State v. Hornbuckle

[Cite as State v. Hornbuckle, 2022-Ohio-2025.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MARQUISE HORNBUCKLE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0003
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 20 CR 237
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed
Atty. Paul Gains, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6 th Floor,
Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. John A. McNally IV, Roth, Blair, Roberts, Strasfeld and Lodge, 100 Federal Street
East, Suite 600, Youngstown, Ohio 44503, for Defendant-Appellant.
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Dated:
June 14, 2022
Donofrio, P. J.
{¶1} Defendant-Appellant, Marquise Hornbuckle, appeals from a Mahoning
County Court of Common Pleas judgment accepting his guilty plea and sentencing him
to 29 to 34.5 years in prison. The sentence was based on appellant’s guilty plea to two
counts of first-degree felonious assault on peace officers, each with an 11-year prison
term, and two, 7-year firearm specifications which merged into one 7-year prison term.
The court ordered the sentences to each run consecutively.
{¶2} On May 19, 2020, appellant and a co-defendant were secretly indicted via
direct presentment on two counts of first-degree felonious assault on peace officers in
violation of R.C. 2903.11(A)(2) and (D)(1)(a), with accompanying 3-year (R.C.
2941.145(A)), 5-year (R.C. 2941.146(A)), and 7-year (R.C. 2941.1412(A)) firearm
specifications. Appellant was additionally indicted for: discharging a firearm on or near
prohibited premises in violation of R.C. 2923.162(A)(3) and R.C. 2923.162(C)(2), a third-
degree felony, with accompanying 3-year (R.C. 2941.145(A)), and 7-year (R.C.
2941.1412(A) firearm specifications; and having weapons while under disability in
violation of R.C. 2923.13(A)(3)(B), a third-degree felony.
{¶3} On October 7, 2020, the trial court held a plea hearing and appellant
entered a guilty plea on two counts of felonious assault on peace officers, with two 7-year
firearm specifications. The remaining counts were dismissed. The prosecution outlined
the terms of the plea agreement on the record, which included an agreed-upon sentence
recommendation of a 3-year prison term on each felonious assault charge to run
concurrently to one another, and one 7-year prison term on the two firearm specifications,
which would merge and run consecutively to the felonious assault charges, for a total of
10 years in prison. (Oct. 7, 2020 Tr. at 3). The prosecution represented that the parties
also agreed that under the Reagan-Tokes Act, the minimum sentence was 4.5 years and
the potential maximum term was 11.5 years in prison. (Oct. 7, 2020 Tr. at 3).
{¶4} At the plea hearing, the trial court reviewed appellant’s constitutional and
non-constitutional rights and his waiver thereof upon pleading guilty. The court informed
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appellant that each felonious assault charge was punishable by 3 to 11 years in prison,
plus fines and costs. (Oct. 7, 2020 Tr. at 13-14). The court also informed appellant that
he faced a total maximum term of 22 years in prison on the felonious assault charges,
plus up to 14 years of consecutive, mandatory terms on the firearm specifications if the
specifications did not merge. (Oct. 7, 2020 Tr. at 15).
{¶5} The court further informed appellant that “the time I am going to impose is
most likely the time that is recommended and agreed upon by the parties.” (Oct. 7, 2020
Tr. at 16). However, the court asked appellant:
THE COURT: Do you understand your sentence is still entirely
up to me regardless of any recommendations?
(Oct. 7, 2020 Tr. at 18). Appellant responded yes. (Oct. 7, 2020 Tr. at 18)
{¶6} Upon accepting appellant’s plea, the trial court continued the case for
sentencing until December 7, 2020. (Oct. 7, 2020 Tr. at 20). In continuing his bond, the
court cautioned appellant:
THE COURT: You, sir, are to be personally aware of and appear
timely and properly dressed for all future court proceedings; you
are not to violate any laws; you’re not to own, use or possess
any drugs or firearms; you’re not to act in any way to cause or
attempt to cause any harm or threat of harm to any persons or
property; you’re not to leave the State of Ohio without the
permission of this court; and you are to cooperate fully with the
Community Corrections Agency in preparing this presentence
report. Do you understand that all okay?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Please understand that if you violate any of the
terms and conditions of this bond, I will revoke your bond, you’ll
be held in jail pending sentencing and I will vacate this deal and
we’ll go right back to square one with all the charges that were
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pending against you to begin with. Do you understand that
okay?
THE DEFENDANT: Yes, Your Honor.
(Oct. 7, 2020 Tr. at 22-23).
{¶7} The trial court issued a judgment entry accepting appellant’s guilty plea and
setting forth the terms that the trial court reviewed with appellant regarding the terms and
conditions for his continuation on bond. (Oct. 14, 2020 J.E.).
{¶8} On October 27, 2020, appellee filed a motion to revoke appellant’s bond.
Appellee stated that appellant had been previously advised that a bond condition required
him to obtain court permission if he wished to leave the State of Ohio. Appellee explained
that on October 11, 2020, appellant was pulled over by the Shenango Township Police
Department in Pennsylvania and arrested on an outstanding warrant from the
Pennsylvania State Police. Appellee attached a copy of the incident report stating that
appellant was stopped for having a broken tail light in Shenango Township. The report
advised that the officer conducted a warrant check through Mercer County Dispatch, who
indicated that appellant had a felony warrant from the Pennsylvania State Police
Meadville Barracks.
{¶9} On November 6, 2020, the court issued a bench warrant for appellant and
ordered him held without bond.
{¶10} On December 8, 2020, the court issued a judgment entry and bench
warrant. The court indicated that it called appellant’s case for sentencing and he failed to
appear, even though his counsel and State counsel were present. (Dec. 10, 2020
J.E./Bench Warrant). The court continued its prior bench warrant.
{¶11} On December 16, 2020, the trial court held a sentencing hearing. The
prosecution set forth the agreed-upon sentence recommendation and reminded the court
of appellant’s failure to appear at the prior sentencing when he was out on bond. (Dec.
16, 2020 Tr. at 3). The prosecution referred to the motion to revoke appellant’s bond
based upon leaving Ohio without permission. (Dec. 16, 2020 Tr. at 4-5). The prosecution
also stated that the bonding company had to trick appellant into coming in to court. (Dec.
16, 2020 Tr. at 8). Appellant was present at this hearing with counsel.
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{¶12} Based upon appellant’s failure to follow the bond conditions, the
prosecution advised the court that the State no longer agreed to the previously agreed-
upon sentencing recommendation. (Dec. 16, 2020 Tr. at 6-8). Appellee requested that
the court impose a reasonable sentence, considering appellant’s lack of respect for the
court and its bond conditions. (Dec. 16, 2020 Tr. at 7-8).
{¶13} Appellant’s counsel noted that the victims had agreed to the joint
sentencing recommendation and he stressed that the troopers that appellant shot at were
undercover at the time and driving an unmarked vehicle. (Dec. 16, 2020 Tr. at 8-9).
Counsel also noted that he had informed appellant about obtaining court permission to
travel to Pennsylvania and appellant would speak to the court regarding his whereabouts,
his need for court permission, and his failure to appear at the prior sentencing date. (Dec.
16, 2020 Tr .at 14, 16-18).
{¶14} The court then turned to appellant and asked him if he wanted to make any
statement before the court imposed sentence, or if he wanted to make a mitigation
statement. (Dec. 16, 2020 Tr. at 18). Appellant responded that he did not. (Dec. 16, 2020
Tr .at 18).
{¶15} The court reviewed the Reagan-Tokes Act application to appellant’s
sentence and his guilty plea. (Dec. 16, 2020 Tr. at 18--23). The court stated that it had
learned more about him and the facts of the case before sentencing. (Dec. 16, 2020 Tr.
at 23). The court noted that appellant shot at troopers who were just doing their job, and
he did not abide by the court’s bond conditions. (Dec. 16, 2020 Tr. at 24-26). The court
further stated that it also considered the presentence investigation report (PSI), counsel’s
statements on appellant’s behalf, and appellant’s prior criminal history, which included
assault, possession of heroin, a prison sentence for illegal conveyance of weapons into
a detention facility with possession of heroin, a prison sentence for having a weapon while
under disability, aggravated possession of drugs, and the instant offenses of felonious
assault and firearm specifications. (Dec. 16, 2020 Tr. at 26). The court also noted
appellant’s pending cases in Meadville, some traffic offenses, and a possession of drugs
of abuse in Austintown. (Dec. 16, 2020 Tr. at 26).
{¶16} The trial court further informed appellant that it was considering the
purposes and principles of sentencing to punish the offender and to protect the public
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from future crimes. (Dec. 16, 2020 Tr. at 27). The court informed appellant that the
sentence had to be commensurate with and not demeaning to the seriousness of
appellant’s conduct, consistent with similar sentences for similar crimes committed by
other offenders, and not based upon race, ethnicity, gender, or religion. (Dec. 16, 2020
Tr. at 27). The court stated that it was required to consider the need for incapacitation,
deterrence, rehabilitation, and restitution, as well as the seriousness factors and
recidivism factors. (Dec. 16, 2020 Tr. at 28).
{¶17} The trial court additionally notified appellant that consecutive sentences
would be imposed because they “are necessary to protect the public from future crime or
to punish you. They are not disproportionate to the seriousness of your conduct and to
the danger they pose to the public.” (Dec. 16, 2020 Tr. at 29-30). The court found that
appellant’s prior criminal conduct also showed that consecutive sentences were
necessary to protect the public from future crimes. (Dec. 16, 2020 Tr. at 30).
{¶18} The court sentenced appellant to 22 years in prison on the felonious assault
convictions, running each 11-year term consecutively. (Dec. 16, 2020 Tr. at 30). The court
then imposed one 7-year mandatory prison term on the firearm specification merger and
indicated that it had to be served prior to and consecutively to the 22-year sentence. (Dec.
16, 2020 Tr .at 30). This resulted in a total sentence of 29 to 34.5 years in prison.
{¶19} On December 22, 2020, the court issued a judgment entry outlining the
proceedings, appellant’s bond violations, and his failure to appear for the first sentencing
date. (Dec. 22, 2020 J.E.). The court noted that the State represented that it no longer
wished to be bound by its prior agreed-upon recommended sentence due to the bond
violations. (Dec. 22, 2020 J.E.). The court reviewed the factors that it was required to
consider in sentencing appellant, and the range of sentences, and sentenced appellant
to 11 to 16.5 years on the first felonious assault conviction, and 11 years on the second
felonious assault conviction. (Dec. 22, 2020 J.E.at 3). The court explained its reasons for
imposing consecutive sentences and noted that the minimum sentence for both
convictions was 22 years in prison and a maximum term of 27.5 years. (Dec. 22, 2020
J.E. at 3). The court merged the firearm specifications and added one 7-year prison term
to be served prior to and consecutive to the felonious assault convictions. (Dec. 22, 2020
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J.E. at 4). The court ordered that appellant serve a total indefinite prison term of a
minimum of 29 years in prison to a maximum prison term of 34.5 years in prison.
{¶20} Appellant filed a timely notice of appeal on January 12, 2021 and now
raises three assignments of error.
{¶21} In his first assignment of error, appellant asserts:
THE TRIAL COURT’S SENTENCING OF DEFENDANT-APPELLANT
TO SEPARATE CONSECUTIVE SENTENCES IS CONTRARY TO
LAW.
{¶22} Appellant asserts that the trial court’s sentence is contrary to law because
the court disregarded the presumption in favor of concurrent sentences and imposed
consecutive sentences without meeting any exception for doing so under R.C.
2929.14(C). Citing R.C. 2953.08(G)(2), appellant asserts that this Court may take action
on a felony sentence if we find by clear and convincing evidence that the record does not
support the sentencing court’s findings or if we find that the sentence is otherwise contrary
to law. Appellant explains that “clear and convincing” is a degree of proof that is greater
than a preponderance of the evidence, but not equal to the beyond a reasonable doubt
standard. State v. Lawson, 2nd Dist. Champaign No. 2017-CA-28, 2018-Ohio-1532, 111
N.E.3d 98.
{¶23} Appellant further contends that a sentence that is contrary to law can be
appealed if it is outside of the statutory sentencing range for the particular crimes, or if it
fails to comply with the sentencing statutes. See State v. Hudson, 7th Dist. Mahoning No.
15 MA 0134, 2017-Ohio-645, 85 N.E.3d 371; State v. Rutherford, 8th Dist. Cuyahoga No.
102775, 2015-Ohio-5259, ¶ 6, citing State v. Bonds, 8th Dist. Cuyahoga No. 100481,
2014-Ohio-2766. He asserts that the trial court erred in imposing consecutive sentences
because his case met none of the statutory exceptions for doing so.
{¶24} Appellant submits that the exception under R.C. 2929.14(C)(4)(a) was not
met because he committed no offenses while he was awaiting trial or sentencing. He
asserts that the exception under R.C. 2929.14(C)(4)(b) does not apply because the
offenses that he committed were part of the same course of conduct and no evidence
showed that the harm from the offenses was so great or unusual that a single prison term
Case No. 21 MA 0003
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would not adequately reflect the wrongful conduct. Finally, appellant asserts that the
exception in R.C. 2929.14(C)(4)(c) does not apply because the court provided no
evidence to show that his criminal history demonstrated the public’s need to be protected
from any future offenses by him.
{¶25} R.C. 2953.08(G) sets forth this Court’s standard of review of felony
sentences:
(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.
{¶26} A sentence is considered contrary to law when it falls outside of the
statutory range for the offense or if the court fails to consider the purposes and principles
of sentencing outlined in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12. State v. Levison, 8th Dist. Cuyahoga No. 110281, 2021-Ohio-3601, ¶ 12, citing
State v. Clay, 8th Dist. Cuyahoga No. 108500, 2020-Ohio-1499, ¶ 26, citing State v.
Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. “Conversely, if a
sentence is within the statutory range for the offense and the trial court considered both
Case No. 21 MA 0003
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the purposes and principles of felony sentencing in R.C. 2929.11 and the relevant
sentencing factors under R.C. 2929.12 when imposing the sentence, the sentence is not
contrary to law. Id., citing State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-
2772, ¶ 7.
{¶27} R.C. 2929.11 sets forth the overriding purposes of sentencing in felony
cases, which “are to protect the public from future crime by the offender and others, to
punish the offender, and to promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources.” This section
outlines the considerations that a court should look to in order to achieve these purposes,
which are “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. However, R.C. 2929.11 does not require the court to make specific
findings as to the purposes and principles of sentencing. State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31.
{¶28} R.C. 2929.11(B) provides that the sentence imposed must be
“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.” R.C. 2929.11(C) cautions that a sentence must not be
based on race, ethnic background, gender, or religion of the offender.
{¶29} R.C. 2929.12(A) states that the sentencing court “has discretion to
determine the most effective way to comply with the purposes and principles of
sentencing.” This section lists factors that a court may consider in determining a sentence
and categorizes them according to the purpose that they serve in achieving the overriding
purposes of felony sentences. For instance, R.C. 2929.12(B) and (C) provide lists of
factors that aid in determining whether an offense is more or less serious. R.C.
2929.12(D) and (E) provide lists of factors that a court should consider in determining
whether a defendant is likely to commit future crimes. Similar to R.C. 2929.11, R.C.
2929.12 does not require the trial court to “use specific language or make specific findings
on the record in order to evince the requisite consideration of the applicable seriousness
and recidivism factors.” State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).
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{¶30} “A trial court's statement in its sentencing journal entry that it considered
the required sentencing factors alone is sufficient to fulfill its obligations under R.C.
2929.11 and 2929.12.” Levison, 8th Dist. Cuyahoga No. 110281, 2021-Ohio-3601, ¶ 12,
citing State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 7 and State v.
D-Bey, 8th Dist. Cuyahoga No. 109000, 2021-Ohio-60, ¶ 70; State v. Kronenberg, 8th
Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 27.
{¶31} Further, in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649, the Ohio Supreme Court held that “R.C. 2953.08(G)(2)(b) * * * 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.” Id. at
¶ 39. The Court held that “[n]othing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment for that of the
trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12.” Id. at ¶ 42.
{¶32} Here, appellant challenges the trial court’s imposition of consecutive
sentences. There is a presumption in favor of concurrent sentences. R.C. 2929.41(A).
However, R.C. 2929.14(C)(4) provides that:
[i]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:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
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(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶33} Although the trial court is not required to recite the statute verbatim or utter
“magic” or “talismanic” words when imposing consecutive sentences, there must be an
indication that the court found (1) that consecutive sentences are necessary to protect
the public from future crime or to punish the offender, (2) that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and to the danger posed
to the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c).
State v. Martin, 7th Dist. Columbiana No. 18 CO 0033, 2020-Ohio-3579, ¶ 72, citing State
v. Bellard, 7th Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. Similar to R.C.
2929.11 and R.C. 2929.12, the court is not required to give its reasons for making those
findings. Id., citing State v. Power, 7th Dist. Columbiana No. 12 CO 14, 2013-Ohio-4254,
¶ 38.
{¶34} A trial court that imposes a consecutive sentence must make the findings
mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those findings
into its sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, syllabus. The transcript of the sentencing hearing must make it “clear from
the record that the trial court engaged in the appropriate analysis.” State v. Hill, 7th Dist.
Carroll No. 13 CA 82, 2014-Ohio-1965, ¶ 27.
{¶35} In the instant case, the trial court specifically set forth the findings
mandated by R.C. 2929.14(C)(4). The court stated at the sentencing hearing that it had
considered:
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The purposes and principles of sentencing, those being to
punish the offender and protect the public from future crimes by
you and others like you. The sentence has to be commensurate
with, and not demeaning to, the seriousness of your conduct,
and it must be consistent with similar sentence for similar crimes
committed by other offenders. It’s not to be based on your race,
ethnicity, gender, or religion, and I’m supposed to consider the
need for incapacitation, deterrence, rehabilitation, and
restitution.
The court also has to consider the seriousness factors, which
speak very strongly against you, and the recidivism factors,
which speak very strongly against you.
(Dec. 16, 2020 Tr. at 27-28).
{¶36} Before reciting these findings, the court discussed appellant’s alleged
bond violations by leaving Ohio without court permission, getting pulled over by police in
Pennsylvania, and failing to appear for the first scheduled sentencing. (Dec. 16, 2020 Tr.
at 24-26). The court discussed the agreed-upon sentencing recommendation and told
appellant that while the court was not happy with that deal, it had been willing to proceed
because the victims were satisfied. (Dec. 16, 2020 Tr. at 25).
{¶37} The court then informed appellant “[b]ut when you violated the orders of
this court or you violate conditions of bond, all bets are off; there is no deal in this case.”
(Dec. 16, 2020 Tr. at 25-26). The court explained that it took a risk on appellant by
allowing him out on bond and informed him: “[s]o what happens when you run out on me
is I’m going to come and catch you somehow.” (Dec. 16, 2020 Tr. at 27). The court also
stated that the bonding company and the court took the risk and “[w]e both got it put right
in our faces.” (Dec. 16, 2020 Tr. at 27).
{¶38} While the court was obviously frustrated with appellant’s conduct, this
does not lead to a conclusion that the consecutive sentences were contrary to law. The
court made the required findings at the hearing to impose consecutive sentences and
specifically stated that it considered the proper factors in imposing the maximum terms
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for each sentence and for imposing consecutive sentences. In addition to the standard
findings concerning the overriding purposes of consecutive sentences, the court also
stated its application of at least one of the three exceptions under R.C. 2929.14(C)(b)(4).
{¶39} The trial court also indicated in its sentencing entry that consecutive
sentences were necessary in order to protect the public and punish appellant, and they
were not disproportionate to the seriousness of appellant’s conduct and the danger that
he presented to the public. (Dec. 22, 2020 J.E. at 3). The court noted appellant’s bond
violations, and appellee’s statement that the State no longer wished to be bound by the
agreed-upon sentencing recommendation due to appellant’s failure to comply with the
court’s bond conditions. (Dec. 22, 2020 J.E. at 2). The court specifically referred to R.C.
2929.14(C)(4)(c) in imposing consecutive sentences, finding that “the offender’s history
of criminal conduct demonstrates that consecutive sentences are necessary to protect
the public from future crime by the offender.” (Dec. 22, 2020 J.E. at 3).
{¶40} Appellant asserts that the first exception under R.C. 2929.14(C)(b)(4)(a)
does not apply because he “did not commit the alleged offenses while he was awaiting
trial or sentencing.” This appears to be correct as appellant’s other criminal cases appear
to pre-date or post-date the instant offenses. Only one is close in time, a felony-five drug
abuse charge in Austintown Court that was reduced to a drug possession misdemeanor-
one conviction after a guilty plea. See 2019 CRA A 937. The date of that offense was
November 12, 2019 and appellant entered his guilty plea on June 10, 2020 and was
sentenced to thirty days in jail. However, the court could apply the bond violations to
demonstrate appellant’s disregard for court orders and his continuing disregard for
obeying laws, for endangering the public, and in determining his potential for committing
future crimes.
{¶41} Appellant also contends that the second exception does not apply in this
case. The trial court judge stated at the sentencing hearing that he grew up in the
neighborhood where appellant shot at the troopers. (Dec. 16, 2020 Tr. at 24-25). The
court acknowledged that the officers were undercover in an unmarked vehicle when
appellant shot at them. (Dec. 16, 2020 Tr. at 25). However, the judge wondered aloud if
he and a family member would have been shot at if they drove through the old
neighborhood for a nostalgic visit. (Dec. 16, 2020 Tr. at 25).
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{¶42} Although somewhat personal, this demonstrates that the court looked to
the R.C. 2929.14(C)(4)(b) exception to apply consecutive sentencing. The two felonious
assault convictions stemmed from a course of conduct of shooting randomly at a vehicle
with unknown individuals in it, and this kind of harm could qualify as being so great that a
single prison term for any of those offenses would not adequately reflect the seriousness
of appellant’s conduct. The court did state that the “seriousness factors” weighed strongly
against appellant due to the instant convictions. (Dec. 16, 2020 Tr. at 28).
{¶43} In any event, even if the R.C. 2929.14(C)(4)(b) exception does not apply,
the trial court specifically referred to appellant’s prior criminal history in imposing
consecutive sentences and cited to R.C. 2929.14(C)(4)(c). Appellant asserts that the trial
court’s evidence inadequately showed the public’s need to be protected by future
offenses. He also contends that his alleged failure to obey bond conditions does not fall
within the category of conduct which mandates consecutive sentences.
{¶44} The trial court noted that appellant had prior assault and possession of
heroin convictions, a prior prison commitment for illegal conveyance of weapons into a
detention facility, and prior drug possession and weapons under disability convictions for
which he served prison time. (Dec. 16, 2020 Tr. at 26). The court held that the “recidivism”
factors spoke strongly against appellant. (Dec. 16, 2020 Tr. at 28). These findings are
sufficient to meet the requirements for imposing consecutive sentences.
{¶45} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
{¶46} In his second assignment of error, appellant asserts:
THE TRIAL COURT DECISION TO SENTENCE DEFENDANT-
APPELLANT HORNBUCKLE TO MORE THAN TRIPLE THE
AGREED-UPON RECOMMENDED SENTENCE IS
CONTRARY TO LAW.
{¶47} Appellant contends that the court’s sentence is contrary to law because it
is more than three times the sentence than that agreed to by the parties.
{¶48} A sentence is considered contrary to law when it falls outside of the
statutory range for the offense or if the court fails to consider the purposes and principles
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of sentencing outlined in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12. Levison, 8th Dist. Cuyahoga No. 110281, 2021-Ohio-3601, ¶ 12. As explained
above, the trial court sentenced appellant within the statutory range for each offense and
properly provided its reasons for imposing consecutive sentences. The court indicated
both at the sentencing hearing and in its judgment entry that it had considered the
required factors under R.C. 2929.11 and R.C. 2929.12, as well as the proper statutory
factors for imposing consecutive sentences. “[I]f a sentence is within the statutory range
for the offense and the trial court considered both the purposes and principles of felony
sentencing in R.C. 2929.11 and the relevant sentencing factors under R.C. 2929.12 when
imposing the sentence, the sentence is not contrary to law. Id., citing State v. Phillips, 8th
Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 7. The trial court did so in this case.
{¶49} Moreover, appellant was aware that the trial court was not required to
follow the sentencing recommendation. At the plea hearing, the court informed appellant
that it was not bound by the recommendation of the parties. (Oct. 7, 2020 Tr. at 18). The
court specifically asked appellant at the plea hearing, “[d]o you understand your sentence
is still entirely up to me regardless of any recommendations?” (Oct. 7, 2020 Tr. at 18).
Appellant answered, “[y]es, Your Honor.” (Oct. 7, 2020 Tr. at 18). The plea agreement
also specifically stated that it was “STRICTLY CONTINGENT UPON THE DEFENDANT
NOT VIOLATING LAWS OR OTHER CONDITIONS OF BOND WHILE AWAITING
SENTENCING. THE COURT IS NOT BOUND BY THIS RECOMMENDATION.” (Plea
Agreement at 5). While the court informed appellant at the plea hearing that it would most
likely impose the parties’ agreed-upon sentence, it chose not to do so after the
prosecution represented at the sentencing hearing that it did not want to be bound by the
recommendation after appellant violated his bond conditions. (Oct. 7, 2020 Tr. at 16; Dec.
16, 2020 Tr. at 6-7). The prosecution asked the court to consider appellant’s bond
violations and to impose a reasonable sentence. (Dec. 16, 2020 Tr. at 6).
{¶50} Since the trial court imposed a sentence within the statutory limits and
made appellant aware that the court was not bound by any sentencing recommendation,
the trial court did not act contrary to law in sentencing appellant to a longer sentence than
that agreed to by the parties.
Case No. 21 MA 0003
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{¶51} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
{¶52} In his third assignment of error, appellant asserts:
DEFENDANT HORNBUCKLE’S SENTENCE WAS AN ABUSE
OF DISCRETION BECAUSE THE TRIAL COURT IMPOSED A
VINDICTIVE PRISON TERM OF CONSECUTIVE
SENTENCES.
{¶53} Appellant contends that the trial court vindictively increased the length of
his sentence to more than nearly three times the agreed-upon recommended length
stated in the plea agreement. Appellant quotes a portion of the sentencing transcript of
a dialogue between the assistant prosecutor and the court, and he asserts that “[t]he
Court’s own words and prodding of the State’s attorneys are evidence of this
vindictiveness:”
THE COURT: So he had pled. He had made his deal, and then they found
out that he was in Pennsylvania, and you filed a motion to revoke the bond
because of that.
MR. YACOVONE: Yes, Your Honor.
THE COURT: I issued a warrant.
MR. YACOVONE: You did.
THE COURT: In the meantime his—well, his sentencing had already been
set. So he was out on bond; there was a warrant out on him; his sentencing
was to take place, and he didn’t show for that.
MR. YACAVONE: Correct, Your Honor.
THE COURT: Okay, I gotcha.
MR. YACAVONE: All right. Well, pursuant to that, Your Honor, just reading
off of the plea form, the recommendation made is strictly contingent upon
Case No. 21 MA 0003
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the defendant not violating laws or other conditions of bond while awaiting
sentencing. For that reason, Your Honor, the state is recommending – well
we are asking the court to take in to consideration the defendant’s missteps
per se in the meantime following the plea, and we are asking for a period of
incarceration now deemed reasonable by your honorable court. This –
THE COURT: You’re not sticking to the deal that you made. You’d like more
time or you’d like time about the same or –
MR. YACAVONE: We would just ask the court to consider what Mr.
Hornbuckle did in imposing sentence.
THE COURT: You’re not asking me to honor the deal.
MR. YACAVONE: I’m asking you to- no, I’m not asking you to honor the
deal.
THE COURT: Thank you.
MR. YACAVONE: I’m asking you to add time based – based on the fact that
he has shown no respect for the court whatsoever.
(Dec. 16, 2020 Tr. at 6-7).
{¶54} Interestingly, appellant asserts in this assignment of error that the trial
court abused its discretion by vindictively sentencing him to the 29-34.5 year sentence.
However, the abuse of discretion standard does not apply here. See State v. Turner, 7th
Dist. Mahoning No. 17 MA 0155, 2019-Ohio-934, ¶ 17, citing State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16, 23. “[A]n appellate court may
vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence that the record does not support the trial court's findings under relevant statutes
or that the sentence is otherwise contrary to law.” Id. at ¶ 1, applying R.C. 2953.08(G)(2).
{¶55} For primarily the same reasons explained in conjunction with appellant’s
first and second assignments of error, clear and convincing evidence is lacking to find
that the trial court’s sentence was contrary to law or that the court improperly considered
the sentencing factors.
Case No. 21 MA 0003
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{¶56} Appellant argues that his failure to comply with the court’s bond conditions
does not fall under any of the exceptions to imposing consecutive sentences. He
contends that this reason, as well as the court’s discussion of his “missteps” in violating
bond, shows that his sentence was based “more on anger and vindictiveness than an
appropriate sentencing of Defendant.” He asserts that traveling to Pennsylvania and
getting pulled over by police, failing to appear for sentencing, and incurring misdemeanor
charges before sentencing do not support the 29-34.5 year total sentence and the
sentencing transcript shows that the court just wanted to send a message by tripling his
sentence
{¶57} Again, the court sentenced appellant to the maximum term of
imprisonment for each offense, merged the two firearm specifications, and ran the terms
of imprisonment consecutively. A sentence that is within the statutory range is not
considered contrary to law. The plea agreement informed appellant of the maximum
terms of imprisonment that he could face and the trial court informed him of the same at
the plea hearing. (Plea Agreement at 2-3, 5; Oct. 7, 2020 Tr. at 14-15).
{¶58} The plea agreement specifically stated that the agreed-upon sentence
recommendation “IS STRICTLY CONTINGENT UPON THE DEFENDANT NOT
VIOLATING ANY LAWS OR OTHER CONDITIONS OF BOND WHILE AWAITING
SENTENCING. THE COURT IS NOT BOUND BY THIS RECOMMENDATION.” (Plea
Agreement at 5). The court informed appellant at the plea hearing that it was not bound
by the agreed-upon sentence recommendation and informed appellant of the potential
maximum imprisonment terms for each offense. (Oct. 7, 2020 Tr. at 15). While the court
also stated at the plea hearing that it would most likely go along with the plea deal, it again
ensured that appellant understood that the sentence was entirely up to the court
“regardless of any recommendations.” (Oct. 7, 2020 Tr. at 18). Finally, after repeating the
bond conditions, the court advised appellant at the end of the plea hearing that if he
violated any of those bond conditions, the court would revoke his bond and “vacate this
deal.” (Oct. 7, 2020 Tr. at 20-21).
{¶59} The trial court was not bound to accept the recommended sentence. See,
e.g., State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28 (the
court is not bound by a jointly-recommended sentence). State v. Williams, 7th Dist.
Case No. 21 MA 0003
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Mahoning No. 20 MA 0041, 2021-Ohio-4643, ¶ 11, citing e.g., State v. Underwood, 124
Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28 (the court is not bound by a jointly-
recommended sentence).
{¶60} The court cited the proper sentencing purposes and factors in imposing
the sentence. The court cited the factors specifically at the hearing and in its judgment
entry, and specifically explained that the PSI, the arguments of counsel, and the plea
agreement had been reviewed. (Dec. 16, 2020 Tr. at 20-22). The court stated that it was
not certain that appellant had traveled to Pennsylvania without permission, even though
a motion to revoke bond included the incident report from the police department. (Dec.
16, 2020 Tr. at 23). The court stated that appellant violated at least one bond condition
since he knew about the sentencing date and failed to appear. (Dec. 16, 2020 Tr. at 24-
25). The court also told appellant that it did not like the agreement that the parties set
forth in the plea agreement, but it was willing to cooperate with it at the time of the plea
hearing because the police had agreed that it was satisfactory to them. (Dec. 16, 2020
Tr. at 25).
{¶61} However, the court explained, as outlined above, that when its bond
conditions are violated, “there is no deal in this case. That’s where you are now. And there
shouldn’t be a deal if you don’t give the court - - you don’t even give me a chance to be
fair with you.” (Dec. 16, 2020 Tr. at 26). The court went on to inform appellant that it
considered the presentence report, counsels’ statements, the sentencing
recommendations, and appellant’s criminal history. (Dec. 16, 2020 Tr. at 26). The court
stated that it considered the purposes and principles of sentencing, and noted that the
seriousness and recidivism factors weighed against appellant. (Dec. 16, 2020 Tr. at 27-
28). The court also informed appellant that when he does not comply with bond
conditions, “you need to be tagged. You need to be made an example of. You don’t run.
You don’t hide. You don’t thumb your nose at the court.” (Dec. 16, 2020 Tr. at 29). Again,
while the court did not need to state this, the court followed this with statements that
appellant should not be shooting at police officers, or shooting at anyone, emphasizing
the seriousness of the crimes. (Dec. 16, 2020 Tr. at 29). This, in addition to the reasons
the court explained to appellant in court at sentencing and in its sentencing entry, shows
that the court did not act vindictively in sentencing appellant to the maximum term.
Case No. 21 MA 0003
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{¶62} Accordingly, appellant’s third assignment of error lacks merit and is
overruled.
{¶63} For the reasons stated above, the judgment of the trial court is hereby
affirmed.
Waite, J., concurs.
Robb, J., concurs.
Case No. 21 MA 0003
[Cite as State v. Hornbuckle, 2022-Ohio-2025.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.