trial court to use "socioeconomic arguments in sentencing [his]
client." To this, the trial court stated:
Okay. That's all. But I would note – let me say this. What I – in
saying that, what I said is I was doing everything in my power to
not be influenced by those very things. And that's exactly what
I think I did.
The trial court then stated that it tries to "steer away" from considerations regarding an
offender's socioeconomic status and demographic background "as much as possible" when
deciding on what sentence should be imposed upon the offender. The sentencing hearing
was then concluded, and the trial court issued its judgment of conviction entry. Carr now
appeals his conviction, raising two assignments of error for review.
{¶ 14} Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT UNLAWFULLY CONSIDERED RACE AND WHITE
PRIVILEGE IN ITS SENTENCING DETERMINATION.
{¶ 16} In his first assignment of error, Carr argues the trial court erred by sentencing
him to prison rather than placing him on community control. To support this claim, Carr
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argues the trial court improperly considered his race, a Caucasian, and the concept of
"white privilege" in reaching its sentencing decision. We disagree.
{¶ 17} "[A]n appellate court does not review the sentencing court's decision for an
abuse of discretion." State v. Scott, 12th Dist. Clermont Nos. CA2019-07-051 and CA2019
07-052, 2020-Ohio-3230, ¶ 54, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, ¶ 10. "It is instead the standard of review set forth in R.C. 2953.08(G)(2) that governs
all felony sentences." State v. Watkins, 12th Dist. Preble No. CA2020-03-005, 2021-Ohio-
163, ¶ 48, citing State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-
3315, ¶ 6; and State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8
("[a]s with all felony sentences, we review this sentence under the standard of review set
forth in R.C. 2953.08[G][2]"). Pursuant to that statute, this 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," if this court 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.
{¶ 18} "R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not supported
by the record under R.C. 2929.11 and 2929.12." State v. Jones, Slip Opinion No. 2020-
Ohio-6729, ¶ 39. However, as set forth in R.C. 2929.11(C), "[a] court that imposes a
sentence upon an offender for a felony shall not base the sentence upon the race, ethnic
background, gender, or religion of the offender." This statute "bars a trial court from
considering race and ethnic background when sentencing an offender," State v. Chavez,
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12th Dist. Butler No. CA2015-11-195, 2016-Ohio-8450, ¶ 22, a violation of which constitutes
one of the ways in which "a sentence may be 'otherwise contrary to law' under R.C.
2953.08(G)(2)(b)." Jones at ¶ 49 (Fischer, J., concurring); State v. Gwynne, 158 Ohio St.3d
279, 2009-Ohio-1734, ¶ 61 ("[s]urely, a criminal sentence that was based upon the
offender's race, ethnic background, gender, or religion would be 'contrary to law'")
(Donnelly, J., dissenting).
{¶ 19} This occurs in instances where the trial court considers the offender's race,
ethnic background, gender, or religion as a basis for the trial court's sentencing decision.
See e.g. State v. Minkowski, 6th Dist. Lucas No. L-13-1274, 2014-Ohio-5593, ¶ 15 (no
violation of R.C. 2929.11[C] where the trial court did not consider appellant's gender "as a
basis" for its sentencing decision, only that appellant's actions were "demeaning to all
women" given that appellant had acted as a "true thug"). This is because "[a] sentence
'based upon' one or more [of those] factors necessarily assumes a conscious and deliberate
consideration of those factors when meting out punishment for an offender." State v.
Sherman, 8th Dist. Cuyahoga No. 97840, 2012-Ohio-3958, ¶ 45.
{¶ 20} Carr argues the trial court erred by sentencing him to prison rather than
placing him on community control when considering it "candidly admitted that white privilege
swirled around the case," thereby conclusively establishing that considerations regarding
his race, or, more specifically, his "whiteness," was "influential, if not dominant, in the court's
balancing of sentencing factors." (Emphasis sic.) However, while the trial court's
commentary was certainly unnecessary given that such commentary came completely
unsolicited by either Carr or the state, Carr's reading of what the trial court actually stated
is taken out of context. That is to say, while the trial court admittedly did state "things" like
"disproportionate sentences, and proportionate sentences, and backgrounds," which
included the term "white privilege," were "swirling around" this case, the trial court prefaced
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those comments by stating that it did not "want to get into a big societal spiel," and that it
did not want "to go down that road."
{¶ 21} The trial court also stated that it was "doing everything" in its power "to not be
influenced by those very things" and that it tries to "steer away" from those considerations
"as much as possible" when deciding on what sentence should be imposed upon any
defendant that appears before it. (Emphasis added.) After a thorough review of the record,
we believe the trial court did just that in this case. Therefore, contrary to Carr's claim, when
reviewing the trial court's comments in their entirety, and when taking those comments in
their proper context, we find it clear that the trial court did not use Carr's race and/or the
concept of "white privilege" as a basis for its decision to sentence Carr to prison rather than
placing him on community control. The trial court, in fact, did the exact opposite by
specifically stating that it had made a concerted effort to ignore Carr's race and the concept
of "white privilege" when issuing its sentencing decision despite the fact that those issues
were, to some extent, "swirling around" this case. Carr's claim otherwise lacks merit.
{¶ 22} In light of the foregoing, because the trial court did not violate R.C. 2929.11(C)
by using Carr's race and the concept of "white privilege" as a basis for its sentencing
decision, the trial court's decision to sentence Carr to prison rather than place Carr on
community control was not contrary to law under R.C. 2953.08(G)(2)(b). See, e.g., State
v. Stephens, 11th Dist. Portage No. 2018-P-0090, 2019-Ohio-3150, ¶ 26 (trial court did not
err by ordering appellant to serve a prison sentence rather than community control where
the trial court noted that "the State may have requested a harsher sentence if [appellant]
were a man" because, "[w]hile the court's comments on this issue may have been
unnecessary, they do not demonstrate that the court based its sentence on gender" in
violation of R.C. 2929.11[C]); State v. Alridge, 6th Dist. Sandusky No. S-15-001, 2015-Ohio-
4064, ¶ 25 (trial court did not err by sentencing appellant to four years in prison where
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appellant "provided no evidence to suggest that race or gender played any role in the trial
court's sentence" in violation of R.C. 2929.11[C]); State v. Hodge, 5th Dist. Muskingum No.
09 CA 23, 2010-Ohio-2717, ¶ 21 (trial court did not err by sentencing appellant to seven
years in prison where the record was devoid of any evidence indicating appellant "was
sentenced based on his race, ethnic background, gender or religion" in violation of R.C.
2929.11[C]); and State v. Nance, 8th Dist. Cuyahoga No. ¶ 38 (the trial court did not err by
sentencing appellant to 33-years-to-life in prison where "the court at no time indicated that
it was imposing a harsher sentence upon the defendant due to his race" in violation of R.C.
2929.11[C] "nor can that fairly be inferred from the record when it is read in context").
Therefore, finding no merit to any of Carr's claims raised herein, Carr's first assignment of
error lacks merit and is overruled.
{¶ 23} Assignment of Error No. 2:
{¶ 24} CARR'S GUILTY PLEA WAS INVALID UNDER DUE PROCESS.
{¶ 25} In his second assignment of error, Carr argues his guilty plea was not
knowingly, intelligently, and voluntarily entered since the trial court failed to advise him of
the maximum possible penalty he faced as required by Crim.R. 11(C)(2)(a). We again
disagree.
{¶ 26} Carr argues his guilty plea was invalid since the trial court completely failed
to advise him of the possible consequences under R.C. 2929.141(A)(1) if he were to commit
a new felony after he was released from prison and placed on postrelease control.
However, while it is true that Crim.R. 11(C)(2)(a) required the trial court to advise Carr of
the maximum possible penalty that he faced, "[a]ppellate courts have consistently held that
Crim.R. 11(C)(2)(a), notice of the maximum penalty involved, does not require a trial court
to inform a defendant entering a guilty plea of the R.C. 2929.141 consequences for violating
post-release control." State v. Betts, 4th Dist. Vinton No. 17CA706, 2017-Ohio-8595, ¶ 24,
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citing State v. Turner, 8th Dist. Cuyahoga No. 101578, 2015-Ohio-1148, ¶ 7.
{¶ 27} We agree and similarly conclude that a guilty plea is not invalid where the trial
court did not notify a defendant who was not on postrelease control of the possible
consequences the defendant faced under R.C. 2929.141(A)(1) if the defendant committed
a new felony after being released from prison and placed on postrelease control. Compare
State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, ¶ 21 ("Crim.R. 11[C][2][a] requires a
trial court to advise a criminal defendant on postrelease control for a prior felony, during his
plea hearing in a new felony case, of the trial court's authority under R.C. 2929.141 to
terminate the defendant's existing postrelease control and to impose a consecutive prison
sentence for the postrelease-control violation"). Therefore, finding no merit to any of Carr's
arguments raised herein, Carr's second assignment of error also lacks merit and is
overruled.
{¶ 28} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.
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